Professor Satvinder S. Juss, Phd (Cantab), FRSA*

Source: Economic and Political Weekly

This article examines the forced displacement of the Chagossian people through the lens of coercive colonial legalism. It focuses on how the British government employed the “peace, order and good government” (POGG) clause to justify the removal, masking racialized governance under a veneer of legality. The Bancoult litigation initially offered hope for justice, but the courts ultimately upheld colonial prerogatives, influenced by outdated legal doctrines like the Colonial Laws Validity Act 1865. The judicial endorsement of exile, despite acknowledging fundamental rights, reveals a deep entanglement between imperial interests and racial discrimination. The article critiques how British courts prioritized imperial utility over the rights and dignity of the Chagossian people. It argues that the Chagos case reflects a broader failure to confront colonial legacies in modern constitutional law, exposing how racial and imperial logics continue to shape the boundaries of legal authority and human rights.

Few public lawyers today are aware of the extent to which British colonial governance was undertaken on the basis of a clause found “in the constitutions of many Commonwealth countries,” of “peace, order and good government” (‘POGG’).  Yet, although it has “played a significant role in colonial and post-colonial constitutionalism in Commonwealth jurisdictions,” nevertheless as Yusuf has explained “the peace, order and good government clause remains a relatively under-theorised and under-researched theme.” This is problematic because, although POGG “in itself is a lofty ideal” as it “implicitly justifies the colonial rule as benign and enlightened,” in truth it conveniently overlooks how, “the interests of the imperial power can outweigh the needs of the colony’s inhabitants,” who are racialised as the non-white subjects of the Crown. Public law has so far taken insufficient account of this.  Yet, the racialisation of the governed class is an unmistakable feature of  colonial governance. Bancoult is a case in point.

(A) The Chagos Archipelago

Louis Oliver Bancoult was a three-year old in 1967 when he travelled with his Ilois parents, from the Island of Peros Banhos in Chagos Archipelago, to Mauritius.  The trip was made necessary to the mainland because of the medical treatment needed for his infant sister. A cartwheel had run over her leg injuring her badly. He was never to return. This was not for want of trying. The British authorities had rapidly begun to systematically remove the inhabitants of the Chagos Archipelago: first, in 1971 from Diego Garcia; then from Salomon Island in 1972; and finally from Peros Banhos in 1972.[1]  Back in London, a small band MPs – Tam Dalyell, Eric Avebury and Jeremy Corbyn – began raising concerns. However, “[t]he international community remained largely oblivious until 1999” of what was afoot, in the words of a former British Ambassdor to Mauritius, David Snoxell. This was the year when Louis Oliver Bancoult, now aged 36, decided to sue the UK government for the removal of his people from their homeland and denying them their right to return.

The background to how this happened shows racialised governance to be a salient feature. In 1965, the British Government, during the Constitutional Conference on Mauritian independence at the Lancaster House, made it clear that they were going to detach the Chagos Archipelago from mainland Mauritius. Yet, in true colonial style, “[t]here had been no debate in the House of Commons, no serious debate within government departments, and certainly no enquiry as to the welfare and needs, let alone the status, of the population,” who were the native Ilois people. Mauritius had no choice “but to give their consent to the course of action proposed by the UK Government given the threat that Chagos Islands would be unilaterally excised from the colony of Mauritius, if they resisted,” as Allen has explained. Thus was the British Indian Overseas Territories (BIOT) created. As a colonial administrative entity of 55 islands it stood removed at 1,200 miles from Mauritius. Ironically, its creation was “[t]he result of an intentional act at the height of the decolonisation movement,” as Wesley notes, and yet one which was to have “lasting repercussions for these former residents.”[2]  It was the first British Colony created since World War I, although it was not  without a clear purpose because within two years Britain had made an agreement with the USA granting it a 50-year renewable lease for the island of Diego Garcia. Here, away from prying eyes, the US could instal a strategically located military facility at the height of the cold war. What many in Britain overlooked, as Wesley observes, and cared for even less, was a sinister accompanying “agreement to ‘covertly transfer’ the population of the BIOT islands, prior to the USA taking possession of the territory”. Thus it was that, between 1965 and 1973 the non-white Chagossians were displaced to Mauritius[3] and their island population sent into exile. Two-years after the policy of banishment had been introduced Louis Oliver Bancoult arrived in Mauritius.

