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.

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