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

An exercise of the royal prerogative through an Order in Council is amenable to judicial review where its subject matter is justiciable. Its formal source in the Crown does not confer executive immunity, and the Colonial Laws Validity Act 1865 does not exclude review of whether such an instrument was lawfully made.

A clear and lawful executive promise of a substantive benefit may create a legitimate expectation. Frustrating it is an abuse of power where the resulting unfairness is profound and no relevant overriding interest justifies departure. An Order excluding an indigenous population from its homeland was therefore unlawful where it reversed an implemented promise of return without consultation, material change of circumstances or sufficient justification.

The Secretary of State appealed against the Divisional Court's decision in [2006] EWHC 1038 (Admin), which invalidated provisions of two Orders in Council made in 2004. Their combined effect was to abolish the Chagossians' right of abode in the British Indian Ocean Territory and restore immigration controls preventing their unrestricted return.

After an earlier court decision had invalidated the 1971 exclusion, the Foreign Secretary publicly announced that the Government would not appeal and would legislate to permit return to the outer islands. That policy was implemented by an Immigration Ordinance. The Government reversed it in 2004 without prior consultation.

The central questions were whether the Colonial Laws Validity Act 1865 or the nature of the colonial prerogative excluded judicial review, and whether the 2004 measures were an abuse of power or frustrated a substantive legitimate expectation.

1. Appeal dismissed. The decision to make the 2004 Orders in Council and the relevant provisions of the Orders were subject to judicial review. The court upheld the setting aside of the provisions that reversed the Government's 2000 recognition of the Chagossians' right to return.
2. The Colonial Laws Validity Act 1865 established priority between valid colonial law and applicable imperial legislation. It did not immunise a purported colonial law from a challenge that it had not lawfully been made. The Act therefore did not bar review of the validity of prerogative Orders in Council.
3. The court unanimously held that the modern principles governing review of the royal prerogative apply to Orders in Council. The controlling consideration is the subject matter rather than the formal source of the power. In constitutional reality ministers decided upon the measures, while the Monarch was bound to act on their advice. No relevant subject-matter objection, such as national security non-justiciability, precluded review.
4. The Foreign Secretary's clear and unconditional 2000 statement, followed by legislation permitting return to the outer islands, created a substantive legitimate expectation. Applying R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, frustrating that expectation was so unfair as to constitute an abuse of power unless an overriding interest justified the change.
5. No sufficient overriding interest was established. There had been no relevant change of circumstances between 2000 and 2004. The feasibility study did not answer why the Chagossians could not return at their own risk, and no legal obligation on the United Kingdom to fund resettlement was shown. The reversal occurred without prior notice or consultation.
6. Sedley LJ additionally concluded that permanently excluding an entire colonial population for reasons unconnected with its collective wellbeing fell outside the legitimate purposes of colonial governance. Waller LJ expressly reserved the general width of the prerogative. Sir Anthony Clarke MR adopted a narrower position: the executive could consider both British and Chagossian interests, but the Orders were independently abusive because proper regard had not been given to the Chagossians' fundamental interest in returning home.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 498, unanimously dismissed the Secretary of State's appeal and upheld the setting aside of the relevant provisions of the 2004 Orders in Council.
2. Divisional Court: In [2006] EWHC 1038 (Admin), held that the provisions excluding the Chagossians from the British Indian Ocean Territory were invalid and should be quashed.