R Louis Olivier Bancoult v The Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton |
| Judgment Date | 25 July 2012 |
| Neutral Citation | [2012] EWHC 2115 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8588/2010 |
| Date | 25 July 2012 |
[2012] EWHC 2115 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Stanley Burnton
Case No: CO/8588/2010
Nigel Pleming QC and Richard Wald (instructed by Clifford Chance LLP) for the Claimant
Steven Kovats QC (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 4 July 2012
The application
This is an application by the Claimant for an order that he be at liberty to cross examine two of the Defendant's witnesses, Colin Roberts, H.M. Commissioner for the British Indian Ocean Territory ("BIOT") and Joanne Yeadon, a civil servant in the FCO, at the substantive hearing of his claim.
The claim
The Claimant, the chair of the Chagos Refugees Group, seeks judicial review of the decision of the Secretary of State for Foreign and Commonwealth Affairs to create a Marine Protected Area ("MPA") around the BIOT. The claim must be seen as part of the campaign of the Chagos Islanders, pursued by legal proceedings and politically, to return to the islands, now part of the BIOT, from which they or their families were removed by HM Government between 1965 and 1973 and from which they have since been excluded. There is a good summary of the history in the judgments of the Court of Appeal in Chagos Islanders v the Attorney General [2004] EWCA Civ 997, of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61 [2009] AC 453 and of the European Court of Human Rights in Chagos Islanders v the United Kingdom [2009] ECHR 410.
The MPA, if maintained, renders commercial fishing unlawful, and would make it more difficult for the Islanders to sustain themselves if they were to succeed in returning to the Islands.
Judicial review of the decision to create the MPA is sought on a number of grounds, of which the only one that is relevant to the present application is the allegation that the decision of the Secretary of State was made, at least in part, for an improper purpose. The allegation came to be made as a result of the publication by The Telegraph and The Guardian newspapers of what purport to be confidential and sensitive memoranda sent by the US Embassy in London to the State Department in Washington. The documents in question were passed to The Telegraph by Wikileaks, the notorious Internet organisation and site.
In essence, the Claimant's allegation is that the decision to create the MPA was made in whole or in part to prevent the return of the Islanders, and that that purpose could not lawfully be taken into account, and renders the decision unlawful and liable to be quashed.
The evidence
The Claimant relies principally but not solely on what appears to be a cable of 15 May 2009 purporting to set out in detail what was said in a meeting on 12 May 2009 with Mr Roberts, at which Ms Yeadon was present, which includes the following passages:
"7.…Roberts…asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago's former residents…"
The Secretary of State denies that the decision to create the MPA was unlawful on any of the grounds alleged by the Claimant, and in particular that the decision was made or influenced by the purpose alleged by the Claimant. It is clearly at least arguable that if the purpose, or one of the, purposes, for the creation of the MPA was to render it more difficult or impracticable for the Chagossian Islanders to resettle on the Islands, that would have been an unlawful purpose, extraneous to those for which the power was conferred,...
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