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

(back to preceding text)

63.  Even if it could be so construed, I consider that there was a sufficient public interest justification for the adoption of a new policy in 2004. For this purpose it is relevant that no one acted to their detriment on the strength of the statement, that the rights withdrawn were not of practical value to the Chagossians and that the decision was very much concerned with the “macro-political field.”

64.  That leaves two points which were not considered by the Divisional Court or the Court of Appeal and which were lightly touched upon in argument but upon which the House is invited to rule. They are whether, in principle, the validity of the Constitution Order may be affected by the Human Rights Act 1998 or by international law. I do not think that the Human Rights Act 1998 has any application to BIOT. In 1953 the United Kingdom made a declaration under article 56 of the European Convention on Human Rights extending the application of the Convention to Mauritius as one of the “territories for whose international relations it is responsible". That declaration lapsed when Mauritius became independent. No such declaration has ever been made in respect of BIOT. It is true that the territory of BIOT was, until the creation of the colony in 1965, part of Mauritius. But a declaration, as appears from the words “for whose international relations it is responsible” applies to a political entity and not to the land which is from time to time comprised in its territory. BIOT has since 1965 been a new political entity to which the Convention has never been extended.

65.  If the Convention has no application in BIOT, then the actions of the Crown in BIOT cannot infringe the provisions of the Human Rights Act 1998: see R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529. The applicant points out that section 3 of the BIOT Courts Ordinance 1983 provides that the law of England as in force from time to time shall apply to the territory. So, they say, the Human Rights Act, when enacted, became part of the law of the territory. So be it. But the Act defines Convention rights (in section 21(1)) as rights under the Convention “as it has effect for the time being in relation to the United Kingdom". BIOT is not part of the United Kingdom and the Human Rights Act, though it may be part of the law of England, has no more relevance in BIOT than a local government statute for Birmingham.

66.  As for international law, I do not understand how, consistently with the well-established doctrine that it does not form part of domestic law, it can support any argument for the invalidity of a purely domestic law such as the Constitution Order.

67.  I would allow the appeal, set aside the orders of the Divisional Court and the Court of Appeal and dismiss the application.


My Lords,

68.  The issue in this appeal is whether section 9 of the British Indian Ocean Territory (Constitution) Order 2004 is lawful. The courts below held it to be unlawful. For reasons given by my noble and learned friend Lord Mance, which I would respectfully endorse and adopt, I agree with that conclusion. Without wishing to detract from or contradict my noble and learned friend’s reasoning and analysis in any way, I would state in briefest summary what seem to me the key factors pointing to the unlawfulness of the section. I gratefully adopt and need not repeat the summary of the factual background given by my noble and learned friends Lord Hoffmann and Lord Mance.

69.  Section 9 was given effect in exercise (or purported exercise) of the royal prerogative to legislate by order in council. The royal prerogative, according to Dicey’s famous definition (An Introduction to the Study of the Law of the Constitution (8th ed, 1915, p 420)), is “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown". It is for the courts to inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398E. Over the centuries the scope of the royal prerogative has been steadily eroded, and it cannot today be enlarged (British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32, 79E). As an exercise of legislative power by the executive without the authority of Parliament, the royal prerogative to legislate by order in council is indeed an anachronistic survival. When the existence or effect of the royal prerogative is in question the courts must conduct an historical inquiry to ascertain whether there is any precedent for the exercise of the power in the given circumstances. “If it is law, it will be found in our books. If it is not to be found there, it is not law": Entick v Carrington (1765) 19 St Tr 1030, 1066. Such an inquiry was carried out by the Court of Appeal ([1919] 2 Ch 197) and the House ([1920] AC 508, 524-528, 538-539, 552-554, 563, 573) in Attorney-General v De Keyser’s Royal Hotel Limited. In Burmah Oil Company (Burma Trading) Limited v Lord Advocate [1965] AC 75, 101, Lord Reid said:

“The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times?”

