Diego Garcia Military Base and British Indian Ocean Territory Bill

Lord Lansley Excerpts

Committee stage
Tuesday 25th November 2025 Lords Chamber

Turning to the amendments in the name of my noble friend Lord Lansley, he is seeking to prevent an Order in Council under this section from amending, repealing or revoking any legislation unless it has been approved by a resolution of each House. My understanding of my noble friend Lord Lilley’s Amendment 51BA is that he is seeking to achieve a similar outcome. Yet again, I will be interested to hear my noble friend’s arguments and I certainly want to avoid pre-empting them at this stage.

[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.

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.”

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Diego Garcia Military Base and British Indian Ocean Territory Bill

Lord Lansley Excerpts

3rd reading
Monday 12th January 2026 Lords Chamber

[The Minister of State, Foreign, Commonwealth and Development Office (Baroness Chapman of Darlington) (Lab)]

My Lords, this government amendment will change the parliamentary procedure applicable to the delegated power in Clause 6. With this amendment, all instruments made using that power would be subject to the negative procedure. Previously, no parliamentary procedure applied unless the power was used to amend, repeal or revoke Acts of Parliament or statutory instruments made under them.

I thank the noble Lord, Lord Lansley, for his contribution to this. I am glad that we were able to agree on a sensible compromise which puts into effect one of the recommendations of the Delegated Powers and Regulatory Reform Committee. I hope that this assures the noble Lord and the DPRRC that the Government have listened to the views of noble Lords and are willing to find compromises where they are sensible. I beg to move.

[Lord Lansley (Con)]

My Lords, I want to say a big thank you to the Minister for her engagement following Report and for tabling this amendment by way of, as she says, what I hope is very much an agreeable compromise.

While the Delegated Powers and Regulatory Reform Committee made the good point that Henry VIII powers should only exceptionally be subject to other than the affirmative procedure, in fact, when one looks at the detail of the Bill in the Government’s further response, it is quite clear that it would be excessive for the House to be detained on an affirmative debate on some of this legislation in relation to what are clearly not controversial matters. However, establishing the principle that all statutory orders should be subject to parliamentary scrutiny is, I think, important. I am very glad that the Government have accepted that.

Amendment 1 agreed.