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The Chagos Islanders Case

Written by John Stubbs (4th year LLB)

The Chagos Islands are a cluster of around sixty small islands and seven atolls located in the Indian Ocean. The islands were ceded to the United Kingdom by the Treaty of Paris in 1814, but were administered by the state of Mauritius. Slaves were given their freedom in 1835, and while some left, many remained on the islands for over a hundred years. These are the Chagossians or Ilois people, and are considered the islands' indigenous population.

In 1965 the islands were reconstituted as the British Indian Ocean Territory (BIOT), in preparation for Diego Garcia (the largest of the territory's islands) to be sold to the United States to serve as a military base in the region. Between 1967 and 1972 the indigenous people, numbering around 1,600, were treated 'abhorrently' by the British Government. They were left penniless for many years in slums in Mauritius – at the time a country with unemployment over 20% - after their evacuation by the British, before a token grievance settlement was reached with them.

In 2000, Olivier Bancoult, a native Chagossian, brought a judicial review claim against the Secretary of State for Foreign and Commonwealth Affairs for the initial 1971 ordinance for their people's removal.1 In it, Banhoult was successful in getting a judicial declaration that the BIOT Commissioner has acted ultra vires (outside his scope of authority) in allowing the 1971 ordinance. The judge also found that the Magna Carta applied to foreign nations, as it was 'the nearest approach to an irreplaceable fundamental statute' that England has ever had, as it ensured the King, and therefore Orders in Council, came underneath the authority of the law.

The British Government's response was immediate, with the Foreign Secretary stating on 3 November 2000 that he would accept the ruling and the government would not appeal. He also ordered a 'feasibility study' to examine the economic and social impact of resettlement of the Chagossians on the outlying islands. The study was published in June 2002, and came to the conclusion that 'it would be impossible for the Government to promote or even permit resettlement to take place' due to environmental and economic uncertainty over the viability of resettlement long-term, and that the Government had henceforth 'decided to legislate to prevent it.'2 In 2004, an Order in Council enacted the British Indian Ocean Territory (Constitution) Order 2004, section 9 of which gives that 'no person has the right of abode in the territory', as well as  introducing the British Indian Ocean Territory (Immigration) Order 2004, which effectively prohibits entry in the BIOT without a government-approved permit.

Mr Banhoult's response to these actions was to bring another action to the Court, claiming the Foreign Secretary's statement had created a legitimate expectation to the Chagossians which was destroyed by the 2004 Orders. He also brought the action in order to appeal against the validity of the offending section 9 of the Constitution Order. In the Divisional Court, Hooper LJ and Cresswell J supported Banhoult, claiming an Order in Council could be held judicially reviewable under Council of Civil Service Unions v Minister for the Civil Service,3 and that the section was irrational as it clearly did not consider the interests of the Chagossians despite its imposition as the island's Constitution by royal prerogative.

The judgment given in this appeal case was lengthy, diverse, and had important ramifications for the Chagossians. The two issues upon which the judges had to make reasoned decisions were, summarily, whether or not Orders in Council can be subject to judicial review by the Court, being classed as primary legislation and therefore as privileged as Acts of Parliament (and therefore supposedly unchallengeable), and the legality of the 2004 Order, particularly with respect to the aforementioned offending section 9. However, the decision is peppered with statements regarding the judicial/political mire of balancing human rights issues with national security and defense considerations and sympathetic statements regarding the plight of the Chagossians.

On the issue of the judicial review of Orders in Council, there was a general consensus between the judges that 'there was no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety as any other executive action.'4 Lord Hoffman, in the leading judgment, highlights that 'an exercise of the prerogative lacks this quality [of representative scrutiny through Parliament]; although it may be legislative in character, it is still an exercise of power by the executive alone.'5 He goes further, referring to the aforesaid Civil Service6case, which provides a common law precedent that prerogative powers are not immune from judicial review. Referring to the treatment of the Chagossians and the use of Diego Garcia is a possible site of American extraordinary rendition, he stated that 'the idea that such conduct on British territory, touching the honour of the United Kingdom, could be legitimated by executive fiat, is not something which I would find acceptable.'7With support even from dissenting judgments, the view that Orders in Council are no longer immune from judicial review can now be considered an entrenched feature of constitutional law.

