The prerogative and third source: a critical analysis

Thesis

The prerogative and ‘third source’ are two sources of authority for executive action in British law. This dissertation subjects these two sources of authority to critical analysis, examining their legal histories, conceptual foundations, doctrinal structures, normative shortcomings, and comparative equivalents. It demonstrates that the prerogative and third source are even more unsettled than is commonly acknowledged, and have been a site of struggle over giving effect to the perceived needs of the state. The prerogative does not stretch back into the mists of time, but was actively shaped and developed by judges. The third source or something like it – the notion of some further common law authority for executive action where such action is not unlawful – did not first appear in the late 1970s, and was relied upon (at least in modified form) in at least as early the nineteenth century. The prerogative and third source are often given one-sentence definitions, when mentioned in case law and commentary, but the major attempts to define the prerogative and third source are full of undesirable ambiguity. That is both a cause and consequence of significant indeterminacy in the case law on the prerogative and third source. From a normative perspective, the prerogative and third source also fall short of values supposedly upheld by the British legal order: they are not subject to structured scrutiny or circumscribed by an authoritative text. But adopting a single codified constitution does not eliminate ambiguity and indeterminacy, as the experiences of Australia and the United States demonstrate. A promising response to these problems is to seek comprehensive legislative codification of the prerogative and third source, though this will not be a panacea to the problems of executive over-reach, and will not extinguish judicial discretion in determining the limits of executive action.

Authors: Harris, MDN

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: legal history; constitutional law; capitalism; Public law; imperialism; prerogative; abuse of power; critical legal theory; state
• Subjects: Constitutional law