Show me the Precedent! - Prerogative Powers and the Protection of the Fundamental Right not to be Exiled Lord Mance's Dissent in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61

Page 237

PART IV

PUBLIC LAW

13 Show me the Precedent! – Prerogative Powers and the Protection
of the Fundamental Right not to be Exiled

Lord Mance’s Dissent in R (Bancoult) v Secretary of State for
Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61 Christopher Monaghan 239

14 Contracting out of the Human Rights Act 1998

Lord Bingham’s and Baroness Hale’s Dissents in YL v

Birmingham City Council and Others (Secretary of State for Constitutional Affairs Intervening) [2007] UKHL 27

Page 238

Page 239

CHAPTER 13

SHOW ME THE PRECEDENT! – PREROGATIVE POWERS AND THE PROTECTION OF THE FUNDAMENTAL RIGHT NOT TO BE EXILED

Lord Mance’s Dissent in

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61

Christopher Monaghan

13.1 Background 240
13.1.1 A disgraceful enterprise 241
13.1.2 Previous decisions 241
13.1.3 Issues 242
13.1.4 Decision of the House of Lords 242
13.2 Royal prerogative 243
13.2.1 Survival of the prerogative 244
13.3 Importance of the decision 246
13.4 Decision of the majority 247
13.4.1 Lord Hoffmann 247
13.4.2 Lord Rodger 248
13.4.3 Lord Carswell 250
13.5 Lord Bingham’s dissent 251
13.6 Lord Mance’s dissent 251
13.6.1 A question of English common law 252
13.6.2 Sacred inheritance of the common law 254
13.6.3 A ‘contradiction in terms’ 255
13.6.4 Forum for such a decision should be Parliament 256
13.7 Why Lord Mance is preferred 258
13.7.1 Judicial passivism or judicial activism? 262
13.8 Conclusion 262

Page 240

240 Part IV – Public Law

13.1 BACKGROUND

This chapter argues that the dissenting opinion of Lord Mance in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)¹ is to be preferred to that of the decision of the majority. It is submitted that the dissent raises important questions about the relationship between the executive and the judiciary, a relationship which still seems to necessitate judicial deference. Whether such deference is called for when the executive rely on prerogative powers is controversial, as in Bancoult the House of Lords was clearly split on the existence of the prerogative power to remove the Chagossians’ right of abode.

The origins of Bancoult can be traced back to the Cold War, and involves two other wars, the Napoleonic and the so-called War on Terror.² The French colony of Mauritius³ was ceded to Britain by France in 1814, after the first abdication of Napoleon. In 1965, the islands now comprising the British Indian Ocean Territory (BIOT) were separated from Mauritius and the Seychelles prior to their independence. The United Kingdom and the United States originally agreed in 1964 that BIOT would be made available for an American base. During the Cold War, the United States required a military presence in the Indian Ocean. As Lord Hoffmann stated:

[I]n the aftermath of the Cuban missile crisis and the early stages of the Vietnam War, the United States felt vulnerable without a land based military presence in the Indian Ocean.⁴

The military base was to be constructed on Diego Garcia, the largest island, whilst the Americans also had the option to use the outer islands. The islanders were known as Chagossians and had worked for a commercial enterprise on the islands. As BIOT was a colony, the Queen in Council could legislate under the prerogative to make laws. The Immigration Ordinance made in 1971 by the commissioner for BIOT expelled the Chagossian islanders who were then removed to Mauritius. The decision to remove the islanders was taken to

¹ R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61.

² See Sand, PH, ‘Diego Garcia: British-American legal black hole in the Indian Ocean’, [2009]

Journal of Environmental Law 113, at pp 114–155. Diego Garcia the largest island in BIOT has been used by the United States ‘as a naval “prepositioning” port and “bomber forward operating location” for all US missions against Iraq and Afghanistan from 1990 to 2006 ... Diego Garcia has also been identified as the destination of several CIA “rendition flights”’.

³ The French colony of Mauritius had posed a threat to British dominance of India. It was from

Mauritius that the French were able to send assistance to Indian rulers to challenge the British. It was ceded by the Treaty of Paris.

⁴ Above, n 1, at [6].

