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Bancoult The sources, status and content of common law

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Bancoult The sources, status and content of common law

Forthcoming in Public Law (October, 2009)

    Pyrrhic public law: Bancoult and the sources, status and content of common law

    limitations on prerogative power

    *Mark Elliott and Amanda Perreau-Saussine

    ―Pyrrhus replied to one that gave him joy of his victory that one other such would utterly undo him.‖

    Plutarch Pyrrhus trans. Dryden

    Introduction

    Using royal prerogative powers without reference to Parliament, the executive is able, among other things, to sign treaties, engage in armed conflict and, as we will see, legislate for British colonies in ruthless promotion of the interests of the United Kingdom and its allies. The 1government recognises that such powers may be regarded as anachronistic and the draft

    Constitutional Reform Bill contemplates placing certain prerogative powers on a statutory footing. This administrative self-denial does not, however, extend to stripping the executive of its prerogative to wage war (or otherwise engage in military action). Nor did it deter the prerogative of colonial governance from being used recently in effect to suspend the constitution 2of the Turks and Caicos Islands or prevent the sorry sequence of events which triggered the

    Bancoult litigation, the House of Lords‘ judgment in which constitutes an important and disappointing statement of contemporary judicial attitudes to the prerogative. That judgment 3forms the focus of this paper.

    In 1965, the Chagos Islands, part of the then British colony of Mauritius, were rendered a separate colony known as the British Indian Ocean Territory (‗BIOT‘). This was effected by 4the British Indian Ocean Territories Order 1965, a statutory instrument made under the

    Colonial Boundaries Act 1895. The BIOT Order created the office of Commissioner of BIOT, 5authorising him to ‗make laws for the peace, order and good government of the territory‘. This

    * Faculty of Law, University of Cambridge and Fellows of St Catharine‘s College and Queens‘ College, Cambridge. We are grateful to those who participated in the Cambridge Centre for Public Law seminar in November 2008 and the UK Constitutional Law Group Seminar at UCL in March 2009 in which many of the ideas which are developed in this paper were presented in embryonic form, and to Stephen Allen, Nicholas McBride, Roger O‘Keefe, David Snoxell, Maurice Sunkin, Adam Tomkins and Ralph Wilde for comments on an earlier draft.

    1 Cm 7170, The Governance of Britain at 15-17. 2 See SI 2009/701, The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009. 3 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61; [2008] 3 WLR 955

    (‗Bancoult (No 2)‘). The limited parliamentary scrutiny which usually attends the use of the prerogative is inevitably part of the backdrop against which the appropriateness of judicial oversight falls to be judged. There has been considerable discussion in Parliament (retrospectively) of the events that triggered the Bancoult litigationsee, in particular, paras 458-464 of the Foreign Affairs Select Committee‘s Overseas

    Territories report (HC147-I, 2007-8)and a Chagos Islands All-Party Parliamentary Group was recently

    formed. Jack Straw himself conceded in a recent radio interview that ‗with the benefit of hindsight‘ he should have taken the 2004 BIOT Order to the Foreign Affairs Committee and that in not doing so

    ‗what I exchanged was speed for legitimacy‘: ―What‘s the point of .. the Privy Council‖, BBC Radio 4, 9am, 12 May 2009 at 9.23am. This view was later endorsed by the Lord President of the Privy Council (HL Deb, 12 May 2009, col 1012). As David Snoxell, coordinator of the All-Party Group and former British High Commissioner to Mauritius, pointed out, an Act of Parliament ‗could not possibly have taken away the right of abode of the Chagos islanders. There would have been political uproar had the Foreign & Commonwealth Office tried to get ―proper‖ legislation through Parliament.‘ (New Statesman, 7

    January 2009).

    4 SI no 1920. 5 BIOT Order 1965, s 11(1).

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    he purported to do by enacting the Immigration Ordinance 1971 which provided that no-one could enter or remain in the territory without permission. The underlying purpose of the Ordinance was to provide a legal basis for exiling the whole of the Chagossian population in consultation with the United States government which, with the permission of its UK counterpart, had established a military base on one of the islands, Diego Garcia. In 2000, in Bancoult (No 1), the Divisional Court found that the relevant part of the Immigration Ordinance was ultra vires the BIOT Order, holding that a provision facilitating the removal of the population 6could not be said to be in the interests of the peace, order and good government of the territory. 7The government responded by permitting return to the outer islands (but not to Diego Garcia).

    However, in June 2004 the BIOT Order was revoked and the Crown in Council enacted prerogative legislation, known as the Constitution Order, section 9 of which reinstated the prohibitions on entry and residence which had been in place between 1971 and 2000. It was the legality of section 9 with which the House of Lords was concerned in Bancoult (No 2).

