R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61.

Facts:
  • The appellant Secretary of State appealed against a decision that two Orders in Council which had the effect of preventing former inhabitants of the Chagos Islands from returning there were an abuse of power
  • Her Majesty exercised her prerogative to make two Orders in Council which had the effect of preventing the Chagossians form returning to the islands
  • Secretary of State argued that the courts had no power to review the validity of an Order in Council legislating for a colony

Issue:
  • Whether the courts could subject Orders in Council to judicial review
  • Questioned the legality of the 2004 Order

Held:
  • The appeal was allowed
  • Prerogative legislation could be subject to review on ordinary principles of legality, rationality and procedural impropriety
  • The Lords upheld the legality of the Constitutional Order

Comments

Post a Comment

Popular posts from this blog

Madzimbamuto v Lardner-Burke [1969] AC 645

Facts: Crown colony of Southern Rhodesia, which had been self-governing since 1923, declared independence from Britain in 1965 British government considered its UDI to be illegal and refused to recognize the legitimacy of the Rhodesian government Before 1965, Madzimbamuto was detained under section 21 of the Regulations Madzimbamuto's wife challenged the legality of her husband's detention, on the grounds that the prolongation of the state of emergency was unlawful Issue: Whether a convention would be enforceable and have legal position of United Kingdom and Southern Rhodesia Held: The case reached the Privy Council who rejected the Rhodesian Minister for Law and Order's argument that because of the convention, the United Kingdom legislation overriding the Rhodesian detention law was invalid
Read more

Revill v Newbery [1996] QB 567

Facts: C, a burglar, was shot by D as he attempted to gain access to D’s shed. C sued D in negligence and under the 1984 Act. Ratio: CoA rejected D’s attempt to raise the defence of illegality. C was contributorily negligent and his damages decreased by ⅔.
Read more

‘The rise of the judicial use of proportionality has given too much power to judges’. Discuss with reference to relevant cases.

Where people argue that the proportionality test hands too much power to the judiciary in relation to government policies, rather, it hands a schematic tool to the judiciary to ensure that law remains democratic in the broader meaning of the term. How the proportionality test is applied has been significantly nuanced and developed according to context.
Read more