Diego Garcia Military Base and British Indian Ocean Territory Bill
Lord Lilley Excerpts(1 day, 3 hours ago)
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Lord Purvis of Tweed (LD)
My Lords, I want to say a few words. I have been rather sparing in the Committee debate today, but the noble Lord, Lord Hannan, has prompted me to speak.
I have been a passionate supporter of the Commonwealth Parliamentary Association, I have served on this Parliament’s executive committee of the CPA UK and I have had the great privilege of visiting a great number of Commonwealth nations in all parts of the world, including early this year Malaysia. We have to be very careful, particularly perhaps in this House of Parliament, when we debate a process that has been very difficult on decolonisation. We have to be very cautious with how we approach it and very mindful of the language that we use.
We had 12 years of the Malayan Emergency and I have met the relatives of those who were affected by that. There is not a Commonwealth country that does not have difficult stories, on many occasions. We are still living with this today. I would counsel anybody that, yes, of course, we are free to make any contributions, but we have to be very mindful.
The noble Lord, Lord Bellingham, whom I greatly respect, indicated that perhaps the precedent was this deal. Now, there may be circumstances where a bad deal might be seen by other people as some form of precedent, but I do not think that that is the point that is being made in this group. The point that I hear being made in this group is that the very point of principle that we opened negotiations to cede sovereignty is the precedent. Well, that decision was made in 2022. If we are to see the consequences of decisions taken by a British Government to recognise that negotiations should take place to cede sovereignty, then we have had three years of knowing what the consequences of that will be. I have heard nothing from anybody on this group saying that they have seen the consequences of that decision taken by the previous Administration in November 2022.
Lord Lilley (Con)
My Lords, I want primarily—perhaps later—to talk about my Amendments 20Q and 20U, but I will say something about my noble friend Lord Hannan’s Amendment 20L to emphasise one particular precedent he mentioned in passing but seems the most compelling and dangerous. Indeed, in line with the noble Lord, Lord Purvis, I have been rather cautious about discussing this because I did not want to put ideas into people’s heads, but, for two reasons, I will go ahead and talk about it now. First, there is no better way to keep a secret than to pronounce it in the House of Lords; and secondly, as my noble friend Lord Hannan said, there are lawyers in every country looking to see whether this is a precedent that they could use to right some past wrong or to change some past circumstance which they would like changed.
The most compelling comparison is between what we are doing now and the reasons given for doing it and the independence of Cyprus, where we severed off the sovereign bases. They were part of a whole. The territorial integrity of Cyprus was divided between the sovereign bases and the rest. That is exactly what we are accused of doing in the case of the Chagos Islands. It is actually much more true in the case of Cyprus than in that of the Chagos Islands, because Cyprus was always governed as one unit by us whereas the Chagos Islands had separate laws, even if they were transmitted from somebody resident in Mauritius. Therefore, if we are saying that there is compelling reason for us to say we cannot separate the Chagos Islands from Mauritius, of which it has never been part, then surely there are compelling reasons why we should never have separated the sovereign base territories from the rest of Cyprus.
Those bases are hugely important. They played a role time and again in recent disputes and interventions, and in the prospect of interventions in the Middle East. We have been able to help fly from them and intercept missiles from Iran coming towards Israel. In previous conflicts, we used the bases there. They of value not only to us but to the whole of NATO. If we put them at risk by saying to the world that we have no right to have separated them then we would be doing something very foolish.
The only difference I can think of—I am offering a solution to this dilemma, because I do not want the issue of the sovereign bases to be opened up in a dangerous way—is that the decisions in Cyprus were taken before the United Nations General Assembly resolution on which the advisory opinion of the ICJ was based, and therefore it did not apply to them. Of course, advisory opinions are not actually binding—they are wrongly taken as being binding but they are not—but do they apply retrospectively? In many cases when courts rule, they say, “This has always been the case; we’ve only just now ruled it”.
I would like to hear how the Minister proposes to defend the sovereign bases in Cyprus from this precedent. She is obviously not doing this willingly; she is obviously unwilling and she is a wonderful Minister, but she has been given a tough job to do. I would like to hear some justification for this. I do not know whether the precedent in Committee allows me to sit down now and stand up later to deal with my amendments, but assuming I can do that, I will.
Lord Weir of Ballyholme (DUP)
My Lords, I will briefly make two points. First, on behalf of my noble friend Lord McCrea, who has had to leave for a family wedding, I will speak to Amendment 57, which principally brings to the Committee’s attention the role of British legal firms in this issue.
We have been critical in this House of the current and, to some extent, the previous Government. Those criticisms are not entirely without merit on the issue of sovereignty. There has also been further British involvement in any number of aspects, the four most significant legal interventions being two cases in connection with UNCLOS; one relating to the advisory opinion of the ICJ; and one on the drafting of the UN security resolution. In each of these four cases, the Mauritius Government used British firms as their legal representation in order to further their aims. In effect, British firms acted on behalf of a foreign Government to challenge British sovereignty, British defence rights and the wishes of British citizens. We cannot do anything about what happened in the past, but I suppose the amendment queries whether there is an appropriate way forward in terms of that level of support for Mauritius. Raising my noble friend Lord McCrea’s amendment gives the Government an opportunity to respond to it.
