Abstract

The 2009 House of Lords case Bancoult (No 2) determined the right of the Chagossian community to return to its homeland in the Chagos Islands. The case concerned the judicial review of prerogative legislation, that is, legislation for the colony enacted by Orders of the Queen in Council, i.e. the United Kingdom government. Bancoult, who had been removed from the islands as a child, sought to have the Orders quashed for ultra vires and irrationality. Ultimately, the House of Lords confirmed the application of judicial review to prerogative legislation, but upheld the Orders exiling the population from the islands. The case engaged a body of colonial law which illuminates the nature of the Crown’s sovereign power in colonial governance. This, in turn, provides us with an insight into the nature of sovereign power generally and bears on the debate in British public law between those who advocate a constitution based on customary rights enshrined in the common law, and those who advocate a constitution based on democratic agency and participation as expressed through the will of Parliament. In my presentation, I criticize the judgment of the House of Lords (split 3:2), and suggest that a better analysis based on the fiduciary nature of the Crown’s legislative power. Though the decision is highly technical, it engages some questions of substance in British constitutional theory that might bear on contemporary questions of judicial review and parliamentary sovereignty.