Case Preview: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs
20 Monday Jul 2015
This case concerns whether the House of Lords’ judgment in R (Bancoult No 2) v Secretary of State for Foreign and Commonwealth Affairs  UKHL 61 should be set aside on the alleged ground of material non-disclosure by the respondent relating to the contents of a feasibility report into the resettlement of the former inhabitants of the British Indian Ocean Territory.
The British Indian Ocean Territory (“BIOT”), a dependency of Mauritius until it was ceded to the UK by France in 1814, is situated about 2200 miles east of the coast of Africa and 1000 miles south-west of the southern tip of India. It consists of a group of coral atolls known as the Chagos Archipelago of which the largest, Diego Garcia, has a land area of about 30km2. The islands’ indigenous population, known as Chaogossians, was a very small community of fewer than 1,000 people who lived in extremely simple lifestyle.
In the aftermath of the Cuban missile crisis, the United States identified Diego Garcia as a suitable location for a military base in the Indian Ocean. The UK Government acceded to this request and on 16th April 1971, the Commissioner of BIOT enacted the Immigration Ordinance 1971, No. 1 of 1971. Section 4 of the Ordinance made it unlawful for someone to be in BIOT without a permit. The Ordinance also empowered the Commissioner to make an order directing that person’s removal from BIOT. Between 1969 and 1973 the UK Government secured the removal of all Chagossians to Mauritius and the Seychelles.
The present proceedings should be viewed in the context of a broader campaign by the Chagossians to obtain UK Government support for their resettlement on the islands.
In November 2000, the High Court (Laws LJ and Gibbs J) gave judgment in favour of Mr Bancoult, a Chagos Islander, in granting a High Court order quashing the Immigration Ordinance 1971, s 4; see R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  QB 1067 (“Bancoult (1)”). Having decided that the court had jurisdiction to consider the issue, Laws LJ and Gibbs J found that the ordinance constituted a Wednesbury unreasonable use of the Commissioner’s power. Except in exceptional circumstances, removal of an entire civilian population was not conducive to a territory’s peace, order and good government.
While this change in the law made no practical difference to the Chagossians, they awaited the findings of a study which was commissioned which looked into the feasibility of their resettlement. In June 2002, the report produced concluded that the costs of long term inhabitation of the islands would be prohibitive.
However, faced with the prospect of some Chagossians and associated “human rights campaigners” taking some form of direct action by landing on the Islands, in 2004, Her Majesty by Order in Council (the “Immigration Order”) restored full immigration control on account of the feasibility study and to ensure the effective use of BIOT for defence purposes.
Court of Appeal decision
In R (Bancoult No 2) v Foreign Secretary  EWCA Civ 498, the Court of Appeal held that the Immigration Order was an abuse of power because they permanently excluded an entire population from their homeland for reasons unrelated to the population’s wellbeing. The court also found that public comments made by the Foreign Secretary following the decision in Bancoult (1) gave rise to a legitimate expectation on the part of the Chagossians that they would be granted a right of return.
Original Supreme Court decision
However, the House of Lords allowed the appeal by a majority of 3 to 2 in R (Bancoult) v Foreign Secretary (No 2)  UKHL 61. The court held that the Foreign Secretary was entitled to base the decision on relevant policy considerations, such as the extent of expenditure of public resources on resettlement as well as the security and diplomatic interests of the crown. The court also held that the Chagossians did not have a legitimate expectation of resettlement because the Foreign Secretary’s statements did not amount to a ‘clear and unambiguous promise’.
Basis for the present appeal
The appellant has subsequently been provided with documents relating to the 2002 feasibility study which he contends were not disclosed in the proceedings in breach of the respondent’s duty of candour in public law proceedings, and which he alleges would have been highly likely to have affected the outcome of the appeal. The issues for the Supreme Court to consider are (i) whether to set aside its earlier decision on the grounds of material non-disclosure and, if so (ii) whether to grant Mr Bancoult permission to rely on fresh evidence at the re-hearing of the appeal.
The appeal was heard by Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, and Lord Clarke on 22 June 2015 and can be viewed on demand on the Supreme Court’s website.