{
  "issue_key": "vol10-no1-2025",
  "volume": 10,
  "number": 1,
  "season": "Autumn 2025",
  "year": 2025,
  "sequence": 5,
  "type": "research-article",
  "section": "Research Article",
  "title": "A law unto itself? Is the British Government’s use of archaic Royal Prerogative power sufficiently regulated by legal and political avenues? An analysis, with special reference to the prosecution of war.",
  "subtitle": null,
  "slug": "a-law-unto-itself-is-the-british-government-s-use-of-archaic-royal-prerogative",
  "corporate_author": null,
  "authors": [
    {
      "given_name": "Nasser",
      "family_name": "Amin",
      "credentials": null,
      "affiliation": "Quality Assurance Manager, London Churchill College",
      "email": "n.amin@lcc.ac.uk",
      "orcid": null,
      "is_corresponding": true,
      "sequence": 1
    }
  ],
  "abstract": "The executive branch of the British state retains a significant gamut of powers which it inherited from the absolute monarchies of the past that existed until the major constitutional upheaval of the 1688 ‘Glorious Revolution’. Known as Royal Prerogative powers, these archaic rights remain largely outside of Parliamentary scrutiny, and Ministerial use of a number of the powers has been deemed to be not fully justiciable by the courts. Thus, their reform is seen by commentators as ‘unfinished constitutional business’. This paper explores whether the use of these powers is sufficiently regulated through current legal and political avenues within the British constitution. It focuses on the recent history and controversies of one of the most momentous of prerogative powers: the prosecution of war. Parliamentary possesses no legally enshrined or constitutional role in decisions for Britain to go to war. Operational and political shortcomings should a notional ‘War Powers Act’ emerge are discussed, though these particular concerns could be accommodated within an imaginative legislative form. Arguing that the use of Prerogative powers is not subject to adequate scrutiny currently despite a clear caselaw trajectory – particularly since the watershed GCHQ case in 1984 - in favour of the review of the Executive’s use of it through the emergence by the courts of a ‘sliding scale’ approach which allows a higher intensity adjudication on matters pertaining to rights, with a lighter touch on those concerning the political, this paper nonetheless rejects the view that codification into statutory form of the Prerogative would wholly redeem it. The paper does so by advancing the view that even in the event of constitutional reform that ended any residual impregnability of extant Prerogative powers by replacing them within Parliamentary Acts, the thorny question of the appropriateness of the Courts making decisions on political actions by the State would nonetheless remain intact within a codified dispensation – thus failing to resolve all of the manifold faults of the status quo. This is because the English courts’ notable and long-established normative caution in handling cases of a policy or high political nature holds whether the relevant governmental powers issue from parliamentary acts or the application of the Royal Prerogative.",
  "keywords": [
    "Royal Prerogative",
    "British Constitution",
    "Parliamentary supremacy",
    "English Law",
    "Justiciability",
    "Rule of Law",
    "Judicial Review",
    "War Powers"
  ],
  "first_page": 8,
  "last_page": 15,
  "pdf_start": 8,
  "pdf_end": 15,
  "references": [
    {
      "ordinal": 1,
      "raw_text": "Bartlett, G and Everitt, M.(2017) ‘The Royal Prerogative.’ House of Commons Library Briefing Paper, London.",
      "doi": null,
      "markdown": "Bartlett, G and Everitt, M.(2017) ‘The Royal Prerogative.’ House of Commons Library Briefing Paper, London."
    },
    {
      "ordinal": 2,
      "raw_text": "BBC v F.D Johns (HM Inspector of Taxes) at https://www.bailii.org/ew/cases/EWCA/Civ/1964/2.html",
      "doi": null,
      "markdown": "BBC v F.D Johns (HM Inspector of Taxes) at https://www.bailii.org/ew/cases/EWCA/Civ/1964/2.html"
    },
    {
      "ordinal": 3,
      "raw_text": "Bingham, Thomas Henry (2011) The Rule of Law. Penguin Books Limited, UK.",
      "doi": null,
      "markdown": "Bingham, Thomas Henry (2011) *The Rule of Law*. Penguin Books Limited, UK."