    The fact that the royal prerogative is ‗to all intents and purposes [a] government or even 8 and thus forms part of the executive‘s extensive arsenal of legal prime ministerial prerogative‘,

    powers, famously prompted the House of Lords in the GCHQ case to accept that the

    prerogative should in principle be open to review in the same way as the government‘s statutory 9powers. Below we analyse the divergent positions taken by the five members of the House of Lords in Bancoult (No 2) when they considered (1) whether English courts have jurisdiction to delineate the legal scope of the Crown’s prerogative powers of colonial governance; (2) if so, whether the Crown possessed a

    prerogative power to enact population-exiling legislation; and (3) if so, whether that power had been exercised 10lawfully.

    Lords Bingham and Mance, dissenting, held that English courts retain an inherent jurisdiction to delineate the scope of prerogative powers of colonial governance; that the Crown had no prerogative power to banish the subjects of a colony; and alternatively, if it did, that in this case that power had been exercised unlawfully (irrationally and contrary to a legitimate expectation).

    Lord Hoffmann (giving the leading judgment) agreed with Lords Bingham and Mance that English courts retain an inherent jurisdiction to delineate the legal scope of the Crown‘s

    powers of colonial governance (which he held, obiter, could not extend to sanctioning torture)

    but he also held that the Crown could remove a right of abode by Order in Council and that in this case that power had been exercised lawfully. Lords Rodger and Carswell disagreed with Lords Hoffmann, Bingham and Mance on the initial jurisdictional question, holding that the Colonial Laws Validity Act 1865 ousted the jurisdiction of English courts to review the scope and exercise of powers of colonial governance in terms of a respect for ‗fundamental principles‘ (including any constitutional right of abode). Lord Rodger also held that Orders in Council can validly abrogate any rights of colonial subjects (including, obiter, abrogating the prohibition on

     6 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2001] QB 1067. However, it was

    later held in Chagos Islanders v Attorney General [2004] EWCA Civ 997 that this unlawful conduct did not

    give rise to liability in damages; Sedley LJ (at [20]) noted that the position would be very different in a civil law system. 7 The Immigration Ordinance 2000 lifted entry and residence restrictions (except in relation to Diego Garcia) for anyone who was a British Dependant Territories citizen by virtue of his connection with BIOT.

    8 Markesinis, ‗The Royal Prerogative Revisited‘ (1973) 32 CLJ 287 at 288.

    9 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. 10 We refer throughout to English law and English courts in light of the fact that the case was argued purely in terms of English law. We note, however, that the power of colonial governance is exercised by the UK government, and that Bancoult therefore has implications which transcend English law.

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    torture). Lord Rodger and Carswell nonetheless went on to hold that the exercise of powers of colonial governance could be reviewed on standard judicial review grounds, although they agreed with Lord Hoffmann that, in this case, those powers had been exercised lawfully.

    1 Is the jurisdiction to review the scope of prerogative powers of colonial governance ousted by the Colonial Laws Validity Act 1865?

    The Secretary of State sought to avoid any judicial review by arguing that the courts had no

    jurisdiction to examine the validity of an Order in Council legislating for a colony. This response was an ultimately unsuccessful attempt to circumvent the House of Lords‘ earlier acceptance in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs that English courts

    retain a review jurisdiction over all of Her Majesty‘s overseas territories, even where a system of 11colonial courts has been established with a final appeal to the Privy Council. Bancoult (No 1), as

    endorsed by the House of Lords in Quark, made clear that English courts retain an inherent,

    supervisory review jurisdiction over the Crown‘s actions in her colonies, any decision against review being attributable not to lack of jurisdiction but to a discretion to avoid intervening in 12 The Secretary of State nonetheless argued that English decisions taken by local colonial courts.

    courts do not have jurisdiction to review the validity of an Order in Council legislating for a colony. This was either because Orders in Council are primary legislation akin to an Act of

    Parliament (as the GCHQ case recognised only a jurisdiction to review an executive decision pursuant to a prerogative order, not a jurisdiction to review the validity of the order itself), or because review of prerogative orders concerning colonies was ousted by the Colonial Laws Validity Act 1865

    (CLVA). Section 3 of the CLVA provides that no ‗colonial law‘ shall be deemed void on the ground of ‗repugnancy to the law of England‘ except to the extent that it is inconsistent with an

    Act of Parliament (or secondary legislation made thereunder) extending to the colony. The Secretary of State argued that the CLVA prevented any challenge to section 9 of the BIOT Constitution Order on the grounds of repugnancy to English law unless it could be shown that it was inconsistent with a statute extending to BIOT.

