Chagos Islanders – Prerogative and Judicial Review

February 2007

On 5 February 2007, the Foreign and Commonwealth Office began their appeal against a High Court ruling of May 2006 (see below) which stated that the exclusion of the Ilois people from the Chagos Islands was unlawful. 2000 people were moved from the archipelago in the late 1960s and sent to Mauritius and the Seychelles, after the UK government secretly leased Diego Garcia to the US to use as an air base. The base has been used to launch bombing raids in both Iraq and Afghanistan and the Islanders are excluded on the grounds that their presence on the Chagos Islands would represent a security threat to the base – albeit one posed from 150 miles away.

Sir Sydney Kentridge QC representing the Islanders is arguing that the order in council, made under the royal prerogative but applied with extraterritorial effect was “repugnant” and ultra vires. The focus is on the constitutional position of such a prerogative power and the fact that there is no precedent for using it to exclude an entire population.

John Howell QC, representing the FCO, argues that the decision of May 2006 represents a “revolutionary” legal change that would affect all British overseas territory”.”

The appeal continues in the High Court listed as C1/2006/1465 The Queen on the application of Bancoult -v- The Secretary of State for Foreign and Commonwealth Affairs.

http://news.bbc.co.uk/1/hi/england/southern_counties/6333223.stm

“In a damning verdict [of May 2006], the High Court …overturned orders in council made by Tony Blair’s administration in 2004 which reversed a previous court decision and banned anyone from living on the islands, known officially as British Indian Ocean Territory. The orders, made under the royal prerogative, allowed the Government to dispense with the inconvenience of parliamentary oversight.” Thus in R (Bancoult) v Secretary of State for Foreign Commonwealth Affairs [2006] EWHC 1038 (Admin), the Court held that “The suggestion that a minister can, through the means of an Order in Council, exile a whole population from a British Overseas Territory and claim that he is doing so for the ‘peace, order and good government’ of the Territory is, to us, repugnant” (para 142).

The Court also reaffirmed the CCSU position – the modern approach to judicial review was that Orders in Council could be challenged. In Bancoult (No 2) the Orders were challenged on the basis of irrationality which did not include the Court making an assessment of the defence interests of the UK or the US and as such did not involve those matters of government policy which the courts have frequently held to be non-justiciable.http://www.telegraph.co.uk/news/main.jhtml;jsessionid=N5GQXJJH1QWORQFIQMFCFFWAVCBQYIV0?xml=/news/2006/05/12/wchag12.xml&sSheet=/news/2006/05/12/ixnews.html

November 2000

“The May 2006 ruling represents “the second time the islanders have won a ruling that their eviction was unlawful.”In 2000, the High Court ruled that a 1971 Immigration Ordinance banning people without permits from entering or remaining in the colony was unlawful.”See: http://news.bbc.co.uk/1/hi/uk/4760879.stm

In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 – the Court held that “the 1971 Ordinance fell outside the power conferred by the 1965 Order to make laws for the “peace, order and good government” of the Territory. Such a power required its people to be governed, not removed; and the political reasons for removal, although dictated by pressing considerations of military security, could not by any forensic test of reasonableness be said to touch the peace, order and good government of the Territory. Accordingly the relevant provision of the 1971 Ordinance was quashed.”

See also:http://news.bbc.co.uk/1/hi/uk/1004840.stm

The response of the Government to the decision was to legislate:“in June 2004 two Orders in Council were made – a Constitution Order and a subsidiary Immigration Order – the effect of which was to deny any person the right of abode in the Territory and to prohibit entry into or presence in the Territory without a permit. The Government explained that it had decided that resettlement could not be permitted and that the decision had therefore been taken to legislate to prevent it and to restore full immigration control over the Territory. This was because it was considered that any attempt to resettle any of the islands would compromise the security of the base at Diego Garcia and prejudice the military operations there.”

See excellent analysis of the 2001 and 2006 decisions in the speech of Lord Justice Richards of 7 June 2006, referred to in the section of this blog relating to judicial review and prerogative power.http://www.judiciary.gov.uk/publications_media/speeches/2006/sp070606.htm

Parliamentary Sovereignty

The Supremacy Debate – the EU 

There are a number of articles on your reading list concerning Factortame and the debate over whether membership of the EU is a limit on the sovereignty of Parliament.  

The “Metric Martyrs Case” (Thoburn v. Sunderland City Council) raised this issue again. However, Laws LJ took the opportunity, more controversially, to take the view that Parliamentary sovereignty might be altered by the common law. He stated obiter that “constitutional statutes” may only be expressly repealed whereas “ordinary” statutes are subject to the doctrine of implied repeal. His views are yet to be embraced by the judiciary or by Parliament.

