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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bancoult, R (on the application of) v Secretary Of State For Foreign & Commonweal Office  EWHC 413 (Admin) (3 November 2000)
Cite as:  QB 1067,  EWHC 413 (Admin),  2 WLR 1219
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QUEENS BENCH DIVISION
(THE ADMINISTRATIVE COURT)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GIBBS
| THE QUEEN
SECRETARY OF STATE FOR THE
FOREIGN AND COMMONWEALTH OFFICE
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
David Pannick QC, Philip Sales, Cecilia Ivimy (instructed by Treasury Solicitors for the Respondents)
Crown Copyright ©
LORD JUSTICE LAWS:
"3. As from the date of this Order -
(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."
S.8 empowers the Commissioner to authorise a delegate to discharge functions of his as may be specified. S.8(3) authorises the Queen acting through a Secretary of State to vary or revoke any such authorisation. S.10:
"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 likewise -
(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.
S.11 of the BIOT Order is of critical importance to the central arguments in the case. So far as relevant it provides:
"(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."
"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."
Ss.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 "unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law and with all powers, privileges and authority which is vested in or capable of being exercised by the High Court of Justice in England" (BIOT Ordinance No. 3 of 1983, s.6). 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.
"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)."
"(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.
(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."
"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..."
S.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
"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.
"… 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."
"In his telegram No 977 Sir P[atrick] 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 connexion with our proposal for placing the various territories concerned under direct UK administration, he draws attention to paragraph 6 of Resolution No 1514 (of December 14, 1960) which reads:-
'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.'"
"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.
"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 there is a Foreign Office memorandum which states:
"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 (cf. The British Antarctic Territory)."
"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' - in other words, let's forget about this one until the United Nations challenge us on it."
"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 [who had visited the islands] 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…
And 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 [sc the Colonial Office] 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 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 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 they fell within the perview [sic] 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 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 another official, a Mr 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 that has been done I agree we must be very tough and a submission is being done accordingly."
14 A document 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.
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 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 on 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."
"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 U.K. and Colonies and they are all entitled to a U.K. passport with the colonial endorsement;
(b) [deals with the Seychellois living in BIOT, who were "unlikely to exceed 1,000"]
(c) some 500 others (including the 434 second generation 'Ilois') have dual nationality. If they applied for a U.K. passport, presumably the colonial endorsement could only reveal that they belonged to BIOT since there was no other British colony to which they could belong." (my emphasis)
"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 [NB: as I understand it, it still has not] and thus we do not regard the U.K. 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)
"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…
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…
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 indicating the Prime Minister's agreement.
"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 by a paragraph 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 population."
"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."
"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 v AG  1 QB 273, 290B (the case's context, I think, adds nothing): "If the Crown exceeds its jurisdiction over a colony, its conduct can be challenged in these courts". Now, the statement of the Lord Chief Justice 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 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's statement in Cowle (404): "That must be taken with considerable qualification. Those terms are very general." At 405, also in the argument, he said:
"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 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, "Can we issue a certiorari to bring up the proceedings of a court abroad?" Counsel answered (405-406):
"A habeas corpus has been issued to Canada; In re Anderson (7 Jur. N.S. 122): and a habeas corpus or certiorari will go to St Helena; Ex parte Lees (E. B. & E. 828; 5 Jur. N. S. 333). 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 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 (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 Lieutenant Allen's Case (7 Jur. N. S. 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 Re Anderson (7 Jur. N. S. 122), 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 may 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 parte Lees (E. B. & E. 828; 5 Jur. N. S. 333); 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, 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 this (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…"
"… it is clearly stated in the quotation from Bacon's Abridgement and the Commentaries of Sir William Blackstone… 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 Mwenya itself] proceeded to refer also to the passages from Lord Mansfield in Rex v Cowle… 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)]… '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 parte Anderson [(1861) 3 E . & E. 487) that the writ of habeas corpus might be issued to 'all parts of the dominions of the Crown of England'…
Lord Evershed proceeded to cite Lord Cockburn's judgment in Anderson, but with respect I need not set out the passage. At 306 Romer LJ said this:
"... 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's case Lord Mansfield used language which, if taken at its face value, is inconsistent with the Crown's contention. Vaughan Williams LJ, in Sekgome's case [[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 at 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 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 Rex v Cowle, 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 [sc. in Sekgome at 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'."
"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 December 5, 1908. 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."
