[2001] |
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|
Queen's
Bench Division
Regina
(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs and
another
2000 July 17, 18, 19, 20;
Nov 3 |
Laws LJ
and Gibbs J |
Crown -
Colony - Subordinate legislation - Validity - Ordinance purporting to banish
and prohibit return of resident citizens - Whether ultra vires - Whether for
"peace, order and good government" of territory - Whether susceptible
to judicial review - Colonial Laws Validity Act 1865 (28 & 29 Vict c 63),
ss 2, 31 - British Indian Ocean Territory Order 1965 (SI 1965/1920),
s 11(1)2 - Immigration Ordinance 1971 (British Indian Ocean
Territory Ordinance No 1 of 1971), s 43
In 1965 the
Chagos Archipelago in the Indian Ocean, formerly governed as part of the British
colony of Mauritius, became a separate colony called the "British Indian
Ocean Territory" by virtue of the British Indian Ocean Territory Order
1965, which provided for the appointment of a Commissioner and by section 11(1)
that the Commissioner "may make laws for the peace, order and good
government of the Territory".
The Immigration Ordinance 1971 of the British Indian Ocean Territory,
purportedly made under section 11 of the 1965 Order, provided by section 4 for
the compulsory removal of the whole of the existing civilian population of the
territory to Mauritius and prohibited their return. The purpose of the 1965 Order and the 1971 Ordinance was to
facilitate the establishment of a strategic American military base on the main
island of the archipelago, Diego Garcia, pursuant to an agreement between the
governments of the United Kingdom and United States of America. The applicant, a British Dependent
Territory citizen born in the Chagos Archipelago who had been prevented from
returning there since 1971, requested the Commissioner on behalf of the Foreign
and Commonwealth Office to declare that both the Ordinance and the policy by
which he had been prevented from returning to and residing in the territory
were unlawful. His request was
denied and he applied for judicial review.
On the
applicationÑ
Held, granting
the application and quashing section 4 of the 1971 Ordinance, (1) that the
power to legislate for the British Indian Ocean Territory arose from the
Queen's prerogative to make laws for a ceded colony; that a court of the
Queen's Bench Division had jurisdiction to issue a prerogative writ such as an
order of certiorari to any place under the Crown's subjection notwithstanding
the existence of effective local courts; and that since the 1971 Ordinance had
been made on the direction of the United Kingdom government its interpretation
was properly a matter for the Queen's Bench Division and not just the
territory's own courts (see post, pp 1091C-D, 1106C).
Ex p Mwenya [1960] 1 QB
241, CA applied.
In re
Mansergh (1861) 1 B & S 400 considered.
(2) That the
principle that fundamental or constitutional rights might not be abrogated by a
subordinate instrument made pursuant to legislation cast in general terms, but
only pursuant to a specific provision in an Act of Parliament, did not apply to
colonial laws which, by virtue of sections 2 and 3 of the Colonial Laws
Validity Act 1865, were only void if and to the extent that they were repugnant
to an Act of the United Kingdom Parliament applicable to that colony, and not
on the ground of
1
Colonial Laws Validity Act 1865, s 2: see post, pp 1092H-1093A.
S 3: see
post, p 1093B.
2
British Indian Ocean Territory Order 1965, s 11(1): see post, p 1077A.
3
Immigration Ordinance 1971, s 4: see post, pp 1077H-1078A.
[2001] |
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(Bancoult) v Foreign Secretary (DC) |
|
repugnancy to the law of
England generally; that, as regards fundamental or constitutional rights, there
was a difference of approach between the developed law of England and the law applicable
in the colonies; that "belongers" in the United Kingdom took the
benefit of constraints imposed by the common law on the construction of
legislation which interfered with such rights whereas "belongers" in
colonies did not, since their rights would normally be protected by that
territory's written constitution, even though the British Indian Ocean
Territory had no such constitution (see post, pp 1095G-H,1096H-1097B, 1099D-1100B, 1106C).
Liyanage v
The Queen [1967] 1 AC 259, PC applied.
R v Lord Chancellor,
Ex p Witham [1998] QB 575, DC distinguished.
R v
Secretary of State for the Home Department, Ex p Simms [2000] 2 AC
115, HL(E) considered.
(3) That a
power to make laws for the "peace, order and good government" of a
territory, such as that conferred by section 11(1) of the 1965 Order, required
its people to be governed, not removed; that in the absence of exceptional
circumstances, such as where the land became toxic or uninhabitable, the
removal of its entire civilian population was not conducive to a territory's
peace, order and good government; that, although the political reasons for such
removal were good reasons dictated by pressing considerations of military
security, they could not by any forensic test of reasonableness be said to touch
the peace, order and good government of the territory; and that in the absence,
apart from section 11 of the 1965 Order, of any principled basis on which
section 4 of the 1971 Ordinance could be justified it had to be declared
unlawful (see post, pp 1104A-1105B, 1106C,1107A-E).
Associated
Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB
223, CA applied.
Winfat
Enterprise (HK) Co Ltd v Attorney General of Hong Kong [1985] AC
733, PC considered.
The
following cases are referred to in the judgments:
Abeyesekera
v Jayatilake [1932] AC 260, PC
Anderson,
Ex p (1861) 3 E & E 487
Associated
Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB
223; [1947] 2 All ER 680, CA
Calder v
Attorney General of British Columbia (1973) 34 DLR (3d) 145
Calvin's
Case (1609) 7 Co Rep 1
Entick v
Carrington (1765) 19 State Tr 1029
Ibralebbe
v The Queen [1964] AC 900; [1964] 2 WLR 76; [1964] 1 All ER 251, PC
Li Hong
Mi v Attorney General for Hong Kong [1920] AC 735, PC
Liyanage
v The Queen [1967] 1 AC 259; [1966] 2 WLR 682; [1966] 1 All ER 650, PC
Mansergh,
In re (1861) 1 B & S 400
Mwenya,
Ex p [1960] 1 QB 241; [1959] 3 WLR 767; [1959] 3 All ER 525, CA
Phillips
v Eyre (1870) LR 6 QB 1
R v Burah (1878) 3
App Cas 889, PC
R v Cowle (1759) 2
Burr 834
R v Earl
of Crewe, Ex p Sekgome [1910] 2 KB 576, CA
R v Lord
Chancellor, Ex p Witham [1998] QB 575; [1998] 2 WLR 849; [1997] 2 All
ER 779, DC
R v
Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian
Association of Alberta [1982] QB 892; [1982] 2 WLR 641; [1982] 2 All
ER 118, CA
R v
Secretary of State for the Home Department, Ex p Bhurosah [1968] 1 QB
266; [1967] 3 WLR 1259; [1967] 3 All ER 831, DC and CA
R v
Secretary of State for the Home Department, Ex p Pierson [1998] AC
539; [1997] 3 WLR 492; [1997] 3 All ER 577, HL(E)
[2001] |
|
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R
(Bancoult) v Foreign Secretary (DC) |
|
R v
Secretary of State for the Home Department, Ex p Simms [2000] 2 AC
115; [1999] 3 WLR 328; [1999] 3 All ER 400, HL(E)
Riel v
The Queen (1885) 10 App Cas 675, PC
Sabally
and N'Jie v Attorney General [1965] 1 QB 273; [1964] 3 WLR 732;
[1964] 3 All ER 377, CA
Sammut v
Strickland [1938] AC 678; [1938] 3 All ER 693, PC
Staples v
The Queen (unreported) 27 January 1899, PC
Tito v
Waddell (No 2) [1977] Ch 106; [1977] 2 WLR 496; [1977] 3 All ER 129
Trustees
Executors and Agency Co Ltd v Federal Comr of Taxation (1933) 49
CLR 220
Van Duyn
v Home Office (Case 41/74) [1975] Ch 358; [1975] 2 WLR 760; [1975] 3 All
ER 190; [1974] ECR 1337, ECJ
Winfat
Enterprise (HK) Co Ltd v Attorney General of Hong Kong [1985] AC
733; [1985] 2 WLR 786; [1985] 3 All ER 17, PC
The
following additional cases were cited in argument:
Attorney
General for Canada v Hallet & Carey Ltd[1952] AC 427, PC
Attorney
General's Reference (No 1 of 1990) [1992] QB 630; [1992] 3 WLR 9;
[1992] 3 All ER 169, CA
Bateman's
Trust, In re (1873) LR 15 Eq 355
Blackburn
v Attorney General [1971] 1 WLR 1037; [1971] 2 All ER 1380, CA
Bui van
Thanh v United Kingdom (Application No 16137/90) (unreported) 12 March
1990, E Comm HR
Campbell
v Hall (1774) 1 Cowp 204; Lofft 655
Cobb
& Co Ltd v Kropp [1967] 1 AC 141; [1966] 3 WLR 416; [1966] 2 All ER 913, PC
Council
of Civil Service Unions v Minister for the Civil Service [1985] AC
374; [1984] 3 WLR 1174; [1984] 3
All ER 935, HL(E)
Hodge v
The Queen (1883) 9 App Cas 117, PC
Holmes,
In re (1861) 2 J & H 527
Madzimbamuto
v Lardner-Burke [1969] 1 AC 645; [1968] 3 WLR 1229; [1968] 3 All ER 561, PC
Nissan v
Attorney General [1970] AC 179; [1969] 2 WLR 926; [1969] 1 All ER 629, HL(E)
Nyali Ltd
v Attorney General [1956] 1 QB 1; [1955] 2 WLR 649; [1955] 1 All ER 646, CA; [1957]
AC 253; [1956] 3 WLR 341; [1956] 2 All ER 689, HL(E)
Pickin v
British Railways Board [1974] AC 765; [1974] 2 WLR 208; [1974] 1 All ER
609, HL(E)
R v
Bhagwan [1972] AC 60; [1970] 3 WLR 501; [1970] 3 All ER 97, HL(E)
R v Lord
Chancellor Ex p Lightfoot [2000] QB 597; [1999] 2 WLR 1126; [1998] 4 All
ER 764
R v
Ministry of Defence, Ex p Smith [1996] QB 517; [1996] 2 WLR 305;
[1996] 1 All ER 257, CA
R v
Secretary of State for Social Security, Ex p Joint Council for the Welfare of
Immigrants [1997] 1 WLR 275; [1996] 4 All ER 385, CA
R v
Secretary of State for the Environment, Ex p Hammersmith and Fulham London
Borough Council [1991] 1 AC 521; [1990] 3 WLR 898; [1990] 3 All ER 589, HL(E)
R v
Secretary of State for the Home Department, Ex p Muboyayi [1992] QB
244; [1991] 3 WLR 442; [1991] 4 All ER 72, CA
R v
Secretary of State for War, Ex p Price [1949] 1 KB 1, DC
Rayner (J
H) (Mincing Lane) Ltd v Department of Trade and Industry [1989] Ch
72; [1988] 3 WLR 1033; [1988] 3 All ER 257, CA; [1990] 2 AC 418; [1989] 3 WLR
969; [1989] 3 All ER 523, HL(E)
Thornton
v The Police [1962] AC 339; [1962] 2 WLR 1141; [1962] 3 All ER 88, PC
Toohey,
In re, Ex p Northern Land Council (1981) 38 ALR 439
[2001] |
|
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(Bancoult) v Foreign Secretary (DC) |
|
The
following additional cases, although not cited, were referred to in the
skeleton arguments:
R v
Cambridge Health Authority, Ex p B [1995] 1 WLR 898; [1995] 2 All ER
129, CA
R v
Secretary of State for the Home Department, Ex p Fayed [1998] 1
WLR 763; [1998] 1 All ER 228, CA
APPLICATION for judicial
review
On an
application for judicial review made with leave granted by Scott Baker J on 3
March 1999, the applicant, Louis Olivier Bancoult, a British Dependent
Territory citizen formerly resident on Peros Banhos Island in the Chagos
Islands, now known as the British Indian Ocean Territory, sought an order of
certiorari to quash the decisions made by the second respondent, Her Majesty's
Commissioner for the British Indian Ocean Territory, on behalf of the first
respondent, the Foreign and Commonwealth Office, on 30 June 1998 and 6 August
1998, that the Immigration Ordinance 1971 of the British Indian Ocean
Territory, which purported to authorise the banishment of British Dependent
Territory citizens resident in the British Indian Ocean Territory, and the
policy adopted under it by which the applicant was excluded from returning to
and residing in the territory, were lawful. The grounds for the application were that: (1) the Crown had
no prerogative power to exclude the applicant as a British national from a
British territory; (2) as a British Dependent Territory citizen the applicant's
fundamental constitutional right to reside in the territory of which he was a
citizen could not be abrogated by the general words of section 11 of the
British Indian Ocean Territory Order 1965 (SI 1965/1920); (3) the immigration
legislation of a British dependent territory could not authorise the complete
exclusion of its inhabitants from the territory; (4) judicial review of the
1971 Ordinance was not barred by the Colonial Laws Validity Act 1865; and (5)
that the making of the 1971 Ordinance was not within the powers of the
Commissioner and alternatively the policy followed by him under the Ordinance
was unlawful and disproportionate.
The facts
are stated in the judgment of Laws LJ.
Sir
Sydney Kentridge QC, Laurie Fransman QC and Anthony Bradley for the
applicant. The English High Court
has jurisdiction to grant prerogative writs, including judicial review, against
the Crown in Britain or overseas where the subject matter of the application
arises in relation to Crown territory: see R v Cowle (1759) 2
Burr 834; Sabally and N'Jie v Attorney General [1965] 1 QB
273 and Ex p Mwenya [1960] 1 QB 241. [Reference was also made to Ex p Anderson (1861) 3 E
& E 487.] The application
arises directly out of the actions and policies of the United Kingdom
Government. The Ordinance and
policy were made by the Commissioner, as an official of the Foreign and
Commonwealth Office in Whitehall, on the instructions of the Secretary of
State. There is no distinction
between the Crown in right of the Government of The British Indian Ocean
Territory and the Crown in right of the Government of the United Kingdom. British Indian Ocean Territory affairs
are administered by the Foreign and Commonwealth Office in London. [Reference was made to R v Secretary
of State for Foreign and Commonwealth Affairs, Ex p Indian Association of
Alberta [1982] QB 892.] There are no reasons
[2001] |
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(Bancoult) v Foreign Secretary (DC) |
|
of practical convenience why
the applicant should seek redress in the British Indian Ocean Territory Supreme
Court.
The 1971
Immigration Ordinance made by the United Kingdom Government in London is
unlawful. The Commissioner's
policy under the Ordinance is unduly narrow and unreasonable. Save in time of war the Queen has no
power to abridge the liberty of her subjects without the authority of a valid
statute or an established common law prerogative. State necessity or act of state is no justification: see Entick
v Carrington (1765) 19 State Tr 1029.