(B) Clearing the lot

 The removal of an entire subject people from their ancestral homelands was a long established colonial practice. Here it was only possible because the colonial government passed the British Indian Ocean Order 1965, as a Statutory Instrument under the Colonial Boundaries Act 1895. This created the Office of the Commissioner of BIOT, with an authority to ‘make laws for the peace, order and good government of the territory’. The Commissioner of BIOT in turn enacted the Immigration Ordinance 1971 which stipulated that no one without permission would be allowed to enter or remain in the territory of BIOT. Although it has been said that this was to  provide “a legal basis for exiling the whole of the Chagossian population in consultation with the US government,” the truth of the matter is that the policy of population exile was driven, not by the USA, but by the UK. In April 1969 the UK Prime Minister had already given authority for the wholesale removal of the Chaggosian population. The FCO then affected that policy from 1971-73. This is clear from a 1980 letter to the British High Commission in Mauritius stating, “‘I am sure the Americans do not want to get mixed up in this. They look to us to sort it out” but that  “Our agreement with them…. required only Diego Garcia to be empty”, which meant, “they had no objections to the other Chagos Islands remain populated; it was our decision to clear the lot and resettle them in Mauritius.” But as long ago as  1966 a senior Foreign Office diplomat had postulated  that, “[t]he object of the exercise is to get some rocks which will remain ours […] there will be no indigenous population except seagulls.” For good measure, a fellow mandarin, Sir Dennis Greenhill, had curtly replied: “[u]nfortunately, along with the birds go some few Tarzans and Man Fridays whose origins are obscure and who are hopefully being wished on to Mauritius.” This shows up the racism which underpinned the removal. The optics clearly looked bad for the UK government and hence the secrecy. Could the public law courts expose it?

So bad were the optics that David Vine’s book, Island of Shame describes the scheme of population removal as being more reminiscent of the eighteenth or nineteenth century. Indeed, the  population’s  “ethnic cleansing” was facilitated by the creation of a Marine Protected Area (‘MPA’) by H.M. Commissioner for BIOT. As Stanley Burnton LJ explained, “[t]he MPA, if maintained, renders commercial fishing unlawful, and would make it more difficult for the Islanders to sustain themselves if they were to succeed in returning to the Islands,” thus ensuring their ethnic cleansing. A WikiLeaks disclosure in 2010[4] confirmed how racializing the population in order to banish them from their home was not just confined to British mandarins amongst themselves. Colin Roberts, the Director of the FCO (Overseas Territories) had in May 2009 told the US State Department that there would be no ‘Man Fridays’ left on the islands following the establishment of the MPA,[5] which would, “put paid to resettlement claims of … former residents.”[6] Colin Roberts added: “We do not regret the removal of the population,” despite it contravening the UN Convention on the Law of the Sea,[7] in the hope that “as long as our activity was confined to Diego Garcia.”[8]  What did Bancoult make of all this? In an interview, upon his return to the Chagos Islands as part of a Mauritian trip to the archipelago, Bancoult told reporters that ‘he suspected that the treatment of the Chagossians amounted to racism. He added, “[t]he British government says it is in favour of human rights yet they make a difference between the treatment of Falkland Islanders, for example, and Chagossians,” he said “Is it because we are black?”’

(C) The Colonial Mindset

The British courts did exonerate themselves  – quite spectacularly – although only initially. The Divisional Court and the Court of Appeal astutely recognised  the  operation of a colonial mindset behind the scenes. When Bancoult first brought his challenge Laws LJ had held in 2000 in Bancoult (No 1), that the evacuation and deportation of the colony’s civilian population could not be in the interests of peace, order and good government of the territory. The Immigration Ordinance 1971 was therefore ultra vires the BIOT Order of 1965. The Chaggosians could return to the outer islands – although not to Diego Garcia.[9] Then, in 2006 Sedley LJ explained  how “the phrase, ‘peace, order and good government’”is one that“has a long legislative pedigree” but “has become a term of art in the sense that it is regularly used without further explanation to denote the delegation of large but undefined powers to a nominated rule-maker”, even though it was, “a power of the greatest importance carrying commensurate responsibilities” The plenitude of its power meant that, “at its fullest it can bring about the creation of independent states”, but, “it has limits, even if these are self-imposed.” These are, “directed to the wellbeing of a dependent territory and its population” as a way of deciding “what is best for a colony and to affirm that, like every discretion, it is limited by and to its own expressed objects.”

