The Myth of Third Source Powers

VENUE: North Lecture Room, St John's College

The purpose of this draft chapter (copy available on request: robert.craig@bristol.ac.uk) is to challenge the claim defended by numerous leading scholars, and accepted in some case law, that there exists a third source of powers other than statute and prerogative. This is sometimes known as the ‘Ram’ doctrine.

There are classically two competing definitions of prerogative. Dicey claimed that all non-statutory acts of the Crown are the ‘residue of powers which remain vested in the Crown’. Blackstone claimed that prerogative are those legal powers ‘which the king enjoys alone, in contradistinction to others’. Wade built on Blackstone, claiming that the Crown must have what he described as ‘exclusive’ prerogative powers as well as a series of legal powers that he claims are shared by the Crown with ordinary citizens at common law.

Bruce Harris, relying implicitly on Blackstone and Wade, has suggested that true prerogatives must be exclusive to the Crown and ‘override’ common law rights. He argues that his narrow definition of royal prerogative leads to the conclusion that there is another source of executive authority which he describes as ‘third source freedoms’. Harris centres his arguments on the famous case of Malone. This draft chapter and monograph argues (pace Harris) that all Crown powers are prerogative legal powers. The Crown has no common law powers nor third source powers nor third source freedoms.

Adam Perry has further argued that the Crown has various ‘non-legal’ powers. He draws an analogy with tortious liability to make good his argument. The draft chapter challenges that analogy and argues that there is a long forgotten prerogative, which is best described as the ‘administration prerogative’, identified by Chitty. This provides a conceptually clear legal basis for some relatively minor governmental actions undertaken on a day to day basis.