[Reference was also made to Madzimbamuto v Lardner-Burke [1969] 1 AC
645; In re Bateman's Trust (1873) LR 15 Eq 355 and Nyali
Ltd v Attorney General [1956] 1 QB 1.] There is no prerogative power to banish or remove a British
subject from a British territory or prevent him from returning to it: see R
v Bhagwan [1972] AC 60. A
British subject has a fundamental right to reside in or return to that part of
the British dominions of which he is a citizen or "belonger". He cannot be deprived of rights or
subjected to obligations by any treaty unless it has been incorporated into law
by legislation: see Nissan v Attorney General [1970] AC
179 and Rayner (J H) (Mincing Lane) Ltd v Department of Trade and Industry [1989] Ch
72.
When the
Chagos Islands became part of a British colony by cession, it is doubtful that
it had any permanent inhabitants and so should not be classified as a conquered
or ceded colony. By the time the
British Indian Ocean Territory was created as a separate colony it had a
settled population of United Kingdom and Colonies citizens and so the British
Settlements Act 1887 (50 & 51 Vict c 54), which empowered the Crown to
legislate for settled colonies, applied, and by section 2 such legislation had to be necessary
for the peace, order and good government of Her Majesty's subjects and those in
a British settlement.
In so far as
the 1971 Ordinance banishes and excludes citizens of the British Indian Ocean
Territory from the territory it is void and of no effect. It is repugnant to article 29 of Magna
Carta 1297 (25 Edw 1 c 1), a statute of the United Kingdom which extends to the
British Indian Ocean Territory because it follows the flag, and therefore void
by virtue of section 2 of the Colonial Laws Validity Act 1865: see Calder v
Attorney General of British Columbia (1973) 34 DLR (3d) 145; R v Secretary
of State for Foreign and Commonwealth Affairs, Ex p Indian Association of
Alberta[1982] QB 892 and Attorney General's Reference (No 1 of 1990) [1992] QB
630. [Reference was also made to Nissan
v Attorney General [1970] AC 179.] The
British Indian Ocean Territory is a colony, not a protectorate, and as such its
citizens are the Queen's subjects who enjoy the legal heritage of Magna
Carta. [Reference was made to Staples
v The Queen (unreported) 27 January 1899.] By article 29 of Magna Carta no freeman can be outlawed or
exiled except by the law of the land.
"Law of the land" means an Act of Parliament or established
common law rule and cannot include an Order in Council or act of a Governor or
Commissioner.
The
legislative power conferred on the Commissioner is a delegated power and cannot
be used to remove the fundamental constitutional right of a British subject to
live in or return to the part of the Queen's dominion of which he is a citizen;
that can only be done by the executive where specifically authorised by an Act
of Parliament: see R v Lord Chancellor, Ex p Witham [1998] QB
575; Van Duyn v Home Office (Case 41/74) [1975] Ch 358 and R v
Secretary of State for the Home Department, Ex p Muboyayi [1992] QB
244. [Reference was also made to Campbell
v Hall (1774)
[2001] |
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R
(Bancoult) v Foreign Secretary (DC) |
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1 Cowp 204; Staples v The
Queen 27 January 1899; R v Earl of Crewe, Ex p Sekgome [1910] 2 KB
576; R v Lord Chancellor Ex p Lightfoot [1999] 2 WLR 1126; R v
Secretary of State for the Home Department, Ex p Pierson [1998] AC
539 and R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC
115.] The decisions of the Privy
Council that (i) the power to make laws for the peace, order and good
government of a territory conferred plenary powers of legislation; (ii) that
the legislature on which those powers were conferred was not a mere agent or
delegate of the Imperial Parliament; and (iii) that there was nothing to
preclude that legislature from passing laws contrary to fundamental principles
of justice, apply where legislative powers are conferred by the Imperial
Parliament on a representative colonial legislature, and not where a law-making
power in general terms is conferred by the Executive on one of its own officials:
see R v Burah (1878) 3 App Cas 889; Hodge v The Queen (1883) 9
App Cas 117; Cobb & Co Ltd v Kropp [1967] 1 AC 141; Liyanage
v The Queen [1967] 1 AC 259 and Winfat Enterprise (HK) Co Ltd v Attorney
General of Hong Kong [1985] AC 733. In
any event, the words "for the peace, order and good government" limit
the exercise of an otherwise plenary power. [Reference was also made to R v Secretary of State for
Social Security, Ex p Joint Council for the Welfare of Immigrants [1997] 1
WLR 275 and Trustees Executors and Agency Co Ltd v The Federal Comr of
Taxation [1933] 49 CLR 220.]
Removal of the whole population of a territory cannot be for the
"good government" of the territory and, therefore, the 1971 Ordinance
is ultra vires. The rule that an
Act of Parliament cannot be challenged on the grounds of improper motive does
not apply to subordinate legislation.
[Reference was made to Pickin v British Railways Board [1974] AC
765; Attorney General for Canada v Hallet & Carey Ltd [1952] AC
427 and In re Toohey, Ex p Northern Land Council (1981) 38
ALR 439.]
The 1971
Ordinance and policy breached the applicant's right to protection from inhuman
and degrading treatment, right to respect for his private and family life and
home and right to liberty and security of his person, under articles 3, 8 and 5
of the European Convention for the Protection of Human Rights and Fundamental
Freedoms (1953).
David
Pannick QC, Philip Sales and Cecilia Ivimy for the
respondents. The application for
judicial review arises not from the actions of the Crown in right of the United
Kingdom Government, but actions and legislation taken and enacted by the
British Indian Ocean Territory Commissioner acting on behalf of the Crown in
right of the Government of The British Indian Ocean Territory, which possesses
a separate and distinct sovereignty of its own. The English High Court in London has nothing to do with it.
[Reference was made to In re Holmes (1861) 2 J & H 527.] The Crown is divisible and is to be
treated as a separate sovereign entity in relation to each territory where its
sovereign writ runs: see R v Secretary of State for Foreign and Commonwealth
Affairs, Ex p Indian Association of Alberta[1982] QB 892; R v
Secretary of State for the Home Department, Ex p Bhurosah [1968] 1 QB
266 and Tito v Waddell (No 2) [1977] Ch 106. The fact that the British Indian Ocean
Territory legislature is not representative in character does not render it or
the British Indian Ocean Territory Government indistinct from the Crown in right
of the United Kingdom. In enacting
the 1971 Ordinance and formulating the policy under it the
[2001] |
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(Bancoult) v Foreign Secretary (DC) |
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Commissioner was not acting
as agent or delegate of the Crown in right of the United Kingdom, but on behalf
of the British Indian Ocean Territory Government, irrespective of whether the
Ordinance and policy fell within a policy area controlled by the United
Kingdom: see R v Secretary of State for the Home Department, Ex p Bhurosah [1968] 1 QB
266.
The British
Indian Ocean Territory has a municipal court of competent jurisdiction which is
the more appropriate forum for the application and therefore the Queen's Bench
Division lacks or should decline jurisdiction to review such local acts of an
administrative or legislative nature: see In re Mansergh (1861) 1 B
& S 400 and R v Secretary of State for War, Ex p Price [1949] 1 KB
1. By section 1 of the Habeas
Corpus Act 1862 (25 & 26 Vict c 20), writs of habeas corpus cannot issue
from the English court to colonies or dominions where there is a lawfully
established court having authority to grant the writ. It does not make sense that lesser forms of prerogative writ
such as certiorari can issue but habeas corpus cannot. [Reference was made to Ex p Anderson (1861) 3 E
& E 487 and Ex p Mwenya [1960] 1 QB 241.] If the English High Court accepts
jurisdiction to determine the application, there is a possibility of
conflicting judicial opinion because its decision may differ from that of the
British Indian Ocean Territory Supreme Court if other
proceedings concerning the rights of the citizens are brought before that
court. Appeal from the British
Indian Ocean Territory Supreme Court is to the Judicial Committee of the Privy
Council, but appeal from the English Court is ultimately to the House of Lords.
The British
Indian Ocean Territory is a ceded colony and therefore the power to legislate
for it arose from the Queen's prerogative (see Campbell v Hall 1 Cowp 204
and Abeyesekera v Jayatilake [1932] AC 260) and not from the
British Settlements Act 1887.
[Reference was also made to Sammut v Strickland [1938] AC
678.] To apply a special rule of
construction which protects fundamental or constitutional rights to the 1965
Order and the 1971 Ordinance would undercut sections 2 and 3 of the Colonial
Laws Validity Act 1865, which provide by sections 2 and 3 that colonial laws
are void to the extent that they are repugnant to an Act of the United Kingdom
Parliament applicable to that colony, but not otherwise, and the authority of Liyanage
v The Queen [1967] 1 AC 259. The
Commissioner was empowered to enact the 1971 Ordinance even if it conflicts
with fundamental rights under English or international law. [Reference was made to Phillips v
Eyre (1870) LR 6 QB 1.]
Magna Carta does not apply to British Indian Ocean Territory legislation
because it is not "an act of Parliament" within the meaning of
section 2 of the 1865 Act and does not extend outside England: see Staples v
The Queen (unreported) 27 January 1899. The British Indian Ocean Territory is a ceded, not settled,
colony and so did not automatically adopt English common law and statute
law. [Reference was made to Calder
v Attorney General of British Columbia 34 DLR (3d) 145 and R v
Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian
Association of Alberta [1982] QB 892.] In any case, there is no infringement of chapter 29 of Magna
Carta as removal of the citizens was authorised by "the law of the
land", i e, the valid and operative 1971 Ordinance, and the applicant is
not "exiled" because he lives in the original state of Mauritius
where he has always had full citizenship rights.
The words
"make laws for the peace, order and good government of the Territory"
in section 11 of the 1965 Order give the widest law-making
[2001] |
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powers appropriate to a
sovereign, thereby giving sufficient vires for the 1971 Ordinance. [Reference was made to Ibralebbe v
The Queen [1964] AC 900 and Riel v The Queen(1885) 10
App Cas 675.] A colonial
legislature having power to make laws for the peace, order and good government
of the territory where it possesses jurisdiction is not the agent or delegate
of the body which created it: see Hodge v The Queen 9 App Cas
117 and R v Burah 3 App Cas 889.
Before the
creation of the British Indian Ocean Territory the population of the Chagos
Islands had no proprietary interest in the land there, were employees or
relatives of employees of the plantation company which owned the freehold in
the Island and resided there subject to the owners' permission. They had no absolute right under
Mauritian law to reside there. In
respect of land rights the Crown stepped into the shoes of the previous owners
when it purchased the islands. The
applicant is in the same position as a person who has to move upon consensual
or compulsory acquisition of land by the state for public purposes. The applicant and the other citizens
are not and have never been stateless.
He was a citizen of the United Kingdom and Colonies before and after the
creation of The British Indian Ocean Territory and became a British Dependent
Territories citizen and a Mauritian citizen when Mauritius became
independent. He does not and never
had a fundamental right to reside in the British Indian Ocean Territory. A dependent territory is entitled to
make laws regulating entry into and residence in the territory of persons of
any status (see Thornton v The Police [1962] AC 339) and the applicant's
right as a British Dependent Territory citizen to enter the British Indian
Ocean Territory depends on such laws.
The 1971
Ordinance does not infringe any rights of the applicant under English,
Mauritian, British Indian Ocean Territory or international law. The applicant has no rights under the
European Convention on Human Rights because the United Kingdom has not declared
it to apply to the British Indian Ocean Territory: see Bui van Thanh v
United Kingdom (unre- ported) 12 March 1990. Neither does he have rights under the Universal Declaration
of Human Rights 1948 and the International Covenant on Civil and Political
Rights (1977) (Cmnd 6702) as it was not ratified by the United Kingdom in
respect of the British Indian Ocean Territory.
Large scale
investment in industry and facilities required for the exercise of any
permanent right of residence in the islands is not economically viable. People able to establish sufficient
connection with the Chagos Islands have already been paid substantial
compensation for their removal by the United Kingdom Government.
The English
court should not consider the complaint against the Commissioner's policy under
the 1971 Ordinance because the applicant has failed to exhaust statutory
remedies, in that he has not applied to the Commissioner for permission to
visit the islands. Refusal of the
application would give rise to a right of appeal. The policy is not unreasonable, but is necessary for
national security and safety reasons.
[Reference was made to R v Ministry of Defence, Ex p Smith [1996] QB
517.] The English court cannot
require the United Kingdom to breach its treaty obligations to the United
States of America by declaring the Commissioner's policy prohibiting permanent
residence unlawful. [Reference was
made to Blackburn v Attorney General [1971] 1 WLR 1037; Council of
Civil Service Unions v Minister for the Civil Service [1985] AC
374 and Rayner (J H) (Mincing
[2001] |
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Laws LJ
|
Lane) Ltd v Department of
Trade and Industry [1989] Ch 72.] A decision of the executive requiring a balance of
national security interests against other interests and allocation of central
government funds is a matter for the executive, not the courts: see Council
of Civil Service Unions v Minister for the Civil Service [1985] AC
374 and R v Secretary of State for the Environment, Ex p Hammersmith and
Fulham London Borough Council [1991] 1 AC 521.
Kentridge
QC made submissions in reply.
Cur adv
vult
3 November.
The following judgments were handed down.
LAWS LJ
Introductory
1 The Chagos
Archipelago is in the middle of the Indian Ocean. Its islands and Mauritius were ceded by France to Great
Britain in 1814. From that date
until 1965 the archipelago was governed as part of the British colony of
Mauritius, though Mauritius itself is some 1,000 to 1,200 miles distant from
the archipelago. On at least some
of the islands there lived in the 1960s a people called the Ilois. They were an indigenous people: they
were born there, as were one or both of their parents, in many cases one or
more of their grandparents, in some cases (it is said) one or more of their
great-grandparents. Some may
perhaps have traced an earlier indigenous ancestry. In the 1960s by agreement between the governments of the
United Kingdom and the United States of America it was resolved that there be
established a major American military base upon the chief island of the
archipelago, Diego Garcia. There
is no doubt but that the defence facility which the base provides is of the
highest importance. In a letter of
21 June 2000 from the US Department of State it is described as "an all
but indispensable platform" for the fulfilment of defence and security
responsibilities in the Arabian Gulf, the Middle East, South Asia and East
Africa. In order to facilitate the
establishment of the base, the archipelago was first divided from Mauritius and
constituted (together with certain other islands) as a separate colony to be
known as the "British Indian Ocean Territory"
("BIOT"). That was done by
the British Indian Ocean Territory Order (SI 1965/1920) ("the BIOT
Order"). Then in 1971 the
whole of the Ilois population of BIOT (and other civilians living there) were
compulsorily removed to Mauritius.
