Submission from Richard Gifford, legal
representative, Chagos Refugees Group
1. This memo deals with the extent of Parliamentary
oversight (or lack of it) in the detachment of the Chagos Islands
to form BIOT, and the removal of the population to exile.
2. It also deals with the tenure by the
USA of the military base, and the prospects for it remaining after
2016.
3. From 1956 the US Navy drew up a list
of 60 islands in the Indian Ocean which should be investigated
further with a view to establishing a military base with which
to dominate affairs in Asia, the Middle East and Africa. The USA
had devised what they called the "Strategic Island Concept",
which they modelled upon their military bases in the Pacific Ocean
on Islands which they had acquired as a result of the Second World
War. It was discovered that with a minute landmass, enormous military
and consequent political influence could be wielded from remote
parts of the world but affecting substantial geo-political areas.
4. In the early 1960s, Aldabra Island (part
of Seychelles) was identified as a suitable military base. However,
there was a rare breed of turtle which used Aldabra for its nesting,
and the scientific community quickly raised the alarm. Questions
were asked in parliament by Tam Dalyell MP about the future of
the island. Aldabra was quickly dropped as a potential US base.
5. In August 1964 a joint UK/US military
survey team landed on Diego Garcia to study its military potential.
The military party were fully aware of the functioning plantations
and the population in excess of 1500 souls living, working and
enjoying their lives on this and other islands of the Archipelago.
A Colonial Office Memo dated 20 October 1954 reported upon discussions
between the UK and US delegations which had met in London, and
upon the visit of the military party. It recommended that: "HMG
should be responsible for acquiring land, resettlement of population
and compensation of Mauritius' interest".
6. The following day, 21 October 1964, the
Memo was annotated thus "S/S (Secretary of State for the
Colonies, Sir Anthony Greenwood) agrees". From this moment
on, the fate of the population was sealed. There had been no debate
in the House of Commons, no serious debate within government departments,
and certainly no enquiry as to the welfare and needs, let alone
the status, of the population.
7. There were extensive records of the population
and its history in Colonial Office records. A Colonial office
film, which was shot in Chagos in 1955, described the lifestyle
of the islanders, and mentioned that most of the population was
born there. Now, however, Diego Garcia was described as "a
coconut island whose present population under 500 is largely contract
labour from the Seychelles", a miss description which
was reflected in official statements thereafter.
8. In September 1965 there was a Constitutional
Conference at Lancaster House on the forthcoming Independence
of Mauritius. By October 1965 the pre-independence prime minister
of Mauritius had agreed to the detachment of the islands in return
for £3 million, and the evacuation of the Chagos Islanders
to Mauritius. There was no mention to Parliament of this deal.
9. There was no process of consultation
with the islanders and no part of the Chagos Islands was included
within any constituency of the Mauritius Legislative Assembly.
10. On 8 November 1965 the BIOT Orderi in
Council was made. It detached the islands of the Chagos Archipelago
from Mauritius, and three further islands from Seychelles, thus
creating a new territory: BIOT. The British Governor the Seychelles
was to be appointed its Commissioner. He was to have legislative
power in BIOT. There was of course no provision for any representative
assembly, since the islanders were to be "resettled".
11. On 10 November 1965 the Colonel Secretary
gave a written answer to a self-generated question, to the House
of Commons. It referred to the agreement of Mauritius and Seychelles
to the detachment of these islands; it mentioned a population
of 1,384. It stated an intention that the islands would be available
for defence facilities of the UK and US. It failed to mention
that the population was to be deported.
12. In the absence of any disclosure of
the intended fate of the population, there was no public unrest
or further enquiry from members of the House.
13. Officials agonised over how to get rid
of the population when it had a right to self-determination guaranteed
by Article 73 of the United Nations Charter. For example, a Minute
dated 9 November 1965 within the Colonial Office stated "we
should for the present continue to avoid any reference to permanent
inhabitants, instead referring to the people in the islands at
present as Mauritians, Seychellois, or by some similar term".
Other officials talked of "a whopping fib", and of "maintaining
the fiction" that there were no permanent inhabitants.
