Diego Garcia Military Base and British Indian Ocean Territory Bill

Lord Lansley Excerpts

Report stage
Monday 5th January 2026 Lords Chamber

Moved by

[Lord Lansley]

34: Clause 5, page 3, line 39, at end insert—
“(2A) An Order under this section which amends, repeals or revokes an Act may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

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[Lord Lansley (Con)]

My Lords, there are four amendments in this group, and they are all my amendments, so I hope I will not need to detain the House for a very long time. However, it is rather important, as this group relates to the scrutiny that is to be attached to the powers which are used in the continuing jurisdiction that this country will exercise in Diego Garcia. They are powers that are established under the royal prerogative, but the question that Amendments 34, 35 and 36 relate to is the extent of parliamentary scrutiny in the exercise of those powers.

Noble Lords may recall that, although these amendments were tabled in Committee and they were tabled in order to give effect to the recommendations of the Delegated Powers and Regulatory Reform Committee, the intention is very straightforward. It is that Orders in Council which exercise Henry VIII powers—that is, amending or repealing primary statutes—should be subject to an affirmative resolution procedure, and that all other Orders should be subject to a negative resolution procedure, rather than, as proposed by the Bill, no parliamentary procedure at all. In Committee, the Minister said:

“We are still considering these suggestions and we will return to them on Report”.—[Official Report, 25/11/25; col. 1303.]

So we are returning to them on Report by virtue of these amendments tabled.

The Minister and I have not had an opportunity for a discussion of this issue since Committee, but I am grateful for the copy of the letter by which the Government responded on 23 December to the DPRRC. Noble Lords will also recall a letter of 22 December, which is relevant, and which was sent to noble Lords participating in Committee. The Government have not accepted the recommendations of the Delegated Powers Committee, so I ask the House to include the recommended level of parliamentary scrutiny, and Amendments 34 and 36 would achieve that.

The Government’s arguments are that the Bill provides for the continuation of the laws in Diego Garcia and that processes for making laws in the military base area should be the same as those applying previously—in short, maintaining the status quo. However, the status quo has changed; we are not in the status quo.

The treaty with Mauritius provides that sovereignty is no longer with this country. Sovereignty, including in Diego Garcia, by virtue of the treaty, is with Mauritius, as we have heard. So, in so far as the prerogative powers were previously derived from that sovereignty, that no longer applies.

The Minister’s letters refer to Cyprus as a precedent, but the Cyprus treaty and the Cyprus Act 1960 provide that the United Kingdom’s sovereignty is continued in relation to the two sovereign base areas—the clue is in the title. As we heard in an earlier debate, my noble friend Lady Goldie would have preferred that we retain sovereignty in Diego Garcia, but that has not happened.

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[Baroness Chapman of Darlington (Lab)]

My Lords, Amendments 34 to 37 tabled by the noble Lord, Lord Lansley, seek to amend Clause 5 of the Bill. I appreciate that Amendments 34 to 36 would implement the recommendations of the Delegated Powers and Regulatory Reform Committee. The Government have carefully considered the committee’s report on the Bill and responded to it but, on this occasion, we do not accept those recommendations.

I note what the noble Lord said about Third Reading. I am grateful to him for his detailed engagement with these provisions. I want to clarify one point about which noble Lords might not be entirely clear. The effect of the Bill is that there will be two powers. One is the prerogative power to legislate for Diego Garcia only, which is preserved under Clause 3. We seem to have some agreement on that point. The other power is a new statutory power conferred by Clause 5. Orders in Council made under Clause 5 will be statutory instruments. The Bill currently provides that those will be subject to the negative procedure where they amend primary legislation, and otherwise to no procedure. That is not because we argue that they are prerogative orders but because it is appropriate given their subject matter.

So far as the power to amend primary legislation is concerned, we have been clear that the negative procedure is appropriate, given that the changes to be made to legislation will in very large part be technical in nature. The purpose of the power is to ensure that the Government can bring the domestic statute book into conformity with both the purpose and effect of the treaty, making consequential changes as necessary. That works hand in hand with Clause 3, which provides a default position of continuity of the law. The Clause 5 powers will be necessary to make amendments to that law to adapt it to the treaty and the new status of Diego Garcia. This is not just about the law of Diego Garcia; UK legislation which refers to BIOT needs to be brought into line.

Applying the negative procedure here is consistent with the Cyprus Act 1960, which the noble Lord, Lord Lansley, referred to. Section 3 of the Cyprus Act also provides for the law of the UK in relation to Cyprus or the sovereign base areas to continue and for statutory Orders in Council to be made under the negative procedure to make further adaptations as required.

The Hong Kong Act 1985 also provides for the negative procedure for statutory Orders in Council under Schedule 3, amending the law of the UK or of other British possessions.

The Government’s position is that it is appropriate that no procedure applies when the Clause 5 power is used other than to amend primary legislation. The operation of the base on Diego Garcia and the treaty as a whole are in the realm of international relations, defence and security, as the noble Lord said. Given the subject matter, it is appropriate for those instruments to be subject to no parliamentary procedure.

There will, of course, be statutory instruments, which will be registered and published in the usual way. It is not uncommon for Orders in Council which relate to the overseas territories to have no procedure attached to them. I am happy, and I think it would be a good idea, to continue to discuss this with the noble Lord, Lord Lansley, ahead of Third Reading. I would be very happy to do that. I hope he withdraws his amendment.

[Lord Lansley (Con)]

I am grateful for that response, and in order not to delay the House, if I may, I will leave it at that point. I beg leave to withdraw Amendment 34 and to return to this, if necessary, at Third Reading.

Amendment 34 withdrawn.