Lord Callanan:

Moved by Lord Callanan

6: Clause 1, page 1, line 7, leave out from “Treaty” to end of line and insert “is in force, sections 2 to 4 shall also be in force”Member’s explanatory statementThis Amendment seeks to probe the legal status of the Chagos Archipelago should the Agreement be terminated.

My Lords, Amendment 6 is linked to Amendment 79 in this group. Amendment 6 would link the Bill’s effect to the treaty. If we were to make this amendment, the moment the treaty ceased to have effect, so would this legislation. Amendment 79 would require the Government to publish a statement of their understanding of the legal status of the Chagos Archipelago, should the underlying treaty be terminated.

The reason behind these amendments is that the wording of Clause 2, which would stand on the statute book even if the treaty itself were revoked, is clear only that:

“His Majesty is no longer sovereign over” the Chagos Archipelago. However, it does not state that Mauritius would be sovereign over the archipelago. The Hong Kong Act was worded similarly and did not grant China sovereignty; it merely revoked Her Majesty’s sovereignty. This means that the only document establishing Mauritian sovereignty over the islands is the UK-Mauritius agreement. If that agreement were terminated, what would be the status of the islands? That is the question that we are putting to the Government.

Interestingly, it is not the case that we could not state in the Bill that Mauritius has sovereignty. There is precedent for that, and it would perhaps state the position more clearly. If noble Lords cast their minds back to the Heligoland–Zanzibar Treaty of 1890—which saw Britain cede sovereignty of Heligoland, a series of islands in the North Sea off Schleswig-Holstein—they will remember that that was in exchange for a free hand in respect of the independent Sultanate of Zanzibar. The Anglo-German Agreement Act 1890, which gave effect to that treaty, stated specifically, in the Schedule, that

“the sovereignty over the Island of Heligoland, together with its dependencies, is ceded by Her Britannic Majesty to His Majesty the Emperor of Germany”.

Can the Minister explain why the Bill follows the example of the 1985 Act and not the clearer precedent of the 1890 Act?

My noble friend Lord Lilley’s Amendment 12 seeks to deliver clarity that the UK can regain sovereignty. That would be a better outcome than an explicit statement that Mauritius will have sovereignty in perpetuity. Whatever the Government’s position on the legal status of the archipelago under this legislation, I believe that, either way, we deserve some clarity.

My Amendment 77 also seeks to resolve a lack of legislative clarity that arises from the fact that the Bill is implementing the more detailed treaty. The treaty provides for the creation of a joint commission, but we have precious little detail on the commission. My amendment would require the UK Government to set out the process that they intend to follow, alongside the Government of Mauritius, to establish the commission. I am sure that the Government will resist the amendment, but I hope that there will be an opportunity for the Minister at least to set out the Government’s expectations of the process that will be followed. Can the Minister say where, when and how often the commission is expected to meet? Who is expected to be appointed to represent the UK Government on it? Will they be a political appointment or a civil servant, and how will they be appointed? I assume that we will have a senior representative, but if the Minister could tell us who or what it might be, that would aid the Committee in its consideration of the Bill.

These are all very important questions that should be answered before we proceed with the Bill. So far, the Government have sought to avoid debate, resisted consultation and prevented transparency, but I hope the Minister can do better in her response to the amendments in this group. I beg to move.

My Lords, if this Amendment is agreed to, I will be unable to call Amendment 7 by reason of pre-emption.

My Lords, I will speak to Amendment 89 in my name and in support of the amendments in the name of my noble friend Lord Callanan.

At Second Reading, I raised the broad issue of the royal prerogative, and the Minister is aware of my, perhaps inquisitive, interest in that. That broad power is in Clause 3, and the specific reference to His Majesty’s power to make Orders in Council comes in at Clause 5, particularly in Clause 5(1)(a). That is powerful. For the benefit of the Chamber, I repeat what that says:

“His Majesty may by Order in Council … make any provision that appears to His Majesty to be appropriate as a result of the Treaty”.

The following paragraph goes on to explain that that can be a

“consequential, supplementary, incidental, transitional or saving provision in relation to … this Act, or … an Order under paragraph (a)”.

I want to thank the Minister for her letter, which she very kindly sent to me yesterday. In it, she alludes to this particular issue and says that “Clause 5 of the Bill creates a new statutory power for His Majesty to make such provision by Orders in Council as he considers appropriate as a result of the treaty”. This led to my Amendment 89, because I am just trying to seek clarification of this power. In particular, I want to establish whether that power can be used by His Majesty, for example, to withdraw the United Kingdom as a party to the treaty and withhold any payment due to Mauritius if Mauritius violates any terms of the treaty.

