Court of Appeal Published May 31, 2007
Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs
(No 2)
Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Waller and Lord
Justice Sedley
Judgment May 23, 2007
The use of orders in council to frustrate a ruling of the court in order to
prevent the return of Chagos Islanders to their homeland was an unlawful
abuse of power by the executive government.
The Court of Appeal so held in a reserved judgment, dismissing an appeal by
the Secretary of State for Foreign and Commonwealth Affairs against the
Queen’s Bench Divisional Court (Lord Justice Hooper and Mr Justice
Cresswell) ( The Times May 23, 2006), who granted Louis Olivier Bancoult’s
judicial review claim and quashed sections 9 and 15(2) of the British Indian
Ocean Territory (Constitution) Order 2004 and declared section 5(1) of the
British Indian Ocean Territory (Immigration) Order 2004 inapplicable.
Mr John Howell, QC and Mr Kieron Beal for the secretary of
state; Sir Sydney Kentridge, QC, Mr Anthony Bradley and Miss Maya
Lester for the claimant.
LORD JUSTICE SEDLEY said that the case raised issues of constitutional
importance.
The Chagos Islands were ceded to Great Britain by France in 1814. In 1965 the
islands were constituted a separate colony, the British Indian Ocean
Territory. Such dependencies were ordinarily governed by or under orders in
council made in the exercise of the prerogative power of the Crown.
The exiling of the Chagossian population by the use of prerogative powers in
the 1960s and 1970s had been recounted in R v Secretary of State for
Foreign and Commonwealth Affairs, Ex parte Bancoult (“Bancoult No 1”)
(The Times November 11, 2000; [2001] QB 1067, paragraphs 6 to 20); in Chagos
Islanders v Attorney-Gener-al and Another ( The Times October 10, 2003;
and September 21, 2004) and in the judgment under appeal.
Under British Indian Ocean Territory Ordinance No 1 of 1971, the inhabitants
of the Chagos Islands were compulsorily removed, mainly to Mauritius,
because Diego Garcia, the principal island in the archipelago, was required
for use by the United States of America as a military base.
Concomitantly with that process, in 1967 the Crown acquired the freehold
interest in the British Indian Ocean Territory and in 1983 declared it Crown
land.
In November 2000 the Divisional Court quashed the 1971 Immigration Ordinance
on the ground that the exclusion of an entire population from its homeland
lay outside the purposes of the British Indian Ocean Territory Order in
Council (SI 1965 No 1920): see Bancoult (No 1).
Following that decision, on November 3, 2000, Mr Robin Cook, then Foreign
Secretary, stated that he accepted the court’s ruling and that a new
immigration ordinance would be put in place which would allow the islanders
to return to the outer islands, although not to Diego Garcia. A new
immigration ordinance accordingly exempted the need for an entry permit to
those with the relevant connection to the islands.
However, on June 10, 2004 the orders in question were placed by ministers
before her Majesty for approval. The orders declared that no person had the
right of abode in the territory, nor the right without authorisa-tion to
enter and remain there. The Divisional Court below held that to be unlawful.
The secretary of state’s first ground of appeal was that any attack on the
validity of a colonial order in council made under the Royal Prerogative was
precluded by the Colonial Laws Validity Act 1865 (28 and 29 Vict c 63).
The second and third grounds were, in substance, that the government of a
ceded colony by order in council was not a ministerial act but a sovereign
act of the Crown, challengeable only on the ground of incompatibility with
imperial legislation.
If either argument was right, the executive would have accomplished by order
in council what it was prevented in Bancoult (No 1) from doing by
ordinance.
The Royal Prerogative was amenable to judicial review where the subject matter
was appropriate: see Council of Civil Service Unions v Minister for the
Civil Service ([1985] AC 374).
In his Lordship's judgment, the 1865 Act had neither the purpose nor the
effect of barring all such challenges. Before any question of repugnancy to
an act of the imperial Parliament could arise, a colonial measure had first
to be law. The present dispute was not about whether the Constitution Order
was void as being repugnant to a superior statute or other legal provision,
but about whether it was law.
The secretary of state nevertheless submitted that constitutionally and
legally it was the Monarch and not the minister who made a colonial order in
council and that that placed the process outside the jurisdiction of the
courts.
The only acceptable answer was that an order in council was an act of the
executive and as such was amenable to any appropriate form of judicial
review, whether anticipatory or retrospective. What determined the
constitutional status of a measure “a statute, a judgment or an order” was
not its formal authority, which was always that of the Crown, but its source
in the interlocking but unequal limbs of the state.
The present case concerned not a sovereign act of the Crown but a potentially
justiciable act of executive government. Were the court to hold otherwise,
it would create an area of ministerial action free both of Parliamentary
control and judicial oversight, defined moreover not by subject matter but
simply by the mode of enactment. The implications of such a situation for
both democracy and the rule of law did not need to be spelt out.
Provided the subject matter was apt for adjudication, any abuse of power in
the making or the operation of an order in council was in principle
justiciable. The prerogative power of colonial governance enjoyed no generic
immunity from judicial review.
What were immune were prerogative measures lawfully enacted and rationally
capable of addressing the peace, order and good government of the colony.
The next question was whether the 2004 Constitution Order, and with it the
2004 Immigration Order, was lawfully made. The challenge to the constitution
order was that it was ultra vires because it was unconnected with the
governance of the territory, and that it fell to be quashed for
irrationality, or for breach of the Chagossians’ legitimate expectation of a
right to return.
In his Lordship’s judgment, the orders in council negated one of the most
fundamental liberties known to human beings, the freedom to return to one’s
homeland, however poor and barren the conditions of life and contingent
though entry might be on the property rights of others; and they did that
for reasons unconnected with the well being of the people affected.
There was a second and separate reason why section 9 of the Constitution Order
and the entire Immigration Order could not stand.
By enacting them, the secretary of state had impermissibly frustrated the
legitimate expectation, created by his own predecessor in office, that the
Chagossians would be vouchsafed a right of return.
Notwithstanding the great latitude which the prerogative power of colonial
governance enjoyed, the orders were unlawfully made because both their
content and the circumstances of their enactment constituted an abuse of
power on the part of executive government.
LORD JUSTICE WALLER, agreeing in part, said that he would uphold the decision
of the Divisional Court to set aside those parts of the orders in council
which had the effect of reversing the position adopted by the government in
November 2000.
THE MASTER OF THE ROLLS, agreeing in substantial respects with both judgments,
said that the decision to make the orders and the making of the orders were
abuses of power on the ground that they frustrated the islanders’ legitimate
expectation and because they did not have proper regard for their interests.
Solicitors: Treasury Solicitor; Sheridans.