    The House was unanimous in rejecting the Foreign and Commonwealth Secretary‘s first argument, holding that the courts do have jurisdiction to review the validity of prerogative orders, and three out of five members (Lords Hoffmann, Bingham and Mance) rejected the Secretary of State‘s second argument based on the CLVA. This second argument was rejected on the basis that the CLVA dealt with the validity of colonial laws ‗from the perspective of their forming part

    of the local system of laws administered by the local courts‘ but did not oust the review 13jurisdiction of English courts.

    Unfortunately both Lords Rodger and Carswell accepted a muddled version of the Secretary of State‘s argument based on the CLVA, with unhappy consequences for the reasoning in the later stages of what constitute two of the three majority judgments on the merits. Both considered that the rejection of the CLVA ouster-argument by Lords Hoffmann, Bingham and Mance risked leaving the law in ‗limbo‘ by being challengeable in English but not colonial courts: they held that the CLVA does oust review in English courts for breach of what would have been considered ‗fundamental principles‘ in 1865, but that it does not oust review on the basis of the 14principles recognised as fundamental in contemporary judicial review proceedings. In the

11 [2005] UKHL 57, [2006] 1 AC 529. 12 Op cit n 6

    13 Op cit n 3 at [40], per Lord Hoffmann. 14 Ibid at [97], per Lord Rodger.

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    following paragraphs, we address three significant deficiencies in the analysis that led Lords Rodger and Carswell to that conclusion.

     The first point is a general one on interpretation of the CLVA. Under that Act, British colonies were empowered to develop their own constitutional jurisprudence, constrained by (but only by) relevant Imperial legislation: they could not circumvent the constitution and jurisprudence of their colony by direct appeal to English common law (section 3). The first author of the relevant section of Halsbury presents the ‗obvious meaning and purpose‘ of the CLVA as ‗to preserve the right of the Imperial Legislature to legislate for a colony, although a

    local legislature has been given, and to make it impossible, when an Imperial statute has been passed expressly for the purpose of governing that colony, for the colonial legislature to enact 15anything repugnant to the express law applied to that colony by the Imperial Legislature itself.‘

    However, in passages in the most recent editions of Halsbury written by Professor Finnis, as also in his paper on the Court of Appeal‘s decision in Bancoult (No 2) (invoked by Lords

    Rodger and Carswell in their judgments), the CLVA is interpreted as conferring legally unlimited 16powers of colonial despotism on the Crown. Finnis‘s interpretation of the CLVA invokes the 17concerns of the Colonial Secretary that had led to the introduction of the legislation. Such an

    approach to statutory interpretation confuses history with adjudication, as Finnis himself points 18out well in commenting on a much earlier and unrelated decision of the House of Lords: to

    suggest that ascertaining Parliamentary intent is exclusively a matter of establishing the motives of those involved in introducing draft legislation is to invoke a startling new principle of

     15 Sir Charles Tarring and J S Cotton in the first edition of Halsbury (1909, Vol X, para 915 at 536). The Colonial Laws Validity Bill was introduced in May 1865 in the wake of the Privy Council‘s controversial

    decision in Re Colenso, Bishop of Natal, concerning the jurisdiction (or otherwise) of the Bishop of Cape

    Town over the allegedly heretical Bishop of Natal. The Lord Chancellor had held it ―to be clear, on principle, that after the establishment of an independent Legislature in the Settlements of the Cape of Good Hope and Natal‖ Colonial legislation was needed to ―give full effect to a Bishopric‖: the Crown could not use prerogative powers to establish a Metropolitan See once a colonial legislature was in place. (3 Moore PC NS [1864-64] 115 at 148, 150.)

    16 Finnis (‗Common law constraints: whose common good counts‘ Oxford Legal studies research paper

    available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1100628 ) interprets the CLVA

    as ―liberating the makers of colonial laws – and immunizing their laws from judicial scrutiny‖ even in

    the case of laws that allow slavery or polygamy, prohibit Christianity, authorise punishment without trial or the uncontrolled destruction of indigenous people (para 13, referring to ‗fundamental principles‘ listed by the Law Officers in advice given prior to the enactment of the CLVA). He argues that ―although the judicial protection of rights and the rule of law are indispensable elements of the common good, litigation particularly when it invites judges to consider directly whether ‗overriding and sufficient reasons‘ exist for some legislative act can involve a loss of perspective inimical to the common good of a realm so large and complex as the empire was and even the United Kingdom with its dependent territories remains.‖(para 24). In the fourth edition of Halsbury (1973, Vol VI para 1074 p512 and n29), Finnis cites Phillips v Eyre and Liyanage as holding that a dependent legislature may make laws ―which are repugnant . . . to any principles or rules of natural justice‖: on the untenablity of this reading of these cases, see text below at p2. In the 1991 reissue, this passage is qualified with references to New Zealand and Australian cases (para 1027 p504 and n29 p507) and in the 2003 reissue the 1991 qualification and references are replaced (para 839) with a statement that ―constitutional rights recognized by the common law and