I want to deal briefly with the wider point. We do not always see eye to eye, but I agree with at least one phrase that the noble Lord, Lord Purvis, used: he said that we have to be careful about words, and words matter. One of the major concerns, as highlighted by the noble Lord, Lord Hannan, and others, might be described as the precedent and the ripple effect. It is undoubtedly the case that in the past we as a nation have made mistakes in dealing with overseas territories. In particular, we have sent out the wrong signals on both the Falklands and Gibraltar. It is probably the case that some, at different points within Governments in the past, would have been quite happy to see those territories dispatched to another sovereign territory on that basis. They can best speak for themselves but, fortunately enough, in each case we have drawn back from what might be described as a fatal mistake. The danger with this is that it crosses the line in handing over that level of sovereignty.
Mention has been made of a range of overseas territories. The one thing that largely unites them is that whatever discussions we have had with different Governments, about whatever level of co-operation, they have ultimately respected the self-determination and the inhabitants’ will for sovereignty. That is what at times has drawn us back. I think this goes beyond that and moves towards a situation regarding the wishes of the Chagossian people and their right to self-determination—and that self-determination may, because we do not know definitively, express itself in them saying, “We want to be part of Mauritius”. If that is their self-determination, so be it. I think it is unlikely to be the case; nevertheless, so be it. The concern is the signal that this sends out to the outside world.
The Minister mentioned the arrangements as regards Gibraltar. I think there has been work ongoing with both this Government and the previous Government to try to find arrangements that are in the best interests of Gibraltar. I entirely acknowledge that, while it is sometimes easy to criticise when looking from outside, the Gibraltar Government themselves have been supportive of those actions and have backed the moves made so far.
Lord Sentamu (CB)
My Lords, I just want us to remind ourselves of the history of the British Empire and how Macmillan suddenly said: there are now winds of change and, if we resist, we may lose something very good. Her Majesty Queen Elizabeth II created this wonderful thing called the Commonwealth. She put in a lot of effort and energy, and those countries that were once ruled are now part of the Commonwealth, and what is interesting is that in most of those countries the national language is English. So there can be a transition that does not destroy a lot of goodness nor give the impression that those territories where the sovereign is still His Majesty the King will simply look at this and say, “They did it, so we can”. You will find that politically, in Jamaica and other places, the Crown has made it very clear that this is a decision of those nations. If they wanted to become independent, that is their decision. They are not going to force themselves on anybody.
I thought the treaty that was entered into with Mauritius was to create a long-term use of Diego Garcia and the archipelago. If we did not, the challenge was soon going to come because of what happened at the United Nations. We would have found ourselves with a big challenge. Even China was interested in challenging British sovereignty, but now a treaty has been signed and has secured this.
Another good thing on which I want to congratulate the Government is that they did not simply sign a treaty so that this base can be used for 99 years. Because sovereignty is now being transferred, they also provided a trust fund for the Chagossians to be better looked after than when the British had sovereignty over the place. This is a win-win situation for the Chagossians and for Britain. We now have security of the base for a 99-year lease. That is quite a long time. I do not think you and I will be here in 99 years, but those who are here may say we did a good thing at the time. As for the fear of the noble Lord, Lord Hannan, of what other places may do, it is their right to do whatever they want to do.
Lord Lilley (Con)
My Lords, I am grateful for the opportunity also to speak to my Amendments 20U and 20Q. Amendment 20U would provide that the Bill shall not come into force until the Secretary of State has published
“a report on how the Treaty may increase any political or legal risks”—
that is what we have been told underlie it—
“related to … reliance on third countries required to service the base … risks of litigation from Mauritius regarding the base in Diego Garcia in the International Court of Justice”—
and I hope this will include some explanation of the Government’s reactions to the Mauritian declarations of 23 September 1968 which, as I understand it, mirrored our determination that the ICJ should not have jurisdiction on disputes between previous and current Commonwealth states and ourselves; Mauritius likewise said that any such disputes should be settled reciprocally. Finally, the report should include the
“risks of litigation in an arbitral tribunal under Annex VII of UN Convention on the Law of the Sea”.
The Minister said a little while ago that we spent many hours discussing the reasons or rationale behind the decision to cede sovereignty. In fact, we have spent many hours dragging out from the Government an explanation of their decision to do so. It is pretty clear that the decision came first, and their justification has been cobbled together in response to each successive challenge that has been put forward to it. The more it has been challenged, the more tenuous the rationale has become. It has been spread out like an elastic band and has become thinner and more transparent. It is very clear that, if we keep on this process, it will eventually break and then the Government will be without any rationale at all.
The Government first suggested that the ICJ decision was purely advisory but Mauritius might come back and somehow get a definitive ruling out of the ICJ. However, that was then abandoned because, of course, we had the specific opt-out when we signed up to the ICJ that it would not be able to consider disputes between ourselves and present or previous Commonwealth countries. One thing has puzzled me. Looking back through the record, I have never seen Ministers refer in words to that opt-out. They have tacitly acknowledged it, because they move on to talking about the United Nations Convention on the Law of the Sea. Likewise, when we have heard from the great mandarins of the Foreign Office, none of them has ever explicitly let past their lips—if I have read the transcript correctly—the existence of this opt-out. That is a great mystery. When people do not say something, one wants to know why, particularly when they tacitly admit it.