This meant that for the courts, “it is their constitutional function to decide whether what has been enacted (or what it is proposed to enact) is rationally and legally capable of providing for a colony’s wellbeing. If it is not, then it falls outside the prerogative power.” Sedley LJ’s decision echoed what Laws LJ had said in 2000, namely, that  “peace, order and good government may be a very large tapestry, but every tapestry has a border.” Laws LJ had been critical of how “S.4 of the Ordinance effectively exiles the Ilois from the territory where they are belongers and forbids their return. But the ‘peace, order, and good government’ of any territory means nothing, surely, save by reference to the territory’s population. They are to be governed: not removed.” Indeed, “the Queen has an interest in all her subjects….” Sedley LJ too now ruled that the Ordinance, “is ultra vires because it is unconnected with … governance” and so, “it falls to be quashed for irrationality.”

(D) The Colonial Laws Validity Act

The colonial mindset was in fact undergirded by the archaic Colonial Laws Validity Act 1865. It had been passed by the imperial parliament to remove any inconsistency between local (colonial) and British (imperial) legislation. Colonial legislation was said to be effective if, not at variance with, and therefore not ‘repugnant to’, any Act of the imperial Parliament. Colonial legislatures thereby stood  strengthened. The 1865 Act, as Laws LJ explained, “abolished the vague doctrine of repugnancy” and “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.”
However, “the 1865 Act does not preclude the public law irrationality challenge” because in the Bancoult case, “we are not here concerned with repugnancy” since “’the act in question [was] the act of the executive.’ As such it is amenable to judicial review.”

Sedley LJ heartily agreed with Laws LJ because, “those colonial Orders in Council made under statutory powers continued to be open to challenge not only for repugnancy to imperial legislation but, if they exceeded the powers which they purported to be exercising, for invalidity.” This is because, “the modern power of public law to review the use by ministers of the royal prerogative was unrecognised in the nineteenth century” as it was now. In fact, “the amenability of public authorities to the prerogative writs if they transgressed their powers was well established by 1865” since Cooper v Wandsworth Board of Works. In this way, eminent members of the English judiciary, one after the other, were able to square colonial constitutional law with that of the mother country, in a way which has rarely been done before. This up-ended what had been the distinguishing feature of colonial law, namely, that it was inherently different in matters of individual when it came to the use of coercive colonial legalism.[10] In the end, however, these exalted efforts were thwarted by the House of Lords in 2008. This happened in Bancoult (No 2)  when the Colonial Laws Validity Act 1865 was reconsidered and given a new lease of life.

(E) Whither the Rule of Law ?

            In the House of Lords, the UK Government argued  that BIOT is a colony with a legislature, namely, the Commissioner, and that the Constitution Order is a law made for the Colony by Order in Council and therefore a ‘colonial law’, which meant it could not be void or inoperative by reason of its repugnancy to English common law doctrines of judicial review. Lord Hoffmann agreed. His Lordship had regard to a paper for the Oxford Law Faculty by Professor Finnis and went onto  agree with Finnis that, “a distinction between initial invalidity for lack of compliance with doctrines of English public law and invalidity for repugnancy to English law is too fine to be serviceable.” It is difficult to understand why, as Sedley LJ had been at pains to point out, but Finnis argued this was because “imperial legislation [is] made by Her Majesty in Council in the interests of the undivided realm of the United Kingdom and its non-self-governing territories.” Was this because of a racial difference between the governors and the governed? Finnis did not engage with race in any meaningful way.[11] Yet, he accepted that, “the judicial protection of rights and the rule of law are indispensable elements of the common good” but if so it is difficult to understand why “overriding and sufficient reasons” can exist for some legislative act which “can involve a loss of perspective inimical to the common good of a realm so large and complex as the empire was and even the United Kingdom with its dependent territories….”. It is not entirely clear why this should be so  when neither Laws LJ nor Sedley LJ had thought it to be so. In Bancoult I the courts after all  did not find size and complexity to be at all relevant to their essential judicial function.

