Chagos islanders win legal battle to return home

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Chagos islanders win legal battle to return home
PA
Published: 23 May 2007

Families expelled from the Chagos Islands by the British Government to make way for the Diego Garcia US airbase today won their legal battle to return home.

The families and well-wishers packed the Court of Appeal for a ruling which condemned Government tactics stopping their return as unlawful and an abuse of power.

Three judges headed by the Master of the Rolls, Sir Anthony Clarke, refused a stay on the effect of their judgment, allowing the islanders to return to their Indian Ocean homes immediately.

The only island they will not be able to resettle under original High Court orders allowing their return, will be Diego Garcia itself.

Foreign Secretary Margaret Beckett, who took the case to the Court of Appeal after two High Court judges had found for the Chagossians, will now have to show "good cause" if she wants the appeal judges to order a stay.

The Government was also refused permission to take the case to the House of Lords but is expected to petition the Law Lords directly, seeking a final challenge at the highest court in the land.

Lord Justice Sedley, giving the lead ruling today, said the method used by the Government to stop the islanders returning - making an Order in Council under the Royal Prerogative - was unlawful and an abuse of power by the Government executive.

Lord Justice Waller said the decision had been taken by a Government minister "acting without any constraint".

"Indeed, the Crown may be doing something that, if she only knew the true position, she would prefer not to do, and yet it is then said that the Government can hide behind the 'Crown's prerogative'."




Richard Gifford, the solicitor for the islanders, said in a triumphant speech outside the Royal Courts of Justice in the Strand, that the appeal judges had thrown out the Government's appeal against a High Court ruling which cancelled two laws passed by "secret order-in-council procedure".

"It has been held that the ties which bind a people to its homeland are so fundamental that no Executive Order can lawfully abrogate those rights".

He went on: "This is now the third time that Olivier Bancoult, the leader of the Chagossian Community in exile, has proved to the satisfaction of English judges that nothing can separate his compatriots from their homeland.

"They now call upon the British Government for a new start in this abusive relationship and to proceed with the utmost urgency to restore these loyal British subjects to their homeland."




Lawyers for the Foreign Secretary had argued at the appeal hearing in February that the case involved issues of "great constitutional importance".

The High Court judges had condemned as "*****nant" the British Government's decision to "exile a whole population" from the Indian Ocean islands in the 1960s and 1970s.

The Government said the decision was made on the basis that it was necessary for peace, order and good government.

But Lord Justice Hooper and Mr Justice Cresswell ruled that the interests of the islanders from the British Indian Ocean Territory (BIOT) had been ignored and that orders made under the the royal prerogative to prevent their return were irrational and unlawful.

Because of the importance of the decision, which included a declaration that orders made under the royal prerogative are not immune from judicial review, the judges gave the Government permission to appeal.

The High Court dealt a blow to the Government in 2000 when it overturned measures introduced in 1971, in the form of an Immigration Ordinance, to keep the Chagossians in exile.

The court held the islanders had a right of return to the group of 65 islands in the Chagos Archipelago, although not to Diego Garcia itself.

Then foreign secretary Robin Cook said there would be no appeal and a "feasibility study" would be conducted into the possibility of their return.

The US military authorities expressed fears that any attempt to resettle any of the islands would severely compromise the security of Diego Garcia - the island used to launch bombing missions in both Iraq and Afghanistan.

It was then that the British Government decided that they could not go back after all.

The Government made an Order in Council under the royal prerogative declaring that no person had a "right of abode" in the British Indian Ocean Territory.

The High Court's ruling last May, which extended the powers of the judiciary to review the royal prerogative, overturned the order.

The judges said at the time: "The suggestion that a minister can, through the means of an Order in Council, exile a whole population from a British Overseas Territory and claim that he is doing so for the 'peace, order and good government' of the territory is, to us, *****nant."

They rejected Government argument that the royal prerogative - which consists of discretionary powers, not subject to parliamentary scrutiny, that belong to the Queen but are exercised by Government ministers in her name - were immune from judicial scrutiny.

They declared: "The decision was in reality that of the Foreign Secretary, not of Her Majesty, and is subject to challenge by way of judicial review in the ordinary way."

Chagos islanders win legal battle to return home - Independent Online Edition > Legal