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

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).