R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)
Encyclopedia
R v Secretary of State for Foreign and Commonwealth Affairs (No 2) was a case of the House of Lords
concerning the removal of the Chagos Islanders and the exercise of the Royal Prerogative. The Chagos Islands, acquired by the United Kingdom in 1814, were reorganised as the British Indian Ocean Territory (BIOT) in 1965 for the purpose of removing its inhabitants. Under a 1971 Order in Council, the Chagossians were forcibly removed, and the central island of Diego Garcia
leased to the United States
for use as a military outpost. In 2000, Olivier Bancoult
brought a judicial review
claim against the Secretary of State for Foreign and Commonwealth Affairs
for the initial ordinance which led to the Chagossian removal. Bancoult sought a writ of certiorari
on the grounds that the ordinance was ultra vires
("beyond power" - that is, that the ordinance had been made without legal authority), a claim upheld by both the Divisional Court and the Court of Appeal
. In response, Robin Cook
, the Foreign Secretary, repealed the 1971 Order in Council and announced he would not appeal against the decision, allowing the Chagossians to return home.
In 2004, a second Order in Council, the British Indian Ocean Territory (Constitution) Order 2004, was produced, again reinstating the off-limits nature of the Chagos Islands. Bancoult brought a second case, arguing that this Order was again ultra vires and unreasonable, and that Cook had violated legitimate expectation
by passing the second Order after giving the impression that the Chagossians were free to return home. The new Order was again struck down by the Divisional Court and Court of Appeal before proceeding to the House of Lords where it was heard by Lords Hoffmann
, Bingham
, Rodger
, Carswell
and Mance
between 30 June and 3 July 2008. In their judgment, issued on 22 October 2008, the Lords decided by a 3-2 majority to uphold the new Order in Council, stating that it was valid and, although judicial review actions could look at Orders-in-Council, the national security and foreign relations issues in the case barred them from doing so. In addition, Cook's statement had not been clear and unambiguous enough to provide legitimate expectation.
The reaction to the decision was a negative one, with academics accusing the Lords of failing to do their job as members of the judiciary to "rework things like neo-imperial texts and outdated legal attitudes to the prerogative in order to cure obvious injustices and to vindicate a modern conception of the rule of law"; at the same time, their approach to legitimate expectation was also questioned, with the case described as an "unfortunate regression" from Council of Civil Service Unions v Minister for the Civil Service
, where judges were willing to debate legitimate expectation in a similarly politically sensitive situation.
The Chagos Islands are a cluster of 60 islands and seven atolls in the Indian Ocean
. First occupied by lepers from the Mauritius
, France acquired the islands in the late 18th century, and slaves were brought in from Africa and India to maintain coconut plantations placed there. Following Napoleon's defeat in 1814, the islands were ceded to the British
in the Treaty of Paris
, who administered them as a dependency of the colonial Mauritius. Although the slaves were given their freedom in 1835, many remained on the Chagos Islands as contract workers, and are considered the indigenous people - the Chagossians. In 1965, the British government reconstituted the islands as the British Indian Ocean Territory (BIOT) through the British Indian Ocean Territory Order 1965, a statutory instrument
under the Colonial Boundaries Act 1895. This instrument created the office of "Commissioner of BIOT", who was allowed to "make laws for the peace, order and good government of the territory". As part of this, the Commissioner passed the Immigration Ordinance 1971, an Order in Council under the Royal Prerogative which required anyone entering or remaining in BIOT to seek permission beforehand.
