UK-Mauritius Agreement on the Chagos Archipelago

Debate between Lord Hannay of Chiswick and Lord Wolfson of Tredegar

Monday 30th June 2025 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

I am going to deal with the legal issues affecting this because the Government are saying to us, “We have no choice: we have to sign this because we have legal risk”. There is no point the noble Lord muttering from a sedentary position.

[Lord Hannay of Chiswick (CB)]

My Lords—

[Lord Wolfson of Tredegar (Con)]

I will finish the point and give way. This Government are trying to dress up a political decision as a legal decision. Now, of course, I am happy to give way.

[Lord Hannay of Chiswick (CB)]

I just wanted to ask the noble Lord to address the testimony given to the committee by Sir Christopher Greenwood, rather than having a lot of fun at the expense of Mr Philippe Sands.

[Lord Wolfson of Tredegar (Con)]

I have. Sir Christopher Greenwood made the point that we have legal risk. He is absolutely right: there is legal risk. But I am suggesting that we need to analyse that legal risk carefully.

There has been very little reference in the debate so far to the other evidence taken by the committee from Professor Ekins. Indeed, it is a shame that we have not been able to hear from the noble Lord, Professor Lord Verdirame, this afternoon because I would be very interested to hear his view on this issue. Ultimately, the committee heard from three lawyers. There is a difference of legal opinion on this issue, and that is because, ultimately, this is a political and not a legal decision.

Let me turn now to Article 4 of the treaty, which has not yet been raised. The premise of the agreement rests on the proposition that our interests will align with those of Mauritius for the next 99 years to the extent that there is no appreciable risk that Mauritius—and it has, of course, retained lawyers of the highest calibre—will seek to leverage the terms of the treaty for its own benefit. Merely to state that assumption is to show how unsafe it is.

I say 99 years; I was very surprised that the noble Lord, Lord McDonald, referred to 140 years. The ability in the treaty to extend it for 40 years is really not worth the paper it is not written on. There is simply no legal right to extend. There is an ability to negotiate, and the idea that there will be an extension, absent perhaps another huge payment of money, really is for the birds.

Article 4 provides:

“Each Party agrees to ensure that in the implementation and application of this Agreement, including activities in relation to the Base, there shall be compliance with international law”.


No court or body is appointed to deal with that issue. If Mauritius, advised by its eminent lawyers, took the view that UK or US operations out of Diego Garcia are not in accordance with international law, then it could allege the UK was in breach. That would not entitle Mauritius to terminate the treaty—the rights of termination are limited in Article 15—but it would entitle it to take countermeasures which would otherwise be prohibited under the treaty, such as allowing the presence of armed forces of other countries or constructing installations elsewhere on the islands that might adversely affect the security of Diego Gracia. Let us be clear: if Mauritius took that action, there would be nothing that we could do and we would not be entitled to stop paying the sums that we have promised to pay under the treaty.

There is a similar legal risk under Annexe 1. It was mentioned earlier that we have to inform Mauritius about the use of force originating from the base at Diego Garcia “expeditiously”. I have three questions for the Minister in this regard. First, my understanding is that the UK’s position is that this provision requires notice only after an operation is launched. Is that correct? Secondly, assuming that it is only after an operation is launched, what do we consider “expeditiously” means? Does it mean that we have to inform Mauritius as soon as the planes take off, or can we deliberately decide to delay informing it, even though we could inform it, until the operation has been completed? Thirdly, whatever our interpretation of that word might be, have we agreed that interpretation with Mauritius? If we have not, I can give the Minister some free legal advice: all of this is very ripe for a further dispute, which would likely result in Mauritius not abiding by its obligations under the treaty.

Economic Activity of Public Bodies (Overseas Matters) Bill

Debate between Lord Hannay of Chiswick and Lord Wolfson of Tredegar

Tuesday 7th May 2024 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, it is a pleasure to follow that speech, although I respectfully point out that groups such as Diaspora Alliance hold the same sway and weight in the Jewish community as, for example, Gays for Trump would in the homosexual community in America. You can always find a Jew or Jewish group who will say whatever you want; going back to the Talmud, we are a disputatious people. I would gently warn noble Lords against picking people in the Jewish community who happen to agree with what they say. The two main communal bodies, the Board of Deputies of British Jews and the Jewish Leadership Council have been forthright in support of the Bill.

Let me turn to Clause 3(7), which is what this amendment focuses on. As we know, the way in which the Bill works is that unless a country is added to the Schedule by the Secretary of State, a public body cannot discriminate against it on essentially political grounds—I paraphrase. Clause 3(7) provides more procedural protection to Israel and to the territories listed in it because its effect is that a future Secretary of State cannot add Israel or those territories to the Schedule—that can be done only by way of primary legislation, as the noble Baroness just pointed out.

The purpose of this amendment is obvious although I note that, perhaps wisely, its proposers were neither able nor willing to say so in terms in a Member’s explanatory statement. Its purpose is to strip Israel of that procedural protection to make it easier procedurally, and therefore also politically, for a future Secretary of State to give a green light to a boycott of Israel. That, in terms, is what this amendment is designed to do and what, if it became part of the Bill, it would do.

Two main arguments have been made in support of removing Clause 3(7) from the Bill—let me say a word or two about each. The first is that Clause 3(7) does not distinguish between Israel and the Occupied Palestinian Territories, as it is said the UK is required to do. There are two points in relation to that: first, what is the source of this supposed obligation?

