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2018 | OriginalPaper | Buchkapitel

6. An Imperfect Legacy: The Significance of the Bancoult Litigation on the Development of Domestic Constitutional Jurisprudence

verfasst von : Chris Monaghan

Erschienen in: Fifty Years of the British Indian Ocean Territory

Verlag: Springer International Publishing

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Abstract

This essay will explore the constitutional significance of the decisions in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Office (No. 1) [2001] Q.B. 1067, R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2008] UKHL 61, R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2016] UKSC 35 and R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 3) [2014] EWCA Civ 708. The imperfect legacy of the Bancoult litigation deserves a special place within the constitutional jurisprudence of the United Kingdom. At the very core of the decisions in Bancoult (No. 1) and Bancoult (No. 2) was the relationship between the common law and the prerogative, a relationship which, as this essay will argue, ought to have imposed limitations upon the Crown. It will be argued that the decision of the House of Lords in Bancoult (No. 2) demonstrates how a failure of the common law’s role to ‘admeasure’ the prerogative amounts to ‘bad law’, especially where, as was in the case of colonial legislation in Bancoult (No. 2), there is arguably ineffective parliamentary oversight. Furthermore, the Bancoult litigation raises issues of the normative purpose of accountability of the prerogative and the competing interests of constitutionalism, national interest and public opinion. In terms as to whether the decision to remove the right of abode could be reviewed by the courts, the national interest of the United Kingdom was an important consideration. The Bancoult litigation highlights the uneasy legacy of colonialism, namely, the treatment of British colonial subjects, the attempts to deny or fetter the rights of these subjects to return home or to engage in economic enterprise, and the limitations on seeking redress before the domestic courts and at the European Court of Human Rights (see Bancoult (No. 2), Bancoult (No. 3) and Chagos Islanders v United Kingdom (Admissibility) (2013) 56 E.H.R.R. SE15).

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Vorheriges Kapitel The Subject as a Civic Ghost: Law, Dominion, and Empire in the Chagos Litigation
Nächstes Kapitel The Chagossians’ Struggle and the Last Bastions of Imperial Constitutionalism
Fußnoten
1
[2001] QB 1067; [2001] 2 WLR 1219.
 
2
[2008] UKHL 61; [2009] 1 AC 453; [2008] 4 All ER 1055; [2008] 3 WLR 955.
 
3
[2016] UKSC 35; [2017] 1 All ER 403; [2016] 3 WLR 157.
 
4
[2014] EWCA Civ 708; [2015] 1 All ER 185; [2014] 1 WLR 2921.
 
5
See Doward (2014). See also Foreign Affairs Committee, The use of Diego Garcia by the United States (HC 2014–2015, 377) and Foreign Affairs Committee, The use of Diego Garcia by the United States: Government Response to the Committee’s First Report of Session 2014–2015 (HC 2014–2015, 646).
 
6
According to PH Sand ‘the best recent estimate puts the number of Chagossians involuntarily moved to Mauritius at between 1328 and 1522; and the number so moved to the Seychelles at 232’, see ‘Sand (2013), p. 132.
 
7
The islands detached from the Seychelles to be included as part of the BIOT were the Farquhar Islands, the island of Desroches and the Aldabra Group. Since 1903, the Seychelles had been administered as a distinct British colony from Mauritius. These islands were eventually returned to the Seychelles.
 
8
In Chagos Islanders v United Kingdom (Admissibility) (2013) 56 E.H.R.R. SE15 the applicants had attempted to argue that the fact that the Chagos Archipelago was administered from London brought the islands within the jurisdiction of the European Court of Human Rights for the purposes of Article 1 of the European Convention on Human Rights. See Monaghan (2013b), p. 314.
 
9
See ‘British Indian Ocean Territory’ (British Indian Ocean Territory) http://​biot.​gov.​io accessed 28 June 2017.
 
10
See ‘Governance’ (British Indian Ocean Territory) http://​biot.​gov.​io/​governance accessed 28 June 2017 and ‘BIOT Megafauna Stamp Issue 08.06.17’ (British Indian Ocean Territory) http://​biot.​gov.​io/​news/​biot-megafauna-stamp-issue-08-06-17 accessed 28 June 2017.
 
11
Sir Stephen Sedley has provided an example of how the UK government negotiated with Mauritian politicians: ‘In the mid-1960s, when Mauritius was due to be accorded full independence, the leader of its largest party, Sir Seewoosagur Ramgoolam, came to London to see the Colonial Secretary, Anthony Greenwood, about the terms of the independence constitution. To his surprise he was received at the Colonial Office not by Greenwood but by a senior official, who took him into a room, closed the door and said: “Look, old chap, you have a problem and we have a problem. Our problem is that the Americans want the population of the Chagos Islands removed, and we need somewhere to put them. Your problem is that you don’t yet know what system of government you’re going to get. Now, you have a choice. You can be sensible and take the Chagos Islanders, and we’ll give you some money to help. In that case you can have a first-past-the-post electoral system and you’ll be prime minister for ever. Or you can be difficult and refuse to take them, in which case we’ll give your proportional representation, and nobody will ever be able to form a stable government. It’s a matter entirely for you”’. (Sedley 2009, pp. 191–192).
 
