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is a UK constitutional law case in the Judicial functions of the House of Lords">House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
concerning the removal of the Chagossians">Chagos Islanders and the exercise of the Royal Prerogative in the United Kingdom">Royal Prerogative The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...
. The
Chagos Islands The Chagos Archipelago () or Chagos Islands (formerly the Bassas de Chagas, and later the Oil Islands) is a group of seven atolls comprising more than 60 islands in the Indian Ocean about 500 kilometres (310 mi) south of the Maldives arc ...
, 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 is an island of the British Indian Ocean Territory, a disputed overseas territory of the United Kingdom. It is a militarised atoll just south of the equator in the central Indian Ocean, and the largest of the 60 small islands of ...
leased to the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
for use as a military outpost. In 2000,
Olivier Bancoult Louis Olivier Bancoult (born 1964) is a Chagossian activist who is the leader of thChagos Refugee Groupref name=":0"> (CRG). Biography He was born in 1964 on the island of Peros Banhos in the Chagos Archipelago, from where he was forcibly removed ...
brought a
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
claim against the
Secretary of State for Foreign and Commonwealth Affairs The secretary of state for foreign, Commonwealth and development affairs, known as the foreign secretary, is a minister of the Crown of the Government of the United Kingdom and head of the Foreign, Commonwealth and Development Office. Seen as ...
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 the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
'' ("beyond power" – that is, that the ordinance had been made without legal authority), a claim upheld by both the
Divisional Court A divisional court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges.Section 66, Senior Courts Act 1981. Matters heard by a divisional court include some criminal cases in the High Court ...
and the Court of Appeal. In response,
Robin Cook Robert Finlayson "Robin" Cook (28 February 19466 August 2005) was a British Labour politician who served as a Member of Parliament (MP) from 1974 until his death in 2005 and served in the Cabinet as Foreign Secretary from 1997 until 2001 wh ...
, 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 the British government had violated
legitimate expectation The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a pers ...
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 Hoffmann is a German language, German surname. People A *Albert Hoffmann (horticulturist), Albert Hoffmann (1846–1924), German horticulturist *Alexander Hoffmann (politician), Alexander Hoffmann (born 1975), German politician *Arthur Hoffmann ...
, Bingham,
Rodger Rodger is a surname, and is a variant of Roger as a first name. First name * Rodger Arneil, Scottish rugby union player * Rodger Bain, British former record producer * Rodger Bumpass, American voice actor and actor *Rodger Corser, Australian actor ...
, 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 negative, with academics accusing the majority Law 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'' , or the GCHQ case, is a United Kingdom constitutional law and UK labour law case that held the royal prerogative was subject to judicial review. In 1984, by issuing an Order in ...
'', where judges were willing to debate legitimate expectation in a similarly politically sensitive situation. In 2015 Bancoult went to court to argue that the judgement should be set aside due to the non-disclosure of a 2002 feasibility study relating to the resettlement of the former inhabitants of the Chagos Islands. The Supreme Court of the United Kingdom ruled against reviewing the case on 29 June 2016 ('' R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs'').


