I’m catching up here on a House of Lords judgment I missed a few weeks ago in October. Bancoult is the culmination of a legal saga in which Chagossians – the people cleared off the British Indian Ocean Terrotories of Diego Garcia, Peros Banhos and the Salomon Islands – have claimed that legislation made under the prerogative powers excluding them from the islands is unlawful. This time, the challenge was to section 9 of the British Indian Ocean Territory (Consitution) Order 2004.
If ever there were a case that turned on its own facts, I think this is it. The Lords decided by a 3-2 majority to allow the government’s appeal: the order is lawful, and Chagossians remain lawfully excluded from the islands. The government must be relieved, as must the U.S. military, which uses the islands.
Their Lordships were extremely divided on the issues, with Lord Hoffman thinking the order intra vires and infringing no common law right, rational and breaching no legitimate expectation, while Lord Mance saw it as ultra vires, beyond the scope of the prerogative since it breached common law rights, irrational and breaching a legitimate expectation. Phew. I’d say that the government just about scraped this, and that the fact that the Chagossians were cleared off the islands thirty years ago weighed considerably in the minds of the majority. I think it’s clear Lord Mance’s approach would certainly prevail if the government were to try excluding the population from a territory like this today.
Beyond this, legislative orders made under the prerogative are reviewable by the courts – all their Lordships agreed on that. Surprisingly, the government doesn’t seem to have argued that the order was unreviewable on the basis that it was made for reasons of defence. A tactical choice, that, surely.
Leave a comment