IN THE SUPREME COURT OF JUDICATURE

ON APPEAL FROM THE DIVISIONAL COURT

(CROWN OFFICE LIST)

Lord Justice Laws:

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 - 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 1965 ("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 1971 ("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 s.4 of the BIOT Order. He made, or purportedly made, the Ordinance under powers conferred by s.11 of the BIOT Order. As a matter of fact he made it, as is effectively accepted by Mr David Pannick QC 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 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 Act of 1895 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 Ss.3 - 5 of the BIOT Order provide:

1. the Chagos Archipelago, being islands which immediately before the date of this Order were included in the Dependencies of Mauritius, and
2. 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,

 

 

1. make appointments, to be held during Her Majesty's pleasure, to any office so constituted; and
2. dismiss any person so appointed or take such other disciplinary action in relation to him as the Commissioner may think fit.

 

 

4 Lastly, s.19 of the BIOT Order provides:

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 QC 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:

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 re-constituted 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:

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 a 1966 Exchange of Notes (1/173), 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", prospective initiatives relating to the arrangements which would need to be made were well advanced. The document states:

11 In another 1964 document it is made clear that "[i]t 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 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 July 1965 the Foreign Office in London was saying:

1. 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;
2. [deals with the Seychellois living in BIOT, who were "unlikely to exceed 1,000"]
3. 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)

 

 

18 On 16 January 1970 a Foreign Office legal adviser, Mr Aust, gave written advice upon the question whether the then extant draft Immigration Ordinance should be enacted. His advice starts with this paragraph:

1. To provide legal power to deport people who will not leave voluntarily;
2. to prevent people entering;
3. to maintain the fiction that the inhabitants of Chagos are not a permanent or semi-permanent population.

 

 

He addresses (c) above by a paragraph headed "Maintaining the fiction":

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-a-vis each territory where its sovereign writ runs. The rule is supported by well-known authority: Mr Pannick cites R v FCO ex p. Indian Association of Alberta [1982] QB 892, Tito v Waddell (No 2) [1977] Ch 106, 255A-B, and R v SSHD ex p. Bhurosah [1968] 1 QB 266 ("In Mauritius the Queen is the Queen of Mauritius": 284E per Lord Denning MR).

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 vigour - save for this, and it is a factor we must bear carefully in mind: there 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's dictum in R v Cowle (1759) 2 Burr 834. The case concerned the jurisdiction of the Queen's Bench over doings in Berwick-on-Tweed; the details do not assist us. Lord Mansfield's judgment has great learning as to the status of Berwick, but I need only cite this passage at 855-6:

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 truth 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 belongs in reality. There is no authority at all - none in Mansergh - for the proposition that the existence of effective local courts negatives the jurisdiction of the Queen's Bench to issue certiorari extra-territorially. It may be that the reasoning in 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 - s.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 s.4 of the Ordinance constitutes an affront to the rights and liberties enshrined in Cap. 29 of Magna Carta (I cite the modernised text given in Halsbury's Statutes):

31 Sir Sydney's argument possesses a beguiling simplicity. It is that s.4 of the Ordinance is repugnant to Cap.29 of Magna Carta: the Ilois are by s.4 exiled from their homeland. Accordingly, s. 4 is "absolutely void" within the meaning of s.2 of the 1865 Act.

32 Mr Pannick was at first disposed to argue that the 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 the 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 the 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 the Magna Carta "followed the flag". That expression appeared in a judgment in the Canadian Supreme Court in Calder v AG of British Columbia (1973) 34 DLR (3rd) 145, where at 203 it was said that Magna Carta "had always been considered to be 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 FCO 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 R. 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 Court of Matabeleland, had been unlawfully deprived of the right to trial by jury, vouchsafed (so it was said) by Cap.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 s.12 of the Foreign Jurisdiction Act 1890 applied. S.12(1) and (2) of that Act are in substantially the same terms as ss.2 and 3 of the 1865 Act. Their Lordships stated (pp.2-3 of the Memorandum):

34 There were further points to be made as regards the incorporation or otherwise of the 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 the 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. The Magna Carta does not, as I understand it, curtail the sovereignty of the proper lawmaker to make what laws seem fit to him. Cap. 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 power - the vires - to 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 the Magna Carta.

