The case is in my opinion bigger than Ben Hur, all be it without the redemption that one might have hoped for, or would have been given by the mini, powerful and stinging dissent by Bingham (is it me, but when he isquick and short - he is very good; when he gets long winded he isn't?) that there had never been a prerogative that allowed the exiling of subjects.
The majority is led by Hoffmann - he holds probably rightly that the ordercan not be invalidated as not being in accordance with good governance. More interestingly he argues that this was a decision of the Imperial Crownnot the local one, and hence never subject to legislative restraint. Mancedoes as good a job in trying to defeat this as one can, but I think that thehistory is right - the point of the Colonial Laws Validity Act was to give competency not to restrict it. More jurisprudentially and not dealt with bythe lords is why the history matters - what place ought modern constitutionalism have in interpreting and 1865 statute? Is there a problem with original intent when we interpret our own constitution? On the power tolegislated in conquered territory (the islands were part of the 1815 settlement) there is a lot of stuff about what Lord Mansfield would havedone - he appears, in his dotage, to be supporting both sides.
There is another attempt by Rodger to say that one can judicially review the Crown - any rule to contrary is just an English one!
All agree that prerogative law making can be reviewed - the strongest statement I have ever seen. But the majority backtracks on the grounds that the representation made that the Ilois could return was not absolute and had to be understood as part of a process considering whether that was feasible. There is some really important stuff about the place of legitimate expectations and when they can be displaced (my pick on the case was thiswas the stronger ground of the Ilois.)
Hoffmann actually refers to the useof Diego Garcia for rendition and for possible torture - he says that if true this would not have been within the power of the government to authorise.
On a lighter note, the majority drips with sympathy, but this confirms my supposition that UK judges are most dangerous when you have their sympathy.Carswell in the end finds his guidance in the book of common prayer!
For what it is worth I explained the facts to Thomas when he interrupted me (in a non - biased way that explained the complexity of the case - I did have to resort to Robin Hood to explain about Magna Carta!) - he thought people should be allowed to go home (he also thought that airports are not for war - in this I hope he is right!)
There really is something here for everyone! It is perhaps the most important colonial law judgment ever - very English that it comes when thereis almost no empire.
LINKS:
http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-1..htm
Let me explain.
The term of members of Parliament is set out in section 54 of the Electoral Act 1993:
54 Term of office of member of Parliament
(1) Where an election is held for any electoral district, the person whose name is endorsed on the writ issued for the election as the person declared to be elected shall, subject to this Act,—
(a) come into office as the member of Parliament for that electoral district on the day after the day of the return of that writ; and(b) vacate that office at the close of polling day at the next general election.
(2) Where any person whose name is entered on a party list submitted pursuant to section 127, is declared by the Chief Electoral Officer to be elected as a member of Parliament, the person shall, subject to this Act,
(a) come into office on the date after the date of the return made by the Chief Electoral Officer pursuant to section 193; and
(b) vacate that office at the close of polling day at the next general election.
MPs reign until the close of polling. But new electorate MPs don't come into office until the day after the writ (the formal advice to Parliament of the outcome of the election by the Chief Electoral Officer) is returned under section 285 of the Electoral Act 1993. That's not scheduled to take place until 27 November (Chief Electoral Officer: "Election date announcement puts Chief Electoral Office in top gear"). And new list MPs don't come into office until the following day, after the Chief Electoral Officer has declared those elected pursuant to the list.
The other consequence of the quirk is that our constitution needs to provide for the temporary tenure of ministers who are not MPs. The most basic feature of our system is that one needs to be an MP in order to be a minister. (In principle, it's not entirely incontrovertible, as some have suggested we could allow non-MP appointments of ministers. But that would require a constitutional change.) The MP-lacuna during the electoral transition period would ordinarily undermine that feature. But the answer - and smooth constitutional transition - is found in section 6(2) of the Constitution Act 1986:
6 Ministers of Crown to be members of Parliament
(1) A person may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown only if that person is a member of Parliament.
(2) Notwithstanding subsection (1) of this section,—
(a) A person who is not a member of Parliament may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown if that person was a candidate for election at the general election of members of the House of Representatives held immediately preceding that person's appointment as a member of the Executive Council or as a Minister of the Crown but shall vacate office at the expiration of the period of 40 days beginning with the date of the appointment unless, within that period, that person becomes a member of Parliament; and
(b) Where a person who holds office both as a member of Parliament and as a member of the Executive Council or as a Minister of the Crown ceases to be a member of Parliament, that person may continue to hold office as a member of the Executive Council or as a Minister of the Crown until the expiration of the 28th day after the day on which that person ceases to be a member of Parliament.
Existing ministers can continue as ministers for 28 days after election day. People can be appointed ministers and continue to hold tenure for up to 40 days, if they were a candidate in the election but have not yet formally come into office.
In previous government transitions under MMP, the determination of Prime Minister and new ministerial positions was settled after MPs came into office. However, with the rush to get John Key to APEC, these arrangements are being expedited and he will be appointed before then - perhaps even on the weekend. In a formal sense, that means he will be representing New Zealand as the most senior member of our Executive, but not yet as a member of our Parliament!
Dean KnightLecturer