“Divest him of most of those badges of slavery called prerogatives”, proposed John Adams for the executive power of Massachusetts as the American States sought to free themselves of the Crown.[1] For one formed in the intellectual tradition of the old Whigs and translating it to a new constitutional context, such a statement seems quite natural. But would you expect the British Supreme Court to utter such statements? Perhaps not. And yet, when in a mood to restrict the executive branch’s powers it makes similar utterances, though with a little less rhetorical power. Though, of course, when minded to not intervene it expresses the opposite tendency. My object here is, however, to address the tendency of the judiciary to sometimes self-aggrandize.
So, in the prorogation case, the Court approved of Lord Browne-Wilkinson’s statement in Fire Brigades Union where he said that British constitutional history is that of the Crown’s prerogative “being made subject to the overriding powers” of the sovereign, democratic legislature.[2] This provided therefore a strategic justification for the result achieved by the Court. For if this is the trend of constitutional development, the Supreme Court settling a new rule would only be developing precedent. In the first Miller case, the majority similarly endorsed this opinion of constitutional development. [3] There it stated that, “Originally, sovereignty was concentrated in the Crown, subject to limitations which were ill-defined and which changed with practical exigencies. […] However, over the centuries, those prerogative powers, collectively known as the Royal prerogative, were progressively reduced as Parliamentary democracy and the rule of law developed”.[4] I refrain from going into how the Court’s own attitude to executive power is ill-defined and changeable with practical exigencies. I offer but one example, the Court’s capitulation in favour of executive power in the recent Shvidler [2025] case, which achieved a result antithetical to the personal liberty of citizens, which I have seen widely condemned.[5]
Addressing the question at hand, the rationale based on historical development is itself falsely grounded. For, the prerogatives are not archaic anachronisms as the Court’s Whiggish narrative might suggest,[6] but reflects the powers inherent in the Crown as executive. Indeed, there is an enduring rationale uniting Blackstone in England with Madison in America for inherent executive power. It is, that much more than a composite legislature, the executive ensures greater unity of resolution, secrecy, despatch, and activity in formulating and achieving a policy end.[7] The executive thus ensures strength in government. Notably, following the Glorious Revolution, Parliament deliberately kept the prerogative intact in the Bill of Rights by specifically providing that the joint monarchs William III and Mary II should inherit from the deposed despot “all […] Prerogatives”.[8] For it was not so much the reality of executive power, but its irresponsible and arbitrary exercise against the traditional government and liberties of the realm which provoked the Revolution. Indeed, the object of the statesmen who engineered the irregular abdication of James II was to preserve both the appearance and reality of the ordinary working of the constitution and its powers, not to subvert it by some aery theoretic reasoning castigating a powerful executive.[9] For a powerful and effective executive, an energetic executive, is necessary for the security of the State and the people.
Timothy Endicott in his The Stubborn Stain Theory of Executive Power provides a good hypothetical extrapolation which develops this reasoning well.[10] That is, should the House of Commons, or even both deliberative chambers of Parliament, be assigned the executive powers of the Crown, they would have to themselves form quasi-executive institutions with internal separation between the powers for their effectual exercise with unanimity, strength, and despatch. Parliament can’t keep a secret even if it wants to; it usually can’t resolve to do anything until it is too late. The legislature needs the executive to be the driving force of the constitution, the soul politic animating the rest of the body to achieve ends (to borrow a notion from the Caroline divine Robert South).[11] For, indeed, the executive branch, in its ministers, in its administrative agencies, and in its individual agents, is the branch closest to the practical functioning of the State and therefore also to the formulation and execution of policy.
