The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had been made (ineffectively) to assist the dispossessed islanders, but an order was created under prerogatve powers which prevented their return save with consent. They now challenged the lawfulness of the constitution order.
Held: An Order in Council legislating for a colony (Diego Garcia in the Chagos Islands) was amenable to judicial review. The orders were not unlawful, since they fell within the range of lawful Orders in Council.
The actions of the respondent were properly open to severe criticism. The Queen in Council may legislate for a colony in the interests of the United Kingdom: ‘No doubt she is also required to take into account the interests of the colony (in the absence of any previous case of judicial review of prerogative colonial legislation, there is of course no authority on the point) but there seems to me no doubt that in the event of a conflict of interest, she is entitled, on the advice of Her United Kingdom ministers, to prefer the interests of the United Kingdom.’ In reality the claim was a way of attempting to improve the financial provision allocated to them. There was no expectation created by the Foreign Secretary’s
Lord Hoffmann said that though much of the argument had been about matters of constitutionality, in practice this was an application for judicial review. The order was made in accordance with interest of defence of the realm, and of relations with the United States: ‘Judicial review should be undertaken with a light touch and the Order set aside only if it appeared to be wholly irrational.’
Whatever injustice led to the present situation, the reality was that the islanders could not return without a support they will not get: ‘The Chagossians have, not unreasonably, shown no inclination to return to live Crusoe-like in poor and barren conditions of life. The action is, like Bancoult (1), a step in a campaign to achieve a funded resettlement.’
There had here been no clear and unambiguous promise upon which a claim could be based, and the claim failed.
‘since the 17th century the prerogative has not empowered the Crown to change English common or statute law’.
Lords Carswell and Mance agreed.
Lord Bingham said that the law distinguished between ‘belonger’s whose right to live somehwere was not subject to immigration control, and others. The Chagos islanders belonged on their islands, and a law which prevented them doing so was unlawful. The scope of prerogative power under which the order had been made could no longer be extended. Its use must be checked by seeing whether it has been used before. If it had not, then it dd not exist. If valid as a use, rule 9 of the Order was irrational. There was no good reason for making it. Lord Mance agreed with Lord Bingham.
Lord Rodger said that the effect of the 1865 Act was clear, and it was that ‘no colonial law was to be void or inoperative on the ground of repugnancy to the law of England, unless it was repugnant to the provisions of some Act of Parliament which was made applicable to the colony by express words or necessary intendment.’ This included orders in council. The order was valid, and the appeal allowed.
Lord Hoffmann, Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance
[2008] UKHL 61, (2008) 158 NLJ 1530, [2008] 3 WLR 955, [2008] 4 All ER 1055, [2009] 1 AC 453
Bailii, Times, HL
British Indian Ocean Territory (Constitution) Order 2004, Magna Carta 29, Colonial Laws Validity Act 1865 2 3, British Indian Ocean Territory (Immigration) Order 2004
England and Wales
Citing:
Appeal from – Secretary of State for the Foreign and Commonwealth Affairs v Bancoult, Regina (on the Application of) CA 23-May-2007
The claimant was a Chagos Islander removed in 1970 to make way for a US airbase. The court had ordered that the islanders be allowed to return, but the appellant had passed an Order in Council effectively reversing the position, and now appealed a . .
At first instance – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
At first instance – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
Cited – Campbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .
Cited – The Queen v Burah PC 5-Jun-1978
The Board was asked whether Act No. XXII of 1869 of the Indian Legislature was inconsistent with the Indian High Courts Act (24 and 25 Vict. c. 104) or with the Charter of the High Court, or whether it was within the legislative power of the . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Riel v The Queen PC 1885
A power given to a Parliament to ‘make laws for the peace, order and good government’ is ‘apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to’ . .
Cited – Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation 1933
The court was asked whether Australian estate duty could be levied on movables situated abroad.
Held: When testing the validity of a law passed by the government of a dominion, the question was ‘whether the law in question can be truly . .
Cited – Regina v London Borough of Newham and Manik Bibi and Ataya Al-Nashed CA 26-Apr-2001
CS The housing authority had mistakenly thought that it was obliged to re-house the applicants under the Act with secure accommodation, and promised them accordingly.
Held: That promise had created a . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Ibralebbe v The Queen PC 1964
(St. Christopher and Nevis) A power to make laws for ‘peace, order and good government’ was used to confer legislative power on the Parliament of independent Ceylon, to connote ‘in British constitutional language, the widest law-making powers . .
