Diego Garcia: Court of Appeal finds abuse of power

On 24 May 2007 the UK Court of Appeal upheld a decision that two Orders made by the UK government about the British Indian Ocean Territory, the Chagos Islands, which include the island of Diego Garcia, constituted an ‘abuse of power’.

The British Indian Ocean Territory is a British Overseas Territory. Its population are
British overseas territories citizens and most are entitled to British Citizenship. The Chagossian population of the British Indian Ocean Territory, the Ilois, was exiled in the 1960s and 1970s when the island of Diego Garcia was leased by Britain to the United States of America as a military base. That lease continues today.  

In 2000 the UK Divisional Court found that two UK Immigration Ordinances exiling the Chagossian population were unlawful.  The UK government accepted the ruling, and the then Foreign Secretary stated:

'The Government has not defended what was done or said thirty years ago…we made no attempt to conceal the gravity of what had happened.’

Investigations into the return of the Chagossian population were carried out. They had not yet returned when, in 2004, the UK government made two Orders in Council (orders made under the Royal Prerogative) purporting to exile them again. They would not be permitted to return without a permit.

In the case, called Re Bancoult [2006] EWCA Civ 498, the UK government argued that old, colonial, legislation, the Colonial Laws Validity Act 1875, meant that the Orders in Council could not be challenged in the UK courts, whatever the terms of those Orders. The UK government argued that Orders in Council are a sovereign act of the UK Crown (the Queen acting through the government) and can be challenged only on the ground of incompatibility with imperial legislation. 

The UK government lost in the UK Court of Appeal, as it had previously lost in the UK Divisional Court. The Court of Appeal examined carefully the laws that the UK had used to govern its colonies when it was a colonial power in coming to the conclusion that the two Orders in Council exiling the Ilois could be challenged in the UK courts.

The Court of Appeal then examined the orders. It found them to be unlawful and an abuse of power.  Lord Justice Sedley said:

‘…the two Orders in Council negate one of the most fundamental liberties known to human beings, the freedom to return to one’s homeland…and…they do this for reasons unconnected with the well-being of the people affected.'

The Court of Appeal found that the Chagossians had been vouchsafed a right of return when the UK government accepted the ruling that its Immigration Ordinances exiling the Chagossians were unlawful. Nothing material had changed since then: the UK government could not point to anything and the letters written by the government of the United States of America for the purposes of the Bancoult case and put before the Court of Appeal did not evidence any material change.  In the circumstances, the actions of the UK government were an abuse of power. Lord Justice Waller summed up the position:

‘The Foreign Minister made a statement holding out to..the Ilois, that they would be allowed to return to the Outer Islands.  No justification or reason has been provided as to why that promise should not be withdrawn….to frustrate the expectation of the Ilois would be so unfair that to take a new and different course could amount to an abuse of power, unless there is an overriding interest to justify a departure from what has previously been promised.’

One of the judges, Lord Justice Sedley, suggested that the UK Crown does not have the power at common law to exile a whole population. The other judges were not convinced that it was possible to lay down such a broad principle, but were convinced that in this case the UK government could not remove from the Chagossians the freedom to return to their home.  There was no overriding interest to justify breaking the promise made to the Ilois in 2000. Lord Justice Waller said:

‘… the government…took a decision to go back on the statement of Robin Cook [the Foreign Secretary in 2000] that there would be in place an Ordinance that the Ilois should be quite free to return to the Outer Islands.  No explanation was given to those representing the Ilois, and thus no-one sought to suggest to the Ilois a reason why a change of heart was taking place.’

It remains a possibility that the UK government will try to appeal the case to the UK House of Lords, but it is also possible that this will be the final chapter, in the UK, of a case summarised in the following terms by UK Ministers in 2004: ‘…the decisions made by successive governments in the 1960s and 1970s to depopulate the islands do not, to say the least, constitute the finest hour of UK foreign policy.’

Alison Harvey,  Gherson and Co.