12
‘History’ British Indian Ocean Territory http://​biot.​gov.​io/​about/​history accessed 28 June 2017 (emphasis added).
 
13
Laura Jeffery observed that ‘… the Chagos Archipelago was unpopulated prior to European colonial expansion in the region… French and British colonialists populated the Chagos Archipelago with slaves and contract workers; mostly from East Africa and Madagascar via Mauritius’. (Jeffery 2007, pp. 951, 953–954). David Vine is clear ‘that the Chagossians’ historical and ancestral connection with the Chagos Archipelago as its first inhabitants dates to at least the 1780s… anthropologists consider them indigenous to Chagos’. (Vine 2008, p. 26, 27).
 
14
Bancoult (No.1) (n 1) [7] (Laws LJ).
 
15
Bancoult (No.1) (n 1) (Laws LJ).
 
16
See the exchange between Lord Brockway and Lord Trefgarne in 1980 (HL Deb 31 January 1980, vol 404, cols 987-9).
 
17
Bancoult (No.2) (n 2) [155] (Lord Mance).
 
18
Those who alleged that they were tortured in the 1950s by British military personnel in Kenya have sued the UK (see Mutua v Foreign and Commonwealth Office [2011] EWHC 1913 (QB). Similarly, there has been legal action in connection to the killings of Malaysian nationals in 1948 (see R (on the application of Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2445 (Admin)).
 
20
Wright (2014), p. 96.
 
21
Mulgan (2000), p. 555.
 
22
After the Orders in Council had come into force, the Chairman of the House of Commons Foreign Affairs Committee had been informed that the draft orders had not been shown to the committee, because ‘[the government] needed to preserve complete confidentiality if we were to avoid the risk of an attempt by the Chagossians to circumvent the Orders before they came into force’. Quoted in Bancoult (No.2) (n 2) [27] (Lord Hoffmann). Lady Hale has observed that ‘for reasons that are still obscure and controversial, they changed their minds and decided to reinstate the ban’. ‘Magna Carta: Did she die in vain?’ (Gray’s Inn, 19 October 2015) https://​www.​supremecourt.​co.​uk/​docs/​speech-151019.​pdf accessed 28 June 2017.
 
23
Bancoult (No.2) (n 2).
 
24
Prior to the landmark decision in Council for Civil Service Unions v Minister of the Civil Service [1984] UKHL 8; [1985] AC 374; [1984] 3 WLR 1174 (‘GCHQ’) the courts had policed the purported existence of the prerogative. This approach has its roots in the important concept of a monarch limited by the law. See the commentary on the constitutional writings of Sir John Fortescue in the fifteenth century in Wilkinson (1964). See also Burmah Oil Company (Burmah Trading) Ltd v Lord Advocate [1964] 2 WLR 1231; [1965] AC 75, 101 (Lord Reid), and BBC v Johns [1964] 2 WLR 1071; [1965] Ch. 32, 79 (Diplock LJ).
 
25
In Burmah Oil Lord Reid had stated that, ‘The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute, So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times’. (emphasis added), 101. In that case, ‘As regards modern times, extensive investigation in connection with the De Keyser case failed to disclose a single instance of taking or interfering with land without payment. and if movables had been taken with compensation at any time after 1660 I feel sure that historians would have found evidence of that’. (emphasis added), 101. Cf. see R v Secretary of State for the Home Department, Ex parte Northumbria Police Authority [1988] 2 WLR 590; [1989] QB 26, 58 (Nourse LJ). Nourse LJ had observed that, ‘I have already expressed the view that the scarcity of references in the books to the prerogative of keeping the peace within the realm does not disprove that it exists. Rather it may point to an unspoken assumption that it does’. (emphasis added). For commentary on how the prerogative has been historically defined see Chitty (1820), Tanner (1961), pp. 4–9, and Dicey (1982), pp. 20, 311–315.
 
26
Bancoult (No.2) (n 2).
 
27
For an interesting discussion on the different approaches to the Orders in Council see Tucker (2014), p. 614. Tucker observed that ‘Bancoult is sometimes seen not as an instance of the historical-precedent test in operation, but rather as a repudiation of that test… [however] it does not illustrate that the historical-precedent test does not exist. It illustrates that its application depends on the level of generality with which a purported prerogative power is characterised’. Lord Bingham engaged in a ‘historical enquiry’ to find a ‘precedent for the existence of a very narrow power’, whereas Lord Hoffmann ‘was satisfied with a much broader characterisation of the power in question’. (Tucker (2014), p.622).
 
28
Council for Civil Service Unions v Minister of the Civil Service [1984] UKHL 8; [1985] AC 374; [1984] 3 WLR 1174 (‘GCHQ’).
 
29
ibid 418 (Lord Roskill).
 
