Voss @Juss_Professor on the Royal Prerogative in Colonial Constitutional Law

Satvinder Juss, King's College London; Dickson Poon School of Law; A. Dickson Poon Transnational Law Institute, is publishing The Royal Prerogative in Colonial Constitutional Law as Chapter 11 of Landmark Cases in Public Law (Juss and Sunkin, eds., Hart-Bloomsbury, 2017). Here is the abstract.

The Chagos Islanders Case will be remembered for its abandonment of the common law’s affirmation of a Subject’s right to be free from exile, when more than a decade ago the British Government in the exercise of its imperial powers decided upon the permanent exclusion of an entire population from its homeland for reasons unconnected with their collective well-being. Paradoxically, freedom from exile is a right guaranteed in the folklore of the UK, as demonstrated only too vividly in the celebrations of the 800th Anniversary of Magna Carta in 2015. A judgment given by Laws LJ in the Divisional Court in 2000 when the matter first arose in challenge brought by Louis Oliver Bancoult, a Chagos Islander, against the actions of the British Goverment, and subsequently affirmed most resoundingly by Sedley LJ in the Court of Appeal in 2007, had upheld this historic right. They had held that government objectives could not lawfully be accomplished by the use of prerogative powers. The Crown has to exercise governance over the Colonies as a Crown function. The interests of these territories are not coterminous with interests of the UK state and its allies. The governance of each colonial territory is in constitutional principle a discrete function of the Crown. However, in 2008 the House of Lords (as it then was) overturned these decisions, only to revisit the question again in judgment delivered in 2016, thus demonstrating the particularly protracted and vexatious nature of the issues which the Government had sought to determine through the ill-judged mechanism of the Royal Prerogative. The Bancoult saga is the longest Supreme court case ever heard. The 2008 decision was not its last. In 2016 the Supreme Court gave a split decision, but which nonetheless still fully acknowledged that its earlier 2008 decision had moved the law forward and that, in the words of Lord Mance giving the majority decision (and who had also given judgment in 2008), the exercise of prerogative powers were “susceptible to judicial review on ordinary principles of legality, rationality and procedural impropriety.” Yet, the plight of the Chagos Islanders remained unchanged in 2008 as it did in 2016 – such that further legal challenges remain likely. The story is not yet over and this analysis is an attempt to locate the Bancoult litigation in its proper political context and to suggest that the House of Lords in 2008 could – and indeed should – have a taken a different decision for reasons connected entirely to the fact that the Government was using prerogative powers in the context of colonial governance.This has serious implications both for the future use of the Prerogative and for Public Law in general.

Download the chapter from SSRN at the link.