Chagos Islanders v Attorney General and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley |
| Judgment Date | 22 July 2004 |
| Neutral Citation | [2004] EWCA Civ 997 |
| Docket Number | Case No: A2/2004/0224 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 2004 |
[2004] EWCA Civ 997
The President
Lord Justice Sedley and
Lord Justice Neuberger
Case No: A2/2004/0224
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE OUSELEY)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Robin Allen QC and Mr Thomas Coghlin (instructed by Sheridans) for the Applicants/Claimants
Mr John Howell QC, Mr Rhodri Thompson QC and Mr Kieron Beal (instructed by The Treasury Solicitor) for the Respondents/Defendants
All three members have contributed to this judgment of the court. In view of the importance of the issues, it will not be subject to the usual restraints on its use.
The application before the court is made by Robin Allen QC, on behalf of former inhabitants of the Chagos Islands and their descendants, for permission to appeal against the decision of Ouseley J to strike out the entirety of their claim against—in effect—Her Majesty's Government for damages and declaratory relief designed to compensate for and if possible to reverse the effects of their enforced removal or exclusion from their homeland some three decades ago.
The background
The Chagos Islands are an archipelago in the Indian Ocean which includes the island of Diego Garcia. During the 1960s the United States administration decided that it required Diego Garcia as a strategic military base. The government of the United Kingdom set about accommodating this request, but at an early stage realised that it and the neighbouring islands had a substantial population, mostly Seychellois contract workers, but some (known as the Ilois) springing from former slaves who had remained there after emancipation or from migrant labourers who had settled there. It decided that both Diego Garcia and the neighbouring islands needed to be cleared of their population.
To accomplish these ends the islands were separated in 1965 from the British colony of Mauritius and (together with some other islands detached from the Seychelles) made a separate colony, the British Indian Ocean Territory (BIOT) . Mauritius itself in 1968 became an independent state. Its constitution gave Mauritian citizenship to everyone born in what had previously been the colony of Mauritius. This of course include the Chagos islanders, who were thereby entitled to settle in Mauritius.
In 1967 the United Kingdom bought out the freehold interest of the company which now farmed copra on the islands and which employed virtually its entire population. It was the claimants' case that those of them who went to Mauritius or the Seychelles for medical treatment and other things that could not be had on the islands were prevented from returning, and that the remainder were deported by ship. The defendants attributed the depopulation to the closure of the plantations on the islands. What is clear is that between 1967 and 1973 the entire population was removed to Mauritius and the Seychelles, where they had neither homes nor work.
The political history of the removals and of the endeavours to secure redress can be found in compelling detail, first in the judgment of Laws LJ in Bancoult (below) and secondly in the judgment of Ouseley J in the present proceedings. In the light of it, it would be wrong of us to move on to the legal issues without acknowledging, as Ouseley J went out of his way to do in a judgment to the comprehensiveness of which we pay tribute, the shameful treatment to which the islanders were apparently subjected. The deliberate misrepresentation of the Ilois' history and status, designed to deflect any investigation by the United Nations; the use of legal powers designed for the governance of the islands for the illicit purpose of depopulating them; the uprooting of scores of families from the only way of life and means of subsistence that they knew; the want of anything like adequate provision for their resettlement: all of this and more is now part of the historical record. It is difficult to ignore the parallel with the Highland clearances of the second quarter of the nineteenth century. Defence may have replaced agricultural improvement as the reason, but the pauperisation and expulsion of the weak in the interests of the powerful still gives little to be proud of.
In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 Laws LJ and Gibbs J held that Immigration Ordinance 1971 by which the enforced removal of the population was purportedly authorised was beyond the powers of governance conferred by the colony's constitutive instrument, the British Indian Ocean Territory Order 1965, and so unlawful. The decision was not appealed. Although John Howell QC for the defendants has indicated that, if permission to appeal is granted, he will contend that Bancoult was wrongly decided, we unhesitatingly approach the present application on the footing that (at least in this respect) it was rightly decided. It follows for present purposes that there is no defence of statutory authority to any tort which can be established.
It cannot be supposed that the United Kingdom, having bought the Chagos freeholds, was as much at liberty as any other landowner to evict the occupants for any or no reason. Unlike the landowners and tenant farmers who cleared the Highlands of their labouring population, the state is not at liberty to act arbitrarily or unjustly: it is the task of the courts, which are part of the state, to see that it does not. It cannot lie in the mouth of the United Kingdom government, having enacted powers for the governance of the islands, to contend that its officials can ignore the limits on those powers and act outwith them.
The many hundreds who were initially displaced have grown to a still impoverished population of several thousand. A compensation payment of £650,000 from the British government, with accrued interest, was distributed in 1977–8 to a total of 595 displaced families then in Mauritius. It did little if anything to relieve their massive problems of rudimentary housing, unemployment and social isolation. Nor did the partial reversal of the Immigration Ordinance in relation to two of the islands following the divisional court's judgment afford any concrete help, since there are now effectively no means of subsistence there. But over the intervening years attempts have been made to secure fuller compensation and redress from the British state which displaced them.
Renunciation
In 1975 proceedings were issued in London by Michael Vencatessen, one of the last deportees from Diego Garcia, claiming damages for intimidation, deprivation of liberty and assault arising out of his enforced removal. The action was settled in 1982 for a payment by the defendants (in effect Her Majesty's Government) of £4,000,000 plus costs, designed to settle all the claims of all the islanders. 1,344 quittance forms were signed (that is, for the most part, thumbprinted) upon receipt of a share of this sum. It is accepted by Mr Allen that the claims to which this settlement related are in substance the same as the present claims. What he does not accept is that any of the forms of renunciation should bar the present action.
Mr Howell has made it clear that it will not be sought to debar any claimant who, despite having taken reasonable steps, did not understand what he or she was signing. But none of the cases so far examined by Ouseley J has fallen into this class.
The form of renunciation, executed by the great majority of the claimants during 1982 and 1983, contained a clear statement by the signatory to the effect:
"In consideration of the compensation paid to me by the Ilois Trust Fund and of my settlement in Mauritius … I renounce to all claims, present or future, that I may have against the government of the United Kingdom, the Crown in the right of the United Kingdom, the Crown in right of any British possession, their servants, agents or contractors …."
in respect of actions which, it is realistically accepted on behalf of the applicants, form the basis of the current claims. The Trust Fund was established by a Mauritian statute, and was endowed principally by the United Kingdom government. In Permal Ilois Trust Fund [1984] MR 65 at 70, the Supreme Court of Mauritius held that an individual Ilois had
"a cause of action under the [Ilois Trust Fund] Act [1982] in Mauritius [against the Trust Fund] so as to avail himself of the remedy there provided as a statutory alternative to any other course of action in the United Kingdom … against the United Kingdom authorities that he might also possess".
The contention that those claimants who signed the renunciation forms are nonetheless entitled to maintain their present claims is based on the following propositions:
i) It is an abuse for the defendants to raise the issue in these proceedings, given that they failed to raise it in Bancoult;
ii) It is and was not open to the defendants to contend that the Ilois could compromise or renounce "their fundamental and constitutional rights".
We do not consider that either of these propositions is tenable.
In Bancoult, the issue was whether or not s4 of the Immigration Ordinance was ultra vires the BIOT constitution. The divisional court held that it was. We are very doubtful whether the fact that Mr Bancoult had signed a renunciation form would have been held by the divisional court to disqualify him from pursuing his successful challenge to s.4 of the 1971 Ordinance....
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