30
At least to the public. See Smith (2009), p. 212.
 
31
See Flinders (2002b), p. 73; Flinders (2002a), p. 23.
 
32
The classic exposition of this view is Lord Hailsham (1978) or Sir Scarman (1974). Cf. Griffith (1979), p. 1.
However, the view that the House of Commons’ lacks the ability to hold the government to account still persists. Lord Steyn’s opening paragraph in his judgment in R (on the application of Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262 made explicit reference to executive dominance in the House of Commons. Therefore, it was perhaps not surprising that in obiter Lord Steyn argued that there are limits on Parliamentary Sovereignty, which would enable the courts to restrain the executive ([102]). Writing extra-judicially, Lord Steyn observed that ‘Lord Hailsham’s remarks in 1978 may be even more relevant to Westminster today’. (Steyn 2005, p. 347). In 2011, Jonathan Sumption QC rejected Lord Steyn’s interpretation (‘Judicial and Political Decision-Making the Uncertain Boundary’, FA Mann Lecture, 2011). See also Monaghan (2013a), p. 388. A recent article by Meg Russell, Daniel Glover and Kristina Wollter has rejected the argument that Parliament is weak against the executive (Russell et al. 2016, p. 286).
 
33
Russell et al. (2016), p. 286.
 
34
In addition to the examples listed below, there has been the high-profile legal challenge to the government’s power to trigger Article 50 of the Lisbon Treaty using the prerogative, see R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2017] 2 WLR 583.
 
35
Ministry of Justice (2008).
 
36
See G Phillipson, ‘“Historic” Commons’ Syria Vote: the constitutional significance. Part I′ (UK Constitutional Law Blog, 19 September 2013) https://​ukconstitutional​law.​org/​2013/​09/​19/​gavin-phillipson-historic-commons-syria-vote-the-constitutional-significance-part-i accessed 28 June 2017.
 
37
See Tomkins (2005). Tomkins had observed, ‘The starting principle for executive government should be the same for central government as it is already for local government: namely, that the government may exercise only those powers which are expressly (or by necessary implication) conferred upon it by statute… To achieve this it is necessary for Parliament to pass legislation revoking all prerogative powers…’ (132). However, even the limited reform that was proposed by the House of Commons Public Administration Select Committee (Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (HC 2003-04, 422)) is ‘self-evidently not going to happen. The principal beneficiary of prerogative power is the government of the day’ and it will not ‘volunteer to surrender such powers’. (Tomkins (2005), p.134).
 
38
Unlike the vote in 2003 the vote in 2011 took place after military action had commenced.
 
39
See Strong (2015), p. 604. Strong observed that ‘In contrast to Blair, Cameron did not need to be forced into allowing parliament a say. In contrast to Blair, he quickly confirmed that parliament would get a substantive vote. These were differences of style rather than substance; both leaders gave MPs the chance to veto their decisions. Cameron simply did it less grudgingly than Blair’ (613). Strong contrasted the background factors that led to Blair permitting a vote in 2003 and Cameron in 2011, ‘While political circumstances pushed Blair to grant parliament an extraordinary say over the Iraq war in 2003, they meant Cameron could follow suit in more routine fashion over Libya in 2011 without significant risk… He was able to differentiate himself from his controversial predecessor, and keep his coalition partners onside. It mattered, too, that Cameron’s approach was more open than Blair’s, that he offered MPs a vote as a matter of course rather than trying to avoid a discussion’ (614).
 
40
See House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (HC 2003-04, 422) and Ministry of Justice (2008).
 
41
See Ministry of Justice (2007) [49], fn 19.
 
42
See Ingram (1969). In a letter dated 7th October 1800, the Marquis of Wellesley, who was the Governor-General of Bengal, informed Henry Dundas, the President of the Board of Control, that although a force of 3000 men could conquer Mauritius, ‘In the meantime the Isle of France covers our coast with privateers, and infests every track of the trade of India’. (Two Views of British India, 305).
 
43
Mauritius was described as the ‘most important colony of France’ (HL Deb 24 July 1811, vol 20, cols 1118-20).
 
44
Britain’s policy was to occupy the French overseas colonies, which including Mauritius, were ‘a persistent and costly threat to Britain’s India trade…’ (Muir 1996, p. 18).
 
45
The reason as to why the United States wished to use the Chagos Archipelago is its strategic location. See the description provided by Baroness Lee of Asheridge (HL Deb 19 March 1975, vol 358, cols 748-75).
 
46
This policy was necessitated by financial constrains. Jean Houbert outlines the changing UK policy towards its position in the India Ocean and Anglo-American cooperation from 1958 onwards in finding suitable islands to use as military bases. (Houbert 1992, p. 465).
 
47
David Snoxell has provided a comprehensive history of the discussions between the United Kingdom and United States governments over the Chagos Archipelago (Snoxell 2009, p. 127).
 
48
See the witness statement of Robert Culshaw, who was the Director for the Americas and Overseas Territories at the Foreign and Commonwealth Office (30 September 2005), which is quoted in Snoxell (2009), p. 129.
 
49
Bancoult (No.1) (n 1) [11] (Laws LJ).
 
50
See written submissions from the UK and Mauritian governments in Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) 2011–2003, https://​pcacases.​com/​web/​view/​11 accessed 28 June 2017.
 