This ordinance, and the reorganisation of the islands, was enacted to provide a method for removing the Chagos Islanders so that the islands could be used by the United States
as a military base, particularly the island of Diego Garcia
. From 1964 onwards the United States and United Kingdom had been in talks about leasing Diego Garcia to the US for military purposes, and by an exchange of notes dated 30 December 1966, the UK government transferred Diego Garcia to the US for the purpose of hosting a defensive communications base. This agreement was to last for 50 years, with an additional 20 year extension if neither party wished to withdraw. Between 1967 and 1972 all 1,600 islanders were evacuated, and Diego Garcia continues to play a vital role in US military operations. Following a billion-dollar expansion program, the base has served as a "bomber forward operating location" for offensive operations in Afghanistan and Iraq. A US State Department letter dated 21 June 2000 described it as an "all but indispensable platform".
claim against the Secretary of State for Foreign and Commonwealth Affairs
for the initial ordinance which led to the Chagossian removal. Bancoult sought a writ of certiorari
on the grounds that the ordinance was ultra vires
and failed the Wednesbury
test of reasonableness, as it was irrational. The case, R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, went to the Divisional Court, where it was heard by Gibbs J and Laws LJ
. Bancoult's argument was made on several grounds; firstly, that the Crown could not exclude a British citizen from British territory, except in times of war, without a valid statutory basis or prerogative power. Secondly, the Chagossians had a constitutional right to inhabit their land under the Magna Carta
, one which could not be abridged with delegated legislation, and third, the Commissioner of BIOT's duty to legislate "for the peace, order and good government" of BIOT's inhabitants could not be said to be fulfilled by relocating those inhabitants.
The respondent, the Foreign & Commonwealth Office (FCO), argued that the English courts had no jurisdiction over the case, since the Crown is divisible amongst its territories, and the BIOT had its own courts. According to the FCO, Magna Carta, as a British constitutional document, was inapplicable to the Chagos Islands. They also maintained that "make laws for the peace, order and good government of the Territory" gave the Commissioner a wide enough jurisdiction to account for the order forcibly removing the Chagossians, and that the court could not decide in such a way as to force the government to break its treaty with the United States. The Divisional Court gave its judgment on 3 November 2000, on three main issues; firstly, the court's right to hear the case, secondly, the Chagossians' constitutional right of residence and thirdly, the status of the Commissioner's actions. The court found that they did have discretion to hear the case, since while the Crown was divisible, the actions of the BIOT were clearly the actions of the British government, since every BIOT action was ordered and dealt with by the Foreign & Commonwealth Office. Laws LJ found that the Magna Carta did apply to foreign nations, as it was "the nearest approach to an irreplaceable 'fundamental statute' that England has ever had... For in brief it means this, that the King is and shall be below the law". This did not alone validate Bancoult's case, since it did not mean that the government's actions were illegal.
The final section of the judgment was on the legality of the Commissioner's 1971 ordinance. Laws LJ held that it was "elementary" that "a legislature created by a measure passed by a body which is legally prior to it must act within the confines of the power thereby conferred"; in this case that the Commissioner's jurisdiction was to legislate "for the peace, order and good government" of BIOT. While the latitude given to the Commissioner was wide, it "may be a very large tapestry, but every tapestry has a border". The court found that in the 1971 ordinance, the Commissioner had exceeded his authority, and the ordinance was made ultra vires. As such, the ordinance was quashed.
, the Foreign Secretary, stated on 3 November 2000 that he would accept the ruling, issuing the Immigration Ordinance 2000 which repealed the 1971 ordinance in its entirety. Due to "security issues", the British government was only prepared to let the Chagossians return to the outer islands, which were lacking in basic amenities - as such, a "feasibility study" was conducted. The preliminary study was produced on 20 June 2000, and the full study published on 10 July 2002. It concluded that:
On 1 June 2004, a second Order in Council was produced (the British Indian Ocean Territory (Constitution) Order 2004), Section 9 of which provided that "no person has the right of abode in the territory" and "no person is entitled to enter or be present in the territory except as authorised by or under this Order or any other law for the time being in force in the territory". At the same time, the British Indian Ocean Territory (Immigration) Order 2004 came into effect, prohibiting entry or presence in BIOT without a permit. In response, Bancoult brought a second case, claiming that Cook's statement created legitimate expectation
(later frustrated by the 2004 orders) and questioning the validity of the Constitution Order 2004, particularly the legality of Section 9.