Implicit in Lord Browne-Wilkinson’s statement is a conflict-model of separation of powers. Gardbaum distinguishes such Madisonian “interbranch rivalry” from collaborative interbranch models.[12] However, in the jurisprudence I am considering, this institutional point is stated as a chronological and normative point. That is, the point is stated such that because the historical trend seems to be against the executive prerogative, this ought to be the trend in developing precedent. Within the British conception, the interbranch element contains within itself the principle of responsible government, whereby the Crown’s ministers are responsible to the legislature, particularly its elected chamber.[13] Here one may assort these two points under the headings of parliamentary sovereignty, and executive accountability, which are in fact the principles the Supreme Court in the prorogation case proposed for assessing the Crown’s relation to the legislature, and, implicitly, also to the judiciary.[14] My present inquiry does not extend to the deeper consideration of these principles.
Instead, it seems to me that even if an element of interbranch rivalry is adopted, one must be exceedingly careful. The element of conflict cannot be the ruling principle because a government made inefficient by gridlock caused by rivalrous relations between the branches of State cannot pursue the general welfare. Efficiency of government in pursuing the common good is a higher value. In this vein, Lord Reed has said that his Court’s function is to “support effective government” within its constitutional bounds.[15] For the effective working of the constitution requires that public authorities comply with the dictates of law made to serve the common good. Thus, the judiciary should not be considered to be in a “struggle for power” with the legislature or the executive.[16]
I cannot accept that because a certain separation between the powers of the State is necessary, that therefore the powers should be conceptualize as pitted against each other. Even Madison from whom the notion of the branches as rivals is derived strongly asserted that “energy in government” is necessary for good government, because the government must be free to promptly do what is required for the public safety, the execution of the law, and the general good.[17] These questions have received longer, more sustained, and frankly, better consideration in America than they have in Britain, so I am not ashamed to bring in the constitutional theory and jurisprudence from that great Republic to our own context. I of course will adapt to our context what needs to be adapted, and use the theoretical elements primarily. That sorted, N.W. Barber makes a useful comment on the need for energy in government in his article ‘Prelude to the Separation of Powers’ where he says:
“Though the doctrine made it harder for an oppressive regime to rule, it also aimed to enhance good government. A central function of the state was seen to be the promotion of liberty, and the constitution was therefore drafted in a manner that would facilitate this purpose. One delegate at the Convention criticised the concentration of power in the Continental Congress: when all the powers of state were vested in a single body “none of them can be used with advantage or effect.” Liberty was imperilled by the inability of the omnipotent body to create, enforce and adjudicate upon laws to protect the citizen. The efficient allocation of functions to institutions was the allocation that best served to protect, and to promote, liberty”.[18]
Barber continues to say that a constitution is efficient inasmuch as it fulfils the objects for which it was ordained.[19] I will add that inasmuch as the separation of powers prevents a dangerous concentration of power imperilling liberty, when constitutional actors use their powers lawfully, the due coordination of the branches should ensure good government. Good government not just in the thin conception of the public authority not damaging rights, as Lord Reed seems to suggest,[20] but in the fuller sense of pursuing policy objectives towards positive actions which aim at the happiness of the public and the security of the nation. Indeed, where a government is deprived of energy in its constitutional division of power, then the very constitution itself will be ignored or undermined.[21]
However, the narrative of constitutional development which the Court has propounded fails to consider this. The narrative is quite shallow in this respect. As I said, a constitutional trend does not imply a constitutional imperative. The trend must be seen in its proper historical context as compared to the current context and considered in light of the nature of the powers concerned. The historical context does indeed suggest an overweening Crown, as in the reigns of Charles I and James II. But to use the trend of legal developments restricting prerogative, or at least making its use, as in 1689, subject to responsible government, as a justification for present restrictions? That smacks of anachronism. Executive power, as I said earlier, has its justification from its very nature: that it alone is able to secure unanimity, strength and despatch in the areas of government committed to its care.[22] I think Justice Barrett in the US has given us a useful illustration of the problem. Lord Browne-Wilkinson, if I may adapt and adopt what Justice Barrett says in another context, “decries an imperial Executive while embracing an imperial Judiciary”.[23] It cannot otherwise be the case, for if the judicial power employs appeals to historical restrictions, without primary reference to the nature of the power and the present state of the law, then what we are left with is howsoever the judiciary feels about the particular exercise of a power on the facts of a given case. That is certainly not a stable standard which is applicable with predictability, as the rule of law itself requires be the case. So, rhetorical appeals to constitutional history appear to be shallow and ill-considered.