51
Colonial Office Note, 15 November 1965. Bancoult (No.1) [12] (Laws LJ) (n 1) (emphasis added).
 
52
Bancoult (No.1) (n 1).
 
53
The judges who presided over the litigation answered this question differently.
 
54
This term was allegedly used recently by a civil servant in connection to the creation of the Marine Protected Area in Bancoult (No.3) (n 4). WikiLeaks had released a document that purported to be a US diplomatic record of a meeting at the US Embassy. According to Lord Dyson MR, ‘The text… it is claimed, purports to record observations made by British officials to US Embassy officials on 12 May 2009 about a proposal to declare an MPA. It is common ground that there was a meeting between US officials and Mr Colin Roberts, then Foreign and Commonwealth Office (“FCO”) Director for Overseas Territories and HM Commissioner for the BIOT, and Ms Joanne Yeadon, then the BIOT administrator, on 12 May 2009 at the FCO… If the document is a true copy of a US Embassy “cable” it is the only near-contemporaneous record of the meeting known to exist’ (Bancoult (No.3) [10] (Lord Dyson MR) (n 4)). The document contained the following: “‘7. …Roberts stated that according to the HGM’s [sic] current thinking on a reserve, there would be no ‘human footprints’ or ‘Man Fridays’ on the BIOT’s uninhabited islands. He asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents …”’. (Bancoult (No.3) (n 4) [11] (Lord Dyson MR).
 
55
Chagos Islanders v Attorney General [2004] EWCA Civ 997.
 
56
ibid [6] (Sedley LJ).
 
57
455 F.3d 427 (D.C. Cir. 2006).
 
58
ibid, pp. 3–4.
 
59
Bancoult (No.2) (n 2).
 
60
ibid [9] (Lord Hoffmann).
 
61
ibid [150] (Lord Mance).
 
62
ibid [75], (Lord Rodger).
 
63
ibid [186] (Lord Mance).
 
64
ibid [119] (Lord Carswell).
 
65
Finnis (2017).
 
66
Bancoult (No.1) (n 1).
 
67
R (on application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2006] EWHC 1038 (Admin).
 
68
R (on application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2008] QB 365.
 
69
Finnis (2017), pp. 16–17.
 
70
See Vine (2008), pp. 26, 27.
 
71
A recent example includes opposition to the expansion of Heathrow Airport.
 
72
For a brief discussion of the legacy of the flooding of Derwent in the 1930s see Mantel (2017).
 
73
Chagos Islanders v Attorney General (n 55).
 
74
ibid [9], [19] and [54] (Sedley LJ). According to Sedley LJ the compensation ‘was distributed in 1977–1978 to a total of 595 displaced families then in Mauritius. It did little if anything to relieve their massive problems of rudimentary housing, unemployment and social isolation’ ([9]).
 
75
ibid [10] (Sedley LJ). Crucially, it has been argued that many of those who did settle were illiterate and did not have sufficient advice. This settlement in 1982 was key to the decision of the European Court of Human Rights in Chagos Islanders v United Kingdom (2013) 56 E.H.R.R. SE15, [81]. The court held that ‘accepting and receiving compensation, those applicants have effectively renounced further use of these remedies’ and therefore were not victims for the purposes of Article 34 of the European Convention on Human Rights.
 
76
Chagos Islanders v Attorney General [2004] EWCA Civ 997 and Chagos Islanders v United Kingdom (2013) 56 E.H.R.R. SE15.
 
77
Bancoult (No. 2) (n 2) [25] (Lord Hoffmann).
 
78
ibid [15], [25] (Lord Hoffmann).
 
79
ibid [161] (Lord Mance) (n 2). Lord Mance observed that even though there was no prerogative power to remove the right of abode, it ‘would not prevent the Crown legislating by United Kingdom statute in any terms which proved acceptable to Parliament, a process which would involve open debate’ (emphasis added). The issue of accountability will be discussed below.
 
80
Bancoult (No.1) (n 1).
 
81
ibid [55] (Laws LJ).
 
82
ibid [57] (Laws LJ).
 
83
ibid.
 
84
Tomkins (2001), pp. 571, 580.
 
85
See generally Lock (2006), Marshall (1965), O’Brien (2002) and Monaghan (2011), p. 58.
 
86
The Works of Edmund Burke, Volume 7 (Charles C Little and James Brown: 1839), 110. See also O’Brien (2002), pp. 195–196. Edmund Burke had delivered this speech during the impeachment trial of Warren Hastings, who had been the first Governor-General of Bengal. Hastings’ impeachment trial before the House of Lords in Westminster Hall (1788–1795) had been preceded by numerous attempts to reform the East India Company and to hold its servants to account. The most controversial of these attempts had been Fox’s India Bill in 1783, which led to King George III, using his influence in the House of Lords, to defeat the government’s legislative reforms.
 
87
In 2002, the feasibility study concluded that it would be infeasible to resettle the outer islands.
 
88
Bancoult (No.2) (n 2).
 
89
Chagos Islanders v Attorney General (n 55).
 
90
Olivier Bancoult v Robert S. McNamara (n 57).
 
91
ibid 7 (Brown, Circuit Judge).
 
92
Bancoult (No.2) (n 67).
 
93
Bancoult (No.2) (n 68).
 
94
Bancoult (No.2) (n 2).
 
95
ibid [33] (Lord Hoffmann).
 
96
ibid (Lord Mance and Lord Bingham).
 
97
ibid [50] (Lord Hoffmann). Lord Hoffmann held that, ‘[t]he 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. So far as Bancoult (No 1) departs from this principle, I think that it was wrongly decided’.
 
