Judgments - R (On The Application of Bancoult) V Secretary of State For Foreign and Commonwealth Affairs

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89.  On the basis of these various authorities it appears to me certainly arguable that there is a “fundamental principle” of English law that no citizen should be exiled or banished from a British colony and sent to a foreign country. Assume that section 9 of the Constitution Order is inconsistent with that principle, by reason of declaring that no-one who used to live in the Archipelago now has a right of abode in BIOT. Is the section void as purporting to change the law of BIOT in a way that is inconsistent with that fundamental principle?

90.  Although the passage from the judgment of Lord Mansfield has regularly been cited for the proposition that the King cannot legislate contrary to fundamental principles of that kind, I suspect that this is to read too much into his remark. The passage may be more readily understood if the punctuation is modernised in this way:

“The 6th and last proposition is 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.”

All the examples of “fundamental principles” which Lord Mansfield gives are classic examples of ways in which, before 1689, the King - without the concurrence of Parliament - used the dispensing power of the Crown in relation to statutes. So what Lord Mansfield appears to be saying is that the King cannot use his power to legislate for a ceded colony without the concurrence of Parliament so as to exempt an inhabitant of the colony from the laws of trade, or from some Act of Parliament or to give him some exclusive privilege. Such legislation would amount to a revival of the dispensing power, which it had been one of the achievements of the Glorious Revolution to abolish.

91.  There is no point in exploring Lord Mansfield’s meaning further, however, since, as a matter of historical fact, in the first half of the nineteenth century, the passage in his judgment was interpreted by some lawyers as authority for the wider proposition that the King could not make changes in the law that were contrary to “fundamental principles". The obvious problem was that, if the examples given by Lord Mansfield were simply examples of fundamental principles of an unspecified nature, it was difficult to identify the “many other instances” of those principles. So legislation by the King for ceded colonies was apparently open to challenge if it could be said to be contrary to a principle which was “fundamental". If that were established, the King would have had no power to make the law in question, whether by letters patent or by order in council.

92.  The main problem was slightly different. The King did not usually legislate for most colonies. They were given a legislature of some kind which made the laws for the colony - but the instrument creating the legislature gave it power, for example, to make laws “not contrary or repugnant to the lawes and statutes of this our realme of England” (Massachusetts Charter, 1628) or required that the laws should not be “repugnant to the law of England": section 29 of the Australian Constitutions Act 1842. In the case of settled colonies, provisions of this kind had the potential to cause acute difficulties. For one thing, it was hard to tell how much of the statute law, technically in force in England, had been carried into the colony at its settlement. Moreover, the very point of establishing a legislature in any kind of colony was that it should pass appropriate new laws to suit the conditions of the colony, even though the new laws were different from English law. So a view emerged, for all colonies, that the colonial legislature could make laws which were different from English law, provided that they were not repugnant to the “fundamental principles” of English law.

93.  The possibility that some provision of a statute passed by a colonial legislature was repugnant to an imperial statute applying to the colony or to some fundamental principle of English law was not only, or indeed principally, of concern to the courts. Some colonial statutes were reserved for the assent of His Majesty, while all of them could be disallowed by His Majesty by Order in Council within a year. So copies of all the thousands of statutes passed by colonial legislatures were sent back to London where they were scrutinised, inter alia for repugnancy, by lawyers working for the Colonial Office. In practice, even where doubts arose, relatively few provisions were disallowed since, if the colonial legislature persisted, the Colonial Office found that it tended to lose the resulting ping-pong of legislation and disallowance. The problem of scrutinising legislation by reference to “fundamental principles” was described by “Mr Over-Secretary Stephen” of the Colonial Office, Sir James Stephen, in a memorandum in 1834:

“To have required, on pain of nullity, an adherence to the fundamental principles of English legislation would, I think, have involved more than one absurdity. It may very reasonably be doubted whether these principles have any real and definite existence, and even if, by a great effort of abstraction and subtlety, our written or unwritten law could be made to yield a body of fundamental maxims pervading the whole mass, it would have been strange if Parliament had required a rigid observance of those maxims in a society of which all the material circumstances, and the whole elementary character differ essentially from what has ever been known in the Parent State.”