, the decisive element was not the origin of the power (in this case, the Royal Prerogative) but the nature of the power. As such, Orders-in-Council were subject to judicial review. This decision was appealed to the Court of Appeal of England and Wales
, composed of Butler-Sloss
, Sedley
and Neuberger LJJ, who agreed with the Divisional Court in their judgment issued on 23 May 2007.
, Bingham
, Rodger
, Carswell
and Mance
. The litigation occurred between 30 June and 3 July 2008, and a judgment was issued on 22 October 2008. The judgment covered two matters; whether or not the courts could subject Orders-in-Council to judicial review, and the legality of the 2004 Order. The Lords unanimously agreed that while Orders-in-Council were pieces of primary legislation, similar to Acts of Parliament (which cannot be subject to judicial review), there is a significant difference in that Orders-in-Council are an executive product, and lack the "representative character" that comes with Parliamentary authority and approval. As such, the Lords saw "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".
In a 3-2 decision, the Lords upheld the legality of the Constitutional Order, including Section 9. Lords Hoffmann, Rodger and Carswell, in the majority, held that BIOT was a "conquered or ceded colony", and as such subject to the prerogative powers of the Crown. They rejected the principle that there was a constitutional right to reside in one's own country, citing it as "extreme", and concluded that this right could not trump legislation such as Orders-in-Council. The phrase "peace, order and good government" should be understood as referring not only to the inhabitants of BIOT, but to the governance of the region. The wording is to be treated "as apt to confer plenary lawmaking authority", and that the matter of reviewing the Order was for the government and Parliament to decide, not for the courts, since it is a political issue of national security and foreign relations. At the same time, there was no legitimate expectation created following Bancoult (No 1). The standard requirement for legitimate expectation, as decided in R v North and East Devon Health Authority, ex parte Coughlan, was that there must be a "clear and unambiguous" promise made that led to a reliance or a detriment; Robin Cook's statement after the first Bancoult case could not be described as a clear and unambiguous promise of resettlement, and the requirements of reliance and detriment were not met.
Lords Bingham and Mance, dissenting, took the view that the Order in Council was unreasonable and invalid. Bingham noted that the proper way to interpret an exercise of the royal prerogative was to look at how it was exercised previously, and that he could not find any previous record of the prerogative being used to "exile an indigenous population from its homeland"; he argued that this prerogative power did not exist; "[t]he Crown has never had a prerogative power to prevent its subjects from entering the Kingdom, or to expel them from it". As such, the Order was ultra vires. Bingham also maintained that it was irrational, since visits to the outer islands did not threaten US security, and unacceptable, in that no consideration had been given to the Chagossians. On the subject of legitimate expectation, the dissenters maintained that the statement should be "construed according to the ordinary meaning that would be attached to it by those, principally the Chagossians and their supporters, to whom it was directed"; Bingham saw the ordinary meaning as being that the Chagossians would be allowed to return home.
The public and academic reaction to the decision was a negative one. Academic Thomas Poole considers that the House of Lords failed in their duty as members of the judiciary; "where old principles no longer fit contemporary constitutional and moral standards, why should we follow them? Surely the judicial task is to rework things like neo-imperial texts and outdated legal attitudes to the prerogative in order to cure obvious injustices and to vindicate a modern conception of the rule of law". Margit Cohn, senior lecturer at Hebrew University, agrees, writing on the legitimate expectation issue that "It is difficult to accept that a public statement made by a Secretary of State, followed by the promulgation of an order that removed the previous prohibition to return, could not have created at least some sort of expectation". Cohn further describes the case as an "unfortunate regression" from the GCHQ case
, where judges were willing to debate legitimate expectation in a similarly politically sensitive situation.
