• In the case of R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult No 2 [2008] UKHL 61 (Justiciability of Prerogative Legislation), it was found that Council orders which were made using prerogative power can attract judicial review.
  • The House of Lords found the order that was made in this case to be invalid.

Facts of the Case

  • A series of Orders were made by the Council using prerogative powers.
  • Cs challenged the Orders; the orders prevented Cs from returning to Chagos Island where they resided.
  • These Orders were subject to judicial review; D, the government, asserted that the Orders in Council mirrored secondary legislation and, as such, do not need to be subject to judicial review.
  • D also argued that the Orders could not be subject to judicial review given that it was made under a prerogative order which forms part of primary legislation.

Issues

  • Were the Orders made valid under prerogative power?
  • Could the Orders be subject to judicial review?

Held by the House of Lords

  • The House of Lords dismissed the appeal on a 3:2 majority; it was held that those in executive positions couldn’t be immune to judicial review, but the Orders made were not deemed as an abuse of power.

Lord Hoffman

  • It was confirmed that prerogative powers can be susceptible to judicial review; this cleared the previous assumption that prerogative powers were “immune from judicial review.”
  • “It is true that a prerogative Order in Council is primary legislation in the sense that the legislative power of the Crown is original and not subordinate. It is classified as primary legislation for the purposes of the Human Rights Act 1998… But the fact that such Orders in Council in certain important respects resemble Acts of Parliament does not mean that they share all their characteristics. The principle of the sovereignty of Parliament, as it has been developed by the courts over the past 350 years, is founded upon the unique authority Parliament derives from its representative character… An exercise of the prerogative lacks this quality; although it may be legislative in character, it is still an exercise of power by the executive alone.” [34-35]

Lord Bingham of Cornhill

  • His lordship emphasised the court’s authority to assess the existence of prerogative powers as well as the scope of its existence.
  • “Section 9 was given effect in exercise (or purported exercise) of the royal prerogative to legislated by order in council. The royal prerogative, according to Dicey’s famous definition (An Introduction to the Study of Law of the Constitution (8th ed, 1915, p420)), is “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.” It is for the courts to inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent.” [69]

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