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|Judgments - R (On The Application of Bancoult) V Secretary of State For Foreign and Commonwealth Affairs
HOUSE OF LORDS
 UKHL 61
on appeal from:  EWCA Civ 498
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R (on the application of Bancoult) (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant)
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Jonathan Crow QC
(Instructed by Treasury Solicitors)
Sir Sydney Kentridge QC
(Instructed by Clifford Chance LLP)
30 JUNE, 1, 2 and 3 JULY 2008
WEDNESDAY 22 OCTOBER 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R (on the application of Bancoult) (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant)
 UKHL 61
1. This appeal concerns the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004 (the Constitution Order):
(1) Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory.
(2) Accordingly, no person is entitled to enter or be present in the Territory except as authorised by or under this Order or any other law for the time being in force in the Territory.
2. The Constitution was made by prerogative Order in Council. The Divisional Court (Hooper LJ and Cresswell J) held section 9 to be invalid and this decision was affirmed by the Court of Appeal (Sir Anthony Clarke MR and Waller and Sedley LJJ). The Secretary of State appeals to your Lordships House.
3. The British Indian Ocean Territory (BIOT) is situated south of the equator, about 2200 miles east of the coast of Africa and 1000 miles south-west of the southern tip of India. It consists of a group of coral atolls known as the Chagos Archipelago of which the largest, Diego Garcia, has a land area of about 30 km2. Some distance to the north lie Peros Banhos (13 km2) and the Salomon Islands (5 km2).
4. The islands were a dependency of Mauritius when it was ceded to the United Kingdom by France in 1814 and until 1965 were administered as part of that colony. Their main economic activity was gathering coconuts and extracting and selling the copra or kernels. In 1962, when the plantations were acquired by a Seychelles company called Chagos Agalega Company Ltd (the company) the settled population was a very small community (less than 1,000 on the three islands) who called themselves Ilois (Creoles des Iles) and whose families had in some cases lived in the islands for generations. With the assistance of contract labour from the Seychelles and Mauritius, the Ilois were mainly employed in tending the coconut trees and producing the copra.
5. The evidence suggests that the Ilois, who now prefer to be called Chagossians, lived an extremely simple life. The company, whose managers acted as justices of the peace, ran the islands in feudal style. Each family had a house with a garden and some land to provide vegetables, poultry and pigs to supplement the imported provisions supplied by the company. They also did some fishing. There was work in the copra industry as well as some construction, boat building and domestic service for the women. No one was involuntarily unemployed. Most of the Chagossians were illiterate and their skills were confined to those needed for the activities on the islands. But they had a rich community life, the Roman Catholic religion and their own distinctive dialect derived (like those of Mauritius and the Seychelles) from the French.
6. Into this innocent world there intruded, in the 1960s, the brutal realities of global politics. In the aftermath of the Cuban missile crisis and the early stages of the Vietnam War, the United States felt vulnerable without a land based military presence in the Indian Ocean. A survey of available sites suggested that Diego Garcia would be the most suitable. In 1964 it entered into discussions with Her Majestys Government which agreed to provide the island for use as a base. At that time the independence of Mauritius and the Seychelles was foreseeable and the United States was unwilling that sovereignty over Diego Garcia should pass into the hands of an independent non-aligned government. The United Kingdom therefore made the British Indian Ocean Territories Order 1965 SI No 1920 (the BIOT order) which, under powers contained in the Colonial Boundaries Act 1895, detached the Chagos Archipelago (and some other islands) from the colony of Mauritius and constituted them a separate colony known as BIOT. The order created the office of Commissioner of BIOT and conferred upon him power to make laws for the peace, order and good government of the Territory. Those inhabitants of BIOT who had been citizens of the United Kingdom and Colonies by virtue of their birth or connection with the islands when they were part of Mauritius retained their citizenship. When Mauritius became independent in 1968 they acquired Mauritian citizenship but, by an exception in the Mauritius Independence Act 1968, did not lose their UK citizenship.
7. At the end of 1966 there was an exchange of notes between Her Majestys Government and the Government of the United States by which the United Kingdom agreed in principle to make BIOT available to the United States for defence purposes for an indefinitely long period of at least 50 years. It subsequently agreed to the establishment of the base on Diego Garcia and to allow the United States to occupy the other islands of the Archipelago if they should wish to do so.
