Submission from Richard Gifford, legal representative, Chagos Refugees Group, 31 January 2008

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. Para 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 2 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 2 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: "Para 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 Jun 04 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."