The Crown and Constitutional Reform

Cris Shore, Sally Raudon, David V Williams, Cris Shore, Sally Raudon, David V Williams

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000169188
• Edition: 1
• Topic: Education
• Subtopic: Education General

The Crown and Constitutional Reform is an innovative, interdisciplinary exchange between experts in law, anthropology and politics about the Crown, constitutional monarchy and the potential for constitutional reform in Commonwealth common law countries.

The constitutional foundation of many Commonwealth countries is the Crown, an icon of ultimate authority, at once familiar yet curiously enigmatic. Is it a conceptual placeholder for the state, a symbol of sovereignty or does its ambiguity make it a shapeshifter, a legal fiction that can be deployed as an expedient mask for executive power and convenient instrument for undermining democratic accountability? This volume offers a novel, interdisciplinary exchange: the contributors analyse how the Crown operates in the United Kingdom and the postcolonial settler societies of Canada, Australia, and New Zealand. In doing so, they examine fundamental theoretical questions about statehood, sovereignty, constitutionalism and postcolonial reconciliation. As Queen Elizabeth II's long reign approaches its end, questions about the Crown's future, its changing forms and meanings, the continuing value of constitutional monarchy and its potential for reform, gain fresh urgency.

The chapters in this book were originally published in a special issue of The Round Table: The Commonwealth Journal of International Affairs.

The Crown as Proxy for the State? Opening up the Black Box of Constitutional Monarchy

Cris Shore

ABSTRACT

Despite its centrality to the constitutions of Australia, Canada, New Zealand and the United Kingdom, the Crown remains enigmatic, misunderstood and difficult to define. Is it the government, the state, the Queen, a ‘corporation sole’, an illusory construct and mask for executive power, or a shapeshifting entity that combines all these features? Legal scholars and social scientists have written extensively on the problems of theorising the state yet these literatures tend to work in isolation. This chapter brings together different disciplinary and empirical perspectives to analyse the Crown as an embodied form of statehood. While the Crown is typically seen as a metonym for the state, I argue that these concepts do not map the same semantic terrain. Moving beyond the ontological question of ‘what is the Crown’, I suggest we focus instead on what the Crown does, and what the Crown idea makes possible politically and constitutionally. Borrowing from Mitchell (1999), I call these ‘Crown effects’. If the state is the ‘greatest of artificial persons’, as Maitland famously argued, what can be said for the Crown? Using examples from New Zealand, I illustrate why personifying the state in the figure of a monarch is both problematic yet expedient.

The Enigmatic Crown: Opening up the Black Box of Constitutional Monarchy

It is over 40 years since Philip Abrams wrote his seminal essay on the difficulties of studying the state, yet that challenge is even greater today than it was then.¹ Many social scientists now recognise the state’s elusive character and insist that we view it not as a material object but as an assemblage of cultural practices and ideological artefacts that attribute unity and autonomy to the fragmented and dependent practices of government. However, locating the state and understanding how ‘state effects’ necessary for governance are produced continue to pose problems for state theorists as well as legal and political analysts, in large measure because the state itself is such an enigmatic and protean entity – a prime example of what Bruno Latour and other actor-network theorists term a ‘black box’.² These challenges, I suggest, are compounded in state systems such as those of Australia, Canada, New Zealand and the United Kingdom, which are based on the Westminster model of constitutional monarchy, another kind of black box that is even more opaque and impenetrable. In these countries the Crown is often treated as a proxy or metonym for the state.³ However, this comparison is misleading as the Crown is both more than the state and, as I shall illustrate below, also less than, or different from, the state. In New Zealand, for example, the Crown stands at the heart of the constitution, is the source of government legitimacy and ultimate legal authority, and features prominently in everyday political discourse. It is also commonly represented as a Treaty partner to Māori, one of the two principal signatories to the Treaty of Waitangi of 1840, often considered to be New Zealand’s founding document. Yet the term ‘Crown’ is not mentioned in either the English or the Māori versions of that treaty. However, the term ‘her Majesty the Queen of England’ appears no less than six times in the three short articles of the Treaty.⁴

Like constitutional monarchy itself, the Crown is hard to discern, poorly understood and notoriously difficult to define. Is it the government, the state, a ‘corporation sole’ or ‘aggregate’, the Queen or her representatives, the governors-general, a metaphor for legal authority, a relic from medieval political theology, or a mask that cloaks the accumulation and exercise of executive power? As I hope to show, in many respects the Crown encompasses and articulates all of these different characteristics. Drawing on examples from New Zealand, this chapter opens up the constitutional black box that is the Crown, particularly in the context of debates about how we should conceptualise the modern state.⁵ The Crown is an elusive, shapeshifting and hydra-headed entity that assumes a number of different forms. Like the state, it also has powerful effects that are often hard to recognise. Rather than simply focusing on the ontological question of what is the Crown, I suggest it is more analytically useful to ask how is the Crown embodied? What are the implications of its personification? What political, constitutional and symbolic work does the ‘Crown idea’ perform? And what can studying the Crown’s development reveal about the transformation of the state in postcolonial societies such as New Zealand, Canada and Australia?

