241 Pizza

LORD HOFFMANN said that it was common ground that as the British Indian Ocean Territory was originally ceded to the Crown, her Majesty in Council had plenary power to legislate for the territory.

He rejected Mr Crow’s argument that the courts had no power to review the validity of an order in council legislating for a colony.

His Lordship said that a prerogative order in council was primary legislation in the sense that the Crown’s legislative power was original, not subordinate. But such orders did not share all the characteristics of Acts of Parliament. The principle of parliamentary sovereignty was founded on the unique authority Parliament derived from its representative character. An exercise of the prerogative lacked that quality; although it might be legislative in character, it was still an exercise of power by the executive alone.

Until Council of Civil Service Unions v Minister for the Civil Service (The Times November 23, 1984; [1985] AC 374) it might have been assumed that the exercise of prerogative powers was, as such, immune from judicial review.

That objection being removed, there was no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action.

Her Majesty exercised her powers of prerogative legislation for a non-self-governing colony on her ministers’ advice in the UK and would act in the interests of her undivided realm, including the UK and the colony. She could therefore legislate for a colony in the interests of the UK. No doubt she was required to take account of the colony’s interests, but in the event of a conflict of interest she could prefer the UK’s.

The wording had never been construed as limiting the power of a legislature; subject to the principle of territoriality it had always been treated as apt to confer plenary law-making authority.

The courts would not inquire whether legislation within the territorial scope of the power was in fact for the peace, order and good government or other benefit of the inhabitants of the territory and so far as Bancoult (No 1) departed from that principle it was wrongly decided.

On the application of the ordinary principles of judicial review, it was important, in deciding whether a measure affected fundamental rights or had profoundly intrusive effects, to consider what those rights and effects actually were.

If the court was in 1968 and concerned with a proposal to remove the Chagossians from their islands with no provision for their future, that would be a profoundly intrusive measure affecting their fundamental rights. But that was many years ago, the deed had been done, the wrong confessed, compensation agreed and paid.

The Chagossians’ way of life had been irreparably destroyed. Today’s practicalities were that they would be unable to exercise any right to live in the outer islands without financial support which the British government was unwilling to provide and which was apparently not forthcoming from elsewhere.

While the 2000 Immigration Ordinance was in force, no one went to live there. The right of abode was purely symbolic; if it were exercised by setting up a camp on the islands it would be a gesture aimed at putting pressure on the government.

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