1318:
38:
607:
principle that there was a constitutional right to reside in one's own country, calling it "extreme", and concluded that in any case no such right could not trump legislation such as an Order in
Council. The phrase "peace, order and good government", they thought, should be understood as referring not just to the inhabitants of BIOT but to the governance of the region. The wording was to be treated "as apt to confer plenary lawmaking authority" and reviewing the Order was a matter for the government and Parliament, not for the courts, since it was a political issue of national security and foreign relations. At the same time, no legitimate expectation had been created following
586:. The pleadings occurred between 30 June and 3 July 2008, and judgment was issued on 22 October 2008. The judgment covered two matters: firstly, whether the courts could subject Orders in Council to judicial review; and, secondly, the legality of the 2004 Order. The Lords unanimously agreed that, while Orders in Council are pieces of primary legislation, similar to Acts of Parliament (which cannot be subject to judicial review), there is a significant difference in that Orders in Council are an executive product and lack the "representative character" that comes with Parliamentary authority and approval. Accordingly,
476:(FCO), argued that the English courts had no jurisdiction over the case, since the Crown is divisible amongst its territories, and the BIOT had its own courts. According to the FCO, Magna Carta, as a British constitutional document, was inapplicable to the Chagos Islands. They also maintained that "make laws for the peace, order and good government of the Territory" gave the Commissioner a wide enough jurisdiction to account for the order forcibly removing the Chagossians, and that the court could not decide in such a way as to force the government to break its treaty with the United States.
480:
case: while the Crown was divisible, the actions of the BIOT were clearly the actions of the
British government, since every BIOT action was ordered and dealt with by the Foreign and Commonwealth Office. Laws J found that the Magna Carta did apply to foreign nations, as it was "the nearest approach to an irreplaceable 'fundamental statute' that England has ever had ... For in brief it means this, that the King is and shall be below the law". This did not alone validate Bancoult's case, since it did not mean that the government's actions were illegal.
625:. Bingham also maintained that it was irrational, since visits to the outer islands did not threaten US security, and unacceptable, in that no consideration had been given to the Chagossians. On the subject of legitimate expectation, the dissenters maintained that the statement should be "construed according to the ordinary meaning that would be attached to it by those, principally the Chagossians and their supporters, to whom it was directed"; Bingham saw the ordinary meaning as being that the Chagossians would be allowed to return home.
650:
obvious injustices and to vindicate a modern conception of the rule of law". Margit Cohn agreed, writing on the legitimate expectation issue that "It is difficult to accept that a public statement made by a
Secretary of State, followed by the promulgation of an order that removed the previous prohibition to return, could not have created at least some sort of expectation". Cohn further described the case as an "unfortunate regression" from the
602:
the same way as any other executive action. Mr Crow rightly pointed out that the
Council of Civil Service Unions case was not concerned with the validity of a prerogative order but with an executive decision made pursuant to powers conferred by such an order. That is a ground upon which, if your Lordships were inclined to distinguish the case, it would be open to you to do so. But I see no reason for making such a distinction.
