David Kershaw: Revolutionary Amnesia and the Delegated Nature of Prerogative Power
“Left” in the Hands of the Crown
The extent to which an exercise of prerogative power can be subject to judicial review, as well as the nature of such review, are umbilically connected to the nature and source of prerogative power. But what is the nature of the prerogative powers exercised by the Crown today—how were those powers constituted, where are they located, how are they transferred? British constitutional law and history operates on the basis of several uninterrogated assumptions about the nature and transfer of these contemporary powers. In a recent working paper entitled Revolutionary Amnesia and the Delated Nature of Prerogative Power I challenge the veracity of these assumptions and explore the implications of their invalidity for the judicial review of an exercise of prerogative power.
Both Dicey and Locke in their accounts of the prerogative deploy the idea that these powers are the powers that are “left” in the hands of the Crown. For Dicey such powers represent a residue of the powers that English Kings and Queens have had since time immemorial; a residue that exists to the extent that post-Glorious Revolution Parliaments have not taken specific powers away (Dicey, Introduction to the Study of the Law of the Constitution at 282). For Dicey, and for courts that have regularly followed him, such powers are part of the Crown’s “original authority” (Dicey, at 282) and necessarily, therefore, are “not derived from statute” (R (Miller) v The Prime Minister  UKSC 41 at  (Miller II)). As original powers, the ends of these powers are determined by the power holder—the Crown—and, accordingly, there can be no logical basis to review the exercise of the power, unless that exercise clashes with a separately constituted right or legitimate expectation. Such an “original power” contrasts with a delegated power, delegated for a particular purpose and in relation to which judicial review in its various forms may seek to ensure that the power is exercised to further that purpose.
Locke is also commonly understood to view kingly power as an “original power”, “intrinsic to the office of the ruler” (Loughlin, Foundations at 387 (Kindle eds)). However, a strong reading of Locke’s Two Treatises suggests that, in contrast to Dicey, when he refers to prerogative powers being “left to the discretion of him that had the executive power” (Locke, Two Treatises of Government, ) he understood such powers to be delegated powers, “left…to him” in the way that “he” receives something he did not previously have. Locke refers to executive and prerogative powers being entrusted to the executive by “the framers” and “the people”, respectively, as a delegated “fiduciary trust”, “reposed” for “certain ends” ((Locke, Two Treatises of Government, , , ). Of course, whilst entrustment by “the framers” suggests an institutional delegation of power, empowerment by “the people”, without more, does not. However, to act as Locke describes “the people” acting in relation to prerogative power implies agency—an institutional agent capable of mediating between the constituent power of “the people” and the executive and prerogative powers of the prince. In his Two Treatises although he does, as noted above, refer to the “framers”,he does not identify any such institutional agent for “the people”. It is of some importance to note, therefore, that in the actual context of the Glorious Revolution of 1688-89 Locke “equated the Convention [Parliament] with the “people” and assigned to it the role of reconstituting a government when a dissolution of government occurred” (Schwoerer, Locke, Lockean Ideas, and the Glorious Revolution, 1990). That is, in the context of the Revolution, for Locke the constituent power of “the people” was mediated by the Convention Parliament which delegated prerogative power to the King and Queen.
Close attention to the events of the Glorious Revolution in 1688-89, our last “historically first” constitutional moment (Kelsen, General Theory, 115), confirm that the best reading of this event is that it transformed prerogative power from original kingly power, sourced in an amalgam of God, conquest and community, into statutory delegated public power. Although the contemporary investment of British Constitutional Law in the idea of original prerogative power is overwhelming it is, historically situated within the Revolution, untenable. Sight of this allows us, inter alia, to address recent academic and judicial disagreement about the scope and nature of the review of an exercise of prerogative power. Miller II is much more straightforward when we see that prerogative powers are a form of statutory delegated power.
