Diego Garcia Military Base and British Indian Ocean Territory Bill

Lord Lansley Excerpts

Tuesday 25th November 2025 Lords Chamber

Turning to the amendments in the name of my noble friend Lord Lansley, he is seeking to prevent an Order in Council under this section from amending, repealing or revoking any legislation unless it has been approved by a resolution of each House. My understanding of my noble friend Lord Lilley’s Amendment 51BA is that he is seeking to achieve a similar outcome. Yet again, I will be interested to hear my noble friend’s arguments and I certainly want to avoid pre-empting them at this stage.

[Lord Lansley (Con)]

My Lords, noble Lords have not had the opportunity to hear from me on the Bill previously. I apologise for not having intruded on previous debates, but I have listened to many of them.

I tabled Amendments 51A, 51B and 51C in pursuance of my continuing interest, over a number of years, in the exercise of prerogative powers and their relationship to parliamentary scrutiny. The combined effect of these three amendments would mean that any Order in Council that exercises a Henry VIII power—that is, to amend, repeal or revoke an Act—would be subject to affirmative procedure, instead of negative as proposed in the Bill, and that any other order, in other words not a Henry VIII power, would be subject to the negative procedure instead of no procedure.

These amendments reflect, and are in accordance with, the recommendations of the Delegated Powers and Regulatory Reform Committee, which, in its 37th report on 13 November, said of the Henry VIII power in paragraph 17 that

“the Government has failed to provide a full explanation as to why the power … is subject to the negative procedure … We recommend that this power should be subject to the affirmative procedure”.

In relation to orders that are not of a Henry VIII power character, the committee went on to say:

“We recommend that the power in clause 5(1) when used to do anything other than amend, repeal or revoke an Act should be subject to the negative procedure”.


So my three amendments are intended precisely to deliver the recommendations of the DPRRC.

The Constitution Committee, in its 14th report, also drew attention to the provisions of Clause 5. It observed that Orders in Council that are made in relation to treaties are commonly made by way of the prerogative power—because treaties are made by the prerogative power—and with limited parliamentary scrutiny as a consequence. However, the committee did not dissent from the DPRRC’s recommendations in this case.

Orders in Council in relation to the British Indian Ocean Territories have historically been made by virtue of the prerogative. The terms of this agreement with Mauritius mean that that precedent no longer applies. Article 1 of the agreement recognises—or confers, depending on how you view it—sovereignty over the Chagos Archipelago, including Diego Garcia, to Mauritius. Therefore, the basis for the exercise of the prerogative power—in other words, the exercise of sovereignty over the territory—is no longer applicable. I shall go on to explain why I therefore disagree with my noble friend on the Front Bench in his argument for Amendment 33.

These provisions provide for the continuation of the law in Diego Garcia. This is in accordance with the agreement in relation to Article 9 on jurisdiction. It follows in my view that the future exercise of the prerogative is sanctioned by this legislation in relation to Diego Garcia and that, as a result, any Orders in Council made should be regarded as statutory orders and, as such, subject to parliamentary scrutiny. The Government have accepted that the orders that have Henry VIII powers should require a parliamentary procedure. They do not, however, provide for a parliamentary procedure for other Orders in Council.

Paragraph 48 of the Explanatory Notes says that this measure is in subsection (5) of Clause 5—in fact it is in subsection (6). The notes say that

“the intention is to maintain a clear distinction between prerogative and statutory orders”.

That is to be achieved, according to the Explanatory Notes, by stating that these powers are not exercised in pursuance of the Statutory Instruments Act 1946. This is a very curious place that we have arrived at, since the Government are disapplying the Statutory Instruments Act while at the same time requiring that Orders in Council that are made that have a Henry VIII power attached to them require parliamentary scrutiny and are therefore statutory orders.

Let me be clear about the argument behind my three amendments. The prerogative stems from the exercise of a sovereign jurisdiction, which in relation to the United Kingdom is exercised by the sovereign in Parliament. In other dominions where His Majesty is sovereign, other forms of sovereign powers may subsist, but this treaty and agreement with Mauritius states baldly, in Article 1, that His Majesty is not sovereign in Diego Garcia. No prerogative power can exist without being dependent on this legislation.

Subsection (6)(b), in excluding this legislation from the interpretation under the Statutory Instruments Act 1946, is incorrect. On Report, and in response to this debate, I will be asking Ministers to think very carefully about two things. First, I hope positively, I ask them to change the procedures for the parliamentary scrutiny of Orders in Council so that Henry VIII powers are dealt with by an affirmative procedure, and, secondly, that Orders in Council for any other purpose are dealt with by a negative procedure. I ask them also to think very carefully about the terms of Clause 5(6), which incorrectly seeks to disapply the Statutory Instruments Act 1946.

It follows from my argument that I do not agree with my noble friend on Amendment 33, and I am afraid that I do not agree with my noble friend Lord Lilley in relation to his Amendment 51BA. He goes further than the Delegated Powers and Regulatory Reform Committee would in applying an affirmative procedure to Orders in Council that are not for a Henry VIII purpose. Neither can I support other opposition to clauses standing part, but I expect that my noble friend was rightly seeking to probe the meaning of Clauses 2, 3 and 5. Of course, if one were to remove them, one would effectively repudiate the treaty. That may or may not be his intention, but I do not propose to speak to the opposition to those clauses standing part.

[Lord Lilley (Con)]

My Lords, I am persuaded by the argument of the noble Lord, Lord Lansley, that his amendments are somewhat narrower but much more justified than my broader amendment. When the appropriate moment comes, I will not press my amendment and leave his standing.