Page 241

prevent any attempt by the USSR to use the United Nations Charter, Art 73 to obstruct the construction of the base.⁵

13.1.1 A disgraceful enterprise

The House of Lords was unanimous in its condemnation of how the British government had treated the islanders in the 1960s and 1970s. Originally, the islanders had been left without adequate compensation (the sum that was originally given in 1973 was heavily depleted by inflation before it was eventually given out in 1977) and, as a result of legal action, the British government only agreed to provide substantial compensation in 1982.

13.1.2 Previous decisions

In 2000, Mr Bancoult successfully challenged the 1971 Ordinance at the Divisional Court.⁶ Laws LJ stated that the Colonial Law Validity Act 1865 (CLVA 1865) which precluded challenges to colonial legislation did not mean that ‘the colonial legislature’s authority is not wholly unrestrained. Peace, order and good government may be a very large tapestry, but every tapestry has a border’.⁷ Tomkins wrote, ‘As Laws LJ put it ... the people of the islands “are to be governed: not removed”. This is a bold and welcomed judgment’, especially as Tomkins emphasises that previous authorities have construed the phrase ‘peace, order and good government’ very generously.⁸

Laws LJ then questioned whether the prerogative could be used to exile the inhabitants:

... I entertain considerable doubt whether the prerogative power extends so far as to permit the Queen in Council to exile her subjects from the territory where they belong ... There is unexplored ground here: it would be one thing to send a Chagos belonger to another part of the Queen’s dominions, and quite another to send him

⁵ Above, n 1, at [10]. The United Kingdom was obligated under Art 73 as ‘Members of the

United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount ...’. Furthermore, to achieve this, the inhabitants must be protected against abuses, receive economic support and development. See Chapter XI: Declaration Regarding Non-Self-Governing Territories.

⁶ R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2000] EWHC 413,

(Admin), [2001] QB 1067 (No 1).

⁷ Above, n 6, at [1103].

⁸ Tomkins, A, ‘Magna Carta, Crown and Colonies’, [2001] Public Law 571, at p 574.

Page 242

242 Part IV – Public Law

out of the Queen’s dominions altogether. I would certainly hold this latter act could only be done by statute.⁹

Following the decision of the Divisional Court, the then Foreign Secretary, Robin Cook, released a press release that said that a new Order would be introduced. This new Order would allow the Chagossians to return to the outer islands (as the Americans still occupied Diego Garcia). This was achieved by the Immigration Ordinance No 4 in 2000. However, in 2004 the government through the Queen in Council issued two Orders, the BIOT (Constitution) Order and the BIOT (Immigration) Order. As a consequence, Chagossians would require express permission to enter the islands. Mr Bancoult judicially reviewed the government’s decision and was successful at the Divisional Court, where section 9 of the Constitution Order (which removed the right of abode) was held to be invalid.¹⁰ The government appealed and the Court of Appeal upheld the decision of the Divisional Court.¹¹ The case finally reached the House of Lords.

13.1.3 Issues

Both counsels’ submissions were regarded as extreme by Lord Hoffmann and Lord Carswell. Sir Sydney Kentridge QC for the respondents argued that the Queen in Council could not legislate to remove the inhabitant’s right of abode on BIOT. Jonathan Crow QC for the appellants argued that the House of Lords could not question the legislative power of the prerogative, as it had the same effect as the legislative power of the Queen in Parliament. Crow QC also argued that the prerogative could not be reviewed by the courts under the CLVA 1865. This was because the courts only had the power to intervene where a colonials law was repugnant to an Act of Parliament. If the Queen in Council had the power to deport the islanders (for the respondents) and if the prerogative legislation was reviewable (for the appellants), then the issue as to whether the islanders had a remedy depended on judicial review. Three grounds were considered: illegality, rationality and legitimate expectation. This chapter does not consider the judicial review in detail. However, the opinions of the House demonstrate varying degrees of judicial deference to the executive.

13.1.4 Decision of the House of Lords

The majority of the House of Lords found in favour of the government’s appeal. The majority of Lord Hoffmann, Lord Carswell and Lord Rodger held that, first,

⁹ Above, n 6, at [1105].

¹⁰ R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWHC 1038

(Admin) (No 2).

¹¹ R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 365 (No 2).

Page 243

the crown had the power under the prerogative to legislate for BIOT and to remove the islanders, and that, secondly, legislation under the prerogative could be reviewed, as post-Council of Civil Service Unions v Minister for the Civil Service (GCHQ)¹² there was no reason why a distinction should be drawn...