    judicially enforced in the UK do not apply in the interpretation and application of the power to legislate for the peace, order and good government of a British overseas territory (which may nonetheless be subject to some substantive limitation): R v Secretary of State for Foreign and Commonwealth Affairs ex p

    Bancoult [2001] QB 1067.‖ 17 Finnis ―Common law constraints‖, op cit n16 at paras 1 (the concerns of Edward Cardwell) and 10

    (referring to the ―historical materials relevant to the CLVA‘s enactment‖). 18 Finnis ―The fairy tale‘s moral‖ (1999) LQR 170-175: text below at p2.

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    19statutory interpretation. Finnisand thus Lords Rodger and Carswellalso sets considerable 20store by the Jamaican case of Phillips v Eyre and the Privy Council‘s much later decision in 21Liyanage.

    In Phillips v Eyre, royal assent had been given to an Act of Indemnity passed by the

    Jamaican legislature to indemnify the colony‘s governor against any claims concerning his brutal 22suppression of a revolt (after proclaiming martial law). Giving judgment in the Queens‘ Bench

    Division, Cockburn CJ presented the case as one concerning whether a colonial legislature could remove a right of action against the Governor in England. He concluded that it could, not by

    invoking the CLVA as an inhibition on the jurisdiction of English courts to interfere with colonial legislation, but by exercising a discretion to extend to colonies with a colonial legislature a private international law principle of comity or respect for foreign legislation on acts within 23that foreign jurisdiction. Affirming Cockburn‘s judgment in the Exchequer Chamber in terms 24of a principle of comity (although emphasising the martial law context), Willes J addresses the

    CLVA only in the course of evading an argument that the Indemnity Act was repugnant to 25. Far from treating review for incompatibility with principles of specific Imperial legislation

    natural justice as ousted, he considers at length whether retrospective legislation is inherently

19 Finnis‘s argument is based largely on inferences drawn from the Colonial Secretary‘s apparent

    dissatisfaction with advice given to his predecessor to the effect that colonial legislation would be invalid if inconsistent with fundamental principles of English law; but it is far from clear that this satisfies the stipulation in Pepper v Hart [1993] AC 593 that ministerial statements may be taken into account only when ‗clear‘. Nor would this satisfy the emerging (but not undisputed: see Sales 'Pepper v Hart: a footnote

    to Professor Vogenauer's reply to Lord Steyn' (2006) OJLS 585) view that the Pepper v Hart doctrine may

    only be invoked ‗to ensure that legislation [is] not misconstrued in favour of the executive‘ (Wilson v First

    County Trust [2003] UKHL 40; [2004] 1 AC 816 at [114], per Lord Hope). 20 (1869) LR 4 QB 225 and (1870) LR 6 QB 1.

    21 Liyanage v R [1965] UKPC 1; [1967] 1 AC 259. 22 See Michael Taggart ―Ruled by law?‖ (2006) 69 MLR 1006-1025 at 1009 and n16, and more generally

    (although without discussion of the CLVA) R W Kostal A jurisprudence of power: Victorian Empire and the rule

    of law (OUP 2005) and David Dyzenhaus ―The puzzle of martial law‖ 59 University of Toronto Law Journal (2009) 1-64.

    23 Cockburn CJ concluded ((1869) LR 4 QB 225 at 239): ―where by the law of another country an act complained of is lawful, such act, though it would have been wrongful by our law if committed here, cannot be made the ground of an action in an English court.‖ The judgment in Exchequer Chamber given by Willes J was to the same effect, at p 28: ―[T]he civil liability arising out of a wrong derives its

    birth from the law of the place, and its character is determined by that law.‖ But as noted by Scarman J in In the Estate of Fuld, decd (No 3) [1968] P 675, 698, and reiterated by Lord Nicholls in Kuwait Airways

    Corporation v Iraqi Airways Company [2002] UKHL 19 at [16] (applying a UN SC Resolution to invalidate

    provisions of Iraqi law relating to the seizure of Kuwait), blind adherence to foreign law can never be required of an English court: ―a provision of foreign law will be disregarded when it would lead to a result

    wholly alien to fundamental requirements of justice as administered by an English court. A result of this character would not be acceptable to an English court. In the conventional phraseology, such a result would be contrary to public policy.‖

    24 ―To act in such circumstances within the precise limits of the law of ordinary peace is a difficult and may be an impossible task, and to hesitate or temporize may entail disastrous consequences.‖ Willes J Phillips v Eyre (1870) LR 6 QB 1 at 16.

