R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Neuberger,Lord Kerr,Lord Mance,Lord Clarke |
| Judgment Date | 29 June 2016 |
| Neutral Citation | [2016] UKSC 35 |
| Date | 29 June 2016 |
| Court | Supreme Court |
[2016] UKSC 35
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Kerr
Lord Clarke
Appellant
Edward Fitzgerald QC Paul Harris SC Amal Clooney (Instructed by Clifford Chance LLP)
Respondent
Steven Kovats QC Kieron Beal QC Julian Blake (Instructed by The Government Legal Department)
Heard on 22 June 2015
(with whom Lord Neuberger and Lord Clarke agree)
In 2008 Lord Bingham of Cornhill and I were the dissenting minority when the majority in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] AC 453 (" Bancoult No 2") allowed the Secretary of State's appeal and upheld the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004 ("the 2004 Constitution Order"). Section 9 provides that, since the British Indian Ocean Territory ("BIOT") was set aside for defence purposes, no person shall have any right of abode there (section 9(1)) and further that no person shall be entitled to enter or be present there except as authorised by the Order itself or any other law.
I have not changed my opinion as to what would have been the appropriate outcome of the appeal to the House of Lords. But that is not the issue before us. The issue before us is whether the majority decision should be set aside, not on the grounds that it was wrong in law, but on grounds that the Secretary of State failed, in breach of his duty of candour in public law proceedings, to disclose relevant documents containing information which it is said would have been likely to have affected the factual basis on which the House proceeded. That was that the Secretary of State, when enacting section 9, could justifiably rely on the stage 2B report prepared by Posford Haskoning Ltd ("Posford") for its conclusion that any long-term resettlement on the outlying Chagos Islands was infeasible, other than at prohibitive cost. In addressing the issue now before us, we are bound by the legal reasoning which led the majority to its conclusion—indeed, strictly bound without possibility of recourse to the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, since this is an application in the same proceedings.
The relevant documents are conveniently described as "the Rashid documents", after Ms Rashid, the deponent from the Treasury Solicitor's Department who by witness statement dated 1 May 2012 first produced them. She did this without commentary in Administrative Court proceedings in Bancoult (No 3), regarding the declaration of a Maritime Protected Zone ("MPA") in the high seas around BIOT. Ms Rashid made clear that she had no personal knowledge of events leading to the earlier failure to disclose. That the failure to disclose the Rashid documents in the Bancoult No 2 proceedings was culpable is not, and could not be, disputed. On the other hand, it is accepted that it was not intentional and did not involve any bad faith. I shall address the circumstances, the contents of the documents and their significance in due course.
In addition to relying on the alleged breach of candour, Mr Bancoult also seeks to adduce four heads of new material, put forward as constituting evidence unavailable at the time of the House of Lords decision. All are said to go to the reliability of the stage 2B report, to undermine or invalidate the basis on which the House proceeded and to constitute an independent justification for re-opening the decision. I will revert to this ground of application later in this judgment, and focus in the meanwhile on the alleged breach of candour.
Unfair procedure: There is no doubt that the Supreme Court has inherent jurisdiction to correct any injustice caused by an earlier judgment of itself or its predecessor, the House of Lords, though it is also clear that it "will not re-open any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure" and that "there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong": R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, per Lord Browne-Wilkinson. One party's failure to disclose relevant documentary information is clearly capable of subjecting the other party to an unfair procedure.
However, a decision to re-open an appeal also has important evaluative as well as discretionary aspects. The present applicant was, in its application to set aside (paras 109–130), content to express the evaluative aspect in terms used in an analogous context in the Court of Appeal in Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 and followed by the Privy Council in Bain v The Queen [2009] UKPC 4. As the Privy Council said in the latter case at para 6, quoting Lord Woolf CJ at p 547 in the former case:
"What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy."
Fresh evidence: That the jurisdiction to set aside also extends to situations where fresh evidence is discovered after a judgment has been rendered which is not susceptible of appeal is also recognised in Court of Appeal authority: In re U [2005] EWCA Civ 52; [2005] 1 WLR 2398 Feakins v Department of Environment, Food and Rural Affairs [2006] EWCA Civ 699. The latter was a case where it was discovered that a DEFRA official had provided materially incorrect information to the court in a witness statement. In each case, however, it was emphasised that it was not sufficient simply to rely on the principles in Ladd v Marshall [1954] 1 WLR 1489, which apply when fresh evidence is sought to be adduced for or on an appeal. Rather, as it was put in In re U, para 22,
"… it must at least be shown, not merely that the fresh evidence demonstrates a real possibility that an erroneous result was arrived at in the earlier proceedings …, but that there exists a powerful probability that such a result has in fact been perpetrated."
This statement was quoted from and accepted in the application to set aside, para 121. Further, as to the discretionary aspect, the court noted in Feakins:
"The court [in In re U] held that, although that was a necessary condition, it was not sufficient; the court would have also to consider the extent to which the complaining party was author of his own misfortune and that there was no alternative remedy."
In oral submissions, Mr Edward Fitzgerald QC did not directly challenge the above principles as stated in In re U, stating in his reply that there was nothing between the parties on jurisdiction. However, in his written speaking note, directed specifically to jurisdiction in response to the court's invitation to focus on this, the matter was put differently, and as follows (para 2.4(iv)):
"As to whether there would now be a different outcome, it is submitted that it is only necessary to show at this threshold stage that there may well be a different outcome on a reconsideration."
See also, eg the submission (para 8.8) that Dr Shepherd "may well have had an 'axe to grind'". For my part, particularly where, as here, a party has failed to disclose the documents which it is now submitted constituted important evidence, I prefer to leave open whether a test of "probability" or, in the context of fresh evidence, "powerful probability" is too inflexible to cater for all possibilities. The egregiousness of a procedural breach and/or the difficulty of assessing the consequences of such a breach or of the significance of fresh evidence might, it seems to me, in some situations militate in favour of a slightly lower test, perhaps even as low as (though I do not decide this) whether the breach "may well have had" a decisive effect of the outcome of the previous decision. I shall consider the present application in that light also, although I do not in the event consider that the outcome of this application depends at any point on the test applied.
The regrettable facts lying behind these and other proceedings such as R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1) and (No 3) were outlined by Lord Hoffmann in paras 1–30 of his judgment in Bancoult No 2, in terms which both Lord Bingham and I accepted with only a few (presently immaterial) qualifications: see paras 68 and 137–139. BIOT consists of the Chagos Islands, the largest being Diego Garcia. In 1966 the United Kingdom agreed in principle to make BIOT available to the United States for at least 50 years for defence purposes, and with effect from July 1971 the United States took over Diego Garcia as a base. At the same time, by the Immigration Ordinance 1971, the Commissioner of BIOT prohibited any person from entering or being in BIOT without a permit issued by an immigration officer.
Mr Bancoult represents Chagossians (or Ilois), indigenous inhabitants of BIOT, whose removal and resettlement the United Kingdom procured between 1968 and 1973 by various non-forceful means with "a callous disregard of their interests" (Lord Hoffmann, para 10). Compensation, initially in the 1970s of £650,000 and then in 1982 of a further £4m in a trust fund set up under a Mauritian statute, was paid and accepted in satisfaction of all claims by most (some 1,340) Chagossians, though a few refused to sign. A challenge to this settlement was later made but struck out as an abuse of process by...
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