The Overseas Territories

Britain has 14 Overseas Territories. These are the last vestiges of the British Empire, the final remaining Colonies. Indeed the name “Colony” is still legally acceptable, it is simply that in this modern age they have been re-branded since 2002 to the “Overseas Territories”.

The OTs include places such as the Falkland Islands, Bermuda, British Antarctic Territory and one almost unknown territory called the British Indian Ocean Territory (BIOT). In geographical terms we frequently refer the BIOT as the Chagos Archipelago.

Most of these OTs have permanent populations. There are 3 that do not. These are (1) the British Antarctic Territory, (2) South Georgia and the South Sandwich Islands, and (3) the BIOT. In the first 2 cases, these territories have never had permanent inhabitants, they are distant hostile lands, but in the case of the BIOT, a tropical paradise, the population of about 1,500 inhabitants was deported between 1968 and 1973 to make way for what is called a joint UK/US Military Base. In reality the base is financed and run by the US military, and Britain is a mere bystander.

Each of these OTs has a particular place in British Constitutional Law. They are not part of the United Kingdom. Constitutionally they are separate, and depending on how they were originally acquired by Britain, the manner in which they are ruled or governed differs. Two of the OTs in particular are of particular interest, Gibraltar and BIOT. These territories were captured from Spain and France respectively and ceded to Britain. The BIOT was ceded under the Treaty of Paris in 1814. The consequence of this method of acquisition is that the Sovereign, that is the Queen, has full prerogative power to legislate for the territory. In other words Parliament has no power to interfere in how the territory is governed. It can take an interest as it does through the Foreign Affairs Committee but it cannot do anything if it sees something it does not like. In the case of Gibraltar, however, the presence of a resident population has meant that a local legislature, the Gibraltar Parliament and a Council of Ministers has evolved. BIOT, however, has no such body and the power rests exclusively with the Sovereign.

Rule over the BIOT

So how does the Queen rule the BIOT? The answer is that she doesn’t. The idea that the power of the Royal Prerogative lies with the Queen is a thing of the past. In reality it is exercised by the Privy Council and Royal assent is a formality only. The Privy Council had its origins in the mediaeval court and comprised the King’s closest advisors. Today the full Privy Council numbers 597. Its day to day business is transacted by those of Her Majesty’s Ministers who are Privy Counsellors, that is all Cabinet Ministers and a number of junior Ministers. In other words the power rests with Ministers of the Government, but cannot be regulated or scrutinised by the elected Parliament. There is no democratic scrutiny.

This position was succinctly put by Lord Justice Sedley in 2007 in the Court of Appeal: “The recital that the Orders are made by Her Majesty “by and with the advice of her Privy Council” is purely formal: in reality the Privy Council plays no role beyond the placing by one of its members, a minister, of the instrument before the Monarch, who is called upon by constitutional convention to approve it.” and Lord Justice Waller: “the decision to exercise the “royal prerogative” is actually taken, as this very case shows, by the government or by ministers individually”. [see Secretary of State for the FCO v The Queen (ex parte Bancoult) [2007] EWCA Civ 498].

So let us examine in more detail how the legislation of the BIOT was created back in 1965 when the Chagos Islands were detached from the colony of Mauritius to form the new territory of BIOT.

A specific piece of legislation was needed which laid down the framework for the BIOT under which all subordinate legislation could be created and enforced. In 1965 Colonial Office lawyers drafted an Order in Council for approval by the Privy Council, under instructions from the Colonial Secretary, Anthony Greenwood. This was done in great haste in late October as described by a Colonial Office official in a minute dated 20 October 1965: “It will be necessary as soon as possible (preferably within a few days) to get the necessary legal instruments put into effect in London. If there is a delay long enough to allow the United Nations or anybody else to start a campaign against the policy of detachment, the policy could be seriously jeopardized and might even have to be abandoned. We envisage therefore that a special meeting of the Privy Council might have to be called early in November to make the necessary Orders.” At the same time, a minute (22 Oct) records that “I have asked Mr MacKenzie to draft a letter to the Palace to inform the Queen of what is proposed and at the same time to obtain her approval for the name to be given to the new Colony.” Within 2 weeks the Order was ready to be taken to the Palace.

At 11.30 am on Monday 8 November 1965, 3 members of the Privy Council, The Lord President – Herbert Bowden who was the Leader of the House of Commons; Mr George Wigg, the Paymaster General; and Mr Fred Mulley, Minister of Aviation, proceeded to Buckingham Palace along with the Clerk of the Privy Council, Sir Godfrey Agnew, and Mr Secretary Griffiths. They had 4 Orders in Council to present to the Queen that day. The first was an Order to prorogue Parliament, the second was the new British Indian Ocean Territory Order, the third were draft instructions for the newly created Commissioner of BIOT, and finally an Order for the appointment of 10 new Inspectors of Schools in the United Kingdom.

