Chagos Islanders – Prerogative and Judicial Review

February 2007

On 5 February 2007, the Foreign and Commonwealth Office began their appeal against a High Court ruling of May 2006 (see below) which stated that the exclusion of the Ilois people from the Chagos Islands was unlawful. 2000 people were moved from the archipelago in the late 1960s and sent to Mauritius and the Seychelles, after the UK government secretly leased Diego Garcia to the US to use as an air base. The base has been used to launch bombing raids in both Iraq and Afghanistan and the Islanders are excluded on the grounds that their presence on the Chagos Islands would represent a security threat to the base – albeit one posed from 150 miles away.

Sir Sydney Kentridge QC representing the Islanders is arguing that the order in council, made under the royal prerogative but applied with extraterritorial effect was “repugnant” and ultra vires. The focus is on the constitutional position of such a prerogative power and the fact that there is no precedent for using it to exclude an entire population.

John Howell QC, representing the FCO, argues that the decision of May 2006 represents a “revolutionary” legal change that would affect all British overseas territory”.”

The appeal continues in the High Court listed as C1/2006/1465 The Queen on the application of Bancoult -v- The Secretary of State for Foreign and Commonwealth Affairs.

http://news.bbc.co.uk/1/hi/england/southern_counties/6333223.stm

“In a damning verdict [of May 2006], the High Court …overturned orders in council made by Tony Blair’s administration in 2004 which reversed a previous court decision and banned anyone from living on the islands, known officially as British Indian Ocean Territory. The orders, made under the royal prerogative, allowed the Government to dispense with the inconvenience of parliamentary oversight.” Thus in R (Bancoult) v Secretary of State for Foreign Commonwealth Affairs [2006] EWHC 1038 (Admin), the Court held that “The suggestion that a minister can, through the means of an Order in Council, exile a whole population from a British Overseas Territory and claim that he is doing so for the ‘peace, order and good government’ of the Territory is, to us, repugnant” (para 142).

The Court also reaffirmed the CCSU position – the modern approach to judicial review was that Orders in Council could be challenged. In Bancoult (No 2) the Orders were challenged on the basis of irrationality which did not include the Court making an assessment of the defence interests of the UK or the US and as such did not involve those matters of government policy which the courts have frequently held to be non-justiciable.http://www.telegraph.co.uk/news/main.jhtml;jsessionid=N5GQXJJH1QWORQFIQMFCFFWAVCBQYIV0?xml=/news/2006/05/12/wchag12.xml&sSheet=/news/2006/05/12/ixnews.html

November 2000

“The May 2006 ruling represents “the second time the islanders have won a ruling that their eviction was unlawful.”In 2000, the High Court ruled that a 1971 Immigration Ordinance banning people without permits from entering or remaining in the colony was unlawful.”See: http://news.bbc.co.uk/1/hi/uk/4760879.stm

In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 – the Court held that “the 1971 Ordinance fell outside the power conferred by the 1965 Order to make laws for the “peace, order and good government” of the Territory. Such a power required its people to be governed, not removed; and the political reasons for removal, although dictated by pressing considerations of military security, could not by any forensic test of reasonableness be said to touch the peace, order and good government of the Territory. Accordingly the relevant provision of the 1971 Ordinance was quashed.”

See also:http://news.bbc.co.uk/1/hi/uk/1004840.stm

The response of the Government to the decision was to legislate:“in June 2004 two Orders in Council were made – a Constitution Order and a subsidiary Immigration Order – the effect of which was to deny any person the right of abode in the Territory and to prohibit entry into or presence in the Territory without a permit. The Government explained that it had decided that resettlement could not be permitted and that the decision had therefore been taken to legislate to prevent it and to restore full immigration control over the Territory. This was because it was considered that any attempt to resettle any of the islands would compromise the security of the base at Diego Garcia and prejudice the military operations there.”

See excellent analysis of the 2001 and 2006 decisions in the speech of Lord Justice Richards of 7 June 2006, referred to in the section of this blog relating to judicial review and prerogative power.http://www.judiciary.gov.uk/publications_media/speeches/2006/sp070606.htm

Judicial Review – Interesting Cases

Sinn Fein has lost a High Court battle over a decision to deny it funding due to allegations of IRA active. The judges had ruled there was “no real possibility” of bias and also declared that all other accusations of unfairness and illegality were “without substance”.  

