Statutory Devolution of the Prerogative Power: A Case Study from Northern Ireland

5.1 Accounts of parliamentary control over prerogative power in the United Kingdom focus on the constraining effects, and superior force, of ordered legislation over governmental acts rooted in more constitutionally unruly non-statutory sources of power. Of those powers, the Crown prerogative is the apotheosis and draws the greatest amount of scrutiny. In that same vein, after the GCHQ case, ¹ and apparent in recent formative decisions flowing from the Brexit process,² much scholarly attention has justifiably been directed to the turn to an increasingly assertive judicial review of prerogative power. The big picture is that while it remains an essential and quotidian source of executive power, the prerogative is moving at pace along a path of ‘democratisation’ within the British constitutional order³ imposed by the dual forces of ever-tightening democratic control and an expanding range of justiciable policy decisions. Prerogative cannot be used to frustrate legislative intent nor fundamental constitutional principle, including those centred on parliament’s legislative supremacy, nor, so the consensus goes, is its exercise non-justiciable.⁴