The Lord President read each of the Orders to the Queen who then gave formal assent to them by saying simply 'Approved'. The BIOT had come into existence.

Under the new BIOT Order, there was appointed a Commissioner for the BIOT. The first Commissioner was also the Governor of the Colony of the Seychelles, the Earl of Oxford and Asquith, resident in Mahé, Seychelles, about 1,000 miles from the Chagos. In the Order he was given the power to “make laws for the peace, order and good government of the Territory” (Section 11 (1)). The only check and control on this power was that Her Majesty, in practice the Colonial Secretary and now the Foreign Secretary, had the power to disallow any law made by the Commissioner. This power has never been exercised. The draft Instructions that had also been approved by the Queen were entitled “The British Indian Ocean Territory Royal Instructions 1965” and gave further guidance to the newly appointed Commissioner. In particular they decreed that all laws would be called “Ordinances”. Aside from a limited number of restrictions, the power of the Commissioner was absolute.

Since the intention from the outset was for the islands not to have a permanent population, no provisions were ever made for any democratic legislative body and by 1973 the islands had been swept clean of the former inhabitants. In 1976 when the colony of the Seychelles was granted independence, the Commissioner of BIOT became resident in the Foreign and Commonwealth Office in London where he is today. The present Commissioner's main job is Director of the Overseas Territories Directorate, with responsibilities for overseeing all 14 OTs. The BIOT Administration about 4 people, an Administrator, Deputy and Desk Officers. On Diego Garcia there is a Royal Naval Officer and a small number of service personnel stationed at the US Military Base performing the functions of the British Representative, the Magistrate, the Head of Customs, and Chief of Police.

Between 1965 and the end of 2010 there had been a total of 147 Ordinances created by the successive BIOT Commissioners (including amendments and repeals) together with a further 131 Statutory Instruments. There are in addition a further 152 UK Orders in Council which affect the BIOT (as one of the Overseas Territories).

How do we know what all these Ordinances contain?

Well the answer is that it was never the intention of the British Government that there should be easy access to the legislation of this colony. The BIOT had been created for one purpose, namely to make the islands available for US defence purposes, enabling the US to build their base on Diego Garcia. This had followed secret talks that had been held in 1964 between Britain and the US Government. In order to do this it was necessary to strip the islands away from the former colony of Mauritius, which in 1965 was progressing towards independence, in order to create what is in effect a secret new colony, out of the reach of any democratic process and devoid of a population who might interfere with the military purpose. So it is hardly surprising that we find a Legal Adviser to the Foreign Office writing in 1971 that “The ordinance [Immigration Ordinance 1971] would be published in the BIOT Gazette, which has only very limited circulation both here and overseas, after signature by the Commissioner. Publicity will therefore be minimal." The same remains true today. "10 (3) All laws made by the Commissioner in exercise of the powers conferred by subsection (1) shall be published in the Gazette in such manner as the Commissioner may direct." (BIOT Constitution Order 2004).

The effect of this is to make the Ordinances and other matters relating to the BIOT as inaccessible as possible. The Gazette is supposed to be deposited in the British Library, but in 2010 when I was researching into the legislation I discovered that a large number of the Gazettes had never been deposited there by the Foreign and Commonwealth Office. I pointed this out to the FCO and they acceded to provide me with copies of the legislation. They also undertook to make good the deficiencies in the British Library which has now been done. Even with the deposition in the British Library, this does not happen for some time after the end of each year. So for example the Ordinances for 2013 still remain to be deposited well over half way through the following year (September 2014).

What do these 147 Ordinances contain?

They range from anything as mundane as the ‘Ozone Layer Protection Ordinance 1994 or ‘The Abandoned and Lost Property Ordinance 2005’ to Ordinances which govern the right of access to the territory or the control of fishing in the 200 nm Fisheries (Conservation and Management) Zone. In other words matters of trivial administration to matters of the right of the former inhabitants to live there and for others to visit the Chagos Islands. Given the stated intent of the formation of the BIOT, it will not be a great surprise to find that no-one is entitled to enter the territory without a permit. Indeed anyone who does so is liable to imprisonment for 3 years and/or a fine of £3,000. For the island of Diego Garcia the BIOT Administration goes even further and does not permit unauthorised vessels to approach within 3 nautical miles.