In a case comment in the European Law Review, Arnull states that: 

“Laws L.J. went on to hold that the traditional doctrine of Parliamentary sovereignty had in any event been modified by the common law, which now recognised a category of rights which were to be classified as constitutional or fundamental. It followed that “[w]e should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes … a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” The ECA was, by force of the common law, a constitutional statute. Such statutes could not be impliedly repealed.”  See EL Rev 2002, 27(3), 239-240. (available on WESTLAW) .

An interesting case comment which also argues that Laws LJ’s classification of a “constitutional” statute is an incomplete one since it does not include statutes governing the inter-relationship of the institutions of government, as usally provided for in any constitution is found at: EL Rev [2002] 27(6), 771-779 (available on WESTLAW). 

The Parliament Acts and the Hunting Ban 

More recently, the decision of R (on the application of Jackson) v. Attorney General [2005] UKHL 56; [2006] 1 AC 262 (HL) (or Jackson v. Attorney General) has generated much constitutional debate over the question of parliamentary sovereignty.   

The appellants challenged the Hunting Act 2004 Act on the basis that it had been passed in reliance on s2(1) Parliament Act 1949, amended by s1 Parliament Act 1949. They contended, however, that the 1949 Act was invalid because the Parliament Act 1911 as amended by the 1949 Act did not authorise its own amendment – it could only have been passed with the consent of the Commons, the Monarch and the House of Lords. They took the view that the 1949 Act is a piece of delegated legislation.

The Lords held that the Parliament Act 1949 (and hence the Hunting Act 2004) was a valid Act of Parliament.  On one hand, Lord Bingham stated that the validity of the 1949 Act had been recognised by governments of different political persuasions for the last 50 years. On the other hand, Lord Steyn stated that this could theoretically result in the Commons introducing undemocratic legislation. Lord Hope underlined this by saying there were few checks on the Commons, controlled by the government, other than the electorate. 

Full judgment found at:http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack.pdfSee  

Case Comment at: Mark Elliott The Sovereignty of Parliament, the Hunting Ban and the Parliament Acts  CLJ [2005] 65(1)  pp 1-4. http://journals.cambridge.org/action/displayIssue?jid=CLJ&volumeId=65&issueId=01  [Use ATHENS login.] 

See also the article from January 2007 by Richard Ekins Acts of Parliament and the Parliament Acts,  L.Q.R. 2007, 123(JAN), 91-115 available on WESTLAW. 

In addition, Bradley & Ewing state at pp 77-78 that the decision demonstrates also that: “While British tradition has been strongly against the courts reviewing the validity of primary legislation, the courts cannot escape the task of deciding whether a document for which legislative authority is claimed is in law an Act of Parliament.” 

Are Constitutional Conventions Binding?

  What are constitutional conventions?  

See p 20 Bradley & Ewing. There are a great number of different descriptions and meanings attributed to conventions, or in Dicey’s words, “constitutional conventions”.  Bradley & Ewing state that “constitutional conventions” are those rules and principles which “do not have the force of law but are of great importance in maintaining constitutional government”. 

If conventions do not attain the force of law, in what sense are they binding? 

This question is considered in your course reading, but also at great length in an article by Joseph Jaconelli in the Cambridge Law Journal 64(1), March 2005, pp. 149-176 (available from the KCL electronic library – you will have to use your ATHENS login).   http://journals.cambridge.org/action/displayIssue?jid=CLJ&volumeId=64&issueId=01 

Jaconelli argues that conventions are normative, in the sense that they prescribe, rather than merely describe behaviour. Conventions may be said to be binding on those to whom they apply. Remember the three part test set out by Sir Ivor Jennings which focuses on “precedent”, “actors” and the “reason for a rule”. Jaconelli uses this test as an underlying framework for his analysis and argues that conventions are social rules which are not legally enforceable in the courts. Any degree of enforceability or sense of obligation is placed on a non-legal basis. You might find useful the analysis of AG v Jonathan Cape (at pp 159-161) which was on your reading list.

The Evolving British Constitution

A series of articles by the BBC Constitutional Correspondent, Joshua Rozenberg on the British constitution. The articles pre-date the enactment of the Human Rights Act 1998 and the Freedom of Information Act 2000 but provide a clear and concise overview of the issues, locating these within a political context.

The first article may be found by following link, which provides links to the other articles.

http://news.bbc.co.uk/1/hi/uk_politics/88593.stm