Diego Garcia Military Base and British Indian Ocean Territory Bill

Committee (2nd Day) (Continued)

Amendment 20A not moved.

Amendment 20B had been withdrawn from the Marshalled List.

Amendments 20C to 20H not moved.

Amendment 20J

20J: Clause 1, page 1, line 7, at end insert “, subject to subsection (2A). (2A) Sections 2 to 4 do not come into force until the Secretary of State has produced a report setting out any reasons for rejecting any remedies otherwise than this Treaty for resolving challenges to the United Kingdom’s sovereignty of the Chagos Archipelago.”

My Lords, Amendment 20J in my name proposes that Clauses 2 to 4 do not come into force until the Secretary of State has produced a report setting out the reasons for rejecting the alternative legal remedies to those set out in the Mauritius treaty for resolving challenges to the United Kingdom’s sovereignty of the Chagos Archipelago.

At the heart of the Government’s justification for proceeding with the Bill to bring the Mauritius treaty into force is the non-binding judgment of the International Court of Justice from 2019. The Government have, I think, acknowledged that it is not binding but have sought to ensure that, if it is ignored, binding judgments will quickly arise and other countries upon which we depend to run the base would then refuse to help. The Government have not clearly explained what these feared judgments are and why they would be binding. I invite the Minister to do so in detail and to tell the Committee which countries we depend on to run the islands, which we think would then refuse key services and what those services are.

However, in this amendment, I want to probe a different approach. The Government tell us that this is a critical Bill because its passage will facilitate the coming into force of the Mauritius treaty. The treaty is vital because the United States has told the UK Government that it is unhappy about having a major US base on Diego Garcia when the sovereignty of Garcia is contested. Furthermore, it has paused investment on Diego Garcia, which will not recommence until the legal standing of the Chagos Islands has been resolved.

It is crucial that this matter is resolved, because the security—not just of the United States but of the United Kingdom and the West—depends on full US investment in Diego Garcia. In this context, the reason why the Bill and the treaty, which will come into force if it becomes an Act of Parliament, are vital is because they set out the only route to legal certainty for the standing of the US military base. However, this solution does not provide the only way forward to secure legal certainty, and there are alternative ways forward that would better secure legal certainty than the Bill and the treaty. It is the purpose of my amendment to ask the Government to consider these alternatives.

If the court looked at the difficulty without full regard for the Chagossian people because they were not fully represented then it is clear that it could work on the basis that the territorial integrity of the pre-November 1965 colony should not have been changed by the UK prior to decolonisation. However, given the Tuvalu-Ellice Islands precedent, there is still a difficulty because of the caveat in the judgment which states that the separation was wrong unless based

“on the freely expressed and genuine will of the people of the territory concerned”.

The detached territory was the Chagos Islands. The people of the detached territory were, by definition, plainly no one other than the people of the islands.

Moreover, we must factor into the equation that, first, the Chagossian people did not live on the islands because we wronged them twice in forcibly removing them between 1968 and 1973 and then refusing from 1973 until the present to return them to their islands. They continue to live in countries that are members of the UN as a growing community in exile. Secondly, the biggest survey of Chagossian opinion, covering over a third of Chagossians living today, shows that more than 99% support becoming a resettled British Overseas Territory and less than 1% want the islands to be made part of the Republic of Mauritius. Thirdly, with the precedent arising from the UK Government offering the Ellice Islands self-determination before the decolonisation of the Gilbert and Ellice Islands, there is another legal way forward.

Crucially, it is our duty to explore that alternative legal way forward. It is likely to provide a greater measure of legal certainty for the United States, because, if this Bill becomes law and the treaty is implemented, the United States will just exchange one legal uncertainty for another. Instead of the legal uncertainty pertaining to the Diego Garcia base arising from the Republic of Mauritius claiming sovereignty over the islands in defiance of the UK, we will be confronted by an alternative dispute. The Chagossian people are, for reasons that I will pick up when speaking to other amendments, likely to obtain a form of international personality. They will instead claim sovereignty over the islands in defiance of the claim of the Republic of Mauritius.

