R (on the application of Bancoult) Respondent v Secretary of State for Foreign and Commonwealth Affairs (Appellant)

A prerogative Order in Council legislating for a ceded overseas territory is executive legislation. It is therefore reviewable for legality, rationality and procedural impropriety. The Crown nevertheless has plenary legislative authority over such a territory, subject to Parliament, and may alter a right of abode.

Words empowering legislation for the territory’s peace, order and good government confer plenary power rather than a judicially enforceable requirement that every law benefit its inhabitants. Rationality review must recognise the importance and practical effect of the affected right, while respecting executive competence in public expenditure, defence and foreign relations.

A substantive legitimate expectation requires a clear and unambiguous promise devoid of relevant qualification. The Convention and Human Rights Act 1998 do not apply to an overseas territory to which the Convention has not been extended.

Mr Bancoult challenged section 9 of the British Indian Ocean Territory (Constitution) Order 2004 and the related Immigration Order. Section 9 declared that no person had a right of abode in the British Indian Ocean Territory and required authority for entry or presence. The measures followed the Government’s decision not to support resettlement of the displaced Chagossians.

The Divisional Court, in [2006] EWHC 1038 (Admin), held the measures invalid. The Court of Appeal affirmed that result in [2007] EWCA Civ 498, principally on legitimate-expectation and abuse-of-power grounds.

The appeal concerned the scope and reviewability of the Crown’s prerogative legislative power over a ceded territory, the meaning of peace, order and good government, rationality, legitimate expectation, and the possible application of human-rights and international law.

By a majority of three to two, the House allowed the Secretary of State’s appeal, set aside the orders below and dismissed the application for judicial review.

1. Per Lord Hoffmann, Lord Rodger of Earlsferry and Lord Carswell, prerogative legislation does not possess Parliament’s representative authority. An Order in Council legislating for an overseas territory is therefore reviewable on ordinary public-law grounds of legality, rationality and procedural impropriety. The principle recognised in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 was not confined to executive decisions made under prerogative instruments.

2. The Colonial Laws Validity Act 1865 did not make the Order immune from ordinary judicial review. Lord Hoffmann considered that, from the perspective of an English court reviewing imperial executive legislation, the Order was not a colonial law for this purpose. Lord Rodger and Lord Carswell instead considered that the Act barred a challenge based on repugnancy to fundamental principles, while leaving other public-law challenges available.

3. Per the majority, the Crown possessed plenary legislative authority over the ceded territory, subject to legislation enacted by Parliament. A right of abode was an important legal right, but the local law could remove it. It was not an inalienable constitutional limit upon the Crown’s colonial legislative power.

4. The formula permitting laws for the territory’s peace, order and good government conferred plenary law-making authority. Except for territorial limits, it did not authorise a court to decide whether legislation promoted the inhabitants’ welfare. The Crown could consider the interests of the United Kingdom and the undivided realm and, in a conflict, prefer United Kingdom interests.

5. The 2004 measures were not irrational. Their practical effect, the absence of viable resettlement without substantial public funding, the feasibility evidence, and defence, diplomatic and security considerations were relevant. Decisions about public expenditure, foreign relations and defence lay especially within executive competence. The importance of the asserted right required careful scrutiny, but did not make the decision unreasonable.

6. The Foreign Secretary’s 2000 statement did not create the asserted legitimate expectation. Read with the continuing feasibility study, it contained no clear and unambiguous promise that immigration controls would never be restored if resettlement proved impracticable. Lord Hoffmann also considered that the lack of detrimental reliance, the limited practical value of the withdrawn right and the strong public interests would have justified the later policy even if an expectation had arisen.

7. The European Convention had never been extended to the territory under article 56. The Human Rights Act 1998 therefore did not govern the Crown’s actions there. Lord Hoffmann further concluded that unincorporated international law could not itself invalidate the domestic Order.

8. Dissenting: Lord Bingham of Cornhill and Lord Mance considered that the prerogative did not extend to exiling a territory’s inhabitants. They would also have held section 9 irrational and contrary to a clear substantive legitimate expectation created by the Government’s statement and conduct in 2000.

1. House of Lords: By a majority of three to two, allowed the appeal in [2008] UKHL 61, set aside the orders below and dismissed the application for judicial review.
2. Court of Appeal: In [2007] EWCA Civ 498, affirmed the Divisional Court’s conclusion that the 2004 measures were unlawful, accepting the legitimate-expectation ground and, in part, abuse-of-power reasoning.
3. Divisional Court: In [2006] EWHC 1038 (Admin), held section 9 of the British Indian Ocean Territory (Constitution) Order 2004 and the related immigration provisions invalid.