ABSTRACT
In the course of the twentieth century and into the twenty-first, a series of court decisions has eroded the previously inviolate status of the royal prerogative. The clear principle that courts will not question the mode or manner of use of admitted prerogatives gave way to the principle that instruments made pursuant to the prerogative were reviewable but the exercise of political prerogatives was not. Now, with R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, we have the principle that courts hold that there is ‘no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action’, but at the same time a rule of abstinence, where the exercise of these powers was essentially a political matter, a concern for the executive and the legislature, and not the judiciary. This leaves us with greater conceptual certainty – all powers are reviewable – but an uncertain doctrine of abstinence, in place of a principle of non-reviewability. The rule of abstinence appears to be weakening, with the decision of the Supreme Court of the United Kingdom in R. (Miller) v. The Prime Minister; Cherry & Ors. v. Advocate General for Scotland.