See: http://news.bbc.co.uk/1/hi/northern_ireland/6278565.stm

Asylum and Immigration (Treatment of claimants) Bill threatened to remove right of asylum seekers to appeal from high court if their claims were rejected. The Government were forced to back down over the bill.See:  http://news.bbc.co.uk/1/hi/uk_politics/3511536.stm

Recent developments – Judicial Review and Prerogative Powers

For a useful account tracing the approach of the courts to judicial review of prerogative powers see speech by Lord Justice Richards “The International Dimension of Judicial Review” of 7 June 2006.  Richards LJ discusses the cases we discussed in tutorial including CCSU; CND; R(Abbasi); and R(Al-Jeddah).  

Full transcript of speech available at: http://www.judiciary.gov.uk/publications_media/speeches/2006/sp070606.htm

Richards LJ states: 

“It was long considered that, whereas there could be judicial control over the exercise of statutory powers, prerogative powers were beyond the scope of judicial review.   

That view met its end in a case in 1984, arising out of a battle between the government and the civil service unions over a decision to change the terms and conditions of staff at GCHQ without prior consultation with the unions:  CCSU v Minister for Civil Service [1985] 1 AC 374.  The House of Lords held that it is not the source but the subject-matter of a power that determines whether it is susceptible to judicial review.  Thus the fact that a minister is exercising a prerogative power rather than a statutory power is not itself a decisive factor.  Whether the courts can control the exercise of the power depends on the particular subject-matter. 

That principle is one of great importance, as we shall see, but their Lordships also made clear in their judgments that, among the powers considered not to be susceptible to judicial review by reason of their subject-matter were prerogative powers such as those relating to the conduct of foreign affairs, the making of treaties or the defence of the realm.  Areas of high policy of this kind were regarded as non-justiciable.”  CCSU opened the door for a greater degree of judicial scrutiny over the exercise of prerogative powers, however, the door remains closed with respect to those non-justiciable questions: Examples:British Airways Board v Laker Airways Ltd [1984] 1 QB 142: “accordingly it would be strange if in this field [of foreign policy] the courts and the executive spoke with different voices and they should not do so ….” 

R(CND) v Prime Minister & Others [2002] EWHC 2777: High Court held that: (1) courts had no jurisdiction to decide on matters of international treaty law which had not been incorporated into domestic law via legislation – hence they refused to give an advisory opinion on whether it would be lawful for the HMG to take military action in Iraq without a second UN Security Council Resolution (2)  a court ruling would be damaging to international relations. 

R (Jones and Others) [2006] UKHL 16: House of Lords held that no crime of aggression existed in domestic law and a consideration of such a crime in the courts would entail a review of the “transactions between sovereign nations on the plane of international law”. 

R(Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76 Court of Appeal held: (1) no enforceable duty to make representations/ diplomatic negotiations etc to intervene to protect a British citizen suffering at the hands of a foreign state (2) but a legitimate expectation that the Foreign Secretary would act on statements of policy – but these only limited to certain circumstances where the HMG would “consider making representations”. 

R (Al-Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWHC 972: by reason of nationality the state had no standing to make a formal claim on his behalf –  distinguished from Abbasi because a non-British national. Irrespective of this – these decisions are located within the context of foreign policy and therefore an area where the courts are cautious to tread.  R(Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327: UN Security Council Resolution 1546 authorised detention of dual British-Iraqi national contrary to requirements of Article 5 ECHR (arbitrary detention) – the former “trumped” the latter such that Convention rights could not be relied on for the time being when qualified by a UNSCR. 

R (Bancoult) v Secretary of State for Foreign Commonwealth Affairs  [2006] : Orders in Council may be subject to judicial review under the modern law.

[NB – Richards LJ also includes cases on extraterritorial jurisdiction under Article 1 ECHR regarding the jurisdiction of domestic courts to review, those acts carried out by
UK authorities on foreign soil, for their compatibility with the Convention rights. Eg see R(B); Bankovic; R(Al-Skeini); and R(Abbasi) and R(Al-Jeddah) discuss this point too.]

On 12 December 2006, the Court of Appeal gave judgment in R (on the application of Gentle & Clarke) v. the Prime Minister, the Secretary of State for Defence and the Attorney General [2006] EWCA Civ 1690 concerning judicial review of the refusal by the government to hold an independent inquiry into the circumstances which led to the invasion of Iraq.  The Court held at [84] that “Such an inquiry would inevitably involve, not only questions of international law, but also questions of policy, which are essentially matters for the executive and not the courts”.