Rather than allowing the opinions of legal certainty to be constrained by the circumstances of the non-legally binding judgment, the Government’s approach going forward should be fully animated by appreciation of the following truths. First, it was just as wrong of us to split the colony that covered Mauritius and the islands before decolonisation without consulting the Chagossians, let alone providing them with self-determination, as it would have been to refuse to split the Gilbert and Ellice Islands before decolonisation after having afforded the Ellice Islands a self-determination referendum in which they elected to separate. Secondly, it was profoundly wrong for us to forcibly remove the Chagossians from the Chagos Islands between 1968 and 1973. It was and is profoundly wrong that, from 1973 until today, we have refused to return the Chagos Islands to the Chagossians. In this context, the Government should produce a report that considers all the legal ways forward. I submit that the one best equipped to provide unassailable legal certainty is to afford the Chagossian people a self-determination referendum and to implement its results. I beg to move.

My Lords, I support the amendment of the noble Lord, Lord Morrow. I thank the Ministers for the patience and courtesy that they have displayed all evening. The two Ministers and the Whip know that they are among my favourite Peers, not just my favourite Government Front-Benchers, and they have been very patient and good-humoured.

I take issue with the idea that this is a done deal. That is an argument that has run through a lot of the debates and this seems to be the apt amendment on which to take it on. We have been told repeatedly—including by the noble Baroness, Lady Chapman, last week, and again just before dinner by the noble Lord, Lord Kerr of Kinlochard—that the treaty has been signed and been passed by the CRaG process and that therefore all this is, as it were, dancing after the music, and we would be exposing ourselves to a much more dangerous situation if we now try to hold it up.

I ask the Committee to ponder the possibility that the CRaG process has not in fact been a full democratic exercise. There has been no vote. Everything was rushed through from Second Reading in one day—there was no Report stage. I have never been a Member of the other place, unlike some of your Lordships present, but, as I understand it, you have a vote in the CRaG process by moving an amendment or a resolution and then voting for it. Looking online, I see that there is such an amendment, standing in the name of my right honourable friend the Leader of the Opposition and others, signed by 107 Members of the other place, from six political parties. I concede that that is not nearly as big a deal as it would have been a decade ago—there has been something of a splintering of parties. As yet, there has been no vote on it.

I mention this because the idea that therefore we have no option except to tweak statements at the margin and polish the edges of this, and cannot look for substantive changes, is fundamentally at odds with what was promised when the CRaG process was brought in. If the treaty was rushed through without debate in another place, surely the only proper scrutiny and the only proper chance of amendment is in this Chamber. Therefore, I hope that noble Lords on all sides will feel uninhibited when it comes to moving and, in due course, voting on substantive amendments. This is the one realistic opportunity that we have to make the points that would be made by the people from the Chagos Islands watching us now if they had a voice in our counsels.

My Lords, as the noble Lord, Lord Hannan, reminds us, this amendment gets to the core of the criticisms that have been levelled against the Government’s approach to this Bill so far. As my noble friend Lord Lilley pointed out numerous times during the debates on the first day in Committee, it is very difficult to see which court could have delivered a binding judgment against the UK on the question of sovereignty over the Chagos Archipelago. Yet it is the repeated contention of the Government that this treaty is somehow essential to deliver legal certainty.

The question remains of which court could have delivered a binding judgment that would have threatened that legal certainty and the security of the military base. I hope that the Government can finally provide us with an answer. If they cannot answer that question then the argument that this treaty and this Bill were both necessary falls apart. Indeed, the argument that the treaty and the Bill are needed urgently also falls apart, and we should consider whether the Government should take a more circumspect approach. That is what the amendment of the noble Lord, Lord Morrow, suggests.

If this treaty is necessary, Ministers must surely have considered other options before coming to this agreement with Mauritius. Perhaps the Minister can tell the Committee what consideration was given to resettlement of the Chagos Archipelago by Chagossians, for example. What would the cost have been for that? What is the difference between that cost figure and the true cost associated with this treaty? I say “true cost” because the Government’s initial claims on costs have now been thoroughly discredited.

There were lots of options that should have been considered, so perhaps the noble Baroness can tell us what options were in fact considered. I understand that these are specific questions about the process followed by Ministers before agreeing to the treaty with Mauritius, so if the noble Baroness cannot say with certainty what potential approaches were considered, perhaps she could write to us to confirm the details.