(1) The High Court 2000

The illegality of the 1971 Immigration Ordinance

On 16 April 1971, the BIOT Commissioner, Sir Bruce Greatbatch enacted an Immigration Ordinance that banned the native islanders from the Chagos. (Section 4 “No person shall enter the Territory or, being in the Territory, shall be present or remain in the Territory, unless he is in possession of a permit.”). Greatbatch had none of the deep knowledge and love for the islands that former Governor Sir Robert Scott of Mauritius had developed and written about ten years earlier in his plea for “understanding of the islanders’ unique condition, in order to ensure that all that is wholesome and expansive in the island societies is preserved.”[1] In stark contrast, Greatbatch took the matter of fact view that “These people have little aptitude for anything other than growing coconuts”, calling them “unsophisticated and untrainable”. Unsurprisingly it was he who ordered the final clearance of the Chagossians from their homeland between 1971 and 1973 in the full knowledge that they were in fact ‘belongers’[2].

The legality of the Immigration Ordinance was challenged in the English courts and on 3 November 2000 the High Court declared that the 1971 Immigration Ordinance was unlawful.

In the course of the judgment, Lord Justice Laws observed that:

“Certainly he [the BIOT Commissioner] legislates: but he does so only within the powers conferred upon him by higher authority. This argument that the Commissioner is not the agent or delegate of the Queen in Council is wholly bloodless.”[3]

“Did s.11 of the BIOT Order empower s.4 of the Ordinance? - S.4 of the Ordinance effectively exiles the Ilois from the territory where they are belongers and forbids their return. But the “peace, order, and good government” of any territory means nothing, surely, save by reference to the territory’s population. They are to be governed: not removed. I cannot see how the wholesale removal of a people from the land where they belong can be said to conduce to the territory’s peace, order and good government. The people may be taxed; they should be housed; laws will criminalise some of the things they do; maybe they will be tried with no juries, and subject to severe, even brutal penalties; the laws made for their marriages, their property, and much besides may be far different from what obtains in England. These people are subjects of the Crown, in right of their British nationality as belongers in the Chagos Archipelago. As Chitty said in 1820, the Queen has an interest in all her subjects, who rightly look to the Crown - today, to the rule of law which is given in the Queen’s name - for the security of their homeland within the Queen’s dominions. But in this case they have been excluded from it. It has been done for high political reasons: good reasons, certainly, dictated by pressing considerations of military security. In short, there is no principled basis upon which s.4 of the Ordinance can be justified as having been empowered by s.11 of the BIOT Order. And it has no other conceivable source of lawful authority.[4] The respondents’ position is not, I think, bettered by the consideration that the Ilois owned no real estate on the islands, which until 1967 were in private hands. That cannot affect the position in public or constitutional law. Nor can the making of any monetary compensation. In my judgment, for all these reasons, the apparatus of s.4 of the Ordinance has no colour of lawful authority.”

“I entertain considerable doubt whether the prerogative power extends so far as to permit the Queen in Council to exile her subjects from the territory where they belong.” There is unexplored ground here: it would be one thing to send a Chagos belonger to another part of the Queen’s dominions, and quite another to send him out of the Queen’s dominions altogether.”[5]

And Mr Justice Gibbs:

“The measures came into being as the direct result of advice given to the Crown by ministers of the United Kingdom government in order to achieve the purposes referred to in the preceding paragraph. The Commissioner and other officials to be appointed under the Order were effectively agents of the Crown under the control and direction of the Secretary of State.”[6]

“The crucial question on the legality of the Ordinance is whether it can reasonably be described as “for the peace order and good government” of BIOT. In the case law cited, the interpretation of that expression most favourable to the Respondents is that they “connote, in British constitutional language, the widest law-making powers appropriate to the sovereign”. (Ibralebbe 1964 AC 900 at p.923.) I am unable to accept that those words, even from such an authoritative source, compel this court of abandon the ordinary meaning of language, and instead to treat the expression “for the peace order and good government” as a mere formula conferring unfettered powers on the commissioner.”[7]

“Each of the words “peace”, “order” and “good government” in relation to a territory necessarily carries with it the implication that citizens of the territory are there to take the benefits. Their detention, removal and exclusion from the territory are inconsistent with any or all of those words. To hold that the expression used in the Order could justify the provisions of the Ordinance would thus in my judgment be an affront to any reasonable approach to the construction of language. I conclude therefore that the Ordinance was unlawful.”[8]

As junior Crown Counsel, now Mr Justice Philip Sales, has since stated, “There were those of us who wanted to appeal, to test whether the Divisional Court’s interpretation of the ambit of the rubric “peace, order and good government” was too narrow.”[9] However the then Foreign Secretary, Robin Cook, decided to accept the court’s ruling and the BIOT Commissioner at the instance of the FCO promulgated a new Immigration Ordinance[10] which removed the need for the Chagossians to have an immigration permit before entering the islands (except Diego Garcia). Robin Cook also stated that “This Government has not defended what was done or said 30 years ago”, and went on to say in an interview that he considered this episode to have been “one of the most sordid and morally indefensible I have ever known”. As a result of the ensuing litigation, the FCO commissioned a Feasibility Study into the Resettlement of the Outer Islands (not including DG).