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
concerning the removal of the Chagos Islanders and the exercise of the Royal Prerogative. The Chagos Islands, acquired by the United Kingdom in 1814, were reorganised as the British Indian Ocean Territory (BIOT) in 1965 for the purpose of removing its inhabitants. Under a 1971 Order in Council, the Chagossians were forcibly removed, and the central island of Diego Garcia
Diego Garcia
Diego Garcia is a tropical, footprint-shaped coral atoll located south of the equator in the central Indian Ocean at 7 degrees, 26 minutes south latitude. It is part of the British Indian Ocean Territory [BIOT] and is positioned at 72°23' east longitude....
leased to the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
for use as a military outpost. In 2000, Olivier Bancoult
Louis Olivier Bancoult
Louis Olivier Bancoult is a Mauritian who is the leader of the Chagos Refugee Group. Bancoult has been involved in several high profile legal actions concerning the exile of the Chagos Islanders including R v Secretary of State for Foreign and Commonwealth Affairs .-References:...
brought a judicial review
Judicial review in English Law
Judicial review is a procedure in English administrative law by which the courts in England and Wales supervise the exercise of public power on the application of an individual...
claim against the Secretary of State for Foreign and Commonwealth Affairs
Secretary of State for Foreign and Commonwealth Affairs
The Secretary of State for Foreign and Commonwealth Affairs, commonly referred to as the Foreign Secretary, is a senior member of Her Majesty's Government heading the Foreign and Commonwealth Office and regarded as one of the Great Offices of State...
for the initial ordinance which led to the Chagossian removal. Bancoult sought a writ of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
on the grounds that the ordinance was ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
("beyond power" - that is, that the ordinance had been made without legal authority), a claim upheld by both the Divisional Court and the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
. In response, Robin Cook
Robin Cook
Robert Finlayson Cook was a British Labour Party politician, who was the Member of Parliament for Livingston from 1983 until his death, and notably served in the Cabinet as Foreign Secretary from 1997 to 2001....
, the Foreign Secretary, repealed the 1971 Order in Council and announced he would not appeal against the decision, allowing the Chagossians to return home.
In 2004, a second Order in Council, the British Indian Ocean Territory (Constitution) Order 2004, was produced, again reinstating the off-limits nature of the Chagos Islands. Bancoult brought a second case, arguing that this Order was again ultra vires and unreasonable, and that Cook had violated legitimate expectation
Legitimate expectation
In English law, the concept of legitimate expectation arises from administrative law, a branch of public law. In proceedings for judicial review, it applies the principles of fairness and reasonableness to the situation where a person has an expectation or interest in a public body retaining a...
by passing the second Order after giving the impression that the Chagossians were free to return home. The new Order was again struck down by the Divisional Court and Court of Appeal before proceeding to the House of Lords where it was heard by Lords Hoffmann
Leonard Hoffmann, Baron Hoffmann
Leonard Hubert "Lenny" Hoffmann, Baron Hoffmann, PC is a retired senior British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009...
, Bingham
Thomas Bingham, Baron Bingham of Cornhill
Thomas Henry Bingham, Baron Bingham of Cornhill, KG PC QC FBA , was a British judge and jurist. He served in the highest judicial offices of the United Kingdom as Master of the Rolls, Lord Chief Justice and as Senior Law Lord before his retirement, when he focused his work as a teacher and lecturer...
, Rodger
Alan Rodger, Baron Rodger of Earlsferry
Alan Ferguson Rodger, Baron Rodger of Earlsferry, FRSE, FBA, PC was a Scottish lawyer and Justice of the Supreme Court of the United Kingdom....
, Carswell
Robert Carswell, Baron Carswell
Robert Douglas Carswell, Baron Carswell, PC, QC , is a retired Lord of Appeal in Ordinary.The son of Alan and Nance Carswell was educated at the Royal Belfast Academical Institution and Pembroke College, Oxford, where he received a Bachelor of Arts and Master of Arts in classics and law in 1956...
and Mance
Jonathan Mance, Baron Mance
Jonathan Hugh Mance, Baron Mance, PC is a Justice of the Supreme Court of the United Kingdom.-Early life:Mance was born on 6 June 1943, one of four children of Sir Henry Mance, an important figure in Lloyd's Register. Like his father, he attended Charterhouse, a boarding school in Godalming, Surrey...
between 30 June and 3 July 2008. In their judgment, issued on 22 October 2008, the Lords decided by a 3-2 majority to uphold the new Order in Council, stating that it was valid and, although judicial review actions could look at Orders-in-Council, the national security and foreign relations issues in the case barred them from doing so. In addition, Cook's statement had not been clear and unambiguous enough to provide legitimate expectation.
