R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2) [2008]
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R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2) [2008] UKHL 61, commonly known as Bancoult (No 2) case, is a landmark UK constitutional law case decided in the House of Lords. The case revolved around the removal of the Chagos Islanders and the exercise of the Royal Prerogative. The Chagos Islands, initially acquired by the United Kingdom in 1814, underwent reorganisation as the British Indian Ocean Territory (BIOT) in 1965, leading to the forced removal of its inhabitants, particularly the Chagossians.
In 2000, Olivier Bancoult initiated a judicial review against the Secretary of State for Foreign and Commonwealth Affairs, challenging the 1971 ordinance that facilitated the Chagossian removal. Bancoult argued that the ordinance was ultra vires, lacking legal authority. Both the Divisional Court and the Court of Appeal upheld this claim. Responding to the legal challenge, Foreign Secretary Robin Cook repealed the 1971 ordinance, allowing the Chagossians to consider returning home.
In 2004, a new Order in Council, the British Indian Ocean Territory (Constitution) Order 2004, reinstated restrictions on the Chagos Islands. Bancoult brought a second case, asserting that this new Order was ultra vires, unreasonable, and violated legitimate expectations created by the government's prior actions.
The case reached the House of Lords, where a 3–2 majority upheld the legality of the 2004 Order in Council. The Lords emphasised that, while Orders in Council could be subject to judicial review, issues related to national security and foreign relations limited the scope of such review. The majority found that legitimate expectations were not clearly established, and Foreign Secretary Cook's statement did not create an unambiguous promise.
The decision faced negative reactions, with academics accusing the majority of Law Lords of neglecting their role in addressing injustices and modernising legal standards. The approach to legitimate expectations was questioned, contrasting it with the more progressive stance in the Council of Civil Service Unions v Minister for the Civil Service case.
In 2015, Bancoult sought to set aside the judgment, alleging non-disclosure of a 2002 feasibility study related to the Chagossians' resettlement. The Supreme Court, in R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs (2016), ruled against reviewing the case, further cementing the legal outcome.
The Chagos Islands, initially occupied by slaves and later transformed into the BIOT, became a focal point for geopolitical decisions, particularly regarding the establishment of a US military outpost on Diego Garcia.
The legal journey began in 2000 with Bancoult's initial challenge (No 1), culminating in the Divisional Court quashing the 1971 ordinance. Foreign Secretary Cook's response included the repeal of the ordinance and considerations for Chagossian return.
Following the Divisional Court's decision, the government issued the Immigration Ordinance 2000. A feasibility study in 2002 concluded against resettlement, influencing the government's decision to prevent the Chagossians' return through the 2004 Order.
The Divisional Court and Court of Appeal, in Bancoult's second case, emphasised the court's authority to review Orders in Council. However, the House of Lords' majority, while acknowledging such review, underscored limitations, emphasising the political and national security nature of the case.
Bancoult holds significance as a case addressing legitimate expectations and judicial review of Orders in Council. Critics argued that the decision represented a regressive stance compared to prior cases and questioned the Lords' commitment to adapting constitutional principles to contemporary standards.
The Bancoult (No 2) case, with its complex legal journey and intricate constitutional issues, remains a notable chapter in UK constitutional law. The decision's impact on legitimate expectations, Orders in Council, and judicial review continues to shape discussions on the delicate balance between national security, executive powers, and individual rights.
In 2000, Olivier Bancoult initiated a judicial review against the Secretary of State for Foreign and Commonwealth Affairs, challenging the 1971 ordinance that facilitated the Chagossian removal. Bancoult argued that the ordinance was ultra vires, lacking legal authority. Both the Divisional Court and the Court of Appeal upheld this claim. Responding to the legal challenge, Foreign Secretary Robin Cook repealed the 1971 ordinance, allowing the Chagossians to consider returning home.
In 2004, a new Order in Council, the British Indian Ocean Territory (Constitution) Order 2004, reinstated restrictions on the Chagos Islands. Bancoult brought a second case, asserting that this new Order was ultra vires, unreasonable, and violated legitimate expectations created by the government's prior actions.
The case reached the House of Lords, where a 3–2 majority upheld the legality of the 2004 Order in Council. The Lords emphasised that, while Orders in Council could be subject to judicial review, issues related to national security and foreign relations limited the scope of such review. The majority found that legitimate expectations were not clearly established, and Foreign Secretary Cook's statement did not create an unambiguous promise.
The decision faced negative reactions, with academics accusing the majority of Law Lords of neglecting their role in addressing injustices and modernising legal standards. The approach to legitimate expectations was questioned, contrasting it with the more progressive stance in the Council of Civil Service Unions v Minister for the Civil Service case.
In 2015, Bancoult sought to set aside the judgment, alleging non-disclosure of a 2002 feasibility study related to the Chagossians' resettlement. The Supreme Court, in R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs (2016), ruled against reviewing the case, further cementing the legal outcome.
The Chagos Islands, initially occupied by slaves and later transformed into the BIOT, became a focal point for geopolitical decisions, particularly regarding the establishment of a US military outpost on Diego Garcia.
The legal journey began in 2000 with Bancoult's initial challenge (No 1), culminating in the Divisional Court quashing the 1971 ordinance. Foreign Secretary Cook's response included the repeal of the ordinance and considerations for Chagossian return.
Following the Divisional Court's decision, the government issued the Immigration Ordinance 2000. A feasibility study in 2002 concluded against resettlement, influencing the government's decision to prevent the Chagossians' return through the 2004 Order.
The Divisional Court and Court of Appeal, in Bancoult's second case, emphasised the court's authority to review Orders in Council. However, the House of Lords' majority, while acknowledging such review, underscored limitations, emphasising the political and national security nature of the case.
Bancoult holds significance as a case addressing legitimate expectations and judicial review of Orders in Council. Critics argued that the decision represented a regressive stance compared to prior cases and questioned the Lords' commitment to adapting constitutional principles to contemporary standards.
The Bancoult (No 2) case, with its complex legal journey and intricate constitutional issues, remains a notable chapter in UK constitutional law. The decision's impact on legitimate expectations, Orders in Council, and judicial review continues to shape discussions on the delicate balance between national security, executive powers, and individual rights.
