R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,MR JUSTICE GIBBS |
| Judgment Date | 03 November 2000 |
| Neutral Citation | [2000] EWHC 413 (Admin) |
| Docket Number | Case No: CO/3775/98 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 November 2000 |
[2000] EWHC J1103-6
Lord Justice Laws
Mr Justice Gibbs
Case No: CO/3775/98
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(THE ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Sydney Kentridge QC, Laurens Fransman QC and Anthony Bradley (instructed by Sheridans for the Appellant)
David Pannick QC, Philip Sales, Cecilia Ivimy (instructed by Treasury Solicitors for the Respondents)
Introductory
The Chagos Archipelago is in the middle of the Indian Ocean. Its islands and Mauritius were ceded by France to Great Britain in 1814. From that date until 1965 the Archipelago was governed as part of the British colony of Mauritius, though Mauritius itself is some 1,000 —1,200 miles distant from the Archipelago. On at least some of the islands there lived in the 1960s a people called the Ilois. They were an indigenous people: they were born there, as were one or both of their parents, in many cases one or more of their grandparents, in some cases (it is said) one or more of their great-grandparents. Some may perhaps have traced an earlier indigenous ancestry. In the 1960s by agreement between the governments of the United Kingdom and the United States of America it was resolved that there be established a major American military base upon the chief island of the Archipelago, Diego Garcia. There is no doubt but that the defence facility which the base provides is of the highest importance. In a letter of 21 June 2000 from the US Department of State it is described as "an all but indispensable platform" for the fulfilment of defence and security responsibilities in the Arabian Gulf, the Middle East, South Asia and East Africa. In order to facilitate the establishment of the base, the Archipelago was first divided from Mauritius and constituted (together with certain other islands) as a separate colony to be known as the "British Indian Ocean Territory" ("BIOT"). That was done by the British Indian Ocean Territory Order 1965 ("the BIOT Order"). Then in 1971 the whole of the Ilois population of BIOT (and other civilians living there) were compulsorily removed to Mauritius. Their removal was effected under a measure called the Immigration Ordinance 1971 ("the Ordinance"). The Ordinance was made by the Commissioner for BIOT ("the Commissioner"), who is the second respondent in these proceedings for judicial review. He was an official created by s.4 of the BIOT Order. He made, or purportedly made, the Ordinance under powers conferred by s.11 of the BIOT Order. As a matter of fact he made it, as is effectively accepted by Mr David Pannick QC for the respondents, upon the orders of the Queen's Ministers in London. The first respondent is the Secretary of State for the Foreign and Commonwealth Office. The principal issue in the case is whether there was any lawful power to remove the Ilois from BIOT, in the manner in which that was done. There is also a question whether this court has any jurisdiction to entertain the case. The applicant is an Ilois from Peros Banhos in the Archipelago. Leave to seek judicial review was granted by Scott Baker J on 3 March 1999 after a hearing on notice. No point is now or was then taken by either respondent as to time or delay.
Though it will be necessary to examine other legislation, it is convenient by way of introduction to set out the relevant terms of the BIOT Order and the Ordinance. I should first say that the BIOT Order was made on 8 November 1965 by "Her Majesty, by virtue and in exercise of the powers in that behalf by the Colonial Boundaries Act 1895, or otherwise in Her Majesty vested". The Act of 1895 merely regulates the alteration of a colonial boundary, when that is sought to be done: it affords no source of the vires of the BIOT Order for presently relevant purposes. It was common ground at the Bar, and it seems to me plainly to be right, that the BIOT Order is an Order in Council made under the powers of the Royal Prerogative.
Ss.3 —5 of the BIOT Order provide:
"3. As from the date of this Order -
(a)the Chagos Archipelago, being islands which immediately before the date of this Order were included in the Dependencies of Mauritius, and
(b)the Farquhar Islands, the Aldabra Group and the Island of Desroches, being islands which immediately before the date of this Order were part of the Colony of Seychelles,
shall together form a separate colony which shall be known as the British Indian Ocean Territory.