1325:
323:
484:
Commissioner's jurisdiction was to legislate "for the peace, order and good government" of BIOT. While the latitude given to the
Commissioner was wide, it "may be a very large tapestry, but every tapestry has a border". The court found that in the 1971 ordinance, the Commissioner had exceeded his authority, and the ordinance was made
511:
this Order or any other law for the time being in force in the territory". At the same time, the
British Indian Ocean Territory (Immigration) Order 2004 came into effect, prohibiting entry to or presence in BIOT without a permit. In response, Bancoult brought a second case, claiming that Cook's statement had created a
594:
The principle of the sovereignty of
Parliament, as it has been developed by the courts over the past 350 years, is founded upon the unique authority Parliament derives from its representative character. An exercise of the prerogative lacks this quality; although it may be legislative in character, it
505:
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
288:
between 30 June and 3 July 2008. In their judgment, issued on 22 October 2008, the Lords decided by a 3–2 majority to uphold the new Order in
Council, stating that it was valid and, although judicial review actions could look at Orders in Council, the national security and foreign relations issues in
641:
raised questions about the oversight of Orders in
Council, given that it highlighted the courts are unwilling to review a piece of executive legislation where there are political elements in play. The decision also raised "the classic problem of balancing human rights issues and concerns relating to
620:
Lords Bingham and Mance, dissenting, took the view that the Order in Council was unreasonable and therefore invalid. Bingham noted that the proper way to interpret an exercise of the royal prerogative was to look at how it had been exercised previously, and that he could not find any previous record
510:
On 1 June 2004, a second Order in Council was produced—the British Indian Ocean Territory (Constitution) Order 2004—Section 9 of which provided that "no person has the right of abode in the territory" and "no person is entitled to enter or be present in the territory except as authorised by or under
403:
Between 1967 and 1972 all 1,600 islanders were evacuated, and Diego Garcia continues to play a vital role in US military operations. Following a billion-dollar expansion program, the base has served as a "bomber forward operating location" for offensive operations in Afghanistan and Iraq. A US State
649:
had failed in their duty as members of the judiciary: "where old principles no longer fit contemporary constitutional and moral standards, why should we follow them? Surely the judicial task is to rework things like neo-imperial texts and outdated legal attitudes to the prerogative in order to cure
601:
AC 374, it may have been assumed that the exercise of prerogative powers was, as such, immune from judicial review. That objection being removed, I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in
531:
decided in favour of Bancoult on 11 May 2006. The court found that the "interests of BIOT must be or must primarily be those whose right of abode and unrestricted right to enter and remain was being in effect removed", and that as Section 9 of the Constitutional Order did not serve the interests of
483:
The final section of the judgment was on the legality of the Commissioner's 1971 ordinance. Laws J held that it was "elementary" that "a legislature created by a measure passed by a body which is legally prior to it must act within the confines of the power thereby conferred"; in this case that the
479:
The Divisional Court gave its judgment on 3 November 2000, on three main issues: firstly, the court's right to hear the case; secondly, the Chagossians' constitutional right of residence; and, thirdly, the status of the Commissioner's actions. The court found that it did have discretion to hear the
302:
In 2015 Bancoult went to court to argue that the judgment should be set aside due to the non-disclosure of a 2002 feasibility study relating to the resettlement of the former inhabitants of the Chagos Islands. The Supreme Court of the United Kingdom ruled against reviewing the case on 29 June 2016
465:. Bancoult's argument was made on several grounds: firstly, that the Crown could not exclude a British citizen from British territory, except in times of war, without a valid statutory basis or prerogative power. Secondly, the Chagossians had a constitutional right to inhabit their land under the
292:
The reaction to the decision was negative, with academics accusing the majority Law Lords of failing to do their job as members of the judiciary to "rework things like neo-imperial texts and outdated legal attitudes to the prerogative in order to cure obvious injustices and to vindicate a modern
606:
However, by a majority of 3 to 2, the Lords upheld the legality of the Constitutional Order, including Section 9. The majority—Lords Hoffmann, Rodger and Carswell—held that BIOT was a "conquered or ceded colony" and therefore was subject to the prerogative powers of the Crown. They rejected the
500:
stated on 3 November 2000 that he would accept the ruling, issuing the Immigration Ordinance 2000 which repealed the 1971 ordinance in its entirety. Due to "security issues", the British government was only prepared to let the Chagossians return to the outer islands, which were lacking in basic
617:, was that there must be a "clear and unambiguous" promise made that led to a reliance or a detriment; Robin Cook's statement after the first Bancoult case could not be described as a clear and unambiguous promise of resettlement, and the requirements of reliance and detriment were not met.
621:
of the prerogative being used to "exile an indigenous population from its homeland". He argued that this prerogative power did not exist: "he Crown has never had a prerogative power to prevent its subjects from entering the Kingdom, or to expel them from it". Accordingly, the Order was
1442:
305:
20:
361:, who administered them as a dependency of the Colony of Mauritius. Although the slaves were given their freedom in 1835, many remained on the Chagos Islands as contract workers, and their descendants and later immigrants are considered the indigenous people – the Chagossians.
1460:
399:
dated 30 December 1966, the UK government transferred Diego Garcia to the US for the purpose of hosting a defensive communications base. This agreement was to last for 50 years, with an additional 20-year extension if neither party wished to withdraw.