Their removal was effected under a measure called the Immigration
Ordinance ("the Ordinance").
The Ordinance was made by the Commissioner for BIOT ("the
Commissioner"), who is the second respondent in these proceedings for
judicial review. He was an
official created by section 4 of the BIOT Order. He made, or purportedly made, the Ordinance under powers
conferred by section 11 of the BIOT Order. As a matter of fact he made it, as is effectively accepted
by Mr Pannick for the respondents, upon the orders of the Queen's ministers in
London. The first respondent is
the Secretary of State for the Foreign and Commonwealth Office. The principal issue in the case is
whether there was any lawful power to remove the Ilois from BIOT, in the manner
in which that was done. There is
also a question whether this court has any jurisdiction to entertain the
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case. The applicant is an Ilois from Peros
Banhos in the archipelago. Leave
to seek judicial review was granted by Scott Baker J on 3 March 1999 after a
hearing on notice. No point is now
or was then taken by either respondent as to time or delay.
2 Though it
will be necessary to examine other legislation, it is convenient by way of
introduction to set out the relevant terms of the BIOT Order and the
Ordinance. I should first say that
the BIOT Order was made on 8 November 1965 by "Her Majesty, by virtue and
in exercise of the powers in that behalf by the Colonial Boundaries Act 1895, or
otherwise in Her Majesty vested". The 1895 Act merely regulates the
alteration of a colonial boundary, when that is sought to be done: it affords
no source of the vires of the BIOT Order for presently relevant purposes. It was common ground at the Bar, and it
seems to me plainly to be right, that the BIOT Order is an Order in Council
made under the powers of the royal prerogative.
3 Sections 3
to 5 of the BIOT Order provide:
"3. As
from the date of this OrderÑ(a) the Chagos Archipelago, being islands which
immediately before the date of this Order were included in the Dependencies of
Mauritius, and (b) the Farquhar Islands, the Aldabra Group and the Island of
Desroches, being islands which immediately before the date of this Order were
part of the Colony of Seychelles, shall together form a separate colony which
shall be known as the British Indian Ocean Territory.
"4.
There shall be a Commissioner for the Territory who shall be appointed by Her
Majesty by Commission under Her Majesty's Sign Manual and Signet and shall hold
office during Her Majesty's pleasure.
"5. The
Commissioner shall have such powers and duties as are conferred or imposed upon
him by or under this Order or any other law and such other functions as Her
Majesty may from time to time be pleased to assign to him, and, subject to the
provisions of this Order and any other law by which any such powers or duties
are conferred or imposed, shall do and execute all things that belong to his
office according to such instructions, if any, as Her Majesty may from time to
time see fit to give him."
Section 8 empowers the
Commissioner to authorise a delegate to discharge functions of his as may be
specified. Section 8(3) authorises
the Queen acting through a Secretary of State to vary or revoke any such authorisation. Section 10 provides:
"The
Commissioner, in the name and on behalf of Her Majesty, may constitute such
offices for the Territory as may lawfully be constituted by Her Majesty and,
subject to the provisions of any law for the time being in force in the
Territory and to such instructions as may from time to time be given to him by
Her Majesty through a Secretary of State, the Commissioner may likewiseÑ(a)
make appointments, to be held during Her Majesty's pleasure, to any office so
constituted; and (b) dismiss any person so appointed or take such other
disciplinary action in relation to him as the Commissioner may think fit."
Section 11 of the BIOT Order
is of critical importance to the central arguments in the case. So far as relevant it provides:
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"(1)
The Commissioner may make laws for the peace, order and good government of the
Territory, and such laws shall be published in such manner as the Commissioner
may direct.
"(2)
Any laws made by the Commissioner may be disallowed by Her Majesty through a
Secretary of State.
"(3)
Whenever any law has been disallowed by Her Majesty, the Commissioner shall
cause notice of such disallowance to be published in such manner as he may
direct.
"(4)
Every law disallowed shall cease to have effect as soon as notice of
disallowance is published as aforesaid, and thereupon any enactment amended or
repealed by, or in pursuance of, the law disallowed shall have effect as if the
law had not been made."
Section 15(1) provides:
"Except
to the extent that they may be repealed, amended or modified by laws made under
section 11 of this Order or by other lawful authority, the enactments and rules
of law that are in force immediately before the date of this Order in any of
the islands comprised in the Territory shall, on and after that date, continue
in force therein but shall be applied with such adaptations, modifications and
exceptions as are necessary to bring them into conformity with the provisions
of this Order."
Sections 16 and 17 deal with
the establishment of courts and judicial proceedings. This is important for the purposes of the point taken by the
Crown to the effect that this court lacks all jurisdiction to entertain these
proceedings, and it is convenient here to summarise what has been done under
these provisions. There has been
established a Supreme Court for BIOT, designated as a superior court of record.
It possesses, by section 6 of the Courts Ordinance 1983 (BIOT Ordinance No 3 of
1983):
"unlimited
jurisdiction to hear and determine any civil or criminal proceedings under any
law and with all the powers, privileges and authority which is vested in or
capable of being exercised by the High Court of Justice in England."
Thus it plainly has power, at
least in general terms, to entertain judicial review proceedings against the
Commissioner. It may sit in Diego
Garcia or in England. An appeal
from the Supreme Court lies to the BIOT Court of Appeal, from which a final
appeal lies (no doubt only with special leave) to the Privy Council.
4 Lastly,
section 19 of the BIOT Order provides:
"There
is reserved to Her Majesty full power to make laws from time to time for the
peace, order and good government of the British Indian Ocean Territory
(including, without prejudice to the generality of the foregoing, laws amending
or revoking this Order)."
5 The
relevant provisions of the Ordinance are as follows. Section 4, which is the critical measure for the purposes of
this case, was in these terms:
"(1) No
person shall enter the Territory or, being in the Territory, shall be present
or remain in the Territory, unless he is in possession of a permit or his name
is endorsed on a permit in accordance with the provisions of section 5 and
section 7 of this Ordinance respectively.
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"(2)
The provisions of this section shall not apply to members of Her Majesty's
Forces, or to persons in the public service of Seychelles or the Territory or
in the service of any of Her Majesty's Departments of State, while on duty, or
to such other persons as may be prescribed."
Section 9 provides: "It
shall be unlawful for any person to enter the Territory or to be present or to
remain in the Territory in contravention of the provisions of section 4 of this
Ordinance ..." Section 10 provides in part:
"(1)
The Commissioner may make an order directing that any person whose presence
within the Territory is, under the provisions of this Ordinance, unlawful,
shall be removed from and remain out of the Territory, either indefinitely or
for a period to be specified in the order.
"(2) An
order made under this section shall be carried into effect in such manner as
the Commissioner may direct.
"(3) A
person against whom an order under this section is made may, if the
Commissioner so directs, while awaiting removal and while being conveyed to the
place of departure, be kept in custody, and while so kept shall be deemed to be
in lawful custody."
The background facts
6 This is not
a case where there exists any dispute of primary fact which it is the court's
duty to resolve. That is not to
say that all the relevant facts are agreed. In particular, there is no agreement as to the numbers of
Ilois living in BIOT in 1965 or 1971.
Mr Pannick was, however, content to accept, if I may say so, obviously
rightly, that the numbers were significant, at any rate in the hundreds. Sir Sydney Kentridge for the applicant
asserts that there is evidence showing that the numbers ran well into four figures. But the difference is not material to
anything we have to decide; Sir Sydney would be entitled to succeed on the
lower estimate, if all else is in his favour. We have one estimate of the numbers of Ilois, contained in a
report written by a British official in March 1971, very close in time to the
making of the Ordinance. It
includes this passage:
"There
are now about 829 people in the Chagos Archipelago, of whom about 359 live on
Diego Garcia itself and the remainder on the two other inhabited atolls of
Peros Banhos and Salomon. Of the
total, 386 are dual citizens of the United Kingdom and Colonies and of
Mauritius (they are known as Ilois).
As far as we know, neither the Ilois themselves nor the Mauritius
authorities are aware of their dual nationality. There are also 35 citizens of Mauritius, and 408 citizens of
the UK and Colonies from Seychelles."
The applicant was born in
1964 on Peros Banhos. He is an
Ilois, as were his parents before him.
In 1967 the family travelled to Mauritius to seek medical treatment for
the applicant's infant sister, who had been badly injured: a cartwheel had run
over her leg. The applicant has
never since 1967 returned to Peros Banhos. Though it is suggested that the applicant and his family
(and other Ilois) were prevented from returning to the Chagos Archipelago by
the British authorities before 1971, that is not accepted, and there is no
challenge to any order or decision before the Ordinance. The last inhabitants were removed from
Diego Garcia in 1971, from Salomon Island in 1972 and from Peros Banhos in
1973.
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7 Before
these upheavals the principal, effectively the only, economic activity on the
islands had been the production of copra from coconut plantations. As a matter of private law, title to
the islands had been vested in the plantation company, Chagos Agalega Ltd, but
the Crown purchased the company's rights in 1967. At first, thereafter, they were managed by the company under
lease. Then, as I understand it,
the company was reconstituted and renamed Moulinie & Co Ltd. It continued to manage the islands
under contract with the Crown.
Both before and after the company's acquisition by the Crown the
inhabitants, including the Ilois, were all contract workers on the plantations,
or family members of such workers.
None of them enjoyed property rights in any of the land. This is of some
importance, since from time to time before the making of the Ordinance, the
documents show that the British authorities (I mean the term neutrally as
between Her Majesty's Government in the United Kingdom and the, or any,
distinct government of BIOT) have had it in mind to rely on the inhabitants'
lack of such rights, and their status as contract workers wholly dependent on
the plantations, as being in some way inconsistent with their possession of any
public law rights to remain in the territory as citizens of it. This position is reflected in Mr Pannick's
extremely helpful skeleton argument, paragraph 17 of which (referring to Mr
Peter Westmacott's affidavit) states that:
"in
1968 all the Ilois living on the islands were employed as labourers by the
plantation owners (or were members of the families of such labourers) and none
pursued a livelihood independent of the plantations. The Ilois accepted that they could be moved by their
employers from one island to another and even from the islands as a whole if,
for example, they were guilty of misconduct. None of them owned any land or had the right to permanent
use of the land."
8 I should
next describe those features of the history which lay bare the concerns and
attitudes of British officials and ministers at the material time, that is from
1964 until 1971. I do so primarily
because it is part of Sir Sydney's case for the applicant that the making of
the Ordinance and the actions taken under it were things done for an improper
motive or purpose, that is, a purpose not contemplated by the enabling
legislation contained in the BIOT Order; and in this context he relies on much
of the content of notes, reports and other documents coming into existence
between the dates in question, which speak loud of the points of view
entertained within government circles upon the future of the BIOT islanders in
general and the Ilois in particular.
In any event, it seems to me that fairness to both sides requires the
court to demonstrate that it has at least a reasonable understanding of the
issues which exercised the decision makers of the time, and how they responded
to them; although, of course, nothing is more elementary than that we are not
policy makers ourselves and must decide the case by reference only to the
applicable law.
9 Discussions
between the governments of the United Kingdom and the United States concerning
the establishment of defence facilities in the Indian Ocean were held in
February 1964. The agreement ultimately arrived at is contained in an Exchange
of Notes between the Government of the United Kingdom of Great Britain and
Northern Ireland and the Government of the United States of America concerning
the Availability for Defence Purposes of
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the British Indian Ocean
Territory (1967) (Cmnd 3231), dated 30 December 1966, which is before us. It is clear that by 11 May 1964, the
date of a secret memorandum headed "Defence Interests in the Indian
Ocean" by C M Rose, prospective initiatives relating to the arrangements
which would need to be made were well advanced. The document states, at paragraph 3:
"In his
telegram No 977 Sir P Dean draws attention to the difficulties we are likely to
have to face in the United Nations if these proposals became known at the
present time. In connection with
our proposal for placing the various territories concerned under direct UK
administration, he draws attention to paragraph 6 of Resolution No 1514 (of 14
December 1960) which reads:Ñ'Any attempt aimed at the partial or total
disruption of the national unity and the territorial integrity of a country is
incompatible with the purposes and principles of the Charter of the United
Nations.' He also suggests that we
might face demands for separate transmission of information about these territories
under article 73 of the Charter which requires members 'to transmit regularly
to the Secretary General ... statistical and other information of a technical
nature relating to economic, social and educational conditions in the
territories for which they are responsible'. "
10 A revised
memorandum of May 1964 jointly agreed between the UK and American governments,
headed "Indian Ocean Territories" refers in terms to "the
repatriation or resettlement of persons currently living on the islands
selected". Paragraph 9 of
that document states:
"The
line taken with regard to those persons now living and working in the
dependencies would relate to their exact status. If, in fact, they are only contract laborers rather than
permanent residents, they would be evacuated with appropriate compensation and
re-employment. If, on the other hand some of the persons now living and working
on the islands could be considered permanent residents, i e, their families
have lived there for a number of generations, then political effects of their
removal might be reduced if some element of choice could be introduced in their
resettlement and compensation."
No element of choice was in
the event provided.
11 In another
document dated 20 October 1964 from the Colonial Office, headed "Defence
Interests in the Indian Ocean" it is made clear that:
"It
would be unacceptable to both the British and the American defence authorities
if facilities of the kind proposed were in any way to be subject to the
political control of Ministers of a newly emergent independent state (Mauritius
is expected to become independent some time after 1966) ... it is hoped that
the Mauritius Government may agree to the islands being detached and directly
administered by Britain."
In January 1965 the Americans
were making plain their view that "detachment proceedings should include
the entire Chagos Archipelago, primarily in the interest of security, but also
to have other sites in this archipelago available for future
contingencies". Then in an
outward saving telegram from the Foreign Office to the United Kingdom
delegation to Nato, Paris, dated 16 July 1965, the Foreign Office in London was
saying:
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"The
islands will be administered direct by Her Majesty's Government with the object
of making them available in the long term for the construction of such defence
facilities as may be required. The
islands in question are the Chagos Archipelago."
Then, on 28 July 1965, a
Foreign Office memorandum from Mr T C D Jerrom stated:
"Our
understanding is that the great majority of [those people at present on the
islands] are there as contract labourers on the copra plantations on a number
of the islands; a small number of people were born there and, in some cases,
their parents were born there too.
The intention is, however, that none of them should be regarded as being
permanent inhabitants of the islands.
