Misick, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

A statutory power to legislate for the government of a territory may be expressed in wide terms and is not curtailed merely because legislation affects important constitutional or human rights. The principal control is construction of the empowering statute, together with ordinary judicial review principles. Where the power is plenary, the court will not substitute its view for that of responsible ministers on what conduces to peace, order and good government, save in exceptional cases such as irrationality. The principle of legality does not restrict clear statutory language. A challenge based on proportionality, alleged targeting of individuals, retrospectivity or defects in an underlying inquiry is not arguable where those matters do not establish unlawfulness under the relevant statutory or constitutional framework.

The claimant, the former Premier of the Turks and Caicos Islands, sought permission to challenge the making of the Turks and Caicos Islands Constitution (Interim Amendment) Order 2009. The Order, made under the West Indies Act 1962, would temporarily suspend parts of the 2006 Constitution, including the right to jury trial and representative government, following an interim report by a Commissioner investigating alleged corruption and financial mismanagement.

The application was confined to permission. The central questions were whether the Order was outside the statutory power, contrary to constitutional, Convention or international rights, unlawful because it was targeted or retrospective, or invalid because of alleged defects in the inquiry.

1. Permission refused; application dismissed. The court considered only whether the grounds disclosed an arguable case meriting a full hearing. They did not.
2. Section 5 of the West Indies Act 1962, read with section 7, conferred a very wide power to provide for the government of a territory and to vary or revoke constitutional arrangements. The question was what Parliament had authorised by the statutory language. The distinction between settled and ceded colonies did not materially assist the claimant.
3. The rights relied upon, including jury trial, self-determination and elected representation, were important but had no special status preventing their alteration under the statutory power. The principle of legality could not overcome clear statutory language. The reasoning in R (Bancoult) v Home Secretary (No 2) [2008] 3 WLR 955 showed that legislation for the good government of a territory was, although reviewable, in practice not open to challenge except in the most exceptional circumstances.
4. Removal of jury trial did not remove the general right to a fair hearing or other safeguards. The alleged targeting of persons potentially liable to prosecution and the temporary character of the measure did not make it impermissibly ad hominem or retrospective. Liyanage v the Queen [1966] 2 WLR 682 was materially more extreme and did not support the claim.
5. International self-determination was not incorporated into domestic law. The Article 3 Protocol 1 argument was overtaken by the proposed temporary withdrawal of that provision’s application to the territory. The court would not assess proportionality, as distinct from irrationality, in relation to suspension of the legislature, nor examine alleged defects in the inquiry as a route to invalidating the Order.