R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Waller |
| Judgment Date | 23 May 2007 |
| Neutral Citation | [2007] EWCA Civ 498 |
| Docket Number | Case No: C1/2006/1465 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2007 |
[2007] EWCA Civ 498
The Master of the Rolls
Lord Justice Waller
Vice-President of the Court of Appeal, Civil Division and
Lord Justice Sedley
Case No: C1/2006/1465
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
(LORD JUSTICE HOOPER and MR JUSTICE CRESSWELL)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr J Howell QC and Mr K Beal (instructed by The Treasury Solicitor) for the A ppellant
Sir Sydney Kentridge QC, Mr A Bradley and Ms M Lester (instructed by Messrs Sheridans) for the Respondent
Hearing dates: 5 th-7 th February and 13 th-16 th February 2007
.
| A short history | paras. 2. – 13 |
| The constitutional issues | paras. 14 – 47 |
| (1) The Colonial Laws Validity Act 1865 | paras. 15 – 30 |
| (2) Sovereign Power | paras. 31 – 47 |
| The public law issues | paras. 48 – 49 |
| The objects of colonial governance | paras. 50 – 71 |
| Legitimate expectation | paras. 72 – 77 |
| Conclusion | paras. 78—79 |
This appeal comes before the court by permission of the Divisional Court (Hooper LJ and Cresswell J) which decided the case at first instance. Their decision, in brief, was that the provisions of the Orders in Council by which the Crown in 2004 had forbidden the return of the Chagossians to the islands which they or their forebears had inhabited were invalid. Mr John Howell QC on behalf of the Secretary of State for Foreign and Commonwealth Affairs challenges the decision. Sir Sydney Kentridge QC on behalf of the representative claimant Mr Bancoult supports it on the Divisional Court's grounds and on further grounds. The case raises issues of constitutional importance. They have been canvassed in extensive submissions which, unavoidably, will have to be selectively addressed.
A short history
The Chagos Islands were ceded to Great Britain, together with Mauritius and certain other Indian Ocean dependencies, by France in 1814. In 1965 the Chagos Islands (and some other islands, later severed) were constituted a separate colony, the British Indian Ocean Territory (BIOT). Such dependencies are 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 has been recounted in detail several times in the course of the litigation which is described below. It can be found in paragraphs 6 to 20 of the judgment of the first Divisional Court [2000] All ER (D) 1675, in paragraphs 1 to 96 of the judgment of Ouseley J [2003] EWHC 2222 (QB), in paragraphs 3 to 9 of this court's judgment [2004] EWCA (Civ) 997, and in paragraphs 13 to 74 of the judgment of the second Divisional Court [2006] EWHC 1038 (Admin) against which this appeal is brought. In spite of the submission by counsel for the Secretary of State of yet further historical material, much of it argumentative, it is unnecessary, in the light of the full narrative contained in the earlier judgments, to make reference to more of the factual history than is set out below.
Under an Immigration Ordinance made in 1971 by the Commissioner for BIOT, the inhabitants of the Chagos Islands were compulsorily removed, mainly to Mauritius, because Diego Garcia, the principal island in the archipelago, was required in the 1960s for use by the United States as a military base. The strategic significance of this base is a political judgment which there has been no attempt to question in these proceedings. Diego Garcia, however, is 100 miles from Peros Banhos and over 60 miles from the nearest of the other Chagos Islands.
Concomitantly with this process, in 1967 the Crown acquired the freehold interest in the entire territory of BIOT and in 1983 declared it Crown land.
In November 2000, a Divisional Court (Laws LJ and Gibbs J, [2001] QB 1067, DC) quashed the 1971 Ordinance on the ground that the exclusion of an entire population from its homeland lay outside the purposes of the parent Order in Council, the British Indian Ocean Territory Order 1965, which were limited to the governance of the population and did not encompass its expulsion. It is relevant to the present proceedings that it was the subsidiary Ordinance and not the empowering Order in Council which was quashed.