636:
was the first case to directly state that, where there is a legitimate expectation, the information must have been relied upon, leading to a detriment. In prior cases it was simply an additional element, and not explicitly required. At the same time,
469:, one which could not be abridged with delegated legislation, and third, the Commissioner of BIOT's duty to legislate "for the peace, order and good government" of BIOT's inhabitants could not be said to be fulfilled by relocating those inhabitants.
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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.
1415:
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to argue that the decision, despite its formalist rhetoric, was in reality a pragmatic one which abandoned centuries of settled constitutional jurisprudence in relation to the limited scope of the Royal Prerogative.
257:, the British Indian Ocean Territory (Constitution) Order 2004, was produced, again reinstating the off-limits nature of the Chagos Islands. Bancoult brought a second case, arguing that this Order was again
651:
597:
534:
295:
613:
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it or its inhabitants, it was irrational. At the same time, the court was asked to rule on whether an Order in Council could be questioned in judicial review proceedings. It decided that, under
654:, where judges had been willing to debate legitimate expectation in a similarly politically sensitive situation. T. T. Arvind went further, drawing parallels with the judicial response to the
1317:
425:
223:
1530:
293:
conception of the rule of law"; at the same time, their approach to legitimate expectation was also questioned, with the case described as an "unfortunate regression" from
1268:
501:
amenities. A "feasibility study" was conducted; a preliminary study was produced on 20 June 2000 and the full study was published on 10 July 2002. It concluded that:
1545:
1520:
1078:
Elliott, Mark; Amanda Perreau-Saussine (2009). "Pyrrhic public law: Bancoult and the sources, status and content of common law limitations on prerogative power".
555:
349:, France acquired the islands in the late 18th century, and slaves were brought in from Africa and India to maintain coconut plantations placed there. Following
547:
364:
In 1965, the British government reconstituted the islands as the British Indian Ocean Territory (BIOT) through the British Indian Ocean Territory Order 1965, a
1225:
Sand, Peter H. (2009). "R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs UKHL 61, 4 All E.R. 1055 (2008)".
571:
273:
250:, the Foreign Secretary, repealed the 1971 ordinance and announced he would not appeal against the decision, allowing the Chagossians to return home.
135:
203:(BIOT) in 1965 for the purpose of removing its inhabitants. Under a 1971 ordinance, the Chagossians were forcibly removed, and the central island of
1515:
710:
268:
The new Order was again struck down by the Divisional Court and Court of Appeal before proceeding to the House of Lords where it was heard by Lords
184:
48:
1525:
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575:
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140:
395:. From 1964 onwards the United States and United Kingdom had been in talks about leasing Diego Garcia to the US for military purposes, and by an
1292:
289:
the case barred them from doing so. In addition, Cook's statement had not been clear and unambiguous enough to provide legitimate expectation.
37:
1261:
543:
515:(later frustrated by the 2004 orders) and questioning the validity of the Constitution Order 2004, particularly the legality of Section 9.
454:
243:
239:
108:
102:
1424:
994:
Allen, Stephen (2007). "Looking beyond the Bancoult cases: international law and the prospect of resettling the Chagos Islands".
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542:) but the nature of the power. Accordingly, Orders in Council were subject to judicial review. This decision was appealed to the
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373:
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of the territory". Accordingly, the Commissioner issued the Immigration Ordinance 1971, an Order in Council under the
285:
150:
1540:
1057:
Cohn, Margit (2009). "Judicial review of non-statutory executive powers after Bancoult: a unified anxious model".
369:
1120:
McBride, Julie (2009). ""The Law Gives It And The Law May Take It Away": The Repercussions of Bancoult (No. 2)".
238:("beyond power" – that is, that the ordinance had been made without legal authority), a claim upheld by both the
1099:
Jeffery, Laura (2006). "Historical Narrative and Legal Evidence: Judging Chagossians' High Court Testimonies".
299:, where judges were willing to debate legitimate expectation in a similarly politically sensitive situation.
1183:
Palmer, Stephanie (2001). ""They Made a Desert and Called It Peace": Banishment and the Royal Prerogative".
