Rule of law: Chagos Archipelago deal heralds new era in UK
When the UK’s Prime Minister Sir Keir Starmer KC announced in October that the UK would hand sovereignty of the Chagos Archipelago to Mauritius, he said it would ‘address [the] wrongs of the past’.
The Archipelago, which includes the strategically important UK-US military base on the island of Diego Garcia, has been controlled by the UK since the mid-1960s. Mauritius has long argued that the islands were illegally seized when the country gained its independence in 1968. But, despite findings from the International Court of Justice and the International Tribunal for the Law of the Sea in 2019 and 2021 respectively that the UK had no sovereignty over the territory, the country’s previous government wasn’t able to conclude discussions over the Archipelago’s sovereignty.
Starmer stressed that while the deal was a political one it had been agreed ‘on the basis of international law’ and provided a ‘demonstration of our enduring commitment to the peaceful resolution of disputes and the rule of law’. It’ll see the UK exercise – for 99 years initially – ‘the sovereign rights and authorities of Mauritius required to ensure the continued operation of the base’ on Diego Garcia.
Sarah Hutchinson, Co-Chair of the IBA Rule of Law Forum and a non-executive director at legal education provider BARBRI Global, says the deal shows the UK government is ‘prepared to put the rule of law over politics’ after an extended period in which such considerations had been watered down.
‘There’s a confusion where people mistake the rule of law for rule by law,’ she says. ‘People think that if they abide by the law on an individual basis that’s enough, but it’s not. We need the law to regulate and to hold politicians and policymakers to account because they can make laws that are in themselves contrary to the rule of law.’
Indeed, the previous UK government sought to implement an immigration scheme that would have seen arrivals sent to Rwanda to seek asylum, despite the UK Supreme Court finding the policy to be unlawful. Starmer confirmed this summer that the Rwanda plan was ‘buried’ but Hutchinson says it shows the ‘parlous state the rule of law was in in this country’ that the Safety of Rwanda Bill was ever passed at all.
If the government is serious about the rule of law at a domestic level it has to address the funding crisis
Sarah Hutchinson
Co-Chair, IBA Rule of Law Forum
It’s a theme that has been taken up by both Attorney General Richard Hermer KC and Advocate General for Scotland Catherine Smith KC in recent public addresses. Delivering this year’s Bingham Lecture in London, Hermer made the point that ‘in a time of populism’ the rule of law is the ‘bedrock on which [democracy] rests’, adding that the current government is committed to ‘rebuilding the UK’s international rule of law leadership’ and ‘defending and strengthening parliament’s role in upholding’ it.
Similarly, when appearing at the Law Society of Scotland’s Annual Conference, Smith emphasised that ‘the rule of law is back’ and that the current administration would ‘honour its international obligations and honour the treaties that we are signatories of’. She added that, ‘when the UK Government turns up to international forums or people from the UK turn up to conferences in any profession […] there's no guarantee that people will walk into the room and say “that's the UK here, they respect and uphold their international obligations”’, because ‘that's just not true anymore, because we've literally been legislating in the knowledge that the legislation contains within it breaches of international law.’
Abiodun Olatokun, a barrister at the chambers 36 Public and Human Rights in London, says that ‘substantive rule of law issues’ such as compliance with international law and fundamental human rights were ‘put on a backburner’ under the previous government. He highlights the Covid-19 pandemic as a key point during which the public’s view of the importance of the rule of law was affected.
‘The rule of law is sometimes put into abeyance in times of national crisis and all countries had some back-sliding during the pandemic,’ says Olatokun. He believes however that ‘legal certainty’ declined during this period. For example, at least one government figure suggested a time limit on how long the public might exercise outdoors but, legally, there was no limit outside of Wales in this respect while the lockdown rules were in force. ‘From a thin rule of law perspective that’s a problem, because you have [leaders of the country] telling people they have less freedom than they actually do,’ says Olatokun. This means it’s perhaps less of an issue in the public’s minds ‘when the government is trying to prorogue parliament’, as it did in late 2019 during the Brexit crisis, an action later found by the UK Supreme Court to be unlawful.
While he agrees with Smith that the UK’s reputation has been dented on the international stage, Olatokun says that it started from a ‘very high point’ and that the country remains a world leader when it comes to upholding the rule of law. However, he warns that ongoing issues with funding the justice system are putting the rule of law under threat domestically. ‘If you introduced the NHS [UK National Health Service] today but people had to wait three months for a check-up and there was no A&E [Accident & Emergency department] it would be very poorly perceived by the public – that’s the space the justice sector is in,’ he says.
‘If the government is serious about the rule of law at a domestic level it has to address the funding crisis,’ agrees Hutchinson. She highlights reports from the IBA Access to Justice Committee as far back as 2019, which state that anywhere between 25 and 40 per cent of the population have no access to justice in the UK due to the cost and because there’s little legal aid available. ‘Because of chronic underfunding of the justice system, even if you can afford it there are massive court backlogs,’ she adds. ‘You would have to question what that says about the rule of law.’
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