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Exiled From Paradise by Order of Her Majesty

Posted by Bashir Ebrahim-Khan on 26/5/2007, 8:43 am
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Exiled From Paradise by Order of Her Majesty
By Bashir Ebrahim-Khan

The epic court battle between Olivier Bancoult, leader of the Chagossian people and the British Government continue unabated.

May 23rd 2007, in a packed Court of Appeal, where the clerk had to improvise with seating arrangements to accommodate higher than usual presence of journalists, many of them from abroad, and a visible presence of several Chagossians and their supporters, three High Courts Judges including the Master of the Rolls Sir Anthony Clarke, Sir Mark Waller and Sir Stephen Sedley delivered yet another damning judgment against the Secretary of State For the Foreign Affairs and Commonwealth Affairs.

This time the three Judges unanimously dismissed the Secretary of State’s Appeal against a 2006 Divisional Court judgment which had ruled that 2 Orders in Council passed in June 2004 by Her Majesty, the Queen was “Null and Void”.

They all agree that the 2004 Orders in Council were an abuse of power because they did not have proper regard for the interests of the Chagossians. Central to their reasoning and their rational has been the statement made after a court case in 2000 by the late Foreign Secretary, Mr Robin Cook. In a November 2000 court ruling, two judges had said there was "no source of lawful authority" to justify the way the islanders had been moved. A very honest Mr. Cook had in a parliamentary written statement declared that “
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I have decided to accept the Court’s ruling and the Government will not be appealing. The work we are doing on the feasibility of resettling the Ilois now takes on a new importance. We started the feasibility work a year ago and are now well underway with phase two of the study.
Furthermore, 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. This Government has not defended what was done or said thirty years ago. As Lord Justice Laws recognised, we made no attempt to conceal the gravity of what happened. I am pleased that he has commended the wholly admirable conduct in disclosing material to the Court and praised the openness of today’s Foreign Office.”
Now in May 2007, Justice Waller takes the view that Mr Robin Cook’s statement not only creates a legal expectation but the legitimacy of the expectation is also established. He added “In my view to frustrate the expectation of the Ilois would be so unfair, that to take a new and different course would amount to an abuse of power, unless there is an overriding interest to justify a departure from what has previously been promised. I accept that in this context the fact that the promise was given to the Ilois and that breaking the promise would involve keeping an entire population from its homeland, for reasons which have no justification, forms the context in which that promise was given. I would however, (again, I stress, on the basis that the decision was reviewable at all) prefer to express no view on whether the court would be bound to hold (as Sedley LJ suggests in paragraph 67) that any decision to remove persons from a conquered or ceded territory, albeit their homeland, for reasons unconnected with their wellbeing, would be unlawful.”
On the issue of Abuse of Power, Justice Sedley had this to say: “Few things are more important to a social group than its sense of belonging, not only to each other but to a place. What has sustained peoples in exile, from Babylon onwards, has been the possibility of one day returning home. The barring of that door, however remote or inaccessible it may be for the present, is an act requiring overwhelming justification.”
He went to add “Mr Howell submits that since the governance of a territory can affect many other things than its population, especially where it has none, there can be no principle which requires a sole or even primary regard to be had to the population where there is one. This seems to me a non sequitur: the presence of a human population must make a fundamental difference to the proper concerns and actions of government. And while many elements, for example commercial and ecological, may properly affect how the population is governed, this case concerns not its governance but its elimination as a population.

During the Appeal Hearing in February 2007, Mr. J Howell, QC for the Secretary of State had argued very strongly that the Divisional Court had erred in law as Courts had no jurisdiction over Crown Prerogatives. That is, Orders in Council cannot be challenged, or be reviewed or even be justifiable. In plain language, Her Majesty the Queen is free to do as she pleases. However, the three Law Justices would see things in a rather modern era – their words, not mine, than the Queen.

Justice Waller wrote in section 106 of the 40 pages document:
The question is where in the spectrum should an Order in Council fall in the modern era? Should it be categorised with primary legislation passed through Parliament or with secondary legislation subject to a negative resolution or in some other category? So far as legislation passed in Parliament is concerned, there is an opportunity for debate and scrutiny. So far as subsidiary legislation in the form of regulations is concerned there is little opportunity for debate but at least there is the negative resolution procedure. So far as Orders in Council are concerned there is simply no opportunity for debate at all and no opportunity for scrutiny. It involves a minister acting without any constraint. Indeed the Crown may be doing something that, if she only knew the true position, she would prefer not to do, and yet it is then said that the government can hide behind the “Crown’s prerogative”.
Indeed, he went to add in section 92, “it was the executive not the Crown that decided to put the 2004 Orders in place. It did so without consulting the Chagossians or anyone on their behalf and without even informing, let alone seeking the advice of, Parliament.”
The Master of the Rolls, Sir Anthony Clarke concurs. He stated in section 113, “Let it be assumed that historically the power of the sovereign was entirely (or almost entirely) unfettered, so that he or she had the same powers as Parliament now has to make laws for ceded and conquered territories (or anywhere else). It does not follow that the Queen still has those unfettered powers to legislate by Order in Council. I agree with Sedley and Waller LJ that she does not.”
In so far as the reviewability of Orders in Council, the three Judges relied heavily on to the principle stated by Lord Scarman in Council of Civil Service Unions v Minister for the Civil Service [1985], in order to dismiss Mr Howell’s objections. If Lord Scarman’s reasoning is applied to Orders in Council of the kind under challenge in the instant case, they are subject to judicial review in the same way as other Orders in Council.
There were a bit of drama during the issue of the judgement. When the court was asked by Olivier Bancoult’s Counsel Sir Sydney Kentridge QC, as to whether the Court’s decision will be respected, Mr Howell for the Secretary of State, was rather rattled and visibly uncomfortable. He asked for an Execution of Stay, which the Judges refused. Then he starts talking of the Government’s intentions to legislate to prevent the current orders. In my layman’s opinion this was tantamount to sheer threats, if not contempt of court. The Court decided to adjourn for a short while against the day’s plan before returning to maintain their refusal for leave to Appeal to the House of Lords or granting any Stay. However the Government, outside of Courts, can still go direct to the House of Lords and seek permission to appeal to…the House of Lords. It seem to me, at least, that the Government is a bad loser and one should not dismiss the possibility of them coming up with further surprises up their sleeves.
In the mean time, one cannot fail to recognise that this current Court judgement as it stands , is a damned indictment of the policies of Tony Blair as it was His Foreign Secretary Jack Straw, who by-passes parliament and secured these now infamous 2 Orders In Council. Another nail in an already heavy coffin for Blair. It would seem that the Blair legacy in the form of injustices to the Chagossians is not over yet.