Oh dear, I hope I have not caused the noble Lord, Lord Kerr, to leave in disgust. We were hoping he would be able to break this omertà that has forbidden him and his colleagues ever to mention this.
My suspicion—of course it is no more than a suspicion, and the person who could have set that right has left the Chamber—is that the Permanent Secretaries in the Foreign Office and the other mandarins who have spoken in defence of the Government on this never actually told Ministers about this opt-out and they do not like to admit that. Ministers do not like to admit that they did not know about it, because that looks pretty difficult. Maybe in the course of debate we will find that that is an unworthy consideration and they were told explicitly at the beginning there was no possibility of the ICJ reaching a binding judgment on the sovereignty of the Chagos. They tacitly accept that is the case and move on to the possibility of a judgment coming from the tribunal set up under the UN Convention on the Law of the Sea.
My amendment would force the Government to be more explicit about that. What precedents are there for this tribunal ruling on sovereignty? The noble Baroness said that she thought it was very unlikely—I think that was her phrase—that the tribunal would directly rule on sovereignty. I think she is more than right on that, because there are no precedents I can find for it ruling on sovereignty. But then she said that it might rule on other things and sort of assume sovereignty. I would like some examples of that sort of thing happening, if it is a sufficiently big risk for us to be doing this nefarious deed of ceding sovereignty over the Chagos Islands. We have not had that up to now.
The tenuous justification moves on to say that there may be a ruling that would somehow assume sovereignty, but what negative effects would that have? It would apparently put the base at risk, because of its reliance on being supplied from other countries. From which other countries is the Diego Garcia base supplied, and in what way, and how would that be put at risk? Is it supplied from Aden? Would the Suez Canal be closed to British shipping if it was thought to be supplying the base? Would we get labour from mainland Africa to help run the base? Would the Philippines refuse to send Filipino workers to help run the base? When we are given such a tenuous reason, at the end of a long chain of tenuous arguments, we need some substance to it. This amendment would require the Government to give that.
Amendment 20Q would provide that the Bill would come into force only
“when the Secretary of State has published a report into the governance of the Chagos Archipelago under the Treaty, including local administration and democracy”.
The Minister has said that there was never any settled population in the Chagos Islands, nor any system of local administration. I am sure that was said in good faith, and I can well understand that the detailed history of the Chagos Archipelago is not something most of us have studied, but a letter has now been sent to the Minister, and to the committee that has been asked to consult with the Chagossians, pointing out that, in the absence of the British, who sort of came and went, the inhabitants of the Chagos Islands elected a chief to help with the governance and local administration of the islands. Therefore, the settled inhabitants did have a local administration in the past, and we want to know what is going to replace it in future.
We know that Mauritius, while it has no obligation to, will be able to resettle the islands. It may, of course, settle them with Mauritians, not Chagossians. Either way, what system of administration will there be, and will it be democratic or autocratic? I think we should know. My Amendment 20Q would require the Government to spell that out, and to acknowledge and accept that it was a mistake to say that there has never been any system of local administration, when clearly there has.
Lord Callanan (Con)
My Lords, I thank my noble friend Lord Hannan of Kingsclere for leading this debate. He set out a very strong argument for his amendments in this group, as did my noble friend Lord Lilley and the noble Lord, Lord McCrea of Magherafelt and Cookstown.
Amendment 20L, in the name of my noble friend Lord Hannan, is a very helpful amendment in Committee, as it affords the Committee the opportunity to debate the impact of the Government’s decision on the Chagos Archipelago on other overseas territories. While I accept that there are, of course, legal arguments here, we believe that they should be explored fully. I want to focus on the impact of the UK Government’s treatment of the Chagossians, and on our reputation among other overseas territories, which look to the UK for steadfast support and security. How do residents, and descendants of the residents, of other overseas territories feel now that the Government have caved in to pressure from their international lawyer friends on the question of the Chagos Islands?
As my noble friend Lord Hannan observed, the British Indian Ocean Territory is not the only overseas territory subject to legal claims by foreign states. Does the Minister accept that the behaviour of our Government on this issue will have ramifications for the level of trust in the UK held by residents of other overseas territories? We should be standing up for our overseas territories and protecting those who live on them, not caving in to activist international lawyers. In my view, it really is that simple. Can the Minister confirm that the UK Government are not considering ceding sovereignty over any other British Overseas Territories? Will she rule out such a move in future? We want residents of the overseas territories to feel secure, and I hope that the Minister’s words in response to this group will help to give them that security.