70.  The House was referred to no instance in which the royal prerogative had been exercised to exile an indigenous population from its homeland. Authority negates the existence of such a power. Sir William Holdsworth, A History of English Law, vol X, p 393, states:

“The Crown has never had a prerogative power to prevent its subjects from entering the kingdom, or to expel them from it.”

Laws LJ, in para 39 of his Bancoult I judgment which the Secretary of State accepted, cited further authority:

“For my part I would certainly accept that a British subject enjoys a constitutional right to reside in or return to that part of the Queen’s dominions of which he is a citizen. Sir William Blackstone says in 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.’ Compare Chitty, A Treatise on the law of the Prerogatives of the Crown and the Relative Duties and Rights of the Subject (1820), pp 18, 21. Plender, International Migration Law , 2nd ed (1988), ch 4, p 133 states: ‘The principle that every state must admit its own nationals to its territory is accepted so widely that its existence as a rule of law is virtually beyond dispute …’ and cites authority of the European Court of Justice in Van Duyn v Home Office (Case 41/74) [1975] Ch 358, 378-379 in which the court held that ‘it is a principle of international law . . . that a state is precluded from refusing its own nationals the right of entry or residence'. Dr Plender further observes, International Migration Law, p 135: ‘A significant number of modern national constitutions characterise the right to enter one’s own country as a fundamental or human right', and a long list is given. And I should cite this passage, at pp 142-143:

‘Without exception, the remaining dependencies of the United Kingdom impose systems of immigration control applicable to British citizens coming from the United Kingdom and to those from other dependencies. In two very exceptional cases, immigration control is applied to all persons whatever. Elsewhere, a distinction is drawn between those who belong to the territory and are accordingly immune from immigration control and those who do not belong. In several instances, the statute uses the very word “belonger". Thus, a person has the right to land in Hong Kong if he is a ‘Hong Kong belonger.’

Dr Plender’s ‘two very exceptional cases’ are the British Antarctic Territory and BIOT. The British Antarctic Territory has no belongers. BIOT has.”

This is not a surprising conclusion, since the relationship between the citizen and the Crown is based on reciprocal duties of allegiance and protection and the duty of protection cannot ordinarily be discharged by removing and excluding the citizen from his homeland. It is not, I think, suggested that those whose homes are in former colonial territories may be treated in a way which would not be permissible in the case of citizens in this country. Hence the disingenuous pretence, in the 1960s-1970s, that there was no population which belonged to the outer islands of the Chagos Archipelago, to which alone this dispute relates. It is unnecessary to consider whether some power such as that claimed might be exercisable in the event of natural catastrophe or acute military emergency, since none such existed. Nor is it to the point that the Queen in Parliament could have legislated to the effect of section 9: it could, but not without public debate in Parliament and democratic decision.

71.  I accordingly conclude that there was no royal prerogative power to make an order in council containing section 9, and it is accordingly void. But if (contrary to that conclusion) there was power to make it, I agree with my noble and learned friends that the section is susceptible in principle to review by the courts. Applying familiar judicial review principles, I am satisfied that section 9 was unlawful on two main grounds.

72.  First, section 9 was irrational in the sense that there was, quite simply, no good reason for making it:

(1)  It is clear that in November 2000 the re-settlement of the outer islands (let alone sporadic visits by Mr Bancoult and other Chagossians) was not perceived to threaten the security of the base on Diego Garcia or national security more generally. Had it been, time and money would not have been devoted to exploring the feasibility of resettlement.

(2)  The United States Government had not exercised its treaty right to extend its base to the outer islands.

(3)  Despite highly imaginative letters written by American officials to strengthen the Secretary of State’s hand in this litigation, there was no credible reason to apprehend that the security situation had changed. It was not said that the criminal conspiracy headed by Osama bin Laden was, or was planning to be, active in the middle of the Indian Ocean. In 1968 and 1969 American officials had expressly said that they had no objection to occupation of the outer islands for the time being.

