Abuse of power – Changos Islands – Colonial legislation – Legitimate expectation – Prerogative powers

R (on the application of Louis Olivier Bancoult) v Secretary of State for Foreign and Commonwealth Affairs: HL (Lord Hoffmann, Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance): 22 October 2008

The appellant secretary of state appealed against a decision ([2007] EWCA Civ 498, [2008] QB 365) that two Orders in Council, which had the effect of preventing former inhabitants of the Chagos Islands from returning there, were an abuse of power. The islands made up the British colony of British Indian Ocean Territory.

The respondent (B) had been successful in an earlier application for judicial review of an Immigration Ordinance made in 1971, under which the inhabitants of the islands were compulsorily removed so that the main island could be used as a US military base. The UK government stated that it accepted the court’s ruling and would not appeal. However, the government later decided that resettlement of the islands was not feasible and that the territory was still wanted for defence purposes. Her Majesty exercised her prerogative to make two Orders in Council which had the effect of preventing the Chagossians from returning to the islands. B’s application for judicial review of the orders had succeeded in the Divisional Court and the Court of Appeal. The secretary of state argued that the courts had no power to review the validity of an Order in Council legislating for a colony, either because it was primary legislation having unquestionable validity, comparable to an act of Parliament, or because review was excluded by the Colonial Laws Validity Act 1865. B argued that the right of abode was so sacred and fundamental that the Crown could not remove it in any circumstances. B relied on the statement of Lord Mansfield in Campbell v Hall 98 ER 1045 KB that the King could not make changes in the law that were ‘contrary to fundamental principles’. B submitted that the powers of the Crown were limited to legislation for the ‘peace, order and good government’ of the territory, and that the law had to be for the benefit of the inhabitants. B further argued that the government had made a statement which gave rise to a legitimate expectation on the part of the Chagossians that they would be allowed to return to the islands.

Held: (Lords Bingham and Mance dissenting) (1) The principle of the sovereignty of Parliament was founded upon the unique authority Parliament derived from its representative character. An exercise of the prerogative lacked that quality. Although it might be legislative in character, it was still an exercise of power by the executive alone. There was no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 HL considered.

(2) None of the provisions of the orders was open to challenge in the English courts on the ground of repugnancy to any fundamental principle relating to the rights of abode of the Chagossians as ‘belongers’ in the islands, Campbell considered. Too much had been read into Lord Mansfield’s statement. The terms of the 1865 act had put the matter beyond doubt.

(3) The right of abode was a creature of the law, not a constitutional right. In a ceded colony, the Crown had plenary legislative authority. There was no basis for saying that the right of abode was so fundamental that the Crown’s legislative powers simply could not touch it.

(4) Legislative powers were traditionally conferred on the legislature of a colony with the requirement that laws had to be made for the ‘peace, order and good government’ of the territory. However, the words had never been construed as words limiting the power of a legislature; they had always been treated as apt to confer plenary law-making authority. The courts would not inquire into whether legislation within the territorial scope of the power was in fact for the ‘peace, order and good government’ or otherwise for the benefit of the inhabitants of the territory. So far as R (on the application of Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 QBD (Admin) departed from that principle, it was wrongly decided, Bancoult overruled in part, Riel v the Queen, [1884-85] LR 10 App Cas 675 PC (Can) and Union Steamship Company of Australia Pty Ltd v King [1988] 166 CLR 1 applied. Her Majesty in Council exercised her powers of prerogative legislation for a non-self-governing colony on the advice of her ministers in the UK, and would act in the interests of her undivided realm. There was no support for any proposition that, in legislating for a colony, either Parliament or Her Majesty in Council must have regard only, or even predominantly, to the immediate interests of its inhabitants.

(5) The Chagossians’ right of abode was purely symbolic; there was no prospect of them being able to live on the islands in the foreseeable future. Taking fully into account the practical interests of the Chagossians, the decision to reimpose immigration control on the islands could not be described as unreasonable or an abuse of power.

(6) There had been no clear and unambiguous promise to the effect that the Chagossians would be free to return to the islands even if they could not be resettled there. Accordingly, no legitimate expectation had been created.

Appeal allowed.

Jonathan Crow QC, Kieron Beal (instructed by the Treasury Solicitor) for the appellant; Sir Sidney Kentridge QC, Anthony Bradley, Maya Lester (instructed by Clifford Chance) for the respondent.