Baroness Chapman of Darlington (Lab)
My Lords, a large number of the amendments that have been tabled seek to mandate the Government to renegotiate the treaty with Mauritius on various points. The noble Lord told me this on many occasions in the last Parliament, so I am sure that he understands the point that I am about to make: treaty-making and international negotiations are a matter for the Government, in exercise of the royal prerogative. It is simply not practical for that to become a matter where Parliament seeks to direct this or that isolated element of what can be intense, dynamic and sometimes difficult negotiations. In this case, I can assure the Committee that the Government have thoroughly considered all aspects of the treaty that the UK has entered into and used all their efforts throughout to achieve the best possible deal for the UK. These requests to reopen negotiations on different points are not realistic and would make the UK appear an unreliable counterparty on the international stage. This treaty has gone through a rigorous assessment and been agreed at the highest levels of the US security establishment.
Our reasons for rejecting Amendment 20U are, essentially, those that I set out earlier in relation to Amendment 20J, tabled by the noble Lord, Lord Morrow. I do not intend to repeat them.
Amendment 20L was tabled by the noble Lord, Lord Hannan. I enjoy the noble Lord’s contributions. His speeches are as entertaining as they are, unfortunately, inaccurate and misleading sometimes. My grandfather fought in Malaya, in the Green Howards, and so it was an unfortunate example that the noble Lord chose to resort to—but I forgive him for this, because he puts so much into his speeches. I assure him and other noble Lords that this deal has been welcomed by both Gibraltar and the Falklands Islands. As the noble Lord, Lord Jay, said, their Governments have both stated that there is no read-across to them, and we should respect what they have to say.
Through Amendment 20M, the noble Lord, Lord Hannan, seems to be suggesting that the Government have not complied with the Constitutional Reform and Governance Act in respect of the treaty. I respectfully disagree with him on this. The treaty was laid in Parliament on the day that it was signed, under the process set out in the Act. CRaG requires that a treaty is laid in both Houses for 21 joint sitting days before it may be ratified. The period expired on 3 July 2025, with neither House resolving against ratification. During that 21-day period, two committees in this House held evidence sessions, including with the Minister for Overseas Territories, and produced reports, which we have responded to. There was a debate and a vote on the Motion from the noble Lord, Lord Callanan, against ratification, which this Government defeated. As a matter of practice, the UK Government do not ratify treaties until the necessary implementing legislation is in place, and that is what the Government are currently doing with the Bill.
Amendments 20P and 20Q appear to misunderstand the archipelago. I feel uncomfortable making this point, as it feels very cold, harsh and legalistic, particularly given the testimonies, many of which we have heard directly from Chagossians in their accounts of what happened in the late 1960s and early 1970s. I do not feel comfortable repeating it but this is the legal situation as it is, and it is important to be clear. The archipelago has never had a permanent population. The islands have not been inhabited since the population was removed in the late 1960s and early 1970s. As such, there is no “economy” of the Chagos Archipelago. Once the treaty enters into force, Mauritius will be sovereign and will have jurisdiction over the regulation of commercial activities unrelated to the operation of the base throughout the archipelago, subject to the constraints of the treaty. On the exclusive economic zone around the archipelago, Mauritius has announced its intention to establish a marine protected area and, importantly, there will be no commercial fishing allowed. It will be for Mauritius to decide how any resettlement will work, including in respect of governance of the islands.
Amendment 57, tabled by the noble Lord, Lord McCrea, and spoken to on his behalf, cannot be accepted. The UK’s legal services industry and the English Bar are internationally recognised for their expertise. That includes expertise in public international law, and UK-qualified lawyers act for states all around the world on various matters, facilitating the peaceful settlement of disputes. The standing of UK legal expertise should be a matter of pride for this House, not a tool for manipulation by politicians to achieve narrow and short-term advantage. An attempt to place a prohibition on who can utilise our world-leading legal services would undermine access to legal representation—an important element of the rule of law. It is wholly inappropriate for the Government to dictate who can be represented by whom. It risks undermining our standing on the world stage.
I hesitate to repeat the debate we had last week, but I say to the noble Lord, Lord Lilley, that, had there been no legal risk to our position, why did the United States stop investment in the base at that point? It was because it was sufficiently concerned about the legal risk. Had there been no basis whatever for our concerns on legality, why on earth did the previous Government even begin to negotiate, accepting that they did not manage to conclude a deal? Our view is that there was sufficient legal risk. The noble Lord disagrees, as is his right, but the fact is that the principle of this treaty, and the necessity for it, has been through the appropriate process. It has been voted on in this place and we have voted that this treaty should be ratified. We have already taken that decision in this Chamber. This legislation is about making the necessary changes to UK domestic law to enable us to sign, fully ratify and implement.
Lord Lilley (Con)
I am grateful to the noble Baroness for giving way, but I ask her to respond to the point I made: why, even now, does she refuse to let pass her lips any recognition that there was never any possibility of the ICJ reaching a legally binding decision that would affect us, because of our opt-out from the power of the ICJ to decide on disputes between ourselves and Mauritius? UNCLOS is a different matter, but would she let those words pass her lips?
Baroness Chapman of Darlington (Lab)
My Lords, I accept that about the ICJ, but the point is that other countries will act on an advisory opinion even if we choose to ignore it. We have not chosen to ignore it. That is a judgment call. Partly, that is because we think that, by negotiating now, we negotiate from a stronger position than we would have had we waited for other, binding judgments. Those judgments can come from any treaty to which both parties are signed up. That is why we feel—and not everyone has to agree with the Government on this—that there is sufficient legal question that we needed to act and to negotiate. If they are honest with themselves—there is a lack of former Ministers who were responsible for this arguing the point that the noble Lord makes; they argue other points but not this one—there was sufficient legal jeopardy for the previous Government to enter into this process. I hope noble Lords will withdraw their amendments.