Islands will be evacuated as and when defence interests require
this. Those who remain, whether as
workers on those copra plantations which continue to function or as labourers
on the construction of defence installations, will be regarded as being there
on a temporary basis and will continue to look either to Mauritius or to
Seychelles as their home territory ...
In the absence of permanent inhabitants the obligations of Chapter XI of
the United Nations Charter will not apply to the territory and we shall not
transmit information on it to the Secretary-General (c f the British Antarctic
Territory)."
12 On 5
November 1965 the Prime Minister was briefed by the Colonial Secretary. The Prime Minister was told that the
proposal was to put the islands "under direct British administration"
with arrangements to be made for compensation, and to seek the making of an
appropriate Order in Council (which would create the new colony) on 8 November
1965; and as I have said, that was the date of the BIOT Order. There follow in the papers a series of
notes and memoranda, which we examined in the course of argument, showing the
concern of the British authorities to present to the outside world a scenario
in which there were no permanent inhabitants on the archipelago. I found the flavour of these documents
a little odd. It is as if some of
the officials felt that if they willed it hard enough, they might bring about
the desired result, and there would be no such permanent
population. There was, plainly, an
awareness of a real difficulty in the way of the smooth transformation of the
territory into its intended role as a defence establishment with no settled
civilians. A note of 12 November
1965 read:
"I
agree that there is an awkward problem here which the Secretary of State should
know about. The present idea is
that the inhabitants (1,500 altogether) would not be removed from any of the
islands until they are required for defence purposes. This is going to make it very difficult to avoid having to
report on the new territory under article 73(e) of the Charter."
Then on 15 November 1965, in
the words of another official:
"the
territory is a non-self-governing territory and there is a civilian population
even though it is small. In
practice, however, I would advise a policy of 'quiet disregard'Ñin other words,
let's forget about this one until the United Nations challenge us on it."
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13 It seems to
have been in early 1966 that first thoughts were given as to the form which an
Immigration Ordinance relating to BIOT might take. A manuscript note dated to February 1966 read in part:
"In
this particular case it occurs to me that we do not really want anything as
elaborate as the Seychelles Immigration Ordinance but something pretty
rudimentary which merely allows for entry under permit and grants as few rights
with as little formality as possible."
At about the same time, on 25
February 1966, a confidential missive from the Secretary of State for the
Colonies to the Commissioner of BIOT in the Seychelles shows a recognition at a
very high level in government of the tensions between British policy interests
and the interests of the islanders:
"3. Our
primary objective in dealing with the people who are at present in the
Territory must be to deal with them in the way which will best meet our future
administrative and military needs and will at the same time ensure that they
are given fair and just treatment ...
4. With these objectives in view we propose to avoid any reference to
'permanent inhabitants', instead, to refer to the people in the islands as
Mauritians and Seychellois ... We
are ... taking steps to acquire ownership of the land on the islands and
consider that it would be desirable ... for the inhabitants to be given some
form of temporary residence permit.
We could then more effectively take the line in discussion that these
people are Mauritians and Seychellois; that they are temporarily resident in
BIOT for the purpose of making a living on the basis of contract or day to day
employment with the companies engaged in exploiting the islands; and that when
the new use of the islands makes it impossible for these operations to continue
on the old scale the people concerned will be resettled in Mauritius or
Seychelles. 5. We understand from
a recent discussion with Mr Robert Newton"Ñwho had visited the islandsÑ"that,
in his opinion, the people on the islands cannot be regarded as permanent
inhabitants but are in fact in the category of contract labour employed by the
estate owners or commercial concerns ...
6. Against this background we assume that there would be unlikely to be
any undue difficulty with the inhabitants of BIOT themselves in moving over to
a position in which they all held temporary residence permits on the basis of
which their presence in the Territory would be allowed ... 7. Whatever arrangements are made to
establish the status of the people in the BIOT as belongers of either Mauritius
or Seychelles, there will in any case be a need for the enactment of
appropriate immigration legislation for the Territory itself."
The Commissioner's views were
sought as to the proposal relating to temporary residence permits and other
matters. A minute of June 1966
confronts the nub of the problem with considerable candour:
"They"Ñthe
Colonial OfficeÑ"wish to avoid using the phrase 'permanent inhabitants' in
relation to any of the islands in the territory because to recognise that there
are permanent inhabitants will imply that there is a population whose
democratic rights will have to be safeguarded and which will therefore be
deemed by the UN Committee of Twentyfour to come within its purview ... It is
... of particular importance that the
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decision taken by the
Colonial Office should be that there are no permanent inhabitants in the
BIOT. First and foremost it is
necessary to establish beyond doubt what inhabitants there are at present in
the islands, how long they have been resident there and whether any were born
on the islands. Subsequently it
may be necessary to issue them with documents making it clear that they are
'belongers' of Mauritius or the Seychelles and only temporarily resident in the
BIOT. This device, though rather
transparent, would at least give us a defensible position to take up in the
Committee of Twentyfour ... It would be highly embarrassing to us if, after
giving the Americans to understand that the islands in BIOT would be available
to them for defence purposes, we then had to tell them that we proposed to
admit that they fell within the purview of the UN Committee of
Twentyfour."
There is a manuscript note by
another official which comments on this minute. It refers to "a certain old fashioned reluctance to
tell a whopping fib, or even a little fib, depending on the number of permanent
inhabitants". A note dated 24
August 1966 to an official, Mr D A Greenhill, quotes a minute from the
Permanent Under Secretary (I assume at the Colonial Office). The Permanent Under Secretary
unburdened himself thus:
"We
must surely be very tough about this.
The object of the exercise was to get some rocks which will remain ours; there will
be no indigenous population except seagulls who have not yet got a committee
(the Status of Women Committee does not cover the rights of
birds)."
This attracted a comment from
Mr D A Greenhill, who spoke the same language:
"Unfortunately
along with the birds go some few Tarzans or Men Fridays whose origins are
obscure, and who are being hopefully wished on to Mauritius etc. When this has been done I agree we must
be very tough and a submission is being done accordingly."
14 A document
headed "Presentation of British Indian Ocean Territory in the United
Nations" which bears no date, but whose context shows it was written after
12 August 1966, contains a section headed "Objectives". This is of particular importance in
relation to Sir Sydney's contention that the Ordinance was made for an improper
purpose. Here are the material
passages:
"10.
The primary objective in acquiring these islands from Mauritius and the
Seychelles to form the new 'British Indian Ocean Territory' was to ensure that
Her Majesty's Government had full title to, and control over, these islands so
that they could be used for the construction of defence facilities without
hindrance or political agitation and so that when a particular island would be
needed for the construction of British or United States defence facilities Britain
or the United States should be able to clear it of its current population. The Americans in particular attached
great importance to this freedom of manoeuvre, divorced from the normal
considerations applying to a populated dependent territory. These
islands were therefore chosen not only for their strategic location but also
because they had, for all practical purposes, no permanent population.
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"11. It
was implied in this objective, and recognised at the time, that we could not
accept the principles governing our otherwise universal behaviour in our
dependent territories, e g we could not accept that the interests of the
inhabitants were paramount and that we should develop self-government there. We therefore consider that the best way
in which we can satisfy these objectives, when our action comes under scrutiny
in the United Nations, would be to assert from the start, if the need arose,
that this territory did not fall within the scope of Chapter XI of the United
Nations Charter." (My
emphasis.)
On 2 March 1967 the
Commissioner for BIOT submitted a draft Ordinance to the Secretary of State
under cover of a minute which set out the results of his own researches into
the makeup of the Chagos population.
His figures (for which, however, he did not claim "a high degree of
accuracy") showed 563 Ilois spread over Diego Garcia, Salomon and Peros
Banhos, of whom no less than 327 were children. The minute proceeds to address the question whether these
Ilois could be regarded as "belonging" to Mauritius:
"I
think it is arguable that they can, for although they have been in Chagos for a
long time, they have lived there only on sufferance of the owners of the
islands and could at any time have been sent back to Mauritius if no longer
wanted in connection with the estate.
They have never in the past had any right to reside
permanently in Chagos."
The Officer Administering the
Government of Mauritius saw the potential flaw in this approach. In a missive to the Secretary of State
(by now for Commonwealth Affairs, rather than the Colonies) of 29 September
1967, he stated:
"I am
not sure myself about the validity of the argument that the Ilois have lived in
Chagos 'only on sufferance of the owners', since the point at issue is
'belonging' in the national sense rather than rights of residence on private
property."
15 By a
detailed minute of 25 July 1968 the Prime Minister was briefed by the Foreign
Secretary, Mr Michael Stewart, as to the overall position relating to the
defence facility plans for the Chagos.
An annex was attached headed "Position of Inhabitants", which
in effect repeated the argument that the Ilois lived in the Archipelago only on
sufferance of the private law owners: "In this sense it can be contended
that no one has any right to reside permanently on the islands ..." But there was growing anxiety among
senior officials who were, so to speak, living close to the problem. On 4
September 1968, a Mr J H Lambert stated in a note to Mr Jerrom:
"We
advised the Foreign Secretary that the latter argument might be difficult to
sustain in view of the recent discovery that the numbers of second generation
'Ilois' were much greater than originally anticipated ... It may be helpful to
set out the situation as I understand it: (a) all the inhabitants of BIOT
(totalling under 1,500) are citizens of the UK and Colonies and they are all
entitled to a UK passport with the colonial endorsement; (b)"Ñdeals with
the Seychellois living in BIOT, who were "unlikely to exceed
1,000"Ñ"(c) some 500 others (including the 434 second generation
'Ilois') have dual nationality. If
they applied for a UK passport, presumably the Colonial endorsement could only
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reveal that they belonged
to BIOT since there was no other British colony to which they could belong." (My emphasis.)
16 There is an
interesting reflection upon the position in international law in a minute of 23
October 1968, written by a Foreign Office legal adviser, Mr A I Aust:
"6.
There is nothing wrong in law or in principle to enacting an immigration law
which enables the Commissioner to deport inhabitants of BIOT. Even in international law there is no
established rule that a citizen has a right to enter or remain in his country
of origin/birth/nationality etc. A
provision to this effect is contained in Protocol No 4 to the European
Convention on Human Rights but that has not been ratified by us"Ñas I
understand it, it still has notÑ"and thus we do not regard the UK as bound
by such a rule. In this respect we are able to make up the rules as we go
along and treat the inhabitants of BIOT as not 'belonging' to it in any sense." (My emphasis.)
17 On 21 April
1969 the Foreign Secretary submitted a further detailed minute to the Prime
Minister, with copies to the Chancellor of the Exchequer, the Secretary of
State for Defence, the Minister of Power and the Cabinet Secretary. Its occasion was the decision of the
new US government to proceed with the military project on the Chagos subject to
Congressional approval. Its
importance is that it demonstrates the direct involvement of the United Kingdom
government at the very highest level in the process of deciding how the Ilois
should be dealt with in light of that project. The minute includes these
passages:
"4. The
problem of the future of these people exists independently of American plans,
but the decision to proceed with a communications facility on Diego Garcia,
which will necessitate evacuating that atoll, has brought it to a head ...
"5.
There is no ideal solution ... I agree with the conclusion reached in the paper
that on balance the best plan will be to try to arrange for these people, all
of whom are citizens of the United Kingdom and Colonies or of Mauritius or
both, to return to the Seychelles or Mauritius. The people with whom we are concerned are working in the
Chagos under contract and own no property or other fixed assets there. However, some of them have established
roots in Chagos and I should naturally have wished to consult at least these in
advance of any decisions about their future, if this had been possible. Officials have examined closely the
possibility of giving them some element of choice, but have advised that this
would seem wholly impracticable ...
"10. In
short I ask my colleagues to agree that ... we should aim at the return of the
inhabitants of the whole Chagos Archipelago to the Seychelles and Mauritius and
should enter into negotiations with the Mauritian Government to that end."
There was a reply from 10
Downing Street on 26 April 1969 indicating the Prime Minister's agreement.
18 On 16
January 1970 Mr Aust gave written advice upon the question whether the then
extant draft Immigration Ordinance should be enacted. His advice starts with this paragraph:
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"2. Purpose
of Immigration Ordinance.
(a) To provide legal power to deport people who will not leave
voluntarily; (b) to prevent people entering; (c) to maintain the fiction that
the inhabitants of Chagos are not a permanent or semi-permanent
population. I will consider these
separately."
He addresses (c) above in
paragraph 6, headed "Maintaining the fiction":
"As
long as only part of BIOT is evacuated the British Government will have to
continue to argue that the local people are only a floating population. This may be easier in the case of the
non-Chagos part of BIOT ... where most of the people are Seychellois labourers
and their families. However, the
longer that such a population remains, and perhaps increases, the greater the
risk of our being accused of setting up a mini-colony about which we would have
to report to the United Nations under article 73 of the Charter. Therefore strict immigration
legislation giving such labourers and their families very restricted rights of
residence would bolster our arguments that the territory has no indigenous or
settled population."
19 It was at
length decided, at the turn of the year 1970-71, to enact the Ordinance in the
form in which it was in fact made.
This was preceded by an exchange of minutes which demonstrates the
earnest desire of the British Government to ensure that its making should be
attended by as little publicity as possible. A minute of 11 January 1971 stated:
"2. The ordinance would be published in the
BIOT Gazette, which has only very limited circulation both here and overseas,
after signature by the Commissioner.
Publicity will therefore be minimal."
20 That is a
sufficient recital of the facts which culminated in the making of the
Ordinance.
Jurisdiction
21 At the
bottom of Mr Pannick's argument upon this part of the case lie two
elements. The first is the fact
that these proceedings are directed against an act (the Ordinance) of the BIOT
legislature (the Commissioner).
The second is the rule or principle, which Mr Pannick would I think
characterise as a basic principle of our constitutional law, that the Crown is
divisible: that is, it falls to be treated as a separate sovereign entity
vis-ˆ-vis each territory where its sovereign writ runs. The rule is supported by well known
authority: Mr Pannick cites R v Secretary of State for Foreign and
Commonwealth Affairs, Ex p Indian Association of Alberta [1982] QB
892, Tito v Waddell (No 2) [1977] Ch 106, 255a-b
and R v Secretary of State for the Home Department, Ex p Bhurosah[1968] 1 QB
266 ("In Mauritius the Queen is the Queen of Mauritius": per Lord
Denning MR, at p 284e).
