In 1814,
France ceded to Great Britain the Chagos Archipelago in the central Indian
ocean south of Maldives, together with some other dependencies. The U. K.
constituted the Chagos Islands in 1965 as a separate colony, the British Indian
Ocean Territory (BIOT). Orders in Council made in the exercise of the
prerogative powers of the Crown ordinarily govern such dependencies.
Under an
Immigration Ordinance made in 1971 by the Commissioner for BIOT, the U. K.
forcibly exiled the Chagossians mainly to distant Mauritius. The reason was
that, in the 1960s, the United States claimed that it needed Diego Garcia, the
principal island in the archipelago, as a military base. (The strategic
significance of this base is a political judgment which neither party here has
challenged.) Incidentally, in 1967, the Crown had acquired the freehold
interest in the entire territory of BIOT and in 1983 had declared it to be
Crown land.
Pursuant to
a lawsuit brought on behalf of the islanders, a first instance court quashed
the 1971 Ordinance in November 2000. It held that the exclusion of an entire
population from its homeland under the the BIOT Order 1965 lay outside the
purposes of the parent Order in Council. The latter, it said, dealt only with
the governance of the population and did not authorize its expulsion. The lower
court had quashed only the subsidiary Ordinance and not the empowering Order in
Council.
In November
2000, the Foreign Secretary evinced the Government’s “political will” to
repatriate the Chagossians to all Islands other than Diego Garcia. The
Government said that it was doing feasibility studies looking toward
substantial returns by native Chagossians. It declared in part that: “we will
put in place a new Immigration Ordinance which will allow the [Chagossians] to
return to the outer islands while observing our Treaty obligations [with the
United States.] The Government has not defended what was done or said thirty
years ago. The new Immigration 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 birth in the BIOT as well as because their
parents or grandparents’ were born there.
In 2002,
however, the Government feasibility study reported that, while short‑term
resettlement was practicable on a subsistence basis, long‑term resettlement
would be “precarious and costly”. There was no other suggestion of any
resulting change in Government policy.
Then, on
June 10, 2004, the ministers placed two Orders in Council before Her Majesty
for approval: the BIOT (Constitution) Order 2004 (the Constitution Order) and
the BIOT (Immigration) Order 2004 (the Immigration Order). In the first
instance 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.”
On June 15,
2004, the ministers placed a written statement before the House of Commons,
citing the two‑year‑old feasibility study and containing some of the following
language. “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 U. K. government for an open‑ended period ‑‑
probably permanently. ...”
“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 U. K.’s treaty obligations entered into almost 40
years ago. Especially in the light of recent developments in the international
security climate ... this is a factor to which due weight has had to be given.”
[¶ 12]
For these
reasons, Her Majesty made two Orders in Council on June 10, 2004. Their
combined effect is to restore full immigration control over the BIOT islands.
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 U. K. foreign policy,” [¶ 13] the then Government re‑adopted those decisions
in 2004.
The lower
court ruled 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. For the reasons outlined below, the
Court of Appeal (Civil Division) dismisses the Government’s appeal.
As the lead
opinion explains, repugnancy as a legislative term means an irreconcilable
conflict between two laws. There is no reason to import into the scheme of the
Colonial Laws Validity Act of 1865 any departure from the logical principle
that, before any question of repugnancy to an Act of the imperial Parliament
can arise, a colonial measure has first to be law.
“If an
unconstitutional colonial statute is not law — as manifestly it is not — no
question of repugnancy arises. The present dispute, equally, is not about
whether the Constitution Order is repugnant to a superior statute or other
legal provision but about whether it is law. It is accordingly not barred by
the 1865 Act.” [¶ 30]
But the
Government contends that the powers which Her Majesty in Council exercises when
legislating for a colony are the same as those which she may exercise in
Parliament — in other words, that they are plenary sovereign powers. The only
qualifications Government counsel is prepared to accept are that it must not
exercise the power repugnantly to any imperial parliamentary legislation or
inconsistently with the principle of territoriality.
The question
now to be decided is whether there are today at common law any larger
constraints upon the prerogative power to legislate for the colonies. As Mr.
