Amal Clooney and the Chagossians

“My wife’s the smart one,” says George Clooney without a trace of irony. Before her marriage in September to the Hollywood heartthrob Lebanese-born Amal Alamuddin was well known in international legal circles for her human rights work.

But now Amal Clooney has become a global celebrity through what marketers call the “halo” effect emanating from her spouse. For example, Ms Clooney was acclaimed as London’s leading woman in the Evening Standard’s Power List 2014 easily beating UK Home Secretary, Theresa May, and fashion designer, Victoria Beckham. And there are endless articles focusing on her “glorious hair” and “most stylish looks” in accordance with her new “style star” status.

Last week, however, found Amal Clooney not on the red carpet of a film premiere but working alongside fellow Doughty Street Chambers barristers Edward Fitzgerald QC and Paul Harris SC in the Supreme Court to ask a panel of five judges, led by President Lord Neuberger, to set aside the 2008 House of Lords’ ruling upholding the 2004 Order-in-Council (issued under the royal prerogative) abolishing the Chagos Islanders’ right of abode in their British Indian Ocean Territory (BIOT) homeland.

This is the latest episode in a marathon legal challenge which has been running since 1998 when Olivier Bancoult, leader of the Port Louis-based Chagos Refugees Group, contacted solicitors Robin Mardemootoo in Mauritius and Richard Gifford in London. The Bancoult legal team, which included legendary South African-born barrister Sir Sydney Kentridge QC, went on to win a series of spectacular legal victories in the UK’s lower courts establishing the right of return of the 1750 or so islanders, who were forcibly removed from their homeland in the Chagos archipelago between 1968 and 1973, to make way for the US base on Diego Garcia. However, disappointment followed in 2008 when the UK government won a victory in which the House of Lords, then the highest court in the land, split 3-2 regarding the legality and rationality of the Order-in-Council.

I attended some of the hearing in the House of Lords and was astonished by the number of lawyers in attendance from around the world – American, Australian, Canadian and South African. It was clear that the Chagos case has enormous implications, especially because of the singular importance of Magna Carta in international law. In particular, those powerful words in the 39th clause of the charter which are so often invoked by those fighting ethnic cleansing and other human rights abuses: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, or will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

However, it was left to South African-born Lord Hoffmann, one of the three judges who found for the UK, to deliver the bad news to Bancoult and his compatriots. “The right of abode is a creature of the law. The law gives it and the law may take it away,” he stated simply if controversially.

Nevertheless, on the day the verdict was announced I noted how many of those on the side of the Chagos exiles, especially many legal experts, took great comfort from the minority opinion offered by Lord Mance and Lord Bingham who found for the islanders. Bingham, widely regarded as the greatest judge of the modern era, took the view that former Labour foreign secretary, Robin Cook, had changed fundamentally the legal and political narrative after declaring that the UK would not appeal against the 2000 High Court judgement restoring the right of return.

Cook also set up a feasibility study to see if the Chagossians, the descendants of African slaves who had worked on the coconut plantations in the archipelago since the late 18th century, could live on some of the previously inhabited outer islands, such as Peros Banhos and Salomon.

According to Bingham in 2000 the Chagossians “were clearly intended to think, and did, that for the foreseeable future their right of return was assured.” He added: “The government could not lawfully resile from its representation without compelling reason, which was not shown.”

Lord Bingham died in 2010 but his influence lives on. “We knew something was wrong, somewhere,” Robin Mardemootoo told l’express. “You can’t win unanimously before the High Court, unanimously before the Court of Appeal, and then lose 3/2 with Lord Bingham ruling for us. That was not normal.”

Amal Clooney’s glorious hair and fashion sense predictably gained the attention of the UK tabloid press as she posed outside the court for a photograph with Bancoult and his supporters (“the London-based barrister … looked elegant in polka dots,” according to the Daily Express) but in the court room itself the focus was very much on a key legal argument, whether documents (a draft of the feasibility report, correspondence, and detailed review comments) which Foreign & Commonwealth Office officials had claimed were destroyed in 2002 but which in reality still exist should have been disclosed to Bancoult’s lawyers and the House of Lords in 2008.

As Edward Fitzgerald told the court, these documents now show that the House of Lords was misled into relying on the feasibility study as authoritative and the product of independent consultants when it was not. As a result the Chagossians were denied their right of abode because the majority judges in the Lords had understood resettlement to be precarious and prohibitively expensive. This was not correct at the time and, as corroborated by new evidence, is also incorrect.

While the inevitable focus has been Amal Clooney, it is of course the tireless work of lawyers behind the scenes that has brought the present case back before the courts. This includes the dogged determination of Richard Gifford over many years and since 2010, barrister and coral scientist Richard Dunne, who has unpicked the story revealed by the documents of incompetence and errors by the UK government and its advisers.

Whilst it will be a bold decision for the Supreme Court justices to overturn a decision of their predecessors, as Ed Fitzgerald told them there has been “a significant injustice” which had “no alternative remedy”. The present justices, who interestingly include Lord Mance, now have an opportunity to put right one of the worst human rights abuses carried out by the UK in the modern era.

Dr Sean Carey is honorary senior research fellow in the School of Social Sciences, University of Manchester

*  Published in print edition on 3 July 2015