8. In 1967 the United Kingdom Government bought all the land in the Archipelago from the company but granted the company a lease to enable it to continue to run the coconut plantations until the United States needed vacant possession. It took some time for the US Defence Department to obtain Congressional approval but in 1970 it gave notice that Diego Garcia would be required in July 1971. After receiving this notice the Commissioner of BIOT, using his powers of legislation under the BIOT order, made the Immigration Ordinance 1971. It provided in section 4(1) that
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 [issued by an Immigration Officer]
9. Between 1968 and 1971 the United Kingdom government secured the removal of the population of Diego Garcia, mostly to Mauritius and the Seychelles. A small population remained on Peros Banhos and the Salomon Islands, but they were evacuated by the middle of 1973. No force was used but the islanders were told that the company was closing down its activities and that unless they accepted transportation elsewhere, they would be left without supplies. The whole sad story is recounted in detail in an appendix to the judgment of Ouseley J in Chagos Islanders v Attorney General  EWHC 2222 (QB),  All ER (D) 166.
10. My Lords, it is accepted by the Secretary of State that the removal and resettlement of the Chagossians was accomplished with a callous disregard of their interests. For the most part, the community was left to fend for itself in the slums of Port Louis. The reasons were to some extent the usual combination of bureaucracy and Treasury parsimony but very largely the governments refusal to acknowledge that there was any indigenous population for which the United Kingdom had a responsibility. The Immigration Ordinance, denying that anyone was entitled to enter or live in the islands, was part of the legal façade constructed to defend this claim. The government adopted this position because of a fear (which may well have been justified) that the Soviet Union and its non-aligned supporters would use the Chagossians and the United Kingdoms obligations to the people of a non-self-governing territory under article 73 of the United Nations Charter to prevent the construction of a military base in the Indian Ocean.
11. When the Chagossians arrived in Mauritius they found themselves in a country with high unemployment and considerable poverty. Their conditions were miserable. There was a long period of negotiation between the governments of Mauritius and the United Kingdom over payment for the cost of resettlement, but eventually in September 1972 the two governments agreed on a payment of £650,000, which was paid in March 1973. The Mauritius government did nothing with the money until 1977 when, depleted by inflation, it was distributed in cash to 595 Chagossian families.
12. The Chagossians sought support and legal advice. In February 1975 Michael Vencatessen, who had left Diego Garcia in 1971, issued a writ in the High Court in London against the Foreign and Defence Secretaries and the Attorney General. His proceedings were funded by legal aid and he received the advice of distinguished counsel. The claim was for damages for intimidation and deprivation of liberty in connection with his departure from Diego Garcia, but the proceedings came to be accepted on both sides as raising the whole question of the legality of the removal of the Chagossians from the islands.
13. Negotiations took place between the UK government and Mr Vencatessen and his advisers, who were treated as acting on behalf of the Chagossians as a whole. In 1979 an agreement was reached with Mr Vencatessen and his advisers for a payment of £1.25m in settlement of all the claims of the Chagossians. His solicitor went to Mauritius to seek the approval of the community but was unable to obtain it. Further negotiations, in which the government of Mauritius participated, took place over the next three years. Finally in July 1982 it was agreed that the UK government would pay £4m into a trust fund for the Chagossians, set up under a Mauritian statute. The agreement was signed by the two governments in the presence of Chagossian representatives and provided for individual beneficiaries to sign forms renouncing all their claims arising out of their removal from the islands. About 1340 did so, but a few did not.
14. At that point the UK government might have thought that, however badly its predecessors in office may have behaved in securing the removal of the Chagossians from the islands, the matter was now settled and a line could be drawn under this unfortunate episode. Any such hope would have been disappointed. Sixteen years later, on 30 September 1998 Mr Bancoult, the applicant in these proceedings, applied for judicial review of the Immigration Ordinance 1971 and a declaration that it was void because it purported to authorise the banishment of British Dependent Territory citizens from the Territory and a declaration that the policy which prevented him from returning to and residing in the Territory was unlawful.
15. The governments reaction to the institution of these proceedings was to commission an independent feasibility study to examine whether it would be possible to resettle some of the Chagossians on the outer islands of Peros Banhos and the Salomon Islands. There was no question of their return to Diego Garcia, which the United States was entitled to occupy until at least 2016. It must have been clear to both parties that the challenge to the validity of the 1971 Ordinance was largely symbolic. There was no evidence that it had ever been used to expel anyone from the islands. The islanders who left between the time it was made and the final evacuation in 1973 did so because they were left with the alternative of being abandoned without support or supplies. Nor would its revocation have any practical effect on whether the Chagossians could go back and reside there. That would require an investment in infrastructure and employment which the Chagossians could not themselves provide. As was demonstrated by subsequent actions, the judicial review proceedings were only a part of a new campaign by the Chagossians to obtain UK government support for their resettlement to right the wrongs of 1968-1973.