    },
    {
      "ordinal": 4,
      "raw_text": "Carrell, S. (2003, May 24). ‘War on Iraq was illegal, say top lawyers.’ Independent. https://www.independent.co.uk/news/uk/crime/war-on-iraq-was-illegal-say-top-lawyers-106099.html",
      "doi": null,
      "markdown": "Carrell, S. (2003, May 24). ‘War on Iraq was illegal, say top lawyers.’ *Independent*. https://www.independent.co.uk/news/uk/crime/war-on-iraq-was-illegal-say-top-lawyers-106099.html"
    },
    {
      "ordinal": 5,
      "raw_text": "Case of Proclamations at https://www.bailii.org/ew/cases/EWHC/KB/1610/J22.html",
      "doi": null,
      "markdown": "Case of Proclamations at https://www.bailii.org/ew/cases/EWHC/KB/1610/J22.html"
    },
    {
      "ordinal": 6,
      "raw_text": "Clark v University of Lincolnshire and Humberside at https://www.bailii.org/ew/cases/EWCA/Civ/2000/129.html",
      "doi": null,
      "markdown": "Clark v University of Lincolnshire and Humberside at https://www.bailii.org/ew/cases/EWCA/Civ/2000/129.html"
    },
    {
      "ordinal": 7,
      "raw_text": "Council of Civil Service Unions v Minister for the Civil Service at https://www.bailii.org/uk/cases/UKHL/1984/9.html",
      "doi": null,
      "markdown": "Council of Civil Service Unions v Minister for the Civil Service at https://www.bailii.org/uk/cases/UKHL/1984/9.html"
    },
    {
      "ordinal": 8,
      "raw_text": "De Keyser v Attorney-General at https://www.bailii.org/uk/cases/UKHL/1920/1.html",
      "doi": null,
      "markdown": "De Keyser v Attorney-General at https://www.bailii.org/uk/cases/UKHL/1920/1.html"
    },
    {
      "ordinal": 9,
      "raw_text": "Loveland, Ian (2021) Constitutional Law, Administrative Law, and Human Rights. Available from: VitalSource Bookshelf, (9th Edition). Oxford University Press Academic UK.",
      "doi": null,
      "markdown": "Loveland, Ian (2021) *Constitutional Law, Administrative Law, and Human Rights*. Available from: VitalSource Bookshelf, (9th Edition). Oxford University Press Academic UK."
    },
    {
      "ordinal": 10,
      "raw_text": "Mills, Claire (2018) ‘Parliamentary Approval for Military Action.’ House of Commons Library Briefing Paper, London.",
      "doi": null,
      "markdown": "Mills, Claire (2018) ‘Parliamentary Approval for Military Action.’ House of Commons Library Briefing Paper, London."
    },
    {
      "ordinal": 11,
      "raw_text": "R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union at https://supremecourt.uk/uploads/uksc_2016_0196_judgment_ce390bd976.pdf",
      "doi": null,
      "markdown": "R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union at https://supremecourt.uk/uploads/uksc\\_2016\\_0196\\_judgment\\_ce390bd976.pdf"
    },
    {
      "ordinal": 12,
      "raw_text": "R (on the application of Miller) v The Prime Minister at https://www.bailii.org/uk/cases/UKSC/2019/41.pdf",
      "doi": null,
      "markdown": "R (on the application of Miller) v The Prime Minister at https://www.bailii.org/uk/cases/UKSC/2019/41.pdf"
    },
    {
      "ordinal": 13,
      "raw_text": "R v Secretary of State for the Home Department, ex parte Northumbria Police Authority at https://www.bailii.org/ew/cases/EWCA/Civ/1987/5.html",
      "doi": null,
      "markdown": "R v Secretary of State for the Home Department, ex parte Northumbria Police Authority at https://www.bailii.org/ew/cases/EWCA/Civ/1987/5.html"
    },
    {
      "ordinal": 14,
      "raw_text": "Woolf, M (2005, March 9). ‘Blair broke code to keep war advice from Cabinet.’ Independent. https://www.independent.co.uk/news/uk/politics/blair-broke-code-to-keep-war-advice-from-cabinet-527760.html",
      "doi": null,
      "markdown": "Woolf, M (2005, March 9). ‘Blair broke code to keep war advice from Cabinet.’ *Independent*. https://www.independent.co.uk/news/uk/politics/blair-broke-code-to-keep-war-advice-from-cabinet-527760.html"
