(back to preceding text)

167.  In the written statement by which the BIOT Order 2004 was on 15 June 2004 explained to Parliament, defence considerations were presented only briefly (although “equally”) in a short seventh paragraph after two longer paragraphs explaining the decision as one reached “after long and careful consideration” on grounds relating to the lack of feasibility of resettlement. A similar conjunction of lack of feasibility and defence considerations (with the emphasis on the former) appeared in a letter dated 22 June 2004 from Mr Jack Straw as Foreign Secretary to Mr Corbyn MP explaining the reasons for the BIOT Order 2004; likewise in the explanation given to Parliament by Mr Rammell, The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, in the debate on 7 July 2004 (287WH to 293WH). In that debate, Mr Rammell also said (293WH) that the decision to make the BIOT Order 2004 was entirely the United Kingdom Government’s own. It was “not as the result of any pressure or lobbying from other parties” and he had not received, and did not believe that the Foreign Secretary had “for a significant number of years received", any representations on the issue from the United States (293WH). (That points towards the United States’ communication of 21 June 2000 as the last significant communication.)

168.  As explained in the written statement, in Mr Straw’s letter and by Mr Rammell, the government had commissioned an independent feasibility study during the proceedings in Bancoult 1. After saying that the latest feasibility report had been delivered after the November 2000 judgment and placed in the House of Commons library, the written statement quoted passages and drew the conclusion that “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 it would be impossible for the Government to promote or even permit resettlement to take place". The report is in fact dated 28 June 2002, so the BIOT Order 2004 was enacted two years after the report, and 9 months after Ouseley J’s decision that the Government had no duty to fund resettlement, although a month before the Court of Appeal finally refused permission to appeal against that decision. In the absence of any legal obligation to fund resettlement, the prospective cost of doing so appears to me (as it did to Sedley LJ in the Court of Appeal: para 71) an unconvincing reason for withdrawing any right of abode and any right to enter or be present in BIOT. The Secretary of State notes in his written case that, even in the absence of any legal obligation to fund resettlement (and although the United Kingdom has made clear its determination to resist any suggestion that it should provide such funds on a voluntary basis), there could be “public and political pressure claiming that the United Kingdom should provide funding for the cost of resettlement". That is not a reason articulated at the time or supported by any reference in the written case.

169.  There was certainly concern in the late 1960s and early 1970s to avoid, if at all possible, any suggestion that BIOT had settled inhabitants to which the United Kingdom’s international obligations under article 73 of the Charter of the United Nations would apply. Article 73 provides:

“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:

a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;

b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;

c. …..

d. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; ….”

The Government’s position in these proceedings has been that any international obligations which the United Kingdom has or may have had are not relevant to its obligations to the Chagossians under domestic law. It is established and accepted that the Government has no enforceable legal obligation to fund resettlement. There is no realistic prospect of resettlement without funding for which no realistic source is suggested to exist (and the Government itself relies on the absence of any steps towards resettlement in the years 2000 to 2004). Currently in issue is a right to enter and be present which would be likely to be exercised, if at all, only transiently and by very few.

170.  A third factor, now mentioned in conjunction with lack of feasibility and defence considerations, is “the imminence of the intention to repopulate". This factor was not mentioned in the written statement, or in the letter written by Mr Jack Straw as Foreign Secretary to Mr Corbyn MP to explain the reasons for the BIOT Order 2004 or, as a reason for the Order, by Mr Rammell in the debate on 7 July 2004. The only brief allusion to it by Mr Rammell was, in his reply to a question why the Order had been made secretly, that “There was always going to be an opportunity for these issues to be debated, but it was right, given the imminence of the intention to repopulate, that we took considered action, and I believe that we did so” (291WH). On 9 July 2004 Mr Straw also gave the Foreign Affairs Committee as the explanation for the secrecy 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".

171.  The factual basis for these latter statements consists in press reports involving a group called LALIT (Creole for La Lutte) with diverse mixed support and aims, some of which, shared by some of LALIT’s supporters, involved action directed at protesting against or ending United States involvement in Diego Garcia, including some openly publicised, but very general, ideas about sailing a large “peace boat” to the Chagos Islands from Mumbai. Mr Bancoult was reported in Le Mauricien as attending one such meeting in mid-April 2004, but as expressing opposition to any steps to close the base at Diego Garcia. Rather than endorse any such steps, he said that the base at Diego Garcia would permit Chagossians to have employment, while adding that, if there was a boat to take Chagossians to the other islands apart from Diego Garcia, as authorised by the High Court on 3 November 2000, he would take them. Mr Bancoult’s aims were thus both measured and consistent with the existing permission granted by the 2000 Ordinance. The most likely time for any such sailing was, in the estimation of the United Kingdom authorities, during the summer of 2004. Hence, it is said the urgency of enacting the BIOT Order 2004 in June 2004. No boat ever sailed so far as appears, and the preparation required, the distances involved and the information in, for example, the United States authorities’ letters of 21 June 2000 and 18 January 2006 about identification and monitoring of vessel movements make it implausible to suggest that any actual sailing would not have been detected at a very early stage or that, if any immediate threat developed, it would not have been diverted or apprehended with ease. There is nothing that could in any event justify a permanent withdrawal of the basic rights of entry, presence and abode addressed by section 9.