Facts


Chagos Islands

The
Chagos Islands The Chagos Archipelago () or Chagos Islands (formerly the Bassas de Chagas, and later the Oil Islands) is a group of seven atolls comprising more than 60 islands in the Indian Ocean about 500 kilometres (310 mi) south of the Maldives arc ...
are a cluster of 60 islands and seven
atolls An atoll () is a ring-shaped island, including a coral rim that encircles a lagoon partially or completely. There may be coral islands or cays on the rim. Atolls are located in warm tropical or subtropical oceans and seas where corals can gro ...
in the
Indian Ocean The Indian Ocean is the third-largest of the world's five oceanic divisions, covering or ~19.8% of the water on Earth's surface. It is bounded by Asia to the north, Africa to the west and Australia to the east. To the south it is bounded by t ...
. First occupied by lepers from
Mauritius Mauritius ( ; french: Maurice, link=no ; mfe, label= Mauritian Creole, Moris ), officially the Republic of Mauritius, is an island nation in the Indian Ocean about off the southeast coast of the African continent, east of Madagascar. It ...
, 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 Napoleon Bonaparte ; it, Napoleone Bonaparte, ; co, Napulione Buonaparte. (born Napoleone Buonaparte; 15 August 1769 – 5 May 1821), later known by his regnal name Napoleon I, was a French military commander and political leader who ...
's defeat in 1814, the islands were ceded to the
British British may refer to: Peoples, culture, and language * British people, nationals or natives of the United Kingdom, British Overseas Territories, and Crown Dependencies. ** Britishness, the British identity and common culture * British English, ...
in the
Treaty of Paris Treaty of Paris may refer to one of many treaties signed in Paris, France: Treaties 1200s and 1300s * Treaty of Paris (1229), which ended the Albigensian Crusade * Treaty of Paris (1259), between Henry III of England and Louis IX of France * Trea ...
, who administered them as a dependency of the Colony of Mauritius. Although the slaves were given their freedom in 1835, many remained on the Chagos Islands as contract workers, and their descendants and later immigrants 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 given power to "make laws for the
peace, order and good government In many Commonwealth jurisdictions, the phrase "peace, order, and good government" (POGG) is an expression used in law to express the legitimate objects of legislative powers conferred by statute. The phrase appears in many Imperial Acts of Par ...
of the territory". Accordingly, the Commissioner issued the Immigration Ordinance 1971, an Order in Council under the
Royal Prerogative The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...
which required anyone entering or remaining in BIOT to seek permission beforehand. This ordinance, with 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 The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
as a military base, particularly the island of
Diego Garcia Diego Garcia is an island of the British Indian Ocean Territory, a disputed overseas territory of the United Kingdom. It is a militarised atoll just south of the equator in the central Indian Ocean, and the largest of the 60 small islands of ...
. 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 review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
claim against the
Secretary of State for Foreign and Commonwealth Affairs The secretary of state for foreign, Commonwealth and development affairs, known as the foreign secretary, is a minister of the Crown of the Government of the United Kingdom and head of the Foreign, Commonwealth and Development Office. Seen as ...
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 the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
'' and failed the ''
Wednesbury Wednesbury () is a market town in Sandwell in the county of West Midlands, England. It is located near the source of the River Tame. Historically part of Staffordshire in the Hundred of Offlow, at the 2011 Census the town had a population of 3 ...
'' 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 A divisional court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges.Section 66, Senior Courts Act 1981. Matters heard by a divisional court include some criminal cases in the High Court ...
, where it was heard by judges
Richard Gibbs Richard "Ribbs" Gibbs (born December 5, 1955) is an American film composer and music producer whose credits include '' Dr. Dolittle'', ''Big Momma's House'', '' Queen of the Damned'', the television series '' Battlestar Galactica'' and the fir ...
and
John Laws Richard John Sinclair Laws CBE (born 8 August 1935) is a Papua New Guinean-born Australian radio announcer. For 50 years, until 2007, he was the host of an Australian morning radio program combining music with interviews, opinion, live advert ...
. 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 The Foreign, Commonwealth & Development Office (FCDO) is a department of the Government of the United Kingdom. Equivalent to other countries' ministries of foreign affairs, it was created on 2 September 2020 through the merger of the Foreig ...
(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 it did have discretion to hear the case: 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 and Commonwealth Office. Laws J 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 J 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''. Therefore, the ordinance was quashed.


