“. . . it cannot be open to the courts to substitute their judgment for that of the Secretary of State advising Her Majesty as to what can properly be said to conduce to the peace, order and good government of BIOT. This is simply because such questions are not justiciable”. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL. Discuss.


  • The legislation made for the colonies is in the same position as legislation made by Parliament for the United Kingdom.
  • The sanction for inappropriate use of the legislative power is political, not judicial. Orders in council are made without the concurrence of Parliament or of any other representative legislature and so the political control will be less. The appropriate remedy is for Parliament, not the courts, to get involved in scrutinising the substance of such orders in council.
  • In jurisprudential terms, its effect is essentially to place the government on an equal footing with Parliament; to suggest, in effect, that there are two sovereign law-makers.
  • Lord Rodger’s position is that the courts are not the only means to regulate the government’s use of prerogative or statutory powers.

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