Judicial Review of Royal Prerogative and the Case of Prorogation::Process not Substance; Exception, not Rule
Bibliographic record
Abstract
Abstract This article takes as its starting point Stephen Gardbaum’s much-debated proposal of a revived political process theory to offer a fresh perspective on a key constitutional issue: the extent to which courts can impose some basic rule-of-law controls over the exercise of the prerogative powers of the British Crown, “inherited” also by Canada and New Zealand. It thus constitutes a case study on how far Gardbaum’s broad, global sketch of his theory can be successfully worked up into a “thick,” local model, by testing this British application against his critics. The article starts with the British prorogation case, Miller II, arguing that the decision, while bold and innovative, was sharply limited to a defense of constitutional process, as was Miller I, classic instances of the kind of procedural constitutional role suggested for the judiciary in Gardbaum’s model. Both Miller decisions saw the courts police the democratic workings of the constitution, but neither concerned substantive policy issues. The article then goes on to propose a recategorization of the whole corpus of UK case law on judicial review of royal prerogative. It argues that the cases can be divided into those that have sought to check a substantive government policy or decision (overwhelmingly unsuccessful) and those process-based cases that have sought to protect and preserve the role of Parliament in the constitution (overwhelmingly successful). It contends that this finding sheds important new light on the overall question of how far Crown prerogative powers have been subject to basic rule-of-law controls, a subject on which it contends that public law scholars have been much too sanguine.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.033 | 0.093 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.007 | 0.031 |
| Scholarly communication | 0.012 | 0.007 |
| Open science | 0.003 | 0.004 |
| Research integrity | 0.018 | 0.012 |
| Insufficient payload (model declined to judge) | 0.002 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".