This is not a lengthy matter for discussion. In responding, I would ask the Minister, if she opposes my amendment, and I anticipate that she may, to be specific about the ground of objection. It may be that she says, “I don’t want the Secretary of State being mixed up in anything like this, it’s just unnecessary and tiresome and he’s got enough on his plate without being burdened with all that”. On the other hand, she might consider that this is an incompetent use of the royal prerogative. I would be interested in understanding that better.

It would be more alarming if the Minister said that she does not consider that, if Mauritius violates any terms of the treaty, the UK will be able to withdraw and cease payment. It is rather along the lines of the point raised by the noble and gallant Lord, Lord Craig, who is not in his place. There is a basic issue about whether the thing is working or not. In his case, the thing is not working because the base has disappeared under the ocean. In the dim and distant past in contract law there was something called “frustration of the contract”: if the underlying purpose disappeared, the contract evaporated. The Minister has undertaken to investigate that further and we shall await that.

I really want to understand, if Mauritius violates the treaty, what practical solution is available to the UK: whether it is paying the money, coming out of the treaty or taking whatever other remedial action is necessary. I shall look forward to the Minister’s response.

My Lords, I will speak briefly in relation to Amendment 77 from the noble Lord, Lord Callanan, on the process for the establishment of the joint commission. This is critically important because, while the treaty does talk about the process of setting up the joint commission in Annex 3, there is no determination as to whether that person, as the noble Lord, Lord Callanan, said, will be a Member of Parliament, will be accountable to Parliament or will be a civil servant. It would be very helpful if we had more detail in relation to that matter.

It brings me back to my days studying constitutional law at Queen’s University, Belfast, when Professor Brigid Hadfield used to lecture us about the mischief behind the law. She would say, “Read the debate in Parliament to find out what the mischief was”. I was just thinking of her there when I was listening to the noble Lord, Lord Callanan. It would be really useful to find out what the Government’s position is in relation to this joint commission, because it could be a very critical part of the post-agreement scenario, where there is accountability to this place. I would really welcome clarity in relation to that matter.

My Lords, I would like to address Amendments 11 and 12 in my name, which both relate to the terms of the lease. Over the years, I have often heard leaseholders wish they had, or propose to acquire, the freehold. They feel that, as leaseholders, they are in a very inferior position and that the freeholder has the whip hand and, of course, at the end of the lease, the freeholder, like as not, gets everything back and leaseholders potentially lose everything. This is the first time I have ever heard of someone wanting to swap a freehold for a leasehold and, at the same time, claiming that they will be more secure as a result. Of course, they will not—and even less secure, given the terms of this agreement. Amendment 11 relates to whether or not the lease is renewable.

The lease is dealt with in Article 13 of the treaty, which says that it has a duration of 99 years. What happens at the end of 99 years? Is it automatically renewable? No. Under Article 13.5, the UK has a right to first refusal for a further 40 years on the same terms as offered to any third state. There we have it. Mauritius can offer the UK-US base to a third state in 99 years’ time and force the UK and USA to outbid some other bidder—it might be China, India, Iran or any other country with interests in the Indian Ocean around it, such as Saudi Arabia. There are lots of countries that can afford and might like to have this base. We would have to outbid them to retain what had been maintained and invested in for the previous 99 years. I have no reason to suppose that it would not be as valuable in the future then as it is now.

Leaseholders will know that normally, over the life of the lease, your rights and the value of your lease diminish. There comes a point when you will probably not want to invest in your property because you will not be there for much longer or get the full value of it. That may well be the case here. Well before 99 years are up, seeing that we may not be able to keep it because it may be going to someone who will outbid us for it, we will not want to invest in it. So the value of this lease, the value of our right to use Diego Garcia, will decline before the 99 years are up. We all know that in Hong Kong the question of the 99-year lease made itself present a long time before the handover occurred.

So my Amendment 11 requests that the Government seek additional guarantees about the renewal of the base: that it should be on the same terms as or better terms than previously, given the way the deal is in other respects stacked in Mauritius’s favour. This should not be too difficult to negotiate if we had negotiators who actually negotiated in Britain’s interests and were not exponents of the art of the bad deal, which they seem to be in this and many other areas. It is also important that, when the Government look again at the terms of the lease, Parliament should be given a chance to look at any guarantees that they secure about the renewal of the lease in the longer term. That is in my proposed new subsection.

