Monday, 27 June 2016

The Chagos Islands

On Wednesday 29th June the Supreme Court will hand down judgment in R (Bancoult - No.2 v Secretary of State for Foreign and Commonwealth Affairs) - (2015 UKSC 0021).  The appellant, Mr Louis Olivier Bancoult, seeks to overturn a 2008 judicial decision of the House of Lords.

The British Indian Ocean Territory (Constitution) Order 2004 was made, using prerogative powers, by the Privy Council.  Section 9 of the Order was challenged by way of judicial review in the High Court (Hooper LJ and Cresswell J) and that court held it to be invalid.  Section 9 removed any right of abode for the Chagossian people (and for any others) in the Chagos Islands.   The Court of Appeal (Civil Division) - Sir Anthony Clarke MR, Waller and Sedley LJJ - affirmed the High Court's decision.   The House of Lords reversed the decision by a 3 to 2 majority and held section 9 to be valid.  Lords Hoffman, Rodger and Carswell were the majority and Lords Bingham and Mance were in the minority.

both Lord Clarke and Lord Mance are now Justices of the Supreme Court.

The issue before the UK Supreme Court is whether the judgment of the House of Lords should be set aside on the alleged ground of material non-disclosure by the Secretary of State and, if so, whether the appellant should be permitted to adduce fresh evidence at the rehearing of the appeal.

The constitution of the Supreme Court hearing the appeal is Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke.  (Lord Mance sat in the House of Lords on the earlier appeal and Lord Clarke sat in the Court of Appeal when he was Master of the Rolls).


It is interesting to note that the Supreme Court heard argument on 22nd June 2015.  Therefore, it has taken over a year for the court arrive at its judgment. 

For those who wish to delve into the depths of constitutional law, there is much in the House of Lords 2008 judgment about prerogative powers and foreign affairs.  The right of the Privy Council to make law such as the Constitution Order 2004 is not in doubt.  Nevertheless, at a time when much has been said about the European Union lacking in democracy, it is interesting that such a sweeping power exists and operates outside normal Parliamentary process.

The Guardian 26th June 2016


The Supreme Court's judgment is available here.  The Supreme Court dismisses the appeal by a majority of 3 to 2. Lord Mance gives the majority judgment, with which Lord Neuberger agrees. Lord Clarke gives a separate judgment, concurring with Lord Mance.  Lord Kerr gives a dissenting judgment, with which Lady Hale agrees in a separate dissent.

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