Judgments - R (On The Application of Bancoult) V Secretary of State For Foreign and Commonwealth Affairs

(back to preceding text)

32.  Authority for these propositions will be found in Lord Mansfield’s judgment in Campbell v Hall (1774) 1 Cowp 204 (“no question was ever started before, but that the King has a right to a legislative authority over a conquered country.”) This appeal requires your Lordships to determine the limits of that power.

33.  On this point, both sides put forward what I would regard as extreme propositions. On the one hand, Mr Crow argued the courts had no power to review the validity of an Order in Council legislating for a colony. This was either because it was primary legislation having unquestionable validity comparable with that of an Act of Parliament, or because review was excluded by the terms of the Colonial Laws Validity Act 1865. On the other hand, Sir Sydney submitted that a right of abode was so sacred and fundamental that the Crown could not in any circumstances have power to remove it. Only an Act of Parliament could do so. I would reject both of these propositions.

34.  It is true that a prerogative Order in Council is primary legislation in the sense that the legislative power of the Crown is original and not subordinate. It is classified as primary legislation for the purposes of the Human Rights Act 1998: see paragraph (f)(i) of the definition in section 21(1). That means that it cannot be overridden by Convention rights. The court can only make a declaration of incompatibility under section 4.

35.  But the fact that such Orders in Council in certain important respects resemble Acts of Parliament does not mean that they share all their characteristics. The principle of the sovereignty of Parliament, as it has been developed by the courts over the past 350 years, is founded upon the unique authority Parliament derives from its representative character. An exercise of the prerogative lacks this quality; although it may be legislative in character, it is still an exercise of power by the executive alone. Until the decision of this House in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, it may have been assumed that the exercise of prerogative powers was, as such, immune from judicial review. That objection being removed, I see 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. Mr Crow rightly pointed out that the Council of Civil Service Unions case was not concerned with the validity of a prerogative order but with an executive decision made pursuant to powers conferred by such an order. That is a ground upon which, if your Lordships were inclined to distinguish the case, it would be open to you to do so. But I see no reason for making such a distinction. On 21 February 2008 the Foreign Secretary told the House of Commons that, contrary to previous assurances, Diego Garcia had been used as a base for two extraordinary rendition flights in 2002 (Hansard (HC Debates), cols 547-548). There are allegations, which the US authorities have denied, that Diego Garcia or a ship in the waters around it have been used as a prison in which suspects have been tortured. The idea that such conduct on British territory, touching the honour of the United Kingdom, could be legitimated by executive fiat, is not something which I would find acceptable.

36.  The argument based on the Colonial Laws Validity Act is rather more arcane. The background to the Act is the statement of Lord Mansfield in Campbell v Hall (1774) 1 Cowp 204, 209 that although the King had power to introduce new laws into a conquered country, he could not make “any new change contrary to fundamental principles.” If the King’s power did not extend to making laws contrary to fundamental principles (presumably, of English law) in conquered colonies, it was regarded as arguable, in the first half of the nineteenth century, that the same limitation applied to the legislatures of settled colonies. It was never altogether clear what counted as fundamental principles and the Colonial Laws Validity Act was intended to put the question to rest by providing that no colonial laws should be invalid by reason of repugnancy to any rule of English law except a statute extending to the colony. In section 1 it defined “colonial law” as a law made for a colony by its legislature or by Order in Council. It defined “colony” as “all of Her Majesty’s possessions abroad in which there shall exist a legislature". It then provided:

“2.  Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

3.  No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid.”

37.  Mr Crow submits that BIOT is a colony with a legislature, namely, the Commissioner. The Constitution Order is a law made for the Colony by Order in Council and therefore a “colonial law". It therefore cannot be void or inoperative by reason of its repugnancy to English common law doctrines of judicial review.

38.  The Court of Appeal rejected this argument on the ground that the 1865 Act was concerned with the repugnancy of otherwise valid colonial laws to the law of England. The principles of judicial review, on the other hand, determined whether the Order in Council was valid in the first place. No question of repugnancy arose because, if the Order in Council was beyond the powers of Her Majesty in Council, there was no colonial law which could be repugnant to anything.

39.  In a paper written for the Oxford Law Faculty (Common Law Constraints: Whose Common Good Counts? (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1100628) Professor Finnis of University College has persuasively argued that this is a slippery argument because repugnancy to English law (or fundamental principles of English law) can be regarded, and was regarded in the first half of the nineteenth century, as limiting the powers of colonial legislatures rather than as being an independent ground for invalidating laws otherwise validly made. I agree that a distinction between initial invalidity for lack of compliance with doctrines of English public law and invalidity for repugnancy to English law is too fine to be serviceable.