In fact, race was the pre-eminent feature of the two cases relied upon by Finnis. These were the Jamaican case of Phillips v Eyre and the Privy Council decision in Liyange.[12]  If the proposition was that the colonial legislature may make laws “which are repugnant….to any principles or rules of natural justice,” it is difficult to see how this is realistic today.[13] It can hardly justify the banishment of a people from their homeland on grounds that they are ‘Man Fridays’. Nothing unites the forced exile of the Chagossians with these two cases other than that they were racialised as the ‘other.’ In the first case, Governor Eyre successfully resisted a claim for compensation from the residents of Jamaica for injuries caused during a rebellion. He was being sued for assault and false imprisonment after he declared martial law in order to mercilessly supress a revolt on the island. His defence relied heavily on an Act of Indemnity, passed  first by the Island’s legislature and then been assented to by the Crown in England, under which he, his officers, and all others acting under his authority to suppress the rebellion, were indemnified for all acts done by them. In consequence, all acts thereby done were rendered lawful. A colonial legislature, Cockburn CJ held, could remove a right of action against the Governor in England. In the second case, Liyange involved the leaders of a failed coup to be prosecuted before three judges directed by a Minister without a jury[14] when charged on grounds, ‘that they conspired to wage war against the Queen’, and did so ‘by means of criminal force’ such as to ‘overthrow otherwise than by lawful means the Government of Ceylon by law established’.[15] The Privy Council held that there was no power to review this decision because of the separation of powers principle central to the colonial Constitution of Ceylon. These two cases from Jamaica and Ceylon are only united with the plight of Chaggosians in that they stand as being racialised as non-white people subject to the Crown in England. Otherwise they are different. Neither Phillips v Eyre nor Liyange concerned themselves with a people living peacefully being exiled by the Crown, but were cases rather, of insurrection and revolt raising directly issues of peace, order and good government of the territory.[16]  

(F) Coercive Colonial Legalism

Unsurprisingly, given in the circumstances the reliance on these two cases of dubious legal vaidity, in the House of Lords chaos ensued. Whilst three of the five judges, Lords Hoffman, Bingham and Mance, held that the Crown cannot lawfully abrogate a British subject’s constitutional rights without parliamentary consent, there were stark divisions between them. Whereas Lords Bingham and Mance held there was a constitutional right of abode Lord Hoffmann did not so agree. Of the remaining two judges, Lord Carswell found no  ‘fundamental principles’ involved and yet referred to there ‘being an inalienable constitutional right’ here, which has been described as a ‘senseless’ proposition.[17] On the other hand, for Lord Rodger it was ‘certainly arguable that there was a ‘fundamental principle’ of English law that no citizen should be exiled or banished from a British colony,’  only to then hold  that in a colonial territory the rights of British subjects are always subject to abrogation by the Crown. Down the slippery slope Lord Rodger went. Even torture was permissible by virtue of an Order in Council in a colony as the ‘law of the land’, because the prohibition in Magna Carta of banishment only held so long as it was not in accordance with the law of the land. But then when Sydney Kentridge on Bancoult’s behalf submitted that, ‘Her Majesty had no power to legislate by Order in Council “contrary to fundamental principles” of English common law’,[18] and that ‘the right of a “belonger” not to be excluded from the territory to which he belonged was just such a fundamental principle’ by relying on ‘Chapter 29 of Magna Carta’, Lord Rodger replied, ‘I accept that both of these point to the existence of such a principle’.

Yet, there was the existence of a plenary law-making power  as Lords Hoffmann, Rodger and Carswell maintained, in the historical use of the prerogative power to promote ‘peace, order and good government’,  in the ceded territories.[19]  This is where the influence of Professor Finnis on the apex court became so evident. Astonishingly, and contrary to all that had been said by Laws LJ and Sedley LJ previously, it was held that the 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 territory’. Lord Rodger even suggested that the exercise of power here ‘is equal in scope to the legislative power of Parliament,’ which is questionable given that the power exercised has to be specifically for purposes of ‘peace, order and good government’. It can surely not be used to wage war, to create disorder, or to banish into exile the entire population of the Island. 

