On Monday 22nd June another important chapter in history of the Chagossian people’s fight for justice may just have been written. Led by Chagos Refugee Group founder and President Oliver Bancoult, Chagossians’ lawyers, including long-time Chagossian supporter Richard Gifford and counsel Ed Fitzgerald QC, Paul Harris SC and Amal Clooney from Doughty Street Chambers, challenged a 2008 decision by the Law Lords which upheld a Government ban on their right to return home.
The Background of the Case
Although the challenge relates to a 2008 decision by the Law Lords (officially the Appellate Committee of The House of Lords), the genesis of the case stretches back to a historic High Court decision in 2000. This adjudged the expulsion of the Chagossian people unlawful and supported their right to return to their homeland. The Foreign Secretary at the time, Robin Cook, and the Government accepted the court’s ruling. But in 2004 on the day of the European elections, the Government quietly passed new law using Orders-in-Council (under the Royal Prerogative which allows Parliament to be bypassed)- making it illegal for anyone to set foot on the islands without a permit. Needless to say, permits for Chagossian return were not forthcoming.
Chagossians’ and their lawyers challenged this measure in the High Court and won, with the court finding in 2006 that the section of the 2004 Order-in-Council which had abolished the Chagossian right of abode law was not lawful. The Government appealed and lost again in 2006 in the Court of Appeal.
The final Government appeal to the Law Lords (since replaced by the Supreme Court) in 2008 was narrowly successful with a 3:2 verdict that the Government’s actions in 2004 had been legal, and that the abolition of the right of abode was not unreasonable given the findings of a 2002 feasibility study that had shown resettlement to be precarious and too costly.
That brings us to Monday’s action. The 2008 verdict was challenged on the basis that key documents were withheld from lawyers for the Chagossians and the judges, which would have impacted significantly on the case.
Specifically these documents included a copy of the draft of the 2002 feasibility study, correspondence, and the comments of an FCO scientific adviser, Charles Sheppard. Lawyers for the Chagossians had suspected that these documents existed and had been asking for them since 2005 but the FCO and the Government lawyers (Treasury Solicitor) had claimed that they had all been destroyed. This was untrue and they were finally disclosed in May 2012. The documents show that FCO officials were highly critical and doubtful about the quality of the draft report in areas which supported resettlement, and called for a strengthening of the report in other areas. These criticisms then led the consultants to alter the report so that the final version appeared more robust and the faults were hidden. The manner in which this was done has brought into question the so called “independence” of the report, with suggestions of political interference. In addition the documents also showed that the FCO’s scientific adviser was in fact unqualified to comment on the key areas of the report concerning present and future storms and wave-overtopping and flooding of the islands. As a result he endorsed a report whose science was fundamentally flawed and whose final conclusion, on which the Government’s case in the House of Lords was based, was also wrong.
New and up-to-date scientific evidence also demonstrates just how wrong the conclusions of the 2002 study also were.
The fact that such important documents which completely undermine the Government’s case in the House of Lords were not disclosed at the time is a very serious matter. In law this is called a breach of the “Duty of Candour”. As a result, counsel for the Chagossians in the Supreme Court, Ed Fitzgerlad QC, told the court that a serious injustice had occurred and invited the judges to overturn the 2008 decision and to restore the right of abode.
Government lawyers tried to argue that the new 2015 feasibility study into Chagossian resettlement, by consultants from KPMG, had overtaken events and demonstrated that the Government was willing to reconsider the matter and that accordingly there is no need to correct the injustice. Their arguments however fail to recognise that the real reason for the new study may in fact be the widespread cynicism about the 2002 report. The Supreme Court judges clearly accepted that if the 2008 decision is allowed to stand then Chagossians effectively remain banned from their homeland.
Judgment was reserved. We hope to have judgment in 1-2 months.
The Media Coverage
Even we were pleasantly surprised by the media interest in the Supreme Court case which we hope was not solely because Amal Clooney was present. Whilst it may be slightly galling the likes of the Daily Express chose to focus more of Mrs Clooney’s dress than the acute legal analysis of the terrible injustice suffered by Chagossians, other outlets provided genuinely informative coverage.
The BBC reported that lead QC Edward Fitzgerald noted Chagossians had suffered a “significant injustice” which had “no alternative remedy” than revoking the 2008 Law Lords judgement which effectively banned their return home. In the Guardian, prominent lawyer Richard Gifford, who has worked with Chagossians for almost two decades, argues that “Iraq changed everything,” tracking the reluctance to support Chagossian return to the Diego Garcia US military base’s role in to the controversial 2003 US-UK led invasion of Iraq.
Poet and our own Patron Benjamin Zephaniah is quoted in The Independent calling for the Government to take decisive action, regardless of the court decision.
“I’m optimistic the court will see sense and recognise previous Government attempts to prevent Chagossian return have been totally illegitimate and undemocratic.” Benjamin Zephaniah, Patron of UK Chagos Support Association
Further video coverage of genuine quality was provided by ITV News. In an interview outside the court room, Oliver Bancoult stridently affirms that he and Chagossian people will “never give up” in their fight to return home.
Coverage of the verdict event stretched internationally. US broadcaster Fox News ran a story. Most definitely at the other end of the political spectrum, RT (Russia Today) and Press TV (Iran’s state broadcaster) also reported on the case. Surely proof the Chagossian fight for justice should transcend traditional political boundaries.
There’s no escaping though that the majority of media attention was due to the presence of Amal Clooney. Although already a prominent human rights lawyer, much of the attention sadly focused on what she wore rather than the case itself where she had joined the legal team earlier this year, offering her services for free. If headlines in E!, Hello and the Daily Express though win even one more supporter to the Chagossian cause it will all be worthwhile.
We should take this opportunity to thank the entire legal team for their extensive efforts to win justice for Chagossians in the face of powerful, often unreasonable opposition. That the case has returned to the Supreme Court is also a testament to the relentless efforts of Richard Gifford over many years to discover the true facts and reveal what appear to be attempts to conceal information.