Lord Lilley
(2A) Sections 2 to 4 of this Act come into force only when the Secretary of State has produced a report on the economic partnership under Article 11 of the Treaty and a motion to take note of the report has been approved by resolution of both Houses of Parliament.”
Lord Lilley (Con)
My Amendment 20S seeks to get the Secretary of State to produce a report on the so-called economic partnership between the United Kingdom and Mauritius, which is set up under Article 11 of the treaty. Parliament should have an opportunity to take note of that and debate it in both Houses.
The reason that is important, apart from the fact that the control of money is the supreme function of Parliament, is that the economic partnership article, Article 11, in the agreement, is very strange. It says:
“In consideration of this Agreement, the United Kingdom agrees … a. to pay Mauritius an annual sum; … b. to capitalise a Trust Fund for the benefit of Chagossians as established by Mauritius; and … c. to grant multi-year funding as part of a development framework for projects to be undertaken by Mauritius across twenty-five (25) years. … The arrangements for such payments, including amounts and modalities shall be agreed separately”.
It then says that this is a “full and final settlement” of the financial aspects of ceding sovereignty of the Chagos Archipelago to Mauritius.
Now, to call this a partnership is a very strange thing. We give them money annually. We give them more money for the benefit of the Chagossians. We give them yet more money for the benefit of the Mauritians. Where is the partnership in all this? If this partnership were ever to be introduced, I hope that Ministers would feel obliged or, out of their natural desire to be helpful, would seek to explain to us why this is a partnership rather than a kind of surrender where we give up the money, we give up the territory and we let them decide—even the trust fund that we set up for the benefit of the Chagossians is “as established by Mauritius”. So the Mauritians are going to determine how this trust fund is used and spent; the Chagossians will have no say in it and will probably get precious little benefit from it.
I hope the Minister will let us in on the secret. What is the quid pro quo in all this? Normally, any partnership means that there are two sides to it. I used to be a partner in a firm, and we were partners; we all benefited from each other. We did not have one side being partners and the other side getting all the benefits. I am genuinely mystified about this. Was it just that this was signed up for when the Government were suffering a fit of generosity? Perhaps the coffers were overflowing with funds. They could not think what to do but give some away to Mauritius for this, some away to a trust fund for that, then more away to Mauritius for 25 years. Where is it all coming from? Perhaps the Minister will enlighten us. I beg to move.
Baroness Goldie (Con)
My Lords, I did not expect to participate in this, but I was having a conversation earlier with my noble friend Lord Minto, who is very knowledgeable about corporate finance. He posed the question: is there anything in this whole arrangement that would stop Mauritius capitalising on the revenue stream that they have coming to them and selling that off to someone else?
Baroness Chapman of Darlington (Lab)
Okay, that might be a good idea. I hope that the noble Lord can withdraw his amendment on that basis.
Lord Lilley
(2A) Sections 2 to 4 of this Act do not come into force until the duties in section (Joint UK–Mauritius Parliamentary Commission) have been discharged.”Member’s explanatory statement
This amendment, connected with another in the name of Lord Lilley, seeks to ensure that the sections 2 to 4 of the Act only come into force once the Secretary of State has sought to establish a Joint UK-Mauritius Parliamentary Commission.
Lord Lilley (Con)
My Lords, I will speak to Amendments 20T and 81K. Amendment 20T just requires that Amendment 81K would happen before the treaty, or parts of it, comes into force.
Amendment 81K proposes setting up a parliamentary commission between the United Kingdom and Mauritius. The proposal is that we seek to agree with Mauritius that this parliamentary commission should reflect equal representation from the Parliaments of the United Kingdom—this Parliament—and the Republic of Mauritius, which one hopes would be acceptable to the Mauritians as fairly rational in these circumstances. More important, what is the function of this commission? It should be to ensure,
“the recognition and protection of Chagossian rights, including but not limited to … ensuring a right of return … ensuring the right to self-determination via a referendum of all Chagossians on the question of sovereignty is held by the UK”,
and
“access to compensation, resettlement, or other forms of support”.
The Minister has repeated again today this extraordinary affirmation that there is no Chagossian people and never has been—that there has never been any permanent population of the Chagos Islands. I can see why the Minister can say that there no longer is, because we shamefully removed them. But to rely on the fact that we removed them and therefore they are not permanent, when all of us now think it was monstrous that this was done with no possibility of return at the time, and that we should be setting this right, now that we are trying to sort the aftermath of decolonisation, as it is seen, is to my mind extraordinary. How can there have been no permanent population in the past if there are churches, graveyards, signs of habitation, work, agriculture and fishing on several of the islands? Above all, how can we pretend that there never has been any Chagossian population and, at the same time, grant British citizenship to those who can demonstrate that they are descended from Chagossians?