1036:
Arvind, T.T. (2012). "'Though it shocks one very much': Formalism and Pragmatism in the Zong and Bancoult".
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This ordinance, with the reorganisation of the islands, was enacted to provide a method for removing the
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by passing the second Order after giving the impression that the Chagossians were free to return home.
372:. This instrument created the office of "Commissioner of BIOT", who given power to "make laws for the
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R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs
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R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs
1324:
420:
In 2000, Olivier Bancoult, a native Chagossian and leader of the Chagos Refugees Group, brought a
1277:
645:
The public and academic reaction to the decision was negative. Thomas Poole considered that the
1015:
Allen, Stephen (2008). "International law and the resettlement of the (outer) Chagos Islands".
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1171:
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Nauvel, Christian (2006). "A Return from Exile in Sight? The Chagossians and Their Struggle".
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R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs
254:
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is still an exercise of power by the executive alone. Until the decision of this House in
404:
Department letter dated 21 June 2000 described it as an "all but indispensable platform".
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for the initial ordinance which led to the Chagossian removal. Bancoult sought a writ of
226:
for the initial ordinance which led to the Chagossian removal. Bancoult sought a writ of
551:
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334:
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59:
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)
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R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)
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R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)
911:
706:
1364:
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LJJ, who agreed with the Divisional Court in their judgment issued on 23 May 2007.
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which required anyone entering or remaining in BIOT to seek permission beforehand.
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R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1)
346:
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The case was then taken to the House of Lords, where it was heard by Lords
538:, the decisive element was not the origin of the power (in this case, the
1246:
350:
322:
451:
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs
1141:
Moules, Richard. "Judicial review of prerogative Orders in Council".
611:. The standard requirement for legitimate expectation, as decided in
338:
496:
In response to the Divisional Court's decision, Foreign Secretary
321:
199:, acquired by the United Kingdom in 1814, were reorganised as the
598:
Council of Civil Service Unions v Minister for the Civil Service
535:
Council of Civil Service Unions v Minister for the Civil Service
296:
Council of Civil Service Unions v Minister for the Civil Service
1250:
261:
and unreasonable, and that the British government had violated
614:
R v North and East Devon Health Authority, ex parte Coughlan
165:
Royal Prerogative, legitimate expectation, Chagos Islands
426:
Secretary of State for Foreign and Commonwealth Affairs
224:
Secretary of State for Foreign and Commonwealth Affairs
329:, now the site of an important US armed forces base.
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523:The case first went to the Divisional Court, where
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1164:Northwestern Journal of International Human Rights
16:UK constitutional law case on the Chagos Islanders
353:'s defeat in 1814, the islands were ceded to the
1204:Poole, Thomas (2010). "The royal prerogative".
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391:as a military base, particularly the island of
446:test of reasonableness, as it was irrational.
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1531:Foreign, Commonwealth and Development Office
1206:International Journal of Constitutional Law
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1247:
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387:so that the islands could be used by the
488:. Therefore, the ordinance was quashed.
1370:Diego Garcia and Chagos Islands Council
1101:Political and Legal Anthropology Review
667:
1546:United Kingdom administrative case law
1521:Chagos Archipelago sovereignty dispute
1293:Chagos Archipelago sovereignty dispute
434:on the grounds that the ordinance was
337:are a cluster of 60 islands and seven
232:on the grounds that the ordinance was
1227:American Journal of International Law
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938:
7:
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675:
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544:Court of Appeal of England and Wales
689:
687:
14:
474:Foreign & Commonwealth Office
1323:
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374:peace, order and good government
345:. First occupied by lepers from
1516:2008 in United Kingdom case law
1038:Oxford Journal of Legal Studies
457:, where it was heard by judges
211:for use as a military outpost.
1526:British Indian Ocean Territory
1303:British Indian Ocean Territory
201:British Indian Ocean Territory
187:concerning the removal of the
1:
1380:UK Chagos Support Association
1355:Aurélie Marie-Lisette Talate
1308:Chagos Marine Protected Area
1298:Expulsion of the Chagossians
1122:Cambridge Student Law Review
370:Colonial Boundaries Act 1895
1567:
413:
18:
1314:
164:
35:
709: (22 October 2008),
191:and the exercise of the
19:Not to be confused with
1461:Chagos advisory opinion
1017:Human Rights Law Review
996:Human Rights Law Review
642:security and defence".