98
ibid [127]–[130] (Lord Carswell). Lord Carswell warned against the courts attempting to determining whether a particular order was, or was not for the ‘peace, order and good government’ as this would be political judgment’ and ‘the rule of abstinence should remain unqualified’ [130].
 
99
ibid [107]–[109] (Lord Rodger). His Lordship held that question was one of political judgment (i.e. ministerial) and not a question of law to be adjudicated by the courts. He also noted the lack of parliamentary accountability.
 
100
ibid [109] (Lord Rodger).
 
101
The literature is well served by highly persuasive criticisms of the decision. See Moules (2009), p. 14. Moules view is clear: ‘In a powerful and convincing dissenting judgments Lord Bingham and Mance denied that there was a prerogative power to legislate by Order in Council to exile an entire indigenous population’, 16. See also Arvind (2012), p. 113. TT Arvind was critical of the decision and argued that ‘Lords Rodger and Carswell held, in effect, that the Crown had unlimited powers to legislate in relation to conquered colonies—that, in relation to these colonies, the British government, could rule as it pleased without needing to obtain the consent of Parliament and without responsibility to Parliament—or, indeed, any elected body. By doing so, they took the British constitution back to Calvin’s Case and the reign of James I′. Arvind (2012), p. 132. See also Poole (2010), p. 146; Yusuf (2014).
 
102
Monaghan (2012).
 
103
ibid.
 
104
ibid.
 
105
See Monaghan (2012).
 
106
Bancoult (No.2) (n 2) [170] (Lord Bingham), [159] and [161] (Lord Mance).
 
107
ibid.
 
108
Paterson (2013).
 
109
Bancoult (No.2) (n 2).
 
110
Bancoult (No.3) (n 4).
 
111
See Monaghan (2014), p. 151.
 
112
Bancoult (No.3) (n 4) [10]–[11] (Lord Dyson MR).
 
113
ibid [65] (Lord Dyson MR). Lord Dyson MR held that ‘we would allow the appeal on the admissibility issue on the narrow basis that admitting the cable in evidence in the instant case did not violate the archive and documents of the US mission, since it had already been disclosed to the world by a third party’. Lord Dyson MR was of the opinion that during the original hearing ‘The fact that the cable was not admitted in evidence as an authentic document did not prevent Mr Pleming from pursuing such a line of cross-examination if that was what he wanted to do’, [91].
 
114
‘Case Details’ (UK Supreme Court) https://​www.​supremecourt.​uk/​cases/​uksc-2015-0022.​html accessed 28 June 2017. See Bancoult (No.3) (n 4) [90]–[91] (Lord Dyson MR).
 
115
Bancoult (No.3) (n 4) [91] (Lord Dyson MR).
 
116
ibid [93] (Lord Dyson MR).
 
117
Bancoult (No.2) (n 3).
 
118
Bancoult (No.2) (n 2).
 
119
Bancoult (No.2) (n 3) [2] (Lord Mance with whom Lord Neuberger and Clarke agreed).
 
120
ibid [3] (Lord Mance).
 
121
ibid [2]–[4] (Lord Mance).
 
122
ibid [20]–[23] (Lord Mance).
 
123
Bancoult (No.2) (n 2).
 
124
Bancoult (No.2) (n 3) [2] (Lord Mance).
 
125
ibid.
 
126
ibid [24] (Lord Mance).
 
127
ibid [65] (Lord Mance).
 
128
ibid [65] (Lord Mance).
 
129
ibid [168] (Lord Kerr with whom Lady Hale agreed).
 
130
ibid [186] (Lord Kerr).
 
131
ibid [187] (Lord Kerr).
 
132
Ibid [166] (Lord Kerr).
 
133
ibid [194] (Lady Hale).
 
134
Bancoult (No.2) (n 2).
 
135
Bancoult (No.2) (n 3) [112]–[115] (Lord Kerr).
 
136
ibid.
 
137
ibid [115] (Lord Kerr).
 
138
Bancoult (No.2) (n 3) [119] (Lord Kerr) and Bancoult (No.2) (n 2) [138] and [172] (Lord Mance); [15] and [53] (Lord Hoffmann).
 
139
Bancoult (No.2) (n 2).
 
140
Bancoult (No.2) (n 3) [120]–[121] (Lord Kerr) and Bancoult (No.2) (n 2) [138] (Lord Mance); [15] (Lord Hoffmann).
 
141
Bancoult (No.2) (n 3) [122] (Lord Kerr).
 
142
ibid [160] (Lord Kerr).
 
143
ibid [161] (Lord Kerr).
 
144
ibid [189] (Lady Hale).
 
145
ibid [192] (Lady Hale) (emphasis added).
 
146
ibid [193] (Lady Hale) (emphasis added).
 
147
Bancoult (No.2) (n 2).
 
148
ibid.
 
149
ibid.
 
150
Finnis (2017), pp. 17–18.
 
151
Arvind (2012), pp. 113, 140.
 
152
Bancoult (No.2) (n 2).
 
153
ibid [130] (Lord Carswell).
 
