High Court Rules on Displacement of Chagos Islanders

by Roger Alford

The High Court in London ruled yesterday that the resettlement of native islanders from their homeland in the Indian Ocean was unlawful. The case of Bancoult v. Secretary of State is available here. The islands of the Chagos Archipelago are of no small significance to the United States and the United Kingdom. The United States leases the only inhabitable island, Diego Garcia, as a joint UK-US naval support facility. As noted here, coalition aircraft from Diego Garcia dropped more ordnance on Taliban and Al Qaeda forces in Afghanistan than any other unit in the Afghan war. In short, these islands are the most important military outpost in the Indian Ocean.
The story of the displacement of the Chagos Islanders is quite amazing. A timeline is available here. A brief excerpt from the lower court opinion, Chagos Islanders v. Attorney General , [2004] EWCA Civ. 997, provides an objective background on their story:

The Chagos Islands are an archipelago in the Indian Ocean which includes the island of Diego Garcia. During the 1960s the United States administration decided that it required Diego Garcia as a strategic military base. The government of the United Kingdom set about accommodating this request, but at an early stage realised that it and the neighbouring islands had a substantial population, mostly Seychellois contract workers, but some (known as the Ilois) springing from former slaves who had remained there after emancipation or from migrant labourers who had settled there. It decided that both Diego Garcia and the neighbouring islands needed to be cleared of their population. To accomplish these ends the islands were separated in 1965 from the British colony of Mauritius and (together with some other islands detached from the Seychelles) made a separate colony, the British Indian Ocean Territory (BIOT). Mauritius itself in 1968 became an independent state. Its constitution gave Mauritian citizenship to everyone born in what had previously been the colony of Mauritius. This of course include the Chagos islanders, who were thereby entitled to settle in Mauritius. In 1967 the United Kingdom bought out the freehold interest of the company which now farmed copra on the islands and which employed virtually its entire population. It was the claimants’ case that those of them who went to Mauritius or the Seychelles for medical treatment and other things that could not be had on the islands were prevented from returning, and that the remainder were deported by ship. The defendants attributed the depopulation to the closure of the plantations on the islands. What is clear is that between 1967 and 1973 the entire population was removed to Mauritius and the Seychelles, where they had neither homes nor work…. It would be wrong of us to move on to the legal issues without acknowledging … the shameful treatment to which the islanders were apparently subjected. The deliberate misrepresentation of the Ilois’ history and status, designed to deflect any investigation by the United Nations; the use of legal powers designed for the governance of the islands for the illicit purpose of depopulating them; the uprooting of scores of families from the only way of life and means of subsistence that they knew; the want of anything like adequate provision for their resettlement: all of this and more is now part of the historical record. It is difficult to ignore the parallel with the Highland clearances of the second quarter of the nineteenth century. Defence may have replaced agricultural improvement as the reason, but the pauperisation and expulsion of the weak in the interests of the powerful still gives little to be proud of.

Following an adverse ruling in 2004, the Prime Minister invoked an unusual procedural rule known as an Order-in-Council, which sought to reverse the judgment applicable to overseas territories without parliamentary action. It is this action that was declared unlawful by the High Court yesterday. According to news reports, in yesterday’s ruling the High Court held that “Prime Minster Tony Blair’s attempt to use a centuries-old power of the Queen called an Order in Council to bypass Parliament and quash an earlier court ruling in the natives’ favor was ‘irrational'” and that “the suggestion that a minister can, through an Order in Council, exile a whole population from a British Overseas Territory and claim he is doing so for the `peace, order and good government’ of the Territory is repugnant.” The High Court further noted that “The defendant’s approach to this case involves much clanking of the ‘chains of the ghosts of the past’.”

You can read details about the judgment from various news sources here. I would greatly appreciate any knowledgeable readers to provide further details on the use of Orders-in-Council generally or more information about this specific case.


