Jo Swinson

British Indian Ocean Territory - Westminster Hall Debate

Jo Swinson (East Dunbartonshire, Liberal Democrat): I congratulate Jeremy Corbyn on securing this debate. As other Members of the House know, he has been a passionate campaigner on this issue for many years, and today he set out the case using his great knowledge of the subject in a powerful speech. I struggled to find anything in it with which I disagreed.

I reiterate my support and that of many in my party for the Chagos islanders' campaign to be allowed to return to the outer Chagos islands. On 23 April 2009, we had a debate in this Chamber on the overseas territories, when I and other hon. Members noted that the Foreign Affairs Committee's seventh report of Session 2007-08 concluded that there is "a strong moral case" for allowing the Chagossians to return. I stand by my statement then that the Government have acted shamefully in preventing them from returning.

I also had an opportunity to raise the issue last month in a European Committee debate that covered a wide range of issues, and at that time the Minister for Europe was firm in his disagreement. I am hopeful that we may get a slightly more positive response from this Minister.

In October 2008, the House of Lords ruled that the Government had acted legally when they issued two Orders in Council forbidding the Chagos islanders from returning to the outer Chagos islands. The ruling was based on a series of statutes in British law which state:

"In a conquered or ceded colony the Crown, by virtue of its prerogative, has full power...to act both executively and legislatively" regardless of whether its actions are "for the benefit of the inhabitants of that colony."

In the 21st century, arguing that the British Government can do whatever they like in their overseas territories without regard for the interests of the inhabitants is morally reprehensible, and the law should surely be changed. I deeply regret that the Government have not taken the advice of the European Court of Human Rights and sought a settlement out of court with the Chagos islanders that would allow them to return to the outer Chagos islands, which, as we have heard, are 130 miles away from the others. This legal battle has gone on far too long, and it is a stain on Britain's reputation.

As has been mentioned, there is also a significant financial cost to the legal battle. In 2008, the Public Accounts Committee estimated that the Government had spent £2.1 million on the court battle with the Chagos islanders. Since then, there have been appeals to the House of Lords and to the European Court of Human Rights, which must have brought the cost to the taxpayer much higher still. I urge the Minister to stop wasting money on this legal case, particularly in the current economic situation, and to settle out of court with the Chagos islanders.

I am also greatly concerned that, at every stage of the legal battle, the Government have failed to consult Parliament on their decisions. In 2004, they used the Privy Council to issue two Orders in Council banning anyone from settling in the Chagos archipelago. The announcement was made on 10 June 2004, which was called "Super Thursday" with reference to the fact that it was the day of the European Union, local and mayoral elections, and therefore was ideally timed to escape the attention of politicians, the public and the press. Last May, the Justice Secretary admitted on BBC Radio 4 that he had "exchanged speed for legitimacy" when he chose to use Orders in Council, because that was "simpler" than putting the decision before Parliament. That is just not good enough. It may be simpler for the Government, but that does not mean that there should not be proper accountability in this place.

After the European Court of Human Rights asked the Foreign and Commonwealth Office to reply by 17 July 2009 stating how it would respond to the Chagossians appeal, I was happy to sign early-day motion 1949, which was tabled by the hon. Member for Islington, North and signed by 51 other MPs. It called on the Government to consult Parliament before the FCO responded, but the FCO went ahead and responded without Parliament's being consulted. I hope that the Minister will explain why the Government do not see fit to give parliamentarians a say in such an important matter.

Laura Moffatt made an excellent contribution, in particular about her experiences with the Chagossian community in Crawley. She told the human story behind the issues of legality and principle that can so often be discussed in abstract terms. Of course this is not a simple issue-there are myriad different views within the Chagossian community, as within any community, as hon. Members know-but it is a real problem that the Government have failed to consult Chagossians themselves in the many instances when one would expect them to be among the first groups to be consulted.

The Orders in Council that were used to ban Chagossians from their home in 2004 were based on a 2001 feasibility study for resettlement, yet the Chagossians were not consulted as part of that study. Nor did the Government consult the Chagossians when they came up with their document on a marine protection area that was published for consultation in November 2009.

Like other hon. Members, I very much support the creation of an MPA in the Chagos archipelago. However, I am concerned that the Government have sought to develop a plan for it before a ruling has been received from Strasbourg on resettlement. I recently signed the Marine Education Trust's petition calling for the Government's plans for an MPA in the Chagos archipelago to make provision for the future possible return of the Chagos islanders to their home. A number of Liberal Democrat MPs have signed the petition as well as early-day motion 960, which was tabled by Ms Abbott. It carries exactly the same message, and I encourage any Members who have not signed it to do so.

