Bancoult, R (On The Application of) v Secretary of State For Foreign and Commonwealth Affairs

Factual and Procedural Background

The British Indian Ocean Territory (“BIOT”) was created in 1965 from islands previously administered with Mauritius and the Seychelles. Between 1968 and 1973 the settled population—known as the Chagossians—was removed so that the largest island, Diego Garcia, could be used by the United Kingdom and the United States for defence purposes. In 1971 the BIOT Commissioner enacted an Immigration Ordinance that barred anyone from entering or remaining in the Territory without a permit.

In 2000 the Divisional Court quashed that Ordinance in Bancoult (No 1), holding it ultra vires. The Foreign Secretary publicly accepted the ruling and the Commissioner immediately made a replacement Immigration Ordinance that exempted Chagossians from controls on all islands except Diego Garcia.

In June 2004 Her Majesty in Council revoked the existing constitutional instruments and made the British Indian Ocean Territory (Constitution) Order 2004. Section 9 of that Order declared that no person has a right of abode in BIOT and barred entry or presence without authorisation. A companion Immigration Order vested the grant of permits in the absolute discretion of immigration officers. The Respondent (a Chagossian) sought judicial review. The Divisional Court and the Court of Appeal held section 9 invalid. The Secretary of State appealed to the House of Lords.

Legal Issues Presented

1. Does the royal prerogative extend to legislating by Order in Council so as to remove the right of abode of an existing population in a ceded colony?
2. Are prerogative Orders in Council subject to judicial review on grounds of legality, rationality and procedural propriety?
3. Did the Foreign Secretary’s 2000 press statement and the 2000 Immigration Ordinance create a legitimate expectation that Chagossians could return to, or remain on, the outer islands?
4. Were section 9 of the Constitution Order 2004 and the accompanying Immigration Order irrational or an abuse of power?
5. Do the Colonial Laws Validity Act 1865, the Human Rights Act 1998 or international law affect the validity of the 2004 Orders?

Arguments of the Parties

Appellant’s Arguments

• The prerogative power to legislate for ceded territories is plenary; an Order in Council therefore stands on the same footing as an Act of Parliament and is not reviewable for substantive validity.
• The Colonial Laws Validity Act 1865 prevents any challenge based on repugnancy to common-law principles.
• No clear or unambiguous promise capable of creating a legitimate expectation was ever made; any indication in 2000 was implicitly subject to the outcome of a feasibility study.
• Even if reviewable, the 2004 measures were rational: permanent resettlement was economically unfeasible, would jeopardise defence interests, and urgent action was needed to forestall threatened protest landings.

Respondent’s Arguments

• The prerogative cannot be used to exile an indigenous population; that would conflict with fundamental constitutional principles protecting the right of abode.
• Orders in Council are executive acts and therefore reviewable for legality, rationality and procedural fairness.
• The 2000 press release and Ordinance represented a binding, unqualified assurance that Chagossians could return to the outer islands; withdrawal without consultation was an abuse of power.
• The supposed defence and feasibility justifications were either unsubstantiated or irrelevant to the narrow right simply to be present; the decision was irrational.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority (Judge Hoffmann, Judge Rodger, Judge Carswell): The prerogative to legislate for ceded colonies is plenary; Orders in Council are primary legislation immune from substantive invalidity, though reviewable for procedural regularity. Chapter 29 of Magna Carta and common-law rights of abode do not limit the prerogative overseas. The Colonial Laws Validity Act 1865 bars challenges based on repugnancy to English law. Section 9 was rationally connected to defence and economic considerations; any 2000 statement created no clear promise. Legitimate-expectation doctrine therefore failed.

Dissent (Judge Bingham, Judge Mance): The prerogative cannot be used to exile subjects; that would offend fundamental constitutional principles. Even if the power existed, it must be exercised lawfully: section 9 was irrational and breached a substantive legitimate expectation generated in 2000. Defence concerns were unconvincing, feasibility issues irrelevant to mere physical presence, and no consultation occurred.

Holding and Implications

Holding: APPEAL ALLOWED. The House of Lords (by a 3-2 majority) set aside the orders of the Divisional Court and the Court of Appeal and dismissed the Respondent’s application; section 9 of the Constitution Order 2004 and the accompanying Immigration Order remain valid.

Implications: The decision confirms a wide scope for the Crown’s prerogative legislation over overseas territories and narrows the circumstances in which courts will recognise substantive legitimate expectations in that context. It leaves Chagossians without any judicially enforceable right to return, placing future redress in the political rather than legal sphere.