Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2): HL 22 Oct 2008

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
Appeal fromSecretary 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 instanceBancoult, 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 . .
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Held: . .
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Held: . .
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The Property of Every Man is Sacred
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Held: The common law does not recognise interests of state as a justification for allowing what . .
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AffirmedRegina v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd CA 1990
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Held: The Inland Revenue could not withdraw from a representation if it would cause: substantial unfairness to the applicant; if the . .
CitedAttorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
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Held: There is an . .
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CitedIn re Lord Bishop of Natal 1865
. .
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CitedAuld v Murray 1864
. .
CitedM 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 . .
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CitedBuilding Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations 1986
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See AlsoRegina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .

Cited by:
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Constitutional, Judicial Review

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Updated: 16 January 2022; Ref: scu.277126