    25 The Indemnity Act was argued to be repugnant to the Governors Act, 11 & 12 Wm 3, c12: Willes J evaded the argument by holding that it needed to be tested by indicting the Governor in the criminal courts (in which case the Crown‘s assent to the Indemnity Act was likely to be ―a point worth

    considering‖). Ibid at 21.

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    unjust, concluding that it is not on the basis of both common law and legislative examples of 26retrospectivity that he finds ―obviously just‖.

    Neither a purported CLVA ousting of a review jurisdiction nor even a discretionary Phillips v Eyre principle of ‗comity‘ is applied in Liyanage, in which the Privy Council‘s remarks on 27) are an the CLVA (as ousting a review jurisdiction for violation of fundamental principlesoverture to their review of the validity of colonial legislation concerning the prosecution of the leaders of a failed coup, legislation which the Privy Council declared invalid for violating a (fundamental) principle of the separation of powers implied by the Privy Council into the colonial constitution of Ceylon. Liyanage is best interpreted as reiterating that the CLVA limits

    the sources of law for colonial review of colonial legislation to those (including Imperial 28legislation) that form part of the colonial constitution, in line with older editions of Halsbury.

    Secondly, Lords Rodger and Carswell offer a bemusing account of the relationship between their interpretation of the CLVA and the susceptibility of Orders in Council to judicial review before English courts. Despite holding that the CLVA does oust review in terms of

    ‗fundamental principles‘ (such as a right to abode), they hold that it does not oust challenges to 29the validity of colonial legislation in English courts ‗for some other reason‘. The net result of

    this questionable analysis is the proposition that English courts may not find that colonial legislation permitting torture or banishment is unlawful, yet they can invalidate legislation that contravenes principles of good administration or natural justice. Notwithstanding their conclusion that the Act prevents challenges to colonial legislation on the basis of fundamental principles, they readily accepted that the Constitution Order could be examined on standard judicial review grounds. They were therefore perfectly content to hearalbeit not, in the event,

    to accede toarguments to the effect that section 9 was Wednesbury unreasonable and contrary

    to the claimant‘s putative legitimate expectations. Their Lordships failed to explain why the principles of good administration enforced via judicial review limit the scope of prerogative powers while ‗fundamental principles‘ of English law do not. Permitting the principles of good administration to operate is difficult to reconcile with their Lordships‘ view that the 1865 Act‘s effect is to preclude any challenge save on the ground of inconsistency with an imperial statute 30applying to BIOT. Both Lords Rodger and Carswell treated the ‗fundamental principles‘

    ousted by the 1865 Act as those that would be recognised as fundamental principles in 1865; even on its own (questionable) terms this ‗originalist‘ interpretation of the 1865 Act overlooks

26 Ibid. at 23-25. 27 Finnis in Halsbury (op cit n 16); Laws LJ in Bancoult at para 43 although invoking Wednesbury public law

    limits to conclude that colonial authority ―is not wholly unrestrained… every tapestry has a border.‖ para 55: [2001] QB at 1103. 28 As recognised by both Laws LJ and Sedley LJ in their respective judgments in Bancoult No 1 and No 2?

    the wider reading of Liyanage - as applying whether or not a colonial constitutional system (in the sense of a responsible government and independent courts) is in place - turns the CLVA into an absolute ouster clause where (as in the Chagossian case) colonial constitutional courts are not in existence. 29 Op cit n 3 at [103], per Lord Rodger. Finnis‘s position has the virtue of consistency, arguing that contemporary public law requirements (including a respect for legitimate expectations) involve ―subjecting a colonial law to scrutiny of a kind that it was well within the purpose of the CLVA to eliminate and well within the terms in which ss 2 and 3 give effect to that purpose). Op cit n16 , para 12.

    30 The grounds of judicial review cannot be said to be statutory in nature. Whether or not one subscribed to the ultra vires doctrine as the constitutional basis of judicial review of the exercise of statutory power, it is self-evident that the principles of judicial review which apply to the exercise of the prerogative cannot take effect as implied statutory requirements, given that no relevant statute is in play.