I referred in an earlier group to the opinion from Richard Hermer KC. I declare an interest: he is a friend, but the fact that he is will not stop me saying that I think he has got it hopelessly wrong on this point. His opinion says that there is a

“wider international law obligation on all states to ensure that impediments to Palestinian self-determination are brought to an end”.

To support that proposition, he cites the 2004 ICJ advisory opinion on the separation wall. That, of course, is an advisory opinion and, in terms, is limited to the separation wall itself, which the ICJ refers to as an “impediment” to Palestinian self-determination

“resulting from the construction of the wall”.

We could mount a very good argument, and I would, that it is the construction of that wall which advances Palestinian self-determination because without it, there would still be suicide bombings and people blown up on buses and in cafes, but let us put that to one side.

[Lord Hannay of Chiswick (CB)]

I just want to correct the noble Lord. The judgment did not say that the wall was illegal; it said that it was placed illegally because it was placed in the Occupied Territories, not on the boundary between the State of Israel and the Occupied Territories.

[Lord Wolfson of Tredegar (Con)]

That is not the point I was making, but the noble Lord is absolutely right. My point was whether there is in that judgment some sort of obligation on us not to impede the construction of a Palestinian state. However, the noble Lord is absolutely right in his characterisation of that part of the advisory opinion.

The only obligation the judgment refers to, therefore, is an obligation not to recognise the Occupied Palestinian Territories as part of Israel. That is in the advisory opinion as an obligation. UK government policy does not do so, and this Bill does not do so either.

Then we look at the other supposed source of this obligation: UN Security Council Resolution 2334, mentioned by the noble Lord, Lord Warner, in moving the amendment. That goes no further. That, in paragraph 5, “calls on states”. Let us just be clear: that is not an international law obligation. With the greatest respect to the noble Baroness, Lady Bennett of Manor Castle, who characterised that as a UK commitment, it is not. As other noble Lords will know much better than I do, the use of words such as “requires,” “obliges” and “calls on” are important distinctions—we will come later to what distinctions are—in UN Security Council resolutions. In any event, that only “calls on states” to distinguish between Israel and the Occupied Palestinian Territories, and not to lump them together.

Secondly, in so far as there is any legal obligation, which there is not, it would only be one to distinguish between Israel and the Occupied Palestinian Territories. Clause 3(7) does that. It does distinguish: you distinguish between things by treating them distinctly. You do not need to treat them differently. Those are two distinct, or different, things. This Bill is therefore entirely consistent with UK government policy and with UN Security Council Resolution 2334. That is a complete answer to the first point.

Let me go to the second point, which is the question about why Israel is treated differently. That is the main question underlying much of the debate on this clause. I have already explained that the differential treatment is procedural and not substantive; so why, asked the noble Lord, Lord Warner, in moving his amendment, is Israel treated differently in this Bill? I answered that question in my speech at Second Reading. The short answer—and I will not repeat it—is that Israel is constantly subjected to differential and discriminatory treatment, both by international bodies such as the UN and its rather unhappily named Human Rights Council, on which sit some of the world’s biggest abusers of human rights, and by some public authorities in this country. However, as the noble Lord, Lord Warner, has asked the question about why Israel is treated differently, let me answer it by reference to his oral contributions in your Lordships’ House.

Over the past 10 years, the noble Lord has—and I have benefited from them—contributed to many debates on many topics in your Lordships’ House. I thought I would have a look at some of his contributions relating to some of the countries set out in the list from the noble Lord, Lord Hain, in his Amendment 49. I know he is now no longer going to move that amendment, but it is a useful list because it sets out those countries that have poor, or worse, human rights records.

On the basis of my researches in Hansard, the current position is as follows. I am not going to go through them all, but here are some. The number of times in the last 10 years that the noble Lord, Lord Warner, has referred to Saudi Arabia is zero; Yemen, zero; Myanmar, zero; Sudan, zero; the Uighurs, zero; North Korea, zero; Congo, zero; Venezuela, zero; Iran, zero; China, one, in the context of a speech on the West Bank; Syria, one, in the context of a speech on Gaza; Ukraine, one, to ask why we do not treat Israel the same way we treat Russia; Israel and Palestine—nine.

Illegal Migration Bill

Debate between Lord Hannay of Chiswick and Lord Wolfson of Tredegar

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Hannay of Chiswick (CB)]

I am most grateful to the noble Lord, because I was following with interest his argument, which seems to be that there are two sorts of obligation—those we incorporate in domestic law and international obligations—and the international obligations are less binding, important and necessary. Perhaps the noble Lord could tell me what the status of the UN charter or the Brussels treaty on NATO is. Does he mean that we, as a Parliament, could decide not to apply Article 5 of the NATO treaty? That would be a pretty serious statement to make.

[Lord Wolfson of Tredegar (Con)]

I am reluctant to give the noble Lord a private lecture on this, but I will set out a very short answer. I will be blunt but, I hope, legally accurate. The short answer to the noble Lord’s question is yes; we could do it. International treaties are not part of our domestic law. As far as our domestic courts are concerned—please let me finish and I will give way—if we were to legislate completely contrary to an international treaty, our domestic courts would have to abide by the Act of Parliament, because that is domestic law. Of course, that would put the UK in breach of the international treaty. It is not something I would recommend, but the noble Lord asked me a direct question about how the two interrelate, and that is a necessary consequence of being a dualist state. International treaties are not part of domestic law, unless and until they are incorporated.