1345:Louis Olivier Bancoult
707:[2008] UKHL 61
604:
513:legitimate expectation
508:
330:
263:legitimate expectation
1425:Chagos Islanders v UK
1333:Key groups and people
1185:Cambridge Law Journal
1143:Cambridge Law Journal
794:Jeffery (2006) p. 230
740:Elliott (2009) p. 697
731:Jeffery (2006) p. 229
713: (United Kingdom)
325:
181:UK constitutional law
1536:House of Lords cases
1407:Bancoult v. McNamara
1375:Chagos Refugee Group
839:Palmer (2001) p. 236
472:The respondent, the
366:statutory instrument
932:Poole (2010) p. 151
902:Allen (2008) p. 684
884:Allen (2007) p. 445
866:Allen (2008) p. 685
785:Nauvel (2006) p. 97
749:Allen (2007) p. 443
722:Poole (2010) p. 149
681:Poole (2010) p. 153
492:Government response
971:Cohn (2009) p. 265
893:Sand (2009) p. 319
776:Sand (2009) p. 318
767:Cohn (2009) p. 264
758:Sand (2009) p. 317
693:Cohn (2009) p. 266
424:claim against the
331:
222:claim against the
1541:Royal prerogative
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1494:Stealing a Nation
1487:Diego l'interdite
1350:Allen Vincatassin
923:Sand (2009) p.320
540:royal prerogative
397:exchange of notes
378:Royal Prerogative
193:Royal Prerogative
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105:( EWHC Admin 413)
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111:( EWCA Civ 498)
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183:case in the
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136:Lord Bingham
91:Case history
58:
25:
1389:Legal cases
1340:Chagossians
1086:(October).
623:ultra vires
529:Cresswell J
486:ultra vires
467:Magna Carta
437:ultra vires
259:ultra vires
235:ultra vires
141:Lord Rodger
1510:Categories
1080:Public Law
1059:Public Law
663:References
498:Robin Cook
449:The case,
443:Wednesbury
431:certiorari
368:under the
248:Robin Cook
229:certiorari
218:brought a
151:Lord Mance
81:Transcript
1410:D.C. Cir.
1239:0002-9300
1218:1474-2640
1197:0008-1973
1176:1549-828X
1155:0008-1973
1134:1750-0893
1113:1081-6976
1092:0033-3565
1071:0033-3565
1065:(April).
1050:0143-6503
1029:1744-1021
1008:1744-1021
652:GCHQ case
647:Law Lords
556:Neuberger
525:Hooper LJ
463:John Laws
347:Mauritius
214:In 2000,
639:Bancoult
634:Bancoult
590:stated:
580:Carswell
568:Hoffmann
519:Judgment
351:Napoleon
282:Carswell
270:Hoffmann
242:and the
160:Keywords
73:Citation
1286:History
1280:dispute
912:UKHL 61
572:Bingham
357:in the
355:British
341:in the
274:Bingham
177:UKHL 61
76:UKHL 61
65:Decided
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576:Rodger
552:Sedley
339:atolls
278:Rodger
195:. The
1472:Media
1458:2019
1449:2018
1440:2016
1431:2015
1428:ECtHR
1422:2012
1413:2008
1404:2006
1395:2000
1233:(1).
1212:(1).
1191:(2).
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1023:(4).
1002:(3).
705:
584:Mance
313:Facts
286:Mance
179:is a
45:Court
1455:UKSC
1446:UKSC
1419:UKHL
1401:EWHC
1235:ISSN
1214:ISSN
1193:ISSN
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1151:ISSN
1130:ISSN
1109:ISSN
1088:ISSN
1084:2009
1067:ISSN
1063:2009
1046:ISSN
1025:ISSN
1004:ISSN
582:and
554:and
527:and
461:and
333:The
284:and
1464:ICJ
1437:PCA
1231:103
309:).
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