In October 2003 Ouseley J [2003] EWHC 2222 (QB) struck out civil proceedings for compensation and for a declaration of the claimants' right to return to the Chagos Islands, holding that none of the pleaded causes of action was sustainable. This court (The President, Sedley and Neuberger LJJ, [2004] EWCA (Civ) 997) upheld his decision in a judgment refusing permission to appeal. The judgment noted that the causes of action had been geared to the recovery of damages and that no separate claims to declaratory relief had been developed. It concluded:
“It may not be too late to make return possible, but such an outcome is a function of economic resources and political will, not of adjudication.”
The political will to repatriate the Chagossians to the Islands other than Diego Garcia had been evinced by the Foreign Secretary, Mr Robin Cook, in immediate response to the Divisional Court's judgment of 3 November 2000:
“I have decided to accept the Court's ruling and the Government will not be appealing.
The work we are doing on the feasibility of resettling the Ilois [viz the Chagossians] now takes on a new importance. We started the feasibility work a year ago and are now well underway with phase two of the study.
Furthermore, we will put in place a new Immigration Ordinance which will allow the Ilois to return to the outer islands while observing our Treaty obligations.
The Government has not defended what was done or said thirty years ago. As Lord Justice Laws recognised, we made no attempt to conceal the gravity of what happened. I am pleased that he has commended the wholly admirable conduct in disclosing material to the Court and praised the openness of today's Foreign Office.”
The new Immigration Ordinance (Ordinance 4 of 2000) accordingly exempted from the need for an entry permit anyone who was a British Dependent Territories citizen by virtue of his or her connection with the BIOT. Such a connection existed if the applicant or one of his or her parents or grandparents had been born in the Chagos Islands, and the exemption covered the spouse and dependent children of any such applicant. In substance, the Chagossians were permitted to return home.
The feasibility study reported in 2002 that while short-term resettlement was feasible on a subsistence basis, long-term resettlement would be “precarious and costly”. There was no indication of any consequent change in government policy.
Then on 10 June 2004, a week before this court was to hear the application for permission to appeal from the decision of Ouseley J, two Orders in Council were placed by ministers before Her Majesty for approval: the British Indian Ocean Territory (Constitution) Order 2004 (“the Constitution Order”) and the British Indian Ocean Territory (Immigration) Order 2004 (“the Immigration Order”). In the Divisional Court's words, the first of these Orders
“declared that no person has the right of abode in BIOT nor the right without authorisation to enter and remain there. The Chagossians were thus effectively exiled.”
It was not until 15 June 2004 that a written ministerial statement was placed before the House of Commons, citing the feasibility study (now two years old) and containing these paragraphs:
“In effect, therefore, anything other than short-term resettlement on a purely subsistence basis would be highly precarious and would involve expensive underwriting by the UK government for an open-ended period—probably permanently. Accordingly, the Government considers that there would be no purpose in commissioning any further study into the feasibility of resettlement; and that it would be impossible for the Government to promote or even permit resettlement to take place. After long and careful consideration we have therefore decided to legislate to prevent it.
Equally, restoration of full immigration control over the entire territory is necessary to ensure and maintain the availability and effective use of the Territory for defence purposes, for which it was in fact constituted and set aside in accordance with the UK's treaty obligations entered into almost 40 years ago. Especially in the light of recent developments in the international security climate since the November 2000 judgment, this is a factor to which due weight has had to be given.
It was for these reasons that on 10 June 2004 Her Majesty made two Orders in Council, the combined effect of which is to restore full immigration control over all the islands of the British Indian Ocean Territory. These controls extend to all persons, including members of the Chagossian community.”
Thus, despite a candid ministerial acknowledgment to Parliament less than a month later that “the decisions made by successive governments in the 1960s and 1970s to depopulate the islands do not, to say the least, constitute the finest hour of UK foreign policy”, those decisions were replicated in 2004.
The constitutional issues
Although the Divisional Court dealt with it last, Mr Howell's first ground of appeal is that any attack on the validity of a colonial Order in Council made under the royal prerogative is precluded by the...
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