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  1. Please compare contrast all three terms? Pls note the 3 other separate questions below.

Anne Dennett. Public Law Directions (1 ed 2019). p 101.

It is common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme . . . Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen. (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) [20])

Definition

The Crown in Parliament refers to the legislative authority of the House of Commons, the House of Lords, and the Queen.

Colin Faragher. Public Law Concentrate (1 ed 2019). p 90.

The legislature of the UK is the Queen in Parliament. Parliament is bicameral. This means that, apart from the Queen, there are two legislative chambers called the House of Lords and the House of Commons. They work separately and simultaneously Mark Elliott. Public Law (3 ed 2017). p 108.


Mark Elliott. Public Law (3 ed 2017). p 108.

2.4 The Crown

Consider the following phrases of British constitutionalism: the ‘Crown in Parliament’, ‘Her Majesty’s government’, ‘Ministers of the Crown’, the ‘Royal Courts of Justice’, the ‘royal prerogative’, and ‘royal assent’.

p 109

      These pervasive references to the Crown might appear to indicate that it is the Queen personally
who runs the country rather than her government. In formal, constitutional terms, the
Queen does indeed possess executive powers to appoint Ministers, to dissolve Parliament, and to grant royal assent to legislation. However, in practice, such powers are exercised not by the monarch personally, but by elected politicians. Again, legal theory does not correspond with political reality.
      What then does the concept of the Crown actually mean? In one sense, the Crown is merely ‘an object of jewelled headgear under guard at the Tower of London’.8 In another sense, the Crown is an important symbol of continuity and change in the British constitution. As a symbol of royal
authority, the Crown was used in pre­ modern, medieval times to refer to the monarch when doing acts of government as opposed to acts undertaken by the monarch in his or her personal capacity. To pre­ serve continuity with the past, the concept of the Crown has been retained, although in practice governmental power is now exercised by both elected politicians and their administrators in the name of the Crown rather than by the monarch personally.
      In other words, the language of public law has not kept pace with the evolution of modern executive power in democratic times. As Maitland put it, the concept of the Crown is a ‘convenient cover for ignorance’.9 Executive power is not exercised by the Crown through its inherent powers of government. Instead, real executive power resides with the government of the day. As Lord Diplock noted, it would be better, instead of speaking of the Crown, to speak of the ‘government’—‘a term appropri­ ate to embrace both collectively and individually all the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried
on by the civil servants employed in the various govern­ ment departments’.10 For (almost) all practical purposes, ‘the Crown’ now simply means ‘the government’. Thus, as Lord Rodger has noted, the ‘executive power of the Crown is, in practice, exercised by a single body of ministers, making up Her Majesty’s government’

  1. Thus is "Crown in Parliament" superfluous? If not, how does it differ from just "Parliament"?

  2. In each following quote, what happens if I replace "Crown in Parliament" with Parliament?

    p 789

      Categorising prerogative Orders in Council as primary legislation for HRA pur- poses is anomalous.87 For present purposes, it is unnecessary to get bogged down in the semantics of ‘primary’ and ‘subordinate’ legislation.88 The key point is that the general constitutional position of prerogative Orders in Council is inconsistent with that which they occupy in relation to the HRA. Orders in Council are not the constitutional equals of Acts of Parliament: the former, unlike the latter, can usually be quashed if they are unlawful. The normal principles of judicial review therefore apply: if, for example, a prerogative Order in Council is unreasonable, or made for an improper purpose, or adopted in breach of a legitimate expectation, it can be set aside by the courts. Any doubt that may have existed on this point was put to rest by the House of Lords in Bancoult (No 2).89
      This position is entirely correct in principle. In constitutional theory, prerogative Orders in Council are acts of the Crown alone (meaning the executive), not of the Crown-in-Parliament. Orders in Council are therefore not cloaked by the doctrine of parliamentary sovereignty. Also, in constitutional practice, the prerogative is merely a tool in the hands of the executive. There is therefore no good reason why its exercise should be immune from judicial review—and every reason why it should be.