"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 ss.2 and 3 of the Colonial Laws Validity Act 1865 ("the 1865 Act"). S.2 bears the cross-heading "Colonial laws, when void for repugnancy"; s.3, "Colonial laws, when not void for repugnancy". S.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 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."
"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 s.2, is by s.1 an Act which is "made applicable to such colony by the express words or necessary intendment of any Act of Parliament".
"... 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 the Magna Carta. The reasoning in Staples is nothing to the contrary.
"It is submitted that the 'law of the land' [sc. in Cap. 29 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 s.4 of the Ordinance could not lawfully be done by executive discretion, with no sure foundation in legislation, 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 St 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.
"... 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 the Magna Carta today. So far as it is a proclamation of the rule of law, it may indeed be said to follow the flag - certainly 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 s.4 of the Ordinance lies within it. To these questions the Magna Carta does not provide the answer.
The 'Witham' principle
"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." (581E-F)
Rose LJ said:
"There is nothing in the section (sc. s.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." (587A-B)
I should also cite this passage from Lord Hoffman's speech in Ex p. Simms  3 WLR 328, 341:
"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."
"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, Prerogatives of the Crown (1820), pp. 18, 21. Plender, International Migration Law (revised 2nd edn 1988) states at p. 133 "The principle that every State must admit its own nationals to its territory is so widely accepted that its existence as a rule of law is virtually beyond dispute"; and cites authority of the European Court of Justice in Case 41/74, Van Duyn v Home Office 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". Plender further observes at p. 135: "A significant number of modern national constitutions characterise the right to enter one's own country as a fundamental or constitutional 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.
"The first argument starts with a judgment of Lord Mansfield LCJ. 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's statement, their Lordships in Liyanage continued (284B-285B):
"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 ("The Statute of Westminster and Dominion Status" by K. C. Wheare [the 4th edn, pp, 75, 76, 77 are referred to in a footnote to the report. Sir Kenneth Wheare was a distinguished Rector of Exeter College Oxford]). That 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' (s.2) and that they should not be void or inoperative on the ground of repugnancy to the law of England (s.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.' ('The Sovereignty of the British Dominions' by Prof. Keith [the footnote refers to an edition of 1929, 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."
The Legal Nature of s.4 of the Ordinance
(1) The Commissioner - Agent/Delegate?
"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
"We are satisfied 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: S.11 of the BIOT Order
(4) The British Settlements Act 1887
"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."
S.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..."
(5) "Peace, Order, and Good Government"
"... 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 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 [sic] 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."
"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."
And at 235:
"The judgment of Lord Macmillan [sc. in Croft v Dunphy  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..."
The Legality of the Ordinance
The Government's Motives
Prerogative or Statute?
MR JUSTICE GIBBS:
LORD JUSTICE LAWS: For the reasons given in the judgments of which counsel have had copies in draft this application is allowed in principle. We will hear anything that counsel desire to say as to relief.
May I add an apology that the judgment has taken longer than I had hoped, that was because of various excursions and alarms over the summer into which it is neither useful nor necessary to go. Sir Sydney?
SIR SYDNEY: My Lord, I have handed up for placing before your Lordships a draft order which I would ask your Lordships to give --
LORD JUSTICE LAWS: You have it, Mr Pannick?
MR PANNICK: Yes, I do. I received it yesterday afternoon.
SIR SYDNEY: My Lord, in the first place I ask for a declaration in these terms:
"It is declared that section 4 of the Immigration Ordinance, 1971, of the British Indian Ocean Territory is invalid and void."
And an addition following your Lordships' draft judgment:
"And the said section 4 is hereby quashed."
I would ask also for a second declaration in a positive form:
"It is declared that the Applicant, as a British Dependent Territory Citizen, connected to the British Indian Ocean Territory, is entitled to return to and to remain in the British Indian Ocean Territory."
Thirdly, I ask for costs, including the costs of three counsel.
As your Lordship will see from the fourth order sought, that is an order for legal aid taxation, the applicant's case has been legally aided and, of course, it might be said that such an order takes money out of one public pocket and into another.
LORD JUSTICE LAWS: And they are very jealous of their individual pockets.
SIR SYDNEY: Indeed, my Lord, and the budget of the Legal Aid Commission is not an unlimited one. I submit that there is no reason why costs should not follow the event.
My Lords, the fifth order I ask for is:
"The application for further relief be adjourned sine die with liberty to apply."