154
[1942] AC 206; [1941] 3 All ER 338. Lord Atkin’s dissenting judgment in Liversidge v Anderson was critical of judges showing too much deference to the executive on the basis of the wartime nature of the case: I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive’, (p.244). There can be no mistaking Lord Atkin’s negative view as to the disposition of other judges when adjudicating in such an appeal. His Lordship was equally critical of counsel: ‘In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I’(,p. 244). In order to appreciate the severity of His Lordship’s criticism it is important to consider the low regard that contemporaries of Charles I’s judges held them in during the king’s attempt to rule without Parliament. For an authoritative account of Charles I’s judiciary see Jones (1971).
 
155
(1765) 2 Wilson, KB 275; (1765) 19 St Tr 1029.
 
156
Bancoult (No.1) (n 1).
 
157
Bancoult (No.2) (n 2).
 
158
(1611) 12 Co. Rep 74.
 
159
To understand the context see Usher (1903), p. 664. See also Smith (2014).
 
160
Burmah Oil (n 25) 101 (Lord Reid).
 
161
Lord Steyn (2005), p. 346. Commenting on the ability to challenge executive decisions by way of judicial review, Lord Steyn observed, ‘Although the vast majority of judicial review decisions go in favour of the executive, ministers sometimes find it hard to stomach adverse decisions. So be it. Nobody is above the law’, 348. See also 354–355 for a discussion on the differences between the approach of Lord Hoffmann and Lord Steyn.
 
162
Bancoult (No. 2) (n 2).
 
163
Council for Civil Service Unions (n 28) and (n 29).
 
164
Cohn (2009), pp. 260, 265.
 
165
Tucker (2014).
 
166
Cohn (2009), p. 283.
 
167
Arvind (2012), p. 143.
 
168
Bancoult (No. 2) (n 2) [107]–[109] (Lord Rodger).
 
169
Cox (2012), pp. 1, 7.
 
170
Political and Constitutional Reform Committee, A new Magna Carta? (HC 2015-15, 463), para 17.
 
171
ibid.
 
172
Warbrick (2009), p. 548. See also Ministry of Justice (2007) [49].
 
173
Sir Sedley (2015), p. 132.
 
174
ibid 133.
 
175
ibid 134.
 
176
ibid 134.
 
177
This is a point which has also been made by Cormacain (2013), p. 487.
 
178
ibid 488.
 
179
ibid 487.
 
180
The prerogative power to enact colonial legislation would be expressly abolished, rather than going into abeyance. Note the debate over the status of the prerogative power to dissolve Parliament in light of the enactment of the Fixed-Term Parliaments Act 2011. See Craig (2017a, b). See also Phillipson (2016), p. 1064 for an interesting discussion on when the prerogative is expressly abolished by statute and when it goes into abeyance.
 
181
Cohn (2009), p. 286.
 
182
ibid.
 
183
Tomkins argued that ‘In the seventeenth century Parliament significantly curbed the Crown’s prerogative. What Parliament should do now is to finish the job and remove the prerogative entirely from the British constitutional order’. (Tomkins 2005, p. 134). Tomkins’ solution is that ‘Parliament should pass a Prerogative (Abolition) Act’ and subsequent Acts would expressly cover specific powers that were once exercised under the prerogative (Tomkins 2005, p.133-4). This followed the earlier recommendations proposed by the House of Commons Public Administration Select Committee (Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (HC 2003-04, 422)).
 
184
The manifesto stated that ‘We will always stand up for the rights, interests and self-determination of Britain’s overseas territories and their citizens, whether protecting the sovereignty of the Falkland Islands against anyone who would seek to challenge it, or supporting the right of the Chagos islanders to return to their homelands’. (Labour Party Manifesto, 2017) http://​www.​labour.​org.​uk/​page/​-/​Images/​manifesto-2017/​Labour%20​Manifesto%20​2017.​pdf accessed 28 June 2017. Interestingly, the manifesto also supported the rights of the Falkland Islanders for self-determination, whose treatment by the UK government and the willingness to protect their right to self-determination, is so often contrasted with how the Chagossians have been treated by successive governments.
 
185
See Smith (London, 5 January 2017).
 
186
The inclusion of the consultation requirement was based upon the criticism made by Ronan Cormacain of the 2004 Order in Council and the lack of consultation, Cormacain (2013), p. 487.
 
187
For example see Frost and Murray (2015), p. 263.
 
188
The United Kingdom’s treatment demonstrates the problems of seeking to draw a clear line between the ‘colonial’ and ‘post-colonial’ periods, as the mistreatment of the Chagossians occurred at a time that the metropolitan United Kingdom was seeking to divest itself of the remaining parts of the empire. The irony is that the expulsion of the Chagossians from the BIOT (being the last colony created by the United Kingdom) coincided with Mauritian independence in 1968. For an interesting commentary on the ‘post-colonial’ see Shohat (1992), p. 99. Shohat observed that ‘[t]he term “post-colonial” carries with it the implication that colonialism is now a matter of the past, undermining colonialism’s economic, political, and cultural deformative-traces in the present. The “post-colonial” inadvertently glosses over the fact that global hegemony, even in the post-cold war era, persists in forms other than overt colonial rule’, 105.
 
