Prohibitions Del Roy Essay Example

exercise prerogative powers over and above the courts on his own initiative and that Parliament was the supreme source of statutory law.  This case therefore sets the framework not only for Parliamentary sovereignty but also establishes the power of the judiciary to bind itself and lower courts by virtue of common law precedents.

The significance of Prohibitions Del Roy have transcended the times.  This particular case and its decision is taken to have laid down a fundamental principle of British Constitutional law in that it restricts the prerogative powers of the monarchy and the impact it can have on judicial power.  It draws the line between executive and judicial powers.[6]   As Adam Tomkins explains the case of Prohibition Del Roy takes its place in history among other cases that follow and coincide with it:

“...as being fundamental to contemporary Anglo-British constitutionalism, cementing ideas of what we would now call the separation of powers and the independence of the judiciary.”[7]

It is commonly accepted that Prohibitions Del Roy has established itself as the founding father of the barrier between the common man and abusive executive power.[8]  It lays down the parameters which prevent the Crown taking coercive and singular action against its subjects.  Only Parliament under the auspices of parliamentary sovereignty can make law and change the common law by passing statutes to override them.  Abusive executive powers were and continue to be bound by this chain of command within the British constitution.  The common law will remain good law unless overruled by the judiciary or Parliament exercising Parliamentary sovereignty. Allowing otherwise would unfairly disadvantage the common man against executive powers. This inequity

is reflected in the following excerpt of the Prohibitions Del Roy Case, per Sire Edward Coke:

“...the King cannot arrest any man...for the party cannot have remedy against the King; so if the King give any judgment, what remedy can the party have...”[9]

The judiciary is therefore placed in the position to mediate between the executive and the common man.  This is an important inroad into British Constitutional and Administrative law since it opened the door to present day judicial review of alleged abuses of executive power, making all man despite his rank and status accountable to the law of the land.[10]

In order to appreciate the significance of Prohibitions Del Roy it is necessary to know that in 1605 the Archbishop of Canterbury had advised the King that judges were mere delegates representing the will of the King and as King he could exercise his royal power over and above judges.[11] In determining the matter, Sir Edward Coke drew the line establishing a long line of Constitutional and Administrative precedent that would develop into present day separation of powers.

As previously stated another issue arising directly out of the decision of Prohibitions Del Roy was Coke’s insistence that only the judiciary would have the authority to interpret the statutes implemented by Parliament.  Such a task was beyond the King’s expertise.  During that time King James had made proclamations designed to change the current laws.  One proclamation prohibited the construction of new buildings in the London area and the other proclamation prohibited extracting starch from wheat.[12]  Coke in effect ruled that he King could not make a proclamation that effectively modified

the law.  Coke made this clear by telling the King that he:

“...hath no prerogative, but that which the law of the land allows him.”[13]

There are therefore three important elements to the ruling in Prohibitions Del Roy.  These three elements laid down the law of separation of powers then and have contributed to the development that followed in the years following the decision to the present day.  The first element established very clearly that prerogative powers had boundaries and therefore subject to limitations.  Those boundaries were found in the Common Law and Parliamentary sovereignty.

The second element established that it was for the judiciary rather than the King to set those boundaries.  Again, this element reflects the role of the judiciary either by virtue of statutory or common law principles.  The final element of the Prohibitions Del Roy ruling was that Parliament would be the main beneficiary of the ruling.  The latter benefit to Parliament was the obvious administrative and constitutional principles contained in the restraints upon the King’s power and executive powers in general, thereby preserving Parliamentary soveriegnty.