The reason for that, my Lord, is the following. As your Lordships were made aware in the course of the hearing and through the affidavits, many of the Ilois, many hundreds of them in the similar position to that of Mr Bancoult, are indeed in a parlous and pitiable condition. Many are unemployed, and for some reason the Ilois do not qualify for unemployment pay in Mauritius nor for pensions. As your Lordships also know, there are some hundreds of civilian workers who are employed on Diego Garcia. But again for some reason, which your Lordships can guess at, the Ilois have not been regarded as eligible for those positions.
My Lord, the present British government, I think I am entitled to say, is by no means unsympathetic to the plight of these people. Your Lordships would have seen from the last sets of affidavits that Her Majesty's Government arranged and financed a feasibility study on the possibility of resettling the Ilois in the island. They did that, of course, without prejudice to their legal contentions and without making any concessions.
LORD JUSTICE LAWS: Yes.
SIR SYDNEY: We have been informed, my Lord, that the second stage of the feasibility study has now been authorised by the Foreign and Commonwealth Office. How far it has got we do not know. We have no doubt at all that the Foreign and Commonwealth Office will be prepared to enter into discussions with those who represent the Ilois. Of course one cannot forecast what will come of those discussions, but I have no doubt that those discussions would take place as they have in the past, again without any prejudice to any right of appeal which the respondents may seek.
It is for that reason, my Lord, that we would ask for this adjournment of any application for further relief. It may be quite unnecessary. One hopes so. But it may be, my Lord, that arising out of what happens some further declaratory relief might be sought.
LORD JUSTICE LAWS: Sir Sydney, with deference to you and speaking entirely for myself - we obviously have not consulted - I would gravely doubt whether that is appropriate for two reasons. First of all, it is not this Court's role to act as a continuing policeman over negotiations between the government and those representing the Ilois people in case of some undefined further dispute. I notice that your Form 86A - and sometimes tight procedures are of assistance - only challenges the Immigration Ordinance and the policy by which the applicants were excluded from returning to the Territory under the Immigration Ordinance. That seems to me to confine the matter to all the points about section 4 of the 1971 Ordinance. Whether your client or others amongst the Ilois people might have occasion for some future and separate judicial review is another question, nothing to do with us today.
SIR SYDNEY: My Lord, so be it. That was my application.
LORD JUSTICE LAWS: Yes, I understand. As regards the balance of the draft order, Sir Sidney, without wishing to be tedious, I think Legal Aid Taxation is called something different now; but that is mechanics.
SIR SYDNEY: Yes.
LORD JUSTICE LAWS: We will hear Mr Pannick lest he wish to say something about costs. But looking at numbers 1 and 2 I do not see any particular difficulty with 1, but I would have thought that our judgments, as it were, declare the position and the only relief that is required under 1 would be an order of certiorari to quash the order.
SIR SYDNEY: That is so, my Lord. 2 is a logical and legal deduction from 1. Whether it is necessary or not I would submit, my Lord, that it is a useful declaration.
LORD JUSTICE LAWS: There may be other matters which are not before us that could intrude into the correctness
of 2, I do not know. Let me see what Mr Pannick says about that and the draft order at large.
MR PANNICK: Thank you, my Lord. Subject to a stay, on which I want to address your Lordships in a moment, I have no objection to a quashing order. I would submit that declaratory relief is unnecessary because your Lordships' judgment does speak for itself.
LORD JUSTICE LAWS: I am inclined to agree with that.
MR PANNICK. I would also be concerned, with respect, about declaration number 2 because it may be misleading because it may be misunderstood as suggesting that no steps may now be taken to amend the law consistently with your Lordships' judgment.
LORD JUSTICE LAWS: Mr Pannick, subject to anything Sir Sydney says in reply and subject of course to my Lord's views, for my part I would not give declaration 2. I think we are provisionally agreed as to that.
MR PANNICK: I am grateful. I would invite your Lordship to grant a quashing order as the only relief that is needed, your Lordships' judgment speaking for itself, subject to this: we respectfully seek a stay of the quashing order. That is because in the period until an appeal can be heard, either with the permission of your Lordships or with the permission of the Court of Appeal, we are concerned about persons arriving at the Islands and seeking to enter on the basis that there is no valid Ordinance. We draw attention to two particular exceptional features of this litigation that we say make a stay appropriate. The first is that your Lordships have accepted that the United Kingdom is entitled to regard the military base as fundamental to western security, consistent with the Treaty obligations which we have.
LORD JUSTICE LAWS: That was just an acceptance of the evidence before us.