Fishing would be vital to the survival of the Chagossians if they resettled on the outer islands, and the proposal to make provision for it in the MPA has received support from many environmentalists who have signed the Marine Education Trust's petition. The case was put forcefully by the hon. Gentleman that, in conservation terms, it is best to involve local communities to ensure that there is a lasting settlement that will protect the environment, and that everyone has bought into it.

Legal advice suggests that declaring an MPA without the support of the Chagos islanders and Mauritius would be illegal under the United Nations convention on the law of the sea. In a parliamentary answer to Lord Wallace of Saltaire, Baroness Kinnock wrote that the MPA must not

"impact on the operational capability of the base on Diego Garcia".-[Hansard, House of Lords, 22 February 2010; Vol. 717, c. WA234.]

She went on to state that the island may therefore have to be excluded from the MPA. I would be keen to hear from the Minister how the Government will work with the United States Department of Defence to reduce the impact of the military base on the environment, if that is the case.

I would like to turn to other impacts of the military base, particularly the troubling topic of rendition. I am sure that all hon. Members will agree that the use of Diego Garcia for extraordinary rendition of terror suspects is deeply disturbing, and that every effort must be made to prevent it from happening again. I understand that the US Government have not always been entirely honest with the UK about the use of Diego Garcia for that purpose, but surely we have a moral and legal responsibility to ensure that our territory is not used for such acts.

To that end, Mr. Tyrie has proposed legislation to tighten the criminal law on extraordinary rendition, and I understand that the proposals are being considered by the Ministry of Justice. The Justice Secretary has stated that

"The Government would not allow any rendition through UK territory that would put the UK in breach of its...human rights obligations".

However, we know that past assurances given by the US Government on the matter have turned out to be false, so I would be keen to hear what the Government are doing to ensure that the US does not use Diego Garcia for that purpose.

In conclusion, I make four points to the Minister. The Government should drop the legal case against the Chagos islanders at the European Court of Human Rights and settle out of court, as other hon. Members have suggested. The Government must consult Parliament on all major decisions concerning the islands, and consult the islanders themselves, the Mauritian Government and other stakeholders where it is clearly appropriate. They should make provision in any MPA for the Chagos islanders to fish in local waters should they resettle in the outer islands. Finally, they must take concrete measures to prevent the use of the British Indian Ocean Territory and, indeed, any others, for extraordinary rendition. I hope that the Minister will be able to respond positively to those points.

Keith Simpson (Shadow Minister, Foreign Affairs; Mid Norfolk, Conservative): It is a pleasure to serve under your chairmanship, Mr. Howarth. I congratulate Jeremy Corbyn on raising this issue. He has been tireless over many years in doing so, as have other colleagues. Like Jo Swinson, I was also present when we touched on the Chagos islands in the debate on the Foreign Affairs Committee's report and also in the European Committee.

The hon. Gentleman said that this debate is about the Chagossians' legal right to return to the islands. He also said-I hope that I took this down correctly-that the British Government are, on their own, pursuing a case on a security issue all the way through the law courts. I shall return to that in a few minutes.

It seems to me that there are several interlocking issues here, with justice for the Chagossians being at the centre of them. While listening to the debate, I heard the outrage of many hon. Members here, as well as during previous debates, about the way in which the Chagossians were removed from the islands and are unable to return, but their case is not unique. When I first went to Gibraltar-as a military historian, I am ashamed to say this-I did not realise that in the summer of 1940, around 90 per cent. of Gibraltarians were forcibly removed. Many went to the Azores, and some were brought to London because it was thought to be safe. There was a certain irony in that because they lived in tenement flats and hotels in Pimlico, and then had to endure the blitz. By 1945, they were allowed back, but tens of thousands of people were involved.

In Norfolk-there are similar cases in Yorkshire and, of course, on Salisbury plain-at the beginning of the war, the army took over the Stamford battle area near Thetford. Many people in villages were forcibly removed and have never been allowed back. That is one of the little footnotes in history, and every 10 years or so a local television programme is made about it. I am not trying to compare or demean the Chagossian case, but there are other examples, although theirs is a specific one.

In reply to an intervention, Laura Moffatt made a good point in a fair speech. My experience when talking to many groups of Chagossians is that there is not one overriding view. There is a view about the right to return, but some Chagossian groups want to return, some want the right to return merely as visitors, some have business interests that they would like to develop-I have heard from some Chagossians that they would like to develop tourism, hotels and so on-and a substantial group wants the island to remain firmly a UK territory, and do not want it to be returned to Mauritius. The British Government have said that if the Americans decide to withdraw from Diego Garcia, responsibility for the island will return to Mauritius. I am making the point to show that, as the hon. Lady fairly said, and I am certain that the hon. Gentleman agrees, the issue is complex, not simple. Responsibility for resolving it must be with the British Government.

