West Law Report

Order banning Chagos Islanders not unlawful

Posted in House of Lords (case), Times Law Report by mrkooenglish on November 9, 2008

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(Photo: US Navy/ Reuters/ Times)

From The Times
October 23, 2008
Order banning Chagos Islanders not unlawful
Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) in the House of Lords

House of Lords

Published October 23, 2008

Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)

Before Lord Hoffmann, Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell and Lord Mance

Judgment October 22, 2008

Prerogative orders made by the Queen in Council which prevented the unrestricted return of Chagos Islanders to their homeland were not unlawful.

The House of Lords so held, Lord Bingham and Lord Mance dissenting, when allowing an appeal by the Secretary of State for Foreign and Commonwealth Affairs from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Waller and Lord Justice Sedley) (The Times May 31, 2007; [2008] QB 365) which affirmed the ruling of the Divisional Court (Lord Justice Hooper and Mr Justice Gibbs) (The Times May 23, 2006) in judicial review proceedings brought by Mr Louis Bancoult, that the British Indian Ocean Territory (Constitution) Order 2004 and the British Indian Ocean Territory (Immigration) Order 2004 were invalid.

In 1965 the Chagos Islands were constituted a separate colony, the British Indian Ocean Territory; between 1968 and 1973 the population was compulsorily removed and, by the Immigration Ordinance 1971, disentitled from returning there. A US military base was established on Diego Garcia, the largest island.

In 2000 the Ordinance was successfully challenged: see R (Bancoult) v Secretary of State for, Foreign and Commonwealth Affairs (No 1) (The Times November 10, 2000; [2001] QB 1067).

The Foreign Secretary of the day accepted that ruling and replaced the Ordinance by an order in council enabling the islanders to return to islands, other than Diego Garcia.

In 2004, the present orders removed any right of abode and disentitled islanders from entry or presence without specific permission.

Mr Jonathan Crow, QC and Mr Kieron Beal for the Foreign Secretary; Sir Sydney Kentridge, QC, Mr Anthony Bradley and Ms Maya Lester for Mr Bancoult.

LORD HOFFMANN said that it was common ground that as the British Indian Ocean Territory was originally ceded to the Crown, her Majesty in Council had plenary power to legislate for the territory.

He rejected Mr Crow’s argument that the courts had no power to review the validity of an order in council legislating for a colony.

His Lordship said that a prerogative order in council was primary legislation in the sense that the Crown’s legislative power was original, not subordinate. But such orders did not share all the characteristics of Acts of Parliament. The principle of parliamentary sovereignty was founded on the unique authority Parliament derived from its representative character. An exercise of the prerogative lacked that quality; although it might be legislative in character, it was still an exercise of power by the executive alone.

Until Council of Civil Service Unions v Minister for the Civil Service (The Times November 23, 1984; [1985] AC 374) it might have been assumed that the exercise of prerogative powers was, as such, immune from judicial review.

That objection being removed, there was 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.

Her Majesty exercised her powers of prerogative legislation for a non-self-governing colony on her ministers’ advice in the UK and would act in the interests of her undivided realm, including the UK and the colony. She could therefore legislate for a colony in the interests of the UK. No doubt she was required to take account of the colony’s interests, but in the event of a conflict of interest she could prefer the UK’s.

The wording had never been construed as limiting the power of a legislature; subject to the principle of territoriality it had always been treated as apt to confer plenary law-making authority.

The courts would not inquire whether legislation within the territorial scope of the power was in fact for the peace, order and good government or other benefit of the inhabitants of the territory and so far as Bancoult (No 1) departed from that principle it was wrongly decided.

On the application of the ordinary principles of judicial review, it was important, in deciding whether a measure affected fundamental rights or had profoundly intrusive effects, to consider what those rights and effects actually were.

If the court was in 1968 and concerned with a proposal to remove the Chagossians from their islands with no provision for their future, that would be a profoundly intrusive measure affecting their fundamental rights. But that was many years ago, the deed had been done, the wrong confessed, compensation agreed and paid.

The Chagossians’ way of life had been irreparably destroyed. Today’s practicalities were that they would be unable to exercise any right to live in the outer islands without financial support which the British government was unwilling to provide and which was apparently not forthcoming from elsewhere.

While the 2000 Immigration Ordinance was in force, no one went to live there. The right of abode was purely symbolic; if it were exercised by setting up a camp on the islands it would be a gesture aimed at putting pressure on the government.

The litigation was the continuation of protest by other means: see R v Jones (Margaret) (The Times March 30, 2006; [2007] 1 AC 136, 177). Considering the rights in issue here, which had to be weighed against the state’s diplomatic and defence interests, it should be seen for what it was, as a right to protest in a particular way and not as a right to the security of one’s home or to live in one’s homeland.

The government did not consider that it was in the public interest that an unauthorised settlement on the islands should be used as a means of exerting pressure to compel it to fund resettlement which it had decided would be uneconomic. It was entitled to take that view.

Funding was the subtext. The action was a step in a campaign to achieve funded resettlement. The secretary of state was surely entitled to take into account that once a vanguard of Chagossians established itself on the islands in poor and barren conditions of life, there might be claim that the UK was subject to a sacred trust under article 73 of the United Nations Charter to ensure the economic, social and educational advancement of the residents and send reports to the Secretary-General.

The Chagossians would now require immigration consent even to visit the islands; but the government made it clear that such visits, to tend graves, and so on, would be allowed, and since in practice they were funded by the British Indian Ocean Territory administration, immigration consent would be no more than an additional formality. And there was no reason why, if at some future time, circumstances should change, the controls should not be lifted.

Policy as to expenditure of public resources and the Crown’s security and diplomatic interests were peculiarly within the competence of the executive and it was impossible to say, taking fully into account the practical interests of the Chagossians, that the decision to reimpose immigration control on the islands was unreasonable or an abuse of power.

His Lordship rejected Mr Bancoult’s alternative judicial review ground that the Foreign Secretary’s statement in 2000, accompanied by revocation of immigration controls, was a promise creating a legitimate expectation that the islanders would be free from such controls.

That claim fell at the first hurdle: the requirement of a clear and unambiguous promise. The statement came nowhere near a promise that, even if there could be no resettlement, immigration control would not be reimposed.

Even if there had been, there was a sufficient public interest justification for adopting a new policy in 2004; it was relevant that no one had acted to his detriment on the strength of the statement, the rights withdrawn were not of practical value to the Chagossians and the decision was concerned with the macro-political field.

Lord Rodger and Lord Carswell delivered opinions concurring in the result; Lord Bingham and Lord Mance delivered dissenting opinions.

Solicitors: Treasury Solicitor; Clifford Chance LLP.

See also: “Law lords ruling stops return of families to Chagos Islands“, Times, 22 Oct 2008

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