Anne Dennett. Public Law Directions (1 ed 2019). p 260.

12.1.3 Ministers

Ministers represent the Crown in Parliament, speaking on behalf of the government from the frontbenches, and their key role is to drive forward and deliver government policy. The Cabinet Manual categorises government ministers as: senior ministers; junior ministers; the Law Officers; and whips ([3.7]).


  1. In each following quote, what happens if I replace "Queen in Parliament" with just Parliament?

Anne Dennett. Public Law Directions (1 ed 2019). p 18.

Bogdanor expands on the role of parliamentary sovereignty in Britain: ‘The British Constitution could thus be summed up in just eight words: “What the Queen in Parliament enacts is law”’ (The New British Constitution, p 13). In other words, Parliament can change any part of our constitution in the same way that it changes ordinary law, simply by passing an Act of Parliament.

p 19.

Parliament: the UK’s supreme law-making body, divided into two chambers (the House of Commons and the House of Lords). In the United Kingdom, legislation is made by the Queen in Parliament, consisting of the House of Commons, the House of Lords, and the monarch. ‘Parliament’ derives from the French parler, meaning ‘to talk’; hence Parliament is the central debating forum where new laws are discussed and created.

p 41.

  • The question posed at the beginning of this chapter was: where would sovereignty settle? The answer is that supreme authority settled in the King/Queen in Parliament, while political power resides with the executive

p 50.

Parliamentary sovereignty describes the overriding legal authority of Parliament to create law and it is the most important underpinning principle of the UK constitution. Baroness Hale has made a fundamental point that is key to appreciating its nature:

[The UK constitution] is different from most other constitutions in that … its governing principle is that sovereign power is not distributed between the three branches of government but resides solely in Parliament (or strictly the Queen in Parliament). Parliament can make or unmake any law. (Sultan Azlan Shah Lecture, 2016)

So Parliament’s sovereign law-making power lies at the heart of the UK constitution and it flows from this that Parliament has the legal authority to change the constitution.

p 61.

The UK courts presume when interpreting statutes that Parliament does not intend to make laws that breach its international obligations (see Salomon v Commissioners of Customs and Excise [1967] 2 QB 116 at 143–144; Garland v British Rail Engineering [1983] 2 AC 751 at 771), but Diplock LJ also made it clear in Salomon that ‘the sovereign power of the Queen in Parliament extends to breaking treaties’. Thus where a UK statute and international law conflict, the courts respect the sovereignty of Parliament and the statute prevails (see, eg, Collco Dealings Ltd v IRC [1962] AC 1; Mortensen v Peters (1906) 8 F (J) 93).

p 71.

The Crown ‘The Crown’ has two meanings: the monarch and the executive, or ‘the Crown as monarch’ and ‘the Crown as executive’, as Lord Templeman has referred to them (M v Home Office [1994] 1 AC 377, 395). The monarch retains a role in law-making (the Queen in Parliament), justice in the UK is administered in the name of the Crown, and the executive retains its title of ‘the Crown’. Janet McLean explains that ‘the Crown theoretically represents a unity of the different branches of Government, being the Queen in Parliament, the Queen’s advisors, and the Queen’s judges’ (‘The Crown in Contract and Administrative Law’ (2004) 129 Ox J Legal Studies 129, 135).

Bradley, Ewing. Constitutional and Administrative Law (2018 17 ed). p 54.

