R (Bancoult) v Foreign Secretary (No 2)

Facts

The Chagos Islanders were removed from the Chagos Archipelago, part of the British Indian Ocean Territory, between 1967 and 1973 to make way for a United States military base on Diego Garcia. In an earlier case a court held that the 1971 ordinance excluding them from the territory was unlawful, and the government announced that it would allow return to the outer islands. After a feasibility study that indicated that resettlement would be precarious and costly, the government made new Orders in Council in 2004 that again prohibited entry into the territory without permission.

History

The Divisional Court quashed the 2004 Orders. The Court of Appeal dismissed the Foreign Secretary's appeal. The Foreign Secretary appealed to the House of Lords, which allowed the appeal.

Issue

Whether an Order in Council made under the royal prerogative to legislate for an overseas territory is open to judicial review, and if so whether the 2004 Orders were unlawful for irrationality, breach of legitimate expectation or as contrary to the right of abode.

Held

The appeal was allowed by three to two and the 2004 Orders were upheld. Prerogative legislation for an overseas territory is subject to review on ordinary grounds, but the Orders were rational and no legitimate expectation had been breached.

Ratio

• An Order in Council made under the prerogative for a territory is subject to judicial review on the same grounds as other executive acts, but the court will not intervene unless the decision was irrational, and a decision on defence and foreign policy grounds attracts deference.
• The Orders were not irrational, since the government was entitled to take account of the cost, practical difficulty and security implications of resettlement, and the earlier statements gave no unqualified promise of return.

The judgments

Key reasoning

• Orders in Council for a territory are exercises of prerogative power and are therefore not immune from review, whether or not they take legislative form.
• The courts will review the rationality of the decision but will give weight to the executive's assessment of foreign policy and defence matters.
• The earlier ministerial statements were conditional on feasibility and on the agreement with the United States, so they did not create a legitimate expectation that return would be allowed.

Where it fits in the module

Bancoult appears in the study of the Crown and the prerogative because it concerns the reviewability of prerogative legislation and the degree of deference owed. It engages the tension between legal accountability and political discretion, and the effect of earlier assurances by ministers. It also raises the wider question of how far the prerogative can be used to take away rights that were recognised in earlier proceedings.

Criticisms

• The majority gave very limited weight to the Chagossians' rights and to the earlier decision of the court, so that a government can in effect reverse a judicial finding by reissuing the measure by Order in Council.
• The deference to the executive on the facts of the feasibility study means that the rationality test was applied with little scrutiny of the evidence relied upon.
• The reasoning that the Crown's power to legislate for peace, order and good government includes exile treats a colonial power as unbounded by rights of abode, which is hard to reconcile with the constitutional right of citizens to remain in their homeland.