R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls |
| Judgment Date | 23 May 2014 |
| Neutral Citation | [2014] EWCA Civ 708 |
| Docket Number | Case No: C1/2013/1804 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2014 |
[2014] EWCA Civ 708
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Lord Justice Richards and Mr Justice Mitting
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lady Justice Gloster
and
Lord Justice Vos
Case No: C1/2013/1804
Nigel Pleming QC, Richard Wald, Professor Robert McCorquodale, Maya Lester, Daniel Piccinin and Stephen Kosmin (instructed by Clifford Chance LLP) for the Appellant
Steven Kovats QC, Kieron Beal QC, Professor Malcolm Shaw QC and Penelope Nevill (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 31 March, 1 & 2 April 2014
This is the judgment of the court to which each member has contributed.
This appeal is a further chapter in the history of litigation arising out of the removal and subsequent exclusion of the native population from the Chagos Archipelago in the British Indian Ocean Territory ("BIOT"). Mr Bancoult challenges the decision taken by the Secretary of State for Foreign and Commonwealth Affairs on 1 April 2010 to create a "no-take" Marine Protected Area ("MPA") of some 250,000 square miles in the BIOT.
By re-amended grounds of claim, the decision is said to be flawed in five respects each of which was rejected by the Divisional Court (Richards LJ and Mitting J) in a detailed judgment which was given on 11 June 2013. Three of these grounds are the subject of the present appeal. These are that the decision was unlawful because (i) it was actuated by an improper motive, namely an intention to prevent Chagossians and their descendants from resettling in the BIOT; (ii) the consultation paper which preceded the decision failed to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands; and (iii) it was in breach of the obligations imposed on the United Kingdom under article 4(3) of the Treaty of the European Union ("TEU") in conjunction with articles 198 and 199 of the Treaty on the Functioning of the European Union ("the TFEU").
Factual background
The detailed history is set out in the speech of Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (Bancoult No 2). Prior to 1965, the Chagos Islands were a dependency of Mauritius. By the British Indian Ocean Territory Order 1965, they were detached from Mauritius and constituted a separate colony known as BIOT. An agreement concerning the availability of BIOT for defence purposes was entered into between the UK Government and the US Government in December 1966 and in due course the US Government gave notice that Diego Garcia would be required in July 1971. The Immigration Ordinance 1971, which was made by the BIOT Commissioner pursuant to the 1965 Order, provided that no person was to enter or be present or remain in BIOT unless he was in possession of a permit. A small population remaining after that date on islands other than Diego Garcia left by the end of May 1973.
In 1998 Mr Bancoult brought a judicial review challenge to the 1971 Ordinance. This succeeded before the Divisional Court ( Bancoult No 1). The 1971 Ordinance was replaced by the Immigration Ordinance 2000 which provided that the restrictions on entry or residence should (with the exception of Diego Garcia) not apply to anyone who was a British Dependent Territories citizen by virtue of his connection with BIOT.
In 2004, the Secretary of State announced, in the light of a feasibility study that had been undertaken, that, in order to ensure and maintain the availability and effective use of the territory for defence purposes, the UK Government would not support resettlement of the islands. The British Indian Ocean Territory (Constitution) Order 2004 was then made. It provided that no person was to have the right of abode in the territory and that no person was to have the right to enter or be present in the territory except as authorised by or under the Order or any other law for the time being in force in the territory. At the same time, the British Indian Ocean Territory (Immigration) Order 2004 dealt with details of immigration control. The 2004 Orders were the subject of judicial review challenge by Mr Bancoult. He was successful in the lower courts, but in October 2008 his claim was dismissed by the House of Lords in Bancoult No 2.
Mr Bancoult and other Chagossians applied to the European Court of Human Rights complaining about their removal from the islands and the prohibition on their return. This application was dismissed on 20 December 2012 as manifestly unfounded and inadmissible: Application no 35622/04, Chagos Islanders v United Kingdom [2013] 56 EHRR SE 15.
MPA Consultation
There was a public consultation in relation to the MPA proposal. It ran from 10 November 2009 until 5 March 2010. In the foreward to the consultation document, the Secretary of State said: "We want to use this consultation to help assess whether a marine protected area is the right option for the future environmental protection of the British Indian Ocean Territory". The second ground of appeal raises the question of whether the fairness of the consultation was compromised by failing to disclose the effect that the MPA would have on the Chagossians' fishing rights. We refer to the relevant parts of the consultation document when we deal with this ground of appeal at paras 94 to 115 below.
THE FIRST GROUND OF APPEAL: IMPROPER MOTIVE
The claimant's case is that the decision to declare an MPA in BIOT waters was in whole or in part actuated by the improper motive of seeking to prevent Chagossians and their descendants from resettling in the BIOT.
The cornerstone of the case is a document published on Wikileaks and by The Guardian on 2 December 2010 and by The Daily Telegraph on 4 February 2011. It is claimed to be a copy of a "cable" (in fact, a communication sent, received and stored electronically but which can, if required, be printed) sent on 15 May 2009 by the US Embassy in London to departments of the US Federal Government in Washington, to elements of its military command and to its Embassy in Port Louis, Mauritius. The text, which (save as regards layout) is identical in both reports, concerns and, it is claimed, purports to record observations made by British officials to US Embassy officials on 12 May 2009 about a proposal to declare an MPA. It is common ground that there was a meeting between US officials and Mr Colin Roberts, then Foreign and Commonwealth Office ("FCO") Director for Overseas Territories and HM Commissioner for the BIOT, and Ms Joanne Yeadon, then the BIOT Administrator, on 12 May 2009 at the FCO. Mr Roberts and Ms Yeadon believe that no note was taken or made of the meeting by them and none has been retrieved from FCO files. If the document is a true copy of a US Embassy "cable" it is the only near-contemporaneous record of the meeting known to exist.
The claimant contends that the statements in the copy cable attributed to the British civil servants revealed that a material and significant motive in the decision to establish the MPA was the prevention of resettlement of the Chagos Islands by Chagossians. It recorded, for example:
"7….Roberts stated that according to the HGM's [sic] current thinking on a reserve, there would be no 'human footprints' or 'Man Fridays' on the BIOT's uninhabited islands. He asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago's former residents…..
15. Establishing a marine reserve might indeed, as FCO's Roberts stated, be the most effective long-term way to prevent any of the Chagos islands' former inhabitants or their descendants from resettling in the BIOT".
On 25 July 2012 Stanley Burnton LJ ordered Mr Roberts and Ms Yeadon to attend to be cross-examined about the document. In doing so, he acknowledged that what he described as "the Wikileaks documents" (three were then in issue) "must have been obtained unlawfully, and in all probability by the commission of a criminal offence or offences under the law of the United States of America". He expressed understanding of the policy of HM Government neither to confirm nor deny the genuineness of leaked official documents ("the NCND policy"). The only submission made to him by Mr Kovats QC for the Secretary of State was that it would be wrong to order cross-examination about documents which had been unlawfully obtained. He rejected that submission, for reasons which he gave at para 16 of his judgment:
"However, the documents in question have been leaked, and indeed widely published. No claim has been made to the effect that the documents should not be considered by the court on the grounds of public interest immunity or the like. They are before the court. The court will have to decide whether or not they are genuine documents, that they are copies of what they purport to be. The memorandum of the meeting of 12 May 2009, in particular, appears to be a detailed record, which could fairly be the basis of cross-examination."
He went on to state that he did not see how the present claim could fairly or justly be determined without resolving the allegation made by the claimant as to what...
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