(4)  Little mention was made in the courts below of the rumoured protest landings by LALIT. Even now it is not said that the threatened landings motivated the introduction of section 9, only that they prompted it. Had the British authorities been seriously concerned about the intentions of Mr Bancoult and his fellow Chagossians they could have asked him what they were.

(5)  Remarkably, in drafting the 2004 Constitution Order, little (if any) consideration appears to have been given to the interests of the Chagossians whose constitution it was to be.

(6)  Section 9 cannot be justified on the basis that it deprived Mr Bancoult and his fellows of a right of little practical value. It cannot be doubted that the right was of intangible value, and the smaller its practical value the less reason to take it away.

73.  Secondly, section 9 contradicted a clear representation made by the then Secretary of State in his press release of 3 November 2000. There was no representation that the outer islands would be resettled irrespective of the findings of the feasibility study, or that Her Majesty’s Government would finance resettlement, and it was implicitly acknowledged that observance of its Treaty obligations might in future oblige the Government to close the outer islands. But there was in my opinion a clear and unambiguous representation, devoid of relevant qualification, that (1) the Government would not be challenging the Divisional Court’s decision that Mr Bancoult and his fellow Chagossians had been unlawfully excluded from the outer islands for nearly 30 years, (2) the Government would introduce a new Immigration Ordinance which would allow the Chagossians to return to the outer islands unless or until the United Kingdom’s treaty obligations might at some later date forbid it, and (3) the Government would not persist in treating the Chagossians as it had reprehensibly done since 1971. This representation was clearly addressed to Mr Bancoult and those associated with him in the litigation. It was fortified by the making, on the same day, of the Immigration Ordinance 2000 which made special provision for persons (like Mr Bancoult and the Chagossians) who were British Dependent Territories citizens under the British Nationality Act 1981 by virtue of their connection with the British Indian Ocean Territory, together with their spouses and dependent children. Mr Bancoult and his fellows were clearly intended to think, and did, that for the foreseeable future their right to return was assured. The Government could not lawfully resile from its representation without compelling reason, which was not shown. It is not in such circumstances necessary for the representee to show that he has relied on or suffered detriment in reliance on the representation. In any event, by analogy with the law of estoppel, it is enough if the representee would suffer detriment if the representor were to resile from his representation (Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641).

74.  I would for my part dismiss the appeal.


My Lords,

75.  The unhappy - indeed, in many respects, disgraceful - events of forty years ago which have ultimately led to this appeal are described in detail in various court decisions and, in particular, in the appendix to the judgment of Ouseley J in Chagos Islanders v Attorney General Her Majesty’s British Indian Ocean Territories Commissioner [2003] EWHC 2222 (QB). The speech of my noble and learned friend, Lord Hoffmann, includes a briefer, but vivid, description of the islanders’ way of life and of how they came to leave the Chagos Archipelago. He has also explained the course of the various litigations. It would serve no useful purpose for me to repeat what he has said. It all forms the background to the legal issue which the House has to decide, viz, whether section 9 of the British Indian Ocean Territory (Constitution) Order 2004 (“the Constitution Order”) is valid. It is common ground that, if section 9 is invalid, the same must go for the relevant provisions of the British Indian Ocean Territory (Immigration) Order 2004 (“the Immigration Order”).

76.  In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529 there was a dispute as to the capacity in which Her Majesty in Council had given an instruction to the Commissioner of South Georgia and the South Sandwich Islands. At the hearing of the present appeal, however, it was common ground that the Constitution Order was made by Her Majesty in right of the United Kingdom.

77.  The ultimate source of much of the argument of Sir Sydney Kentridge QC on behalf of Mr Bancoult was chapter 29 of Magna Carta, one of the few provisions of the charter which is still on the statute book for England and Wales. It provides inter alia:

“No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled … but by lawful judgment of his Peers, or by the Law of the Land.”

