By 3 (Hoffmann, Rodger and Carswell) - 2 (Bingham and Mance) the Court of Appeal is reversed, the right to return to Diego Garcia and the otherislands was legally removed by the prerogative law making through order incouncil. Moreover at Hoffmann expressly says that the original 2001 judgment was wrong - and by consequence there was never anything illegal about their removal from Diego Garcia.

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

Geoff McLay


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