The Dissolution of James II’s Royal Dignity
At the heart of “the original authority” idea is a presumption of constitutional continuity before and after the Glorious Revolution when James II “vacated the throne” and was replaced with William of Orange and Princess Mary. Or at least continuity in relation to the powers which were exercised by King James II and his predecessors before, and exercised by William III and Mary II after, the Revolution. This notion of continuity, however, fails to pay due regard to the proto-corporate nature of the Crown before the Revolution and the effect of the Revolution on that “corporation” and the transfer (or rather the non-transfer) of its powers.
Prior to the Revolution, although the source and extent of the King’s prerogative powers was hotly and violently contested, what all sides and factions shared was the view that the monarch was a hereditary monarch. The hereditary claim was viewed as an “‘indefeasible right’ and an incontestable, if unwritten, law of the realm” (Kantorowicz, The King’s Two Bodies, 333). Kingly power transferred automatically and instantaneously to the King’s heir on his death pursuant the rules of succession. The King as an individual would die, but the King as a separate legal person or capacity never died as the Kingship passed in accordance with the succession hierarchy. Kantorowicz’s seminal The King’s Two Bodies details meticulously how the concepts of “the crown”, the “royal dignity”, the King as a body politic or corporation sole interacted to form this separation idea. Of particular, and largely ignored, importance in this respect was the role of the “Dignity”, a proto-corporate concept which in 1688 and long before not only referred to its modern connotations of honour and respect but was also an umbrella term encapsulating regal power and prerogative.
Accordingly, the cry “the King is dead; long live the King” evidenced the unbroken continuity of hereditary Kingly power enabled by the proto-corporate ideas of Crown and Dignity. And an embedded and immovable component part of this royal corporation were the laws and practices of royal succession. The King’s proto-corporate official body fused “the perpetuity of the dynasty, the corporate character of the crown and the immortality of the royal dignity” (Kantorowicz, The King’s Two Bodies, 107). As Hobbes observed in 1651 “this artificial eternity, is that which men call the right of succession” (Hobbes, Leviathan at 129).
To modern observers, the change in the head of a corporate body is straightforward: one power/office holder is replaced with another, leaving in place, untouched, the corporate body and all powers and assets of that body. However, all such modern observers would also clearly understand that the change of office holder must take place within the constitutional rules of the separate legal person in order for there be effective continuity and transfer of power. This is true of a corporation sole as it is of a corporation aggregate. A person who is appointed by a group of non-shareholders to be a director and chair of Shell Plc is not a director and chair of Shell Plc. That person has the powers that the group of non-shareholders has delegated to her, but, quite obviously, no matter what the non-shareholder group claim they have done, she does not exercise any corporate power which has been delegated to the directors and to the chair of Shell Plc by the general meeting of shareholders of Shell Plc in accordance the constitution of Shell Plc. Building on this analogy, the article shows how the transfer of power to William did not take place within the constitutional rules which provided for the transfer of the Crown and the Royal Dignity possessed by James II. The result was the effective and unavoidable dissolution of James’s Dignity.
There are three reasons for this. First, pursuant to the prevailing constitutional position, although the King had two bodies they were inseparable other than on the death of the King as an individual, upon which his kingly body and the Royal Dignity instantaneously passed to and fused with the King’s rightful successor. As Bacon observed, “with great emphasis” the King’s individual personhood and the Crown “were inseparable though distinct” (Kantorowicz, The King’s Two Bodies, 107). The law of royal succession then was an elemental component of the pre-1688 kingly corporate body; compliance with which was an inescapable precondition for the transfer of the powers contained within the Dignity. In 1689, in treating the throne as vacated by James, in ignoring the “rightful” succession claim of his infant son, and in appointing William (who had no plausible claim in the prevailing succession hierarchy) as King, the Convention Parliament “eradicated the succession” (Tredenham, Debates of the House of Commons from the Year 1667 to the Year 1694 Volume IX, at 12) and thereby effectively dissolved the Dignity (and the powers contained within it) held by James. Objections to this position can be raised based on the prior Kingly depositions (Dunham and Wood, The Right to Rule England: Depositions and the Kingdom’s Authority, 1327-1485’ (1976) American Historical Review 738) as well as through the de facto King doctrine. The article addresses these objections showing that they are not compelling and, in relation to de facto King doctrine, follows Honoré to argue that the prior depositions that did not take place within the line of succession should be understood as situations in which “the old legal order [gave] way to the new, which might happen to coincide largely in content with the old” (Honoré, ‘Allegiance and Usurper’ (1967) 25 Cambridge Law Journal 214, 223). The second reason why the appointment of William as King took place outside of the prior constitutional arrangements is that, as the article shows, Parliament did not, acting alone, have the power to alter the succession or to transfer existing proto-corporate regal power and the Royal Dignity to a designated person. The third reason, as important as the “eradication of the succession”, is that the Convention Parliament was “not a parliament” and was precisely analogous to the non-shareholder group referred to above; a status which, as the article shows, Convention Parliamentarians were acutely aware of.
