In a second major round of legal action, the Chagossians again challenged the legality of the new 2004 Immigration Order. Both the High Court and Court of Appeal ruled in favour of the Chagossians. The Government petitioned the House of Lords for a ruling on whether the courts had the right to overturn an Order in Council. On these narrow grounds the Lords ruled on 22 October 2008 by a 3-2 majority that the new Order in Council was not unlawful.
Bancoult (No. 2) centred on two issues. The first concerned the general question of the reviewability of prerogative legislation. This represented some unfinished business from the GCHQ case where it was held that acts done in the exercise of prerogative powers were reviewable, but left open the question to whether the same was true of the prerogative itself. The Law Lords in Bancoult (No. 2) unanimously ruled that judicial review applied. While it is true that prerogative Orders in Council are a type of primary legislation, they said, it does not follow that they share all the characteristics of Acts of Parliament, in particular their immunity from judicial review. The prerogative lacks the representative character of an Act of Parliament, so 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 second issue concerned the legality of this particular exercise of prerogative power, and on this question the House divided (3:2). The majority found the 2004 Orders were lawful, holding that the phrase ‘peace, order and good government’ relates to the governance of the entire Crown realm, and not just to those residing (or once residing) in BIOT. The phrase has always been treated, they said, ‘as apt to confer plenary law-making authority.’ Moreover, the case fell within a ‘macro-political field’ and was thus ‘particularly within the competence of the executive’. Scrutiny of this sort of matter fell to Parliament and not the courts, since it raised a ‘political, not judicial’ question. A ‘rule of abstinence’ should be applied: however ‘distasteful’ the court might consider the provisions at issue, it should avoid interfering with ‘what is essentially a political judgment’. The majority also denied that the Chagossians had a legitimate expectation arising from the press statement after Bancoult (No. 1) that entitled them to resettlement.
The dissenting judges Lord Bingham and Lord Mance argued that the English courts have an inherent jurisdiction to delineate the scope of the prerogative power of colonial governance. They held that there was no prerogative power to make an order whose effect was to exile a population – ‘the reciprocal duties of allegiance and protection…cannot ordinarily be discharged by removing and excluding the citizen from his homeland.’ The right of abode is a fundamental ‘and, in the informal sense in which that term is necessarily used in a United Kingdom context, constitutional’ right that has been recognized since Magna Carta. No permissible distinction could be drawn between British citizens and those whose homes are in former colonial territories. Further, the term ‘peace, order and good government’ specifies a power ‘intended to enable the proper governance of the territory, at least among other things for the benefit of the people inhabiting it. A constitution which exiles a territory’s inhabitants is a contradiction in terms.’
Following the House of Lords appeal, the Foreign Secretary, David Miliband, defended what had been done:
"We do not seek to excuse the conduct of an earlier generation. Our appeal to the House of Lords was not about what happened in the 1960s and 1970s. It was about decisions taken in the international context of 2004. This required us to take into account issues of defence [and] security of the archipelago and the fact that an independent study had come down heavily against the feasibility of lasting resettlement of the outer islands of BIOT."[1]
In the British Territories Overseas Bill 2002 the Chagossians for the first time gained the right of abode in the UK. Again this concession has more to do with the persistence of Parliamentarians who have supported the Chagossians and mistakes made in the 1960s. Chagossians were given Mauritian citizenship in 1968 when Mauritius gained independence. But officials soon realised that any Chagossians born in the BIOT after that date had “exclusive attachment” to BIOT and “could not be disguised as Mauritians”. In the draft 2002 legislation there was originally no mention of the Chagossians and it was only by virtue of a special clause at the instigation of MPs that they were included. Following this, the first groups arrived in the UK on 16 Sept 2002 initially sleeping in Gatwick airport and have now formed a new community mainly in Crawley near Gatwick. This community now numbers about 1,000 to 1,500.
In the US Courts, actions by the Chagossians were defeated in 2004 firstly because the public officials against whom the claims had been brought were indemnified for their actions under the Westfall Act, thereby converting the claims to be against the US Government. The court then ruled that the claims were barred because they were on foreign soil, and the court was not entitled to look into the foreign policy decisions of the US. On appeal, the case was dismissed in 2006 on the basis that the establishment of the base on Diego Garcia was a political decision not subject to judicial review, and the Supreme Court refused leave in 2007.
[1] ‘Chagos Islanders lose battle to return’, Guardian, 22 October 2008