Judicial Review of Non-Statutory Powers after Bancoult: A Unified Anxious Model

Abstract

This article assesses the reviewability of non-statutory powers in the United Kingdom after the House of Lords' decision of R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2) (2008), which rejected the application of former residents of the Island of Diego Garcia for repatriation. Considered a groundbreaking decision due to the principled readiness to review orders in council, it is argued that the case is in fact an "unfortunate regression" as far as reviewability is exercised. Considering both prerogative powers and other types of non-statutory powers exercised in the UK (and elsewhere), the article offers, instead of deference and avoidance of review for non-justiciability, a model of "anxious review" similar to the model applied in the review of ihuman-rights context. The adoption of this model is justified inter alia due to the democratic deficit inherent to the exercise of such powers.