40.  Nevertheless, I would reject the argument based on the Colonial Laws Validity Act for a different reason. In my opinion the Act was intended to deal with the validity of colonial laws (whether made by the local legislature or by Her Majesty in Council) from the perspective of their forming part of the local system of laws administered by the local courts. Section 3 made it clear that in considering the validity of such laws, the courts were not to concern themselves with the law of England, although they might well apply local principles of judicial review identical with those existing in English law. But these proceedings are concerned with the validity of the Order, not simply as part of the local law of BIOT but, as Professor Finnis says, as imperial legislation made by Her Majesty in Council in the interests of the undivided realm of the United Kingdom and its non-self-governing territories. The Constitution Order created the BIOT legislature, in the form of the Commissioner, and it seems to me to illustrate the amphibious nature of the Order in Council, as both British and colonial legislation, that the legislature which is said to bring BIOT within the definition of a colony for the purposes of the Act was created by the very Order which is said to be a law “made for a colony". The fact is that Parliament in 1865 would simply not have contemplated the possibility of an Order in Council legislating for a colony as open to challenge in an English court on principles of judicial review. It was concerned with the law applicable by colonial courts, not English courts.

41.  It therefore seems to me that from the point of view of the jurisdiction of the courts of the United Kingdom to review the exercise of prerogative powers by Her Majesty in Council, the Constitution Order is not a colonial law, although it may well have been from the point of view of a BIOT court applying BIOT law.

42.  Sir Sydney’s proposition that the Crown does not have power to remove an islander’s right of abode in the Territory is in my opinion also too extreme. He advanced two reasons. The first was that a right of abode was a fundamental constitutional right. He cited the 29th chapter of Magna Carta:

“No freeman shall be taken, or imprisoned...or exiled, or any otherwise destroyed…but by the lawful judgment of his peers, or by the law of the land.”

43.  "But…by the law of the land” are in this context the significant words. Likewise Blackstone (Commentaries on the Laws of England (15th ed 1809) vol 1, p 137):

“But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal.”

44.  That remains the law of England today. The Crown has no authority to transport anyone beyond the seas except by statutory authority. At common law, any subject of the Crown has the right to enter and remain in the United Kingdom whenever and for as long as he pleases: see R v Bhagwan [1972] AC 60. The Crown cannot remove this right by an exercise of the prerogative. That is because since the 17th century the prerogative has not empowered the Crown to change English common or statute law. In a ceded colony, however, the Crown has plenary legislative authority. It can make or unmake the law of the land.

45.  What these citations show is that the right of abode is a creature of the law. The law gives it and the law may take it away. In this context I do not think that it assists the argument to call it a constitutional right. The constitution of BIOT denies the existence of such a right. I quite accept that the right of abode, the right not to be expelled from one’s country or even one’s home, is an important right. General or ambiguous words in legislation will not readily be construed as intended to remove such a right: see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131-132. But no such question arises in this case. The language of section 9 of the Constitution Order could hardly be clearer. The importance of the right to the individual is also something which must be taken into account by the Crown in exercising its legislative powers - a point to which I shall in due course return. But there seems to me no basis for saying that the right of abode is in its nature so fundamental that the legislative powers of the Crown simply cannot touch it.

46.  Next, Sir Sydney submitted that the powers of the Crown were limited to legislation for the “peace, order and good government” of the Territory. Applying the reasoning of the Divisional Court in Bancoult (1), he said that meant that the law had to be for the benefit of the inhabitants, which could not possibly be said of a law which excluded them from the Territory.

47.  There are two answers to this submission. The first is the prerogative power of the Crown to legislate for a ceded colony has never been limited by the requirement that the legislation should be for the peace, order and good government or otherwise for the benefit of the inhabitants of that colony. That is the traditional formula by which legislative powers are conferred upon the legislature of a colony or a former colony upon the attainment of independence. But Her Majesty exercises her powers of prerogative legislation for a non-self-governing colony on the advice of her ministers in the United Kingdom and will act in the interests of her undivided realm, including both the United Kingdom and the colony: see Halsbury’s Laws of England (4th ed 2003 reissue) vol 6, para 716:

“The United Kingdom and its dependent territories within Her Majesty’s dominions form one realm having one undivided Crown…To the extent that a dependency has responsible government, the Crown’s representative in the dependency acts on the advice of local ministers responsible to the local legislature, but in respect of any dependency of the United Kingdom (that is, of any British overseas territory) acts of Her Majesty herself are performed only on the advice of the United Kingdom government.”

