Constitutional law—Overseas territory—Colonial laws

House of Lords, Lord Hoffmann, Lord Bingham, Lord Rodger, Lord Carswell and Lord Mance, 22 October 2008

The British Indian Ocean Territory (Constitution) Order 2004, which precludes the return of the Chagos Islanders to their homeland, is not in breach of the islanders’ rights under domestic, human rights or international law.

Sir Sydney Kentridge QC, Anthony Bradley and Maya Lester (instructed by Clifford Chance LLP) for the claimants. Jonathan Crow QC and Kieron Beal (instructed by the Treasury Solicitor) for the defendant.

The proceedings concerned the Chagos Archipelago, of which the largest was Diego Garcia. The islands were a dependency of Mauritius when it was ceded to the UK by France in 1814 but later became known as the British Indian Ocean Territory (BIOT). In the 1960s, the US wished to create a military base on Diego Garcia as the most suitable site. Ultimately that led to the Islanders’ removal from the territory and their resettlement in Mauritius and elsewhere.

Following a series of High Court actions, and studies into the cost of resettling the islanders, on 10 June 2004, the Queen, by Order in Council, enacted the British Indian Ocean Territory (Constitution) Order 2004 (the Constitution Order) and the British Indian Ocean Territory (Immigration) Order 2004 which effectively exiled the Chagossians from the BIOT in order to ensure and maintain the availability and effective use of the territory for defence purposes.

While the source of the power to make the Order in Council was the Royal prerogative, in reality, the Constitution Order was an act of the executive by the defendant secretary of state, although the Queen had formally assented to it. In representative proceedings brought by the claimant, the Divisional Court declared that the provisions of the 2004 Orders were susceptible to judicial review and, further, were invalid on the ground, that their provisions were irrational. The secretary of state appealed. The Court of Appeal dismissed the appeal, holding that the claimant was entitled to succeed on the ground of a legitimate expectation, and that the orders were an abuse of power because they had not had proper regard for the interests of the Chagossians.

The secretary of state appealed to the House of Lords. The claimant argued that a right of abode was so fundamental that only an Act of Parliament could remove it. The defendant argued that the courts had no power to review the validity of an order in council legislating for a colony, as it was primary legislation, or was otherwise excluded by the Colonial Laws Validity Act 1865. The claimant also sought to challenge the orders as being Wednesbury unreasonable, and inconsistent with the Human Rights Act 1998 (HRA 1998) and international law.

Lord Hoffmann:
It was true that a prerogative Order in Council was primary legislation in the sense that the legislative power of the Crown was original and not subordinate. It was classified as primary legislation for the purposes of HRA 1998: see para (f)(i) of the definition in s 21(1). That meant that it could not be overridden by the European Convention on Human Rights (the Convention). The court could only make a declaration of incompatibility under s 4.

But the fact that such Orders in Council in certain important respects resembled Acts of Parliament did not mean that they shared all their characteristics. The principle of the sovereignty of Parliament was founded upon the unique authority Parliament derived from its representative character. An exercise of the prerogative lacked that quality; although it might be legislative in character, it was still an exercise of power by the executive alone. There was no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action.

The claimant submitted that the powers of the Crown were limited to legislation for the “peace, order and good government” of the territory.

His lordship ruled that the prerogative power of the Crown to legislate for a ceded colony had never been limited by the requirement that the legislation should be for the peace, order and good government or otherwise for the benefit of the inhabitants of that colony.

Nor had they been construed as words limiting the power of a legislature.

His lordship also held that HRA 1998 did not apply to the BIOT, no relevant declaration having been made under Art 56 of the Convention. Further, international law, not forming part of domestic law, could not support any argument for the invalidity of a purely domestic law such as the Constitution Order.

Lord Rodger:
His lordship held that it was not for the courts to substitute their judgment for that of the secretary of state as to what was conducive to the peace, order and good government of BIOT. Nor were the orders Wednesbury unreasonable on the facts having regard to considerations of security, the cost of resettlement.

Further, none of the provisions of the 2004 orders were open to challenge in the English courts on the ground of repugnancy to any fundamental principle relating to the rights of abode of the Chagossians in the Chagos Islands.

Lord Carswell:
In agreement with Lord Hoff mann and Lord Rodger, the secretary of state’s
decision should not be set aside on the
ground of irrationality.

Further, that the government had not given the Chagossians a clear and unambiguous promise that they would be allowed to return and resettle permanently on the outer islands, and accordingly no legitimate expectation had arisen.

The appeal would therefore be allowed. Lord Bingham and Lord Mance delivered dissenting opinions.