14. On 11 November 1965 the British representative
at the United Nations, Mr F D W Brown, was due to make a full
disclosure of Britain's efforts at complying with the UN Charter,
in respect of its various colonies. He too agonised over how to
get away with the establishment of a new colony with its own population,
when UN resolutions had (a) prohibited the break-up of non-independent
colonies; and (b) the use of colonies for military purposes. Mr
Brown proceeded to announce what had happened in seriously misleading
terms. He stated: "The islands in question were small
in area, were widely scattered in the Indian Ocean and had a population
of under 1,500 who, apart from a few officials and estate managers,
consisted of labourers from Mauritius and Seychelles employed
on Copra Estates, Guano extraction and the turtle industry, together
with their dependents. The islands had been uninhabited when the
UK first acquired them. They had been attached to the Mauritius
and Seychelles administrations purely as a matter of administrative
convenience. After discussions with the Mauritius and Seychelles
governments—including their elected members—and with
their agreement, new arrangements for the administration of the
islands had been introduced on 8 November. The islands would not
longer be administered by those governments but by a Commissioner.
Appropriate compensation would be paid not only to the governments
of Mauritius and Seychelles but also to any commercial or private
interests affected. Great care would be taken to look after the
welfare of the few local inhabitants, and suitable arrangements
for them would be discussed with the Mauritius and Seychelles
governments. There was thus no question of splitting up natural
territorial units. All that was involved was an administrative
readjustment freely worked out with the governments and elected
representatives of the people concerned".
15. In truth, (a) the population had lived
there since the 1770s and went back five generations; (b) no consultation
had taken place with the islanders, and they had no elected representatives,
being disenfranchised both in Chagos and in Mauritius (c). Again,
there was no mention of deporting the population.
16. Moreover, Mr Brown was well aware of
the permanence of the population and the UK's obligations under
the UN charter, since in his letter dated 22 February 1966 to
the Colonial Office, Mr Brown stated: "on the basis of
the information available it seems to us difficult to avoid the
conclusion that the new territory is a non-self-governing territory
under Chapter XI of the Charter particularly since it has and
will or may have a more or less settled population, however small".
17. On 30 December 1966 the UK and US governments
exchanged notes (Command 3231) concerning the availability of
BIOT for defence purposes. This was presented to parliament in
April 1967. Paragraph 11 of the Exchange states "The US
Government and the UK Government contemplate that the islands
shall remain available to meet possible defense needs of the two
Governments for an indefinitely long period. Accordingly after
an initial period of 50 years this Agreement shall continue in
force for a further period of 20 years unless, not more than two
years before the end of the initial period, either Government
shall have given notice of termination to the other, in which
case the Agreement shall terminate two years from the date of
such notice". It could be argued that this provision
means that either party can give notice of termination at any
time after 2016, in which case the facility must end two years
later. There would be nothing to stop HMG telling the US well
in advance of that date that it intends to renegotiate the Agreement
in 2016 or seeking their agreement to it finishing earlier.
18. The Exchange of notes also made an oblique
reference to what was to happen to the population which the USA
had encountered on its various reconnaissance visits: It was for
the UK to take what were described as "those administrative
measures that may be necessary to enable any such defence requirement
to be met" as the US might want. There was to be consultation
with UK over the time required for the taking of such measures
provided that in the event of an emergency requirement "measures
to ensure the welfare of the inhabitants are taken to the satisfaction
of the Commissioner of the territory". There was therefore
no reference whatever in the treaty to the removal of the population.
There was however a secret Minute of Agreement dated 30 December
1966 which identified the "administrative measures"
referred to in the Exchange of Notes. These included terminating
or modifying any economic activity and the resettlement of any
inhabitants. This Minute was not made public until legal proceedings
took place some 30 years later. The Exchange of Notes was signed
by Lord Chalfont.
19. On 8 February 1967 the BIOT Ordinance
1, the Compulsory Acquisition of Land for Public Purposes Ordinance
was made by the Commissioner, acting alone as the sole legislature
for BIOT. It empowered the Commissioner to acquire the land compulsorily
for a public purpose, notably the defence purposes of the UK or
Commonwealth or other foreign countries in agreement with the
UK. No statement was made to the House of Commons.
20. On 3 April 1967 the Plantation Company
transferred its ownership of the islands to the Crown for £660,000.
The Crown then granted a lease to the Plantation Company to carry
on running the islands until the United States wished for them
to be evacuated.
21. It was not until December 1970 that
the US Congress approved the expenditure necessary to constitute
the new military base in BIOT. Notice was given to the UK that
Diego Garcia must be evacuated by July 1971. In January 1971 the
BIOT administrator, Mr Todd summoned the islanders to a meeting
on Diego Garcia and told them they would have to leave. He recorded
the consternation of the islanders who were shocked and bewildered.
