Chagos Islands

Orders in Council. We in Anguilla have to learn from the experience of the Chagos Islanders. The story can be shortly told. In the 1960’s, the British Government agreed to give the US military an airbase in Diego Garcia, one of the Chagos Islands. The “special relationship”, and all that. For security reasons, the US military did not want anybody living on any of the islands near to Diego Garcia. Never mind that the nearest of the Chagos Islands was one hundred miles away from Diego Garcia. All of the occupants were evacuated to satisfy the US need for secrecy. All the inhabitants of the Chagos Islands archipelago were declared to be illegally living in their homes. They were by Order in Council summarily deported to Mauritius. There they have remained for the past 40 years, living in slums, exiles from their homeland.

Their representatives brought a lawsuit in the High Court in England in the year 2000 seeking relief. They argued that their deportation from their traditional homeland was in breach of their fundamental human rights. They asked the court to find that the Order in Council was illegal. In 2003 the High Court agreed. The Court made an order declaring their deportation illegal. The British government was ordered to permit them to return to their home. The British government initially complied. The US brought pressure to bear. The Home Secretary announced that he would not obey the order of the Court. A new Order in Council was made in 2004 prohibiting the Chagos Islanders from returning home.

The islanders took the British government back to court. They challenged the validity of this last Order in Council. In the High Court, Government’s counsel argued that the court had no jurisdiction to question the validity of an Order in Council. The argument was that it was the Queen’s prerogative. The Chagos Islanders argued that the court did have the right to look at the validity of an Order in Council. The High Court found in favour of the Islanders. It held that the Order in Council had been illegal. Government then appealed to the Court of Appeal. On 23 May 2007, the Court of Appeal upheld the decision of the High Court. The court concluded that the Order in Council was illegal because it frustrated the legitimate expectation of the islanders to be allowed to return to the Chagos Islands. The main point made by the Privy Council, for our purposes, was that an Order in Council is not a sacrosanct document. It is amenable to judicial review. British Ministers no longer have an unrestrained power to make an Order in Council.

A country’s Constitution is the contract made between a people and its government as to the way they consent to be governed. It cannot be altered by one party unilaterally. Any Order in Council that amends our Constitution without due consent will be illegal. This decision is very important for us in Anguilla. Not least, because of its constitutional implications. It calls into question the use of the royal prerogative, the alleged basis of Orders in Council amending our constitution.

Tomorrow we look at why we must prepare.