Remaking Prerogative Power
As the powers exercised by James were dissolved—or at least placed in permanent abeyance until James and or his “rightful” successors retook the throne, without conditions—necessarily the regal powers to be exercised by William and Mary had to be made anew. Through a close reading of the Bill of Rights the article shows how the dignity and its encapsulated power were remade by the Bill and how the corporate nature of the crown was fashioned anew, by statute. The fact that the actual powers, in several respects the distribution of powers, the proceedings, the architecture, the geography and the roles and offices were largely the same or identical to those in place prior to 1689 does not detract from the fact that they were made anew and were made by statute by a new parliamentary sovereign, the Convention Parliament. The article also shows through its reading of the Convention Parliamentary debates at the time of the appointment of William and Mary—but also thereafter in debates about making the Convention Parliament a Parliament, as well as in the debates on the Act for the Exercise of Government by Her Majesty during his Majesty’s absence of 1689 dealing with William and Mary’s power while William was in Ireland fighting James—that many Convention Parliamentarians understood that they were making and delegating Kingly powers. Lord Falkland observed, for example: “before the question be put, who shall set upon the Throne, I would consider what powers we ought to give the Crown” (Debates of the House of Commons from the Year 1667 to the Year 1694 Volume IX, at 30). William Whitlock in a debate on the Bill on his Majesty’s absence observed that: “the objection made is the danger of the trust in the Queen; but you may trust either, or both in the power you have conferred upon them. If Parliament have trusted them with the powers you may trust them with the administration of them” (Debates of the House of Commons from the Year 1667 to the Year 1694 Volume IX, at 114).
The Judicial Review of Delegated Prerogative Power
In its conclusion the article explores the implications for judicial review of understanding prerogative power as statutory delegated power. It argues that when prerogative power is seen through this lens, the Divisional Court’s approach in Miller II becomes untenable. In the context of public power delegated to the executive by statute or Order In Council (for example, R. (Bancoult) v. Secretary of State for the FCO  All ER (D) 1675 (Bancoult No. 1)) purposive review takes place in highly politicised environments, so what reason could there be for imposing subject matter / political limitations on the review of prerogative powers when such powers are merely a different, if grander, version of statutory delegated powers? And it shows that the highly controversial approach set forth in the Supreme Court’s judgment, which focused on the infringement of judicially identified constitutional principles, is unnecessary and that through a delegated power lens a more traditional approach focusing on the use of these prerogative powers for their proper purpose is available and coherent. Of course, such review requires the identification of the purposes of prerogative powers, which given the implied nature of the delegation in the Bill of Rights is not without difficulty. The article briefly explores the identification of purpose in the context of the power of prorogation arguing that it is implicit in the act of delegation: without express consent delegated power cannot be used to undermine the power of the delegator.
For comments on and conversations about the article, my thanks to Robert Craig, Sir Ross Cranston, Tatiana Cutts, Neil Duxbury, Conor Gearty, Josh Getzler, Michael Lobban, Martin Loughlin, Kai Möller, Jo Murkens, Tom Poole and Emmanuel Voyiakis.
David Kershaw, Professor of Law at the London School of Economics
(Suggested citation: D. Kershaw, ‘Revolutionary Amnesia and the Delegated Nature of Prerogative Power’, U.K. Const. L. Blog (8th Oct. 2020) (available at https://ukconstitutionallaw.org/))