I think I may add something else as a final point. The historical development which the Court appeals to is a self-refuting appeal. Consider for a moment what the Court is referring to. When appealing to the Glorious Revolution in relation to the prerogative, it references a revolution occasioned by necessity, not law. Of such exceptional instances in our history, we may well adopt what Disraeli noted about necessity as a constitutional rationale:
“He [Lord Somers, a chief agitator in 1688-9] knew that there was a stern necessity in society which would occasionally vindicate its way above all law; his recent experience would have taught him, if nothing else, that occasional revolutions in states were beyond the power of human prevention; but, like all other wise states men, he would not look upon these as the course of politics, any more than the earthquake, or the hurricane, as the course of nature. He blotted their possibility out of the statute book, how [so] ever he might choose to speculate over them in a political treatise, in Sidney, or Harrington, or Locke. He wished to obliterate from the mind of the nation that awful truth, that a deed may sometimes be necessary which is not lawful.”[24]
What has this to do with legal adjudication? Nothing. Nothing, whatsoever. Such acts only become legal retroactively, because by their nature they are unlawful in the moment. But surely the Case of Proclamations (1610) disproves what I am saying? No, rather it strongly adds to the force of my argument. Just consider what Supreme Court said of that famous judgment when it considered it in the first Miller case.[25] Whereas, they say, it was “controversial” legally when first decided, it was “firmly established” in the course of time.[26] Dicey goes further in simultaneously praising the judgment whilst saying its reasoning was “artificial” and “unhistorical”.[27] So, the Case of Proclamations itself seems to be a product of necessity too. By force of the retroactive acknowledgement of later generations it is now considered good law, but the way it was adjudicated does not provide a good example for ordinary judicial practice.
My object in this piece has been a modest one. It has been to dismantle the justification found in one stream of the jurisprudence on executive power which seeks to appeal to history when the Court is inclined to impose new restrictions on prerogative. I have argued here that there is no inherent reason for the continued restriction of executive power, which must rather be judged first from the nature of any given question and its immediate context. For, a narrative is not an imperative. I have argued that it is a requirement of the separation of powers not first to engage in conflict, but to instead support more effective government, which this narrative-cum-justification fails to do. Of course, the Court is in the habit of sometimes restricting the power and sometimes being too permissive towards it as the circumstances shift. So, it seems to me that the Court seems tactical in the sort of reasoning it adopts, or, which seems more likely, suffers from that judicial myopia which fails sometimes to see beyond the case at hand. These other issues would require a lengthier and different treatment to the question I have been considering here. However, here I think I have succeeded in providing if not a complete and comprehensive, at least a fair summary of a refutation of the historical justification the Court has at times employed to neuter the prerogative.
[1] John Adams, The Works of John Adams, Second President of the United States (Charles C. Little and James Brown, 1851, vol. 4)206
[2] R (ex parte Fire Brigades Union) v Secretary of State for the Home Department [1995] 2 AC 513, 552; R (on the application of Miller) v The Prime Minister [41].