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    the fact that principles of judicial review are themselves built upon a fundamental principle of 31the rule of law which long antedates 1865.

    Rather than questioning Professor Finnis‘s interpretation of the CLVA, the claimant apparently relied mainly on a classical challenge to ouster clauses, arguing that a measure adopted in breach of fundamental principles of English law would be void ab initio and hence not a

    ‗colonial law‘ at all for the purposes of the application of the CLVA. Adopting this argument in the Court of Appeal, Sedley LJ had held ‗If an unconstitutional colonial statute is not law—as 32manifestly it is not—no question of repugnancy arises.‘ This argument was dismissed both by

    Lords Rodger and Carswell and by Lord Hoffmann, the latter suggesting that it turned on a 33distinction that was ‗too fine to be serviceable‘. Yet just such a distinction shapes classical

    accounts of English administrative law built on a constitutional principle of Parliamentary sovereignty (which it is assumed will be exercised in accord with other constitutional principles unless explicitly indicated otherwise) while treating executive action incompatible with such 34principles as void ab initio.

    Despite dismissing this argument on the constitutional limits on executive action, as will be seen below, Lord Hoffmann treats the ―plenary‖ legislative powers that he holds are enjoyed by the Crown in Council in colonial territories as powers that are nonetheless limited by a prohibition on torture: with Lords Bingham and Mance he recognises constitutional limits on the Crown‘s legislative authority. (Lord Rodger was at least courageous enough to acknowledge the

    consequences of his position when he said that an Order in Council providing for torture would be unchallengeable unless repugnant ‗to the provisions of an imperial statute extending to the 35colony in question‘.)

2. Legal limits on the scope of prerogative powers

    Jurisdiction to determine the existence and extent of prerogative power was asserted by the 36courts as long ago as the Case of Proclamations. There was therefore nothing ground-breaking in

    principle about the claimant‘s contention in Bancoult (No 2) that section 9 of the Constitution

    Order was invalid because the prerogative did not permit the enactment of legislation banishing the entire population of the colony. As Lord Mance put it, ‗Logically prior to any question of

    judicial review of its exercise is the question whether the scope of the prerogative legislative 37power is subject to any relevant limit.‘

    2.1 Is the prerogative power of colonial governance limited in scope by reference to a constitutional right of abode?

    Are there constitutional limits on the scope of prerogative powers of colonial governance? Or in English law does the Crown exercise in her colonies the legal powers of an absolute monarch?

     31 See, eg, Baroness Hale in R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262 at [159].

    32 R (Bancoult) v Secretary of State for Foreign and Commonwealth A›airs (No 2) [2007] EWCA Civ 498, [2008]

    QB 365 at [30].

    33 Op cit n 3 at [39].

    34 See, eg, Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Boddington v British Transport

    Police [1999] 2 AC 143. Elliott Constitutional foundations of judicial review (Hart Publishing, 2001) 31-34,

    Dyzenhaus ―Formalism‘s hollow victory‖ 4 NZLR (2002) 525. 35 Op cit n 3 at [98].

    36 (1611) 12 Co Rep 74; 77 ER 1352. 37 Op cit n 3 at [143].

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    This question presented the House of Lords with three crucial and controversial issues in English constitutional law. First, are there any constitutional limits on prerogative powers, and more specifically do British subjects enjoy a constitutional right of abode found either in a 38 (chapter 29 of Magna Carta, which prohibits exile except by the law of the constitutional statute

    land, or the Human Rights Act 1998) or the common law? Secondly, even if British subjects in British territory do enjoy a right of abode, were any such constitutional rights permanently removed from British subjects in colonial territories by the CLVA? Thirdly, were the UK‘s

    international obligations relating to decolonisation relevant when interpreting the constitutional limits of prerogative powers of colonial governance?

    According to Lords Hoffmann, Bingham and Mance, British subjects do enjoy basic or constitutional rights that cannot lawfully be overridden or abrogated by the Crown without Parliamentary approval: these rights act as legally enforceable constraints on prerogative power. These three of the five judges in Bancoult recognise effectively ―constitutional‖ common law 39rights which can only be abrogated (if at all) with clear and explicit Parliamentary approval: they

    recognise certain basic common law rights which cannot be overridden or abrogated by the 40. Crown, rights which act as legally enforceable constraints on prerogative powers

    Lords Bingham and Mance include a constitutional right of abode among those rights and hold, both dissenting, that this right limits the scope of prerogative powers to legislate for colonies, Lord Mance terming the right of abode ―fundamental and, in the informal sense in 41which that term is necessarily used in a United Kingdom context, constitutional.‖ Lord

    Hoffmann recognises a right not to be tortured as a limit on the scope of prerogative powers of 42colonial governance, holding that an Order in Council could not lawfully sanction torture, but,

    crucially for the result in this case, denied that there was a right of abode.

