R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61
Facts
Following earlier successful litigation concerning exclusion from the Chagos Islands, the government changed the immigration arrangements and examined the feasibility of resettlement. In 2004, new prerogative Orders in Council again removed a general right of abode and controlled entry. Bancoult challenged those provisions, relying on the limits of prerogative power, ordinary judicial review and a legitimate expectation arising from the earlier ministerial statement. The lower courts found in his favour. The Foreign Secretary appealed to the House of Lords, which had to distinguish the legal power to review the Orders from the merits of the challenge.
Legal Issue
Whether prerogative Orders in Council excluding return to the Chagos Islands were reviewable and whether the challenged 2004 provisions exceeded power, were irrational or breached legitimate expectation.
Held
The House of Lords allowed the Foreign Secretary's appeal by a majority of three to two, upholding the relevant provisions. Prerogative Orders in Council were reviewable: legislative form did not make executive action equivalent to an Act of Parliament for this purpose. The majority nevertheless rejected the challenges to the scope and exercise of the power and to the alleged promise of continued unrestricted return. It considered the practical, financial and security context relevant to the decision. Lords Bingham and Mance dissented, finding the exclusion unlawful on their analyses. The majority's result did not endorse the earlier treatment of the islanders or make future prerogative legislation immune from judicial scrutiny.
⭐ Legal Principle
Prerogative Orders in Council can be reviewed on ordinary public-law grounds despite their legislative character. In Bancoult (No 2), the majority nevertheless upheld the challenged 2004 exclusion provisions; reviewability and unlawfulness were separate questions.
Significance
Bancoult (No 2) extends the lesson of GCHQ to prerogative legislation: executive law-making does not acquire Parliament's immunity from ordinary judicial review merely because it has legislative form. The majority nevertheless upheld the challenged exclusion, while Lords Bingham and Mance dissented. It is important to separate reviewability from success on review. The case concerns the 2004 Orders and the 2008 domestic judgment; later litigation, international proceedings and political arrangements concerning the Chagos Islands require separate examination before describing the present position.
Common exam questions about this case
Why were prerogative Orders in Council reviewable?
They were exercises of executive power, even though legislative in form. They did not share the representative constitutional authority of an Act of Parliament. The House of Lords therefore accepted review on ordinary public-law grounds rather than treating the label of primary legislation as a complete answer to the challenge.
Did Bancoult win because the Orders were reviewable?
No. The majority allowed the government’s appeal and upheld the relevant provisions. Accepting jurisdiction to review did not mean finding the exercise unlawful. The majority’s assessment of powers, policy considerations and the alleged promise differed from the dissenting conclusions, which should be identified as dissent rather than the holding.
Why did the legitimate-expectation claim fail for the majority?
The majority did not read the earlier ministerial statement as an unqualified promise that the right of return would remain unchanged regardless of resettlement policy and its practical context. It also considered the asserted public-interest justification. The dissent took a different view of the representation and the reasons offered for retreating from it.