R (on the application of Bancoult) Respondent v Secretary of State for Foreign and Commonwealth Affairs (Appellant), (2008)

 
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HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 61

on appeal from: [2007] EWCA Civ 498

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

R (on the application of Bancoult) (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant)

Appellate Committee

Lord Hoffmann

Lord Bingham of Cornhill

Lord Rodger of Earlsferry

Lord Carswell

Lord Mance

Counsel

Appellant:

Jonathan Crow QC

Kieron Beal

(Instructed by Treasury Solicitors)

Respondent:

Sir Sydney Kentridge QC

Anthony Bradley

Maya Lester

(Instructed by Clifford Chance LLP)

Hearing dates:

30 JUNE, 1, 2 and 3 JULY 2008

ON

WEDNESDAY 22 OCTOBER 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R (on the application of Bancoult) (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant)

[2008] UKHL 61

LORD HOFFMANN

My Lords,

1.  This appeal concerns the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004 (“the Constitution Order”):

“(1)  Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory.

(2)  Accordingly, no person is entitled to enter or be present in the Territory except as authorised by or under this Order or any other law for the time being in force in the Territory.”

2.  The Constitution was made by prerogative Order in Council. The Divisional Court (Hooper LJ and Cresswell J) held section 9 to be invalid and this decision was affirmed by the Court of Appeal (Sir Anthony Clarke MR and Waller and Sedley LJJ). The Secretary of State appeals to your Lordships’ House.

3.  The British Indian Ocean Territory (“BIOT”) is situated south of the equator, 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 30 km2. Some distance to the north lie Peros Banhos (13 km2) and the Salomon Islands (5 km2).

4.  The islands were a dependency of Mauritius when it was ceded to the United Kingdom by France in 1814 and until 1965 were administered as part of that colony. Their main economic activity was gathering coconuts and extracting and selling the copra or kernels. In 1962, when the plantations were acquired by a Seychelles company called Chagos Agalega Company Ltd (“the company”) the settled population was a very small community (less than 1,000 on the three islands) who called themselves Ilois (Creoles des Iles) and whose families had in some cases lived in the islands for generations. With the assistance of contract labour from the Seychelles and Mauritius, the Ilois were mainly employed in tending the coconut trees and producing the copra.

5.  The evidence suggests that the Ilois, who now prefer to be called Chagossians, lived an extremely simple life. The company, whose managers acted as justices of the peace, ran the islands in feudal style. Each family had a house with a garden and some land to provide vegetables, poultry and pigs to supplement the imported provisions supplied by the company. They also did some fishing. There was work in the copra industry as well as some construction, boat building and domestic service for the women. No one was involuntarily unemployed. Most of the Chagossians were illiterate and their skills were confined to those needed for the activities on the islands. But they had a rich community life, the Roman Catholic religion and their own distinctive dialect derived (like those of Mauritius and the Seychelles) from the French.

6.  Into this innocent world there intruded, in the 1960s, the brutal realities of global politics. In the aftermath of the Cuban missile crisis and the early stages of the Vietnam War, the United States felt vulnerable without a land based military presence in the Indian Ocean. A survey of available sites suggested that Diego Garcia would be the most suitable. In 1964 it entered into discussions with Her Majesty’s Government which agreed to provide the island for use as a base. At that time the independence of Mauritius and the Seychelles was foreseeable and the United States was unwilling that sovereignty over Diego Garcia should pass into the hands of an independent “non-aligned” government. The United Kingdom therefore made the British Indian Ocean Territories Order 1965 SI No 1920 (“the BIOT order”) which, under powers contained in the Colonial Boundaries Act 1895, detached the Chagos Archipelago (and some other islands) from the colony of Mauritius and constituted them a separate colony known as BIOT. The order created the office of Commissioner of BIOT and conferred upon him power to “make laws for the peace, order and good government of the Territory.” Those inhabitants of BIOT who had been citizens of the United Kingdom and Colonies by virtue of their birth or connection with the islands when they were part of Mauritius retained their citizenship. When Mauritius became independent in 1968 they acquired Mauritian citizenship but, by an exception in the Mauritius Independence Act 1968, did not lose their UK citizenship.

7.  At the end of 1966 there was an exchange of notes between Her Majesty’s Government and the Government of the United States by which the United Kingdom agreed in principle to make BIOT available to the United States for defence purposes for an indefinitely long period of at least 50 years. It subsequently agreed to the establishment of the base on Diego Garcia and to allow the United States to occupy the other islands of the Archipelago if they should wish to do so.

8.  In 1967 the United Kingdom Government bought all the land in the Archipelago from the company but granted the company a lease to enable it to continue to run the coconut plantations until the United States needed vacant possession. It took some time for the US Defence Department to obtain Congressional approval but in 1970 it gave notice that Diego Garcia would be required in July 1971. After receiving this notice the Commissioner of BIOT, using his powers of legislation under the BIOT order, made the Immigration Ordinance 1971. It provided in section 4(1) that —

“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 …[issued by an Immigration Officer]”

9.  Between 1968 and 1971 the United Kingdom government secured the removal of the population of Diego Garcia, mostly to Mauritius and the Seychelles. A small population remained on Peros Banhos and the Salomon Islands, but they were evacuated by the middle of 1973. No force was used but the islanders were told that the company was closing down its activities and that unless they accepted transportation elsewhere, they would be left without supplies. The whole sad story is recounted in detail in an appendix to the judgment of Ouseley J in Chagos Islanders v Attorney General [2003] EWHC 2222 (QB), [2003] All ER (D) 166.

10.  My Lords, it is accepted by the Secretary of State that the removal and resettlement of the Chagossians was accomplished with a callous disregard of their interests. For the most part, the community was left to fend for itself in the slums of Port Louis. The reasons were to some extent the usual combination of bureaucracy and Treasury parsimony but very largely the government’s refusal to acknowledge that there was any indigenous population for which the United Kingdom had a responsibility. The Immigration Ordinance, denying that anyone was entitled to enter or live in the islands, was part of the legal façade constructed to defend this claim. The government adopted this position because of a fear (which may well have been justified) that the Soviet Union and its “non-aligned” supporters would use the Chagossians and the United Kingdom’s obligations to the people of a non-self-governing territory under article 73 of the United Nations Charter to prevent the construction of a military base in the Indian Ocean.

11.  When the Chagossians arrived in Mauritius they found themselves in a country with high unemployment and considerable poverty. Their conditions were miserable. There was a long period of negotiation between the governments of Mauritius and the United Kingdom over payment for the cost of resettlement, but eventually in September 1972 the two governments agreed on a payment of £650,000, which was paid in March 1973. The Mauritius government did nothing with the money until 1977 when, depleted by inflation, it was distributed in cash to 595 Chagossian families.

12.  The Chagossians sought support and legal advice. In February 1975 Michael Vencatessen, who had left Diego Garcia in 1971, issued a writ in the High Court in London against the Foreign and Defence Secretaries and the Attorney General. His proceedings were funded by legal aid and he received the advice of distinguished counsel. The claim was for damages for intimidation and deprivation of liberty in connection with his departure from Diego Garcia, but the proceedings came to be accepted on both sides as raising the whole question of the legality of the removal of the Chagossians from the islands.

13.  Negotiations took place between the UK government and Mr Vencatessen and his advisers, who were treated as acting on behalf of the Chagossians as a whole. In 1979 an agreement was reached with Mr Vencatessen and his advisers for a payment of £1.25m in settlement of all the claims of the...

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