48.  Having read Professor Finnis’s paper, I am inclined to think that the reason which I gave for dismissing the cross-appeal in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529, 551 was rather better than the reason I gave for allowing the Crown’s appeal and that on this latter point Lord Nicholls of Birkenhead was right.

49.  Her Majesty in Council is therefore entitled to legislate for a colony in the interests of the United Kingdom. No doubt she is also required to take into account the interests of the colony (in the absence of any previous case of judicial review of prerogative colonial legislation, there is of course no authority on the point) but there seems to me no doubt that in the event of a conflict of interest, she is entitled, on the advice of Her United Kingdom ministers, to prefer the interests of the United Kingdom. I would therefore entirely reject the reasoning of the Divisional Court which held the Constitution Order invalid because it was not in the interests of the Chagossians.

50.  My second reason for rejecting Sir Sydney’s argument is that the words “peace order and good government” have never been construed as words limiting the power of a legislature. Subject to the principle of territoriality implied in the words “of the Territory", they have always been treated as apt to confer plenary law-making authority. For this proposition there is ample authority in the Privy Council (R v Burah (1878) 3 App Cas 889; Riel v The Queen (1885) 10 App Cas 675; Ibralebbe v The Queen [1964] AC 900) and the High Court of Australia Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1). The courts will not inquire into whether legislation within the territorial scope of the power was in fact for the “peace, order and good government” or otherwise for the benefit of the inhabitants of the Territory. So far as Bancoult (1) departs from this principle, I think that it was wrongly decided.

51.  Sir Sydney placed great reliance upon a statement of Evatt J in Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation (1933) 49 CLR 220, 234 that the question was “whether the law in question can be truly described as being for the peace, order and good government of the Dominion concerned.” But this statement must not be wrenched from the context in which it was made. The judge was concerned with the principle of territoriality (the case was about whether Australian estate duty could be levied on movables situated abroad) and the emphasis was on the words “of the Dominion concerned". There was no suggestion that if the law satisfied the principle of territoriality (as this law and the Immigration Ordinance 1971 in Bancoult (1) obviously did) the courts could inquire into whether its objects could be said to be peace, order and good government.

52.  Having rejected the extreme arguments on both sides, I come to what seems to me the main point in this appeal, namely the application of ordinary principles of judicial review. On this question there was a radical difference in the approaches advocated by the parties. Mr Crow said that because the Crown was acting in the interests of the defence of the realm, diplomatic relations with the United States and the use of public funds in supporting any settlement on the islands, the courts should be very reluctant to interfere. Judicial review should be undertaken with a light touch and the Order set aside only if it appeared to be wholly irrational. Sir Sydney, on the other hand, said that because the Order deprived the Chagossians of the important human right to return to their homeland, the Order should be subjected to a much more exacting test. As he said in his printed case (at para 137):

“Where a measure affects fundamental rights, or has profoundly intrusive effects, the courts will employ an ‘anxious’ degree of scrutiny in requiring the public body in question to demonstrate that the most compelling of justifications existed for such measures.”

53.  I would not disagree with this proposition, which is supported by a quotation from the judgment of Sir Thomas Bingham MR in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554. However, I think it is very important that in deciding whether a measure affects fundamental rights or has “profoundly intrusive effects", one should consider what those rights and effects actually are. If we were in 1968 and concerned with a proposal to remove the Chagossians from their islands with little or no provision for their future, that would indeed be a profoundly intrusive measure affecting their fundamental rights. But that was many years ago, the deed has been done, the wrong confessed, compensation agreed and paid. The way of life the Chagossians led has been irreparably destroyed. The practicalities of today are that they would be unable to exercise any right to live in the outer islands without financial support which the British Government is unwilling to provide and which does not appear to be forthcoming from any other source. During the four years that the Immigration Ordinance 2000 was in force, nothing happened. No one went to live on the islands. Thus their right of abode is, as I said earlier, purely symbolic. If it is exercised by setting up some camp on the islands, that will be a symbol, a gesture, aimed at putting pressure on the government. The whole of this litigation is, as I said in R v Jones (Margaret) [2007] 1 AC 136, 177 “the continuation of protest by other means". No one denies the importance of the right to protest, but when one considers the rights in issue in this case, which have to be weighed in the balance against the defence and diplomatic interests of the state, it should be seen for what it is, 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. It is of course true that a person does not lose a right because it becomes difficult to exercise or because he will gain no real advantage by doing so. But when a legislative body is considering a change in the law which will deprive him of that right, it cannot be irrational or unfair to consider the practical consequences of doing so. Indeed, it would be irrational not to.

