Bancoult, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs Rev 1

An Order in Council made under the prerogative for a British Overseas Territory may be subject to judicial review where its subject matter is justiciable. Rationality must be assessed by reference to the interests of the territory, including its population, rather than solely by reference to the defence interests of the United Kingdom or another state. The Colonial Laws Validity Act 1865 does not exclude review on public-law irrationality grounds. A measure abolishing the right of abode which, on its face, advances only external defence interests is irrational.

The claimant, a Chagossian and British Overseas Territories citizen connected with the British Indian Ocean Territory, challenged the 2004 Constitution and Immigration Orders in Council. They removed any right of abode in the Territory and required permits for entry or presence, reversing the position accepted by the Government after the Divisional Court had quashed the relevant exclusion in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] 1 QB 1067.

The Secretary of State relied on defence requirements and the alleged impracticability of resettlement. The central issues were whether the Orders were immune from judicial review, whether the Colonial Laws Validity Act 1865 barred review, and whether the removal of the right of abode was irrational.

1. The claimant succeeded on public-law irrationality. Section 9 of the British Indian Ocean Territory (Constitution) Order 2004 was quashed. Consequential relief was granted in relation to section 5(1) of the British Indian Ocean Territory (Immigration) Order 2004, and amendments were made to section 15(2) of the Constitution Order.

2. Following R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, the Court treated the Orders as made, at least notionally, by the Queen in right of BIOT. Their rationality therefore had to be judged by reference to the interests of BIOT. Those interests primarily included the people whose right of abode and unrestricted right to enter and remain was being removed.

3. The face of section 9 identified defence purposes of the United Kingdom and United States as the justification for abolishing the right of abode and restricting entry. It made no reference to the interests of BIOT. The Court made no assessment of the merits of the defence interests. The defect was that the measure was made in right of BIOT but was not rationally directed to the interests of that territory.

4. The Court rejected the argument that prerogative origin gave the Orders immunity. The modern approach in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 treats the source of power as secondary to its subject matter where the subject is justiciable. The decision was in reality executive action by the Secretary of State and was reviewable in the ordinary way.

5. The Colonial Laws Validity Act 1865 dealt with repugnancy to applicable Acts, Orders or Regulations and did not prevent a public-law challenge for irrationality. The challenge concerned vires and executive action, not repugnancy to English law.

6. The Court considered, but did not need finally to decide, whether the words peace, order and good government empowered the legislator to exile a whole population, whether Bancoult (1) was binding, or whether the prerogative permitted banishment of a British subject from the territory to which he belonged.

7. The Court also stated that, had resettlement been the relevant reason on the face of the Constitution Order, it would have seen substantial force in the legitimate-expectation argument arising from the Government’s 2000 announcement. It did not decide that issue.

The judgment describes earlier proceedings but is a first-instance decision in the present claim.

• Divisional Court: in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] 1 QB 1067, section 4 of the 1971 Immigration Ordinance was quashed. The Government did not appeal.
• High Court (Administrative Court): the present claim succeeded. Section 9 of the 2004 Constitution Order was quashed and related relief was made concerning section 5(1) of the 2004 Immigration Order.