The reaction to the decision was a negative one, with academics accusing the Lords of failing to do their job as members of the judiciary to "rework things like neo-imperial texts and outdated legal attitudes to the prerogative in order to cure obvious injustices and to vindicate a modern conception of the rule of law"; at the same time, their approach to legitimate expectation was also questioned, with the case described as an "unfortunate regression" from Council of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case, was an English administrative law which held that the Royal Prerogative was subject to judicial review...
, where judges were willing to debate legitimate expectation in a similarly politically sensitive situation.
Chagos Islands
Indian Ocean
The Indian Ocean is the third largest of the world's oceanic divisions, covering approximately 20% of the water on the Earth's surface. It is bounded on the north by the Indian Subcontinent and Arabian Peninsula ; on the west by eastern Africa; on the east by Indochina, the Sunda Islands, and...
. First occupied by lepers from the Mauritius
Mauritius
Mauritius , officially the Republic of Mauritius is an island nation off the southeast coast of the African continent in the southwest Indian Ocean, about east of Madagascar...
, France acquired the islands in the late 18th century, and slaves were brought in from Africa and India to maintain coconut plantations placed there. Following Napoleon's defeat in 1814, the islands were ceded to the British
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
in the Treaty of Paris
Treaty of Paris (1814)
The Treaty of Paris, signed on 30 May 1814, ended the war between France and the Sixth Coalition, part of the Napoleonic Wars, following an armistice signed on 23 May between Charles, Count of Artois, and the allies...
, who administered them as a dependency of the colonial Mauritius. Although the slaves were given their freedom in 1835, many remained on the Chagos Islands as contract workers, and are considered the indigenous people - the Chagossians. In 1965, the British government reconstituted the islands as the British Indian Ocean Territory (BIOT) through the British Indian Ocean Territory Order 1965, a statutory instrument
Statutory Instrument
A Statutory Instrument is the principal form in which delegated or secondary legislation is made in Great Britain.Statutory Instruments are governed by the Statutory Instruments Act 1946. They replaced Statutory Rules and Orders, made under the Rules Publication Act 1893, in 1948.Most delegated...
under the Colonial Boundaries Act 1895. This instrument created the office of "Commissioner of BIOT", who was allowed to "make laws for the peace, order and good government of the territory". As part of this, the Commissioner passed the Immigration Ordinance 1971, an Order in Council under the Royal Prerogative which required anyone entering or remaining in BIOT to seek permission beforehand.
This ordinance, and the reorganisation of the islands, was enacted to provide a method for removing the Chagos Islanders so that the islands could be used by the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
as a military base, particularly the island of Diego Garcia
Diego Garcia
Diego Garcia is a tropical, footprint-shaped coral atoll located south of the equator in the central Indian Ocean at 7 degrees, 26 minutes south latitude. It is part of the British Indian Ocean Territory [BIOT] and is positioned at 72°23' east longitude....
. From 1964 onwards the United States and United Kingdom had been in talks about leasing Diego Garcia to the US for military purposes, and by an exchange of notes dated 30 December 1966, the UK government transferred Diego Garcia to the US for the purpose of hosting a defensive communications base. This agreement was to last for 50 years, with an additional 20 year extension if neither party wished to withdraw. Between 1967 and 1972 all 1,600 islanders were evacuated, and Diego Garcia continues to play a vital role in US military operations. Following a billion-dollar expansion program, the base has served as a "bomber forward operating location" for offensive operations in Afghanistan and Iraq. A US State Department letter dated 21 June 2000 described it as an "all but indispensable platform".