The Minister cannot have it both ways. She cannot say that there has never been anyone there and that we are now recognising that those who have been there, or are descended from them, have the right to British citizenship. It is there in the treaty. I know that when she mentioned this she said it with obvious distaste and embarrassment, but that distaste and embarrassment should have been sorted out with her officials before she got round to saying it again in this Chamber. It is very insulting to the Chagossian people to say that they have never existed.
Given that the Chagossian people have existed, and that we recognise that it was wrong to remove them without in any way trying to provide them with some prospect of undoing that wrong, surely we should, through the parliamentary commission that I propose in this amendment, discuss with the Mauritians, if sovereignty is handed over to them, at least giving Chagossians the right of return and the right of self-determination via a referendum, along with access to compensation, resettlement or other forms of support. If we do that then at least we will go a small way to undoing the wrong that was done in the late 1960s—I think it extended into the 1970s—which all of us now recognise.
It is clearly important that we have some kind of parliamentary commission overseeing this, because the treaty does not do these things. It could allow the resettlement to be extended to Mauritians and not be given to Chagossians, and it could result in the fund that we set up not being paid out to Chagossians—certainly not to Chagossians who have been in the United Kingdom, but solely to Chagossians who now live in Mauritius. It is only right and proper that we have some parliamentary oversight from both sides—from Mauritius as well as from the UK—to ensure this is all properly done. I am sure this proposition is so reasonable that such a reasonable Minister as we have on the Front Bench cannot fail to agree with it. I beg to move.
The Earl of Leicester (Con)
I want to add to my noble friend’s words. I will not read the whole letter, but this is a copy of the letter to the Minister from the Chagossian people. They write that the Minister’s words
“cut deeply. They erase our history, our dignity, and the truth of who we are. They echo the very language used to justify our people’s deportation between 1968 and 1973. And they are demonstrably false … For more than a century before our exile, the Chagos Islands were home to a multigenerational, settled population. This is not our opinion. It is documented in church registers of births, marriages, and burials across Peros Banhos, Salomon and Diego Garcia; colonial-era records describing communities with homes, chapels, gardens and workplaces; judgments of the UK High Court in the Bancoult cases; the International Court of Justice; United Nations resolutions; academic research stretching across decades. We were not transient workers. We were a Creole-speaking people, rooted in our islands, with our own traditions, our own culture, and our own community life. To say that our homeland had ‘no permanent population’ is simply untrue … You also stated the islands had ‘never been self-governing’. Chagossians have never claimed to have operated a Westminster-style system. But for generations, in the long absence of resident British administrators, our islands were organised and cared for by local leaders from within our own community”.
This has been confirmed in academic work. Misley Mandarin, who lives here in London now with his family, finishes,
“We ask you not for sympathy, but for recognition. Not for pity, but for accuracy. Not for charity, but for truth. We deserve self-determination. We want to stay British and return to our islands as British citizens”.
Baroness Chapman of Darlington (Lab)
My Lords, as the noble Lord opposite has indicated, it is slightly surprising that the four amendments on establishing a joint UK-Mauritius parliamentary commission or committee have been degrouped. Members are well within their rights to do this and I am glad at least that this time noble Lords have had sufficient notice of what is happening.
I am sensitive to the sentiment of these amendments. I take them to come from a genuine desire for greater parliamentary involvement in the scrutiny of the implementation of the treaty on specific areas that are of concern to the Committee. The Government have always said that they welcome scrutiny, and this remains the case. We are not opposed to the strengthening of links between the UK Parliament and that of Mauritius, although this would be a somewhat novel approach. I think it seems pretty likely that the noble Lord, Lord Lilley, took inspiration from the amendment tabled by the noble Lord, Lord Purvis, on this occasion.
There is a question of proportionality and the proper extent of the remit of such a parliamentary commission. Out of respect for the noble Lord, Lord Purvis, I propose to discuss this in much more detail when we reach the debate on Amendment 80, which he has tabled. I hope that is acceptable to the noble Lord. I will be very happy to meet with him and other noble Lords to discuss this proposal, and specifically the amendment from the noble Lord, Lord Purvis, in more detail. I hope that, with that, the noble Lord will withdraw his amendment.
Lord Lansley (Con)
My Lords, noble Lords have not had the opportunity to hear from me on the Bill previously. I apologise for not having intruded on previous debates, but I have listened to many of them.
I tabled Amendments 51A, 51B and 51C in pursuance of my continuing interest, over a number of years, in the exercise of prerogative powers and their relationship to parliamentary scrutiny. The combined effect of these three amendments would mean that any Order in Council that exercises a Henry VIII power—that is, to amend, repeal or revoke an Act—would be subject to affirmative procedure, instead of negative as proposed in the Bill, and that any other order, in other words not a Henry VIII power, would be subject to the negative procedure instead of no procedure.
These amendments reflect, and are in accordance with, the recommendations of the Delegated Powers and Regulatory Reform Committee, which, in its 37th report on 13 November, said of the Henry VIII power in paragraph 17 that
“the Government has failed to provide a full explanation as to why the power … is subject to the negative procedure … We recommend that this power should be subject to the affirmative procedure”.