Anson stated the point simply in his Law and Custom of the Constitution (3rd
ed, 1907), II.i, p.41: “The position of affairs has been reversed since 1714
[namely, the accession of George I]. Then the King or Queen governed through
Ministers, now Ministers govern through the instrumentality of the Crown.” Or
as Lord Diplock put it in Council of Civil Service Unions v. Minister for the
Civil Service [1985] A.C. 374, 409 [the CCS case]: “... in the absence of any
statute regulating the subject‑matter of the decision, the source of the
decision‑making power may still be the common law itself, i.e. that part of the
common law that is given by lawyers the label of ‘the prerogative’. Where this
is the source of the decision‑making power, the power ... in constitutional
practice is generally exercised by those holding ministerial rank.” If this is
correct, the Court notes (and modern authority has often held that it is), any
amenability to judicial review in relation to the use of the royal prerogative
is that of ministers, not of the Monarch. Note also the practice of having the
ministers give an account to Parliament of the measures which have brought them
about.
“The only
acceptable answer, in my judgment, is that an Order in Council is an act of the
executive and as such is amenable to any appropriate form of judicial review,
whether anticipatory or retrospective. What determines the constitutional
status of a measure — a statute, a judgment or an order — is not its formal
authority, which is always that of the Crown, but its source in the interlocking
but unequal limbs of the state.”
“One aspect
of this structure, determined by the historic compromise reached in the course
of the 17th century, is that both the courts and the executive will treat the
authority of Parliament, duly exercised, as absolute. Another aspect, upon
which both democratic governance and the rule of law depend, is that the courts
will respect all acts of the executive within its lawful province, and that the
executive will respect all decisions of the courts as to what its lawful
province is. [Cite].”
“This case,
correspondingly, concerns not a sovereign act of the Crown but a potentially
justiciable act of executive government. Were we to hold otherwise, we would be
creating an area of ministerial action free both of Parliamentary control and
of judicial oversight, defined, moreover, not by subject‑matter but simply by
the mode of enactment. The implications of such a situation for both democracy
and the rule of law do not need to be spelt out.” [¶¶ 35‑36]
“Next, there
can be no doubt that the courts will not allow the power to be used corruptly:
if, for example, it were to be proved that a minister (or one of his or her
advisers) had been bribed to include a particular provision in a colonial Order
in Council, the Order would be wholly or in part struck down. An Order in
Council permitting the use of torture to obtain evidence would today fall under
the 1865 Act as being repugnant to an imperial statute (the Criminal Justice
Act 1988, § 134 ), but, even before 1988, the courts of this country would
surely have struck it down, whether on the public law ground articulated by
Lord Diplock in CCS that it was irrational in its defiance of accepted moral
standards, or on Lord Mansfield’s ground in Campbell v. Hall (1774) 1 Cowp.
204, 209 that it was ‘contrary to fundamental principles’.”
“The same
would almost certainly be the case with an Order in Council abolishing all
recourse to law in a colony or introducing forced labour. These instances of
legitimate judicial intervention to prevent the abuse of prerogative power by
executive government go considerably wider than the government’s argument
before us has allowed.”
“The modern
locus classicus is in the speech of Lord Scarman in CCS at 407: ‘It is, of
course, beyond doubt that, in Coke’s time and thereafter, judicial review of
the exercise of prerogative power was limited to inquiring into whether a
particular power existed and, if it did, into its extent. [Cite]. But this
limitation has now gone, overwhelmed by the developing modern law of judicial
review [Cites].’”
“‘Just as
ancient restrictions in the law relating to the prerogative writs and orders
have not prevented the courts from extending the requirement of natural
justice, namely the duty to act fairly, so that it is required of a purely
administrative act, so also has the modern law, ... extended the range of
judicial review in respect of the exercise of prerogative power. Today,
therefore, the controlling factor in determining whether the exercise of
prerogative power is subject to judicial review is not its source but its
subject matter.’” [¶ 38]
“[Government
counsel’s] reasoning therefore tells us nothing definite in a case such as the
present, which concerns an unprecedented use, or purported use, of the power of
colonial governance. It will be necessary to consider in due course how wide
the power to provide for ‘the peace, order and good government’ of a colony is,
and whether the courts can go behind the executive’s assertion that it is the
end to which a measure is directed. But in my judgment there is no legal basis
for any prior restriction on the grounds upon which executive acts carried out
by Order in Council may be judicially reviewed. Provided the subject‑matter is
apt for adjudication, any abuse of power in the making or the operation of such
an instrument is in principle justiciable. So I come back to the question
whether colonial governance is one of the prohibited categories of subject‑matter.”
[¶ 43]
The lead
opinion then addresses the question whether matters of colonial governance is
subject to judicial review. “Prerogative powers such as those relating to the
making of treaties, the defence of the realm, the prerogative of mercy, the
grant of honours, the dissolution of Parliament and the appointment of
ministers as well as others are not, I think, susceptible to judicial review
because their nature and subject matter are such as not to be amenable to the
judicial process....”
