University of Worcester Worcester Research and Publications
 
  USER PANEL:
  ABOUT THE COLLECTION:
  CONTACT DETAILS:

An Imperfect Legacy: The Significance of the Bancoult Litigation on the Development of Domestic Constitutional Jurisprudence

Monaghan, Chris (2018) An Imperfect Legacy: The Significance of the Bancoult Litigation on the Development of Domestic Constitutional Jurisprudence. In: Fifty Years of the British Indian Ocean Territory: Legal Perspectives. The World of Small States (4). Springer International Publishing, Cham, Switzerland, pp. 111-145. ISBN Hardback: 978-3-319-78540-0 Online: 978-3-319-78541-7

Full text not available from this repository. (Request a copy)

Abstract

This essay will explore the constitutional significance of the decisions in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Office (No. 1) 2001 Q.B. 1067, R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) 2008 UKHL 61, R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) 2016 UKSC 35 and R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 3) 2014 EWCA Civ 708. The imperfect legacy of the Bancoult litigation deserves a special place within the constitutional jurisprudence of the United Kingdom. At the very core of the decisions in Bancoult (No. 1) and Bancoult (No. 2) was the relationship between the common law and the prerogative, a relationship which, as this essay will argue, ought to have imposed limitations upon the Crown. It will be argued that the decision of the House of Lords in Bancoult (No. 2) demonstrates how a failure of the common law's role to `admeasure' the prerogative amounts to `bad law', especially where, as was in the case of colonial legislation in Bancoult (No. 2), there is arguably ineffective parliamentary oversight. Furthermore, the Bancoult litigation raises issues of the normative purpose of accountability of the prerogative and the competing interests of constitutionalism, national interest and public opinion. In terms as to whether the decision to remove the right of abode could be reviewed by the courts, the national interest of the United Kingdom was an important consideration. The Bancoult litigation highlights the uneasy legacy of colonialism, namely, the treatment of British colonial subjects, the attempts to deny or fetter the rights of these subjects to return home or to engage in economic enterprise, and the limitations on seeking redress before the domestic courts and at the European Court of Human Rights (see Bancoult (No. 2), Bancoult (No. 3) and Chagos Islanders v United Kingdom (Admissibility) (2013) 56 E.H.R.R. SE15).

Item Type: Book Section
Additional Information:

A copy of this title is held at the Hive. External users should check availability with their local library or Interlibrary Requests Service.

Uncontrolled Keywords: constitutional law, human rights, post-colonialism, British government, British Indian Ocean Territory, Chagos Islands, legal issues, Bancoult litigation, International law
Subjects: K Law > K Law (General)
K Law > KD England and Wales
Divisions: Academic Departments > Institute of Humanities and Creative Arts
Related URLs:
Depositing User: Chris Monaghan
Date Deposited: 03 Feb 2019 17:05
Last Modified: 03 Feb 2019 17:05
URI: https://eprints.worc.ac.uk/id/eprint/7395

Actions (login required)

View Item View Item
 
     
Worcester Research and Publications is powered by EPrints 3 which is developed by the School of Electronics and Computer Science at the University of Southampton. More information and software credits.