Revolutionary Amnesia and the Delegated Nature of Prerogative Power

40 Pages Posted: 24 Jul 2020 Last revised: 7 Oct 2020

See all articles by David Kershaw

David Kershaw

London School of Economics - Law Department

Date Written: July 1, 2020

Abstract

What is the nature and source of prerogative power? Where does it come from and how was it created? British constitutional law makes several assumptions in these regards, none of which have been subject to careful interrogation. Presumptively, it assumes that these powers are powers constituted in the midst of time through an amalgam of conquest, religion and community. It assumes that these kingly powers are original powers, meaning that the end for which a power is to be used is determined by the power-holder; they are not delegated powers subject to purposive limitation as are statutorily delegated powers. And it assumes that the prerogative powers exercised today are the same kingly powers exercised by Kings and Queens, time out of mind. These assumptions are the structural drivers of the arguments on both sides of the recent debate and case law surrounding the Government’s use of the prerogative of prorogation. However, as this article demonstrates, historically situated, all of these assumptions are inaccurate. The article shows how we have ignored the revolutionary implications of the Glorious Revolution in 1688; our last “historically first” constitutional event. When we interrogate this event we see that the prerogative powers exercised by the executive today are not original but delegated, and they were not constituted prior to 1688 but were formed through statutory delegation from a constituted parliamentary sovereign in 1689, the Convention Parliament. They are merely a grander form of statutory delegated powers and as such can be subject to judicial review which focuses on the use of those powers for their proper purpose. This insight renders the Supreme Court’s approach in Miller II unnecessary, and the Divisional Court’s approach untenable.

Suggested Citation

Kershaw, David, Revolutionary Amnesia and the Delegated Nature of Prerogative Power (July 1, 2020). LSE Legal Studies Working Paper 9/2020, Available at SSRN: https://ssrn.com/abstract=3640590 or http://dx.doi.org/10.2139/ssrn.3640590

David Kershaw (Contact Author)

London School of Economics - Law Department ( email )

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

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