    Lord Carswell is opaque on the existence of constitutional or fundamental rights, 43doubting the existence of ―fundamental principles‖ of English law yet also treating the case as

    raising the question of ―how near‖ a right of abode is to ―being an inalienable constitutional 44right‖, a characterisation that is senseless if there exist no such things. His doubts about ―fundamental principles‖ seem to relate to a particular subgroup of principles which he treats as the concern of the CLVA, and do not extend to doubting the existence of constitutional rights 45or of certain fundamental principles of justice and impartiality.

     38 Laws Thoburn: Magna Carta was invoked but not HRA xref text below.

    39 All save Lord Hoffmann assume that such constitutional rights can be alienated by clear Parliamentary

    legislation, presupposing a traditional view of parliamentary sovereignty. It is unnecessary in this paper to explore the debate on whether that view is correct, but we note that this traditional position is not universally accepted (see, eg, R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262, per Lord

    Steyn at [102], Lord Hope at [104]-[107] and Baroness Hale at [159]).

    40 A category analogous to that of constitutional statues (legislation that could be repealed only explicitly and not implicitly) distinguished in Thoburn by Laws LJ, in which he included Magna Carta, the European

    Communities Act 1972 and the Human Rights Act 1998 (HRA) Cf Perreau-Saussine, ‗A tale of two

    supremacies, four greengrocers, a fishmonger, and the seeds of a constitutional court‘ [2002] CLJ 527.

    41 Op cit n 3 at [151]

    42 Op cit n 3 at [35]. 43 Op cit n 3 at [125].

    44 Op cit n 3 at [123]. 45 He defines (at [136]) his judicial duty as to apply the law ―properly and impartially – in the words of the

    Book of Common Prayer, truly and indifferently to minister justice‖, a duty that is empty if there exist in English law no fundamental principles of propriety, impartiality, and the truthful ministry of justice.

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    Lord Rodger concludes that it is ―certainly arguable that there is a ‗fundamental principle‘ 46of English law that no citizen should be exiled or banished from a British colony‖, but he also

    holds that those British subjects residing in colonial territory do not enjoy any rights immune

    from abrogation by the Crown. Torture in a colony, he holds, could be sanctioned by an Order 47in Council: by virtue of being the ‗law of the land‘ in a colony, Orders in Council meet the 48Magna Carta‘s requirement for banishment only in accord with the law of the land.

    2.2 Is the prerogative power of colonial governance limited in scope by reference to the purposes of ‗Peace, order and good government‘?

    As well as arguing that the power of colonial governance does not permit the enactment of legislation contrary to a constitutional right of abode, the claimant asserted that the power is limited in that the only legitimate purpose for which it may be used is the enactment of measures that conduce to the ‗peace, order and good government‘ of the colony—and that section 9 of the

    Constitution Order, in banishing the entire population, did not so conduce and was therefore invalid.

    Rejecting this argument, Lords Hoffmann, Rodger and Carswell all inclined to the view that although historically the prerogative power to legislate in respect of ceded colonies has been characterised as one to be used for the purposes of securing or promoting ‗peace, order and 49good government‘, this formulation, properly understood in light of the authorities, simply 50connotes the existence of plenary law-making power. It followed that courts ‗will not inquire

    into whether legislation within the territorial scope of the power was in fact for the ―peace, order

    and good government‖ or otherwise for the benefit of the inhabitants of the territory‘—because 51the power is in law unrestricted in terms of the purposes for which it may be deployed. As 52Lord Rodger put it, the power is ‗is equal in scope to the legislative power of Parliament‘.

    This raises questions about the constitutional status of Orders in Council. Because it is

    enacted under original rather than conferred authority, prerogative legislation can be regarded as 53primary legislation. The better view, however, is that Orders in Council constitute a species of 5455secondary legislation. Far from being (as has been suggested) ‗revolutionary‘, this analysis

    simply represents the logical implications of a proper appreciation of the modern British constitution. For two reasons, it is necessary and appropriate to distinguish prerogative legislation from Acts of Parliament. First, the latter benefit in practice from full Parliamentary scrutiny and in traditional constitutional doctrine from the protective effect of the sovereignty of 56Parliament: their validity cannot be questioned in a court of law. Prerogative legislation, in

    contrast, being the progeny of the Crown in Council as opposed to the Crown in Parliament, is rarely subject to any Parliamentary scrutiny and is not shielded against legal challenge by

     46 Op cit n 3 at at [89].

    47 Op cit n 3 at [98] 48 Op cit n 3 at [86]

    49 Most notably Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. 50 Op cit n 3 at [44], per Lord Hoffmann; [108], per Lord Rodger; [124], per Lord Carswell.