The legality of the Constitutional Order, including the much-debated section 9, was upheld by the Court but with vehement and vocal dissent. In upholding the Order's legality, Lord Hoffman contended that national security concerns and economic ramifications (especially considering the UN Charter article 73, which could result in indefinite British support for such a venture)  had to be considered by the Secretary of State, and that his decision to enact the Orders were in the interest of the entire United Kingdom and not just solely the Chagossians. Indeed, he goes as far as confirming that 'in the event of a conflict of interest [between possessions and the mainland], Her Majesty is entitled to prefer the interests of the United Kingdom'.8

Lord Rodger expanded upon his colleague's submissions, contending that, despite its origin being so archaic and the case upon which the Court should recognise precedent for it over two hundred years old, the Court must acknowledge the distinction between settled and conquered or ceded colonies. He states simply that 'when Parliament has not intervened to alter them, the rule of law requires courts to apply the established principles'. That a case so important to the people of the Chagos Islands can rest on principles unchanged from the era of British Imperalism did not sit well with many commentators. Adam Tomkins, an expert on the British constitutional monarchy, described the reliance on those principles as 'arcane' and expressed disappointment that, in the original case, Laws LJ had relied on such 'ancient and formal niceties'.9

Lord Carswell also reinforces earlier points and, despite acknowledging that 'the right not to be exiled could readily be regarded as fundamental',10 he rejected that it was an inalienable constitutional right, concurring with earlier statements that 'since the Crown has plenary legislative authority over a ceded colony, there appears to be no compelling reason why an Order in Council should not validly have the same effect in a Crown colony as an Act of Parliament would have in the United Kingdom.' He goes on further to address the Magna Carta issue raised in previous cases, contending that the basis of this claim on a statement from Lord Mansfield was dubious, in so far as that case concerned taxing authority, and not such important issues as the right to return. He instead says that there is no repugnance with English law, based on 'some vague unspecified law of natural justice'.11

The opposing opinions given on the legality of the Orders in Council with respect to section 9 are about as venomous as one could ever see in the House of Lords. Lord Bingham states:

 'The Crown has never had a prerogative power to prevent its subjects from entering the  
 Kingdom, or to expel them from it'

His conclusion therefore, in the face of the fact that this was not discussed by Parliament and was therefore entirely done in secret, is that 'there was no royal prerogative power to make an order in council containing section 9, and it is accordingly void.'13Not satisfied with this proclamation alone, Bingham continues and lists six individual and separate reasons why this was irrational and therefore void. His outrage at the Order's implementation is clear.

Lord Mance, in the longest judgment given in the case, takes an altogether more ideological tact in his dissenting opinion, and criticised the government and the Order in Council very openly. He firstly claims that the scope of the prerogative power of the Crown is less equal than that of an Act of Parliament. He submits that 'the right [of abode] is fundamental, and in the informal sense in which that term is necessarily used in a United Kingdom context, constitutional.' He develops this opinion, stating that 'the common law right to enter and remain within the United Kingdom remains unchanged in respect of those with British citizenship based on their connection with the United Kingdom'.14 He also heavily criticises the contention that real Chagossian natives are hard to establish, being originally from Mauritius or the Seychelles, claiming it is 'clear enough that there were at least hundreds of persons who could only properly be described as Chagossians'. He wraps up his judgment by proclaiming that 'the decision to enact section 9 of the BIOT Order 2004 was made without regard to relevant considerations and interests, and that, when regard is had thereto, no decision could rationally have been taken on the material available in the sense in which it was.'

These submissions clearly highlight the absolute divide between the country's most decorated legal minds on the section 9 issue, with some arguing a strictly formalist, lexically adherent approach and others preferring a more holistically inclusive and pro-Chagossian point of view. The judgment of Bancoult (No 2) has been heavily criticised as being a step back from the Civil Service case, which faced a similarly difficult political minefield as a backdrop for the case. However, it wasn't the judges that failed the Chagossians, or the House of Lords or appeal system in England either. Instead, it was the poor constitutional framework of the United Kingdom that has too many holes and gray areas in its framework that resulted in the protraction of an already decades-old campaign, and allowed the shadow of an irresponsible and unjust decision of a 60s British administration still in the final throes of its imperial dominance to stay unresolved. A hearing at the United Nations Human Rights Committee is now due this year – until then, the Chagossians' struggle continues.

An unabridged version of this discussion is available.

  1 R (on the application of Banhoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2000] EWHC Admin 413.


2 Allen, S., 2008. International law and the resettlement of the (outer) Chagos Islands. P8(3).


3Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6.


4 Poole, T., 2010. The Royal Prerogative. International Journal of Constitutional Law. p8(1).


5R (on the application of Banhoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, para 35.


6 [1985] AC 374.


7 [2008] UKHL 61, para 36.


8 Ibid, para 49.


9 Tomkins, A., 2001. Magna Carta: Crown and Colonies. P579.


10 [2008] UKHL 61, para 123.


11 Ibid, para 125. See also the Privy Council opinion from Liyanage v The Queen [1967] AC 259.


12 Ibid.


13 [2008] UKHL 61, para 71.


14 Ibid, para 151.

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