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British Indian Ocean Territory

The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Bill Rammell): I would like to inform the House of developments in relation to the British Indian Ocean Territory (BIOT).

In 1965, prior to Mauritius achieving independence in 1968, and with the agreement of the Mauritius Council of Ministers, the islands of the Chagos Archipelago were detached from Mauritius to form part of the British Indian Ocean Territory. The territory was created to provide for the defence needs of both Britain and the United States of America. Subsequently, 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. The vast majority of them automatically acquired Mauritian or Seychelles citizenship when those countries respectively achieved independence. In addition, the British Overseas Territories Act 2002 gave a large number of them British citizenship. This carries with it the right of abode in this country, which some of them have already taken up, and freedom of access to other EU countries. Following the relocation, Britain made £650,000 available for the express purpose of assisting resettlement. And in 1982 Britain made a further ex gratia payment of £4 million for the benefit of the Chagossian community in Mauritius.

In November 2000 the High Court in the UK held in judicial review proceedings that a provision of the territory's immigration law that had previously precluded the Chagossians from returning to the territory without a permit was invalid. In the
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circumstances which then obtained, it was decided not to appeal against that ruling, and the immigration law was amended to reflect it.

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

Specifically with reference to climate change, the report advised that

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.

The first of these two orders replaces the existing constitution of the territory and makes clear, as a principle of the constitution, that no person has the right of abode in the territory or has unrestricted access to any
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part of it. The second order replaces the existing immigration ordinance of the territory and contains the detailed provisions giving effect to that principle and setting out the necessary immigration controls. These two orders restore the legal position to what it had been understood to be before the High Court decision of 3 November 2000. I am arranging for copies of the orders to be placed in the Library of the House.


British Soldiers (Prosecution)

The Solicitor-General (Ms Harriet Harman): My right hon. and learned Friend the Attorney General has made the following ministerial statement, 14 June 2004, Official Report, House of Lords, columns WS 22–24:

"This statement concerns the current position in relation to prosecution of soldiers and offences involving Iraqi civilians.

Soldiers and reservists serving in Iraq, and indeed all members of the armed forces, are subject to military law which lays down that they are liable to be tried by a court martial for an offence contrary to English criminal law. If soldiers do something outside the UK that would be a crime here, they commit a crime under military law. The English criminal courts have concurrent jurisdiction over certain offences, including war crimes, torture and unlawful killing abroad.

Investigations of offences alleged to have been carried out by service personnel are undertaken by the Royal Military Police or other service police authority. In the case of the Army, following an investigation the matter will be referred to the soldier's commanding officer who will also receive advice from the Army legal services branch which will include a draft charge. The commanding officer may decide to dismiss the charge; refer the charge to higher authority; deal summarily with the charge (if it is within the CO's jurisdiction); or stay proceedings with a view to them being otherwise dealt with, for example, by referring them to the civil authorities. The higher authority may in turn then refer the case to the Army prosecuting authority. Then the Army prosecuting authority becomes involved.

The Army prosecuting authority was established under the Armed Forces Act 1996 and came into existence on 1 April 1997. It acts independently of the military chain of command. It is subject to the general superintendence of the Attorney General. I have held regular meetings with the APA as part of that superintendence. Recently I and the Solicitor-General met with the APA in London and I and LSLO officials met with the APA in Germany.

If the APA decides there is sufficient evidence for the case to proceed (and it is in the public interest to proceed), they will then decide whether there should be a district court martial (a Judge Advocate and three military members with a sentencing limit of two years imprisonment) or a general court martial (a Judge Advocate and five members but with no sentencing limits save that imposed by statute). The court martial system was established under the Army Act 1955 and is the responsibility of the Secretary of State for Defence. The APA conducts prosecutions in courts martial and the normal rules of procedure and evidence apply.
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The verdict is returned by the military members of the court martial and the sentence is decided by the military members and the Judge Advocate together.

Appeal against sentence or conviction is to the court martial appeal court comprised of judges of the Court of Appeal sitting in the royal courts of justice.

Courts martial sit in public and are subject to the same rules on reporting as civilian criminal courts. Thus the Contempt of Court Act 1981 applies whether the court martial is sitting outside the UK or not. The common law contempt of court also applies to courts martial.

In his recent statement, 8 June 2004, Official Report, House of Commons, columns WS 4–5, my right hon. Friend, the Minister for the Armed Forces (Mr Ingram) referred to 75 cases being investigated into civilian deaths, injuries or alleged ill treatment of Iraqi civilians. Of those four cases have been referred to the APA which involve Iraqi victims.

I have more details about one case, involving four defendants, referred to the APA which is detailed below. In relation to the remaining three cases with the APA, they are actively being considered at the moment.

The APA is aware of at least four other cases which are likely to be referred to them in the very near future. This will make a total of eight cases out of the 75 which have been referred to them.

As I have previously announced, there is in addition a further case which was brought to my attention by the APA but which had not been formally referred to the APA. It concerns an alleged unlawful killing of an Iraqi in the course of an arrest. This case was brought to my attention after charges were dismissed by the soldier's commanding officer. This means the case cannot be tried by court martial, but I have referred it to the CPS who have asked the Metropolitan police for assistance in
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collecting further evidence. Any decision in relation to this prosecution will be taken by the CPS in accordance with the code for Crown prosecutors.

The APA directed trial on 11 June 2004 against four soldiers from the Royal Regiment of Fusiliers on charges relating to alleged abuses of Iraqi civilians. The charges against the four include assault, indecent assault which apparently involves making the victims engage in sexual activity between themselves, and a military charge of prejudicing good order and military discipline. This case has previously been referred to in the press. The case concerns conduct alleged to have occurred whilst the civilians were being temporarily detained, but not in a prison or detention facility. It involves photographic evidence developed in this country and referred to the UK police. A date for the trial has yet to be set by the military court service. Any trial will be held in public.

As and when any further charges are laid against soldiers arising from incidents in Iraq I will inform the House of these charges by way of written statement and give all the information it is appropriate to give in advance of any hearing.

To assist the House further I have made arrangements for three papers to be placed in the House Library. These deal with (a) procedures in relation to courts martial, (b) the contempt rules and how they apply to courts martial and (c) my Ministerial superintendence of the Army Prosecuting Authority."

Three of the four soldiers accused were informed of the charges against them on 14 June. I can therefore confirm that their names are: Corporal Daniel Kenyon; Fusilier Gary Paul Bartlam; and Lance Corporal Mark Paul Cooley and that the charges relate to incidents which allegedly took place on or about 15 May 2003 in a camp just to the west of Basra.

The Attorney-General will give the name of the fourth soldier by written answer once they have been informed of the charges against them.