The passage is quoted at page 57 of D B Swinfen’s masterly study, Imperial Control of Colonial Legislation 1813-1865 (1970), to which I am generally indebted. The difficulties to which Sir James refers are easy to see when it is recalled that, until shortly before, slavery had formed part of the law of many colonies in the West Indies and statutes were not infrequently passed by local legislatures dealing with different aspects of slavery.

94.  Two decades later, one of Sir James Stephen’s successors, Sir Frederic Rogers, writing a memorandum on a South Australian Act designed to legalise the marriage of a man with his deceased wife’s sister, described the position in this way:

“But a question not infrequently occurs whether there are not, in the English law, certain fundamental enactments of statute or principles of common law of so binding a nature that the legislation of all British Dependencies must be conformable to them, and that colonial laws which are not so conformable are void; either in virtue of the general relations between a British colony and the Mother Country, or as being at variance with some positive Instructions or Acts of Parliament which require that Colonial Laws shall not be ‘repugnant to the laws of England'. This seems to have been the doctrine of former times, and as late as 1843, doubts seem to have been entertained whether a colonial law passed to admit unsworn testimony would not be repugnant to the law of England, and therefore null and void. But in practice the tendency has long been to consider Colonial Legislatures as legally competent to pass almost any law, which they are not precluded from passing by some Imperial Statute intended by Parliament to be binding in the colony - the Crown remaining at liberty to intervene by way of disallowance or otherwise in order to prevent the enactment of laws manifestly at variance with the fundamental principles of English legislation. In the larger colonies, the prevailing, if not universal opinion is said to be (as might be expected) that most favourable to the pretensions of their own Legislature. This I am aware is a very vague statement, but I do not know that the present state of the law can be laid down with greater precision.”

See Swinfen, Imperial Control of Colonial Legislation 1813-1865, pp 62-63.

95.  This was the situation around the time when a member of the South Australian Supreme Court, Boothby J, began to issue decisions holding that various statutes passed by the local colonial legislature were void on the ground of repugnancy to the law of England. In 1862 the Law Officers agreed that laws which were contrary to fundamental principles of British law, “as by denying the sovereignty of Her Majesty, by allowing slavery or polygamy, by prohibiting Christianity, by authorising the infliction of punishment without trial, or the uncontrolled destruction of aborigines, etc” would unquestionably be repugnant, but added:

“We are unable to lay down any rule to fix the dividing line between fundamental and non-fundamental rules of English law….”

See D P O'Connell, A Riordan, Opinions on Imperial Constitutional Law (1971), pp 62-64. As their successive opinions show, between 1862 and 1865 the Law Officers became convinced that the only way to remedy the state of uncertainty caused by Boothby J’s various pronouncements was to pass legislation similar to section 3 of the British North America Act 1840 and - to forestall similar problems elsewhere - to extend it to all of the colonies: O'Connell, Riordan, Opinions on Imperial Constitutional Law, pp 60-71.

96.  The result was the Colonial Laws Validity Act 1865. The terms of section 3 could not be clearer: no colonial law was to be void or inoperative on the ground of repugnancy to the law of England, unless it was repugnant to the provisions of some Act of Parliament which was made applicable to the colony by express words or necessary intendment.