MR PANNICK: Indeed. Your Lordships have not quarrelled with that and indeed my friend did not quarrel with it either.
LORD JUSTICE LAWS: Indeed not.
MR PANNICK: The other factor of which I remind your Lordships of is that there is no great urgency so far as this applicant is concerned, or indeed anyone else, because many years have already passed before this litigation was commenced. In the light of that, given that we of course would give any undertaking that your Lordships would request as to taking all the steps by way of expedition to ensure that the matter is brought on before the Court of Appeal either by way of a substantive appeal or, if your Lordships refused permission, by way of an application to the Court of Appeal for permission, we would respectfully say that this is an appropriate case for a stay on the quashing order because of practical problems that are otherwise inevitably going to arise.
LORD JUSTICE LAWS: I understand.
MR PANNICK: That is my submission.
LORD JUSTICE LAWS: This is clearly linked with an application for permission to appeal which I assume you are about to make.
MR PANNICK: I am.
LORD JUSTICE LAWS: Let us deal with that as well.
MR PANNICK: I am grateful, my Lord. We do apply for permission to appeal. We apply on the very simple basis that the case raises important questions of law as to the scope of the Peace, Order and Good Government Clause in the light of the Privy Council authorities to which your Lordships have referred in the judgment, read in the context of modern constitutional law principles and also given that the power relates to the peace, order and good government of the territory. The relevance of that phrase, we say, is a matter that will need to be considered, and carefully considered, by the Court of Appeal. We say that these issues are quite simply, as my friend said in opening, of fundamental general importance in colonial law and also of fundamental importance to the future of BIOT, given the crucial role of the military base for the Western Alliance. I am not going to go into the matter in further detail - your Lordships are very familiar with the competing arguments - but we say this is plainly an appropriate case for permission to appeal.
My Lord, in relation, if I may, to items 3, 4 and 5, would it be convenient --
LORD JUSTICE LAWS: I was going to invite you to deal with them now,
MR PANNICK: My Lord, in relation to costs we have no objection to costs of three counsel. This is plainly an appropriate case for three counsel. We would submit that the applicant should not recover all of their costs: they should recover a proportion of their costs.
LORD JUSTICE LAWS: They lost on some quite substantial points.
MR PANNICK: They have. They lost on, for example, Magna Carta, the Witham principle, the Government's motives, on which a great deal of the documentation and the oral argument was focused --
LORD JUSTICE LAWS: Yes.
MR PANNICK: -- and, less significantly, the British Settlements Act point. It is entirely a matter for your Lordships what proportion of their costs they ought to have in the light of the way in which your Lordships have determined all of the argument.
LORD JUSTICE LAWS: The spirit and the letter of the new rules tend to promote split orders more closely allied to the results of the case, does it not?
MR PANNICK: The modern practice in the Civil Procedure Rules, as your Lordships are well aware, is not to proceed on a 'winner take all' basis but rather to seek to apportion costs according to the amount of the time, both in preparation and in oral argument, taken up on successful arguments for the applicant. It is a matter for your Lordships' judgment - I can make a suggestion, but it is not going to help - what is appropriate in the circumstances.
LORD JUSTICE LAWS: Yes.
MR PANNICK: My Lords, order 4 is not controversial.
LORD JUSTICE LAWS: No.
MR PANNICK: Order 5, I do submit that that is inappropriate.
LORD JUSTICE LAWS: Forgive me a moment, Mr Pannick. We are not inclined to make in terms of 5.
MR PANNICK: I am grateful. Unless I can assist on any other matters that is what I say.
LORD JUSTICE LAWS: I am very grateful, Mr Pannick.
Sir Sydney, permission to appeal, stay and apportionment of costs are the three matters, unless you wish to say anything in reply about the points as to the form of relief.
SIR SYDNEY: Yes. My Lords, declaration 2 is simply explanatory, no doubt, of your Lordships' judgment. I do submit as far as point 1 is concerned that in addition to the quashing order a declaration is a useful form of relief. It explains why section 4 is hereby quashed.
My Lords, with regard to the application for permission to appeal, much as I am tempted to say that it is difficult to imagine any other court in this country finding what was done to the Ilois people to have been lawful, the precise basis on which that may be found no doubt does raise important questions of law and as far as we are concerned that is simply a matter we leave to your Lordships. The case is obviously one of very great importance.
