“There is no issue on this appeal about jurisdiction to determine the legality of the decisions of the Committee and the Privy Council. Wyn Williams J held in the Administrative Court, paras 98-102, and the respondents accepted in the Court of Appeal (see Pill LJ at paras 19-21) that to the extent that the Reform Law is in breach of Convention rights, then the appellants are entitled to appropriate relief in these proceedings. That is because the respondents expressly advised Her Majesty the Queen to approve the Reform Law on the ground that it did not involve any breach of the obligations of the United Kingdom under the Convention.”
“that to the extent that the Reform Law breaches Convention rights, then the appellants are entitled to relief in these proceedings. That is because the respondents expressly advised Her Majesty to approve the Reform Law on the ground that it did not involve any breach of the obligations of the United Kingdom under the Convention: R v Secretary of State for the Home Department, Exp Launder[1997] 1 WLR 839 , 867, per Lord Hope of Craighead. Consequently the decision of the Committee for the Affairs of Jersey and Guernsey and the Order in Council are subject to judicial review: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2)[2009] 1 AC 453 , para 35 (Lord Hoffmann) and para 105 (Lord Rodger of Earlsferry).”
“I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action. Mr Crow rightly pointed out that the Council of Civil Service Unions case was not concerned with the validity of a prerogative order but with an executive decision made pursuant to powers conferred by such an order. That is a ground upon which, if your Lordships were inclined to distinguish the case, it would be open to you to do so. But I see no reason for making such a distinction. On21 February 2008 the Foreign Secretary told the House of Commons that, contrary to previous assurances, Diego Garcia had been used as a base for two extraordinary rendition flights in 2002 (Hansard (HC Debates), cols 547-548). There are allegations, which the US authorities have denied, that Diego Garcia or a ship in the waters around it have been used as a prison in which suspects have been tortured. The idea that such conduct on British territory, touching the honour of the United Kingdom, could be legitimated by executive fiat, is not something which I would find acceptable.”
“Therefore, like Lord Hoffmann, I see no reason in principle why, today, prerogative legislation, too, should not be subject to judicial review on ordinary principles of legality, rationality and procedural impropriety. Any challenge of that kind must, of course, be based on a ground that is justiciable.”
“… the prerogative power of the Crown to legislate by order in council on the advice of Her Majesty's ministers in relation to a territory such as BIOT is subject to judicial review. Dicey observed in his Introduction to the Study of the Law of the Constitution (8th ed 1915) that "we may use the term 'prerogative' as equivalent to the discretionary authority of the executive" (p 421) and that "it applies …. also to that large and constantly increasing number of proceedings which, though carried out in the King's name, are in truth wholly the acts of the Ministry" (p 422). Into the latter category fall the making of legislative orders in council such as theBIOT Order 2004 . I see no good reason why they should not be reviewable in the same way as other steps, administrative or legislative, by the executive, and every reason why they should be, on the familiar grounds of legality, rationality and procedural propriety, due weight being of course given to the executive's effective role as primary decision-maker. A recognition that a legislative order in council is invalid by a judgment given in proceedings such as the present directed against the Minister responsible for the making of the order no more involves the making of an impermissible order against the Sovereign than a successful challenge to any other prerogative act undertaken in Her name.”
“It is often said that, while the Convention may influence the common law, it does not bind the executive. This view was reflected in the observation by Sir Thomas Bingham M.R. in Regina v. Ministry of Defence, ex parte Smith [1996] Q.B. 517, 558E that exercising an administrative discretion is not of itself a ground for impugning that exercise. That is so; but the whole context of the dialogue between the Secretary of State and the applicant in this case was the risk of an interference with the respondent's human rights. That in itself is a ground for subjecting the decisions to the most anxious scrutiny, in accordance with the principles laid down by this House in Regina v. Secretary of State for the Home Department, ex parte Bugdaycay [1987] A.C. 151, as Sir Thomas Bingham M.R. also recognised in Smith at p. 554H. Then there is the question whether judicial review proceedings can provide the applicant with an effective remedy, as article 13 requires where complaints are raised under the Convention in extradition and deportation cases: see Soering v. United Kingdom [1989] 11 E.H.H.R. 439; Vilvarajah v. United Kingdom [1991] 14 E.H.H.R. 248; D. v. United Kingdom, The Times,12 May 1997 . If the applicant is to have an effective remedy against a decision which is flawed because the decision-maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument. The ordinary principles of judicial review permit this approach because it was to the rationality and legality of the decisions, and not to some independent remedy, that Mr. Vaughan directed his argument.”