However, the Chagossians lacked the funds to enable them to return to the Chagos so, with this judgement and with documents from the 1960s and 70s becoming available through the Public Records Office, the Chagossians then applied to the High Court for (1) compensation and restoration of property rights, and (2) declarations of their entitlement to return to all Chagos islands (including DG) and to measures facilitating their return. The case was complicated and the main issues were narrowed down in pre-trial reviews. Most important of these were (1) evidence of compulsory removal or prevention of return, (2) property rights, (3) cause of action not statute barred or property rights extinguished, (4) effect of the settlement in 1982. The case was heard in 2003, not as a full trial but as a hearing to assess the likelihood of the claimant’s success. Of the total 5,023 claimants, 1,075 had been born on the islands and 557 were deceased – the remainder were children of the original inhabitants. Mr Justice Ouseley gave judgement on 9 October 2003 running to 324 pages, dismissing the claims on the basis that they were not reasonably argued and/or time barred and that the forms of renunciation prevented further legal action for compensation. The Appeal Court rejected an appeal by the Chagossians on 22 July 2004.

Notwithstanding these judgements, Mr Justice Ouseley found that (para 154):

“It does appear that, in the absence of unexpectedly compelling evidence to the contrary, at least some Claimant Chagossians could show that they were treated shamefully by successive UK Governments. Whatever view might be taken of the importance of the strategic defence aims underlying the creation of BIOT, the evacuation of the islands and the establishment of the base on Diego Garcia, some who had lived there for generations were uprooted from the only way of life which they knew and were taken to Mauritius and the Seychelles where little or no provision for their reception, accommodation, future employment and well-being had been made. Ill-suited to their surroundings, poverty and misery became their common lot for years. The Chagossians alone were made to pay a personal price for the defence establishment on Diego Garcia, which was regarded by the UK and US Governments as necessary for the defence of the West and its values. Many were given nothing for years but a callous separation from their homes, belongings and way of life and a terrible journey to privation and hardship. Such arrangements as were made in the early 1970s did not take effect for several years and came too little and too late to alleviate their problems. An eventual accord in 1982, driven by litigation, produced an offer which was intended to improve their sad conditions but which was not evidently generous. Their poverty, sadness and sense of loss and displacement impel their continuing desire to return to the islands which were their home.”

This was reiterated by all three Judges in the CoA.

“it would be wrong of us to move on to the legal issues without acknowledging the shameful treatment to which the islanders were apparently subjected. The deliberate misrepresentation of the Ilois' history and status, designed to deflect any investigation by the United Nations; the use of legal powers designed for the governance of the islands for the illicit purpose of depopulating them; the uprooting of scores of families from the only way of life and means of subsistence that they knew; the want of anything like adequate provision for their resettlement: all of this and more is now part of the historical record. It is difficult to ignore the parallel with the Highland clearances of the second quarter of the nineteenth century. Defence may have replaced agricultural improvement as the reason, but the pauperisation and expulsion of the weak in the interests of the powerful still gives little to be proud of.”

After delays and obfuscation, the FCO terminated the Resettlement Feasibility Study and swiftly re-imposed immigration control over the BIOT. This time in order to overcome any claim to the BIOT Commissioner exceeding his authority as happened in 2000 the legislation was enacted directly by Prerogative Orders in Council on 10 June 2004.

At 5.30 pm on Thursday 10 June 2004 a day when European Parliamentary elections were taking place, members of the Privy Council made their way to Buckingham Palace where this time they presented a range of Privy Council business to the Queen. Present were Baroness Amos (Lord President of the Council), Margaret Beckett MP (Secretary of State for Environment, Food and Rural Affairs), Adam Ingram MP (Minister of State, Ministry of Defence) and Hilary Armstrong MP (Parliamentary Secretary, the Treasury) together with the Clerk, Mr Alex Galloway. The two new BIOT Orders in Council were buried amongst 6 other Statutory Instruments, 29 other orders and two proclamations, and an appointment of a new privy councillor. Given the speed and secrecy that accompanied the implementation of the new BIOT Orders, we might well conclude that the Queen was given little information. Did she even know that she was approving legislation whose purpose was to overturn the High Court ruling, reverse the decision to allow the Chagossians to return home and ban them once and for all from their islands?

On the following Monday, 14 June 2004, the Chagossian’s solicitor, Mr Richard Gifford, was invited to a meeting with Mr Bill Rammell (PUS for Foreign & Commonwealth Affairs) where he was informed that the new Order in Council had been made. This was completely unexpected as Mr Gifford recollects “In accordance with my previous correspondence with Mr Rammell, in which I had urged him to proceed with the feasibility study, I had anticipated a discussion of the next stages of it.”