My Lords, with regard to the stay, it is very difficult, with all respect to my friend, to understand what the basis is of the stay. Ordinarily, my Lords, a stay pending appeal is granted by the court when, if execution proceed, the party who wishes to appeal will lose his appeal, lose the value of his appeal, it will be (inaudible) with him or he may be ruined pending appeal if execution proceeds. In this case my learned friend has made out no case for any harm that may be suffered if this order of your Lordships stands pending appeal.
LORD JUSTICE LAWS: One can understand, I would have thought with very little difficulty, the kind of pragmatic problems that could arise if numbers of people, perhaps quite significant numbers, were in the very near future to arrive in the Archipelago before any appeal, if there is to be one, is determined.
SIR SYDNEY: My Lord, this Archipelago is 1200 miles from Mauritius.
LORD JUSTICE LAWS: That is true.
SIR SYDNEY: There is no shipping line that goes there. The only airfield is the military one, and the idea that hundreds of people pending appeal are going to descend on the Island is simply fanciful.
LORD JUSTICE LAWS: I was forgetting the distances, yes.
SIR SYDNEY: What is more important, I would respectfully submit, is that your Lordships having reached a conclusion, that that conclusion should be expressed and should stand unless and until it is set aside on appeal.
My Lords, there is in any event a considerable conceptual difficulty in a stay of this sort of order. Your Lordships' judgment cannot be stayed. Your Lordships have found in whatever form the order is that section 4 of the Ordinance is ultra vires and void. As Lord Diplock said in the Hoffmann case, 1975: if it is ultra vires it is simply void for all purposes. And that is what your Lordships have found. If the order for quashing is stayed, that does not alter the effect of your Lordships' judgments. Your Lordships have said this is ultra vires and void.
LORD JUSTICE LAWS: With great deference, I do not agree with you as to the conceptual question. The effect of a stay is that the court is saying its judgment will not yet take effect and the court has a jurisdiction to create that state of affairs.
SIR SYDNEY: Yes. Your Lordship says that no order takes effect, but your Lordships have given a judgment, which on the ordinary doctrine of precedent would be followed by any other court. Supposing Mr Bancoult did go to the Island and there was action taken against him he could have as a defence your Lordships' judgment that this is not a proper section 4.
In so far as leaving a gap in the law is concerned if section 4 goes completely, and after all your Lordship knows we asked for it to be quashed only in so far as it affects belongers in BIOT, but if the Commissioner for BIOT is not in court he is less than a mile away in Whitehall and by tomorrow he could have made and promulgated a valid section 4 in the light of your Lordships' judgment. So, my Lords, I do submit that there is no case made out for staying this order.
My Lords, on the question of costs, with all respect to my friend, in this case his request for a disallowance of some our costs is somewhat niggly.
LORD JUSTICE LAWS: Here you are the advocate for what used to be called the Legal Aid Fund.
SIR SYDNEY: The Legal Aid Commission. But there is a matter of principle here. The respondents fought this case throughout. They resisted any relief. They contested the jurisdiction. They contested the joinder of the Secretary of State.
LORD JUSTICE LAWS: Yes.
SIR SYDNEY: My Lords, the citizenship of Mr Bancoult was accepted at the outset, but the status of Mr Bancoult and the other Ilois as belongers was never accepted, either in the letters before action or in the affidavits. The whole case for Mr Bancoult and the Ilois had to be proved up to the hilt. What that meant was that they had to show their birth certificates, to put in the evidence about residence, schools and churches.
My Lords, it was contended in the affidavits, your Lordships might remember, that Her Majesty's Government was not responsible for the removal. Your Lordships will recall that in the course of his argument on the Tuesday afternoon of the case my learned friend submitted that the applicant had left voluntarily. It was said time and again in the affidavits that the Ilois had not been forced to leave by the British Government, that they had simply lost their jobs because Mr Moulinie had ceased running his plantation. My Lords, that required answering evidence, including a strong affidavit from Mr Moulinie, in which he said that was not so.
LORD JUSTICE LAWS: For my part I would accept all of this, Sir Sydney. The only question is whether you should get something less than 100% to reflect the fact you did not succeed on whether the Magna Carta applied and so on.
SIR SYDNEY: I am coming to that, my Lord.