172.  The reasons given for the BIOT Order 2004 must be viewed in context. Two aspects of the context stand out. First, in the light of what I have already said any order removing the Chagossians’ right of abode in the Chagos Islands was abrogating what Sedley LJ (para 71) described, in my opinion appropriately, as “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". I do not think that one needs to go as far back in history as Sedley LJ did (para 58) to recognise how enduring and strongly held a human instinct this is. Assuming that such a right can be removed by the Crown in Council, nonetheless it is one the removal of which calls for both careful consideration and good reason. The situation is one where an anxious or heightened review is called for: see R v Ministry of Defence, Ex p Smith [1996] QB 517 and Doherty v Birmingham City Council [2008] UKHL 57, [2008] 3 WLR 636. It is mistaken, and in my opinion conflates quite separate considerations, to dismiss from consideration the legal freedom to return and all that it represents for the human spirit on the basis that return is impractical or uneconomic; or that the existence of legal freedom to return might be used as a moral pressure point on the United Kingdom to provide funds which it would be uneconomic to provide and which the government has established in court that it has no duty to provide; or that the right may in practice remain symbolic. Symbols can themselves be important, more so in some cultures than others. Recognition of a wrong can be as valuable as, sometimes valued more than, concrete compensation. The denial of a legal right to return, however remote the prospects of its exercise in practice, may add insult to injury. In any event, if the right is likely to remain symbolic, most of the reasons advanced for removing it lose force.

173.  Secondly, the introduction of section 9 must be considered in the light of Mr Cook’s response on 3 November 2000 to the decision in Bancoult 1, in the form of his press statement and the making of the 2000 Ordinance. Mr Bancoult’s case, accepted in the Court of Appeal, was that this gave him a legitimate expectation that, barring significant changes, the Chagossians would be recognised as having a right of abode and a right to enter and be present in the outer Chagos Islands. The Secretary of State maintains, and my noble and learned friend Lord Hoffmann accepts, that this is not so. There was, it is said, no unconditional promise, no recognition of any right of abode, and any limited recognition of a right to enter and be present was on a temporary basis and was, above all, subject to the outcome of the ongoing feasibility study. The Court of Appeal did not accept this analysis of the events and of the press statement and nor do I.

174.  The press release 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. It was issued by the Foreign Secretary on behalf of the United Kingdom Government. It was they who said that they had “decided to accept” the court’s ruling in Bancoult 1 and would “not be appealing". They indicated that a new Immigration Ordinance would be put in place to “allow the Ilois to return to the outer islands while observing our Treaty obligations". They said that “This Government has not defended what was done or said thirty years ago", a clear reference to the wrong done by the 1971 Ordinance and the attitude taken at that time to the Chagossians and their connection with their homeland. All these statements are only consistent with a clear policy decision taken by the United Kingdom to recognise and give legal effect to a right to return on the part of the Chagossians, while continuing the feasibility study which had already been started, in order to assess the feasibility of any resettlement programme which the Government might or might not in due course support.

175.  A lawyer who studied the issues closely would know that the ratio of the court’s ruling in Bancoult 1 was, strictly viewed, confined to the legitimacy or otherwise of the 1971 Ordinance issued by the BIOT Commissioner. But Laws LJ had also addressed the question whether the same result could simply be achieved by Order in Council and expressed considerable doubt about this (paras 39 and 61). To treat the Foreign Secretary of the United Kingdom as recognising merely the inappropriateness of proceeding by Commissioner’s Ordinance, or as reserving the right for the United Kingdom Government on whose behalf he was speaking to make an Order in Council in like terms to the 1971 Ordinance or the later BIOT Order 2004, would be unrealistic legalism.