6 Responses

  1. So, my largely intuitive dislike of the resort to the ‘murky’ political question doctrine by the D.C. Circuit in Bancoult v. McNamara in April this year may not have been so far off base (no pun intended) after all (in comments to Julian’s prior post on this topic).

    Given Tobias Thienel’s previous comments, I suspect he may be just the sort of ‘knowledgeable reader’ you’re look for here….

  2. correction: ‘you’re looking for….’

  3. The court’s judgement is available on BAILII…

    England and Wales High Court, 11th May 2006

    Hooper LJ and Cresswell J, R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, [2006] EWHC 1038 (Admin).


  4. Thanks Charles. I have updated the post with the link.

    Roger Alford

  5. Thank you very much, Patrick. I’ll try to live up to your expectations.

    First, a minor correction: the excerpt in the post is from a decision of the Court of Appeal of England and Wales, which is actually higher than the High Court (the hierarchy in England and Wales being High Court, Court of Appeal, House of Lords). It was earlier than the present case because it was a very different form of action. The present case, just like the 2000 action, was for judicial review (and annulment) of the relevant Orders in Council. The case of Chagos Islanders v. Attorney General was an action for damages. This failed (the Court of Appeal refused leave to appeal in the quoted decision) for reasons relating to the intricate details of English tort law and specifically torts by servants of the Crown.

    The nature of Orders in Council is much discussed in the judgment of the High Court (2006). They are, so far as releant to the present case, basically legislation for Her Majesty’s Dependent Territories, made by he Queen in the Privy Council. This council is composed of the great and good, i.e. past and present Cabinet ministers, judges of the Court of Appeal and the House of Lords (hence the remark by Hooper LJ that he was present when the Orders were adopted), and many many more (they are all styled ‘The Right Honourable’).

    This may seem very odd, but then tradition, in the form of constitutional conventions, is nearly as important to the working of British constitutional arrangements as is the law. In this case, this means that the Orders are effectively made by the government of the day. They receive the Royal Assent, but they are apparently not put to the vote in the Council meetings.

    As for the Orders in this case overruling the 2000 judgment of the High Court, the government certainly made no such statement. In fact, the Secretary of State for the Foreign and Commonwealth Office made a statement in Parliament specifically accepting the judgment and refusing to defend the conduct of previous governments. Orders were made to allow the Chagossians to return.

    When the Orders now quashed were made in 2004, a junior minister explained that resettlement was simply not feasible, citing an experts’ report. The Orders were therefore made, so the minister argued, to prevent what was in any event unreasonable and extremely costly. Defence matters played no role in his argument.

    Whether this is very convincing remains wide open to argument. I suppose there is some truth in the use of the word ‘overruling’.

    The present judgment of the High Court (which is, of course, subject to appeal, should the government so wish) was based on the irrationality of the Orders. In English law, acts of the executive can be struck down by a court only if they offend specific law, or if they are plainly irrational (the Wednesbury test, so named after the great case of Associated Provincial Picture Houses Ltd v. Wednesbury Corpn [1948] 1 KB 223; sorry, I couldn’t find a link for this case).

    In this case, the Orders were irrational because the Court ruled that irrationality had to be decided by reference to the interests of the Territory of the Chagos Islands. No such considerations were apparent, as all thoughts relating to defence and to the US military were related only to the interests of the UK, not to those of the islands.

    This irrationality argument meant that the Court did not repeat the original holding of the 2004 judgment, in which Laws LJ (yes, really, and what a brilliant name for a judge) ruled that the authority of the Crown to legislate for the ‘peace, order and good government’ of a given region could not possibly extend to exiling the population from the area.

    Finally, the point about the government’s approach involving ‘much clanking of the chains of the ghost of the past’ related to the argument that Orders in Council benefitted from the same immunity as Acts of the UK Parliament, constituting legislation. This the Court denied, holding instead, in line with more recent authority, that Orders in Council were, in practice as in law, acts of the executive and therefore amenable to judicial review.

    I hope this was a little helpful.

  6. It was indeed: makes all this blogging stuff worthwhile!

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