    51 Op cit n 3 at at [50]. 52 Op cit n 3 at at [109].

    53 McHarg, ‗What is Delegated Legislation?‘ [2006] PL 539 at 541.

    54 Pontin and Billings, ‗Prerogative Powers and the Human Rights Act: Elevating the Status of Orders in Council‘ [2001] PL 21.

    55 Cohn, ‗Judicial review of non-statutory executive powers after Bancoult: a unified anxious model‘ [2009]

    PL 260 at 269, characterises as ‗little short of revolutionary‘ the view that (as she puts it) the status of an Order in Council is ‗no higher than statute-based secondary legislation‘. 56 Cf n 39 above.

     9

Forthcoming in Public Law (October, 2009)

    operation of the doctrine of legislative supremacy. This much is straightforward, and was recognised by all five judges in Bancoult. Secondly, these distinctions flow from the constitutional

    principle that the powers of the Crown in Council are not unlimited: it is precisely because the

    latter‘s authority is limited that judicial review of prerogative legislation is a possibility..

    The majority in Bancoult, most notably Lords Carswell and Rodger, while paying lip-

    service to the distinction between Acts of Parliament and Orders in Council, deprive it of any real meaning through their readiness to characterise the prerogative power of colonial governance in unlimited terms. Conceiving of it as a plenary power means, as Lord Rodger readily acknowledges, that ‗[prerogative] legislation made for the colonies is in the same position 57as legislation made by Parliament for this country‘. This analysis goes a considerable distance

    towards conferring upon the Crown in Council in de facto terms precisely the sovereign law-58making power that it rightly lacks in the de jure sense. One of the hallmarks of subordinate

    legislationinto which category, it is generally accepted, Orders in Council fallis that it may

    be enacted only for limited purposes. In this sense, the standard principle that no executive (including legislative) power can be purposeless applies with just as much force to prerogative as 59it does to statutory powers: As Laws LJ pointed out in Bancoult (No 1), ‗[p]eace, order and good 60government may be a very large tapestry, but every tapestry has a border‘.

    Of course, even accepting that executive powers are always limited in their scope by the proper purposes doctrine, it remains necessary to determine the specific purposes to which the colonial governance prerogative may legitimately be put. On this matter, the analysis in Bancoult

    (No 2) of Sedley LJ in the Court of Appeal and of Lords Bingham and Mance in the House of Lords is to be strongly preferred to that of the majority of the Appellate Committee. Sedley LJ thought that the view that the ‗peace, order and good government‘ formulation connoted plenary power had emerged in the specific context of the ascription of authority to colonial legislatures, and that it did not follow that they should not be construed as words of limitation vis-a-vis the 61Crown‘s remaining powers of colonial governance. Thus ‗the permanent exclusion of an entire

    population from its homeland for reasons unconnected with their collective well-being cannot have [the] character [of governance] and accordingly cannot be lawfully accomplished by use of 62the prerogative power of governance‘. This conclusion flowed from Sedley LJ‘s view that ‗[t]he

    governance of each colonial territory is in constitutional principle a discrete function of the Crown‘ such that ‗[t]hat territory's interests will not necessarily be the interests of the United 63Kingdom or of its allies‘. Lord Bingham straightforwardly concluded that ‗there was no royal 64prerogative power‘ to enact section 9 of the Constitution Order, and Lord Mance took the view

    that the Crown‘s powers in this regard were for the ‗proper governance of the territory, at least 65among other things for the benefit of the people inhabiting it‘and that section 9 did not

     57 Op cit n 3 at[109]

    58 Although this conclusion is open to challenge on the ground that the majority remained willing to consider whether the power had been lawfully exercisedas distinct from whether it was in principle

    wide enough to legalise wholesale exileby reference to standard concepts such as rationality, it is clear from the conclusions at which the majority judges arrived on those points that review of the exercise of the prerogative was fatally weakened by their willingness to conceive of the power as an essentially unlimited one. 59 R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513 at 525, per Laws J.

    60 Op cit n 6 at 1103.

    61 Op cit n 32 at [50]-[56], relying on Building Construction Employees and Builders’ Labourers Federation of New SouthWales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 383, per Street CJ.

    62 Ibid at [67]. 63 Op cit n 32 at [67].

    64 Op cit n 3 at [71]. 65 Ibid at [157].

     10

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