176.  Mr Crow’s main submission was, however, that the press statement was subject to the outcome of the ongoing feasibility study. Again, I do not consider that this corresponds in any way with its natural meaning. The statement amounted to an unconditional recognition, coupled with an assurance that this would be given effect, of a legal right to enter and to be present, whether on a temporary or long-term basis. So too, the subsequent Parliamentary statement by Mr Battle as well as other later statements, as for example that of Baroness Amos in a letter to Mr Bancoult’s solicitors dated 28 April 2003. None of these statements was made conditional on or subject to the feasibility study. The feasibility study went to a different question, whether resettlement would be economically feasible, so that the government as a matter of broader policy or outsiders might be encouraged and prepared to fund it. (Had the Government lost the case of Chagos Islanders v Attorney General, the feasibility study could no doubt also have been very relevant to the extent of a legal responsibility on their part.) Accordingly, withdrawal in June 2004 of any right of abode and any right to enter and be present in BIOT has to be seen against a background in which the Government in November 2000 assured Chagossians that they would have such a right, without undertaking any commitment to fund it.

177.  The relevant legal principles are not in dispute. Mr Crow accepts for present purposes the Court of Appeal’s decision in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 (while reserving the right to argue in another case that it was wrongly decided). In Coughlan Lord Woolf MR giving the judgment of the Court identified (para 57) three possible outcomes in a case where a member of the public has, as a result of a promise or other conduct, a legitimate expectation that he or she would be treated in one way and the public body wishes now to treat him or her in a different way; the court may decide that: (a) the authority is only required to give its previous policy weight, but not more, in which case the court’s review of the decision will be on Wednesbury grounds, or that (b) the promise or practice induces a legitimate expectation of consultation, which will accordingly be required unless there is an overriding reason otherwise; or that (c) a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, in which case to frustrate the expectation may in some circumstances be regarded as so unfair as to amount to an abuse of power. Lord Woolf went on to say that in the first two categories of case the court’s role was a conventional role of review (on grounds of rationality in the first, procedural fairness in the second), whereas in the third the court’s task was to determine whether there was a sufficient overriding interest to justify a departure from the previous promise or practice, weighing the two considerations against each other (paras 57-58). He acknowledged the difficulty of segregating the categories, and of working out the role of legitimate expectation in each (paras 59 and 71). The approach to judicial review of a decision to depart from an established policy was further considered with reference to Coughlan in R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1, where Lord Steyn, in whose speech three other members of the House concurred, said this (para 60):

“60. The Home Secretary decided to depart from the policy. ….. Was he entitled to depart from the policy? In the Divisional Court [2002] 1 WLR 1857 Simon Brown LJ observed, at p 1866, para 32:

‘There are, of course, cases in which substantive legitimate expectations have been built up where nowadays public authorities will be required to honour their statements of policy or intention. All this is exhaustively and authoritatively discussed by the Court of Appeal in R v North and East Devon Heath Authority, Ex p Coughlan [2001] QB 213, 238-251, paras 51-82 inclusive. As, however, is there made plain, the question for the court is ultimately one of reasonableness and fairness. Would a departure from policy represent an abuse of power? That is a question to be asked in the circumstances of the particular case. It cannot in my judgment be suggested that the Secretary of State can never in any circumstances depart from his stated policy with regard to the payment of ex gratia compensation. He should, of course, give the person concerned an opportunity to say why in his particular case the policy should be applied rather than disapplied. But no problem of that sort arises here. The opportunity was given and taken. The Secretary of State was simply not persuaded.’

I am in respectful agreement with these observations.”

178.  The approach in Coughlan has been applied and considered in subsequent Court of Appeal authorities, particularly R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607; [2002] 1 WLR 237 and R (Nadarajah and Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363. The judgments in all of these authorities are helpful in illuminating the issues. In Ex p Begbie Laws LJ (drawing on para 60 of Lord Woolf’s judgment in Coughlan) underlined the importance that may attach to whether the decisions in question affect only a few individuals or involve wide-ranging questions of general policy, moving into the “macro-political” field, where judges may well be in no position to adjudicate save at most on a bare Wednesbury basis (pp 1130A-1131D).

179.  The significance of detrimental reliance in relation to Lord Woolf’s third category, substantive legitimate expectation, is also considered in Ex p Begbie and in the judgment of the court given by Schiemann LJ in Bibi. In each case it was accepted that proof of such reliance was not a pre-condition to recognition of such an expectation. But Peter Gibson LJ in Ex p Begbie stressed that it would be very much the exception that it was not present (p 1124B-C), and Schiemann LJ accepted that it would “normally be required", and that “in a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation” (paras 29-31). He gave as an example of the latter type of case one of departure from an established policy in relation to a particular person (para 30). On the other hand Sedley LJ in Ex p Begbie had “no difficulty with the proposition that in cases where the government has made known how it intends to exercise powers which affect the public at large it may be held to its word irrespective of whether the applicant had been relying specifically upon it", whereas in Ex p Begbie itself, where the basis of claim was that a pupil-specific discretion should be exercised in certain pupils’ favour, he found it “difficult to see how a person who has not clearly understood and accepted a representation of the decision-maker to that effect can be said to have such an expectation at all” (p 1133D-F).

