The Strange Death of Prerogative in England

• Author: Thomas Poole
• Position: Professor of Law, London School of Economic and Political Science
• Pages: 42-66

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THE STRANGE DEATH OF PREROGATIVE IN

ENGLAND

Thomas Poole*

This paper questions the continued existence of prerogative as a

meaningful juridical category within UK constitutional law. It constructs a concept

of prerogative out of canonical definitions, themselves instructive but incomplete,

at the core of which is the idea of prerogative as a special category of executive

power that evokes a special authority to which other political agents ought to defer.

In light of recent prerogative cases, the paper advances two possibilities. A

moderate reading suggests that prerogative has now become a special category of

executive power that may evoke a special authority to which the court may in

appropriate cases defer. A stronger reading advances the idea that prerogative is no

longer a special category, but rather an inchoate set of executive capacities to which

deference in general terms ought not to be given. It concludes by suggesting that

we need to update our conceptual vocabulary. Just as we now speak about the

executive’s general administrative powers of contract and agency, we should prefer

the terminology of the general executive powers of government to the vocabulary

of royal prerogative.

There are more important sources of political authority, but prerogative may

still represent the apotheosis of executive power. Parliament has successfully

chipped away at prerogative powers for centuries and the courts have done

much to bring them further into the constitutional fold. Since there has been no

wholesale abolition of prerogative, to suggest the end of prerogative may seem

foolhardy in the extreme. But it is just this line of inquiry that this paper

proposes. Prompted by a quartet of United Kingdom Supreme Court cases that

question the extent to which prerogative can still be said to operate as

prerogative, it pursues as a kind of thought-experiment the proposition that

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* Professor of Law, London School of Economic and Political Science. I would like to thank the

participants at the workshop on executive power held in Perth at the Institute of Advanced Studies,

The University of Western Australia in April 2017, particularly to Murray Wesson for organising the

workshop and the Honourable Robert French AC for his comments on the original paper. I would

also like to thank Robert Craig for his comments on a later draft.

[2018]

The Strange Death of Prerogative in England

43

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what we are witnessing may not be the continued declension of prerogative so

much as its incipient demise.

The more that argument succeeds, the more it diverges from previous

analysis of the subject, including my own, which observed attempts by the

courts in particular to normalise prerogative while noting the deference to

government that still characterised prerogative cases. While the prerogative

might be ordinary in principle, it remained special in practice.1 What is

apparent in the more recent jurisprudence is the almost complete absence of

deference afforded to the category by the courts. So emptied, prerogative begins

to look like any other executive power, especially since the national security

terrain on which it often presents is increasingly subject to scrutiny by courts

and other institutions on something close to ordinary principles. Indeed,

pleading prerogative might even have the opposite effect from the one

intended, putting the court

more

on guard than it otherwise might have been.

Far from being the trump card it may have been once, prerogative may now be

something of a liability for those charged with defending governmental action.

There is value in pressing this case. But I also offer a fall-back position

that accepts the continued existence of prerogative as a distinct, formal source

of authority, but tries to make sense of it given the demystification that has

occurred in respect of both the prerogative category itself and the substantive

claims for special powers in the interests of

salus populi

with which it was once

conjoined.

Either alternative rests on assumptions about public law method. To get

the argument going, I put both on the table now. The first assumption is that

conceptual analysis in public law cannot just be about legal doctrine. Public law

concerns how state power is instituted and exercised. To study a public law

concept requires an account not just of what judges and jurists have said about

it, but also an account of how what they said fits within the broader juristic

framework of constitutional politics. It involves questions of jurisdiction but

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1 Thomas Poole, ‘Judicial Review at the Margins: Law, Power and Prerogative’ (2010) 6 0

University of

Toronto Law Journa

l 81. See also, from a slightly older vintage, Adam Tomkins,

Public Law

(Oxford

University Press, 2003), 83: ‘That the courts are prepared to grant to the Crown such elastic and ill-

defined powers, and to subject their exercise to such modest – even superficial – review, constitutes

the second way in which the executive will find the rule of law a much less onerous check on its

powers than it might at first have seemed.’