But my learned friend spoke about the 'costs of preparation', not simply the costs of the hearing. In my submission, every part of our affidavits was necessary. My learned friend, for example, has referred to the evidence in all the documents that came up and which he said were relevant to motive, which your Lordships found in effect unnecessary to deal with, but that evidence of everything that happened would have had to be there in any event, firstly as a background, secondly, as helping to show that these people were belongers in BIOT, but most important, of the objection to the jurisdiction of an English court. Before Scott Baker J, when leave was applied for and before your Lordships and in all the affidavits, the jurisdiction of this court was disputed. Those affidavits and the taking of your Lordships through them and those documents were necessary in order to show what has been disputed throughout, namely that the relevant decisions were taken by the Foreign Office in London and not simply by the Commissioner. Those documents, my Lord, were completely relevant to the question of jurisdiction and to the question of the basis on which the Governor acted.
Similarly, my Lords, if I can come to the hearing on the question of the Magna Carta, I cannot recall to your Lordships just how many hours of argument were spent on it, but I respectfully remind you of your Lordships' judgment. Your Lordships did not say that the Magna Carta was irrelevant - far from it. Your Lordships did not say that the argument on the limits of the prerogative, the references to Maitland, to Blackstone, to Chitty were irrelevant. What your Lordships said was that Magna Carta could not be a complete foundation for my case because the Magna Carta itself had the words "unless provided by law". Your Lordships therefore went into the question of whether the Ordinance was a valid law.
LORD JUSTICE LAWS: Yes.
SIR SYDNEY: But your Lordships having found that it was not a valid law were in effect finding that, this not being a valid order for peace and good government, there was no basis in executive action or prerogative on which these people could be expelled. So, my Lords, I would submit that it is difficult to find anything in the affidavits or the argument which was unnecessary and which unduly lengthened the duration of a complex case.
My learned friend has spoken of, I think we all call it now, the Witham principles or the Witham point. Your Lordships found that that did not stand in colonial law against the Liyanage judgment. So be it, my Lords. But, nonetheless, in so far as Witham laid down that there are such things as fundamental rights of colonial law, that was not irrelevant to the argument, nor, I submit, irrelevant to your Lordships' finding. I really do submit that in a case like this, and particularly in the light of the history of the whole matter, this is not a case where a percentage only of the costs should be given. I submit it is a case for a full order of costs.
LORD JUSTICE LAWS: Thank you, Sir Sydney. Can I ask you one thing arising out of something that you said in passing? It relates to the form of any order to quash the Ordinance. You indicated, I think, that you had in truth only sought an order to quash section 4 'so far as it affected the Ilois'. I must confess I had not in my mind the possibility of some limited order of certiorari. I would actually think it inappropriate, because what one then would be doing would be, as it were, rewriting section 4 for the Commissioner, which I do not --
SIR SYDNEY: That is so.
LORD JUSTICE LAWS: I think we quash in its entirety and the Commissioner makes another order. Mr Pannick, just while this is in our minds, do you have any observation?
MR PANNICK: I respectfully agree, my Lord. I do not see a blue pencil test can be applied in this context and that is one reason why I am concerned to apply for a stay.
LORD JUSTICE LAWS: Thank you. I understand.
SIR SYDNEY: My Lord, as I said, my learned friend's second client, the Commissioner, in his office can make a proper section 4 very easily within hours. But it was partly for that reason that I had suggested that declaration 2 was of some use because it emphasises that the entitlement to return and to remain flows from his citizenship and particular connection.
My Lords, those are my submissions.
LORD JUSTICE LAWS: I am very grateful to you, Sir Sydney. We will rise just to consider these various consequential points.
(The court adjourned for a short time.)
LORD JUSTICE LAWS: The decisions and orders which we make in light of the argument we have heard this morning are as follows:
First, there will be an order of certiorari to quash section 4 of the BIOT Immigration Ordinance 1971.
Second, the respondents are to have permission to appeal to the Court of Appeal.
Third, there will be a stay upon the effect of the order to quash for seven days. If the respondents desire a longer stay they must ask the Court of Appeal.
Fourth, the applicants will have an order for the whole of their costs of the proceedings.
Fifth, there will be an order for a detailed assessment of the applicant's costs for the purposes of the Legal Aid Commission.
I think that is everything. No other orders are made by way of relief.
MR PANNICK: Thank you, my Lord.
LORD JUSTICE LAWS: We are both very grateful to counsel in this highly unusual and very important case for the quality and interest of the arguments to which we listened in July.
MR PANNICK: Thank you.
Note 1 This inelegant word has become something of a term of art, and I must discuss its meaning when I come to the law. [Back]
Note 1 This inelegant word has become something of a term of art, and I must discuss its meaning when I come to the law. [Back]