      At its simplest, the supremacy of Parliament means that there are no legal limitations on the power of Parliament to legislate. Parliament here does not refer to the two Houses separately, for neither House may legislate on its own, but to the constitutional entity known as the Queen in Parliament: namely the process by which a Bill approved by Lords and Commons receives the royal assent and thus becomes an Act of Parliament. Thus defined, said Dicey, Parliament has ‘under the English constitution, the right to make or unmake any law whatever; and further . . . no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’.28 Dicey was writing at a time when England was often used as a loose synonym for Great Britain or the United Kingdom,29 and today it is necessary to discuss whether the law on this matter is the same throughout the United Kingdom.30

pp 87-88

      Dicey’s view of the rule of law, like his view of parliamentary sovereignty, was based on assumptions about the British system of government that no longer apply. Although he did not satisfactorily resolve the potential conflict between the two notions of the rule of law and the supremacy of Parliament,34 a judicial formulation of the relationship implies the need for equilibrium and balance rather than conflict:

The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.35

Colin Faragher. Public Law Concentrate (1 ed 2019). p 116

Marshall, in [1993] Public Law 402, said that Ex p Rees-Mogg (1994) means that Art 9 Bill of Rights 1689 protects Members of Parliament from civil liability for what they say in debates and parliamentary proceedings. It does not prevent judicial scrutiny of parliamentary material where the courts have to decide on the legal effect of resolutions of either House. He concluded that the courts have jurisdiction to consider parliamentary material where:

• this was necessary to uphold the will of the Queen in Parliament; or
• a statute refers to parliamentary proceedings or resolutions and it is necessary to refer to them to determine what the statutory provisions mean.

p 120.

Blackburn v Attorney General [1971] 1 WLR 1037

The claimant brought two actions against the Attorney General claiming declarations to the effect that, by signing the Treaty of Rome, Her Majesty’s Government would irreversibly surrender in part the sovereignty of the Queen in Parliament and in so doing would be acting in breach of the law. Eveleigh J upheld the order of the master striking out the statements of claim as disclosing no reasonable causes of action. The claimant appealed to the Court of Appeal. Lord Denning said that although, in theory, Parliament cannot bind its successors and declare an Act of Parliament to be irreversible, legal theory must, at times, give way to practical politics and that sovereignty is a political fact for which no purely legal authority can be constituted.
      The declarations were refused.

p 120

      While the European Communities Act 1972 remains in force, EU law is supreme. But ultimately sovereignty still lies with the Queen in Parliament because the European Communities Act 1972 can be expressly repealed by the present or any future Parliament. Lord Denning MR in Macarthies v Smith (1979) said that if Parliament deliberately passed an Act intending to repudiate the EC Treaty expressly, the courts would have no choice but to follow the provisions of the Act.

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  • 5
    I've noticed that you posted three different questions about this topic, each one with slightly different content. I closed the other two as duplicates of this one. If you feel that the other two questions contain information which is required for understanding your question, feel free to edit your question and add that information to this question.
    – Philipp
    Feb 4 '20 at 10:31
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+50

Queen-in-Parliament, King-in-Parliament and the less personalised term Crown-in-Parliament all refer to the same fundamental element in the UK Constitution and in the Westminster system of government more generally. They refer to a collective entity, made up of the Sovereign and the two Houses of the UK Parliament, that together constitute the the supreme legislative authority. It emphasises that the Crown is a constituent part of the legislative branch of government and carries with it the idea that legislation is made and unmade not just by a Parliament (by one or two houses) but with the essential participation of the Crown in the legislative process. It is also associated with the idea that the Crown may be regarded as the embodiment of the legislature (just as it is sometimes seen as the embodiment of the other branches of government and even of the state itself). The Queen is formally the sole legislative authority, although creating law on the advice of and with the consent of, Her Parliament.

So, when the word Parliament is used informally, it might really refer to the Crown-in-Parliament. For example, the simple statement,”Our Parliament makes laws for the UK.” refers to the Crown-in-Parliament since the Parliament can’t make law without the participation of the Crown. “Parliament” can also refer to just to the two Houses of the Lords and the Commons, of course. For example, “The Bill has passed through Parliament and is awaiting Royal Assent.” is a statement that recognises Crown participation in the legislative process.

