Chagos and the Law Lords

Witnessing the evidence as the Lord Laws hear the case of the Chagos Islanders - forcibly removed fr

I meet Olivier Bancoult, leader of the Chagos Refugee Group in Mauritius, in the lobby of the House of Lords ahead of the hearing to determine whether the Chagossians will be allowed home.

"A big day," I say by way of a greeting. "Yes, a big day and a good day. Today is my mother's 80th birthday," he replies with a smile. His mother, Rita Issou, sits on a bench along with three other Chagossians a few yards away from where we are standing. She is smartly dressed but looks very frail. It’s understandable - and not just because of her age; she has experienced many sorrows in her long life including the loss of her husband and two sons (one to alcohol and the other to heroin) since the family was exiled to Mauritius from their island home of Peros Banhos in 1968.

Olivier tells me that in all 28 islanders have made the trip from Port Louis to London to witness how their fate will be decided in the highest court of the land. "I am very optimistic - justice will be done. We will return to Chagos very soon," he says confidently.

It has become obvious that there will not be enough space to accommodate all the visitors. A male clerk takes charge and announces that only the people at the front of the queue will be allowed in. This means that a lot of the UK-based Chagossians who have been holding a legal protest on the pavement opposite the House of Lords won't get a seat.

The Law Lords have arrived on time and at 11 o'clock around 70 of us file into the room. Before they enter the male clerk says that if anyone is going to leave the room to let him know whether they are coming back. If not the seat can be allocated to those who are waiting patiently outside in the corridor.

It's a highly ritualised setting. The five Law Lords -- Bingham, Hoffman, Roger, Carswell and Mance -- enter and we all stand up and bow. They sit in a semicircle at the front of the room. Facing them are the respective barristers -- Jonathan Crow QC and Kieron Beal acting for the appellant, British Foreign Secretary, David Miliband, and Sir Sydney Kentridge QC, Anthony Bradley and Maya Lester acting for the respondent, Olivier Bancoult.

Behind them sit other members of the respective legal teams including Richard Gifford of London-based solicitors, Clifford Chance, who has worked tirelessly on this case since the late 1990s.

Jonathan Crow stands up and makes the case for the government invoking the Colonial Laws Validity Act 1865. He chooses not to defend what was done to the Chagos islanders by previous governments -- "the awfulness of what happened in the 60s and 70s" -- but instead focuses on the role and scope of orders in council issued under the royal prerogative -- "the highest level of political judgement" -- as they relate to the defence interests of the UK and US. He extends the argument and says that there would be an "unacceptable risk" to both countries if the islanders returned to the Chagos Archipelago and points out that in any case they have received generous compensation from the British government which amount to "substantial sums at today's prices".

After about 40 minutes some of the journalists from the news agencies have got enough of what they want for a story and leave the room. Their places are taken by some Chagossian women. Some of the Law Lords then start to make interventions. They ask questions or elaborate points of law. When one of the Law Lords says something Crow likes he nods his head a lot.

When Crow gets a difficult question he moves from side to side before giving his reply. And when he gets a really difficult question or one that he doesn't know the answer to as, for example, when he was asked when Mauritius became a republic he raises his left shoulder and goes into a bit of a crouch. But interestingly his voice remains clear at all times even when he is evidently flapping his wings to stay up in the legal air.

Crow’s courteousness even extends to his adversary, South African-born, Sir Sydney Kentridge, who was once a member of Nelson Mandela's defence team. From time to time, Sir Sydney makes an intervention to correct or challenge a point although it is difficult for those in the audience to hear what he says. "My learned friend is not one to jump up and intervene all the time and I thank him for that," says Crow as he turns and bows in the direction of Sir Sydney who is seated next to him. Jonathan Crow QC is a smooth operator.

At one o'clock the case is adjourned and it's time for lunch. I would have liked to have seen Sir Sydney in action but I think it's more important that some of the Chagossians gets a chance to see what's going on. After all, it's their lives that are the subject of legal debate and not mine. I inform the clerk that I won't be returning.

Over lunch in the House of Lords cafeteria I learn that Olivier Bancoult was meant to meet the one-time leader of the Conservative Party and now Shadow Foreign Secretary, William Hague, but he sent his deputy, Keith Simpson, instead. And it wasn't that Hague didn't have time as he was spotted casually chatting to someone in the lobby of the House of Commons. No, this was a deliberate and tactical avoidance. Why? Not too difficult to figure out. Even members of Her Majesty's official opposition find the issue of the right of return of the Chagos islanders a difficult one to handle. No senior member of the Conservative party wants to jeopardise "the special relationship" and antagonise our American friends, after all.

Meanwhile the Lib Dem foreign affairs spokesman, Ed Davey, puts out a statement. It reads: "The government must cease this endless waste of taxpayers’ money and do what is right by the Chagossians. This is what Robin Cook promised when he was foreign secretary.

"The spectacle of David Miliband’s lawyers invoking 19th century colonial laws to defend the indefensible is frankly sickening.

"This is not a legal matter; it is a matter of principle. The Chaggosians must be allowed to go home.
"Together with the scandal of secret US renditions from Diego Garcia, the abuse of these islands is a shameful stain on Britain’s global reputation."

I couldn't have put it better myself.

Dr Sean Carey is Research Fellow at the Centre for Research on Nationalism, Ethnicity and Multiculturalism (CRONEM), Roehampton University

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