The Strange Death of Prerogative in England

22 Pages Posted: 18 Jan 2018

See all articles by Thomas M. Poole

Thomas M. Poole

London School of Economics - Law Department

Date Written: December 7, 2017

Abstract

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.

Suggested Citation

Poole, Thomas M., The Strange Death of Prerogative in England (December 7, 2017). LSE Legal Studies Working Paper No. 21/2017. Available at SSRN: https://ssrn.com/abstract=3083984 or http://dx.doi.org/10.2139/ssrn.3083984

Thomas M. Poole (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/thomas-poole.htm

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