The Crown has statutory and prerogative powers, and many people have said it has other powers as well. The Supreme Court clearly agreed for the first time in 2013. In R (New London College) v Secretary of State for the Home Department, Lord Sumption said for the majority: ‘the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority’ (at [28]). This remark was obiter, but it is in keeping with the trend of authority over the past decade. (Mark Elliott, Paul Daly, and Janet McLean blogged about New London College earlier.)

The Crown’s ‘general administrative powers’, as Lord Sumption calls them, and as I shall call them here, are unglamorous but important. They range from the power to form contracts to the power to convey property, and include powers to circulate written material, consult with officials, give gifts, and create policies. Much of the day-to-day business of government falls under the Crown’s general administrative powers.

Their importance makes it worth knowing what gives the Crown its general administrative powers. How does the Crown come by these powers? What is their basis or source? Two answers have been popular, but I have doubts about both of them.

Harris’s Account

Bruce Harris has done more than anyone else to bring attention to the Crown’s general administrative powers. Harris takes as his starting point the principle set out by Sir Robert Megarry in Malone v Metropolitan Police Commissioner that everyone is legally permitted to do what is not legally prohibited. Harris calls this the ‘principle of legality’. He thinks it gives everyone, including the Crown, a ‘residual liberty’ to do what is not prohibited. The Crown’s residual liberty is a ‘third source’ of power or (the word he prefers) ‘authority’, in addition to statute and custom. This third source is the source of the Crown’s general administrative powers.

I find Harris’s argument fascinating, but I am not convinced by it. It helps to make the steps of his argument clear. This is what Sir Robert Megarry says in Malone:

1. The Crown is permitted to do what the Crown is not prohibited from doing.

Harris ultimately says that the Crown has a power to do what the Crown is not prohibited from doing. Note the shift from ‘is permitted’ to ‘has a power’. Permissions are very different from powers, so what Harris says does not follow directly from 1. I think Harris must be assuming this:

2. The Crown has a power to do what the Crown is permitted to do.

Now Harris’s conclusion follows:

3. The Crown has a power to do what the Crown is not prohibited from doing.

It seems to me that there are several problems with this argument. But the most important is that 2 is false. The Crown does not have a power to do whatever it is permitted to do. Think of some of the things the Crown is not prohibited from doing: making a will for you, solving the Middle East crisis, repealing all the laws of France, giving itself the power to repeal all the laws of France, and on and on. It follows from 1 that the Crown is permitted to do all these things. Were 2 true, it would follow that the Crown has the powers necessary to do all these things. But the Crown has no such powers, so 2 is wrong. In short, what the Crown is permitted to do is one thing, what it has a power to do is another.

This is a quick objection, of course. There are subtleties in Harris’s account that I have left out. Given the difference between permissions and powers, I can’t see how Maloneor the ‘principle of legality’ could be the right starting point. But I am keen to know what others think.

The Common Law Account

Courts in this country have favoured a different account of the source of the Crown’s general administrative powers. In R v Secretary of State for Health, ex p C, the Court of Appeal claimed that the common law gives the Crown the same powers as a natural person. In Shrewsbury & Atcham Borough Council v The Secretary of State for Communities and Local Government, the Court of Appeal followed C, which it took to have established that the Crown has common law powers to do ‘anything which could be done by a natural person’ (at [44]). (The Supreme Court has also on occasion referred to the Crown’s ‘common law powers’.)

It is striking that the Court of Appeal did not offer any real argument for the claim that the common law is the source of the Crown’s general administrative powers. The closest it came was citing a passage from Halsbury’s Laws of England.

There is an obvious argument for that claim. It proceeds by process of elimination: there are only three legal sources – statute, custom, and common law; the source of the Crown’s general administrative powers is not statute or custom; so, their source must be the common law. But note the implicit assumption that the source of the Crown’s general administrative powers is a legal source.

That assumption seems half right and half wrong to me. It is half right because (with some possible exceptions not relevant here) legal powers have legal sources, and some of the Crown’s general administrative powers are legal powers. This includes its powers to form contracts, give gifts, and convey property. These are legal powers because, in essence, their use affects legal duties and rights because that is what the Crown can be taken to intend by using them. The common law is indeed the source of these powers.

The assumption is half wrong because some of the Crown’s general administrative powers are not legal powers. This includes its powers to circulate written material, consult with officials, and create policies. The relationship between non-legal powers and legal sources is tricky, but the three powers I just mentioned seem clearly not to have any legal source, including the common law. I cannot argue for that claim here, but if you are sceptical, ask: what change in the common law would make it impossible for the Crown to circulate a list or consult with officials?

So the common law account identifies the source of some but far from all of the Crown’s general administrative powers.

Those are the two existing accounts of the source of the Crown’s general administrative powers. There is a need for a new account, and in a separate working paper, I take some steps towards one. There are many other interesting questions about the Crown’s general administrative powers. What is the extent of the Crown’s general administrative powers? What distinguishes them from the Crown’s prerogative powers? How should courts treat exercises of general administrative powers? Is it consistent with the rule of law for the Crown to rule using powers not conferred by law? In my paper I try to answer some of these questions, too.

This post originally appeared on the UK Constitutional Law Group blog here on 25 November 2014.