Government response

In response to the Divisional Court's decision, Foreign Secretary
Robin Cook Robert Finlayson "Robin" Cook (28 February 19466 August 2005) was a British Labour politician who served as a Member of Parliament (MP) from 1974 until his death in 2005 and served in the Cabinet as Foreign Secretary from 1997 until 2001 wh ...
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. A "feasibility study" was conducted; a preliminary study was produced on 20 June 2000 and the full study was published on 10 July 2002. It concluded that: On 1 June 2004, a second Order in Council was producedthe British Indian Ocean Territory (Constitution) Order 2004Section 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 to or presence in BIOT without a permit. In response, Bancoult brought a second case, claiming that Cook's statement had created a
legitimate expectation The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a pers ...
(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. It decided that, under ''
Council of Civil Service Unions v Minister for the Civil Service ''Council of Civil Service Unions v Minister for the Civil Service'' , or the GCHQ case, is a United Kingdom constitutional law and UK labour law case that held the royal prerogative was subject to judicial review. In 1984, by issuing an Order in ...
'', the decisive element was not the origin of the power (in this case, the Royal Prerogative) but the nature of the power. Accordingly, Orders in Council were subject to judicial review. This decision was appealed to the
Court of Appeal of England and Wales The Court of Appeal (formally "His Majesty's Court of Appeal in England", commonly cited as "CA", "EWCA" or "CoA") is the highest court within the Senior Courts of England and Wales, and second in the legal system of England and Wales only to ...
, composed of Butler-Sloss, Sedley 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
Hoffmann Hoffmann is a German language, German surname. People A *Albert Hoffmann (horticulturist), Albert Hoffmann (1846–1924), German horticulturist *Alexander Hoffmann (politician), Alexander Hoffmann (born 1975), German politician *Arthur Hoffmann ...
, Bingham,
Rodger Rodger is a surname, and is a variant of Roger as a first name. First name * Rodger Arneil, Scottish rugby union player * Rodger Bain, British former record producer * Rodger Bumpass, American voice actor and actor *Rodger Corser, Australian actor ...
, Carswell and Mance. The pleadings occurred between 30 June and 3 July 2008, and judgment was issued on 22 October 2008. The judgment covered two matters: firstly, whether the courts could subject Orders in Council to judicial review; and, secondly, the legality of the 2004 Order. The Lords unanimously agreed that, while Orders in Council are 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. Accordingly,
Lord Hoffmann Leonard Hubert "Lennie" Hoffmann, Baron Hoffmann (born 8 May 1934) is a retired senior South African–British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009. Well known for his lively decisions and willingness to break ...
stated: However, by a majority of 3 to 2, the Lords upheld the legality of the Constitutional Order, including Section 9. The majorityLords Hoffmann, Rodger and Carswellheld that BIOT was a "conquered or ceded colony" and therefore was 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, calling it "extreme", and concluded that in any case no such right could not trump legislation such as an Order in Council. The phrase "peace, order and good government", they thought, should be understood as referring not just to the inhabitants of BIOT but to the governance of the region. The wording was to be treated "as apt to confer plenary lawmaking authority" and reviewing the Order was a matter for the government and Parliament, not for the courts, since it was a political issue of national security and foreign relations. At the same time, no legitimate expectation had been 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 therefore invalid. Bingham noted that the proper way to interpret an exercise of the royal prerogative was to look at how it had been 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: " e Crown has never had a prerogative power to prevent its subjects from entering the Kingdom, or to expel them from it". Accordingly, 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.McBride p. 194


Significance

''Bancoult'' was the first case to directly state that, where there is a legitimate expectation, the information must have been relied upon, leading to a detriment. In prior cases it was simply an additional element, and not explicitly required. At the same time, ''Bancoult'' 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 negative. Thomas Poole considered that the
Law Lords Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House of ...
had 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".Poole (2010) p. 153 Margit Cohn agreed, 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 described the case as an "unfortunate regression" from the GCHQ case, where judges had been willing to debate legitimate expectation in a similarly politically sensitive situation.Cohn (2009) p. 266 T. T. Arvind went further, drawing parallels with the judicial response to the
Zong Massacre The ''Zong'' massacre was a mass killing of more than 130 African enslaved people by the crew of the British slaver ship ''Zong'' on and in the days following 29 November 1781. The William Gregson slave-trading syndicate, based in Liverpool ...
to argue that the decision, despite its formalist rhetoric, was in reality a pragmatic one which abandoned centuries of settled constitutional jurisprudence in relation to the limited scope of the Royal Prerogative.Arvind (2012)


References


Bibliography

* * * * * * * * * * * * {{Chagos Islands dispute 2008 in case law Chagos Archipelago sovereignty dispute British Indian Ocean Territory Foreign, Commonwealth and Development Office House of Lords cases Royal prerogative United Kingdom administrative case law Bancoult Bancoult