My Amendment 12 deals with the termination of the lease. It seeks to correct a major defect in the deal: that the UK has no right to terminate the agreement without losing the base. It is an extraordinary deal. Article 15 says that Mauritius has the right to terminate the deal. There is nothing about us or the Americans having the right to terminate the deal. Mauritius has the right to terminate the deal under two circumstances. The first is non-payment of rent by us. It would be in our purview to ensure that that does not occur. The other is

“a serious threat to its supreme national interests. This means an armed attack or threat of an armed attack on the territory of Mauritius by the United Kingdom, or an armed attack on the territory of Mauritius directly emanating from the Base on Diego Garcia”.

I think that means that the only serious threat to Mauritius’s supreme national interests would be those designated after “national interests”, but it is not clear and, of course, they could go to some international tribunal and get a Majority of their chums to vote that other supreme national threats would apply as well. I do not know. It seems to me a rather badly written term. It should say specifically that the only circumstances are those two.

When it talks about a threat of a direct attack on the territory of Mauritius by Britain or America, or emanating from Diego Garcia, presumably it could emanate only from Diego Garcia if it was from us, or are they envisaging some circumstances in which somebody else was using Diego Garcia or was able to attack them from there? Either way, it gives them the right to terminate the agreement, but we have no right to terminate the agreement. The noble and gallant Lord earlier pointed out there might well be circumstances where we would want to terminate. If as a result of natural events, rising sea level or geological disruption we could no longer use the base, we might want to terminate it.

The Minister, who is always wonderfully helpful—she is a model Minister in that sense, even though this is the most appalling Bill that she has to defend—will tell me if I am wrong and there is some Clause that would enable us in these circumstances to stop payment. She said earlier that we would just have to abrogate the agreement and not pay. That is a bit odd for a Government who are so committed to obeying international law that they usually relish doing things which give us no benefit but cost us money, power or influence. But if breaking it is the only circumstance in which we could terminate it by ourselves, that is a rather odd situation, and there should surely be circumstances in which we can terminate written into the agreement.

When we do terminate, in some circumstances we would like to know if that was just the end of it, and in others, whether it meant it reverted to the status quo ante. If it is the result of Mauritius having behaved in an appalling way, surely, we should be able to go back and say, well, at least the sovereignty of Diego Garcia returns to Britain; ideally, it would be the whole archipelago. But that is not written into the agreement, and I would like to see them endeavouring to do so.

So if Amendment 12 is passed, it will correct a major defect in the Bill and a major asymmetry in what, almost throughout, is a very asymmetrical Bill that gives all the rights to Mauritius and none to us. It is a particularly odd thing to do when we start off with all the cards in our hands. One thing no one ever mentions in these discussions of international law and international agreements is the basic and most fundamental principle of reality in law, which is that possession is nine-tenths of the law. We start off with possession; we start off with nine-tenths of the law on our side. We should change it only if we think that that is a right and proper thing to do in line with our interests and obligations.

But here we are going from having nine-tenths of the law on our side—indeed I think it is 100%, since we have not been able to find an international court that is capable of ruling otherwise—to handing all the cards over to the other side, and there is a basic asymmetry in the terms of the lease, in that its renewability and termination are both in the hands of Mauritius. That is so strange that I hope the Minister will agree to go back and renegotiate—she is very willing to agree on other matters. She could do it even now because, as we have learnt, the Attorney-General from Mauritius is over here. Why is he over here? Is he over here because he wants to change the terms?

To give him some more money.

Probably to get some more money. Indeed, we should have dealt with that in the previous session on money. How much more money is he asking for? One understands there are debates in Mauritius saying they have done so well that they should now reopen discussions and get a little more.

My Lords, I am not sure if the noble Lord, Lord Lilley, wants a serious response to that last comment. I will respond to the noble Lord’s point that possession is nine-tenths of the law. Yes, this is true, but if the asset is legally contested to the extent that a close ally is no longer investing in it, and third-party friends and allies are possibly unwilling to support its operability, I would say that possession of that asset is worth a lot less than one that has legal certainty, the investment of the United States and the ability to operate it, because third parties will not be questioning the legal basis on which it is held. But we have been through this at some length already.