The US-UK military presence is also an issue. The UK presence is tiny on Diego Garcia. The issue has been highlighted by accusations of extraordinary rendition, and I do not want to go into the details, but it has highlighted the fact that the overall relationship between the United Kingdom and the United States is not always open and honest in the exchange of policy and intelligence.

The crucial point about the military presence on Diego Garcia, as the hon. Lady said, is that by 2014, we must consider proposals for any revisions of the agreement-2016 is the cut-off date-and that is only four years away. My best guess in 2010 is that it is highly unlikely that the United States will want to withdraw completely from Diego Garcia, because of the way in which the world has changed. I am not talking just about the conflict in Afghanistan. If one talks to people in the State Department and the Pentagon, they see Diego Garcia as being even more crucial both as a base for moving aircraft in and out-a supply base-and, as they see it, a strategic balance of power in the Indian ocean. My best guess is that in 2014 the United States will not want to withdraw. That will be a big attention-grabber for the British Government, the Foreign Office and the Ministry of Defence.

Jeremy Corbyn (Islington North, Labour): Will the hon. Gentleman acknowledge that the archipelago is a long way from Diego Garcia-130 miles-and that it is bizarre to argue that there is a defence and security requirement on islands that are the equivalent of one third of the distance from here to Paris, for example?

Keith Simpson (Shadow Minister, Foreign Affairs; Mid Norfolk, Conservative): Yes. The hon. Gentleman got in just ahead of me. The Chagossians have made that point, and there is a genuine question for the Foreign Office and the Ministry of Defence here, and the State Department and the Department of Defence in the United States to answer. Do they believe, objectively, that if the Chagossians returned and there were some form of economic development, there would be a threat to their security? What sort of threat do they believe there would be? It should be discussed to decide whether it is credible. The Department of Defence may well say that there is no such threat, and that if there were it could be monitored.

We have reached the stage where the sort of secret agreements and discussions that we were able to have 40 years ago under consecutive Governments-this is not a party political issue; it was a Government to Government matter-cannot continue in quite the same way. There will be issues of confidentiality, but whoever are the Government after the general election will have to consider the matter.

The whole business of economic development of the area is crucial, and the hon. Gentleman and the hon. Lady made the point that some crucial issues will arise if some Chagossians want to return, particularly the development of the fishing industry. Mauritius also has an interest, and a matter in the documentation that worries me is the marine protection area. If the United Kingdom decided eventually to hand back the islands to Mauritius, I am not certain whether Mauritius would be legally liable to continue the MPA. That will be crucial from the point of view not only of the Chagossians, but of any investment that the United Kingdom and other partners have made in the development of the area.

There is a series of connected issues, and I conclude by saying that we must put the interests of the Chagossians at the heart of them. I do not believe that the Foreign Office has entirely ignored them, but they have tended to be of second or third-level importance. That cannot continue. I am trying not to be too parti pris, but we know pretty well that there will be a general election on 6 May, given the announcement about the Budget, and if the consequence of that election is that my party finds itself in Government, I think we would want to revisit the whole issue with an open mind, because we cannot continue the present policy, given all the points that have been made by hon. Members today.

Finally, one of the first things that the newly constituted Select Committee on Foreign Affairs should do in the new Parliament is to consider the whole issue of the Chagos islands and all the matters that we have discussed today. I again congratulate the hon. Gentleman on the way in which he raised this important issue.

Ivan Lewis (Minister of State for Foreign and Commonwealth Affairs, Foreign and Commonwealth Office; Bury South, Labour): It is a tremendous pleasure to serve under your chairmanship, Mr. Howarth. I pay tribute to my hon. Friend Jeremy Corbyn for securing this debate, and for his passion and long-standing advocacy on an issue that disturbs any reasonable hon. Member, whatever their roles and responsibilities. This is not part of my ministerial portfolio, so I am new to the matter, but I considered some of the issues when preparing for this debate, and the historical treatment of Chagossians by the British Government at the time is a scar on our history. It was totally unacceptable, and we should be ashamed of what was done in the name of this country.

I also pay tribute to my hon. Friend Laura Moffatt for a typically thoughtful and sensitive contribution to the debate, and more importantly, for the human and personal support that she has given to the Chagossian community in her constituency. I know that people in that community have great respect for the personal interest and commitment that she has demonstrated in ensuring that they are ultimately treated with dignity and respect. As my hon. Friend said, as a result of its efforts, the community is beginning to do well. A manifestation of that is the fact that some young Chagossians have the opportunity to go into higher education, perhaps for the first time. That is always a sign of a community that is progressing and moving forward.