97.  This explicit provision applied to orders in council since, by section 1, the term “Colonial Law” includes laws made for any colony by Her Majesty in Council. While it is unclear why letters patent were not included, this cannot detract from the fact that orders in council are expressly included - and the significance of their inclusion cannot be wished away as being only for the sake of completeness. Nor can I discern any reason to say that, for purposes of the 1865 Act, the Constitution Order might be a colonial law from the point of view of a BIOT court applying BIOT law but not for a court in the United Kingdom. Such an interpretation would leave the status of the law in limbo - valid in the the courts of the colony, but open to challenge in the English courts - where, of course, such challenges could be and were, in practice, mounted. See, for instance, Phillips v Eyre (1870) LR 6 QB 1, 20-23. Leaving this room for uncertainty would have been inconsistent with the whole purpose of the 1865 Act, which was to remove the possibility of challenges by reference to general principles of English law and to confine the doctrine of repugnancy to repugnancy to an Act of the Imperial Parliament extending to the colony. Equally, I would readily conclude that sections 2 and 3 were intended to cover legislation establishing a constitution for a colony since the decision of Boothby J in Auld v Murray (1864) SAPP 53 LC, relating to a Constitution Act passed by the local legislature, was one of those which had caused uncertainty. See Swinfen, Imperial Control of Colonial Legislation 1813-1865, pp 177-178.

98.  Sedley LJ considered that, despite the terms of sections 2 and 3 of the 1865 Act, courts in this country would surely always have struck down an order in council permitting the use of torture to obtain evidence and that the same would have almost certainly been the case with an order in council abolishing all recourse to law in a colony or introducing forced labour. Professor Finnis describes this as a “parade of horribilia“: Common Law Constraints: Whose Common Good Counts?, para 13. So it is. But the challenge has to be confronted. In my view, it is clear that, as Professor Finnis argues, the whole purpose of the 1865 Act was indeed to prevent challenges in the courts on any ground of repugnancy other than repugnancy to the provisions of an imperial statute extending to the colony in question. So, unless there were statutes extending to the colony, to which the horribilia were repugnant, the validity of the provisions could not be challenged for repugnancy in the courts. This would not mean that nothing could have been done about any such hypothetical provision: in particular, on being sent back to London and scrutinised by the Colonial Office lawyers, it would presumably have been immediately disallowed by Her Majesty in Council, on the advice of the Colonial Secretary. Apart from that, the policy was, precisely, to trust the legislatures and to leave control not to the courts, but to the legislatures and, ultimately, to the electorates, both at home and, where appropriate, in the colony concerned. If anything, that policy might have been expected to apply, a fortiori, to legislation by order in council countersigned by the Colonial Secretary himself.

99.  In Bancoult No 1 [2001] QB 1067, para 43, Laws LJ referred to “the wintry asperity” of the Privy Council authority, Liyanage v The Queen [1967] AC 259. The decision itself was, in fact, far from wintry and the aspect to which Laws LJ was referring was correct, indeed inevitable, in the light of the 1865 Act.

100.  The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void. The Board upheld that argument on the basis that the separation of powers inherent in the Constitution had been infringed. The appellant’s conviction was quashed.

101.  The Board rejected another argument, however, to the effect that the law in question was void because it was repugnant to the fundamental principles of justice. Starting from Campbell v Hall (1774) 1 Cowp 204, 209, the contention for the appellant was that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself. The Board quoted A B Keith, The Sovereignty of the British Dominions (1929), p 45, who said of the 1865 Act:

“The essential feature of this measure is that it abolished once and for all the vague doctrine of repugnancy to the principles of English law as a source of invalidity of any colonial Act ... the boon thus secured was enormous; it was now necessary only for the colonial legislator to ascertain that there was no Imperial Act applicable and his field of action and choice of means became unfettered.”

The Board continued, [1967] AC 259, 284-285:

“Their Lordships cannot accept the view that the legislature while removing the fetter of repugnancy to English law, left in existence a fetter of repugnancy to some vague unspecified law of natural justice. The terms of the Colonial Laws Validity Act and especially the words ‘but not otherwise’ in section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy. Morover, their Lordships doubt whether Lord Mansfield was intending to say that what was not repugnant to English law might yet be repugnant to fundamental principles or to set up the latter as a different test from the former. Whatever may have been the possible arguments in this matter prior to the passing of the Colonial Laws Validity Act, they are not maintainable at the present date. No case has been cited in which during the last 100 years any judgment (or, so far as one can see, any argument) has been founded on that portion of Lord Mansfield’s judgment.”

