The Court of Appeal judgment in the Chagos Islanders (Diego Garcia) case and its predecessor, the Divisional Court judgment (and for completeness see also the 1999 and in particular 2000 judgments in the previous litigation and Ousley J's judgment on a separate issue) make fairly interesting reading, not only for lawyers and those interested in civil liberties or constitutional law but also for historians.
The whole sorry history of the affair is fairly lengthy and all of the judgments above, particularly the more recent Divisional Court one, go into it in detail. Shortly put, back in the 60s the US wanted a nice big airbase in the Indian Ocean: at the time, I guess, to keep an eye on China but it's been important in the US's more recent adventures as well. We had an appropriate island to offer, unfortunately it had some people on it. Actually, that seems to have passed some people in the FCO by: witness this, from Laws LJ's judgment in Bancoult No 1, at para 13:
There is a manuscript note by another official which comments on this minute. It refers to "a certain old fashioned reluctance to tell a whopping fib, or even a little fib, depending on the number of permanent inhabitants". A note dated 24 August 1966 to an official, Mr D A Greenhill, quotes a minute from the Permanent Under Secretary (I assume at the Colonial Office). The Permanent Under Secretary unburdened himself thus:
'We must surely be very tough about this. The object of the exercise was to get some rocks which will remain ours; there will be no indigenous population except seagulls who have not yet got a committee (the Status of Women Committee does not cover the rights of birds).'
This attracted a comment from Mr D A Greenhill, who spoke the same language:
'Unfortunately along with the birds go some few Tarzans or Men Fridays whose origins are obscure, and who are being hopefully wished on to Mauritius etc. When this has been done I agree we must be very tough and a submission is being done accordingly.'
(There's a lot of this kind of attitude in the memos recorded in the judgments, which I confess to finding blackly comic. I'm particularly fond of the refreshing candour of
'the territory is a non-self-governing territory and there is a civilian population even though it is small. In practice, however, I would advise a policy of 'quiet disregard'—in other words, let's forget about this one until the United Nations challenge us on it.' )
The islanders were chucked off, to Mauritius and elsewhere, and in recent years have been trying to undo all this: the 1971 Ordinance that originally banned them was overturned in Bancoult No 1, after which Robin Cook, then Foreign Secretary appeared to accept the decision, saying that new arrangements would be made and he didn't seek to defend the actions of the 1960s government. But when the new Indian Ocean Immigration Order came in in 2004 -after Cook's departure of course- it made being in the islands without a permit an offence punishable by three years in prison, and it became clear they were never going to be allowed home. It is entirely coincidental that B52s and Stealths were flying from Diego Garcia to bomb Iraq in the intervening years, and vague and unsubstantiated allegations that Diego Garcia is a hub for "extraordinary rendition" flights are of course utterly beneath contempt. Nevertheless, Mr Bancoult of the islanders renewed his campaign (and in the meantime the President of Mauritius threatened to take his state out of the Commonwealth if the UK Government did not reconsider).
Well, the islanders won in Bancoult No 2 at first instance as well, and now the Court of Appeal has upheld the Divisional Court. Given that Sedley LJ was one of the three members of the court I suspect that the Government rather expected that: if your case is going to rely on the proposition that the exercise of the Royal Prerogative outside the UK in matters of colonial governance is not subject to judicial review he's hardly the man you want. When you had Laws first time round, you surely begin to suspect the Listing Office of political views. Turns out, unsusprisingly, that it is: at para 64:
the royal prerogative, while the common law accords it a very large area of judgment and discretion in colonial matters, is not unlimited or unreviewable. There's a fair bit on legitimate expectations (arising out of what Cook said after Bancoult No 1) as well. On to the Lords, I suspect, but there's a pretty good chance they'll do no better there. Good. In the meantime, this may, oddly enough, have some relevance to a case I'm working on (bearing in mind that there are many CDTs and similar for whom the Crown in Privy Council can legislate and several of them are in the business of fiscal efficiency, to use a polite term).
And if the title of this post is drawing a blank, get thee to the IMDB.