[3] R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5[41]
[4] ibid
[5] Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30
[6] Incidentally, and by incidentally I really do mean this is quite a tangent, a recent review I read in the journal Public Law makes a good use of the term ‘Whiggish’: see Peter Cane, ‘Review: Cambridge Constitutional History of the United Kingdom’ [2025] PL 410, 410-411
[7] William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765) 250; James Madison, Federalist No. 70 in The Federalist Papers (OUP 2008) 345; cf. Timothy Endicott, ‘The Stubborn Stain Theory of Executive Power’ (Policy Exchange, 2017) 13; Miller (I) (n23) [160]
[8] Bill of Rights 1689: “Their said Majestyes did become were are and of right ought to be by the Lawes of this Realme our Soveraigne Liege Lord and Lady King and Queene of England […] and to whose Princely Persons the Royall State Crowne and Dignity of the said Realmes with all […] Prerogatives […] to the same belonging and appertaining are most fully rightfully and intirely invested […]” (sic.); cf. Timothy Endicott (n7) 15
[9] cf. Benjamin Disraeli, Vindication of the English Constitution (Saunders and Otley 1835) 44-45
[11] I do not endorse his excessive affinity for the monarchical forms of government. I mean to adapt his theorising to the current constitutional context, for indeed all later writers, including the American Founders, in the broadly classical Aristotelian tradition admitted that some element of monarchical forms must be admitted in a working constitutional polity. By the monarchical element is simply signified the essence of executive power as concentrated and generally singular. So, Robert South preaches on one occasion: “[…] And to shew the Naturalness of Monarchy, all other Forms of Government insensibly partake of it, and slide into it. For look upon any Aristocracy or Democracy, and still you shall find some Ruling Active Person amongst the rest, who does every Thing, and carries all before Him. […]
And we shall find in every Government that the Activity and Bravery of the Prince is the Soul Politick which animates and upholds all” (sic.) (emphasis added): Robert South, Twelve Sermons Preached Upon Several Occasions (5th edn., Jonah Bowter, 1722) 482-484.
I hasten to add that merely because a form of government is more “natural” does not mean it is better suited to human happiness. So Edward Gibbon notes that in Rome “natural and substantial” feelings of affection which characterise monarchy “obliterated” the republican constitution and the “fine theory of a republic” (The History of the Decline and Fall of the Roman Empire: Abridged Edition (ed. David Womersley, Penguin Books 2005) 88). For a republic requires a people to be educated in liberty, and the virtues necessary to uphold self-government, whereas a pure monarchy, in our fallen world, is suited to a weak and feeble polity that has been purged of civic virtue. Nevertheless, the executive branch itself is necessary when framed in a free constitution; it is only the excess which is a problem. Thus, I hope the reader sees how I have modified the sense in which I am using South’s notion of the soul politic.
[12] Stephen Gardbaum , ‘Collaborative and Abusive Constitutionalism’ [2024] 35 King’s Law Journal 551, 554.
[13] Anne Twomey The Veiled Sceptre (CUP 2018) 16; cf. Aileen McHarg, ‘The Supreme Court’s Prorogation Judgment: Guardian of the Constitution or Architect of the Constitution?’ [2020] 24 ELR 88, 94-95.
[14] Cherry/Miller (II) (n2) [41], [46]
[15] House of Lords Constitution Committee, ‘Corrected oral evidence: Annual evidence session with the President and Deputy President of the Supreme Court’ (17 March 2021) (Lord Reed) 2 <https://committees.parliament.uk/oralevidence/1923/pdf/> accessed 15 October 2025
[16] Ibid 9
[17] James Madison, Federalist No. 37 (n7) 175-176
[18] N.W. Barber, ‘Prelude to the Separation of Powers’ [2001] 60 CLJ 59, 65 with an internal citation of M. Farrand, The Records of the Federal Convention of 1787 (vol. 3, Yale 1966).
[19] ibid
[20] Lord Reed (n20)
[21] As Joshua Braver notes of constitutional crisis which erupted during the Great Depression in the US: see Joshua Braver, ‘Exporting U.S. Counter-Interpretation: Redeeming Constitutional Supremacy in the U.K.’ [2016] 47 GJIL 867, 905-906
[22] cf. William Blackstone (n7)
[23] Trump v. Casa, Inc., 606 U.S. ____ (2025): “We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
[24] Benjamin Disraeli (n9) 44
[25] Miller (I) (n3) [44]
[26] Ibid.
[27] A.V. Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Liberty Fund 1982) 100
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