4. There shall be a Commissioner for the Territory who shall be appointed by Her Majesty by Commission under Her Majesty's Sign Manual and Signet and shall hold office during Her Majesty's pleasure.
5. The Commissioner shall have such powers and duties as are conferred or imposed upon him by or under this Order or any other law and such other functions as Her Majesty may from time to time be pleased to assign to him, and, subject to the provisions of this Order and any other law by which any such powers or duties are conferred or imposed, shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him."
S.8 empowers the Commissioner to authorise a delegate to discharge functions of his as may be specified. S.8(3) authorises the Queen acting through a Secretary of State to vary or revoke any such authorisation. S.10:
"The Commissioner, in the name and on behalf of Her Majesty, may constitute such offices for the Territory as may lawfully be constituted by Her Majesty and, subject to the provisions of any law for the time being in force in the Territory and to such instructions as may from time to time be given to him by Her Majesty through a Secretary of State, the Commissioner may likewise -
(a) make appointments, to be held during Her Majesty's pleasure, to any office so constituted; and
(b) dismiss any person so appointed or take such other disciplinary action in relation to him as the Commissioner may think fit.
S.11 of the BIOT Order is of critical importance to the central arguments in the case. So far as relevant it provides:
"(1) The Commissioner may make laws for the peace, order and good government of the Territory, and such laws shall be published in such manner as the Commissioner may direct.
(2) Any laws made by the Commissioner may be disallowed by Her Majesty through a Secretary of State.
(3) Whenever any law has been disallowed by Her Majesty, the Commissioner shall cause notice of such disallowance to be published in such manner as he may direct.
(4) Every law disallowed shall cease to have effect as soon as notice of disallowance is published as aforesaid, and thereupon any enactment amended or repealed by, or in pursuance of, the law disallowed shall have effect as if the law had not been made."
S.15(1) provides:
"Except to the extent that they may be repealed, amended or modified by laws made under section 11 of this Order or by other lawful authority, the enactments and rules of law that are in force immediately before the date of this Order in any of the islands comprised in the Territory shall, on and after that date, continue in force therein but shall be applied with such adaptations, modifications and exceptions as are necessary to bring them into conformity with the provisions of this Order."
Ss.16 and 17 deal with the establishment of courts and judicial proceedings. This is important for the purposes of the point taken by the Crown to the effect that this court lacks all jurisdiction to entertain these proceedings, and it is convenient here to summarise what has been done under these provisions. There has been established a Supreme Court for BIOT, designated as a superior court of record. It possesses "unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law and with all powers, privileges and authority which is vested in or capable of being exercised by the High Court of Justice in England" (BIOT Ordinance No. 3 of 1983, s.6). Thus it plainly has power, at least in general terms, to entertain judicial review proceedings against the Commissioner. It may sit in Diego Garcia or in England. An appeal from the Supreme Court lies to the BIOT Court of Appeal, from which a final appeal lies (no doubt only with special leave) to the Privy Council.
Lastly, s.19 of the BIOT Order provides:
"There is reserved to Her Majesty full power to make laws from time to time for the peace, order and good government of the British Indian Ocean Territory (including, without prejudice to the generality of the foregoing, laws amending or revoking this Order)."
The relevant provisions of the Ordinance are as follows. S.4, which is the critical measure for the purposes of this case, was in these terms:
"(1) No person shall enter the Territory or, being in the Territory, shall be present or remain in the Territory, unless he is in possession of a permit or his name is endorsed on a permit in accordance with the provisions of section 5 and section 7 of this Ordinance respectively.
(2) The provisions of this section shall not apply to members of Her Majesty's Forces, or to persons in the public service of Seychelles or the Territory or in the service of any of Her Majesty's Departments of State, while on duty, or to such other persons as may be prescribed."
S.9:
"It shall be unlawful for any person to enter the Territory or to be present or to remain in the Territory in contravention of the provisions of section 4 of this Ordinance…"
S.10 provides in part:
"(1) The Commissioner may make an order directing that any person whose presence...
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