Bancoult (No 1)
In 2000, Olivier Bancoult, a native Chagossian and leader of the Chagos Refugees Group, brought a judicial reviewJudicial review in English Law
Judicial review is a procedure in English administrative law by which the courts in England and Wales supervise the exercise of public power on the application of an individual...
claim against the Secretary of State for Foreign and Commonwealth Affairs
Secretary of State for Foreign and Commonwealth Affairs
The Secretary of State for Foreign and Commonwealth Affairs, commonly referred to as the Foreign Secretary, is a senior member of Her Majesty's Government heading the Foreign and Commonwealth Office and regarded as one of the Great Offices of State...
for the initial ordinance which led to the Chagossian removal. Bancoult sought a writ of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
on the grounds that the ordinance was ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
and failed the Wednesbury
Wednesbury unreasonableness
Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223 is an English law case which set down the standard of unreasonableness of public body decisions which render them liable to be quashed on judicial review...
test of reasonableness, as it was irrational. The case, R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, went to the Divisional Court, where it was heard by Gibbs J and Laws LJ
John Laws (judge)
Sir John Grant McKenzie Laws , styled The Rt Hon. Lord Justice Laws, has been a Lord Justice of Appeal since 1999.-Early life:...
. Bancoult's argument was made on several grounds; firstly, that the Crown could not exclude a British citizen from British territory, except in times of war, without a valid statutory basis or prerogative power. Secondly, the Chagossians had a constitutional right to inhabit their land under the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, one which could not be abridged with delegated legislation, and third, the Commissioner of BIOT's duty to legislate "for the peace, order and good government" of BIOT's inhabitants could not be said to be fulfilled by relocating those inhabitants.
The respondent, the Foreign & Commonwealth Office (FCO), argued that the English courts had no jurisdiction over the case, since the Crown is divisible amongst its territories, and the BIOT had its own courts. According to the FCO, Magna Carta, as a British constitutional document, was inapplicable to the Chagos Islands. They also maintained that "make laws for the peace, order and good government of the Territory" gave the Commissioner a wide enough jurisdiction to account for the order forcibly removing the Chagossians, and that the court could not decide in such a way as to force the government to break its treaty with the United States. The Divisional Court gave its judgment on 3 November 2000, on three main issues; firstly, the court's right to hear the case, secondly, the Chagossians' constitutional right of residence and thirdly, the status of the Commissioner's actions. The court found that they did have discretion to hear the case, since while the Crown was divisible, the actions of the BIOT were clearly the actions of the British government, since every BIOT action was ordered and dealt with by the Foreign & Commonwealth Office. Laws LJ found that the Magna Carta did apply to foreign nations, as it was "the nearest approach to an irreplaceable 'fundamental statute' that England has ever had... For in brief it means this, that the King is and shall be below the law". This did not alone validate Bancoult's case, since it did not mean that the government's actions were illegal.
The final section of the judgment was on the legality of the Commissioner's 1971 ordinance. Laws LJ held that it was "elementary" that "a legislature created by a measure passed by a body which is legally prior to it must act within the confines of the power thereby conferred"; in this case that the Commissioner's jurisdiction was to legislate "for the peace, order and good government" of BIOT. While the latitude given to the Commissioner was wide, it "may be a very large tapestry, but every tapestry has a border". The court found that in the 1971 ordinance, the Commissioner had exceeded his authority, and the ordinance was made ultra vires. As such, the ordinance was quashed.
Government response
In response to the Divisional Court's decision, Robin CookRobin Cook
Robert Finlayson Cook was a British Labour Party politician, who was the Member of Parliament for Livingston from 1983 until his death, and notably served in the Cabinet as Foreign Secretary from 1997 to 2001....