The Crown-in-Parliament is observed in ceremony, when the Queen opens Parliament for example, and in more practical terms when the Queen performs her constitutional role in assenting to legislation before it can become law. It is also explicit in the enacting clause of an Act of the United Kingdom Parliament, reciting how, and by what authority, the law has been enacted:

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Being fundamental to the Westminster system, the concept of the Crown-in-Parliament, or versions thereof, may be found in the constitutions of many nations. These are just three diverse examples:

In Australia, a Commonwealth Realm (independent of the UK but sharing the same monarch) the concept is codified in Section 1 of the Constitution of Australia: The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called ‘The Parliament’...

In the Republic of Ireland, where the non-executive President fulfils a role much like that of the Monarch in the UK, Article 15 says: ...the oireachtas [National Parliament] shall consist of the President and two houses, viz.: a house of representatives to be called dáil Éireann and a senate to be called seanad Éireann.

In Samoa, a unique elective monarchy with a Westminster system of government, section 42 of the constitution says: There shall be a Parliament of Samoa, which shall consist of the Head of State and the Legislative Assembly.

References:

https://www.merriam-webster.com/dictionary/queen-in-parliament

https://www.parliament.uk/about/how/role/relations-with-other-institutions/parliament-crown/

https://en.m.wikipedia.org/wiki/Queen-in-Parliament (Notice that the Wikipedia article is flawed in a number of ways)

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All refer to various legal fictions. "Crown in Parliament" means the same as "Queen in Parliament", but could also mean "King in Parliament". All three terms refer to the fiction that the laws made by Parliament are executed by the Queen.

One can make a subtle distinction between "the Crown in parliament" and "the Crown". Some actions of the government (ie the Executive (American English) or the Government (British English)) can be done without consulting Parliament.

So when the Government decides to raise a tax on tea (for example) Parliament votes on this. The the executive arranges for tax collectors to gather the money. This is an action of the Crown in Parliament. Note that Parliament doesn't hire the tax collectors.

On the other hand, when the Crown has been granted powers, then the Crown (ie the government) can act without further consultation of Parliament. For example, the government can order an attack on another country without first getting approval from Parliament. (though Parliament will want to discuss the matter after it occurred)

So a subtle distinction can be made between "The government executing legislation of Parliament" and "The government acting without direct reference to parliament". So "The Crown in Parliament" and "The Crown" are subtly different.

A clear distinction can be made between Parliament and "The government executing legislation of Parliament". Even though Ministers are also members of Parliament, and in normal times the government has a majority in parliament so the government can choose which legislation it wants Parliament to pass. There is a clear distinction between "Parliament" and "The Crown in Parliament".

The notion is that ultimately "The Crown in Parliament" (ie the government acting in support of laws passed Parliament) is sovereign. This entity can create any piece of legislation and has a monopoly on violence. It is subject to no higher power (save perhaps God).

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  • What do you mean by a “monopoly on violence”? Do you have a source that uses this terminology? I’d say “the Crown” and the “Crown-in-Parliament” are substantially different not subtlety so. Feb 10 '20 at 1:47
  • I've seen it used here before, and it is a neat concept. The state is the only body that can imprison someone, detain them forcibly, attack another state or group. It is the only body that is allowed to do violence.
    – James K
    Feb 10 '20 at 18:01
  • Yes, I see your point of course, but I can’t really see the relevance here. The UK Parliament (strictly “Crown-in-Parliament”) is sovereign and supreme and so theoretically free to do good or evil as it may choose. (There are significant practical constraints, of course, such as the democratic will of the people it’s members are elected to represent, expressed through the ballot box, in the media and on the streets.) Your version sounds off because it focussed on the evil. Feb 10 '20 at 22:11
  • I don't see any mention of evil. "Violence" can be a good thing. I support the arrest and incarceration of criminals!
    – James K
    Feb 10 '20 at 22:37
  • Fair enough. I raised “good and evil”. You seemed to me to unduly emphasise a negative but I can see that isn’t what you meant. Feb 11 '20 at 5:04

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