Bancoult) V Secretary of State for Foreign and Commonwealth A›Airs (No 2

453 [2009] 1 AC R (Bancoult) v Foreign Secretary (No 2) (HL(E)) A House of Lords Regina (Bancoult) v Secretary of State for Foreign and Commonwealth A›airs (No 2) [2008] UKHL 61 B 2008 June 30; Lord Ho›mann, Lord Bingham of Cornhill, July 1, 2, 3; Lord Rodger of Earlsferry, Lord Carswell, Oct 22 Lord Mance Crown Ñ Colony Ñ Subordinate legislation Ñ Orders in Council for governance of colony made under royal prerogative Ñ Orders preventing return of exiled citizens Ñ Whether Orders susceptible to judicial review on grounds of illegality, C irrationality or procedural impropriety Ñ Whether vires of Orders challengeable on ground of failure to conduce to peace, order and good government Ñ Whether challengeable on ground of repugnancy to fundamental common law principle Ñ Whether Human Rights Convention relevant Ñ Whether Orders resulting from abuse of power Ñ Whether unlawful Ñ Colonial Laws Validity Act 1865 (28 & 29 Vict c 63), ss 2, 3 Ñ British Indian Ocean Territory Order 1965 (SI 1965/1920) Ñ British Indian Ocean Territory (Constitution) Order D 2004,s9 Ñ British Indian Ocean Territory (Immigration) Order 2004 In 1965 the islands of the Chagos Archipelago in the Indian Ocean, which had been ceded to Great Britain by France in the 19th century, were constituted a separate colony, the British Indian Ocean Territory (BIOT), by virtue of the British Indian Ocean Territory Order 1965. Under an Immigration Ordinance made in 1971 by the Commissioner for BIOT as the legislature of the colony, purportedly pursuant to the 1965 E Order, the inhabitants of the Chagos Islands were compulsorily removed, mainly to Mauritius, because Diego Garcia, the principal island in the archipelago, was required for a US military base. In 2000 the claimant, a British dependent territory citizen who had been born in the archipelago but had been prevented from returning there since 1971, obtained a Divisional Court order quashing the 1971 Ordinance on the ground that the exclusion of an entire population from its homeland lay outwith the purposes of the parent Order in Council. In a written ministerial statement made at that time, the Foreign Secretary accepted the Divisional F Courts ruling and announced that a new Immigration Ordinance would be put in place which would allow the islanders to return to the islands other than Diego Garcia. The Immigration Ordinance No 4 of 2000 accordingly exempted from the need for an entry permit those, including the claimant, with the relevant connection to the islands. However, in June 2004 the Government decided to reintroduce immigration controls so that the islanders would no longer be allowed to return to the outer islands without a permit. In accordance with that decision and without G consulting the islanders or having recourse to Parliament, ministers drafted two 1 Orders in Council, the British Indian Ocean Territory (Constitution) Order 2004 and the British Indian Ocean Territory (Immigration) Order 2004, which removed any right of abode and disentitled the islanders from entry or presence on the islands without specic permission. The draft Orders were placed before Her Majesty in Council who, on the advice of her ministers, without debate in Council, and exercising her prerogative powers, gave her formal assent to the Orders. The H claimant issued judicial review proceedings seeking, among other relief, a declaration that the Orders were unlawful in that they (i) without the authority of Parliament purported to remove his right to enter and reside in BIOT, and (ii) frustrated the islanders legitimate expectation, which had been raised by the ministerial statement 1 British Indian Ocean Territory (Constitution) Order 2004,s9: see post, para 1. 454 R (Bancoult) v Foreign Secretary (No 2) (HL(E))[2009] 1 AC given in 2000, that their right of abode would not be taken away, if at all, without A prior consultation and the opportunity for parliamentary discussion. The Secretary of State resisted the claim on the grounds, inter alia, that the Orders were immune from judicial scrutiny, having been made by the Queen exercising her sovereign powers in respect of the governance of a colony, and that in any event, by virtue of 2 sections 2 and 3 of the Colonial Laws Validity Act 1865 , the Orders were only susceptible to review by the courts on the basis that they were repugnant to an imperial statute extending to the colony, which was not the case. The Divisional B Court rejected the Secretary of States submissions and granted the declaration. The Court of Appeal, dismissing his appeal, a–rmed the Divisional Courts order. On appeal by the Secretary of State Held,(1) that there was no reason in principle why prerogative legislation should