The following day, Tuesday 15 June 2004, Parliament was informed by Mr Rammell in a written statement. This commenced with the usual FCO sanitised version of the depopulation:

“the plantations on which the population of the islands had depended for their livelihood were run down and closed; and the inhabitants—the Chagossians—were in due course relocated to Mauritius and Seychelles, from where they or their families originated”

and then sought to justify the passing of the new Order in Council:

“Following the departure of the Chagossians in the late 60s and early 70s, the economic conditions and infrastructure that had supported the community of plantation workers ceased to exist. While the judicial review proceedings were still pending, the Government therefore commissioned a feasibility study by independent experts to examine and report on the prospects for re-establishing a viable community in the outer islands of the territory. The latest report of the study was delivered after the November 2000 judgment and it was then placed in the Library of the House. It concluded that:

". . . whilst it may be feasible to resettle the islands in the short-term, the costs of maintaining long-term inhabitation are likely to be prohibitive. Even in the short-term, natural events such as periodic flooding from storms and seismic activity are likely to make life difficult for a resettled population . . . Human interference within the atolls, however well managed, is likely to exacerbate stress on the marine and terrestrial environment and will accelerate the effects of global warming. Thus resettlement is likely to become less feasible over time."

Specifically with reference to climate change, the report advised that:

"... the main issue facing a resettled population on the low-lying islands will be flooding events, which are likely to increase in periodicity and intensity and will not only threaten infrastructure, but also the freshwater aquifers and agricultural production. Severe events may even threaten life."

The report also highlighted the implications for resettlement on such low-lying islands of the predicted increase in global sea levels as a result of climate change.

In effect, therefore, anything other than short-term resettlement on a purely subsistence basis would be highly precarious and would involve expensive underwriting by the UK Government for an open-ended period-probably permanently. Accordingly, the Government consider that there would be no purpose in commissioning any further study into the feasibility of resettlement; and that it would be impossible for the Government to promote or even permit resettlement to take place. After long and careful consideration, we have therefore decided to legislate to prevent it.

Equally, restoration of full immigration control over the entire territory is necessary to ensure and maintain the availability and effective use of the territory for defence purposes, for which it was in fact constituted and set aside in accordance with the UK's treaty obligations entered into almost 40 years ago. Especially in the light of recent developments in the international security climate since the November 2000 judgment, this is a factor to which due weight has had to be given.

It was for these reasons that on 10 June 2004 Her Majesty made two Orders in Council, the combined effect of which is to restore full immigration control over all the islands of the British Indian Ocean Territory. These controls extend to all persons, including members of the Chagossian community.”

That day, the Foreign Secretary also wrote to the Chairman of the Foreign Affairs Committee:

“The first of the two Orders (the British Indian Ocean Territory (Constitution) Order 2004) makes constitutional provision for the Territory—it replaces the previous Constitution, largely in the same terms but with some important changes—and therefore falls within the ambit of the arrangements agreed between us under which your Committee should ordinarily be given advance sight of Orders relating to Overseas Territories Constitutions. These agreed arrangements were set out in my letter to you of 12 July 2002. This is a case where I had to exercise the right, which I reserved in the last paragraph of my letter, not to follow that procedure in certain circumstances, because the sensitivity of the issue meant that confidentiality was imperative until the measures were taken.” [emphasis added].

[1] Scott (1961) Limuria – the Lesser Dependencies of Mauritius. Page 293

[2] Letter dated 13 November 1970, from the Pacific and Indian Ocean Department to Sir Bruce Greatbatch, Government House, Port Victoria, Seychelles, signed by Eleanor Emery. “Apart from our overall strategic and defence interests we are also concerned at present not to have to elaborate on the administrative implications for the present population on Diego Garcia of establishment of any base there. We would not wish it to become general knowledge that some of the inhabitants have lived on Diego Garcia for at least two generations and could, therefore, be regarded as "belongers". We shall therefore advise Ministers in handling supplementary questions about whether Diego Garcia is inhabited to say that there is only a small number of contract labourers from the Seychelles and Mauritius engaged to work on the copra plantations on the Island.”

[3] The Queen v S of S for the FCO ex parte Bancoult (2000) QBD CO/3775/98 - Para 46

[4] Ibid Para 57

[5] Ibid Para 61

[6] Ibid Para 66

[7] Ibid Para 69

[8] Ibid Para 71

[9] Sales (2008) Bancoult (2) and Legitimate Expectation. Colloquium on the Common Law, the Royal Prerogative and Executive legislation, Cambridge University, Faculty of Law

[10] The Immigration Ordinance 2000 which came into force on 3 Nov 2000. 5 days later it was realised that this Ordinance had mistakenly omitted to say that the 1971 Ordinance was repealed. This was hastily corrected by the Immigration (Amendment) Ordinance 2000.