180.  In Bibi Schiemann LJ also identified (in paras 50-51) the need for any decision maker to take properly into account in the decision making process any legitimate expectation generated by previous statements or conduct. Dyson LJ giving the judgment of the court in R (ABCIFER) v Secretary of State for Defence [2003] EWCA Civ 473; [2003] QB 1397, paras 74-75, quoted the relevant passage from Schiemann LJ’s judgment without qualification.

181.   In Nadarajah Laws LJ giving the only full judgment identified six factors tendered by Mr Underwood QC as counsel for the minister as relevant to the existence or otherwise of any substantive legitimate expectation: (1) a promise specifically communicated to an individual or group, which is then ignored, as in Coughlan, (2) the clarity of the representation, (3) the singling out of an individual who is then treated less favourably than others also affected by the representation, (4) detrimental reliance, (5) whether the original promise was the result of an honest mistake, which is being corrected and (6) maladministration. But Laws LJ also sought to carry the law’s development and the search for principle beyond terms such as abuse of power or even fairness and beyond a list of a range of factors “which might make the difference” (paras 67-68). He identified the underlying principle as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public, and the litmus test for departures from a previously announced promise or practice as being whether the departure represented “a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest” (para 68). He added that this approach made no distinction between procedural and substantive expectations, but noted that proportionality itself involved an assessment of factors such as those included in Mr Underwood QC’s list (para 69).

182.  For my part, I have no difficulty in accepting as the underlying principle a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. I prefer to reserve for another case my opinion as to whether it is helpful or appropriate to rationalise the situations in which a departure from a prior decision is justified in terms of proportionality, with its overtones of another area of public law. It is on any view necessary to make an assessment of the relevant factors on each side. In Coughlan (para 57) Lord Woolf spoke of the court’s “task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy", but that was on the basis that a lawful promise or practice inducing a legitimate expectation of a substantive benefit had already been established. The nature and clarity of the promise or practice and of the legitimate expectation which it engenders combine with the circumstances and reasons giving rise to the proposed change of practice as factors which have to be weighed together in order to consider whether and how far justice requires that the public authority should be held to a position consistent with the promise or practice.

183.  On the facts of the present case, I have come to the conclusion that the courts below reached the right result. First, there is no indication that the Government gave any real weight to the common law right of abode which the Chagossians, Mr Bancoult in particular, in my view still enjoyed in 2004 by virtue of their birth and connections with BIOT. Second, there is no indication that the Government gave any real weight to the legitimate expectation generated by its words and conduct in 2000. This is a particularly powerful consideration on the facts of this case, where such words and conduct would have been seen as righting a historic wrong and resolving the Chagossians’ legal entitlement. Third, there was no consultation with the Chagossians or anyone before the BIOT Order 2004 was issued. Fourth, the factors relied upon as justifying section 9 of the BIOT Order 2004 (defence and the outcome of the feasibility study) are factors directed on their face to a remote and unlikely risk of large scale resettlement of the outer Chagos Islands. Both appear now to be related by the Secretary of State to some extent to a risk, not substantiated in legal or, to any realistic extent, practical terms in either 2004 or now, that the United Kingdom Government would have positively to fund and arrange such resettlement, or that a right of resettlement could cause friction with the United States of America. The defence considerations (some hard to follow in themselves, though that is not critical to the view I have formed) were not regarded as any bar to the recognition of a legal right to enter and be present in the outer islands in 2000 or after the events of 11 September 2001, and nothing has been shown to suggest any significant change in such considerations since then. The outcome of the feasibility study was known from June 2002 without any steps being felt necessary for two years. Its bearing is not on the legal right of abode, entry or presence, but on the feasibility of the United Kingdom or others deciding to support a positive programme of resettlement. That, for reasons I have given, is not what is in issue in these proceedings. The practical likelihood of any large-scale resettlement serves also to counter any argument (based on Coughlan, para 60) that the Chagossians number considerably more that a “few” individuals - a most unattractive argument anyway against the background of the determined pretences lying at the origins of this matter 40 years ago that there were no Chagossians at all.