16. On 3 November 2000 the Divisional Court (Laws LJ and Gibbs J) gave judgment in favour of Mr Bancoult: see R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  QB 1067 (Bancoult (1)) They decided that a power to legislate for the peace, order and good government of the Territory did not include a power to expel all the inhabitants. The relief granted was an order quashing section 4 of the Immigration Ordinance as ultra vires.
17. After the judgment had been given, the Foreign Secretary (Mr Robin Cook) issued a press release:
Following the judgment in the BIOT Case on 3 November, Foreign Secretary Robin Cook issued the following statement:
I have decided to accept the Courts ruling and the Government will not be appealing.
The work we are doing on the feasibility of resettling the Ilois now takes on a new importance. We started the feasibility work a year ago and are now well underway with phase two of the study.
Furthermore, we will put in place a new Immigration Ordinance which will allow the Ilois to return to the outer islands while observing our Treaty obligations.
This Government has not defended what was done or said thirty years ago. As Lord Justice Laws recognised, we made no attempt to conceal the gravity of what happened. I am pleased that he has commended the wholly admirable conduct in disclosing material to the Court and praised the openness of todays Foreign Office.
18. On the same day, the Commissioner revoked the 1971 Immigration Ordinance and made the Immigration Ordinance 2000. This largely repeated the provisions of the previous Ordinance but contained a new section 4(3) which provided that the restrictions on entry or residence imposed by section 4(1) should (with the exception of Diego Garcia) not apply to anyone who was a British Dependent Territories citizen by virtue of his connection with BIOT.
19. As was to be expected, the change in the law made no practical difference. Some Chagossians made visits to the outer islands to tend family graves or simply to see and try to recognise their former homeland, but such visits had been made by permit under the old Ordinance and were invariably funded by the BIOT. No one went to live there. They awaited the report of the feasibility study.
20. In April 2002, before the production of the report, a group action was commenced on behalf of the Chagos Islanders against the Attorney General and other ministers, claiming compensation and restoration of the property rights of the islanders and declarations of their entitlement to return to all the Chagos Islands and to measures facilitating their return. On 9 October 2003 Ouseley J struck out this action on the grounds that the claim to more compensation after the settlement of the Vencatessen case was an abuse of process, that the facts did not disclose any arguable causes of action in private law and that the claims were in any case statute-barred.
21. The importance of this judgment was that it unequivocally affirmed the validity of the 1982 settlement. The UK government had discharged its obligations to the Chagossians by payment in full and final settlement.
22. On 22 July 2004 the Court of Appeal (Dame Elizabeth Butler-Sloss P, Sedley and Neuberger LJJ) refused leave to appeal. Sedley LJ, who gave the judgment of the court, ended by saying:
This judgment brings to an end the quest of the displaced inhabitants of the Chagos Islands and their descendants for legal redress against the state directly responsible for expelling them from their homeland. They have not gone without compensation, but what they have received has done little to repair the wrecking of their families and communities, to restore their self-respect or to make amends for the underhand official conduct now publicly revealed by the documentary record. Their claim in this action has been not only for damages but for declarations securing their right to return. The causes of action, however, are geared to the recovery of damages, and no separate claims to declaratory relief have been developed before us. It may not be too late to make return possible, but such an outcome is a function of economic resources and political will, not of adjudication.
23. The question of economic resources was of course what the feasibility study had been commissioned to investigate. The report was produced in June 2002. It concluded that agroforestal production would be unsuitable for commercial ventures". So there could be no return to gathering coconuts and selling copra. Fisheries and mariculture offered opportunities although they would require investment. Tourism could be encouraged, although there was nowhere that aircraft could land. It might on be feasible in the short term to resettle the islands, although the water resources were adequate only for domestic rather than agricultural or commercial use. But looming over the whole debate was the effect of global warming which was raising the sea level and already eroding the corals of the low lying atolls. In the long term, the need for sea defences and the like would make the cost of inhabitation prohibitive. On any view, the idyll of the old life on the islands appeared to be beyond recall. Even in the short term, the activities of the islanders would have to be very different from what they had been.
24. There followed discussion of the report between the Government (represented by Baroness Amos, Parliamentary Under-Secretary of State at the Foreign Office) and the applicant Mr Bancoult, his advisers and other representatives of the Chagossians. The Government was unwilling to commit itself one way or the other to a definite policy on resettlement until the Chagos Islanders action, which was claiming a legal entitlement to resettlement, had been resolved. But it resisted attempts on the part of the islanders to claim that the Foreign Secretarys press announcement and the revocation of the 1971 Immigration Ordinance amounted already to the adoption of a policy of resettlement. That decision would have to await the outcome of the litigation.