There can be no doubt about the responsibility and culpability of this country for the decisions that were made in the late '60s and early '70s. Because of that, we owe it to the Chagossian community to ensure that we behave appropriately and in a way that, while remaining consistent with our interests, is also sensitive to our responsibilities.

The key issue raised during the debate was the right of return, and in that context it is important to look at the different legal processes that have taken place and explain why the Government felt that they wished to pursue the case legally. The first example of that, as my hon. Friend the Member for Islington, North mentioned, was when the Foreign Secretary made the decision to appeal the case to the House of Lords following other court decisions.

The reasons for that decision were threefold. First, following an independent feasibility study, we were convinced that lasting resettlement would be precarious and, if sponsored by the Government, entail expensive underwriting by the British taxpayer over an open-ended, probably permanent period. Secondly, restoration of full immigration control over the entire territory was necessary to ensure the availability and full effectiveness of the territory for defence purposes, particularly in the light of a change in security circumstances since 2000 and our treaty obligations to the United States. Thirdly, the Court of Appeal's judgment raised issues of constitutional law that we believed to be of general public importance. For those reasons, the Foreign Secretary felt at the time that it was appropriate to appeal the case to the House of Lords.

A lot of concern has been expressed today about the feasibility of resettlement and about defence, and during the debate, hon. Members have questioned the basis for our position on those issues. The independent study conducted in 2000 came down heavily against the feasibility of resettlement-I do not know whether hon. Members have had an opportunity to see that report. Although it concluded that short-term habitation for limited numbers on a subsistence basis would be possible, it emphasised that any long-term resettlement would, in reality, be precarious and costly. Hon. Members who are well informed will be aware that the outer islands-the largest of which is about the size of Hyde park-have been uninhabited for nearly 40 years and have no basic facilities or infrastructure. Therefore, in terms of objectivity, that feasibility study came out heavily against resettlement.

On defence, the 1966 exchange of notes with the United States made the whole archipelago available for the defence purposes of both Governments as they may arise. The terms of that note remain in force, and the United States has confirmed that, from its point of view, that situation is still valid.

It is also important to deal with compensation, and hon. Members have recognised that the Governments involved have made compensation available in the past. In the early 1970s, £650,000 was paid to the Government of Mauritius for the benefit of the Chagossians, and, in addition, the Government of Mauritius made land available to the value of a further £1 million. Further to that, under a 1982 agreement between Her Majesty's Government, the Government of Mauritius and representatives of the Chagossians, a further £4 million was paid by Her Majesty's Government into a trust fund for the benefit of the registered Chagossians. In today's terms, total compensation paid by the Government would equate to over £16 million.

A High Court judgment made by Lord Justice Ouseley on 9 October 2003, and upheld by the Court of Appeal in 2004, looked thoroughly into the circumstances in which the 1982 settlement was reached. The judgment accepted that the payments were received as full and final settlement of all claims-that is important-and that the UK had no legal obligation, which I accept is different from a moral obligation, to pay any further compensation. Subsequent court cases have not changed that situation.

Laura Moffatt (Crawley, Labour): I thank the Minister for the clarity of his response. Does he agree that there may be other ways to benefit the community and pay compensation, such as allowing limited activity on the island so that Chagos islanders can benefit as a whole, rather than providing money directly from the Government?

Ivan Lewis (Minister of State for Foreign and Commonwealth Affairs, Foreign and Commonwealth Office; Bury South, Labour): That goes to the heart of the question about access to the islands. My hon. Friend referred to the two visits that were facilitated and funded by the Foreign Office. That was entirely appropriate and we should certainly consider doing more of that in the future. There are a variety of ways in which we can demonstrate sensitivity and respect for the islanders and their relationship with their homeland.

Through financial compensation we have recognised our legal responsibilities, but of course there continues to be a moral responsibility, which is not as neat as a statutory or legal responsibility. How we deal with that moral responsibility needs to be an ongoing source of reflection for any responsible and reasonable British Government.

My hon. Friend the Member for Islington, North asked about the European Court of Human Rights, and why the Government are using that to defend themselves. Let me explain why we are doing so. First, in the view of UK courts, the ECHR is not applicable in the British Indian Ocean Territory. Secondly, as I have said, the compensation that has been paid was in full and final settlement of all claims, and the UK has no legal obligation to pay any further compensation. Thirdly, the BIOT constitution is lawful, and hence there is no right of abode in BIOT. That is why we are defending ourselves through the European Court of Human Rights and have not felt able at this stage to settle out of court.