22 Mr
Pannick's two elements are obviously present in the case. But he must show that together they
establish that this court has no power to supervise the legality of the
Ordinance, else his argument is one of discretion only, whose reach at most
would be to persuade us that the BIOT Supreme Court would be a more convenient
forum for the resolution of the dispute in hand. That was not a position which Mr Pannick pressed with any
great vigourÑsave for this, and it is a factor we must bear carefully in mind:
there
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exists the possibility,
theoretical perhaps, of other proceedings before the BIOT Supreme Court,
touching the status and rights of the Ilois, in which that court might reach a
conclusion inconsistent with that arrived at here. The appeal routes are not the same. From this court, the ultimate court of
appeal is their Lordships' House.
From the BIOT Supreme Court, the ultimate court of appeal is the
Judicial Committee of the Privy Council.
There thus exists the possibility of conflicting judicial opinion at the
highest level.
23 But the
possibility is altogether more apparent than real, and in any case, as I have
indicated, this argument was in truth advanced to persuade the court that as a
matter of discretion, rather than jurisdiction, it should
not adjudicate upon the Ordinance.
In relation to jurisdiction properly so called, I will refer first to
Lord Mansfield CJ's dictum in R v Cowle (1759) 2 Burr 834. The case concerned the jurisdiction of
the King's Bench over doings in Berwick-on-Tweed; the details do not assist
us. Lord Mansfield CJ's judgment
has great learning as to the status of Berwick, but I need only cite this
passage, at pp 855-856:
"Writs,
not ministerially directed, (sometimes called prerogative writs, because they
are supposed to issue on the part of the King), such as writs of mandamus, prohibition,
habeas corpus, certiorari, are restrained by no clause in the constitution
given to Berwick: upon a proper case, they may issue to every dominion of the
Crown of England. There is no
doubt as to the power of this court; where the place is under the subjection of
the Crown of England; the only question is, as to the propriety. To foreign dominions, which belong to a
prince who succeeds to the throne of England, this court has no power to send
any writ of any kind. We cannot
send a habeas corpus to Scotland, or to the electorate: but to Ireland, the
Isle of Man, the plantations, and, as since the loss of the Duchy of Normandy,
they have been considered as annexed to the Crown, in some respects, to
Guernsey and Jersey, we may; and formerly, it lay to Calais; which was a
conquest, and yielded to the Crown of England by the treaty of Bretigny."
I should cite also a sentence
from the judgment of Lord Denning MR in Sabally and N'Jie v Attorney General [1965] 1 QB
273, 290 (the case's context, I think, adds nothing): "If the Crown
exceeds its jurisdiction over the colony, its conduct can be challenged in
these courts." Now, the
statement of Lord Mansfield CJ in Cowle was very wide; wider, it may
be, than he needed to go to decide the case. Mr Pannick draws attention to In re Mansergh (1861) 1 B
& S 400. That case concerned an officer's conviction by a court-martial in
India of an offence of grossly insubordinate conduct. Three years later, the officer, who had been dismissed from
the service, applied for a rule that the Judge Advocate General show cause why
a certiorari should not issue to bring up the record of the conviction so that
it might be quashed; it being asserted that the court-martial had had no power
to try Major Mansergh on the charges brought. The Queen's Bench declined to interfere. In the course of argument, Cockburn CJ
said of Lord Mansfield CJ's statement in Cowle, at p 404:
"That must be taken with considerable qualification. Those terms are very
general." Also in the
argument, he said, at p 405:
"If a
court-martial were to assume jurisdiction over a man who was not subject to
military discipline at all, this court would interfere. But
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I very much doubt if it could
interfere because a military man was tried by one court-martial instead of
another. Moreover, the sentence of
this court-martial does not touch the civil rights, and only affects the
military status of the applicant.
Does not every person who enters the military service of the Crown give
the Crown a right to determine his military status at pleasure?"
Wightman J asked counsel, at
p 405: "Can we issue a certiorari to bring up the proceedings of a court
abroad?" Counsel answered, at
pp 405-406:
"A
habeas corpus has been issued to Canada; In re Anderson (1861) 3 E
& E 487: and a habeas corpus or certiorari will go to St Helena; Ex p
Lees (1858) EB & E 828.
Besides, the certiorari here would not be directed to the court-martial,
but to the Judge Advocate General, to bring up a document which is now a record
in England."
Giving judgment, Cockburn CJ
said, at p 407:
"Then
there is the additional fact that these proceedings originated abroad, in a
place the tribunals of which are not subject to our jurisdiction. Mr Lush, indeed, contends that because
the record of the proceedings is in this country we have jurisdiction over it.
Assuming that for a moment, yet when we look at the particular nature of the
case before us, we see that the military status of the applicant alone is
affected, and consequently, if he had just cause of exception to the act of the
tribunal by which he was sentenced, he might have appealed to the Queen to
reconsider the matter with the advice of her Judge Advocate. For these reasons I am of opinion that
in this case we have no jurisdiction to grant a certiorari; besides which,
certiorari being a discretionary writ, we most certainly ought not, in the
exercise of our discretion, to grant it if we had the jurisdiction."
Their other Lordships
agreed. Crompton J reasoned as
follows, at pp 409-410:
"it
does not appear that this court has ever sent a certiorari beyond seas. The case is said to be analogous to
that of habeas corpus, and this, perhaps, is the strongest argument in support
of the present application. When a
person is improperly imprisoned, as in In re Allen (1860) 7
Jur NS 234, we have a right to inquire into the cause of the imprisonment; but
I am far from saying that a habeas corpus would go in such a case as the
present. In In re Anderson 3 E & E
487, which has been referred to, application was made for a habeas corpus to
Canada, and precedents were adduced so expressly in point that, according to
the great principle regulating these prerogative writs, the party had a prima
facie right to have the writ issued.
Besides, if a habeas corpus is improperly issued, it may be questioned
on the return to the writ. We did
not grant a rule to shew cause in that case, because there was immediate danger
to the party. For these reasons
that case must not be taken as an authority that a habeas corpus will go to a
colony. The only other case mentioned was the St Helena case, Ex p Lees EB & E
828; but there, after the court had refused to interfere, a writ of error had
been allowed by the Crown, and the habeas corpus was afterwards issued by a
judge at chambers merely as an ancillary step. I therefore think that we have no jurisdiction in this case,
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or at least that, if we have,
we ought not, in our discretion, to exercise it. It is part of our duty to control inferior courts in this
country, but I have yet to learn that that doctrine is applicable to courts in
the colonies."
Blackburn J said, at p 411:
"can
this court quash the proceedings of a court held in India? No more I think than they could quash
the proceedings of a court in France.
The Court of Queen's Bench in England controls local tribunals within
England, and such of its dependencies as are integral parts of England, e g,
Berwick-upon-Tweed, &c, and probably the Isle of Man. But there is no authority that it will
send a prohibition or a certiorari to the colonies or to India."
24 In terms of
the authorities, though there is some other learning, In re Mansergh 1 B & S
400 is I think the high watermark of Mr Pannick's case, and I have therefore
given full citations of its reasoning.
His argument on jurisdiction, however, is not unqualified or absolute. He places particular focus on the
existence, if that be the fact, of an effective court structure in the colony,
dominion or protectorate in relation to which the Queen's Bench jurisdiction is
sought to be invoked. I have
already described the system of courts established for BIOT. Mr Pannick submits that although Manserghmay justify
a wider proposition, it is at least the case that where in the
territory in question there is, as here, a municipal court of competent
jurisdiction, the Queen's Bench for its part lacks or will decline jurisdiction
to review any local acts of an administrative or legislative nature. The argument's emphasis on the presence
or otherwise of effective domestic courts is to some extent driven by Sir
Sydney's reliance on the authority of Ex p Mwenya [1960] 1 QB
241, in which the Court of Appeal held that a writ of habeas corpus might issue
to Northern Rhodesia. Mr Pannick
was at pains to point out that the court in that case proceeded on the
assumption that there was no court in Northern Rhodesia competent to give
equivalent relief. Mansergh was cited in Ex p Mwenya(see [1960]
1 QB 241, 269-270, 285). It is by
no means without interest to notice the contrast between the dismissive
reasoning of Crompton J (which I have cited) in the former case and the
approach of Lord Evershed MR in the latter, relating to the issue of habeas
corpus overseas. Lord Evershed MR
said, at pp 292-293:
"it is
clearly stated in the quotation from Bacon's Abridgement and the Commentaries
of Sir William Blackstone (and in almost identical language) that the writ (of
habeas corpus) runs into all parts of the King's dominions: 'for the King is at
all times entitled to have an account why the liberty of any of his subjects is
restrained wherever that restraint be inflicted' (Blackstone, 1768, vol 3, p
131). The Divisional Court [viz
the lower court in Ex p Mwenyaitself] proceeded to refer also to
the passages from Lord Mansfield CJ in R v Cowle 2 Burr 834,
853, 854, 855, 856 ... To these citations I add also the cited passage from Sir
Edward Coke's report in Calvin's Case (1609) 7 Co Rep 1, 20a, also much
relied upon by Mwenya: 'But the other kind of writs that are mandatory and not
remedial, are not tied to any place, but do follow subjection and ligeance in
what country or nation soever the subject is ...' These passages from Bacon, Blackstone, Lord Mansfield and
Sir Edward Coke were the basis of the decision of Cockburn CJ in Ex p
Anderson 3 E & E 487 that the
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writ of habeas corpus might
be issued to 'all parts of the dominions of the Crown of England' ..."
Lord Evershed MR proceeded to
cite Cockburn CJ's judgment in Ex p Anderson, but with
respect I need not set out the passage.
In Ex p Mwenya [1960] 1 QB 241, 306, Romer LJ said:
"there
is no authority, so far as I am aware, compelling this court to hold that the
writ of habeas corpus will not issue into any British Protectorate. The decisions and judicial utterances
relevant to the question have been exhaustively reviewed and considered in the
judgment of the Divisional Court and by the Master of the Rolls, and I do not
propose to consider them again. In
Cowle'scase 2 Burr 834 Lord Mansfield used language which, if taken at
its face value, is inconsistent with the Crown's contention. Vaughan Williams LJ, in R v Earl of
Crewe, Ex p Sekgome[1910] 2 KB 576, clearly took the view that the writ could, in a
proper case, issue into a protectorate, and I agree with that view
notwithstanding the contrary opinion entertained by Kennedy LJ on the
question."
Then Sellers LJ said, at pp
309-311:
"The
judges in the earliest cases had not in mind the issue which arises here, but I
think it would be difficult to read into any of them (until as late as Kennedy
LJ in Ex p Sekgome) a refutation of the powers of the English court to issue the
writ to safeguard a subject's freedom in a territory over which this country
had wide powers of jurisdiction and control, wide enough to enforce as a matter
of ordinary administration any order the court might make ... I would have felt
that the substance, if not the precise words, of Lord Mansfield's judgment in R
v Cowle 2 Burr 834, tended to support the argument for the applicant here
on the issue of jurisdiction ... I would join Vaughan Williams LJ in this part
of his judgment [in Ex p Sekgome [1910] 2 KB 576, 605]: 'I ask
myself why, if the writ of habeas corpus can be issued to the King's
territorial dominions, the writ should not be ordered to go to any country or
place under the subjection of the Crown whenever it is suggested to the court
in England that a subject of the Crown is illegally imprisoned'..."
25 R v Earl
of Crewe, Ex p Sekgome [1910] 2 KB 576, referred to by all three
judges in Ex p Mwenya [1960] 1 QB 241, was a case in which the
applicant, who claimed to be the chief of a native tribe, had been detained at
a place within the Bechuanaland Protectorate by virtue of a proclamation,
allegedly made under powers conferred by Order in Council, on the ground that
his detention was necessary for the preservation of peace within the
Protectorate. He applied for a
writ of habeas corpus, which was refused, but on the ground that Sekgome's
detention was lawful, not that the Queen's Bench lacked jurisdiction. The case
is one of a number falling for consideration in that part of the argument
relating to the true interpretation of section 11 of the OrdinanceÑ"peace
order and good government".
However, Sir Sydney relies on it also for the purposes of the argument
as to jurisdiction. I need not
with respect set out the passages referred to in Ex p Mwenya [1960] 1 QB
241, save for that given by Sellers LJ from the judgment of Vaughan Williams
LJ, which I have already cited, but I should
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note these words from the
judgment of Farwell LJ, which in their context are obiter but which possess the
clearest resonance for the present case, at [1910] 2 KB 576, 618:
"I must
not, however, be taken to assent ... to the view that the Secretary of State
would not be the proper person to make a return to a writ of habeas corpus if
there had been no Proclamation of 5 December 1906. Where a man who owes obedience to laws imposed by England is
imprisoned and kept imprisoned without trial in a place maintained by England,
and placed under the control of an officer of the Crown who acts under the
orders of the Colonial Office, and who has acted in the particular case with
the assent and approval of and is supported by the Colonial Office, I should be
slow to conclude that the Secretary of State could not be called on to make a
return to the writ."
26 It is plain
that the court in Ex p Mwenya [1960] 1 QB 241, and at least the
majority (Vaughan Williams and Farwell LJJ) in Ex p Sekgome [1910] 2 KB
576, saw nothing in any earlier jurisprudence, thus including In re Mansergh 1 B & S
400, to inhibit them from concluding that the writ of habeas corpus might in a
proper case issue beyond the seas, "to any place under the subjection of
the Crown". Indeed the weight of authority pointed firmly towards just
such a conclusion. It seems to me
that we should ourselves do injury to our rules of precedent if we were to hold
that in light of Mansergh the writ might not so issue. Here, of course, we are not concerned
with habeas corpus but with an application for a certiorari. I can see no basis for distinguishing
between one prerogative writ and another upon the question, what is the reach
of this court's jurisdiction? Lord
Mansfield CJ stated expressly that all the prerogative writs may go to every
dominion of the Crown of England; Sir Edward Coke was, I think, to the same
effect in the short passage from Calvin's Case 7 Co Rep 1,
20a set out by Lord Evershed MR in Ex p Mwenya[1960] 1 QB
241, 293, which I have cited; the judgments in In re Mansergh 1 B & S
400, whatever, with respect, they in fact decide, draw no distinction between
habeas corpus and the other prerogative writs in relation to jurisdiction; and
lastly, no such distinction could in my judgment survive the glare of reason:
habeas corpus is a high constitutional writ because it protects the individual
from unlawful detention, but an order of certiorari, while not necessarily
concerned to secure the freedom of the person, is just as surely provided as a
remedy against arbitrary, capricious and oppressive conduct.
27 If there is
no absolute prohibition upon the court's jurisdiction to issue certiorari to
overseas territories subject to the Queen's dominion, might there at least be a
qualified or partial restriction, having effect in any case where there are
established local courts themselves possessing the power to adjudicate upon the
complaint put forward? This, as I
have indicated, is Mr Pannick's true case. But such a position is in reality a paradigm of a familiar
rule of discretion, namely that judicial review is a legal recourse of last resort
and an applicant must exhaust any proper alternative remedy open to him before
the judicial review court will consider his case. This, surely, is the category to which Mr Pannick's argument
on jurisdiction truly belongs.
