The Strange Death of Prerogative in England

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.