That's My Prerogative

Today saw the commencement of the High Court challenge to the Orders in Council passed to prevent the onetime inhabitants of the Chagos Archipelago returning to the islands from which they were evicted by the British Government.

The Chagossians are being represented by Sir Sydney Kentridge QC who has prevously acted for Nelson Mandela and Stephen Biko, an anti-Apartheid campaigner who was killed in custody. Judging from the report in the Times (the best of the five articles on Google News at the time of writing) the crux of the argument Kentridge presented was that "when the Queen approved an 'Order in Council' on June 10, 2004, to uphold the 40-year-old eviction of the Chagosians from their homes, she acted outside her authority over the British Indian Ocean Territory to which the Chagos Islands belong." (For those of you who don't know, or had forgotten, the British Indian Ocean Territory, or BIOT, is an artificial entity created by the British to carve the Chagos Archipelago from Mauritius when the latter became independent, considered to be a territory of the UK.)

Orders in Council are a Royal Prerogative power, passed by the Privy Council. As Sydney Kentridge noted, they are not statutory instruments, not subject ot Parliamentary approval and in this case were made without any consultation with the Chagosians. Despite their medieval origins, Kentridge argued (at least according to the Times) that "the Queen's authority over the Chagos Islands was limited to legislating 'for the peace, order and good governance of the territory' and as such, the order was 'invalid and of no effect'."

The case has been brought by 41-year old electrician and Chagossian leader Louis Olivier Bancoult (there is some confusion over his name, with several media outlets reffering to him as Louis Bancoult, rather than Olivier which seems to be more common). In a telephone interview with Bloomberg.com Bancoult claimed, "We feel ashamed for Her Majesty the Queen, for her to read what is written and to say, 'Banish the right of a human being, banish the right of a British citizen, turn them away from their homeland,'"

The Chagossians have already won the right to return to their homes once in the High Court. In 2000 the court ruled that the expulsion of the Chagossians had been unlwawful and that the order which had expelled them should be immediately be amended to confer on all those born on the island, and their children, the right to resettle their. The government responded by insisting that this would have to be balanced with our treaty obligations to the US, meaning that Diego Garcia itself (the site of a major US military base) would be excluded from the right of return. Nonetheless, then Foreign Secretary Robin Cook promised, "We will put in place a new immigration ordinance which will allow the Ilois to return to the outer islands while observing our treaty obligations."

Needless to say this didn't happen. Over the next few years the government carried out a number of "feasibility" studies into the possibility of resettlement which they claimed showed return to be impossible. This was followed with an extended period of silence over the matter, ended in by the passing of the Orders in Council on 10 June 2004, which - entirely coincidentally you understand - was also "Super Thursday," when european and local elections were taking place. These banned anyone from setting foot on the island.

Kentridge notes that the passing of the orders destroyed the hopes of many Chagossians:

"They thought they had finally succeeded in establishing their right to return - but that was not to be," Sir Sydney told Lord Justice Hooper and Mr Justice Cresswell.

"On June 10, 2004, the right they thought they had, and believed they had, was removed from them," he said. "Not by Parliament, but by Her Majesty the Queen acting through Orders in Council on advice from the Secretary of State for the Foreign and Commonwealth Office."

The orders restored the Government's eviction order that had been quashed by the High Court, Sir Sydney said.

Dashed hopes notwithstanding, the Chagossians have continued to fight for their rights. That this case, with all the attendant costs and inconveniences, is being brought at all is testament to that. Bancoult had travelled from Mauritius to attend the case and was joined by a number of fellow Chagossians from the community in Crawley. On the steps of the Royal Courts of Justice he told assembled supporters, "The Orders in Council are a secret law shamefully used to by-pass Parliament. The Government knew many MPs would be against them. We want to show the British Government has treated us, its own citizens, very shamefully and shown contempt for its own institutions and the judgment of the High Court."

Others were similarly damning of government policy. Lawyer for the Chagossians, Richard Gifford dismissed suggestions that difficulties made the cost of resettlement prohibitive, according to the BBC, he opined, "I've no doubt it is quite inconvenient to provide for the return of a population to their homeland, but that really doesn't square with concepts of morality, justice or anything else in this day and age. It's the sort of thing they might have done in the 17th or 18th Century." Durham professor of law Colin Warbrick also criticised the outdated laws used against the Chagossians, noting that Orders in Council were used to govern colonies as they are used to govern "overseas territories" today. Inceed, they were used by King George III to govern some of his American colonies prior to their rebellion. "That's what all the fuss was about," Warbrick suggests. "All that fuss," of course being a reference to the American War of Independence.

The case is expected to continue for five days, with the verdict reserved for a later, as yet unknown, date.