There is no authority at allÑnone in In re ManserghÑ for the
proposition that the existence of effective local courts negatives the jurisdiction of the
Queen's Bench to issue certiorari extra-
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territorially. It may be that the reasoning in In
re Mansergh, though undoubtedly deploying the language of jurisdiction, is in
truth directed to this powerful principle of discretion. At all events one has in mind that in
that case their Lordships found very strong reasons why the power to order
certiorari, if on the facts they possessed it, should not be exercised.
28 I conclude
that this court owns ample jurisdiction to make the order sought in this case,
if it be right to make it. That
result is not contradicted by the "two elements" in Mr Pannick's
submission which I identified at paragraph 21. Indeed, I have to say that the Crown's reliance on the
proposition that the Ordinance is a legal creature of the government of BIOT
which must be taken to possess a separate and distinct sovereignty of its own,
such that the Queen's courts sitting here in London have nothing to do with the
matter, represents in my judgment an abject surrender of substance to
form. Nothing is plainer, from the
history of events which I have recounted by reference to the contemporary
documents, that the making of the Ordinance and its critical provision, section
4, were done on the orders or at the direction of Her Majesty's ministers here,
Her ministers in right of the government of the United Kingdom. That government had entered into
obligations and understandings with the Americans, not with the government of
BIOT. The government of BIOT,
indeed, was itself a very creature of those understandings. If the applicant in these proceedings
had sought to sue in the BIOT courts, the reply might have been that those
courts had no authority to control the Secretary of State sitting in Whitehall,
and it would have been a true reply.
29 The
question for this court is whether to quash an instrument, the Ordinance, whose
making was wholly procured by the United Kingdom Government. If the suggestion that the court lacks
the power to do so has a place in our legal tradition, it is not one which I
recognise. I would hold that we
possess ample jurisdiction to make the order sought.
Magna Carta
30 I may turn
now to the substantive grounds of challenge to the Ordinance. To some extent these run into one
another. The first which I will
take is the most florid: it is to the effect that section 4 of the Ordinance
constitutes an affront to the rights and liberties enshrined in Chapter 29 of
Magna Carta 1297 (25 Edw 1 c 1). I
cite the modernised text given in Halsbury's Statutes of England and Wales, 4th ed,
vol 10 (1995 reissue), p 16:
"No
freeman shall be taken or imprisoned, or be disseised of his freehold, or
liberties, or free customs, or be outlawed, or exiled, or any other wise
destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment
of his peers, or by the law of the land.
We will sell to no man, we will not deny or defer to any man either
justice or right."
In order to understand this
part of the case, it is necessary also to set out sections 2 and 3 of the
Colonial Laws Validity Act 1865. Section 2 bears the sidenote "Colonial
law when void for repugnancy"; section 3, "Colonial law when not void
for repugnancy". Section 2
provides:
"Any
colonial law which is or shall be in any respect repugnant to the provisions of
any Act of Parliament extending to the colony to which such
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law may relate, or repugnant
to any order or regulation made under authority of such Act of Parliament, or
having in the colony the force and effect of such Act, shall be read subject to
such Act, order, or regulation, and shall, to the extent of such repugnancy,
but not otherwise, be and remain absolutely void and inoperative."
Section 3 provides:
"No
colonial law shall be or be deemed to have been void or inoperative on the
ground of repugnancy to the law of England, unless the same shall be repugnant
to the provisions of some such Act of Parliament, order, or regulation as
aforesaid."
An "Act of Parliament
extending to the colony", within section 2, is by section 1 an Act which
is "made applicable to such colony by the express words or necessary
intendment of any Act of Parliament".
31 Sir
Sydney's argument possesses a beguiling simplicity. It is that section 4 of the Ordinance is repugnant to
Chapter 29 of Magna Carta: the Ilois are by section 4 exiled from their
homeland. Accordingly, section 4 is "absolutely void" within the
meaning of section 2 of the 1865 Act.
32 Mr Pannick
was at first disposed to argue that Magna Carta did not constitute a statute at
all, properly so called, at any rate for the purpose of the 1865 Act. Upon an examination of the Charter's
history, and its repeated confirmation by Parliament (not least in the late
Middle Ages), he rightly abandoned this position. I confess to having been dismayed to hear the government
submit (as Mr Pannick's first position necessarily implied) that Magna Carta
belonged to some unspecified category of subordinate law. But Mr Pannick rightly resiled from
that position, in the course of Sir Sydney's submissions.
33 It is clear
that Magna Carta is not applied to any colony by express words. It may only be so, therefore, by
"necessary intendment".
There was much argument at the bar as to the extent to which Magna Carta
"followed the flag."
That expression appeared in a judgment in the Canadian Supreme Court in Calder
v Attorney General of British Columbia (1973) 34 DLR (3d) 145, 203 where
it was said that Magna Carta: "has always been considered to be the law
throughout the Empire. It was a
law which followed the flag as England assumed jurisdiction over
newly-discovered or acquired lands or territories." This statement, much pressed by Sir
Sydney, was approved by Lord Denning MR in R v Secretary of State for
Foreign and Commonwealth Affairs, Ex p Indian Association of Alberta [1982] QB
892, 912. Mr Pannick sought to
rely on the decision of the Judicial Committee of the Privy Council in Staples
v The Queen(unreported) 27 January 1899. Their Lordships' reasoning in that case has come down to us
in a curious form. There is no
report in the books, in the ordinary way, rather their Lordships issued a
memorandum dated 27 January 1899, stating:
"As it
has been intimated to their Lordships that their reasons for giving this advice
were not in all points sufficiently explained by what fell from them during the
argument, they have authorised the Registrar to make the statement
following."
The question in the case was
whether the petitioner, who had upon a charge of theft been tried and convicted
by a judge and four assessors in the High
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Court of Matabeleland, had
been unlawfully deprived of the right to trial by jury vouchsafed, so it was
said, by Chapter 29 of Magna Carta.
Now, Matabeleland was a protectorate, not a colony. The Privy Council held that Magna Carta
did not extend to such a protectorate, to which section 12 of the Foreign
Jurisdiction Act 1890 applied. Section 12(1) and (2) of that Act are in
substantially the same terms as sections 2 and 3 of the 1865 Act. Their Lordships stated, at pp 2-3 of
the memorandum:
"the
repugnancy contemplated by the Foreign Jurisdiction Act must mean repugnancy to
a statute or order applied in some special way to British subjects in the
foreign country in question. It
would be a most unreasonable limit on the Crown's power of introducing laws
fitting to the circumstances of its subjects in a foreign country if it were
made impossible to modify any Act of Parliament which prior to the Order in
Council might be invoked as applicable to a British subject."
Sir Sydney took the position
that this authority has no application to the case in hand, because it was
dealing with a protectorate, not a colony. The citizens of a colony are, distinctly, the Queen's
subjects, and as such enjoy the legal heritage of Magna Carta. The reasoning in Staples v The Queen is nothing
to the contrary.
34 There were
further points to be made as regards the incorporation or otherwise of Magna
Carta into the law of BIOT: see paragraph 50 below. I do not set them out here, since with great respect to
counsel's submissions and the learning which they deployed, in my judgment the argument
as to Magna Carta is, in the end, barren.
Even if the Charter "followed the flag" to BIOT, its potency
would not suffice to condemn what has been done here, if it was done in
accordance with the law, not merely the letter of the law, but in accordance
with our substantive constitutional law. Magna Carta does not, as I understand
it, curtail the sovereignty of the proper lawmaker to make what laws seem fit
to him. Chapter 29 states:
"No freeman shall be ... exiled ... but ... by the law of the land." Now, there may be questions whether any
law is in the proper form, without which it is not law, and there may be
questions whether the lawmaker, if he is not the Queen in Parliament, has the
powerÑthe viresÑto make the law in issue.
But if those questions are answered in the lawmaker's favour, his law is
not then to be condemned for breach of Magna Carta.
35 Indeed, Sir
Sydney does not submit that what was purportedly done by section 4 of the
Ordinance could not by any means at all have been properly done according to
law. His case is that it could
only have been done by Act of Parliament of the United Kingdom, or possibly by
a legislative measure authorised and made by virtue of the royal prerogative, a
possibility to which I will return.
In his skeleton argument:
"It is
submitted that the 'law of the land' [in Chapter 29 of Magna Carta] means an
Act of Parliament, or an established rule of common law. It cannot include an Order in Council
or an act of a governor or commissioner, even if put into legislative form, as
that would be destructive of the great principle enshrined in article 29."
With respect, this reasoning
is a little opaque. If the
submission intended is simply that a measure such as section 4 of the Ordinance
could not lawfully be done by executive discretion, with no sure foundation in
legislation,
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I would without cavil accept
it. Sir Sydney is plainly right to
submit that, save in time of war, the executive has no power to abridge the
freedoms of the Queen's subjects save by authority of a valid statute or an
established common law prerogative.
He cites the celebrated decision in Entick v Carrington (1765) 19
State Tr 1029. But if the
submission means that the measure could in no event be done by Order in
Council, I have some difficulty.
An Order in Council may in the context of the Crown's powers to make law
for a colony amount to an act of primary legislation under the prerogative.
36 Accordingly
Magna Carta does not in my judgment offer a resolution of this case in the
applicant's favour. It provides no answer to the question whether section 4 of
the Ordinance was made in accordance with "the law of the land". But it is very important to notice
that, as I see the matter, Magna Carta is in truth the first general
declaration (I do not think it was done by King Alfred in the 9th century), in
the long run of our constitutional jurisprudence, of the principle of the rule
of law. I will only cite Pollock
& Maitland, The History of English Law, 2nd ed (1923), vol 1, p
173:
"this
document becomes and rightly becomes a sacred text, the nearest approach to an
irrepealable 'fundamental statute' that England has ever had. In age after age a confirmation of it will
be demanded and granted as a remedy for those oppressions from which the realm
is suffering, and this when some of its clauses, at least in their original
meaning, have become hopelessly antiquated. For in brief it means this, that the king is and shall be
below the law."
This describes the enduring
significance of Magna Carta today.
So far as it is a proclamation of the rule of law, it may indeed be said
to follow the flagÑcertainly as far as BIOT, for unless the removal of the
Ilois from the archipelago is shown to have been done according to law, the
applicant in these proceedings must succeed, and while in that case there might
perhaps be questions as to the appropriate form of relief, it cannot be and is
not suggested that any prudential considerations (such as the strategic
importance of the military base) should stay the court's hand. The true questions in the case are:
what is the form and substance of any such legal authority as would justify what
has been done here, and whether section 4 of the Ordinance lies within it. To these questions Magna Carta does not
provide the answer.
The "Witham
principle"
37 R v Lord
Chancellor, Ex p Witham [1998] QB 575 was a case in which a fundamental
or constitutional right, there the right of access to the Queen's courts, was
effectively withheld from a class of persons (those with no means to pay court
fees) by a subordinate instrument whose purported vires was a provision in main
legislation cast in very general terms.
The Divisional Court struck down the relevant part of the subordinate
measure, holding that a fundamental or constitutional right could only be
abrogated by the executive where that was specifically authorised by Act of
Parliament. The first judgment in
the case was given by myself at the invitation of Rose LJ (perhaps I may be
allowed to protest that the case's elevation from a mere authority into a
principle only arises from the way Sir Sydney,
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seductively enough,
categorised it in the course of his argument). The submission was that section
4 of the Ordinance could not lawfully be authorised by the general words of
section 11 of the BIOT Order, any more than the Supreme Court Fees (Amendment)
Order 1996 (SI 1996/3191) in Ex p Witham could be justified by the
general words of section 130 of the Supreme Court Act 1981. A British citizen, Sir Sydney
submitted, enjoys a constitutional or fundamental right to reside in or return
to that part of the Queen's dominions of which he is a citizen, where he is a
"belonger", a term used, as I have shown, in some of the documents
which trace the history of the case as it was viewed in Whitehall. I need only set out one passage from
what I said in Ex p Witham, at p 581:
"In the
unwritten legal order of the British state, at a time when the common law
continues to accord a legislative supremacy to Parliament, the notion of a
constitutional right can in my judgment inhere only in this proposition, that
the right in question cannot be abrogated by the state save by specific
provision in an Act of Parliament, or by regulations whose vires in main
legislation specifically confers the power to abrogate. General words will not suffice. And any such rights will be creatures
of the common law, since their existence would not be the consequence of the
democratic political process but would be logically prior to it."
Rose LJ said, at p 587:
"There
is nothing in [section 130 of the Supreme Court Act 1981] or elsewhere to
suggest that Parliament contemplated, still less conferred, a power for the
Lord Chancellor to prescribe fees so as totally to preclude the poor from
access to the courts. Clear
legislation would in my view be necessary to confer such a power and there is
none."
I should also cite this
passage from Lord Hoffmann's speech in R v Secretary of State for the Home
Department, Ex p Simms [2000] 2 AC 115, 131:
"Parliamentary
sovereignty means that Parliament can, if it chooses, legislate contrary to
fundamental principles of human rights.
The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by
Parliament are ultimately political, not legal. But the principle of legality means that Parliament must
squarely confront what it is doing and accept the political cost. Fundamental
rights cannot be overridden by general or ambiguous words. This is because there is too great a
risk that the full implications of their unqualified meaning may have passed
unnoticed in the democratic process. In the absence of express language or necessary implication
to the contrary, the courts therefore presume that even the most general words
were intended to be subject to the basic rights of the individual. In this way the courts of the United
Kingdom, though acknowledging the sovereignty of Parliament, apply principles
of constitutionality little different from those which exist in countries where
the power of the legislature is expressly limited by a constitutional
document."
38 In Ex p
Witham [1998] QB 575 I considered that only express words in
main legislation would suffice to abrogate such a constitutional right. There
is some controversy as to that: see, with respect, R v Secretary of State
for the Home Department, Ex p Pierson[1998] AC 539, 575 per Lord
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Browne-Wilkinson, and indeed
Lord Hoffmann's reference to "necessary implication" in the passage
from Ex p Simms [2000] 2 AC 115, 131 just cited. But I conceive it is generally accepted that interference
with a constitutional or fundamental right requires at least specific authority
given by Parliament, and this is a principle of the common law, independent of
our incorporation by the Human Rights Act 1998 of the rights guaranteed by the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(1953). At all events, the
question for present purposes is how far it advances Sir Sydney's cause to the
effect that section 4 of the Ordinance is not lawfully authorised.