“The
Government contends that the omission of colonial governance from the list of
unreviewable uses of the royal prerogative is an oversight. That seems
unlikely. But it would be a mistake to jump to the opposite conclusion that
their Lordships considered the colonial governance power to be within the reach
of judicial review. It is likelier that it was left for decision when it arose,
which is now. [¶¶ 44‑45]
The lead
opinion decides that the use of the prerogative power of colonial governance
enjoys no generic immunity from judicial review. “What are immune, ... are
prerogative measures lawfully enacted and rationally capable of addressing the
‘peace, order and good government’ of the colony.” [¶ 47]
The next
question is whether § 9 of the Constitution Order, and with it the Immigration
Order, was lawfully made. “Section 4 of the Ordinance effectively exiles the
[Chagossians] from the territory where they are belongers and forbids their
return. But the ‘peace, order, and good government’ of any territory means
nothing, surely, save by reference to the territory’s population. They are to
be governed: not removed. ... Short of [a catastrophe], I cannot see how the
wholesale removal of a people from the land where they belong can be said to
conduce to the territory’s peace, order and good government.”
“The people
may be taxed; they should be housed; laws will criminalise some of the things
they do; maybe they will be tried with no juries, and subject to severe, even
brutal penalties; the laws made for their marriages, their property, and much
besides may be far different from what obtains in England. All this is
vouchsafed by the authorities.”
“But that is
not all the learning gives. These people are subjects of the Crown, in right of
their British nationality as belongers in the Chagos Archipelago. As Chitty
said in 1820, the Queen has an interest in all her subjects, who rightly look
to the Crown — today, to the rule of law which is given in the Queen’s name —
for the security of their homeland within the Queen’s dominions.”
“But in this
case they have been excluded from it. It has been done for high political
reasons: good reasons, certainly, dictated by pressing considerations of
military security. But they are not reasons which may reasonably be said to
touch the peace, order and good government of BIOT, ... In short, there is no
principled basis upon which § 4 of the Ordinance can be justified as having
been empowered by § 11 of the BIOT Order. And it has no other conceivable
source of lawful authority.” [¶ 54]
The lead
opinion then addresses the question of abuse of power. “... [O]n its merits,
the enactment of § 9 of the Constitution Order was irrational. This was
because, ... it was in right of the BIOT — and not of the United Kingdom — that
Her Majesty made the two Orders. It follows that the United Kingdom’s own interests,
a fortiori those of the United States, could play no legitimate part in
determining what was appropriate to the good government of the BIOT.” [¶ 57]
“Few things
are more important to a social group than its sense of belonging, not only to
each other but to a place. What has sustained peoples in exile, from Babylon
onwards, has been the possibility of one day returning home. The barring of
that door, however remote or inaccessible it may be for the present, is an act
requiring overwhelming justification.”
“It follows,
in our judgment, that § 9 of the Order is irrational on public law grounds and
... must be quashed for this reason. Made by the Queen in right of BIOT, the
Order is, on its face, not concerned with the interests of BIOT, but with the
interests of the United Kingdom and of the United States. ... [T]he validity of
the Order in Council made by the Queen in right of BIOT has to be tested by
reference to the interests of BIOT. This Order in Council conspicuously does
not do that.”
“What is
being addressed by all these arguments, and by the argument on legitimate
expectation too, is the abuse of power. This is what the courts of public law
are there to identify and, in proper cases, to correct. [Cite] Power may be
abused in a variety of ways, of which acting beyond the limits of the power is
one, acting irrationally is another, acting for an improper purpose is a third
and acting so as to frustrate a legitimate expectation is a fourth; and there
are more, both procedural and substantive. Very commonly they run into one
another. ...”
“Particularly
when one is considering an allegation of abuse of the prerogative power, the
search for categories of abuse may therefore be less important than the search
for principle; for, ... the remarkable decisions of the courts in the later
20th century that judicial review runs to prerogative and self‑constituted
bodies were prompted by the courts’ determination to act in defence of the
citizenry against abuse of power by important bodies of a governmental or quasi‑governmental
nature ... and not to let them escape merely because of their non‑statutory
character.”
