R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER |
| Judgment Date | 23 May 2006 |
| Neutral Citation | [2006] EWHC 1038 (Admin) |
| Docket Number | Case No: CO/4093/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 May 2006 |
[2006] EWHC 1038 (Admin)
Lord Justice Hooper
Mr Justice Cresswell
Case No: CO/4093/2004
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Sir Sydney Kentridge QC, Mr Anthony Bradley and Miss Maya Lester (instructed by Sheridans) for the Claimant
John Howell QC and Mr Kieron Beal (instructed by The Treasury Solicitor) for the Defendant
This is the judgment of the Court.
Introduction
The claimant is one of a group of people who, on 9 June 2004, had a right to enter and remain in the British Indian Ocean Territory ("BIOT") (other than on the island of Diego Garcia), a right which had been reaffirmed by the British Government in 2000. The members of the group prefer to be known as Chagossians, and we shall use that word to describe them. Traditionally they have been known as Ilois, a Creole word for islanders.
The BIOT consists of the islands of the Chagos Archipelago. The right to live on the islands of the Chagos Archipelago had been enjoyed by the group's Chagossian ancestors, some of whom were probably slaves who had worked on the plantations in the Archipelago and were subsequently freed.
On 10 June 2004 the British Indian Ocean Territory (Constitution) Order 2004 (the "Constitution Order") made by Her Majesty in Council 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.
The claimant seeks a declaration from the Court that the provisions of the Constitution Order are unlawful. It is said that, whereas Parliament could remove these rights, the Queen by Order in Council could not do so. If, alternatively, the Queen by Order in Council could remove these rights then the purported exercise of the power is unlawful.
The source of the power to make the Order in Council was the Royal prerogative. Neither Her Majesty nor the members of the Privy Council present that day (which, coincidentally, included me) considered the merits of the Order. The Queen in Council acts upon the advice of a Minister, in the present case, the Secretary of State for Foreign and Commonwealth affairs. In reality the order was that of the Secretary of State although, of course, the Queen formally assented to it.
The defendant submits that an Order in Council made for a British Overseas Territory (what used to be called a colony) is not justiciable, in other words immune from all review by the courts whether by the courts in this country or by the court established for BIOT. If the defendant's argument is right, then an Order drafted by a Secretary of State in relation to a colony to which Order the Queen in Council has assented, enjoys the same sovereign immunity at least as that of Parliament. That might be thought by many to be extraordinary and indeed as long ago as 1774 Mansfield CJ in Campbell v Hall (1774) 1 Cowp. 204 stated that, at common law, the powers of the Queen in Council to legislate for a colony were restricted.
An Ordinance made by the then Commissioner in 1971 in similar terms to the 2004 Constitution Order was quashed by the Divisional Court (Laws LJ and Gibbs J) in R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2001] 1 QB 1067, which we shall call "Bancoullt (1)". Laws LJ (paragraph 57) said that the relevant section of the Ordinance "effectively exiles the Chagossians from their territory where they are belongers and forbids their return" (a proposition which the defendant disputes on the grounds that they could apply for a permit!).
Following the judgment in Bancoult (1) the Government accepted the decision. Mr Robin Cook MP, the Secretary of State for Foreign and Commonwealth Affairs announced:
"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 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.
This Government has not defended what was done or said thirty years ago."
By virtue of the British Indian Ocean Territory (Immigration) Order 2004 ("the Immigration Order"), also made by Her Majesty in Council, presence within the Territory without a permit became an offence punishable by 3 years' imprisonment. It is clear that no permit will be granted to allow Chagossians to resume living in any of the islands.
The claimant was born of Chagossian parents in 1964 on Peros Banhos, one of the islands within the Chagos Archipelago. It is, like other islands in the Archipelago, no more than about 2 metres above sea level. The Chagos Archipelago is not unique in this respect. The well populated Maldives also does not exceed an altitude of 6 feet above sea level.
In 1967 the family travelled to Mauritius to seek medical treatment for the claimant's infant sister, who had been badly injured. The claimant has only returned to Peros Banhos once since 1967. He was permitted to make a visit in connection with earlier litigation. Reliance was placed by the defendant on the fact that the claimant had not lived in Perhos Banhos since the age of three, with the implication (so it seemed to us) that there was therefore no substance in his complaints. If that is what the defendant was suggesting, then we reject it. In "Recalling Community in Cape Town" a book (not referred to in argument) which examines the clearance of District 6 in Cape Town under the apartheid regime, a member of an evicted family states:
"Some may say I was too young to remember, but now that I am older how could I forget?"
Likewise in the foreward to a book entitled "A Prisoner in the Garden" Nelson Mandela wrote:
"In the life of any individual, family, community or society, memory is of fundamental importance. It is the fabric of identity."
Background to the creation of the British Indian Ocean Territory in 1965
The Chagos Archipelago lies in the middle of the Indian Ocean. It is approximately 2,200 miles east of Mombasa in Kenya and a little over 1,000 miles south by west of the southern tip of India. It is 1,174 miles from Mauritius and 1,010 miles from Mahe, Seychelles. The largest island in the group is Diego Garcia; its irregular u-shaped sides enclose a large, deep lagoon. The group includes the Salomon islands, the islands of Peros Banhos, as well as a number of smaller islands.
The Chagos islands, with Mauritius, were ceded by France to the Crown by the Treaty of Paris in 18The islands were administered by the Crown from Mauritius as one of its "Lesser Dependencies", along with St Brandon and Agalega. Their economy was based on the production of copra and its by-product, coconut oil, from the coconut plantations. During the 19th century, the freeholds passed into the private hands of the companies which ran the plantations. The plantation companies provided the sole source of employment on the islands (other than a meteorological station on Diego Garcia), although a few children, women and elderly people served as servants for plantation company staff in order to earn their rations. These were provided together with other necessaries and other limited services by the plantation companies, including a small dispensary, very basic medical attention, limited educational facilities and a priest. The abolition of slavery in 1833, and the entitlement of slaves to remain in the colony in which they were freed, meant that many slaves had continued to work the plantations.
Although in theory from 1838 all Mauritian labourers were on contracts of one to two years' duration, renewable annually, many plantation workers continued working without a written renewal of their contracts. The contracts could only be renewed in front of a Magistrate on his occasional, supposedly annual, visits but even that was not routinely done, at least in latter years. Contracts were sometimes renewed when a worker returned from Mauritius following leave or a trip for medical purposes.
Over time, the plantation workers, whether recruits from Mauritius who stayed on or the descendants of slaves who never left, had families. Some of the children would leave for Mauritius, where relatives might be and to which they looked for a more varied life; they might not return. Others would become, from an early age, and after at best the most rudimentary and brief education, plantation workers. They would inter-marry, or marry Mauritian recruited labourers and in turn have families. After the Second World War, Seychelles labourers were recruited as well, and some too inter-married, or married existing residents starting families on the islands.
The population came to consist of three strands, Mauritian and Seychelles contract workers and, to a degree intermingled with them, those who had been born on the islands and whose families had lived there for one or more generations. These latter were known as the Ilois, a term not always used with a precise or commonly agreed definition. Most of them lived on Diego Garcia, the largest island. They now describe themselves as "Chagossians", but again with no precise or commonly agreed definition. Chagossians is a name which they prefer to "Ilois" because that has come to have pejorative connotations.
On 23 October 1953 a...
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