In relation to orders that are not of a Henry VIII power character, the committee went on to say:
“We recommend that the power in clause 5(1) when used to do anything other than amend, repeal or revoke an Act should be subject to the negative procedure”.
So my three amendments are intended precisely to deliver the recommendations of the DPRRC.
The Constitution Committee, in its 14th report, also drew attention to the provisions of Clause 5. It observed that Orders in Council that are made in relation to treaties are commonly made by way of the prerogative power—because treaties are made by the prerogative power—and with limited parliamentary scrutiny as a consequence. However, the committee did not dissent from the DPRRC’s recommendations in this case.
Orders in Council in relation to the British Indian Ocean Territories have historically been made by virtue of the prerogative. The terms of this agreement with Mauritius mean that that precedent no longer applies. Article 1 of the agreement recognises—or confers, depending on how you view it—sovereignty over the Chagos Archipelago, including Diego Garcia, to Mauritius. Therefore, the basis for the exercise of the prerogative power—in other words, the exercise of sovereignty over the territory—is no longer applicable. I shall go on to explain why I therefore disagree with my noble friend on the Front Bench in his argument for Amendment 33.
These provisions provide for the continuation of the law in Diego Garcia. This is in accordance with the agreement in relation to Article 9 on jurisdiction. It follows in my view that the future exercise of the prerogative is sanctioned by this legislation in relation to Diego Garcia and that, as a result, any Orders in Council made should be regarded as statutory orders and, as such, subject to parliamentary scrutiny. The Government have accepted that the orders that have Henry VIII powers should require a parliamentary procedure. They do not, however, provide for a parliamentary procedure for other Orders in Council.
Paragraph 48 of the Explanatory Notes says that this measure is in subsection (5) of Clause 5—in fact it is in subsection (6). The notes say that
“the intention is to maintain a clear distinction between prerogative and statutory orders”.
That is to be achieved, according to the Explanatory Notes, by stating that these powers are not exercised in pursuance of the Statutory Instruments Act 1946. This is a very curious place that we have arrived at, since the Government are disapplying the Statutory Instruments Act while at the same time requiring that Orders in Council that are made that have a Henry VIII power attached to them require parliamentary scrutiny and are therefore statutory orders.
Let me be clear about the argument behind my three amendments. The prerogative stems from the exercise of a sovereign jurisdiction, which in relation to the United Kingdom is exercised by the sovereign in Parliament. In other dominions where His Majesty is sovereign, other forms of sovereign powers may subsist, but this treaty and agreement with Mauritius states baldly, in Article 1, that His Majesty is not sovereign in Diego Garcia. No prerogative power can exist without being dependent on this legislation.
Subsection (6)(b), in excluding this legislation from the interpretation under the Statutory Instruments Act 1946, is incorrect. On Report, and in response to this debate, I will be asking Ministers to think very carefully about two things. First, I hope positively, I ask them to change the procedures for the parliamentary scrutiny of Orders in Council so that Henry VIII powers are dealt with by an affirmative procedure, and, secondly, that Orders in Council for any other purpose are dealt with by a negative procedure. I ask them also to think very carefully about the terms of Clause 5(6), which incorrectly seeks to disapply the Statutory Instruments Act 1946.
It follows from my argument that I do not agree with my noble friend on Amendment 33, and I am afraid that I do not agree with my noble friend Lord Lilley in relation to his Amendment 51BA. He goes further than the Delegated Powers and Regulatory Reform Committee would in applying an affirmative procedure to Orders in Council that are not for a Henry VIII purpose. Neither can I support other opposition to clauses standing part, but I expect that my noble friend was rightly seeking to probe the meaning of Clauses 2, 3 and 5. Of course, if one were to remove them, one would effectively repudiate the treaty. That may or may not be his intention, but I do not propose to speak to the opposition to those clauses standing part.
Lord Lilley (Con)
My Lords, I am persuaded by the argument of the noble Lord, Lord Lansley, that his amendments are somewhat narrower but much more justified than my broader amendment. When the appropriate moment comes, I will not press my amendment and leave his standing.
Baroness Chapman of Darlington (Lab)
In response to the desire of the noble Lord, Lord Callanan, that we are clearer in the Bill about what it does, I have read it a couple of times and honestly do not think that it could not be any clearer. It is a Bill to enact an agreement between the United Kingdom and the Republic of Mauritius concerning the Chagos Archipelago. I think that is sufficient, and if he does not, I am not sure what he is getting at.
The Government rejects Amendment 33 on the basis that the provision in question is not redundant. It is needed to ensure the secure and effective operation of the base. It ensures clarity on which law will apply through the jurisdiction that the UK will exercise under the treaty. Legal continuity and certainty for operations on the base once the British Indian Ocean Territory is dissolved is far from unnecessary.
Let me explain why we have Clause 3. This clause saves the law of BIOT, and law which relates to BIOT, as the law of Diego Garcia and law which relates to Diego Garcia. This has been done as the default, to ensure the continued effective running of the base on Diego Garcia and to make sure that there is no legal gap. Detailed work is being carried out to establish where technical amendments may be needed to this preserved law to reflect the new status of Diego Garcia. Diego Garcia is defined in Clause 3 as the whole area that the UK can exercise jurisdiction over, as covered in the treaty. This includes the island of Diego Garcia and the 12 nautical miles surrounding it. Preserving the existing prerogative power to legislate for Diego Garcia means that we can continue to operate the base and its legal architecture in much the same way that we do today, and it gives the maximum flexibility for the future.