I turn to the amendments in the group concerning various mechanisms surrounding termination and the extension of the treaty. We will deal with the issue of sovereignty and termination in a subsequent group. On Amendments 6, 12, 79 and 89 about the implications of terminating the treaty, I should remind the House that there are extremely limited grounds for termination once the treaty is in force, both of which are within the UK’s control. The first would be if we did not pay the sums due under Article 11. Secondly, to answer the point made by the noble Lord, it would be in the case of an armed attack, or threat of one by the United Kingdom on Mauritius, or one directly emanating from the base on Diego Garcia. This base is, of course, to be operated by the United Kingdom and the United States together.

It is in our interests that the grounds for termination are limited in this way. It means that Mauritius is unable unilaterally to terminate the agreement except in very specific circumstances. These amendments would therefore force us to reopen negotiations on an area in which we have already secured the strongest terms, and which have also been endorsed by our US allies. It is also highly unrealistic that Mauritius would agree to a reversion to British sovereignty in the event of termination. It is important that we understand and are clear about that.

On Amendment 11, Article 13 already sets out the basis on which we can extend the duration of the treaty, including our right of first refusal. The treaty will last for an initial 99 years and may be extended for a further 40 years and beyond, by agreement between the UK and Mauritius. Even if no agreement were reached, the UK would have the right to first refusal on the use of Diego Garcia. If exercised, this would prevent the use of the base by any other party. I was asked—I think by the noble Lord, Lord Lilley, but it may have been another noble Lord—how exactly this would work and on what terms. I will get a full answer on this specific point. For today, I am relying on the right of first refusal. I will come back to noble Lords and clarify exactly what is meant by this.

I welcome the interest shown by Amendment 77 in the establishment of the joint commission. Its precise structure is still being developed and will continue to be a point of negotiation between the UK, Mauritius and the US. This includes the development of terms of reference as to how the joint commission will function. However, the following principles have already been agreed, as set out in Annexe 3 to the treaty. I think these answer some of the points that were put, although, because we are still negotiating, it is useful to get the responses, understanding and views of noble Lords on some of these things. The joint commission shall consist of one senior representative from each party as co-chairs, and four additional representatives from each party. The US shall have the right to introduce items for discussion in the joint commission and to designate a representative to attend meetings and provide views and advice. The joint commission shall meet at least twice a year, or more frequently on the request of either party. All decisions of the joint commission shall be taken with the agreement of both parties.

While I welcome the opinions of noble Lords on the best means of keeping the House informed on the development of the joint commission, I do not think that a statutory obligation to publish a statement would be the most appropriate means of doing so, although I will think about this a little more.

On this issue of prerogative and the law on Diego Garcia, this applies only to the law on Diego Garcia. We did have quite a complex exchange about this in one of our briefing conversations and it does not apply to the operation of the treaty, so it would not concern non-payment or any of those other issues. It is only about the law as it applies to Diego Garcia. I hope that that is helpful and that noble Lords will not press their amendments.

I thank noble Lords for their contributions. As usual, my noble friend Lord Lilley made an excellent contribution to the debate, and I thank the Minister for her reply. I do not think she has answered all the questions that we asked, or certainly that I asked—I know that she answered some, but not all. She set out the legal position on the commission, as it is in the treaty, but she has not provided any more details on who will be its members, how they will do the appointments et cetera. I would be grateful if she would write to us with the details of that.

I would never deliberately not answer a question from the noble Lord. I have set out what has been agreed so far, and I have explained that the commission is subject to negotiation and that I will commit to updating the House. I do not quite understand the niggle in the noble Lord’s voice.

I am not being niggly; I am just repeating the questions that I asked. Who will be the members of the commission? How will they be appointed? Those are the questions that I asked. She set out the numbers, which we could see from the original agreement, but she has not provided the further details that we asked for. I did say that she had answered some of the questions but not all of them.

The long-term legal status of the archipelago is supposedly the driving motivation behind the Government’s decision to seek this agreement with Mauritius, so I think the questions that have been posed are entirely reasonable to seek clarity on the status of what would happen should the treaty be revoked.

I also think we need clarity on the UK’s right to withdraw from the treaty and withhold payments in line with the Amendment put forward by my noble friend Lady Goldie. I think that that is all the information we are going to get out of the Minister tonight so, in the meantime, I beg leave to withdraw my amendment.

Amendment 6 withdrawn.

Amendments 7 to 9 not moved.