Abstract:
The current law of England and Wales hesitatingly accepts that the Government does not have to find authority in positive law for its every action, since like a natural legal person it has the freedom to do that which is not prohibited by law. I When writing previously I have labelled the Government's residuary freedom to act the "third source" of authority for Government action, the first and second sources being statute and the royal prerogative respectively.2 The purpose of this article is to explore an aspect of the law providing accountability for Government third-source action, namely judicial review of such action on the grounds of breach of common law fundamental rights. The article is thus concerned with the interface between the third source of authority for Government action and what has become known in recent years as "common law constitutionalism". Both are controversial topics in UK public law.'