“It is, therefore, as it seems to me, appropriate for this court to review the soundness of the legal advice on which the Director has made clear, publicly, he relied; for if the legal advice he relied on was unsound, he should in the public interest, have the opportunity to reconsider the confirmation of his consent on a sound legal basis.” 67. After stating that his approach was consistent with the passage in Launder we have set out at paragraph 53 above, Lord Bingham continued at 342 B-C: “In offering such guidance as it can on the true effect of the Convention, the court does not in my view usurp the legislative responsibility of Parliament nor the independent decision-making responsibility of the Director, so long as it leaves the final decision to him.”
“In support of step (1) in this argument reliance was placed in particular on Ex p Launder and Ex p Kebilene. Both cases concerned decision-makers claiming to act consistently with the European Convention at a time when it had not been given effect in domestic law. The courts accepted the propriety of reviewing the compatibility with the Convention of the decisions in question. But there was in the first case no issue between the parties about the interpretation of the relevant articles of the Convention, and in the second there was a body of Convention jurisprudence on which the courts could draw in seeking to resolve the issue before it. Whether, in the event that there had been a live dispute on the meaning of an unincorporated provision on which there was no judicial authority, the courts would or should have undertaken the task of interpretation from scratch must be at least questionable. It would moreover be unfortunate if decision-makers were to be deterred from seeking to give effect to what they understand to be the international obligations of the UK by fear that their decisions might be held to be vitiated by an incorrect understanding.”
“The critical question is not, as the respondents' arguments suggest, whether the Director's successor would make the same decision again once the Courts had publicly stated that this would involve a breach of the Convention; rather it is whether the Court should feel itself impelled to decide the true construction of article 5 in the first place. It simply cannot be the law that, provided only a public officer asserts that his decision accords with the state's international obligations, the courts will entertain a challenge to the decision based upon his arguable misunderstanding of that obligation and then itself decide the point of international law at issue. For the reasons I have sought to give it would certainly not be appropriate to do so in the present case.”
“The article goes on to suggest that the Launder approach must indeed be subject to limitations, dependent perhaps upon "the intensity of judicial scrutiny judged appropriate in domestic law terms in the particular context". I have no doubt this is so and that the question will require further consideration on a future occasion. I have equally no doubt, however, that in this particular context the "tenable view" approach is the furthest the Court should go in examining the point of international law in question and, as I have already indicated, it is clear that the Director held at the very least a tenable view upon the meaning of article 5.”
“The Seneschal shall not be removable from office prior to his retirement in accordance with subsection (2), except at his own request in writing addressed to the Seigneur or, for good cause, by the direction of the Lieutenant Governor upon the recommendation of the Seigneur.”
“The possibility of removal of a temporary judge for good cause, not fully considered in argument before the Board, does not throw doubt on the compliance of his office with Article 6. That article is not infringed by the possibility of removing a judge shown to be unfit to hold office.”
“The Seneschal shall retire from office upon attaining the age of 65, but may be re-appointed by the Appointments Committee for a period or periods not exceeding five years at any one time, provided that any such further term of office shall end not later than the date on which he attains the age of 75.”
“The other terms and conditions of the office of Seneschal, including the payment of remuneration out of public funds, shall be determined by the Chief Pleas upon the recommendation of the General Purposes and Advisory Committee in consultation with the Finance and Commerce Committee.”