“Correspondingly, what the court is in essence invited to do
in the present case is to hold that the making of § 9 of the Constitution
Order, and of the entire Immigration Order, was an abuse of the prerogative
power of the Crown because the Crown’s common law powers do not extend to the
exiling of an entire population. If this is right, categorising it as an ultra
vires act or as an irrational one or as a breach of a legitimate expectation is
an important matter of legal taxonomy but not critical to the finding of legal
fault.” [¶ 60]
“The governance of each colonial territory is, in
constitutional principle, a discrete function of the Crown. That territory’s
interests will not necessarily be the interests of the United Kingdom or of its
allies. This is not to say that the two things are mutually exclusive: they
will often, perhaps usually, be interdependent, so that the defence of a colony
from attack, and even its use as a base to protect the United Kingdom, may
serve both its and the United Kingdom’s interests.”
“But that is not the case here. ... the permanent exclusion
of an entire population from its homeland for reasons unconnected with their
collective wellbeing cannot have that character and, accordingly, cannot be
lawfully accomplished by use of the prerogative power of [colonial]
governance.” [¶ 67]
“The single ground given in § 9(1) of the Order itself for
exiling the population is strategic. ... The desire of the United States
administration, reiterated in statements made for the purpose of these
proceedings, to keep the whole archipelago cleared of its population invites,
but does not require, scrutiny because it is not connected with the governance
of the Chagos Islands. It is connected with the United States’ strategic and
geopolitical interests and with the United Kingdom’s support for these, both of
them ... in direct conflict with the interests of the Chagossians.” [¶ 69]
“The prospective cost to the British taxpayer of resettling
the next generations of the population (which the British taxpayer paid to
remove) is in my view a mare’s nest. While resettlement will doubtless be
difficult or even impossible without capital expenditure, it is not suggested
on either side that the United Kingdom is under any obligation to fund it. As I
have said, it is the bolting of the door to the Chagossians’ home, not the
failure to provide transport there or to refurbish it, which is in issue.
Indeed the Crown has rights as landowner which are capable, for the present, of
answering any attempt to resettle there ...”
“The point is that the two Orders in Council negate one of
the most fundamental liberties known to human beings, the freedom to return to
one’s homeland, however poor and barren the conditions of life, and contingent
though return may be on the property rights of others; and that they do this
for reasons unconnected with the wellbeing of the people affected.” [¶ 71]
The final aspect of abuse of power addressed by the lead
opinion is the frustration of a substantive legitimate expectation. “The
present case resembles, a lawfully made promise of a substantive benefit
(substantive, that is, as opposed to procedural). In my judgment, ... to
frustrate the expectation which the Chagossians from November 2000 legitimately
entertained of being at liberty one day to return to their homeland was so
profoundly unfair, in the absence of relevant and overriding policy
imperatives, as to be an abuse of power.” [¶ 73]
“The statement made by way of explanation of the two Orders
now under challenge cited non‑feasibility of resettlement and ‘the availability
and effective use of the Territory for defence purposes’. ... [N]o evidence has
been advanced to show that anything had changed between 2000, when there was
apparently no defence problem and no insuperable issue of feasibility, and
2004. In the result, the Crown has not begun to establish an overriding
imperative entitling it to frustrate the Chagossians’ expectation that they
would at least continue to have the status of belongers.”
“The two letters written by the United States’
administration for the purposes of these proceedings cannot affect this issue.
The United States was not the author of the Orders in Council, and nothing has
been deposed to by those who were to establish that these were new and
overriding concerns which entitled the U. K. government to renege on its
undertaking to the Chagossians.” [ ¶ 76]
“Notwithstanding the great latitude which the prerogative
power of colonial governance enjoys, I consider the material Orders to have
been unlawfully made, because both their content and the circumstances of their
enactment constitute an abuse of power on the part of executive government. ...
I would dismiss the Government’s appeal.” [¶¶ 78,79]
[The remaining two judges concur but state their grounds in separate opinions.]
Case: Secretary of State v. The Queen (on
application of Bancoult), Case No: C1/2006/1465; E. W. C .A. Civ. 498;
2007 WL 1472036 (CA (Civ. Div.)).
*** About Sarah Ellen Cox: Sarah E. Cox is a Personal Injury attorney in Fort Myers, Florida. Ms. Cox received her Juris Doctor from Whittier School of Law in 2005, and was admitted to the Florida Bar in 2008. News about Sarah E. Cox are at: https://attorneygazette.com/sarah-ellen-cox# Attorney Profile at: https://solomonlawguild.com/sarah-ellen-cox Blog at: http://SarahECoxBlog.blogspot.com