What was conveniently overlooked was that whilst prerogative orders enacted under original authority, as distinct from conferred authority, can be treated as primary legislation,  Orders in Council are a form of secondary legislation,  and yet prerogative legislation still remains different from primary legislation. First, full parliamentary scrutiny is applied to Acts of Parliament, but this is absent in cases of prerogative legislation which deprives it of the seal of democratic approval, which surely means that it is constitutional heresy to immunize prerogative legislation from judicial review. It cannot be accorded  the same “due deference” given to primary legislation. The Crown in Council presides  over prerogative legislation, as it did in the case of the Chagos Islanders,  rather than the Crown in Parliament, and so the doctrine of parliamentary supremacy cannot jettison judicial supervision completely. Second, the powers of the Crown in Council are not limitless and constitutional principle has long been clear about this.[20]  It is only because such powers are subject to constitutional constraint that judicial review of prerogative legislation operates. It is all the more remarkable then that Lords Carswell and Rodger conceived the prerogative power of colonial governance in absolute terms. 

Was Louis Bancoult right after all when he mused rhetorically “Is it because we are black?”’ Yet, Lord Rodger’s categorization was that the, “prerogative legislation made for this colony is in the same position as legislation made by Parliament for this country,”[21] quite overlooking the fact that the chief attribute of subordinate legislation is that it has limited purposes. Indeed,  it is trite that even the exercise of statutory powers cannot be purposeless and so neither can the exercise of prerogative powers. Such has been the spread of the supervisory functions of the courts that it has been recognised that the doctrine of the Separation of Powers means that an issue is beyond the constitutional competence of the courts if, for example, it involves certain transactions of foreign states. Any exercise of  power is subject to the proper purposes doctrine.  This is precisely why Laws LJ conceived the power accurately when declaring in Bancoult (No. 1) that even if this is a very large tapestry it still has a border.

(G) A different view ?

In 2016 the Supreme Court revisited the plight of the Chagossian Islanders again but with the benefit this time of a “2014-2015 feasibility study” that considered “the possibility of resettlement on Diego Garcia.” This was a “new factor” because it “concludes that there would be scope for supported resettlement.” In the words of Lord Clarke “the background has now shifted and logically the constitutional ban needs to be revisited.” This view was  shared by Lord Mance. The question, however, is whether a different view was possible back in 2008.

Lord Kerr was unequivocal that, “a decision to remove the Chagossians from their homeland with little or no provision for their future would indeed be a profoundly intrusive measure and one for which compelling justification would be required.”  He was clear that “[t]he fact that their removal, when it in fact occurred, was unreasonable cannot, …. be left out of account in assessing whether the subsequent decision to perpetuate the Chagossians’ exile was rational.”

Lady Hale referred to the elementary principles at play, namely, that “Courts have … to do justice according to law” and that “the decision to exile a people has to be taken in accordance with the law; and the people to whom it is of such momentous importance are entitled to expect the highest standards of decision-making and the most scrupulous standards of fairness from the institutions of imperial government.”  The latest  “2014-2015 feasibility study” was not necessarily a new factor because there had also been a feasibility study in 2002, relied upon by the government  but which, “showed that the government had made it plain to the consultants what it wanted the conclusions to be” when it was clear that “the islands were not in a cyclone belt.” In a rare judicial statement, highlighting the central role played by judicial personalities in hard cases, Lady Hale added that, “[t]he question whether this might have made a difference has to be answered objectively rather than by reference to the particular judges who were then sitting on the case.” But there was more to it then just this. The racial element that undergirded this exercise of coercive colonial legalism could not go unaddressed. A year earlier in 2015 Frost and Murray had written an article referring to the irresolvable competing forces of ‘liberal imperialism’ and ‘utilitarian imperialism’. Back in 2008, as Lady Hale now observed, “Lord Hoffmann acknowledged that a choice between the liberal and utilitarian faces of imperialism did rest with the court, and decisively affirmed the utilitarian importance of the imperial interests at stake …” Frost and Murray had questioned whether this ‘utilitarian’ view of imperialism, about “how best to appropriate colonial possessions for the benefit of the imperial power” could realistically prevail over the ‘liberal’ view of imperialism,  about “the civilising nature of empire and focuses on the good governance of colonies.”  They had argued that “the imperial common good is riven by competing theoretical justifications for empire: one, based in liberal imperialism, emphasises the civilising nature of empire and focuses on the good governance of colonies; the other, based in a utilitarian imperialism, instead focuses on how best to appropriate colonial possessions for the benefit of the imperial power.”

