Order in Council - Controversial Uses - United Kingdom

United Kingdom

Orders in Council were controversially used in 2004 to overturn a court ruling in the United Kingdom which held that the exile of the Chagossians from the British Indian Ocean Territory (BIOT) was unlawful. However, the High Court, in 2006, held that these Orders in Council were unlawful, saying "The suggestion that a minister can, through the means of an order in council, exile a whole population from a British Overseas Territory and claim that he is doing so for the 'peace, order and good government' of the territory is to us repugnant." The UK government's appeal failed, with the Court of Appeal holding that the decision had been unlawfully taken by a government minister "acting without any constraint". However the government successfully appealed to the Appellate Committee of the House of Lords who overturned the High Court and Court of Appeal decisions. The House of Lords decided that the validity of an order in council made under the prerogative legislating for a colony was amenable to judicial review (see paragraph 35 of the decision). Further that it was not for the courts to substitute their judgement for that of the Secretary of State as to what was conducive to the peace, order and good government of BIOT. Nor were the orders Wednesbury unreasonable on the facts given the considerations of security and cost of resettlement. Further, none of the orders were open to challenge in the British courts on the ground of repugnancy to any fundamental principle relating to the rights of abode of the Chagossians in the Chagos Islands.

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