Chagos 2008 legal decision called into question

The narrow 3-2 verdict by the Law Lords against the islanders’ right of return in 2008 was in part based upon an earlier study into resettlement that has now been discredited. That raises important questions about the legality and fairness of the legal process

On Wednesday 17 December the Chagos Islands UK All-Party Parliamentary Group (APPG) held its 40th meeting.

The minutes issued by the coordinator, the former British High Commissioner to Mauritius (2000-04), David Snoxell, make interesting reading. The full text is printed below. But two points are noteworthy.

Firstly, the APPG has highlighted the fact that despite the flurry of activity at the Foreign & Commonwealth Office in regard to setting up a new feasibility study into resettlement of Chagos (including Diego Garcia) by exiles and their descendants, Mauritius has not been engaged in the consultation. The APPG wants this to be put right as a matter of urgency.

Secondly, we learn that lawyers for the Chagossians have written to the Treasury Solicitor to point out that the narrow 3-2 verdict by the Law Lords against the islanders’ right of return in 2008 was in part based upon an earlier study into resettlement that has now been discredited. That raises important questions about the legality and fairness of the legal process. The APPG has invited UK Foreign Secretary William Hague to set aside the judgement.

“The Group reviewed the progress made since its first meeting 5 years ago, on 16 December 2008. Members recalled the purpose of the Group was “to help bring about a resolution of the issues concerning the future of the Chagos Islands and the Chagossian people”. The Group had also decided that “following the end of legal proceedings (Law Lords judgment Oct 08) the responsibility for the Chagos Islanders now rests with Parliament”.

At its second meeting on 29 Jan 2010, the Group agreed several objectives one of which was. “A truly independent study of the practicalities and way in which a limited resettlement of Salomon and Peros Bahnos can be achieved… drawn up in consultation with interested parties, not least the Chagossians”. They were pleased to note that after 5 years the FCO had now agreed to a new study. They were disappointed that another of its objectives (“Discussions with Mauritius on the future sovereignty of the Outer Islands”) had not so far begun although its objective (“Re-negotiation of the Agreement with the US by 2015, to reflect the right of the Chagossians to live on the Islands and any changes to the sovereignty of those Islands”) appeared to be on course.

Members discussed the proposed TORs for the new feasibility study. They endorsed the points made by Baroness Whitaker, Lord Avebury and Lord Luce in the Lords debate on 27 November, in particular that it would be necessary to cut the length of the study from 12 to 6 months in order for decisions to be made and implemented before the general election. Members agreed that they should continue to monitor the process and timetable closely.

The Group decided that the Chairman should write to the Foreign Secretary about this and other concerns such as the need to engage Mauritius in a diplomatic dialogue concerning the future management of the Islands and of the MPA. As Lord Luce had said in the debate ‘it is essential that they (Mauritius) are regarded as a vital player in any Chagossian solution’. Members agreed with Lord Avebury’s suggestion, made in the Lords debate, that to help break the ice the new BIOT Science Adviser, along with members of the BIOT Science Advisory Group, should have meetings with their Mauritian counterparts to discuss a joint approach to the science of Chagos, sharing data and current research. The Group decided to invite the Mauritian High Commissioner to a meeting.

Members were keen to take up the Foreign Secretary’s offer of a further meeting which he had made at the last meeting with the Group on 15 December 2011.”

The Group also discussed legal developments. They took note that permission had been granted by the High Court for an appeal against the judicial review of the MPA to be heard on 31 March on the three grounds of improper motive, fishing rights and EU law. Members were interested to learn that, with respect to the ruling of the Law Lords in Oct 2008, lawyers had recently written to the Treasury Solicitor alleging a miscarriage of justice, on the grounds that the flawed feasibility study and the way it had been influenced, was a key factor on which the majority judgment had been based. The letter invited the Foreign Secretary to set aside that judgment and restore the right of return.

Sean Carey is research fellow in the School of Social Sciences, University of Roehampton


* Published in print edition on 20 December 2013

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