The Chagos Islanders and their supporters in Mauritius and elsewhere will note with sadness that Lord Bingham of Cornhill died on September 11. According to Philippe Sands QC, writing in the Guardian, Lord Bingham:
… was widely recognised as the greatest English judge since the second world war. Serving at the apex of the judiciary for an unusually long span, he was the first individual in the modern era to act both as master of the rolls, with the supreme remit for the civil courts for four years from 1992, and then as lord chief justice, running the criminal courts as Britain’s highest-ranking judge. From 2000 till his retirement in 2008 he was senior law lord.
Lord Bingham of Cornhill was also one of the five law lords who heard the case in 2008 regarding the Chagos Islanders’ right of abode in thir homeland. The Archipelago had been detached by the UK, in breach of international law, from the colony of Mauritius in 1965 before its independence in 1968, and renamed the British Indian Ocean Territory.
Between 1968 and 1973 around 2000 Chagossians, the descendants of African slaves and Indian indentured labourers whose ancestors first arrived in Chagos in the late 18th century, were removed against their will and dumped in Mauritius and the Seychelles by the British authorities in order to allow the US to construct its military base on Diego Garcia, the largest and southernmost island in the Archipelago.
The UK government’s narrow 3-2 victory in the House of Lords, the highest court in the land, undoubtedly surprised most observers, including it should be noted the then British Foreign Secretary, David Miliband, and the civil servants and lawyers responsible for the overseas territories in the British Foreign & Commonwealth Office.
In summary form, the majority judgement was that the royal prerogative was subject to judicial review, but that the Orders in Council banning the islanders returning to the outer Chagos Islands could lawfully be displaced for the time being in the interest of defence but that there was no reason why the ban should not be lifted if circumstances changed. (Note: they have changed under Obama). As Lord Hoffman controversially put it:
The right of abode is a creature of the law. The law gives it and the law may take it away.
Hoffman went on to say that in the context of “good governance” Her Majesty was under no obligation to take the interests of the Chagos Islanders into account in a “non-self-governing colony”. He thought that there were other, more important, factors that needed to be taken into consideration:
“Her Majesty in Council is therefore entitled to legislate for a colony in the interests of the United Kingdom.”
In addition, Lord Hoffman said that the UK government was fully entitled to take into account the defence and military interests of its long-time ally, the United States. He was joined by two of the other four justices, Lord Carswell and Lord Rodger.
However, the minority opinion written by Lord Bingham and endorsed by Lord Mance, reiterated much of the criticism of the British government made in the judgements of the lower UK courts. In particular, he dismissed the British government’s concerns about letting the islanders return, and poured scorn on the “highly imaginative letters written by American officials” who claimed that a “criminal conspiracy headed by Osama bin Laden was, or was planning to be, active in the middle of the Indian Ocean”.
He also made it very clear that in his opinion the royal prerogative could not and should not be used to allow the UK government to “exile an indigenous population from its homeland”. Tellingly, he wrote that the government’s power to legislate through an order in council was “an anachronistic survival”, and that Parliament ought to have been consulted.
Lord Bingham was also of the view that former Foreign Secretary, Robin Cook, had undoubtedly created an expectation that the Islanders might return to the outer islands of the Archipelago like Peros Banhos and Salomon. He wrote that the Chagossians “were clearly intended to think, and did, that for the foreseeable future and a right of return was assured. The government could not lawfully resile from its representation without compelling reason, which was not shown.”
The case regarding the right of return of the Chagos Islanders brought by Olivier Bancoult, leader of the Chagos Refugees Group, is now before the European Court of Human Rights and a judgement is expected later this year. We already know which verdict Lord Bingham thought the judges in Strasbourg should come to.
Dr Sean Carey is Research Fellow at the Centre for Research on Nationalism, Ethnicity and Multiculturalism (CRONEM) at Roehampton University.