Starting from there, Sir Sydney first argued that, while Parliament could pass a law exiling the Chagossians from the islands, the Queen in Council had no power to do so under the royal prerogative. In any event, he submitted, when making the Order, the Secretary of State who advised Her Majesty had failed to take account of the interests of the islanders, as he was required to do. Further, following the judgment of the Divisional Court in 2000 ([2001] QB 1067), the then Foreign Secretary, Mr Cook, had made a statement which gave rise to a legitimate expectation on the part of the Chagossians that they would be allowed to return to live on the outer islands. There were no sufficient policy reasons to entitle the Secretary of State to defeat that legitimate expectation by advising Her Majesty to enact the Constitution Order containing section 9.

78.  On behalf of the Secretary of State Mr Crow QC sought to head off these challenges with two fundamental arguments. First, he said that the Constitution Order was primary legislation enacted by Her Majesty in Council under the royal prerogative and that, as such, it was not open to review by the courts. Secondly, he argued that, in any event, a challenge was precluded by sections 2 and 3 of the Colonial Laws Validity Act 1865 (“the 1865 Act”) which provide:

“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.”

79.  The Chagos Archipelago, along with Mauritius, was formerly a French dependency. Under the Treaty of Paris 1814, the French King ceded them to the British Crown. It follows that Mauritius and its dependencies, including the Archipelago, were a ceded colony: Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (1966), p 727. That remains the legal position so far as BIOT is concerned. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (“Bancoult No 1“) [2001] QB 1067, 1102, para 52, Laws LJ so held and, at the hearing before the House, both parties proceeded on that basis.

80.  The division of colonies into settled and conquered or ceded colonies has been described as “arcane” and Professor Tomkins was disappointed that in Bancoult No 1 Laws LJ had relied on “such ancient and formal niceties": A Tomkins, “Magna Carta, Crown and Colonies” [2001] Public Law 571, 579. Laws LJ was surely right to do so, however. Just like much of the rest of our law, colonial law has developed over centuries. What makes it different is that, for obvious reasons, courts are rarely called upon to apply it today and so there are comparatively few modern cases. Nevertheless, when Parliament has not intervened to alter them, the rule of law requires courts to apply the established principles - such as the readily comprehensible distinction between ceded and settled colonies - on which the whole body of colonial law rests. I should add that, precisely because the case raises questions of colonial law, in the discussion I have referred to “colonies” etc, even though, of course, in today’s terminology, BIOT is one of the small number of British Overseas Territories.

81.  The classification into settled and ceded colonies matters in this case because it has been settled law since the decision of Lord Mansfield CJ in Campbell v Hall (1774) 1 Cowp 204 that the King (without the concurrence of Parliament) can legislate for a ceded colony, unless he has granted it a representative legislature. See also In re Lord Bishop of Natal (1865) 3 Moore (NS) 114. In the present case, there is, of course, no representative legislature: apart from Her Majesty in Council, the only person who can legislate for the Territory is the Commissioner, acting under section 10 of the Constitution Order.

82.  In Campbell v Hall Lord Mansfield described the King’s power of legislation in the case of a ceded colony in this way, 1 Cowp 204, 209:

“The 6th and last proposition is, that if the King (and when I say the King, I always mean the King without the concurrence of Parliament,) has a power to alter the old and to introduce new laws in a conquered country, this legislation being subordinate, that is, subordinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles: he cannot exempt an inhabitant from that particular dominion; as for instance, from the laws of trade, or from the power of Parliament, or give him privileges exclusive of his other subjects; and so in many other instances which might be put.”

What matters at the moment is that the King’s power to legislate for a ceded colony without the concurrence of Parliament is only subordinate, ie, subordinate to his legislative power with the concurrence of Parliament. It follows that, without the concurrence of Parliament, the King cannot legislate for the colony in a way that would conflict with the provisions of any Act of Parliament extending to the colony.

83.  In settled colonies the common law of England and “such statutes as have been passed in affirmance of the common law previous to their acquisition, are in force there…": W Forsyth, Cases and Opinions on Constitutional Law (1869), p 18. Therefore, if Mauritius had been a settled colony, it would be highly arguable that Magna Carta had “followed the flag” and had formed part of the common law of the island and its dependencies from the time of their settlement.