Cited – Union Steamship Company of Australia Pty Ltd v King 26-Oct-1988
Austlii (High Court of Australia) Constitutional Law (Cth) – Inconsistency between Commonwealth and State laws – Compensation of seamen – Laws expressly contemplating coexistence of laws – Whether Commonwealth . .
Cited – Director of Public Prosecutions v Bhagwan HL 1972
Under s 3 of the 1962 Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a ‘ship’ (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration . .
Cited – The British Broadcasting Corporation v Johns (HM Inspector of Taxes) CA 5-Mar-1964
The BBC claimed to be exempt from income tax. It claimed crown immunity as an emanation of the crown. The court had to decide whether the BBC was subject to judicial review.
Held: It is not a statutory creature; it does not exercise statutory . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Regina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .
Cited – Fabrigas v Mostyn 1773
Minorca was a ceded colony of the British Crown. The Governor, General Mostyn, apparently fearing that Fabrigas would stir up danger for the garrison, committed him to the worst prison on the island, with no bed and only bread and water, and with no . .
Affirmed – Regina v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd CA 1990
Legitimate Expectation once created not withdrawn
The claimant said that a change of practice by the Revenue was contrary to a legitimate expectation.
Held: The Inland Revenue could not withdraw from a representation if it would cause: substantial unfairness to the applicant; if the . .
Cited – Attorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
Cited – Burmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Cited – In re Lord Bishop of Natal 1865
. .
Cited – Liyange v Regina PC 1966
The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void.
Held: The argument succeeded. The separation of powers inherent in the Constitution had been infringed, . .
Cited – Phillips v Eyre CEC 1870
The court considered the rule of double actionability. The court laid down the test for whether a tort committed abroad was actionable in this jurisdiction: ‘As a general rule, in order to found a suit in England for a wrong alleged to have been . .
Cited – Auld v Murray 1864
. .
Cited – M v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .
Cited – Edwards v Cruickshank 1840
Lord President Hope described the jurisdiction of supreme courts: ‘With regard to our jurisdiction, and the jurisdiction of the supreme courts in every civilized country with which I am acquainted, I have no doubt. They have power to compel every . .
Cited – Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations 1986
(New South Wales Court of Appeal) The court upheld the validity of a law which directed a particular outcome of a judicial act. The words included the formula ‘prescribe and confine the scope of the legislative field open to the New South Wales . .
See Also – Regina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .
Cited by:
Cited – Parris v Williams CA 23-Oct-2008
The parties had been business partners, but the business failed, and Mr Williams was made bankrupt. Mr Parris was offered a chance to purchase two apartments, and did so in his own name. Mr Williams asserted an interest, saying that it had been a . .
Cited – London Borough of Hillingdon and Others, Regina (on the Application of) v The Lord Chancellor and others Admn 6-Nov-2008
The claimant challenged the substantial increase in court fees in public law children cases in the Fees Orders. The respondent said that the orders were intended to reflect the true costs of such proceedings and that funding had been provided to . .
Applied – Misick, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 1-May-2009
The former premier of the Turks and Caicos Islands sought to challenge the constitutionality of the 2009 order which was to allow suspension of parts of the Constitution and imposing a direct administration, on a final report on alleged corruption. . .
Cited – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 25-Jul-2012
The claimant sought in advance permission to cross examine two civil servants at a forthcoming judicial review. Documents had been leaked and widely published suggesting that the decision now to be challenged had been taken for improper purposes. . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 21-Nov-2012
Reasons for decision allowing re-amendment of claim and requiring production of documents by a non-party. . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
Cited – Badger Trust, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs Admn 29-Aug-2014
The respondent had carried out the first round of a badger cull, subject to supervision and reporting by an independent expert panel. Promoises were made, the claimant said, that the panel’s role would be maintained for any subsequent round. The . .
Cited – Barclay, and Another, Regina (on The Application of) v Secretary of State for Justice and Lord Chancellor and Others Admn 9-May-2013
The applicants had successfully challenged some provisions in the constitution of Sark, and amending legislation had been brought in, but they now complained of the new provisions.
Held: Where a challenge was intended to the advice given by UK . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Reconsidered – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Bashir and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 30-Jul-2018
(Interim Judgment) The respondent asylum seekers had been rescued in the Mediterranean and taken to an RAF base in Akrotiri on Cyprus, a sovereign base area. The court was now asked whether they were entitled, or should be permitted, to be resettled . .
Cited – Finucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .
Lists of cited by and citing cases may be incomplete.
Constitutional, Judicial Review
Leading Case
Updated: 16 January 2022; Ref: scu.277126