39 For my part
I would certainly accept that a British subject enjoys a constitutional right
to reside in or return to that part of the Queen's dominions of which he is a
citizen. Sir William Blackstone
says in Commentaries on the Laws of England, 15th ed
(1809), vol 1, p 137: "But no power on earth, except the authority of
Parliament, can send any subject of England out of the land
against his will; no not even a criminal." Compare Chitty, A Treatise
on the law of the Prerogatives of the Crown and the Relative Duties and Rights
of the Subject (1820), pp 18, 21. Plender,
International Migration Law, 2nd ed (1988), ch 4, p 133 states:
"The principle that every state must admit its own nationals to its
territory is accepted so widely that its existence as a rule of law is
virtually beyond dispute ..." and cites authority of the European Court of
Justice in Van Duyn v Home Office (Case 41/74) [1975] Ch
358, 378-379 in which the court held that "it is a principle of
international law ... that a state is precluded from refusing its own nationals
the right of entry or residence".
Dr Plender further observes, International Migration Law, p 135:
"A significant number of modern national constitutions characterise the
right to enter one's own country as a fundamental or human right", and a
long list is given. And I should
cite this passage, at pp 142-143:
"Without
exception, the remaining dependencies of the United Kingdom impose systems of
immigration control applicable to British citizens coming from the United
Kingdom and to those from other dependencies. In two very exceptional cases,
immigration control is applied to all persons whatever. Elsewhere, a distinction is drawn
between those who belong to the territory and are accordingly immune from immigration
control and those who do not belong.
In several instances, the statute uses the very word 'belonger'. Thus, a person has the right to land in
Hong Kong if he is a 'Hong Kong belonger'."
Dr Plender's "two very
exceptional cases" are the British Antarctic Territory and BIOT. The British Antarctic Territory has no
belongers. BIOT has.
40 Now R v
Lord Chancellor, Ex p Witham [1998] QB 575 proceeded upon the
premise that, adopting what might be called a standard approach to the task of
statutory construction, the enabling words in the Act would have sufficed to
provide the vires for the regulation under assault; the regulation was bad only
because its interference with a constitutional right invoked the application of
a stricter rule, the requirement of specific authorisation. In the present case the question
whether, Ex p Witham (and indeed Magna Carta) aside, there was any
vires for section 4 of the Ordinance is at the heart of the case. One of Sir Sydney's submissions, to
which I shall come in due course, was that section 11 of the BIOT Order,
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upon ordinary principles of
construction and without the assistance of any special rule, failed utterly to
empower the Commissioner to make section 4 of the Ordinance. If that submission is right, then of
course he need have no recourse to Ex p Witham. If the submission is wrong, it will be
because the court would have accepted Mr Pannick's argument that in the context
of the making of colonial laws the words used in section 11, "make laws
for the peace, order and good government of the Territory", "connote,
in British constitutional language, the widest law-making powers appropriate to
a sovereign": see Ibrelebbe v The Queen [1964] AC
900, 923; and that this suffices to clothe section 4 with vires given by
section 11. I very much doubt
whether an appeal to Ex p Witham would retain the least force in
face of such a conclusion.
41 Mr Pannick
also submits that the application of a special rule of construction whose
purpose is to protect fundamental or constitutional rights would undercut
sections 2 and 3 of the Colonial Laws Validity Act 1865 (which I have already
set out) and would be contrary to authority of the Privy Council in Liyanage
v The Queen [1967] 1 AC 259. In
that case the appellants had been convicted of grave criminal offences under
laws of the Parliament of Ceylon, specifically passed so as to deprive,
retrospectively, the appellants of what would have been their right to trial by
jury. The laws had other effects
also. The convictions were quashed
by the Privy Council on the footing that the laws offended against Ceylon's
written constitution, but that aspect of the case is not germane here. The appellants' first argument had
been, as stated at p 283, that "the Ceylon Parliament is limited by an
inability to pass legislation which is contrary to fundamental principles of
justice". Their Lordships
stated, at p 283:
"The
first argument starts with a judgment of Lord Mansfield CJ. In Campbell v Hall (1774) 1
Cowp 204, 209 he laid down as a clear proposition that 'if the King (and when I
say the King, I always mean the King without the concurrence of Parliament,)
has a power to alter the old and to introduce new laws in a conquered country,
this legislation being subordinate, that is, subordinate to his own authority
in Parliament, he cannot make any new change contrary to fundamental
principles'. "
Reciting the argument based
on Lord Mansfield CJ's statement, their Lordships in Liyanage v The Queen continued,
at pp 284-285:
"Therefore
the legislative power of Ceylon is still limited by the inability (which it
inherits from the Crown) to pass laws which offend against fundamental
principles. This vague and
uncertain phrase might arguably be called in aid against some of the statutes
passed by any Sovereign power. And
it would be regrettable if the procedure adopted in giving independence to
Ceylon has produced the situation for which the appellants contend.
"In
view of their Lordships, however, such a contention is not maintainable. Before the passing of the Colonial Laws
Validity Act 1865 considerable difficulties had been caused by the
over-insistence of a Colonial judge in South Australia that colonial
legislative Acts must not be repugnant to English law."ÑWheare, The
Statute of Westminster and Dominion Status, 4th ed (1949), pp 75, 76,
77 is referred to. Sir Kenneth
Wheare was a distinguished Rector of Exeter College, OxfordÑ"That
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Act was intended to and did
overcome the difficulties. It
provided that colonial laws should be void to the extent in which they were
repugnant to an Act of the United Kingdom parliament applicable to that colony,
'but not otherwise' (section 2) and that they should not be void or inoperative
on the ground of repugnancy to the law of England (section 3). 'The essential feature of this measure
is that it abolished once and for all the vague doctrine of repugnancy to the
principles of English law as a source of invalidity of any colonial Act ... The
boon thus secured was enormous; it was now necessary only for the colonial
legislator to ascertain that there was no Imperial Act applicable and his field
of action and choice of means became unfettered.' (Keith, The Sovereignty of
the British Dominions1929 ed, p 45.)
"Their
Lordships cannot accept the view that the legislature while removing the fetter
of repugnancy to English law, left in existence a fetter of repugnancy to some
vague unspecified law of natural justice.
The terms of the Colonial Laws Validity Act and especially the words
'but not otherwise' in section 2 make it clear that Parliament was intending to
deal with the whole question of repugnancy. Moreover their Lordships doubt whether Lord Mansfield was
intending to say that what was not repugnant to English law might yet be
repugnant to fundamental principles or to set up the latter as a different test
from the former. Whatever may have
been the possible arguments in this matter prior to the passing of the Colonial
Laws Validity Act, they are not maintainable at the present date."
42 I did not
understand Sir Sydney to submit that we should feel free not to follow this
authority on the footing that, as a decision of the Privy Council, it is
persuasive only, however great the respect it may command. This is of some importance. As a municipal court of England and
Wales we are in this case treading in the field of colonial law. We are, as I see the matter, justified
in doing so for the reasons I have given upon the jurisdiction issue. But there is a trade-off. It seems to me particularly important
that we should respect the decisions of the Privy Council upon relevant issues
of colonial law. Where there is a
body of jurisprudence, possessing high authority, which addresses the legal
relation between the United Kingdom and its colonies, we should, sitting in
this court, treat it as settled and binding. Otherwise we risk the spectre of conflicting judicial opinion
to which I referred earlier, in paragraph 22.
43 So
approaching the issue, I cannot see that Sir Sydney's appeal to constitutional
principle as it was described in R v Lord Chancellor, Ex p Witham [1998] QB
575 can withstand the authority of Liyanage v The Queen [1967] 1 AC
259. I acknowledge a consequence
of this conclusion, namely that as regards fundamental or constitutional
rights, there is a difference of approach between the developed law of England
and the law applicable in the colonies.
Belongers here take the benefit of the constraints which the common law
imposes upon the construction of legislation which interferes with such rights;
belongers there do not. However I
think it plain that in practice, in the post-imperial world as it is, this is a
misfit which nearly always will be nothing but theoretical; territories such as
Gibraltar possess written constitutions which enshrine fundamental rights based
on or akin to the model of the European Convention on Human Rights. But
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BIOT does not, and there is
therefore a dissonance, one which may strike real lives, between the richness
of the rights which our municipal law today affords and the wintry asperity of
authority such as Liyanage v The Queen. The court's task here is accordingly acute. We should, however, ourselves affront
the rule of law if we translated the liberal perceptions of today, even if they
have become the warp and weave of our domestic public law, into law binding on
established colonial powers in the face of authority that we should do no such
thing.
44 I would
therefore hold that Ex p Witham [1998] QB 575 and like decisions do
not assist the applicant.
The legal nature of
section 4 of the Ordinance
(1) The
CommissionerÑagent/delegate?
45 Here lie
the real issues in the case. I
will deal first with Mr Pannick's submission that a colonial legislature,
enjoying power to make laws for the peace, order and good government of the
territory where it possesses jurisdiction, is by our law not the agent or
delegate of the body which created it. Translated into this case, it is said
that the Commissioner is not the agent or delegate of the Queen in Council who
made the BIOT Order. But this submission has no teeth unless it is intended to
persuade us that the Commissioner may legislate absolutely as he chooses. Such an argument would of necessity
suggest that section 4 of the Ordinance is valid irrespective of the
terms of section 11 of the BIOT Order, and would be valid whatever happened to
be stated in an enabling provision such as section 11. So understood the submission merely
invites our entry into a barbarous world where there is no rule of law. The Commissioner would be above the
law, save I suppose to the extent that his masters in London might correct him,
acting under section 11(2) of the BIOT Order.
46 An
important authority on the status of a colonial legislature is R v Burah (1878) 3
App Cas 889. The Privy Council
there stated, at p 904:
"The Indian
Legislature has powers expressly limited by the Act of the Imperial Parliament
which created it, and it can, of course, do nothing beyond the limits which
circumscribe these powers. But,
when acting within those limits, it is not in any sense an agent or delegate of
the Imperial Parliament, but has, and was intended to have, plenary powers of
legislation, as large, and of the same nature, as those of Parliament
itself."
Here then it was plainly
accepted that a legislature created by a measure passed by a body which is
legally prior to it must act within the confines of the power thereby
conferred. With great respect, I
would say that nothing could be more elementary. In this area, there is as it seems to me a risk of some
obfuscation arising from descriptions of bodies in the Commissioner's position
as a legislature, even a sovereign legislature. Certainly he legislates, but he does so only within the
powers conferred upon him by higher authority. This argument that the Commissioner is not the agent or
delegate of the Queen in Council is wholly bloodless.
(2) The
Colonial Laws Validity Act 1865
47 Mr Pannick
was also disposed at first to submit that the effect of sections 2 and 3 of the
Colonial Laws Validity Act 1865 was that the
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making of a law by the
Commissioner, here section 4 of the Ordinance, could not be challenged as ultra
vires on any ground whatever save that it offended a British statute which
extended to BIOT. So if there were
no such statute the Commissioner's powers would presumably be untrammelled; and
again we are in the badlands, to use John Wyndham's expression, where there is
no rule of law. But Mr Pannick
resiled from this position. He
accepted that it was undermined by the passage from R v Burah 3 App Cas
889, 904 which I have already set out.
There is also authority of the Court of Exchequer Chamber in Phillips
v Eyre (1870) LR 6 QB 1, 20:
"We are
satisfied that it is sound law, and that a confirmed act of the local
legislature lawfully constituted, whether in a settled or conquered colony,
has, as to matters within its competence and the limits of its jurisdiction, the
operation and force of sovereign legislation, though subject to be controlled by
the imperial parliament." (My
emphasis.)
(3) The
Commissioner's powers: section 11 of the BIOT Order
48 As it seems
to me, then, neither an appeal to those dicta which assert that a colonial
legislature is neither agent nor delegate of the Imperial Parliament (or the
Queen in Council), nor any reliance on the Colonial Laws Validity Act, can
suffice to enlarge the power of the Commissioner to make laws beyond what, on
its true construction, section 11 of the BIOT Order gives him. However broad the power in point of
theory to legislate for a colony such as BIOT, here it has been done by a
particular means. If the chosen
last is section 11, the boot of section 4 can be no bigger.
(4) The
British Settlements Act 1887
49 At this
point it is convenient to refer to a subsidiary debate upon which Sir Sydney
and Mr Pannick embarked at various points in the case. This was whether the power to legislate
for BIOT arose ultimately from the Queen's prerogative, or the British
Settlements Act 1887 (50 & 51 Vict c 54). It is clear law that the Queen enjoys prerogative power to
make laws for a ceded colony: see Abeyesekera v Jayatilake [1932] AC
260, 264. But in relation to a
settled colony legislative power is conferred on the Queen in Council by
statute, the British Settlements Act 1887, and the prerogative gives no
authority to legislate in such a case: see Sammut v Strickland [1938] AC
678, 701. Section 6 of the 1887 Act, the interpretation provision, defines
"British settlement" as
"any
British possession which has not been acquired by cession or conquest, and is
not for the time being within the jurisdiction of the Legislature, constituted
otherwise than by virtue of this Act or of any Act repealed by this Act, of any
British possession."
Section 2 of that Act
provides in part:
"It
shall be lawful for Her Majesty the Queen in Council from time to time to
establish all such laws and institutions ... as may appear to Her Majesty in
Council to be necessary for the peace, order, and good government of Her Majesty's
subjects and others within any British settlement."
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Section 3 confers a power
"to delegate to any three or more persons within the settlement all or any
of the powers conferred by this Act on Her Majesty in Council".
50 Sir Sydney
submitted that BIOT should be regarded as a settled colony. His purpose or one of his purposes in
doing so was to assert that the legislative power of the Commissioner could
only be that of a delegate. But
for reasons I have given, the Commissioner's power of legislation is no bigger
than what section 11 of the BIOT Order gives him, delegate or no delegate. In addition, in the context of the
argument relating to the Magna Carta, Sir Sydney desired to refute Mr Pannick's
submission that, in a ceded colony, the law of England does not without more
become the law of the colony following cession; earlier laws remain in place
until new laws are made, so that the Magna Carta would not form part of the law
of the colony unless it, or, it may be, the law of England generally, were
expressly applied. It seems from
Mr Steel's evidence that English law was not generally applied in Mauritius,
nor therefore was it applied in BIOT (pursuant to section 15(1) of the BIOT
Order) at the time of its creation.
However all this may be, I have explained in paragraphs 34 to 36 why the
argument based on the Magna Carter does not advance the case, whatever one
makes of the proposition that it "followed the flag" to BIOT.