, the Foreign Secretary, stated on 3 November 2000 that he would accept the ruling, issuing the Immigration Ordinance 2000 which repealed the 1971 ordinance in its entirety. Due to "security issues", the British government was only prepared to let the Chagossians return to the outer islands, which were lacking in basic amenities - as such, a "feasibility study" was conducted. The preliminary study was produced on 20 June 2000, and the full study published on 10 July 2002. It concluded that:
On 1 June 2004, a second Order in Council was produced (the British Indian Ocean Territory (Constitution) Order 2004), Section 9 of which provided that "no person has the right of abode in the territory" and "no person is entitled to enter or be present in the territory except as authorised by or under this Order or any other law for the time being in force in the territory". At the same time, the British Indian Ocean Territory (Immigration) Order 2004 came into effect, prohibiting entry or presence in BIOT without a permit. In response, Bancoult brought a second case, claiming that Cook's statement created legitimate expectation
Legitimate expectation
In English law, the concept of legitimate expectation arises from administrative law, a branch of public law. In proceedings for judicial review, it applies the principles of fairness and reasonableness to the situation where a person has an expectation or interest in a public body retaining a...
(later frustrated by the 2004 orders) and questioning the validity of the Constitution Order 2004, particularly the legality of Section 9.
Judgment
The case first went to the Divisional Court, where Hooper LJ and Cresswell J decided in favour of Bancoult on 11 May 2006. The court found that the "interests of BIOT must be or must primarily be those whose right of abode and unrestricted right to enter and remain was being in effect removed", and that as Section 9 of the Constitutional Order did not serve the interests of it or its inhabitants, it was irrational. At the same time, the court was asked to rule on whether an Order in Council could be questioned in judicial review proceedings. They decided that under Council of Civil Service Unions v Minister for the Civil ServiceCouncil of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case, was an English administrative law which held that the Royal Prerogative was subject to judicial review...
, the decisive element was not the origin of the power (in this case, the Royal Prerogative) but the nature of the power. As such, Orders-in-Council were subject to judicial review. This decision was appealed to the Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
, composed of Butler-Sloss
Elizabeth Butler-Sloss, Baroness Butler-Sloss
Anne Elizabeth Oldfield Butler-Sloss, Baroness Butler-Sloss, GBE, PC is a retired English judge. She was the first female Lord Justice of Appeal and, until 2004, was the highest-ranking female judge in the United Kingdom. Until June 2007, she chaired the inquests into the deaths of Diana, Princess...
, Sedley
Stephen Sedley
Sir Stephen Sedley, , styled The Rt. Hon. Lord Justice Sedley was a judge of the Court of Appeal of England and Wales from 1999 to 2011.- Family background:...
and Neuberger LJJ, who agreed with the Divisional Court in their judgment issued on 23 May 2007.
House of Lords
The case was then taken to the House of Lords, where it was heard by Lords HoffmannLeonard Hoffmann, Baron Hoffmann
Leonard Hubert "Lenny" Hoffmann, Baron Hoffmann, PC is a retired senior British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009...
, Bingham
Thomas Bingham, Baron Bingham of Cornhill
Thomas Henry Bingham, Baron Bingham of Cornhill, KG PC QC FBA , was a British judge and jurist. He served in the highest judicial offices of the United Kingdom as Master of the Rolls, Lord Chief Justice and as Senior Law Lord before his retirement, when he focused his work as a teacher and lecturer...
, Rodger
Alan Rodger, Baron Rodger of Earlsferry
Alan Ferguson Rodger, Baron Rodger of Earlsferry, FRSE, FBA, PC was a Scottish lawyer and Justice of the Supreme Court of the United Kingdom....
, Carswell
Robert Carswell, Baron Carswell
Robert Douglas Carswell, Baron Carswell, PC, QC , is a retired Lord of Appeal in Ordinary.The son of Alan and Nance Carswell was educated at the Royal Belfast Academical Institution and Pembroke College, Oxford, where he received a Bachelor of Arts and Master of Arts in classics and law in 1956...
and Mance
Jonathan Mance, Baron Mance
Jonathan Hugh Mance, Baron Mance, PC is a Justice of the Supreme Court of the United Kingdom.-Early life:Mance was born on 6 June 1943, one of four children of Sir Henry Mance, an important figure in Lloyd's Register. Like his father, he attended Charterhouse, a boarding school in Godalming, Surrey...