35 Indeed, Sir Sydney does not submit that what was purportedly done by s.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 he submitted (p.11):

36 Accordingly the 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 s.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, the Magna Carta is in truth the first general declaration (I do not think it was done by King Alfred in the ninth century), in the long run of our constitutional jurisprudence, of the principle of the rule of law. I will only cite Pollock and Maitland, The History of English Law (2nd edn 1923), vol. I. p.173:

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, seductively enough, categorised it in the course of his argument.) The submission was that s.4 of the Ordinance could not lawfully be authorised by the general words of s.11 of the BIOT Order, any more than the Fees (Amendment) Order in Witham could be justified by the general words of s.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 Witham, as follows:

40 Now, Witham 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, Witham (and indeed Magna Carta) aside, there was any vires for s.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 s.11 of the BIOT Order, upon ordinary principles of construction and without the assistance of any special rule, failed utterly to empower the Commissioner to make s.4 of the Ordinance. If that submission is right, then of course he need have no recourse to 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 s.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" (Ibrelebbe [1964] AC 900, 923); and that this suffices to clothe s.4 with vires given by s.11. I very much doubt whether an appeal to 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 ss. 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 the case of Liyanage [1967] 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 that "the Ceylon Parliament is limited by an inability to pass legislation which is contrary to fundamental principles of justice" (283B). Their Lordships stated (283F-G):

43 So approaching the issue, I cannot see that Sir Sydney's appeal to constitutional principle as it was described in Witham can withstand the authority of Liyanage. 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 and Fundamental Freedoms. But 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. 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 Witham and like decisions do not assist the applicant.

The Legal Nature of s.4 of the Ordinance

(1) The Commissioner - Agent/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 s.4 of the Ordinance is valid irrespective of the terms of s.11 of the BIOT Order, and would be valid whatever happened to be stated in an enabling provision such as s.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 s.11(2) of the BIOT Order.

46 An important authority on the status of a colonial legislature is Burah (1878) 3 App Cas 889. The Privy Council there stated at 904:

(2) The Colonial Laws Validity Act 1865

47 Mr Pannick was also disposed at first to submit that the effect of ss.2 and 3 of the Colonial Laws Validity Act 1865 was that the making of a law by the Commissioner, here s.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 Burah which I have already set out. There is also authority of the Exchequer Chamber in Phillips v Eyre (1870) LR 6 QB 1, 20:

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, s.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 s.11, the boot of s.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. It is clear law that the Queen enjoys prerogative power to make laws for a ceded colony: Abeyesekera v Jayatislake [1932] AC 260, 264. But in relation to a settled colony legislative power is conferred on the Queen in Council by statute, the British Settlement Act 1887, and the Prerogative gives no authority to legislate in such a case: Sammut v Strickland [1938] AC 678, 701. S.6 of the Act of 1887 (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." S.2 provides in part:

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 s.11 of the BIOT Order gives him, delegate or no delegate. In addition, in the context of the argument relating to 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 s.15(1) of the BIOT Order) at the time of its creation. However all this may be, I have explained in paragraphs 34 - 36 why the argument based on the Charter does not advance the case, whatever one makes of the proposition that it "followed the flag" to BIOT.

51 Whether the Prerogative or the Act of 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 s.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 Act of 1887, the Queen's power of legislation is given and curtailed by s.2; which - like s.11 of the BIOT Order - has the formula "peace, order, and good government". If s.11 does not give the power to make a law like s.4 of the Ordinance, then neither, surely, does s.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 (paragraph 35) that I will return to this question.

52 I should say that in my judgment the Act of 1887 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 (p. 10) 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 s.11 of the BIOT Order empower s.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. Ex p. Riel (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 678:

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, 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 The Trustees Executors and Agency Co (1933) 49 CLR 220 Evatt J in the High Court of Australia stated at 234:

The Legality of the Ordinance

57 S.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 Chitty said in 1820, 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 s.4 of the Ordinance can be justified as having been empowered by s.11 of the BIOT Order. And it has no other conceivable source of lawful authority.

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 s.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 s.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 s.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 free-standing head of challenge. If the vires of s.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 s.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 s.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 (paragraph 52) the British Settlements Act 1887 does not apply to this case so that the power to legislate for BIOT derives from the 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 and Chitty, and the argument of Dr Plender, 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.

Conclusion

62 For all the reasons I have given I would allow the application. If my Lord agrees, we will hear argument as to the relief to be granted. I apprehend it will be appropriate merely to quash s.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.

Mr Justice Gibbs:

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 unarguable 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 paragraph 49 and 52 of his judgment, I agree with my Lord 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 21-29 of my Lord'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 s.11. If Magna Carta had applied to people such as the applicant, I might have found assistance in the provisions of Cap 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 my Lord at paragraph 50 of his judgment, I would hold that BIOT is a "ceded" rather than a "settled" colony. On the basis of this (admittedly in modern context) arcane distinction, I accept the Respondent's submission that the 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". (Ibralebbe 1964 AC 900 at p.923.) I am unable to accept that those words, even from such an authoritative source, compel this court of 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 Respondent's 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 my Lord's judgment.