Seminar 8 Limits to the Rule of Law – The Bancoult case 3 PDF

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Seminar 8

Limits to the Rule of Law – The Bancoult case

1. Identify the main issues and arguments made on behalf of the Crown and the Chagossians

Sixteen years later, on 30 September 1998 Mr. Bancoult, the applicant in these proceedings, applied for judicial review of the Immigration Ordinance 1971 and a declaration that it was void because it purported to authorise the banishment of British Dependent Territory citizens from the Territory and a declaration that the policy which prevented him from returning to and residing in the Territory was unlawful. ~Para 14 Done in Nov 2000 in Divisional Court- section 4 of Immigration Ordinance decreed as ultra vires. But change in law = symbolic > practical as visits required permit. n April 2002, before the production of the report, a group action was commenced on behalf of the Chagos Islanders against the Attorney General and other ministers, claiming compensation and restoration of the property rights of the islanders and declarations of their entitlement to return to all the Chagos Islands and to measures facilitating their return. ~ Para 20 The Government was unwilling to commit itself one way or the other to a definite policy on resettlement until the Chagos Islanders action, which was claiming a legal entitlement to resettlement, had been resolved. But it resisted attempts on the part of the islanders to claim that the Foreign Secretary's press announcement and the revocation of the 1971 Immigration Ordinance amounted already to the adoption of a policy of resettlement. ~Para 24 The judgment of Ouseley J in October 2003 made it clear that there was no legal obligation upon the United Kingdom, whether by way of additional compensation or otherwise, to fund resettlement. a political group in Mauritius calling itself LALIT) were planning some form of direct action by landings on the islands. A 'flotille de la paix' would be assembled to take some of the Chagossians to Diego Garcia or the outer islands. As might be expected, the various participants in this project had somewhat different aims. For LALIT, it was part of an anti-American campaign to close the base at Diego Garcia. Mr Bancoult did not want the base closed (he hoped it might employ resettled Chagossians) but was willing to lead a landing on the outer islands. ~Para 25 ... It therefore decided to restore full immigration control. On 10 June 2004 Her Majesty made the Constitution Order which revoked the BIOT Order and granted a new constitution including section 9, "impossible for the Government to promote or even permit resettlement to take place. After long and careful consideration, we have therefore decided to legislate to prevent it." ~Para 26 he Master of the Rolls also agreed with Sedley LJ that the Orders were an abuse of power because (see para 123) "they did not have proper regard for the interests of the Chagossians". ~Para 30 On the one hand, Mr Crow argued the courts had no power to review the validity of an Order in Council legislating for a colony. This was either because it was primary legislation having unquestionable validity comparable with that of an Act of Parliament, or because review was excluded by the terms of the Colonial Laws Validity Act 1865. On the other hand, Sir Sydney submitted that a right of abode was so sacred and fundamental that the Crown could not in any circumstances have power to remove it. Only an Act of Parliament could do so. I would reject both of these propositions. ~Para 33

2. Explain how Lord Hoffman decided the issue (the ratio). held that BIOT (British Indian Ocean Territory) was a "conquered or ceded colony" and therefore was subject to the prerogative powers of the Crown The court held that the Foreign Secretary was entitled to base the decision on relevant policy considerations, such as the extent of expenditure of public resources on resettlement as well as the security and diplomatic interests of the crown. The court also held that the Chagossians did not have a legitimate expectation of resettlement because the Foreign Secretary’s statements did not amount to a ‘clear and unambiguous promise’.

3. Explain whether you think the decision reflects a formalistic or substantive conception of the rule of law. Formal conceptions of the rule of law address the manner in which the law was promulgated (was it by a properly authorised person, in a properly authorised manner, etc.); the clarity of the ensuing norm (was it sufficiently clear to guide an individual's conduct so as to enable a person to plan his or her life, etc.); and the temporal dimension of the enacted norm. (was it prospective or retrospective, etc.). Formal conceptions of the rule of law do not however seek to pass judgment upon the actual content of the law itself. They are not concerned with whether the law was in that sense a good law or a bad law, provided that the formal precepts of the rule of law were themselves met. Those who espouse substantive conceptions of the rule of law seek to go beyond this. They accept that the rule of law has the formal attributes mentioned above, but they wish to take the doctrine further. Certain substantive rights are said to be based on, or derived from, the rule of law. The concept is used as the foundation for these rights, which are then used to distinguish between “good” laws, which comply with such rights, and “bad” laws which do not. 4. Do you agree with the majority decision? What arguments does Lord Bingham make in his dissenting judgment? Bingham noted that the proper way to interpret an exercise of the royal prerogative was to look at how it had been exercised previously, and that he could not find any previous record of the prerogative being used to "exile an indigenous population from its homeland". He argued that this prerogative power did not exist: "[t]he Crown has never had a prerogative power to prevent its subjects from entering the Kingdom, or to expel them from it". 5. Does the majority decision reflect an inherent weakness in the rule of the law and its function in placing limits on government exercise of power?