Leaving aside the growing popularity of documentaries and television series about the monarchy, or the spate of recent dramas about the life of the young Queen Elizabeth (or Queen Victoria and her relationships with her husband, gardener or guru), these questions are particularly relevant to New Zealand, Canada and Australia where, despite regular calls for constitutional reform and decolonisation and periodic resurgences of republican sentiment, the Crown continues to act as the central organising principle of these countries’ legal and political systems and constitutional orders. Yet these countries share much more than simply Queen Elizabeth II as their head of state: a whole edifice of governmental institutions, offices and historical norms and practices has been constructed around the idea (and some might say ‘fiction’) of the Crown in Parliament. Indeed, the British constitution – and arguably also those of Australia, Canada, and New Zealand – can be summed up in just eight words: ‘What the Queen in Parliament enacts is law’.⁶ In this context, the Queen represents the office of the Crown and its historical claim to sovereignty. The Crown therefore stands at the apex of the Westminster model of government and is the embodiment of state power and absolute legal authority. In New Zealand and Canada (but curiously not in Australia) it is also one of the most commonly used terms of daily public and political life: people hear constantly about what the Crown does and how it acts.

Yet for all its constitutional importance the Crown remains extraordinarily elusive and enigmatic. Even in its own statutes (passed by something called ‘the Crown in Parliament’), what constitutes the Crown, where its boundaries lie and what its defining features or qualities are, are far from clear. In New Zealand, for example, the Copyright Act 1994 (NZ) declares that the Crown means ‘Her Majesty the Queen in right of New Zealand; and includes a Minister of the Crown, a government department, an Office of Parliament, and the Parliamentary Counsel Office’.⁷ The Constitution Act 1986 (NZ) refers to the Crown only in regard to ‘Ministers of the Crown’ and the death of the sovereign, upon which ‘all the functions, duties, powers, authorities, rights, privileges, and dignities belonging to the Crown’ transfer to the sovereign’s successor.⁸ The Crown Entities Act 2004 (NZ) distinguishes between the Crown, the House of Representatives and Crown entities (such as Radio New Zealand, the Commerce Commission and Crown Research Institutes).⁹ By contrast, the Public Finance Act 1989 (NZ) states that the Crown means the ‘Sovereign in right of New Zealand’ including all ministers but excluding parliament.¹⁰ As one New Zealand government official put it, ‘there are hundreds of entities under the Public Finance Act that are defined as not being the Crown, but which are funded by the Crown or they’re answerable to the Crown’.¹¹

Senior judges such as Chief Justice Elias of the Supreme Court of New Zealand accept that the Crown ‘has different meanings according to context’.¹² New Zealanders, one High Court judge told me, ‘have a high tolerance for ambiguity’¹³. Another explanation might be that ambiguity is an intrinsic aspect of statecraft and the law, as legal historians since Bagehot¹⁴ and Maitland¹⁵ have recognised. In the common law tradition the Crown has at least three different meanings. It is simultaneously seen as: (1) part of the political apparatus, notably the executive branch of government (but experts disagree on whether the judiciary is technically part of the Crown); (2) a body that stands between the institutions of government and the citizens, i.e. an entity situated above the government of the day that is capable of exercising a will of its own¹⁶; and (3) an entity that can stand for both governing institutions and the community they represent. According to this conception the Crown, a holistic body that exists in perpetuity, can also embody the general will of the people, much as a national assembly might claim to embody the will of the electorate (except, of course, that the monarch is an inherited rather than elected position).

Ubiquitous yet Hidden in Plain Sight

One of the paradoxes, as I discovered carrying out fieldwork for this study and in the many interviews conducted with legal experts, politicians, judges, civil servants, Crown officials and indigenous peoples in Australia, Canada, New Zealand and the United Kingdom, is that the Crown is ubiquitous and yet largely invisible to, or below the radar for, most people. As Philippe Lagassé notes of Canada:

The Crown permeates all aspects of the Canadian state. Judicial power flows from the Crown, executive power flows from the Crown, legislative power flows from the Crown, the concept of the state as a person, so how it holds property, how it employs people, the privileges it has, all these things are monarchical.¹⁷

Despite this array of powers, most Canadian interviewees when asked about the political and constitutional significance of the Crown tended to view it as somewhat anachronistic and irrelevant, and often associated the Crown with the royal family in England rather than as a recognisably Canadian institution, notwithstanding the efforts of Canadian monarchists to rebrand the monarchy as a distinctly Canadian ‘Crown of maples’.¹⁸ In New Zealand, perhaps even more so than in Canada, peo...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• Preface: Sovereignty, Symbolism, Statehood: the many guises of the shapeshifter Crown
• Introduction
• 1 The Crown as Proxy for the State? Opening up the Black Box of Constitutional Monarchy
• 2 From Bagehot to Brexit: The Monarch’s Rights to be Consulted, to Encourage and to Warn
• 3 Will New Zealand Inevitably Become a Republic, ‘Just as Britain Will Be Blurred into Europe’?
• 4 The Supreme Court and the Miller Case: More Reasons Why the UK Needs a Written Constitution
• 5 Royal Succession and the Constitutional Politics of the Canadian Crown, 1936–2013
• 6 Locating the Crown in Australian Social Life
• 7 The Many Faces of the Crown and the Implications for the Future of the New Zealand Constitution
• 8 The ‘Unsettledness’ of Treaty Claim Settlements
• 9 The Crown: Is It Still ‘White’ and ‘English-Speaking’?
• 10 From Loyal Dominion to New Republic: Which Realm Will Get There First?
• 11 When the Queen is Dead
• 12 The Queen is Dead! Long Live the President?
• 13 Reflections of the 19th Governor-General of New Zealand
• Index