Lady Hale now ruefully remarked how, ‘[t]hus far, it is the latter which has not only driven the actions of government but has also triumphed in the courts’. It is remarkable that the House of Lords in 2008 could have agreed with the opinion of Finnis that the CVLA had the effect of ‘liberating the makers of colonial laws – immunizing their laws- from judicial scrutiny’ and that this was true even in relation to allowing slavery, polygamy, prohibition of Christianity, authorization of punishment without trial, and the uncontrolled destruction of indigenous peoples. The colonial cases of revolt and rebellion that Finnis relied upon of Phillips v Eyre of Liyange were misconceived in their application here. They do nothing to shed light on a democratic government’s duties in how to legislate in the interests of a colonised and racialised community of subjects of the Crown who look to it for protection – and they do nothing to explain how the legislative power of  ‘peace, order, and good government’ should be exercised in the twenty-first century long after the era of decolonization has arrived.

[1] Laws LJ at para 6 in 2000

[2] Marc Shucksmith-Wesley, reviewing Stephen Allen’s The Chagos Islanders and International Law (Hart,2014) in the Journal of Conflict and Security Law, (Volume 23, Issue 2, Summer 2018, Pages 315–320) at p.315 (Available at  https://doi.org/10.1093/jcsl/kry013

[3] Ibid.  

[4]Reliance upon this information was rejected by the High Court in Bancoult, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] EWHC 1502 (Admin) (11 June 2013) .  Available at  http://www.bailii.org/ew/cases/EWHC/Admin/2013/1502.html.  But the High Court made a preliminary ruling that the Wikileaks’ document was inadmissible as a copy of an authentic US Embassy cable under the Vienna Convention on Diplomatic Relations 1961. (see statement by Junior Government Counsel, Penelope Nevill at http://www.20essexst.com/case/r-appn-bancoult-v-ss-foreign-commonwealth-affairs )

[5]   The Cable was disclosed in The Guardian:  see, “US embassy cables: Foreign Office does not regret evicting Chagos islanders” The Guardian, 2nd December 2010.  Available at http://www.theguardian.com/world/us-embassy-cables-documents/207149 .  This is as follows:

‘7. (C/NF) Roberts acknowledged that “we need to find a way to get through the various Chagossian lobbies.” He admitted that HMG is “under pressure” from the Chagossians and their advocates to permit resettlement of the “outer islands” of the BIOT. He noted, without providing details, that “there are proposals (for a marine park) that could provide the Chagossians warden jobs” within the BIOT. However, Roberts stated that, according to the HGM,s 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. Responding to Polcouns’ observation that the advocates of Chagossian resettlement continue to vigorously press their case, Roberts opined that the UK’s “environmental lobby is far more powerful than the Chagossians’ advocates.”

[6] Friday, 15 May 2009, 07:00, C O N F I D E N T I A L LONDON 001156, NOFORN SIPDIS

EO 12958 DECL: 05/13/2029, TAGS MARR, MOPS, SENV, UK, IO, MP, EFIS, EWWT, PGOV, PREL , SUBJECT: HMG FLOATS PROPOSAL FOR MARINE RESERVE COVERING

THE CHAGOS ARCHIPELAGO (BRITISH INDIAN OCEAN TERRITORY)

REF: 08 LONDON 2667 (NOTAL). Classified By: Political Counsellor Richard Mills for reasons 1.4 b and d1. (C/NF) Summary. The official insisted that the establishment of a marine park — the world’s largest — would in no way impinge on USG use of the BIOT, including Diego Garcia, for military purposes. He agreed that the UK and U.S. should carefully negotiate the details of the marine reserve to assure that U.S. interests were safeguarded and the strategic value of BIOT was upheld. He said that the BIOT’s former inhabitants would find it difficult, if not impossible, to pursue their claim for resettlement on the islands if the entire Chagos Archipelago were a marine reserve. End Summary.