British Indian Ocean Territory (BIOT) or Bancoult Cases • Divisional Court: Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 • Court of Appeal: R(Bancoult) v Foreign Secretary (No 1) [2007] EWCA Civ 498 • House of Lords: R(Bancoult) v Foreign Secretary (No 2) (HL) (2009) 1 AC 453 • European Court of Human Rights: Chagos Islanders v UK 1963- 1965 Americans wanted military base on Chagos Islands from UK. People on Island since late 28th century by British to work on plantations on Islands. At time UK = Colonial and Islands were part of Mauritius who were independent in 1965 and in process of negotiations due to US interest in Chagos islands they were separated from mainland Mauritius and seen as BIOT. Gov a time struck secret deal w/ US to hand over main island of Diego Garcia to US (not publicly known). US demanded surrounding Islands were ‘swept and sanitised’. UK did this and facilitated US despite UN charter violations  expelled population of 2000 people on islands. Diego Garcia- largest military base outside US. Used in post ‘war on terror’ base alongside Guantanamo Bay and Abu Ghraib. Terrorists tortured for confessions and intelligence. Legal Framework that enabled UK to do this: Order in Council (Part of royal prerogative) of 1965: sets up a Commission as the law making body for BIOT. PART OF PREROGATIVE OVER PARLIAMENTARY STATUTE BECAUSE IT WAS SET UP BY EXECUTIVE/ Royal prerogative = despotic monarchic power. Immigration Ordinance 1971- unlawful and a criminal offence for anyone to enter or remain in the territory w/o a permit. Enacted by BIOT Commissioner. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 (Bancoult (No 1) Mr Bancoult: Immigration Ordinance 1971 was void and unlawful as it authorises the banishment of citizens from the territory. November 2000- division in court in favour of Bancoult: ‘power to legislate for peace, order, and good governance does not include the power to expel…. I cannot

see how the wholesale removal of a people from the land where they belong can be said to conduce to the territory’s peace, order and good government’ (Laws J) High Court decision (Division Branch) was one of first of decisions in English Court. Labour gov at time- leaked communications from US and UK in 1960’s at time of discussions of independence of Mauritius. Chagosi people referred to in racist terms. Papers were derogatory and disregarded Chagosian rights. Foreign secretary at time (Robin Cooke) would respect decision of Divisional Court that Chagosians are allowed to visit territory that was so important to them. 9/11  US pressured labour gov to reverse decisions DOUBLE STANDARD WHEN TAKING INTO ACCOUNT UK AND EU HYPOCRISY

KEY FACTS    

Part of UK colony until 1968 when US took over in secret deal UK pretended to not know of. USA set up military base  2M people expelled. 1965 Order in Council  Formation of BIOT Immigration Ordinance 1971- nobody can enter/remain w/o permit

LEGAL ISSUES    

Whether HRA 1998 applied to BIOT Judicial control of prerogative- whether courts are able to decide whether particular prerogative power existed Powers of crown through royal prerogative doesn’t extent to exiling of indigenous people from their homeland Bingham states countries must respect international law and domestic law- should try to implement and incorporate it. Courts should try t conform to law (not domestic but laws signed by those states).

RATIO- HOFFMAN    

ECHR n/a to Mauritius once it became independent and no other declaration was made for Mauritius. Conflict of interest between UK and the colony- Crown sought to prefer interests of UK > Chagossians HRA n/a to BIOT so crown cannot infringe HRA 1998 Common law rights of abode- complex argument that Bingham mentioned in dissenting judgment.

DISSENTING- BINGHAM     

Crown never used prerogative powers to exile population from homeland  no authority to do so now. Nothing to compare use of power to- lacked precedent for judicial review grounds. Cannot create new prerogative- look at Miller and North Umbria cases Irrationality- section 9 contradicted secretary of state. Gov potentially able to go back on financing Chagossians....