51 Whether the
prerogative or the British Settlements Act 1887 is the source of the power to
legislate for BIOT may, however, matter for another reason. There is a question, arising upon Sir
Sydney's argument, whether what was purportedly done by section 4 of the
Ordinance could only lawfully have been done by Act of the United Kingdom
Parliament, or whether it could be done by a legislative act under the
prerogative. If BIOT is a
"British settlement" within the meaning of the 1887 Act, the Queen's
power of legislation is given and curtailed by section 2, which, like section
11 of the BIOT Order, has the formula "peace, order, and good
government". If section 11
does not give the power to make a law like section 4 of the Ordinance, then
neither, surely, does section 2 of the Act. In that case it could only be done by fresh main
legislation. But if the source of
the power to make laws for BIOT is the royal prerogative, the position may be
different. I have already said at
paragraph 35 that I will return to this question.
52 I should
say that, in my judgment, the 1887 Act has no application to this case. It is beyond question that BIOT was in
1814 part of a ceded colony. When
it was split from Mauritius by the BIOT Order, that position cannot have been changed.
Sir Sydney submits, in his skeleton argument, that in 1965 BIOT had a settled
population of citizens of the United Kingdom and colonies. Plainly that is
so. But the question, ceded or
settled, has surely to be determined as at the time when the territory
concerned becomes subject to the Queen's dominion.
(5)
"Peace, order, and good government"
53 I turn at
length to the issue whose resolution, in my judgment, will decide this
case. Did section 11 of the BIOT
Order empower section 4 of the Ordinance?
Mr Pannick marshalled a formidable body of authority to support the
proposition that the formula "peace, order, and good government",
used so often in measures conferring powers to make colonial law, was to be
taken as having the widest possible intendment. Riel v The
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Queen (1885) 10
App Cas 675 concerned an Act of the Imperial Parliament authorising the
Canadian Parliament to make laws "for the administration, peace, order, and
good government of any territory". Their Lordships in the Privy Council
stated, at p 678:
"it
appears to be suggested that any provision differing from the provisions which
in this country have been made for administration, peace, order, and good, government
cannot, as matters of law, be provisions for peace, order, and good government
in the territories to which the statute relates, and further that, if a court
of law should come to the conclusion that a particular enactment was not
calculated as a matter of fact and policy to secure peace, order, and good
government, that they would be entitled to regard any statute directed to those
objects, but which a court should think likely to fail of that effect, as ultra
vires and beyond the competency of the Dominion Parliament to enact. Their Lordships are of opinion that
there is not the least colour for such a contention. The words of the statute are apt to authorise the utmost
discretion of enactment for the attainment of the objects pointed to."
54 I have
already referred in paragraph 40 to what was said in Ibrelebbe v The Queen [1964] AC
900, 923: the words peace, order and good government "connote, in British
constitutional language, the widest law-making powers appropriate to a
sovereign". This was approved
in Winfat Enterprise (HK) Co Ltd v Attorney General of Hong Kong[1985] AC
733, 747 (which shows also that it makes no difference to the power's breadth
that the colonial legislature in question is not established on representative
principles: c f Li Hong Mi v Attorney General for Hong Kong [1920] AC
735). R v Earl of Crewe, Ex p
Sekgome [1910] 2 KB 576, which I have cited in dealing with the argument
as to this court's jurisdiction, is also a case concerned with a "peace,
order and good government" provision, under whose authority the
applicant's detention was held to have been plainly justified.
55 The
authorities demonstrate beyond the possibility of argument that a colonial
legislature empowered to make law for the peace, order and good government of
its territory is the sole judge of what those considerations factually
require. It is not obliged to
respect precepts of the common law, or English traditions of fair treatment. This conclusion marches with the cases
on the Colonial Laws Validity Act 1865, and I have dealt with that. But the colonial legislature's
authority is not wholly unrestrained.
Peace, order and good government may be a very large tapestry, but every
tapestry has a border. In Trustees
Executors and Agency Co Ltd v Federal Comr of Taxation (1933) 49
CLR 220, 234-235, Evatt J in the High Court of Australia stated:
"The
correct general principle is ... whether the law in question can be truly
described as being for the peace, order and good government of the Dominion
concerned ... The judgment of Lord Macmillan [in Croft v Dunphy [1933] AC
156] affirms the broad principle that the powers possessed are to be treated as
analogous to those of 'a fully sovereign state', so long as they answer the
description of laws for the peace, order, and good government of the
constitutional unit in question ..."
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56 In
answering the question whether a particular measure, here section 4 of the
Ordinance, can be described as conducing to the territory's peace, order and
good government, it is I think no anachronism, and may have much utility, for
the court to apply the classic touchstone given by our domestic public law for
the legality of discretionary public power as it is enshrined in Associated
Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB
223. Could a reasonable legislator
regard the provisions of section 4 as conducing to the aims of section 11? In
answering the question, the force of the cases shows that a very wide margin of
discretion is to be accorded to the decision-maker; yet in stark contrast our
modern domestic law tends in favour of a narrower margin, and a more intrusive
judicial review, wherever fundamental or constitutional rights are involved. This recalls the dissonance to which I
referred at paragraph 43 between the rights which the common law confers here,
and the thinner rule of law which the jurisprudence has accorded the colonies. But the dissonance is historic, and in
my judgment does not in any event drive the result in this present case.
The legality of the
Ordinance
57 Section 4
of the Ordinance effectively exiles the Ilois from the territory where they are
belongers and forbids their return.
But the "peace, order and good government" of any territory
means nothing, surely, save by reference to the territory's population. They are to be governed not
removed. In the course of argument
Gibbs J gave what with respect seems to me to be an illuminating example of the
rare and exceptional kind of case in which an order removing a people from
their lawful homeland might indeed make for the territory's peace, order and
good government: it would arise where because of some natural or man-made
catastrophe the land had become toxic and uninhabitable. Short of an extraordinary instance of
that kind, 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. The people may be
taxed; they should be housed; laws will criminalise some of the things they do;
maybe they will be tried with no juries, and subject to severe, even brutal
penalties; the laws made for their marriages, their property, and much besides
may be far different from what obtains in England. All this is vouchsafed by the authorities. But that is not all the learning
gives. These people are subjects
of the Crown, in right of their British nationality as belongers in the Chagos
Archipelago. As Joseph Chitty said
in 1820 (A Treatise on the law of the Prerogatives of the Crown and the
Relative Duties and Rights of the Subject, pp 18, 21), the Queen has an
interest in all her subjects, who rightly look to the Crown, today, to the rule
of law which is given in the Queen's name, for the security of their homeland
within the Queen's dominions. But
in this case they have been excluded from it. It has been done for high political reasons: good reasons,
certainly, dictated by pressing considerations of military security. But they are not reasons which may
reasonably be said to touch the peace, order and good government of BIOT, and
in my judgment this is so whether the test is to be found in our domestic
public law, exemplified by the Wednesbury doctrine or in a more, or
less, intrusive approach. In
short, there is no principled basis upon which section 4 of the Ordinance can
be justified as having been empowered by section 11 of the BIOT Order. And it
has no other conceivable source of lawful authority.
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58 The
respondents' position is not, I think, bettered by the consideration (see
paragraph 7 above) that the Ilois owned no real estate on the islands, which
until 1967 were in private hands.
That cannot affect the position in public or constitutional law. Nor can the making of any monetary
compensation.
59 In my
judgment, for all these reasons, the apparatus of section 4 of the Ordinance
has no colour of lawful authority.
It was Tacitus who said "They make a desert and call it
peace": "Solitudinem faciunt pacem appellant" (Agricola
30). He meant it as an irony, but
here, it was an abject legal failure.
The government's motives
60 Sir Sydney
advanced a further argument to the effect that section 4 of the Ordinance was
made for an ulterior motive. He
submitted it was done as it was done not only to facilitate the base on Diego
Garcia (itself an impermissible purpose, given section 11 of the BIOT Order),
but also to keep the whole business as secret as possible, having regard to the
concerns of the British government as to the possible scrutiny to which their
intentions might be subjected by the United Nations. It is in part out of respect to this argument that I have
set out in detail the course of the government's approach to the establishment
of the military base in the years leading up to 1971. However, I would not hold that the applicant is entitled to
succeed on this ground so far as it is put forward as a freestanding head of
challenge. If the vires of section
11 of the BIOT Order were as wide as Mr Pannick contended, I conceive that what
was done would have been justified in law; in particular, the dictates of the
desired military base would have fallen within section 11 of the BIOT Order. The desire for secrecy would have been
ancillary, not separately objectionable.
Prerogative or statute?
61 In light of
the conclusions which I have reached, the question whether and how the result
sought to be achieved by section 4 of the Ordinance might lawfully have been
arrived at is perhaps moot. Could
it be done by exercise of the royal prerogative, or only by Act of the United
Kingdom Parliament? It is a
question to which I have twice said I will return, but I will express my view
shortly. Although as I would hold
(see paragraph 52) the British Settlements Act 1887 does not apply to this case
so that the power to legislate for BIOT derives from the royal prerogative, I
entertain considerable doubt whether the prerogative power extends so far as to
permit the Queen in Council to exile her subjects from the territory where they
belong. I have in mind those
passages in Blackstone's Commentaries, vol 1, p 137 and Chitty's
Treatise, pp 18, 21, and the argument of Dr Plender in International
Migration Law, ch 4, p 133, to which I have referred in paragraph 39. There is
unexplored ground here: it would be one thing to send a Chagos belonger to
another part of the Queen's dominions, and quite another to send him out of the
Queen's dominions altogether. I
would certainly hold this latter act could only be done by statute. Now, of course, Mauritius is an
independent state.
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Conclusion
62 For all the
reasons I have given I would allow the application. If Gibbs J agrees, we will hear argument as to the relief to
be granted. I apprehend it will be
appropriate merely to quash section 4 of the Ordinance.
63 At the end,
I wish to commend the wholly admirable conduct of the relevant government
servants and counsel instructed for the respondents who have examined and then
disclosed without cavil or argument all the material documents contained in the
files of government departments, some of which (as will be obvious from the
narrative I have given) are embarrassing and worse. This has exemplified a high tradition of co-operation
between the executive and the judiciary in the doing of justice, and upholding
the rule of law.
GIBBS J
64 I have read
the judgment of Laws LJ and respectfully agree with his conclusions as well as
the comprehensive and authoritative analysis which led to those
conclusions. I add a few brief
words of my own because of the importance of the case to those involved.
65 It is
beyond argument that the purposes of the BIOT Order and the Ordinance were to
facilitate the use of Diego Garcia as a strategic military base and to restrict
the use and occupation of that and the other islands within the territory to
the extent necessary to ensure the effectiveness and security of the base. Those purposes were, or could at least
reasonably be described as, of great benefit to the United Kingdom and the
western powers as a whole. The
applicant acknowledges this.
66 For the
reasons given in paragraphs 49 and 52 of his judgment, I agree with Laws LJ
that the power to enact these measures does not derive from the British
Settlements Act 1887, but rather from the exercise of royal prerogative. The measures came into being as the
direct result of advice given to the Crown by ministers of the United Kingdom
government in order to achieve the purposes referred to in the preceding
paragraph. The Commissioner and
other officials to be appointed under the Order were effectively agents of the
Crown under the control and direction of the Secretary of State.
67 Upon this
analysis of the real purposes of the legislative scheme which created the
Ordinance, it becomes plain that it concerned the furtherance of the interests
of the United Kingdom by the Crown acting through the Secretary of State of the
United Kingdom government. That is
the context in which the submission that the interpretation of the Ordinance is
an internal matter for the courts of BIOT to the exclusion of the Queen's Bench
Division falls to be considered.
Thus considered, it becomes unreal. I therefore agree with the reasoning
and conclusions set out in paragraphs 21 to 29 of Laws LJ's judgment.
68 This court
thus has jurisdiction to review the legality of the BIOT Ordinance, in
particular whether it was ultra vires the BIOT Order, section 11. If Magna Carta had applied to people
such as the applicant, I might have found assistance in the provisions of
Chapter 29 in interpreting the legality of the Ordinance, at least in the
resolution of any doubts on the point. However, for the reasons discussed by
Laws LJ at paragraph 50 of his judgment, I would hold that BIOT is a
"ceded" rather than a "settled"
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colony. On the basis of this, admittedly in
modern context, arcane distinction I accept the respondent's submission that
Magna Carta cannot be relied on in support of the application.
69 The crucial
question on the legality of the Ordinance is whether it can reasonably be
described as "for the peace, order and good government" of BIOT. In the case law cited, the
interpretation of that expression most favourable to the respondents is that
they "connote, in British constitutional language, the widest law-making
powers appropriate to the sovereign": see Ibralebbe v The Queen [1964] AC
900, 923. I am unable to accept
that those words, even from such an authoritative source, compel this court to
abandon the ordinary meaning of language, and instead to treat the expression
"for the peace, order and good government" as a mere formula
conferring unfettered powers on the Commissioner.
70 The
respondents' case has to be that the expression used in the enabling BIOT Order
is wide enough to include a measure which could and did compel the detention of
the citizens of that territory who enjoyed a public law right to live there,
and the removal and permanent exclusion of such people from the territory
without their consent. The public
law rights of these people derived from their status as citizens of the United
Kingdom and colonies. Their rights of citizenship attached particularly to
BIOT.
71 Each of the
words "peace", "order" and "good government" in
relation to a territory necessarily carries with it the implication that
citizens of the territory are there to take the benefits. Their detention, removal and exclusion
from the territory are inconsistent with any or all of those words. To hold that the expression used in the
Order could justify the provisions of the Ordinance would thus in my judgment
be an affront to any reasonable approach to the construction of language. I conclude therefore that the Ordinance
was unlawful.
72 The
Ordinance was, on the other hand, entirely consistent with the purposes
mentioned in paragraph 65 above, but that is another matter. It is clear from some of the disclosed
documents that, in some quarters, official zeal in implementing those policies
went beyond any proper limits. It
would be no answer to say that these documents reflected the standards of a
different period. I venture to
think that the impression on right thinking people upon reading them would have
been similar, then as now. The
respondent does not seek to excuse them, and is to be commended for that, as
well as for the openness with which disclosure of and access to all relevant
documents have been afforded. I
associate myself expressly with paragraph 63 of Laws LJ's judgment.
|
Application
granted with costs. Section
4 of 1971 Ordinance quashed. Permission
to appeal granted. |
Solicitors:
Sheridans; Treasury Solicitor.
Reported by Sharene P Dewan, Barrister
Lawtel 8/11/2000, Times L. Rep. 10/11/2000, [2001] ACD 101, [2001]
ACD 18, [2001] 2 WLR 1219