Jeremy Corbyn (Islington North, Labour): On that point, if the European Court of Human Rights decides in favour of the islanders rather than the Government, is it correct that the only way that the Government could avoid having to carry out the Court's wishes is through primary legislation in the House?

Ivan Lewis (Minister of State for Foreign and Commonwealth Affairs, Foreign and Commonwealth Office; Bury South, Labour): As far as I am aware, that is the case. Clearly, if I am told differently after the debate, I will write to my hon. Friend. However, that is my view, based on the information that I received in the run-up to the debate.

Let me deal now with the marine protected area. When the Foreign Secretary launched the public consultation on it in November last year, he pointed to what he described as a

"remarkable opportunity for the UK to create one of the world's largest marine protected areas and double the global coverage of the world's oceans benefiting from full protection".

Potentially, this is a very significant project, with wide ramifications.

We extended the consultation period because, as hon. Members said, we needed to consult as widely as possible, and the consultation concluded only last Friday. The all-party group has formally responded, as has my hon. Friend the Member for Islington, North. In addition to taking written contributions, we made sure that an independent facilitator was made specifically available to speak directly to Chagossians in Crawley and the Seychelles and by video teleconference to those in Mauritius.

I am not being coy when I say that the consultation genuinely closed last Friday, and we are not in a position at this stage to announce its outcome or how we intend to proceed. However, I would like to place on record that is important that hon. Members are briefed-I suspect that this may be the responsibility of someone else, who will, I hope, come from the Labour party-when the Government decide what to do next about the marine protected area. I am cognisant of the fact that hon. Members feel that there was not sufficient consultation with parliamentarians on the Chagossians in the past before apparently unilateral decisions were made. I therefore put on record a commitment to make sure, wherever possible, that interested hon. Members are briefed before we make final decisions on the marine protected area.

Let me turn briefly to the specific point that Jo Swinson made about extraordinary rendition. Other hon. Members, including Mr. Simpson, made the same point. We are all aware of what happened in 2008, but the key point is whether any assurances have been given that it will not happen again. It is important to put on record that in February 2008, when the issue came into the public domain and the Foreign Secretary made his statement to the House, the then US Secretary of State, Condoleezza Rice, publicly underlined the firm US understanding that there will be no rendition through the UK, our overseas territories and Crown dependencies or our airspace without our express permission having first been received. Hon. Members may say that that was our understanding in the first place, but it is important that we have on record a reiteration of the fact that the US understands that these things were not acceptable and should never happen again. In terms of our special relationship with the United States, we are not happy with the way it has behaved historically on this issue, but we have to accept in good faith the assurance that the then Secretary of State gave.

Jo Swinson (East Dunbartonshire, Liberal Democrat): That was really my question. Is this just a matter of accepting the word of the US Secretary of State in good faith, or is there anything else that the Government can do so that they have confidence that these things are not currently happening? Do we just have to rely on what the US says?

Ivan Lewis (Minister of State for Foreign and Commonwealth Affairs, Foreign and Commonwealth Office; Bury South, Labour): Of course, we have to take all possible steps to make sure that our laws and policies are respected, and that should be the case especially in the context of our special relationship. Historically, we were obviously given assurances that turned out not to be true, and that is totally unacceptable, whether it was the United States that did that or any other country with which we had any kind of diplomatic relations, let alone a special relationship. All that I would say to the hon. Lady is that we have now had an assurance, and we have to respect it. The United States was certainly left in no doubt, as has been said, about the fact that the Foreign Secretary was not only embarrassed, but angry that a country with which we pride ourselves on having a special relationship had, on this occasion, undoubtedly misled the British Government.

To conclude, the difference between legal and moral responsibility is not a simple issue. As hon. Members have said, there is no doubt that we owe the Chagossians justice, fairness and respect for the fact that we treated the population badly all those years ago. Subsequently, we tried to offer redress through compensation and by resettling Chagossians in this country, and my hon. Friend the Member for Crawley has spoken of her experiences in her constituency. Equally, the Government are defending their position for good reason. In the context of our responsibility to do what we believe is in the national interest and our moral responsibility to the Chagossians, we must continually review whether we are getting the balance right. We have no choice at this stage but to defend our position in the courts, but we must remember that we are culpable for what happened historically. That moral responsibility will never go away, and we have to find ways, as my hon. Friend the Member for Islington, North said, of constantly recognising that, accepting our responsibility and being held to account.