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Prerogative Orders in Council are anachronistic because in substance they are executive legislation made without parliamentary approval or scrutiny. The existence and extent of the prerogative to legislate by Order in Council is therefore a matter of great constitutional importance. The question for the House of Lords in R. (Bancoult) v. Foreign Secretary (No. 2) [2008] UKHL 61; [2008] 3 W.L.R. 955, was whether a prerogative Order in Council exiling an entire indigenous population was valid.
In 1965 the Chagos Islands in the Indian Ocean were constituted a separate colony - the British Indian Ocean Territory ("BIOT"). To enable Diego Garcia, the principal island in the archipelago, to become an American military base an Immigration Ordinance was made in 1971 to remove all inhabitants of BIOT compulsorily. The 1971 Ordinance was quashed by the Divisional Court in 2000 because the Commissioner of BIOT's power to make laws for the "peace, order and good government" of the territory did not permit him to expel the entire population: R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2001] Q.B. 1067, noted [2001] C.L.J. 234. The then Foreign Secretary, Robin Cook, issued a press statement accepting the Divisional Court's ruling, announcing that a study was being undertaken into the feasibility of resettlement and stating that a new Immigration Ordinance would be made permitting the Chagossians to return to the outer islands. The Immigration Ordinance 2000 permitted the islanders' return, but then in 2002 the feasibility study reported that short-term resettlement was feasible on a subsistence basis, although long-term resettlement would be "precarious and costly". In 2004 the British Indian Ocean Territory (Constitution) Order ("the Constitution Order") was made by prerogative Order in Council, section 9 of which removed the Chagossians' right of abode in BIOT.
The claimant contended that the right of abode was so fundamental that the Crown could not remove it by prerogative Order in Council. Only an Act of Parliament could do so. This was because the right of abode was a constitutional right as recognised in the 29th Chapter of Magna Carta, and secondly because the powers of...