25. The judgment of Ouseley J in October 2003 made it clear that there was no legal obligation upon the United Kingdom, whether by way of additional compensation or otherwise, to fund resettlement. The government did not make any immediate statement, presumably because until 22 July 2004 there was still the possibility of an appeal. Before then, however, there was a development which gave the government concern. Newspaper articles appeared in Mauritius suggesting that the Chagossians and their supporters (principally a political group in Mauritius calling itself LALIT) were planning some form of direct action by landings on the islands. A flotille de la paix would be assembled to take some of the Chagossians to Diego Garcia or the outer islands. As might be expected, the various participants in this project had somewhat different aims. For LALIT, it was part of an anti-American campaign to close the base at Diego Garcia. Mr Bancoult did not want the base closed (he hoped it might employ resettled Chagossians) but was willing to lead a landing on the outer islands. In either case, since permanent resettlement on the islands was impractical without substantial investment, the landings, even if followed by temporary camps, could be no more than gestures in furtherance of the respective political aims of the parties, designed to attract publicity and embarrass the governments of the United Kingdom and the United States. (On 12 March 2008 the Guardian reported that two British human rights campaigners had been arrested by the off Diego Garcia. They said that they were part of a group called the Peoples Navy which has been seeking to highlight the plight of the Chagossians and to protest against the military use of the islands.)
26. The Foreign Office was advised by its High Commission in Mauritius that the possibility of landings on the islands in the autumn of 2004 should be taken seriously. The United States also informed the UK government of its concern at any action which might compromise what it regarded as the unique security of Diego Garcia. The government had decided that in view of the feasibility report, it would not support resettlement of the islands. It therefore decided to restore full immigration control. On 10 June 2004 Her Majesty made the Constitution Order which revoked the BIOT Order and granted a new constitution including section 9, which I quoted at the commencement of my speech. At the same time, another Order in Council (the Immigration Order) was made dealing with the details of immigration control. In a written statement to the House of Commons on 15 June 2004 the Foreign Office Under Secretary of State Mr Bill Rammell explained that in the light of the feasibility report 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.
27. The Minister went on to say that there had been developments in the international security climate since the judgment in Bancoult (1) to which due weight has had to be given". He did not mention the threatened landings which precipitated the decision to legislate, but the Foreign Secretary, in a letter dated 9 July 2004 to the chairman of the Foreign Affairs Committee of the House of Commons explaining why the Committee had not been shown the Constitution Order in draft before it was made, said that we needed to preserve complete confidentiality if we were to avoid the risk of an attempt by the Chagossians to circumvent the Orders before they came into force.
28. These proceedings were commenced by an application for judicial review dated 24 August 2004, applying for section 9 of the Constitution Order and the Immigration Order to be quashed. The Divisional Court (paras 120-122) accepted an argument that the Orders were irrational because their rationality had to be judged by the interests of BIOT. That meant the people who lived or used to live on BIOT. The Orders were not made in the interests of the Chagossians but in the interests of the United Kingdom and the United States and were therefore irrational.
29. This reasoning was not adopted, at any rate in quite the same form, by the Court of Appeal. Sedley LJ came nearest when he said that the removal or subsequent exclusion of the population for reasons unconnected with their collective wellbeing could not be a legitimate purpose of the power of colonial governance exercisable by Her Majesty in Council. It was an abuse of that power. He also considered that the Foreign Secretarys press statement after the judgment in Bancoult (1) and the Immigration Ordinance 2000 were promises to the Chagossians which gave rise to a legitimate expectation that, in the absence of a relevant change of circumstances, their rights of entry and abode in the islands would not be revoked. There had been no such change.
30. The Master of the Rolls and Waller LJ agreed that the applicant was entitled to succeed on the ground of a legitimate expectation. The Master of the Rolls also agreed with Sedley LJ that the Orders were an abuse of power because (see para 123) they did not have proper regard for the interests of the Chagossians".
31. Before your Lordships the case has been most ably argued by Mr Jonathan Crow QC for the Crown and Sir Sydney Kentridge QC for the respondent. It is common ground that as BIOT was originally ceded to the Crown, Her Majesty in Council has plenary power to legislate for the Territory. The law is stated in Halsburys Laws of England (4th ed 2003 reissue) vol 6, para 823:
In a conquered or ceded colony the Crown, by virtue of its prerogative, has full power to establish such executive, legislative, and judicial arrangements as this Crown thinks fit, and generally to act both executively and legislatively, provided the provisions made by the Crown do not contravene any Act of Parliament extending to the colony or to all British possessions. The Crowns legislative and constituent powers are exercisable by Order in Council, Letters Patent or Proclamation