[Editor’s Note: This is the fourth entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]
–Max Harris, University of Oxford
Administrative lawyers and administrative law theorists ignore the prerogative and the third source at their peril. Wherever the exact boundaries of administrative law theory are drawn, the prerogative and third source are in principle open to judicial review, and so an understanding of the prerogative and the third source is tangentially relevant to understanding judicial review, which is unquestionably part of administrative law.
More importantly, though, ignoring the relationship between administrative law and the prerogative and third source may result in important doctrinal and theoretical questions remaining unanswered. For example, in ordinary ‘illegality’ cases, the focus is on whether actions of the executive are unlawful because they go beyond powers granted to the executive by statute. But courts have repeatedly failed to consider whether the prerogative and third source might provide alternative bases for authorisation of executive action where a statute does not authorise executive action. It is not implausible to think that had courts and scholars paid greater attention to the relationship between administrative law and the prerogative and third source, there may well have been more consideration of this question.
There is, therefore, a need for administrative lawyers and administrative law theorists to have a sound understanding of the prerogative and the third source.
But there is a problem in seeking this sound understanding: ‘leading’ accounts of the prerogative and the third source – those often cited in judgments and scholarly work – are profoundly inadequate.
Blackstone and Dicey’s accounts of the prerogative are regarded as canonical. Often these accounts are reduced to a single sentence description. The single-sentence accounts are shot through with ambiguity and conceptual confusion; and even when understood in context, Blackstone and Dicey’s approaches to the prerogative are flawed.
For Blackstone, the prerogative refers to the “special pre-eminence” that the Crown has over and above others. It refers to a “singular” set of “rights and capacities which the king enjoys alone … and not to those which he enjoys in common with any of his subjects.” This account is in one sense trivially true: the effect of having prerogative powers is that the Crown enjoys certain powers alone. But Blackstone gives no means of discriminating between what powers the Crown should enjoy alone. Blackstone also draws a distinction between “direct” and “incidental” prerogatives with no firm basis. When he does give reasons for why certain prerogatives exist, he gives general justifications for the State having particular powers, but does not explain why the executive branch of the State ought to possess such powers. Finally, Blackstone’s account is monarch-centric and makes little reference to the broader apparatus of executive government.
Dicey views the prerogative differently, as “the residue of discretionary or arbitrary authority” that is “legally left in the hands of the Crown”. It is “[e]very act which the executive government can lawfully do without the authority of the Act of Parliament.” Dicey’s description of British law is rose-tinted in its view of the strength of commitment to equality of treatment. Like Blackstone’s account, Dicey’s fails to explain why some prerogatives have come to be affirmed as part of British law. It is reminiscent of Sir Stephen Sedley’s broader diagnosis of British constitutional law: “it offers an account of how the country has come to be governed … but if we ask what the governing principles are … we find ourselves listening to the sound of silence.”
The ‘third source’, also sometimes called common law powers or administrative powers, is less well-known. A 1992 article by Bruce Harris describes it as the executive’s freedom to act as long as it is not prohibited by law; when the executive distributes information or enters into contracts, Harris says the executive is usually reliant on the third source. Harris has described this later as a “residuary freedom”, and has argued that common law rights might provide a limit on the third source. Harris’s account, while undoubtedly helpful, is undesirably ambiguous. It is not always clear what he means by his claim that the third source is an “authority” for action, or what a “residuary” freedom is, or what it means for the third source to be capable of being limited by “legal rights”. It is also a category error for Harris to compare the government and an individual. The government never has the same relationship to other people as private individuals: it has a different power, a different standing, and a different image in the eyes of the community.
Adam Perry’s refinement of the Harris account sharpens the concept of the third source but itself contains its own problems. For Perry, the Crown cannot have the power to do anything that is not prohibited: it does not have the ability or capacity (i.e. power) to fly to Jupiter, for example. Perry considers it best to distinguish between legal administrative powers (granted by the common law) and non-legal administrative powers, rather than a single ‘third source’. Perry does not fully justify or unpack his use of the term ‘administrative’ powers. He also places much weight on confusion in understanding of powers when Harris is concerned with authority and lawfulness.
Some slightly clearer starting points are needed. The prerogative and the third source are authorities for executive action: they provide decisive reasons to conclude that executive action has a lawful basis. The contours of the prerogative have shifted over time and the prerogative lacks an inner logic. It is a set of subject-matter categories that are appropriate areas for the executive to act without statutory authorisation. The third source allows the executive to have authority to act as long as that act is not prohibited by statute or common law. Accounts of the third source should not be based on comparisons between government and individual. These revised starting points do not require reference to Blackstone or Dicey – who receive undue reverence in this field of law – and point to the need for greater work on this subject by constitutional and administrative lawyers alike.
Suggested Citation: Max Harris, Showcase–New Directions in Administrative Law Theory: The Prerogative, The Third Source, and Administrative Law Theory, Int’l J. Const. L. Blog, Sept. 13, 2019, at: