Examination of Witnesses (Questions 120-139)
MR. LOUIS
OLIVIER BANCOULT
AND MR.
RICHARD GIFFORD
23 JANUARY 2008
Q120 Mr. Illsley: Before I come to
the question of legal proceedings, may I ask if the people of
Mauritius resent the Chagossians for coming on to their island
or are you living quite happily with the Mauritian population?
Mr. Bancoult: Even the Mauritian
people were not aware of what happened, because an exchange had
been made for Mauritian independence. When we arrived, many people
said that we had just come: it was very difficult because there
was a lack of jobs for Mauritians. There were many problems then,
and many people chose to leave Mauritius and go abroad. It has
become more difficult for Chagossians, because most of our people
do not have a level of education, as education came very late
to Chagos. It has become more and more difficult to do the work
that we expect to do because it does not exist in Mauritius.
Q121 Mr. Illsley: My next question
is on the legal proceedings. As you are aware, the Government
have decided to petition the House of Lords for a further appeal,
using the grounds that the implications of this case apply to
other Overseas Territories, particularly in the use of the royal
prerogative. What is your opinion? Do you feel that that is a
legitimate reason for petitioning the House of Lords, or is it
simply a delaying tactic to try to prolong things even further?
Mr. Gifford: Perhaps I can answer
that question. There is a limit to what I can say, bearing in
mind that the issues in the appeal are, of course, for their lordships.
However, in so far as they are basing the appeal on the constitutional
right of the Crown to legislate for the Overseas Territories without
review by the judges or by Parliament either, that is a constitutional
matter that barely concerns the Chagossians. They have now had
three courts in 10 years; seven senior judges have said unanimously,
"You simply can't do this. You cannot remove a population
from their homeland." The pity is that all seven judges have
adopted different judicial reasoning to get to the same conclusion
and, of course, seven judgments like that bristle with issues,
as the Court of Appeal, in refusing leave to appeal, expressly
acknowledged.
These poor people, who have been sorely treated
for 40 years, have been caught up in the wheels of constitutional
nicety. We are not even sure that the Government actively resist
the right to return; we cannot get any sense out of them, because
they will not say what their policy is.
Q122 Mr. Illsley: The fact that the
Court of Appeal refused leave to appeal tends to imply that it
decided that this was an end to it, and suggested to the Government
that by refusing leave to appeal that they should accept the decision.
Mr. Gifford: Yes, that is absolutely
so. One reason why they might have come to that conclusion was
that after the first judgment, Robin Cook, as Foreign Secretary,
expressly endorsed the judgment and said, "We accept the
judgment. We will not appeal." He said that the feasibility
studies then took on a new importance, and he was held to that
promise by the Court of Appeal.
Q123 Mr. Illsley: Given that the
House of Lords must, by definition, be the final leg of any legal
proceedings, if it grants an appeal, what sort of time scale are
you looking at before getting to the end of the legal stages?
Mr. Gifford: You mean if the House
of Lords dismisses the Government's appeal?
Q124 Mr. Illsley: As I understand
it, the Government are petitioning to appeal to the Lords. Is
that right?
Mr. Gifford: They have been granted
permission to appeal, but on an unusual condition. In granting
leave, their Lordships' House directed that the Government must
bear the legal costs of both parties, whatever the outcome of
the case.
Q125 Mr. Illsley: What is the time
scale now?
Mr. Gifford: That case has been
set for 30 June.
Q126 Sir Menzies Campbell: I have
a number of legal points to make, although they are not necessarily
related. What is the legal status of the Chagossians in Mauritius?
Do they enjoy the same rights and privileges as citizens? Do they
have access to health and education? Are they disqualified from
voting in elections and things of that kind? Have you ever had
sight of the lease due to expire in 2016 to determine whether
the possibility of an extension would require the agreement of
both parties, or whether the United States could unilaterally
ask for it?
Mr. Gifford: May I answer the
second question first? It is a popular misconception that there
is a lease. There is not, Sir Menzies. There is simply an exchange
of notes, dated 1966, which declare jointly that the islands shall
be made available for the joint defence purposes of the UK and
US for an indefinite period. It is then said that there will be
a review of that in 2016. It is unclear whether one party can
optionally extend, or whether it needs the consent of both parties.
I think that it is the former, because it provides for an indefinite
use of the base—and no rent is paid, by the way.
Q127 Sir Menzies Campbell: It may
not be a formal lease, but the exchange of those letters, and
actions in reliance of them, might well be thought to have created
a legal relationship equivalent to a lease. Is it your view that
the way in which those letters are framed would allow the United
States to say, "We want to go on indefinitely," and
that the United Kingdom would not be in a position to resist that?
Mr. Gifford: In the narrow terms
of the 1966 treaty, I believe that that is the case. However,
of course, the UK is still the sovereign. If it might be breaching
the lowest form of treaty—the exchange of notes—by
saying no, one could point out that they were in breach of a whole
raft of multilateral treaties in getting rid of the population
in the first place.
Q128 Sir Menzies Campbell: Are you
aware of any other circumstances under which the British Government
have acted in such an apparently favourable way towards another
country in relation to territory for which the British Government
are responsible?
Mr. Gifford: I am not aware of
any other case where the entire territory has been given away
for nothing.
Q129 Andrew Mackinlay: Quite apart
from the outrage, in my view, at the removal of the islanders,
surely the legal title of the real estate remains with the islanders.
If not, by what instrument was that taken from them?
Mr. Gifford: Very interesting.
It was carefully planned in Whitehall from the outset. After the
exchange of notes in 1966, legislation on the territory was passed
by the commissioner alone, by means of an ordinance, to provide
for the compulsory purchase of the freehold interest of the plantation
company, which then transferred the freeholds to the Government.
To make matters clear, another ordinance was passed declaring
the entire archipelago to be Crown land.
Q130 Andrew Mackinlay: For expedition
purposes, could you give us a note on the extent to which there
has been parliamentary oversight or authority? From what I make
of what you have just said, there has been none or very little.
We are interested in the extent of parliamentary oversight. The
other thing that I just wanted to touch base with you on is this.
To the extent that they are near neighbours, is there not a common
sea boundary with the Republic of Maldives and is there not some
sea territorial issue with it?
Mr. Gifford: The
Maldives are 1,000 miles away.
Andrew Mackinlay: I know.
Mr. Gifford: So
there are international waters in between. There is a 200-mile
economic exclusion zone all the way around Chagos. However, as
their lordships pointed out in the divisional court, any vessel
exercising the right of innocent passage can pass within three
miles of Diego Garcia itself.
Andrew Mackinlay: May I ask a question
about Mauritius, or should I come back to it later?
Chairman: I would rather stay with this
US issue, as I have John Stanley to come in next.
Q131 Sir Menzies Campbell: Would
you indulge me for just one moment? Compulsory purchase is usually
followed by compensation, to compensate the person whose land
has been compulsorily acquired for the loss of that land, and
specifically for that. Sums of money were disbursed eventually,
but was that money provided in reliance of the principle that,
where there is compulsory purchase, there should be compensation,
or was it provided on some kind of ex gratia, unspecified basis?
Mr. Gifford: After
compulsory purchase powers were passed, they negotiated with the
plantation company and agreed a figure of £670,000 for the
freehold, which was paid to the company. There was a provision
that if anyone else claimed any interest in the land, they had
to lodge a claim with the Governor in the Seychelles within a
certain period—about six months or so. Unurprisingly, the
Governor did not receive any claims from the Chagossians, even
though their customary title had stretched back for five generations
over large swathes of the islands, but of course they were unable
to access that kind of mechanism and their rights were simply
swept away.
Chairman: We will come later to some
other questions about compensation. Can we just focus for the
moment on this US base issue?
Q132 Sir John Stanley: Mr. Bancoult
and Mr. Gifford, I went to Diego Garcia some years ago. When I
was there, it was a military installation that was in very substantial
use. The whole of that main island had been taken over for military
purposes. So, leaving aside the merits of the case just for a
moment, I imagine that you would agree that, in terms of sheer
practicality, there is no possibility of a conjunction of continuing
US air operations and all the other facilities on the main island
of Diego Garcia alongside a return of the Chagossian community,
with their agricultural requirements and so on. You would accept
that there is no way that they can live cheek by jowl on the same
island. I think that that is self-evident, but perhaps you could
confirm that. I will come to the outer islands in a moment.
Mr. Gifford: For
practical purposes, the resettlement plan of the Chagossians,
which will be launched in the House of Lords next month, will
be confined to the outer islands of Salomon and Peros Banhos.
The Chagossians accept that, for present purposes, it is not politically
practicable to press for a return to where they mostly originate
from, which is Diego Garcia, and where, we have to say, their
heart lies.
However, as to whether it is practically feasible,
we say, "Well, why on earth not?" Although you say that
Diego Garcia is entirely occupied by the military, it is clear
from this particular map published by the Chagos Conservation
Trust, which is in turn funded by the British Indian Ocean Territory,
that approximately one half of the island is set aside for nature
conservancy, or a nature reserve. There are only small parts of
the island—well, substantial parts, but probably amounting
to no more than a third in total—that are occupied by the
military airfield and what they call the downtown area, and that
sort of thing. Diego Garcia is 40 miles around, and it is mostly
forest. So, in due course, it should not be impossible to re-establish
settlements there, but we accept that it is too politically sensitive
for the Americans at the present time to push for that.
Q133 Sir John Stanley: We do not
have a copy of your conservation leaflet. Perhaps you would like
to give us a copy.
Mr. Gifford: I would be happy
to leave the leaflet with you. I have other copies.
Q134 Sir John Stanley: Can we come
on to the second part of my question? The only practical option
it would appear at the moment is a resettlement based on the outer
islands. Certainly when I was there flying over them, they all
appeared to be absolutely uninhabited, and I believe that is the
case. Under your resettlement plan, which I am sure the Committee
will be interested to see when you make it available, is it possible
to produce an economically viable solution for the returning Chagossian
islanders? I understand entirely that that does not bring them
back to where their heart may lie and the island they came from,
but does it produce an economically viable and acceptable solution
in that sense?
Richard Gifford: Indeed. We have
had an extremely distinguished land economist, well known to Department
for International Development and the FCO, working on this proposal
in close conjunction with the exiled community. I have a very
brief synopsis here. He says that there are no physical, economic
or environmental reasons why resettlement on two islands should
not take place. I have seen the draft but will not go into detail.
He has a fairly well-constructed plan for regenerating the economy,
which is not surprising because the Government's own consultants
established that you could double or treble the fisheries catch
even in a sensitive marine environment like Chagos, without causing
damage to fish stocks. You could establish eco-tourism, for which
there is a very high demand. The coconut plantations could be
rehabilitated. These days you could make biofuel out of coconuts.
There is a paper by the man who runs the Marshall islands who
says that you can run your Mercedes and the boats on biodiesel
made from local coconuts. There are many things that could be
done economically.
Q135 Sir John Stanley: The issue
of the moderately close conjunction of the civilian population
and a full-scale operational airfield is one with which we are
very familiar in the UK. Many members of the Committee have visited
USAF bases, particularly when the USAF was here in larger numbers
than it is now. They are under the RAF flag but are basically
run by the USAF. They are in extremely close proximity to the
civilian population. Could you explain why the British Government
at the time felt it necessary to comply, presumably on security
grounds, with the American view that there had to be a complete
clearance of all the Chagossians from the outer islands and why
they were not allowed, and are still not allowed, to return to
the outer islands, when in virtually all cases they would be substantially
further removed from the US air base than they would be on some
of the remaining operational facilities which the USAF have here?
Richard Gifford: I share your
view of military bases run by the US. I do not know of any other
military base in the world that does not have an adjacent civilian
population. Indeed, there are 2,500 civilians living on Diego
Garcia at the moment. All but three are imported from the Philippines
and Sri Lanka, which is where they prefer to recruit their civilian
workers. Three are Chagossians. As a result of a mass application
by Chagossians, who had been refused employment on the base for
30 years, three managed to get employed there. The conditions
are harsh. They are not allowed home for two years. It is a two
years without leave contract. It would be marvellous if they could
just potter across the archipelago and go and see their families
in the northern islands.
Q136 Sir John Stanley: I have one
final question. As you may know, the Committee has visited Guantanamo
Bay and we have produced a report to the House of Commons on extraordinary
rendition. There has been a great deal of speculation and reports
in the media that Diego Garcia might be being used for extraordinary
rendition. Ministers have rested on unequivocal American assurances
that this has not been the case as far as Diego Garcia is concerned.
For example, a written answer given by the Foreign Office Minister
Kim Howells on 26 October 2006 said: "The US authorities
have repeatedly given us assurances that no detainees, prisoners
of war or any other persons in this category are being held on
Diego Garcia, or have at any time passed in transit through Diego
Garcia or its territorial waters or airspace. This was most recently
confirmed during the 2006 US/UK Political Military Talks held
in London on 17 and 18 October."—[ Official Report,
26 October 2006; Vol. 450, c. 2076W.]
Have you any evidence to put to the Committee
that those assurances given by the US authorities to the British
Government are incorrect?
Mr. Gifford: I have two pieces
of information. I am aware that a retired US general whose name
is Barry—I am afraid that I have forgotten his surname—made
two broadcasts on national public radio in which he suggested
that it was known in the US military that Diego Garcia was used
for these purposes. If you have had a paper from Reprieve, I believe
that they have summarised the speeches in full.
I myself am aware, because I read it in The
Sunday Times about a year ago, that The Sunday Times
tracked the flight records of a particular aircraft that is known
to be engaged in extraordinary rendition and, when the suspected
terrorist Ramzi bin al-Shibh was arrested in Pakistan, that particular
flight took him first to Diego Garcia and then on to Guantanamo
Bay. Of course, I cannot personally verify that in any way. That
is the extent of my information.
Q137 Sandra Osborne: Does the Foreign
Office have any sort of mechanism, either formal or informal,
for finding out what is actually happening on the islands, or
is there completely no discussion or relationship with the formal
inhabitants of the islands?
Mr. Gifford: There is no attempt
to consult the population or their representatives about what
goes on on the islands. All that I can say is that after about
four years of delay, the Foreign Office did arrange and pay for
a boat trip for 100 Chagossians, who visited the islands in April
and May of 2006. One hundred of the old folk were taken back there
for a visit and tended some of the graves. They tried to exclude
Diego Garcia from the trip, but Olivier's people said, "No,
we will not go if it is excluded, as we are only visitors after
all." It was then allowed. As far as I know, that is the
extent of it. They do what they like and it is an unsupervised
paradise. I think that they like the idea of no oversight, no
consultation and nobody looking over their shoulder. The last
thing that they want under present policy is to have to consult.
Q138 Mr. Keetch: Going back to the
base and the exchange of notes, as you described it, back in the
1960s, are you aware of any provision in those notes or have you
come across any declarations in Parliament that suggest that the
UK might have some control over US activities on the base? In
other words, I am trying to follow up on what Sir. John was asking
about rendition. If it was being used for rendition, or if the
US were using the base for bombing operations, do you know of
any agreement by the US that they would require them to seek the
UK Government's approval to use that base, for example, in the
same way that the UK had to approve operations coming out of US
air force bases in England?
Mr. Gifford: I believe that there
is a liaison committee to deal with military and administration
matters. I asked the commissioner some time ago how often it met
and was told that it was very sporadic—once or twice a year.
There is nothing that I am aware of in the exchange of notes or
any subsequent agreement which requires the UK to consent or even
to be informed. With regard to building on the island, for example,
they recently sought the permission of the British Government
to build some shelters for the stealth bombers because they are
very sensitive. The British Government gave consent and there
was a note published in which they agreed to that. As to operational
and military dispositions, I am not aware of any requirement to
consult.
Q139 Mr. Keetch: As far as you know,
has there been any suggestion that there are any British liaison
people working at the base?
Mr. Gifford: Yes, there is what
they call a "Brit rep," who is the senior naval officer.
There is a small retinue of naval personnel and there are usually
three or four British policemen, know as the BIOT—British
Indian Ocean Territory—police, who are seconded from over
here. With regard to quite how effective that oversight is, I
can tell you that when I visited I was told by a policeman that
they were really only concerned with confiscating pornographic
videos and drugs and that was the extent of their remit.
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