not, like other prerogative acts, be reviewable by the courts on ordinary principles of legality, rationality and procedural impropriety; that the Crowns prerogative power to legislate by Order in Council on the advice of its ministers in relation to a territory C such as BIOT was therefore susceptible to judicial review; and that (Lord Rodger of Earlsferry and Lord Carswell dissenting) since the British Indian Ocean Territory (Constitution) Order 2004 was not only part of the local law of BIOT but, as imperial legislation, was made in the interests of the undivided realm of the United Kingdom and its non-self-governing territories, it was not ÔÔa colonial lawÕ for the purposes of the 1865 Act and that Act, accordingly, presented no obstacle to the review 34 41 68 71 105 122 jurisdiction of the United Kingdom courts ( post paras — , , , , , D 141—142). Council of Civil Service Unions v Minister for the Civil Service [1985]AC374, HL(E) applied. Campbell v Hall (1774) 1 Cowp 204 considered. (2) Per Lord Ho›mann, Lord Rodger of Earlsferry, Lord Carswell and Lord Mance that, since BIOT had become a new political entity in 1965 to which the Convention for the Protection of Human Rights and Fundamental Freedoms E had not been extended, the Convention had no application there and the Crowns actions there could not infringe the provisions of the Human Rights Act 1998 ( post, paras 64—65, 116, 131, 142). (3) Per Lord Ho›mann, Lord Rodger of Earlsferry and Lord Carswell, that the Crowns prerogative power to legislate for a ceded territory, although expressed in customary terms, was not limited by the requirement that legislation should be for the peace, order and good government or other benet of the inhabitants of the colony, and might properly be exercised in the wider interests of the United Kingdom; F and that it was not open to the courts to strike down legislation enacted under a power so described on the ground that it did not conduce to those objects ( post, paras 48—51, 107—109, 127—130). R (Bancoult) v Secretary of State for Foreign and Commonwealth A›airs [2001] QB 1067, DC overruled. (4) Allowing the appeal (Lord Bingham of Cornhill and Lord Mance dissenting), that the vires of section 9 of the British Indian Ocean Territory (Constitution) Order G 2004 could not be challenged on the ground of its repugnancy to any fundamental principle of English common law in respect of the rights of abode of the Chagos Islanders as ÔbelongersÕ in the islands; that, having regard to the factors taken into account by the Secretary of State, in particular, the feasibility of resettlement in the context of long-term prior depopulation, together with the requirements of public expenditure and the states security and diplomatic interests, which lay peculiarly within the competence of the executive, the decision to reimpose immigration H control and prevent resettlement was neither unreasonable nor an abuse of power; that the statement made by the Secretary of State when revoking immigration controls in 2000 did not amount to a clear and unambiguous promise that the 2 Colonial Laws Validity Act 1865,ss2, 3: see post, para 36. 455 [2009] 1 AC R (Bancoult) v Foreign Secretary (No 2) (HL(E)) A Chagos Islanders would be allowed to return and settle permanently on the outer islands; and that, accordingly, no legitimate expectation had been created on which they might rely ( post, paras 44—45, 53—58, 61, 67, 102, 110—115, 117—118, 126, 132—134, 136). Decision of the Court of Appeal [2007] EWCA Civ 498;[2008]QB365;[2007] 3 WLR 768 reversed. B The following cases are referred to in the opinions of the Committee: Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223; [1947] 2 All ER 680,CA Attorney General v De Keysers Royal Hotel Ltd [1919] 2 Ch 197, CA; [1920] AC 508, HL(E) Attorney General for Canada v Cain [1906]AC542,PC 1864 C Auld v Murray (unreported) British Broadcasting Corpn v Johns [1965]Ch32;[1964] 2 WLR 1071;[1964] 1 All ER 923,CA Building Construction Employees and Builders Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965]AC75;[1964] 2 WLR 1231;[1964] 2 All ER 348, HL(Sc) Campbell v Hall (1774) 1 Cowp 204 D Chagos Islanders v Attorney General [2003] EWHC 2222 (QB); The Times, 10 October 2003;[2004] EWCACiv 997; The Times, 21 September 2004,CA Chenard & Co v Arissol [1949]AC127,PC Colenso, In re (1865) 3 Moo PC NS 115,PC Co-operative Committee on Japanese Canadians v Attorney General for Canada [1947]AC87,PC Council of Civil Service Unions v Minister for the Civil Service [1985]AC374; E [1984] 3 WLR 1174;[1984] 3 All ER 935, HL(E) Croft v Dunphy [1933]AC156,PC Doherty v Birmingham City Council [2008] UKHL 57;[2009] 1 AC 367;[2008] 3 WLR 636;[2009] 1 All ER 653, HL(E) Du›y

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