189
For example see the pointed criticism of Moor and Simpson (2006), p. 121. See also Monaghan (2013b) for a commentary on Chagos Islanders v United Kingdom (2013), which explores the reasons for why the Court ruled that the application was inadmissible. In particular see fn 54 for a discussion on the limited application of the Convention Rights and the legal black hole that exists as a consequence, with reference to the Court’s jurisprudence in decisions such as El-Masri v former Yugoslav Republic of Macedonia (App. No.39630/09). See also Allen (2016), p. 771 and Ralph Wilde’s contribution to this collection,‘“Anachronistic as colonial remnants may be…’” Locating the rights of the Chagos Islanders as a case study of the operation of human rights law in colonial territories’ (Chap. 8).
 
190
Bancoult (No.2) [159] (Lord Mance) (n 2). Lord Mance stated that ‘Had the present issue arisen 225 years ago when Lord Mansfield was developing and examining the principles governing overseas colonies, the reasoning in Campbell v Hall leaves no real doubt about his answer’. In Campbell v Hall (1774) 1 Cowper 204 Lord Mansfield had set out six propositions concerning the law and the inhabitants of a newly acquired British colony. Lord Mansfield’s sixth proposition was ‘that if the King (and when I say the King, I always mean the King without the concurrence of Parliament,) has a power to alter the old and to introduce new laws in a conquered country , this legislation being subordinate, that is, subordinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles: he cannot exempt an inhabitant from that particular dominion; as for instance, from the laws of trade, or from the power of Parliament, or give him privileges exclusive of his other subjects; and so in many other instances which might be put’, 209 (emphasis added).
 