Pace Sedley LJ, [2008] QB 365, 392-393, para 28, it is loyalty to the terms of sections 2 and 3 of the 1865 Act, rather than any mid-twentieth-century lack of appreciation of what might count as “fundamental principles", which ultimately drives Lord Pearce’s reasoning.

102.  I am accordingly satisfied that neither section 9 of the Constitution Order nor the Immigration Order is open to challenge in the English courts on the ground that it is repugnant to any “fundamental principle” of English common law that a “belonger” cannot be sent out of the Territory and so has a right to return there.

103.  But, just as the whole history of the developments leading to the 1865 Act shows that a challenge based on repugnancy to fundamental principles is unsustainable, it also shows - equally clearly - that the 1865 Act was concerned only with repugnancy to statute and to fundamental principles, which had been said to make legislation ultra vires the legislature, whether Her Majesty in Council or the colonial legislature. There is nothing to suggest that in 1865 anyone contemplated the need to head off a challenge to the validity of legislation by either the Queen in Council or another colonial legislature acting intra vires or ultra vires for some other reason.

104.  It is therefore important to notice that Sir Sydney’s other challenges to section 9 of the Constitution Order and to the Immigration Order were not based on some unspecified fundamental principle of the law to which the provisions of the Orders were said to be repugnant. Rather, he contended, first, that, in making the Orders, Her Majesty in Council acted ultra vires, because the legislation was not “for the peace, order and good government of the Territory.” Next, he contended that Her Majesty failed to have regard to the interests of the Chagos islanders or acted in defiance of their legitimate expectation created by the statement of the Foreign Secretary in November 2000. The provisions of sections 2 and 3 of the 1865 Act do not constitute a bar to these challenges - any more than they constitute a bar to a challenge to legislation, purporting to apply outside the colony or State concerned, as not being for the peace, order and good government of that colony or State.

105.  Mr Crow contended that, even without the 1865 Act, any exercise of the royal prerogative to make a legislative order in council could not be reviewed by the courts. I would reject that submission. In Campbell v Hall (1774) 1 Cowp 204 Lord Mansfield was prepared to hold that the Crown had no power to make the letters patent imposing the tax on Grenada. He would surely have done the same if the tax had been imposed by order in council: the precise form of the legislation was of no significance for that purpose. The court was, in effect, reviewing the legality of the letters patent. Nowadays, a broader form of of review of other prerogative acts is established: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Therefore, like Lord Hoffmann, I see no reason in principle why, today, prerogative legislation, too, should not be subject to judicial review on ordinary principles of legality, rationality and procedural impropriety. Any challenge of that kind must, of course, be based on a ground that is justiciable.

106.  Nor am I impressed by Mr Crow’s argument - little more than a makeweight - that judicial review of an order in council would trespass against the rule that prerogative orders are regularly made against Ministers in their official capacity, but never against the Crown: M v Home Office [1994] 1 AC 377, 407. That is nothing more than a rule of English procedural law: it does not reach the substance of the challenge. Under the Crown Suits (Scotland) Act 1857 the Advocate General for Scotland represents the Crown in right of the United Kingdom. There would therefore be nothing, for instance, to prevent Mr Bancoult bringing proceedings for judicial review in the Court of Session against the Advocate General, as representing the Crown, and, if successful, having the orders quashed. The realistic approach to such matters was identified by Lord President Hope in the old case, Edwards v Cruickshank (1840) 3 D 282. Referring to the jurisdiction of supreme courts, he said, at pp 306-307:

