The power of government to make contracts

This thesis examines why the British central government can make contracts without statutory power. It argues that, to bear contractual rights, 'government' must be a legal person with legal personality extending to those rights. This constitutes a requirement for positive legal authorisation for government action with legal effect akin to that of natural persons' actions (including contracting). Further, government contracting power is subject to judicial review, which constrains the purposes and manner of its exercise. This makes wholesale comparisons with the contracting power of natural persons inappropriate. The thesis next examines and rejects two commonly advanced explanations of government contracting power: the 'third source' and 'the Crown' as corporation sole. The 'third source' theory — that government is free to act absent some prohibition — fails altogether to identify what legal person 'government' is and to explain the extent of its legal personality. The view that because it is a corporation sole 'the Crown' (here seen as a separate legal person from the Sovereign) has contracting power is also flawed: historical legal material suggests corporations sole were not separate legal persons and that the only legal effects of sole corporateness were property descending to the corporator’s successors (not heirs) and limits on dispositive power; for the Sovereign even this is doubtful in view of the prerogative. This thesis then argues that the best explanation of government contracting power is that the Sovereign is a natural person and, for that reason, has power to contract (subject to judicial review constraints). 'The Crown' simply means 'the Sovereign'; government officers act as her agents when placing contracts. This view has explicit Commonwealth and implicit English support in authority. Academic objections are unpersuasive. While further conceptual possibilities may exist, the natural person explanation of government contracting is conceptually coherent and best represents the law.