191
See Bowcott (2016). Accessed 28 June 2017.
 
Literatur
Allen S (2016) The scope of third-party responsibility for serious human rights abuses under the European Convention on human rights: wrongdoing in the British Indian Ocean Territory. Hum Rights Law Rev 16(4):771CrossRef
Arvind TT (2012) “Though it shocks one very much”: formalism and pragmatism in the Zong and Bancoult. Oxf J Leg Stud 32(1):113CrossRef
BBC v Johns [1964] 2 WLR 1071; [1965] Ch. 32
Burmah Oil Company (Burmah Trading) Ltd v Lord Advocate [1964] 2 WLR 1231; [1965] AC 75
Chagos Islanders v Attorney General [2004] EWCA Civ 997
Chagos Islanders v United Kingdom (Admissibility) (2013) 56 E.H.R.R
Chitty J (1820) A treatise of the law of the prerogatives of the crown and the relative duties and rights of the subject. Joseph Butterworth and Son, London
Cohn M (2009) Judicial review of non-statutory executive powers after Bancoult: a unified anxious model. Public Law 260
Cormacain R (2013) Prerogative legislation as the paradigm of bad law-making: the Chagos Islands. Commonw Law Bull 39(3):487CrossRef
Council for Civil Service Unions v Minister of the Civil Service [1984] UKHL 8; [1985] AC 374; [1984] 3 WLR 1174 (‘GCHQ’)
Cox N (2012) The gradual curtailment of the royal prerogative. Denning Law J 24:1
Dicey AV (1982) Introduction to the study of the law of the constitution, 8th edn. Liberty Fund, Indianapolis
Flinders M (2002a) Shifting the balance? Parliament, the executive and the British constitution. Pol Stud 50:23CrossRef
Flinders M (2002b) The enduring centrality of individual ministerial responsibility within the British constitution. J Legis Stud 6(3):73CrossRef
Foreign Affairs Committee, The use of Diego Garcia by the United States (HC 2014–2015, 377)
Foreign Affairs Committee, The use of Diego Garcia by the United States: Government Response to the Committee’s First Report of Session 2014–2015 (HC 2014–2015, 646)
Frost T, Murray CRG (2015) The Chagos Islands cases: the empire strikes back. N Ir Legal Q 66:263
Hailsham (Lord) QH (1978) The dilemma of democracy. Collins, London
Houbert J (1992) The Indian Ocean Creole Islands: geo-politics and decolonisation. J Mod Afr Stud 30(3):465CrossRef
House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (HC 2003–2004, 422)
Ingram E (1969) Two views of British India: the private correspondence of Mr Dundas and Lord Wellesley: 1798–1801. Adams and Dart, Bath
Jeffery L (2007) How a plantation became paradise: changing representations of the homeland among displaced Chagos islanders. J R Anthropol Inst 13(4):951–968CrossRef
Jones WJ (1971) Politics and the bench: the judges and the origins of the English civil war. Allen and Unwin, Crows Nest
Lock FP (2006) Edmund Burke, Volume II: 1784–1797. Oxford University Press, Oxford
Marshall PJ (1965) The impeachment of Warren Hastings. Oxford University Press, Oxford
Ministry of Justice (2007) The Governance of Britain. Green Paper, Cm 7170
Ministry of Justice (2008) The Governance of Britain: Constitutional Renewal. White Paper, Cm 7342-I
Monaghan C (2011) In defence of intrinsic human rights: Edmund Burke’s controversial prosecution of Warren Hastings, governor-general of Bengal. Law Crime Hist 2:58
Monaghan C (2012) 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. In: Geach N, Monaghan C (eds) Dissenting judgments in the law. Wildy, Simmonds and Hill, London. chapter 13
Monaghan C (2013a) Judicial discretion, parliament and executive accountability in the twenty-first century: R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department. Judicial Rev 18(4):388–402CrossRef
Monaghan C (2013b) The Chagossians go to Strasbourg: convention rights and the Chagos Islands. Eur Hum Rights Law Rev 3:314
Monaghan C (2014) The marine protected area and WikiLeaks: R (Bancoult) v secretary of state for foreign and commonwealth affairs (No. 3). Judicial Rev 19(3):151–159CrossRef
Moor L, Simpson AWB (2006) Ghost of colonialism in the European convention on human rights. Br Yearb Int Law 76(1):121CrossRef
Moules R (2009) Judicial review of prerogative orders in council. Camb Law J 68:14–17CrossRef
Muir R (1996) Britain and the defeat of Napoleon 1807–1815. Yale University Press, New Haven
Mulgan R (2000) “Accountability”: an ever-expanding concept? Public Adm 78(3):555–573CrossRef
Mutua v Foreign and Commonwealth Office [2011] EWHC 1913 (QB)
O’Brien CC (2002) Edmund Burke. Vintage, New York
Paterson A (2013) Final judgment: the last law lords and the Supreme Court. Hart, Oxford
Phillipson G (2016) A dive into deep constitutional waters: article 50, the prerogative and parliament. Mod Law Rev 79(6):1064CrossRef
R (on application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2006] EWHC 1038 (Admin)
R (on application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2008] QB 365
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Office (No. 1) [2008] UKHL 61; [2009] 1 AC 453; [2008] 4 All ER 1055; [2008] 3 WLR 955
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2014] EWCA Civ 708; [2015] 1 All ER 185; [2014] 1 WLR 2921
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2016] UKSC 35; [2017] 1 All ER 403; [2016] 3 WLR 157
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 3) [2001] QB 1067; [2001] 2 WLR 1219
R (on the application of Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262
R (on the application of Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2445 (Admin))
R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2017] 2 WLR 583
R v Secretary of State for the Home Department, Ex parte Northumbria Police Authority [1988] 2 WLR 590; [1989] QB 26
Russell M, Gover D, Wollter K (2016) Does the executive dominate the Westminster legislative process? Six reasons for doubt. Parliam Aff 69(2):286–308CrossRef
Sand P (2013) The Chagos Archipelago cases: nature conservation between human rights and power politics. Glob Community Yearb Int Law Jurisprud 1:125–149
Scarman L (1974) English law- the new dimension: the Hamlyn lectures, twenty-sixth series. Stevens & Sons, London
Sedley S (2009) The long sleep. In: Andenas M, Fairgrieve D (eds) Tom Bingham and the transformation of the law: a liber amicorum. Oxford University Press, Oxford, pp 183–192CrossRef
Sedley S (2015) Lions under the throne: essays on the history of English public law. Cambridge University Press, CambridgeCrossRef
Shohat E (1992) Notes on the “post-colonial”. Third World Post-Colon Issues 31:99
Smith DC (2014) Sir Edward Coke and the reformation of the laws: religion, politics and jurisprudence, 1578–1616. Cambridge University Press, CambridgeCrossRef
Smith R (2009) Beyond satirical debate? NLJ 159:212
Snoxell D (2009) Anglo/American complicity in the removal of the inhabitants of the Chagos Islands, 1964-73. J Imperial Commonw Hist 71(1):127CrossRef
Steyn J (2005) Deference: a tangled story. Public Law 346
Strong J (2015) Why parliament now decides in war: tracing the growth of the parliamentary prerogative through Syria, Libya and Iraq. Br J Polit Int Relat 17(4):604CrossRef
Tanner JR (1961) Constitutional documents of the reign of James I 1603–1625. Cambridge University Press, Cambridge
Tomkins A (2001) Magna Carta, crown and colonies. Public Law 571–585
Tomkins A (2005) Our republican constitution. Hart, Oxford
Tucker A (2014) Press regulation and the royal prerogative. Public Law 10:614–623
Vine D (2008) Decolonizing Britain in the 21st century? Chagos islanders challenge the crown, house of lords. Anthropol Today 24(4):26–28CrossRef
Warbrick C (2009) Who calls the shots? Defence, foreign affairs, international law, and the governance of Britain. In: Andenas M, Fairgrieve D (eds) Tom Bingham and the transformation of the law: a liber amicorum. Oxford University Press, Oxford, pp 533–562CrossRef
Wilkinson B (1964) Constitutional history of England in the fifteenth century 1399–1485. Barnes and Noble, Michigan
Wright T (2014) The politics of accountability. In: Elliot M, Feldman D (eds) The Cambridge companion to public law. Cambridge University Press, Cambridge, pp 96–115
Yusuf HO (2014) Colonial and post colonial constitutionalism in the commonwealth: peace, order and good government. Routledge, London
Metadaten
Titel
An Imperfect Legacy: The Significance of the Bancoult Litigation on the Development of Domestic Constitutional Jurisprudence
verfasst von
Chris Monaghan
Copyright-Jahr
2018
Buch
Fifty Years of the British Indian Ocean Territory

Print ISBN: 978-3-319-78540-0

Electronic ISBN: 978-3-319-78541-7

Copyright-Jahr: 2018

DOI
https://doi.org/10.1007/978-3-319-78541-7_6