The Crown's Administrative Powers

Abstract

In addition to its statutory and prerogative powers, the Crown has extensive administrative powers. The Crown’s administrative powers range from the power to form contracts to the power to circulate written material, and include powers to make ex gratia payments, convey property, and create policies. Much of the ordinary business of government falls under the Crown’s administrative powers, yet these powers are poorly understood. There are two existing accounts of the Crown’s administrative powers, but I show that both are unsound. I set out a better account, according to which the Crown’s administrative powers are of two sharply different types: (i) legal powers, which derive from the common law, and which extend to what a natural person can do and what the law permits; and (ii) non-legal powers, which stem from wide social recognition, and which extend beyond what a natural person can do or what the law permits. This ‘twofold account’ suggests several new ways of distinguishing the Crown’s administrative powers from its prerogative powers. It also suggests that the Crown’s administrative powers pose an unusual and serious threat to the rule of law.

Keywords: Crown, powers, permissions, common law, residual freedom