[7]See, In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. UK) .  Available at https://pca-cpa.org/en/home/  .  But also see, http://www.ejiltalk.org/mauritius-v-uk-chagos-marine-protected-area-unlawful/

[8] Folio 1. Secret Minute dated 10^th December 1968 from Heathcote –Smith (Temporary Grade 4 Officer in Pacific  and Indian Ocean Department (PIOD) doing research on BIOT establishment) to TCD Jerrom, PIOD, entitled BIOT: Reversion of Islands. (see, the List the  List of papers and other publications relating to the Chagos Archipelago and the Chagossians.” (Updated April 2015)

[9] For anyone who was a British Dependent Territories Citizen the Immigration Ordinance 2000 removed, except in the case of Diego Garcia, the entry and residence restrictions if he/she had a connection with BIOT.

[10] Sedley LJ also held that the 1865 Act could not have taken account of the fact that, “the kind of challenge mounted in this case cannot therefore have been in the mind of either the draftsman or the legislature when the 1865 Act was written and passed.”  But today the “question … has been conclusively answered by the CCSU case” in a way that is “in favour of the amenability of the royal prerogative, where the subject matter is appropriate, to judicial review.” (at para 24)

[11] J. Finnis in Halsbury’s Statutes (4^th edn 1973) vol VI, para 1074 and fn 29;

[12] Liyange v R [1967] 1 AC 259 PC (Cey) See also fn 15 of Elliott & Perreau-Saussine

[13] The suggestion that the CVLA can realistically be ‘interpreted as conferring unlimited powers of colonial despotism on the Crown’ has been dismissed as being wholly untenable because it ‘confuses history with adjudication.’ See, Elliott & Perreau-Saussine at p 701-702

[14] As Pearce explained, ‘Under Section 440A of the Criminal Procedure Code the Minister of Justice could direct that the defendant be tried by three judges without a jury….’. and that this applied  “not only to sedition but to any other offence under Part VI of the Penal Code…”  

[15] Pearce in his opening remarks in Liyange.

[16] For Elliott & Perreau-Saussine , ‘Liyange is best interpreted as reiterating that the CVLA limits the sources of law for colonial review of colonial legislation to those (including Imperial legislation) that form part of the colonial constitution….’ See, Elliott & Perreau-Saussine at p 703

[17] As M. Elliott & A. Perreau-Saussine observe ‘that is senseless if there exists no such things.’ See, M. Elliott & A. Perreau-Saussine, ‘Pyrrhic Public Law: Bancoult and the sources, status and content of common law limitations on prerogative power’, Public Law, (October, 2009), pp 697-722, at p 706

[18] In this he relied on the words of Lord Mansfield in Campbell v Hall, 1 Cowp 204, 209.

[19] See, Union Steamship Co. of Australia Pty Ltd. V King (1988) 166 CLR 1 referred to at para 108.

[20] Case of Proclamations (1611) 12 Co. Rep. 74; 77 E.R. 1352.

[21] This is tantamount to what Mark Elliott & Amanda Perreau-Saussine have rightly described as an analysis which “goes a considerable distance towards conferring upon the Crown in Council in de facto terms precisely the sovereign law-making power that lacks in the de jure sense.”  See also, Mark Elliott & Amanda Perreau-Saussine at p. 708 where they draw attention to the fact that all save Lord Hoffman assume that constitutional rights can be alienated by clear parliamentary legislation, by presupposing a traditional view of parliamentary sovereignty, but which is now no longer universally accepted : see Jackson [2006] 1 AC 262, per Lord Steyn at 102, Lord Hope at 104-107 and Baroness Hale at para 159.

* The author is a Master of the Bench of Gray’s Inn and a Professor of Law at King’s College, London.