22. In March 1971 the US Construction Battalions
landed on Diego Garcia. A number of villages were flattened in
the North of Diego Garcia causing the islanders' homes to be destroyed.
Unfortunately a graveyard was also destroyed without deconsecration.
23. On 16 April 1971 the BIOT Commissioner
enacted (alone) the Immigration Ordinance 1971. It made it unlawful
for someone to enter or remain in the territory without a permit,
whether or not they were born in the territory. It enabled the
Commissioner to make an order directing that person's removal
from the territory. It was given the minimum of lawful publicity.
It was the only legal instrument for removing the population and
it was at no stage referred to the Houses of Parliament.
24. The final removal from Diego Garcia
was described by Mr Justice Ouseley as follows: "Paragraph
36. The Ilois left behind their homes, their pets and domestic
animals, their larger items of moveable property, taking only
a small quantity of personal possessions. They regarded Diego
Garcia, rather than the Chagos Archipelago, as home. There is
no evidence of physical force being used, but most of their dogs
were rounded up and gassed or burnt in the "Calorifer"
used in Copra production. The sadness and bitterness was continuing
and evident".
25. On 3 November 2000, the High Court declared
unlawful Clause 4 of the Immigration Ordinance 1971 which exiled
the Chagos islanders from their homeland. On the same day Robin
Cook as Secretary of State caused the Commissioner to enact the
BIOT Immigration Ordinance 2000. This restored the right of abode
of the islanders to the Archipelago, save in respect of Diego
Garcia where a permit was still required to land.
Since November 2000, many Parliamnetary Questions
have been asked, dealing with the plight of the exiled community
of islanders, their right of return upheld by the Courts, the
lack of provision for their welfare from the Revenues of BIOT,
and finally the cost to Council Tax Payers of Crawley of the influx
of around 1,000 Islanders who have arrived in UK when they would
prefer to return to BIOT.
On 10 June 2004 two Orders in Council were passed
without consultation or inquiry or any reference to Parliament
or Members of the House. Jack Straw's letter of 15 June 2004 to
the FAC Chairman, admitted that he had deliberately not consulted
the FAC although bound to do so. The letter is on the Hansard
website.
26. Together they provided that the Chagos
islanders' right of abode in their homeland was abolished. An
early day motion was sought by approx. 40 MPs and on 14 July 2004
a Westminster Hall debate took place. Members of all parties criticised
the Government's actions but no steps were taken to revoke the
Orders in Council.
On 11 May 2006 the High Court declared the Orders
in Council unlawful. They were described as "repugnant"
and "irrational" by two senior High Court Judges. On
23 May 2007 the Court of Appeal upheld this judgment and refused
leave to appeal to the House of Lords. However on 30 June 2007
the House of Lords granted the Secretary of State leave to appeal
on condition that she pay the costs of the appeal on both sides,
whatever the outcome of the appeal. All questions of the policy
behind the Orders in Council have, since the Westminster Hall
debate been resisted by Ministers on the ground that the case
is "sub-judice".
In answer to a Petition on the No 10, Downing
Street website calling for the appeal to be abandoned, the Prime
Minister's office responded on 4 September 2007 as follows:
"Orders in Council are the only current
means, save an act of Parliament, by which we can introduce primary
legislation for ceded Overseas Territories, of which the British
Indian Ocean Territory is one. It is common to use Orders in Council
to legislate both in the UK and in the Overseas Territories. For
example, in 2000 the Government enacted an Order in Council under
the Royal prerogative to decriminalise homosexuality in the Caribbean
Overseas Territories.
"The former Foreign Secretary, Margaret
Beckett, decided to seek permission to appeal against the 23 May
2007 Court of Appeal judgement primarily because the judgement
raises issues of constitutional law of general public importance
that, in her view, would adversely affect the effective governance
of all British Overseas Territories. This would include confusion
in the legal system to be applied in those Overseas Territories,
and potential conflicts between local and English courts. For
these reasons the former Foreign Secretary thought it to be in
the public interest that the effect of the Court of Appeal's judgement
even if correct, should be clarified.
"If permission is granted, we expect
the case to be heard by the House of Lords in 2008. It would be
inappropriate to comment further in relation to ongoing proceedings".
31 January 2008
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