R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)
Court	House of Lords
Full case name	R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)
Decided	22 October 2008
Citation(s)	[2008] UKHL 61
Transcript(s)	BAILII transcript
Case history
Prior action(s)	Divisional Court ([2000] EWHC Admin 413) Court of Appeal ([2007] EWCA Civ 498)
Court membership
Judge(s) sitting	Lord Hoffmann Lord Bingham Lord Rodger Lord Carswell Lord Mance
Keywords
Royal Prerogative, legitimate expectation, Chagos Islands

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2) [2008] UKHL 61 is a UK constitutional law case in the House of Lords concerning the removal of the Chagos Islanders and the exercise of the Royal Prerogative. The Chagos Islands, acquired by the United Kingdom in 1814, were reorganised as the British Indian Ocean Territory (BIOT) in 1965 for the purpose of removing its inhabitants. Under a 1971 ordinance, the Chagossians were forcibly removed, and the central island of Diego Garcia leased to the United States for use as a military outpost.

In 2000, Olivier Bancoult brought a judicial review claim against the Secretary of State for Foreign and Commonwealth Affairs for the initial ordinance which led to the Chagossian removal. Bancoult sought a writ of certiorari on the grounds that the ordinance was ultra vires ("beyond power" – that is, that the ordinance had been made without legal authority), a claim upheld by both the Divisional Court and the Court of Appeal. In response, Robin Cook, the Foreign Secretary, repealed the 1971 ordinance and announced he would not appeal against the decision, allowing the Chagossians to return home.

In 2004, an Order in Council, the British Indian Ocean Territory (Constitution) Order 2004, was produced, again reinstating the off-limits nature of the Chagos Islands. Bancoult brought a second case, arguing that this Order was again ultra vires and unreasonable, and that the British government had violated legitimate expectation by passing the second Order after giving the impression that the Chagossians were free to return home.

The new Order was again struck down by the Divisional Court and Court of Appeal before proceeding to the House of Lords where it was heard by Lords Hoffmann, Bingham, Rodger, Carswell and Mance between 30 June and 3 July 2008. In their judgment, issued on 22 October 2008, the Lords decided by a 3–2 majority to uphold the new Order in Council, stating that it was valid and, although judicial review actions could look at Orders in Council, the national security and foreign relations issues in the case barred them from doing so. In addition, Cook's statement had not been clear and unambiguous enough to provide legitimate expectation.

The reaction to the decision was negative,^[1] with academics accusing the majority Law Lords of failing to do their job as members of the judiciary to "rework things like neo-imperial texts and outdated legal attitudes to the prerogative in order to cure obvious injustices and to vindicate a modern conception of the rule of law";^[1] at the same time, their approach to legitimate expectation was also questioned, with the case described as an "unfortunate regression" from Council of Civil Service Unions v Minister for the Civil Service, where judges were willing to debate legitimate expectation in a similarly politically sensitive situation.^[2]

In 2015 Bancoult went to court to argue that the judgment should be set aside due to the non-disclosure of a 2002 feasibility study relating to the resettlement of the former inhabitants of the Chagos Islands. The Supreme Court of the United Kingdom ruled against reviewing the case on 29 June 2016 (R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs).^[3]