“With regard to our jurisdiction, and the jurisdiction of the supreme courts in every civilized country with which I am acquainted, I have no doubt. They have power to compel every person to perform their duty - persons whether single or corporate; and, in our noble constitution, I maintain - though at first sight it may appear to be a startling proposition - the law can compel the Sovereign himself to do his duty, ay, or restrain him from exceeding his duty. Your Lordships know that the Sovereign never acts by himself, but only through the medium of his ministers or executive servants; and if any duty is refused to be done by any minister in the department over which he presides, or if he exceed his duty to the injury of the subjects, the law gives redress. In England the Court would proceed, according to the nature of the case, by injunction or mandamus, or a writ of quo warranto. In this country a person would proceed by action or by petition; and, if he was right, a decree would be passed and would be enforced by ordinary process of law.”

Admittedly, the Lord President’s understanding of the position of the English courts turned out to be unduly optimistic. But, on Scots Law, on general principle, and on the substance of the matter, he was surely absolutely right.

107.  Sir Sydney submitted that both the Constitution Order and the Immigration Order are unlawful because Her Majesty’s full power to legislate is confined to making “laws for the peace, order and good government of the Territory". These are undoubtedly the customary terms in which Her Majesty’s reserved legislative powers are described, for instance, in section 15(1) of the Constitution Order. Section 15(1)(b) goes on to provide that:

“no such provision shall be deemed to be invalid except to the extent that it is inconsistent with the status of the Territory as a British overseas territory or otherwise as provided by the Colonial Laws Validity Act 1865.”

Section 15 therefore provides the measure of the legislative powers available to Her Majesty when making the Immigration Order but, when enacting the Constitution Order itself, She was exercising her prerogative power after revoking the British Indian Ocean Territory Orders 1976 to 1994, in accordance with the power reserved under section 15 of the 1976 Order. The formula in section 15(1) is, of course, classical, but there is no authority which defines the prerogative power of legislation in those terms. Nevertheless, I am content to accept them as a description of the prerogative power, provided that they are interpreted and applied in accordance with the equally well known and well settled jurisprudence relating to them.

108.  The classical case law was summarised by the High Court of Australia in a unanimous judgment in Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1. Their Honours were considering the scope of the power conferred by section 5 of the Constitution Act 1902 (NSW) to make laws “for the peace, welfare, and good government of New South Wales". Referring to similar provisions in other constitutions, the High Court said, at pp 9-10:

“Lord Selborne, speaking for the Judicial Committee in R v Burah (1878) 3 App Cas 889, said that the Indian legislature ‘has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself'. Later, Sir Barnes Peacock in Hodge v The Queen (1883) 9 App Cas 117, speaking for the Judicial Committee, stated that the legislature of Ontario enjoyed by virtue of the British North America Act 1867 (Imp): ‘authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament…’ In Riel v The Queen (1885) 10 App Cas 675, Lord Halsbury LC, delivering the opinion of the Judicial Committee, rejecterd the contention that a statute was invalid if a court concluded that it was not calculated as a matter of fact and policy to secure the peace, order and good government of the territory. His Lordship went on to say that such a power was ‘apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to'. In Chenard & Co v Joachim Arissol [1949] AC 127, Lord Reid, delivering the opinion of the Judicial Committee, cited Riel and the comments of Lord Halsbury LC with evident approval. More recently Viscount Radcliffe, speaking for the Judicial Committee, described a power to make laws for the peace, order and good government of a territory as ‘connot[ing], in British constitutional language, the widest lawmaking powers appropriate to a Sovereign': Ibralebbe v The Queen [1964] AC 900.

These decisions and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words ‘for the peace, order and good government’ are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative ower by the Parliament of New South Wales is not susceptible to judicial review on that score.”

This authoritative statement of the position in Australia must be preferred to the opinion of Street CJ in Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372, 383 which was the one that Sedley LJ found the most illuminating: [2008] QB 365, 400-401, para 53.

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