84.  In fact, however, Mauritius was ceded to the British Crown in 1814 and, in accordance with the terms of the Treaty of Paris, French law continued to apply. The relevant principle is that “the laws of a conquered country continue in force, until they are altered by the conqueror": Campbell v Hall 1 Cowp 204, 209. At no time while Mauritius was a colony was legislation passed to replace the existing law of the island or its dependencies, wholesale, with the law of England. Therefore, when the Chagos Archipelago was separated from Mauritius in 1965, chapter 29 of Magna Carta formed no part of its statute law.

85.  On 1 February 1984, however, section 3 of the British Indian Ocean Territory Courts Ordinance 1983 came into force and provided that the law of the Territory was to be the law of England as from time to time in force:

“Provided that the said law of England shall apply in the Territory only so far as it is applicable and suitable to local circumstances, and shall be construed with such modifications, adaptations, qualifications and exceptions as local circumstances render necessary.”

The change in law was to be subject to, inter alia, prerogative Orders in Council which applied or extended to BIOT.

86.  Mr Crow did not argue that chapter 29 of Magna Carta was not applicable or suitable to the circumstances of BIOT. So I proceed on the basis that it applies and that no-one can be exiled from BIOT “but by the Law of the Land.” Prima facie, however, the law of BIOT includes both the Constitution Order and the Immigration Order. So, unless they can be said to be invalid for some reason, there is nothing in the terms of chapter 29 of Magna Carta which would make any banishment of the Chagossians by virtue of these Orders unlawful.

87.  Of course, Sir Sydney contended that the Orders were indeed invalid. In the words of Lord Mansfield in Campbell v Hall, 1 Cowp 204, 209, Her Majesty had no power to legislate by Order in Council “contrary to fundamental principles” of English common law. And, he submitted, the right of a “belonger” not to be excluded from the territory to which he belonged was just such a fundamental principle. As support for its existence, in addition to chapter 29 of Magna Carta, Sir Sydney cited the statement of Blackstone, Commentaries on the Laws of England (15th edition, 1809) vol 1, p 137, that “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.” I accept that both of these point to the existence of such a principle.

88.  Although not cited by counsel, there are two other passages which might tend to support the view that the right not to be banished from a British colony is indeed a fundamental principle of English law. In his British Rule and Jurisdiction beyond the Seas (1902), p 6, Sir Henry Jenkyns said that, while in a ceded or conquered colony the existing law is usually presumed to continue until altered, nevertheless “any laws contrary to the fundamental principles of English law, e g torture, banishment, or slavery, are ipso facto abrogated.” Among the authorities cited in support of that proposition is a passage from the judgment of Lord de Grey CJ in Fabrigas v Mostyn (1773) 20 St Tr 82. In 1771 Minorca was a ceded colony of the British Crown. The Governor, General Mostyn, apparently fearing that Fabrigas would stir up danger for the garrison, committed him to the worst prison on the island, with no bed and only bread and water, and with no contact with his family. He then confined him “on board a ship, under the idea of a banishment to Carthagena.” Fabrigas sued General Mostyn for damages in the King’s Bench. Upholding the award of £3,000 as damages against him, Lord de Grey said, at col 181:

“I do believe Mr Mostyn was led into this, under the old practice of the island of Minorca, by which it was usual to banish: I suppose the old Minorquins thought fit to advise him to this measure. But the governor knew that he could no more imprison him for a twelvemonth, than he could inflict the torture; yet the torture, as well as the banishment, was the old law of Minorca, which fell of course when it came into our possession. Every English governor knew he could not inflict the torture; the constitution of this country put an end to that idea. This man is then dragged on board a ship, with such circumstances of inhumanity and hardship, as I cannot believe of general Mostyn; and he is carried into a foreign country, and of all countries the worst; for I believe there are directions given, that no persons should go to Spain, or be permitted to quit the port of Carthagena.”

See also, generally, Forsyth, Cases and Opinions on Constitutional Law, p 13.

Continue  Previous