. The litigation occurred between 30 June and 3 July 2008, and a judgment was issued on 22 October 2008. The judgment covered two matters; whether or not the courts could subject Orders-in-Council to judicial review, and the legality of the 2004 Order. The Lords unanimously agreed that while Orders-in-Council were pieces of primary legislation, similar to Acts of Parliament (which cannot be subject to judicial review), there is a significant difference in that Orders-in-Council are an executive product, and lack the "representative character" that comes with Parliamentary authority and approval. As such, the Lords saw "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".
In a 3-2 decision, the Lords upheld the legality of the Constitutional Order, including Section 9. Lords Hoffmann, Rodger and Carswell, in the majority, held that BIOT was a "conquered or ceded colony", and as such subject to the prerogative powers of the Crown. They rejected the principle that there was a constitutional right to reside in one's own country, citing it as "extreme", and concluded that this right could not trump legislation such as Orders-in-Council. The phrase "peace, order and good government" should be understood as referring not only to the inhabitants of BIOT, but to the governance of the region. The wording is to be treated "as apt to confer plenary lawmaking authority", and that the matter of reviewing the Order was for the government and Parliament to decide, not for the courts, since it is a political issue of national security and foreign relations. At the same time, there was no legitimate expectation created following Bancoult (No 1). The standard requirement for legitimate expectation, as decided in R v North and East Devon Health Authority, ex parte Coughlan, was that there must be a "clear and unambiguous" promise made that led to a reliance or a detriment; Robin Cook's statement after the first Bancoult case could not be described as a clear and unambiguous promise of resettlement, and the requirements of reliance and detriment were not met.
Lords Bingham and Mance, dissenting, took the view that the Order in Council was unreasonable and invalid. Bingham noted that the proper way to interpret an exercise of the royal prerogative was to look at how it was exercised previously, and that he could not find any previous record of the prerogative being used to "exile an indigenous population from its homeland"; he argued that this prerogative power did not exist; "[t]he Crown has never had a prerogative power to prevent its subjects from entering the Kingdom, or to expel them from it". As such, the Order was ultra vires. Bingham also maintained that it was irrational, since visits to the outer islands did not threaten US security, and unacceptable, in that no consideration had been given to the Chagossians. On the subject of legitimate expectation, the dissenters maintained that the statement should be "construed according to the ordinary meaning that would be attached to it by those, principally the Chagossians and their supporters, to whom it was directed"; Bingham saw the ordinary meaning as being that the Chagossians would be allowed to return home.
Significance
The Bancoult case was the first one to directly state that in cases of legitimate expectation, the information must be relied on, leading to a detriment. In prior cases it was simply an additional element, and not explicitly required. At the same time, it raised questions about the oversight of Orders-in-Council, given that it highlighted the courts are unwilling to review a piece of executive legislation where there are political elements in play. The decision also raised "the classic problem of balancing human rights issues and concerns relating to security and defence".The public and academic reaction to the decision was a negative one. Academic Thomas Poole considers that the House of Lords failed in their duty as members of the judiciary; "where old principles no longer fit contemporary constitutional and moral standards, why should we follow them? Surely the judicial task is to rework things like neo-imperial texts and outdated legal attitudes to the prerogative in order to cure obvious injustices and to vindicate a modern conception of the rule of law". Margit Cohn, senior lecturer at Hebrew University, agrees, writing on the legitimate expectation issue that "It is difficult to accept that a public statement made by a Secretary of State, followed by the promulgation of an order that removed the previous prohibition to return, could not have created at least some sort of expectation". Cohn further describes the case as an "unfortunate regression" from the GCHQ case
Council of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case, was an English administrative law which held that the Royal Prerogative was subject to judicial review...
, where judges were willing to debate legitimate expectation in a similarly politically sensitive situation.