    }
  ],
  "notes": [
    "1 Derived from Bartlett and Everett",
    "2 Ibid., p9.",
    "3 Until the landmark GCHQ case that we discuss below.",
    "4 As laid out by Bingham.",
    "5 The 1611 Case of Proclamations",
    "6 BBC v F.D. Johns (HM Inspector of Taxes) (1965)",
    "7 Ministry of Justice in Bartlett and Everett, p4",
    "8 Loveland, p82",
    "9 ibid.",
    "10 De Keyser v Attorney-General (1920)",
    "11 ibid",
    "12 Loveland, p86.",
    "13 R v Secretary of State for the Home Department, ex parte Northumbria Police Authority (1989)",
    "14 ibid",
    "15 Council of Civil Service Unions v Minister for the Civil Service (1984)",
    "16 In ibid",
    "17 Loveland, p568",
    "18 R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (2017)",
    "19 in R (on the application of Miller) v The Prime Minister (2019)",
    "20 eg Professor Philippe Sands QC in Carrell and Verkaik",
    "21 in Woolf",
    "22 Mills, p63",
    "23 Mills, p24",
    "24 Mills and other commentators rightly see this as a turning-point in terms of conventions, but perhaps understate the differential geo-political pressures on British governments in 2013 versus 2003: clearly the Bush White House was far more gung-ho in embarking upon war in the Middle East than the Obama Administration was a decade later. This created a markedly different level of British Executive interest in prosecuting war on each of these two occasions – although one should also state that this is a *political* observation, rather than one with strictly legal-constitutional import.",
    "25 Cited in Mills p38",
    "26 Cited in Mills, p16",
    "27 Cited in Mills, p61",
    "28 ibid, p47",
    "29 Loveland, p99",
    "30 Beyond the constitutional necessity of fidelity to the Separation of Powers, the English courts continue to show a ‘deference to expertise’ approach in some other fields too. Notable cases concerning academic matters within the Higher Education sector have also been deemed to be beyond consideration by the judiciary, and this may also be the case in confessional issues, or those concerning artistic merit or value: “disputes suitable for adjudication under \\[the University’s\\] procedures may be unsuitable for adjudication in the courts. This is because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class.” (Sedley LJ in Clark v University of Lincolnshire and Humberside (2000))"
  ],
  "figures": [],
  "files": {
    "html": "index.html",
    "body_markdown": "body.md",
    "pdf": "article.pdf"
  },
  "word_count": 3925,
  "conversion_warnings": [
    "Footnote markers converted to superscripts in the body; note 30 is printed as two paragraphs (lead-in + quotation) and is stored as one note string.",
    "Title could be split into title + subtitle (\"An analysis, with special reference to the prosecution of war.\"); left as one title."
  ],
  "manifest_notes": "Title is 3 lines of 12pt bold (a double space before 'An analysis' was collapsed; the trailing full stop is printed). Could be split with subtitle 'An analysis, with special reference to the prosecution of war' if desired. Contents typo 'LA law unto itself?'. Byline 'Nasser Amin' (no credentials). Keywords inline: 'Key Words: Royal Prerogative; British Constitution; ...' (semicolon-separated, label not bold). Legal-analysis essay. 30 numbered FOOTNOTES (8pt, below a short rule x72-216) on pp.9-15; footnote markers are plain inline digits with no superscript flag (e.g. 'categories.1', 'until 19843' = 1984 + note 3), so they glue onto words/years. Block quote p.10 is 9pt italic indented x108. References on p.15, followed on the same page by footnote 30. No figures/tables.",
  "source": {
    "pdf": "vol10-no1-2025.pdf",
    "ocr": false
  },
  "reviewed": true
}