Bancoult (No 2)
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453
Parties and outcome
- Claimant
- Louis Olivier Bancoult (respondent)
- Defendant
- Secretary of State for Foreign and Commonwealth Affairs (appellant)
- Outcome
- The Secretary of State won by a 3–2 majority: the appeal was allowed and the challenge to the 2004 Orders in Council failed.
Citations in this work
Begbie
60.The relevant principles of administrative law were not in dispute between the parties and I do not think that this is an occasion on which to re-examine the jurisprudence. It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is "clear, unambiguous and devoid of relevant qualification": see Bingham LJ in R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called "the macro-political field": see R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, 1131.
Coughlan
133.The final issue which I want to discuss is that of legitimate expectation. All members of the Court of Appeal were in agreement that the Chagossians had a legitimate expectation that they would be permitted to return, and that the prohibition contained in the 2004 Orders in Council brought about a breach of that. The principles governing what is now known as substantive legitimate expectation were outlined by the Court of Appeal in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 in a judgment which has now become very familiar. They have not yet been considered in depth by the House, although in R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348, 354, para 34 Lord Hoffmann accepted Coughlan as correct. I would therefore prefer not to express a concluded opinion on the limits of the concept. I am content, however, for present purposes to accept that breach of such an expectation can give rise to an actionable claim and to consider the issue on that basis.
Begbie
135.The basis of the jurisdiction is abuse of power and unfairness to the citizen on the part of a public authority: see Coughlan, para 82. On this basis it has been held that two factors, both present in the case before the House, tend to show that there has not been an abuse of power. The first is when the authority changes its policy on sufficient public grounds. If there is an overriding public interest behind its change of policy, it will not be an abuse of power: Coughlan, para 57; R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, 1130-1131. The second factor is whether the claimant has relied on the promise or representation, in particular whether he has thereby suffered any detriment. The Court of Appeal has affirmed the necessity for this. In Begbie Peter Gibson LJ said at 1123-1124 that it would be "wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation." Cf also R (Bibi) v Newham London Borough Council [2002] 1 WLR 237, 246, where the court adopted at para 29 the statement in Craig, Administrative Law, 4th ed, p 619 that "detrimental reliance will normally be required." If it could be said, contrary to my opinion, that the press statement of 3 November 2000 did contain a sufficiently clear and unambiguous promise or representation, these factors would militate against affording a remedy to the Chagossians.
Bibi
135.The basis of the jurisdiction is abuse of power and unfairness to the citizen on the part of a public authority: see Coughlan, para 82. On this basis it has been held that two factors, both present in the case before the House, tend to show that there has not been an abuse of power. The first is when the authority changes its policy on sufficient public grounds. If there is an overriding public interest behind its change of policy, it will not be an abuse of power: Coughlan, para 57; R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, 1130-1131. The second factor is whether the claimant has relied on the promise or representation, in particular whether he has thereby suffered any detriment. The Court of Appeal has affirmed the necessity for this. In Begbie Peter Gibson LJ said at 1123-1124 that it would be "wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation." Cf also R (Bibi) v Newham London Borough Council [2002] 1 WLR 237, 246, where the court adopted at para 29 the statement in Craig, Administrative Law, 4th ed, p 619 that "detrimental reliance will normally be required." If it could be said, contrary to my opinion, that the press statement of 3 November 2000 did contain a sufficiently clear and unambiguous promise or representation, these factors would militate against affording a remedy to the Chagossians.
Coughlan
Mr Crow accepts for present purposes the Court of Appeal's decision in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 (while reserving the right to argue in another case that it was wrongly decided).
Coughlan
All this is exhaustively and authoritatively discussed by the Court of Appeal in R v North and East Devon Heath Authority, Ex p Coughlan [2001] QB 213, 238-251, paras 51-82 inclusive.
Begbie
178.The approach in Coughlan has been applied and considered in subsequent Court of Appeal authorities, particularly R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607; [2002] 1 WLR 237 and R (Nadarajah and Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363. The judgments in all of these authorities are helpful in illuminating the issues. In Ex p Begbie Laws LJ (drawing on para 60 of Lord Woolf's judgment in Coughlan) underlined the importance that may attach to whether the decisions in question affect only a few individuals or involve wide-ranging questions of general policy, moving into the "macro-political" field, where judges may well be in no position to adjudicate save at most on a bare Wednesbury basis (pp 1130A-1131D).
Bibi
178.The approach in Coughlan has been applied and considered in subsequent Court of Appeal authorities, particularly R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607; [2002] 1 WLR 237 and R (Nadarajah and Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363. The judgments in all of these authorities are helpful in illuminating the issues. In Ex p Begbie Laws LJ (drawing on para 60 of Lord Woolf's judgment in Coughlan) underlined the importance that may attach to whether the decisions in question affect only a few individuals or involve wide-ranging questions of general policy, moving into the "macro-political" field, where judges may well be in no position to adjudicate save at most on a bare Wednesbury basis (pp 1130A-1131D).
Nadarajah
178.The approach in Coughlan has been applied and considered in subsequent Court of Appeal authorities, particularly R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607; [2002] 1 WLR 237 and R (Nadarajah and Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363. The judgments in all of these authorities are helpful in illuminating the issues. In Ex p Begbie Laws LJ (drawing on para 60 of Lord Woolf's judgment in Coughlan) underlined the importance that may attach to whether the decisions in question affect only a few individuals or involve wide-ranging questions of general policy, moving into the "macro-political" field, where judges may well be in no position to adjudicate save at most on a bare Wednesbury basis (pp 1130A-1131D).
Cited by
- Paponette
28. In a case where the legitimate expect ation is based on a promise or representation, a useful summary of the relevant principles was given by Lord Hoffmann in R (Bancoult) v Secretary of Stat e for Foreign an d Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] AC 453, at para 60: “It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is ‘clear, unambiguous and devoid of relevant qualification’: see Bingham LJ in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detrim ent, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abus e of power and such a change of policy may be justified in the public in terest, particularly in the area of what Laws LJ called ‘the macro-political field’: see R v Secretary of State for Education and Em ployment, Ex p Begbie [2000] 1 WLR 1115, 1131.”
- Morris (2019)
39. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] 1 AC 453, Lord Hoffmann said, at [60]: “The relevant principles of administrative law were not in dispute between the parties and I do not think that this is an occasion on which to re-examine the jurisprudence. It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is “clear, unambiguous and devoid of relevant qualification”: see Bingham LJ in R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called “the macro-political field”: see R v Secretary of State for Educati on and Employment, Ex p Begbie [2000] 1 WLR 1115, 1131.” In considering whether the representations relied upon to found the legitimate expectation were “clear, unambiguous and devoid of relevant qualification”, the question is how, on a fair re ading of the promise, it would have been reasonably understood to those to whom it was made: see R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397, per Dyson LJ, at [56].”