54.  My Lords, I think that if one keeps firmly in mind the practical effect of section 9 of the Constitution Order, the issues in this appeal fall into place. The government does not consider that it is 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 a resettlement which it has decided would be uneconomic. That is a view it is entitled to take. In the Court of Appeal, Sedley LJ treated the question of funding as irrelevant. The applicant was not asking for an order that the government fund resettlement. To focus on the logistics of resettlement was, he said, to miss the point:

“The point is that the two Orders in Council negate one of the most fundamental liberties known to human beings, the freedom to return to one’s own homeland, however poor and barren the conditions of life…”

55.  I respectfully think that this misses the point. Funding is the subtext of what this case is about. The Chagossians have, not unreasonably, shown no inclination to return to live Crusoe-like in poor and barren conditions of life. The action is, like Bancoult (1), a step in a campaign to achieve a funded resettlement. The attempt to achieve that through domestic litigation foundered before Ouseley J. But that does not mean that the Secretary of State is bound to assume that these expensive proceedings are purely academic. The Secretary of State is surely entitled to take into account that once a vanguard of Chagossians establishes itself on the islands in poor and barren conditions of life, there may be a claim that the United Kingdom is 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 to send reports to the Secretary-General.

56.  It is true that the Chagossians will now require immigration consent even to visit the islands. But the government have made it clear that such visits, to tend graves and so forth, will be allowed, and since in practice they are funded by the BIOT administration, immigration consent will be no more than an additional formality. Furthermore, there is no reason why, if at some time in the future, circumstances should change, the controls should not be lifted.

57.  In addition, as Mr Rammell told the House of Commons, the government had to give due weight to security interests. The United States had expressed concern that any settlement on the outer islands would compromise the security of its base on Diego Garcia. A representative of the State Department wrote a letter for use in these proceedings, giving details of the ways in which it was feared that the islands might be useful to terrorists. Some of these scenarios might be regarded as fanciful speculations but, in the current state of uncertainty, the government is entitled to take the concerns of its ally into account.

58.  Policy as to the expenditure of public resources and the security and diplomatic interests of the Crown are peculiarly within the competence of the executive and it seems to me quite 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.

59.  The applicant’s alternative ground for judicial review was that the Foreign Secretary’s press announcement after the judgment in Bancoult (1), accompanied by the revocation of immigration controls by the 2000 Ordinance, was a promise which created a legitimate expectation that the islanders would be free from such controls. In the absence of a change in relevant circumstances, the Crown should be required to keep its promise.

60.  The relevant principles of administrative law were not in dispute between the parties and I do not think that this is an occasion on which to re-examine the jurisprudence. It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is “clear, unambiguous and devoid of relevant qualification": see Bingham LJ in R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called “the macro-political field": see R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, 1131.

61.  In my opinion this claim falls at the first hurdle, that is, the requirement of a clear and unambiguous promise. The Foreign Secretary said that the Crown accepted the decision in Bancoult (1) that the 1971 Immigration Ordinance was outwith the powers the BIOT Order and that a new Ordinance would be made which would allow “the Ilois to return to the outer islands". This was done. Nothing was said about how long that would continue. But the background to the statement was the ongoing study “on the feasibility of resettling the Ilois". If that resulted in a decision to resettle, then one would expect the right of abode of the Chagossians on the outer islands to continue. On the other hand, if it did not, the whole situation might need to be reconsidered. It was obvious that no one contemplated the resettlement of the Chagossians unless the government, taking into account the findings of the feasibility study, decided to support it. If they did not, a new situation would arise. The government might decide that little harm would be done by leaving the Chagossians with a theoretical right to return to the islands and for two years after the feasibility report, that seems to have been the view that was taken. But the Foreign Secretary’s press statement contained no promises about what, in such a case, would happen in the long term.

62.  No doubt the Chagossians saw things differently. As we have seen, they tried to persuade the government that the press statement amounted to the adoption of a policy of resettlement. They realised that what mattered was whether the government was willing to fund resettlement. Otherwise they had secured an empty victory. But the question is what the statement unambiguously promised and in my opinion it comes nowhere near a promise that, even if there could be no resettlement, immigration control would not be reimposed.

Continue  Previous