Amendment 51, tabled by the noble Lord, Lord Callanan, seems to be based on a misapprehension. As I mentioned in my response to the amendments related to Clause 3, His Majesty has a prerogative power to legislate for BIOT at present and Clause 3 preserves this power. It does not allow him to make laws for other parts of the realm about BIOT or Diego Garcia. If the noble Lord reads that clause of the Bill again, he will see that I am right about that.
The statutory power in Clause 5 is necessary to enable amendments to Acts and statutory instruments which form part of the law of Diego Garcia and amendments to legislation which forms part of the law of other jurisdictions—the UK Crown dependencies and the other OTs. These other jurisdictions have laws which refer to BIOT or treat it as one of the overseas territories. Amendments to those laws may be necessary to reflect the new status of Diego Garcia.
I see that the noble Lord, Lord Lansley—as is becoming classic in his contributions on these occasions—has read the report from the DPRRC. His Amendments 51A, 51B and 51C appear to seek to implement its recommendations. Amendment 51BA, tabled by the noble Lord, Lord Lilley, appears to be less consistent with the recommendations—I think he has recognised that in his remarks—in that it would impose the affirmative procedure in respect not just of Orders in Council, which amend primary legislation, but of those which amend secondary legislation. Without showing too much leg so late at night, we are still considering these suggestions and we will return to them on Report. With that, I hope noble Lords will not press their amendments.
Lord Lilley
“Review: impact on nuclear treatiesWithin three months of the day on which this Act is passed, the Secretary of State must publish a review of the impact of this Act on the ability of the United Kingdom and Mauritius to comply with international treaties relating to nuclear weapons.”
Lord Lilley (Con)
My Lords, we are approaching the home straight now, which is good news. A lot of noble Lords have joined the debate at this stage. They will know that the Government attach great importance to adherence to international law. They will probably be aware that we have established that the International Court of Justice has no jurisdiction over disagreements between Commonwealth states and therefore none on our dispute with Mauritius about sovereignty, and that we have established that the United Nations Convention on the Law of the Sea has no power to rule on sovereignty.
However, there is a treaty which does apply to Mauritius and which no one disputes the existence or authority of, and that is the Pelindaba treaty. It was never mentioned in the early stages of the Government’s declarations about their need to cede sovereignty to Mauritius or their claim that doing so would increase the security of the base. But the Pelindaba treaty is one which the countries of Africa—and that includes Mauritius—signed, creating a nuclear-free zone. I do not think anyone disputes that if the Chagos Archipelago is recognised as part of Mauritius then the Pelindaba treaty will apply to the Chagos Archipelago, and therefore to the Diego Garcia base. It is significant that the Pelindaba treaty says it should be a nuclear-free zone and that therefore Diego Garcia will be nuclear-free.
It is important that we establish what that means. Does it mean that no nuclear weapons can ever be stored, based or transited through Diego Garcia? If so, does the United States know about this? What is their reaction to it? It is less clear whether or not it means that nuclear-powered vessels can use the facilities of Diego Garcia. My noble friend Lady Goldie’s amendment would make that clear, and her amendment is at least as important as mine in seeking to establish the truth of this.
Lord Coaker (Lab)
I understand the point that the noble Baroness is making. What I am saying to her is that the Government of Mauritius, the Government of the UK and the Government of the US see no contradiction in what the treaty says, and explicitly lays out, in respect of the ability of Diego Garcia to operate in the way that it has always done, with the lethal capabilities as outlined elsewhere in the Bill.
I hope that is helpful to the noble Lord, Lord Lilley, and the noble Baroness as reassurance that the situation will stay the same as it is now. As I have said, all those three parties to that treaty are confident that that remains the case.
I will say, however, that, although resisting the amendments, I am grateful that they were tabled. They are really important amendments to have made in order for the Government to have put on the record important elements of the treaty and the Bill. We have been able to clarify for the Chamber, and for those who read our proceedings, that the position that we would all want to see will continue with respect to Diego Garcia and that the full capabilities will be maintained.
Let me be absolutely clear: the full operational use of the base is protected to ensure that the base is able to continue in every way that it always has done. I hope that is helpful. On the basis of the reassurances that I have made and the comments that I have put on the record, I hope that the noble Lord, Lord Lilley, will feel able to withdraw his amendment.
Lord Lilley (Con)
That is very helpful and I entirely respect what the Minister says. He is a man of obvious integrity and commitment to the defence of this country. I am comforted that he is speaking for the Government, and therefore that the Government will maintain the freedom to use the Diego Garcia base to its full capabilities. I am not persuaded that that is necessarily in line with the Pelindaba treaty. That does not worry me so much. It may worry the noble and learned Lord, Lord Hermer, or any future Lord Hermer in Mauritius, but let us hope that they will be ignored. So I will, of course, withdraw my amendment.