The Queen (on the application of Louis Olivier Bancoult) v Secretary of State for Foreign and Commonwealth Affairs

JurisdictionEngland & Wales
JudgeLord Justice Richards
Judgment Date11 June 2013
Neutral Citation[2013] EWHC 1502 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/8588/2010
Date11 June 2013

[2013] EWHC 1502 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

and

Mr Justice Mitting

Case No: CO/8588/2010

Between
The Queen (on the application of Louis Olivier Bancoult)
Claimant
and
Secretary of State for Foreign and Commonwealth Affairs
Defendant

Nigel Pleming QC, Richard Wald, Maya Lester and Stephen Kosmin (instructed by Clifford Chance LLP) for the Claimant

Steven Kovats QC, Kieron Beal QC and Penelope Nevill (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 15-18, 22-24 April 2013

Lord Justice Richards

INTRODUCTION

1

This is the judgment of the court, to which both members have contributed. The case is a further chapter in the history of litigation arising out of the removal and subsequent exclusion of the local population from the Chagos Archipelago in the British Indian Ocean Territory ("BIOT"). The claimant, Mr Bancoult, has played a central role in that litigation. By the present claim he challenges the decision taken on 1 April 2010 by the Foreign Secretary to create a "no-take" Marine Protected Area ("MPA") of some 250,000 m 2 in BIOT. He brings the proceedings on his own behalf and for the benefit of others but does not act strictly in a representative capacity. He makes clear that he is in favour of environmental protection for the Chagos Islands and surrounding area but that he objects to the "no-take" character of the MPA.

2

By re-amended grounds of claim, the Foreign Secretary's decision is alleged to be flawed in the following respects:

(1) an improper motive, namely an intention to create an effective long-term way to prevent Chagossians and their descendants from resettling in BIOT;

(2) the failure to reveal, as part of the consultation preceding the decision, that the Foreign Secretary's own consultants had advised that resettlement of the population was feasible;

(3) the failure to disclose relevant environmental information in the course of the consultation;

(4) the failure to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and/or 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;

(5) breach of the obligations imposed on the United Kingdom under Article 198 of the Treaty on the Functioning of the European Union ("the TFEU"), which relates to the association of overseas territories with the European Union.

3

There are some overlaps between those grounds, especially those dealing with the process of consultation, but the allegation of improper purpose and the alleged breach of the TFEU are largely stand-alone issues.

Factual background

4

We set out here a bare outline of the factual background in order to provide the general context for what follows. For greater detail concerning the history of BIOT up to 2008, reference can be made to 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)"), at [1]-[27].

5

Prior to 1965 the Chagos Islands were a dependency of Mauritius, which at that time was a British colony. In 1965, by the British Indian Ocean Territories Order 1965, they were detached from Mauritius and constituted a separate colony known as BIOT. Mauritius itself became independent in 1968.

6

The detachment of the Chagos Islands from Mauritius took place in the context of proposals for the establishment of a US defence facility in the area, in particular on Diego Garcia. An agreement concerning the availability of BIOT for defence purposes was entered into between the British Government and the US Government in December 1966, and in due course the US Government gave notice that Diego Garcia would be required for the purpose in July 1971. Prior to that date the UK Government secured the removal of the population of Diego Garcia, mostly to Mauritius and the Seychelles. The Immigration Ordinance 1971, made by the BIOT Commissioner pursuant to the 1965 Order, then 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.

7

In 1998, long out of time, Mr Bancoult brought a challenge by way of judicial review to the Immigration Ordinance 1971. The challenge was upheld by the Divisional Court in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 (" Bancoult (No.1)") in November 2000. The Foreign Secretary of the day accepted the court's ruling and referred to work then in progress on the feasibility of resettling the Chagossians. The Immigration Ordinance 1971 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. Pending the outcome of the feasibility study, however, the change in the law led to no change in practice in the situation on the islands.

8

The report on Stage 1 of the feasibility study had been published in June 2000. The key report, however, was that on Phase 2B of the study, which was published in July 2002. It concluded that resettlement would be problematic in the short term and that the costs of maintaining long-term inhabitation of the islands were likely to be prohibitive.

9

In 2004 the Foreign Secretary announced that in the light of the feasibility study the British Government would not support resettlement of the islands to ensure and maintain the availability and effective use of the territory for defence purposes and had decided to restore full immigration control. The British Indian Ocean Territory (Constitution) Order 2004 was then made, providing by section 9 that no person was to have the right of abode in the territory and that no person was entitled 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 the details of immigration control.

10

The 2004 Orders were the subject of a further application for judicial review by Mr Bancoult. He was successful in the lower courts but in October 2008, in Bancoult (No.2), the House of Lords upheld the validity of the Orders.

11

Mr Bancoult and other Chagossians also applied to the European Court of Human Rights, complaining inter alia about their removal from the islands and the prohibition on their return. That application was dismissed on 20 December 2012 as manifestly unfounded and accordingly inadmissible: see Application no.35622/04, Chagos Islanders v United Kingdom [2013] 56 EHRR SE 15.

12

A further avenue of complaint was to the European Commission, seeking to get the Commission to bring infringement proceedings against the United Kingdom for breach of Article 198 TFEU and other Treaty provisions. The Commission found no infringement of EU law and formally closed its file on the complaint in January 2013.

The MPA consultation and decision

13

The immediate background to the MPA proposal and the public consultation on it is described later in this judgment (see [54]-[65] below). The consultation itself ran from 10 November 2009 to 5 March 2010. The consultation document was published solely in electronic form, on a website, with a view to giving it wide availability.

14

In his foreword to the consultation document, the Foreign Secretary said: "We want to use this consultation to help us assess whether a marine protected area is the right option for the future environmental protection of the British Indian Ocean Territory". The document stated that every effort had been made to bring the consultation to the attention of those with an interest in BIOT. It invited responses addressed to, but not restricted to, the following questions:

"1. Do you believe we should create a marine protected area in the British Indian Ocean Territory?

If yes, from consultations with scientific/environmental and fishery experts, there appear to us to be 3 broad options for a possible framework:

(i) Declare a full no-take marine reserve for the whole of the territorial waters and Environmental Preservation and Protection Zone (EPPZ)/Fisheries Conservation and Management Zone (FCMZ); or

(ii) Declare a no-take marine reserve for the whole of the territorial waters and EPPZ/FCMZ with exceptions for certain forms of pelagic fishery (e.g. tuna) in certain zones at certain times of the year.

(iii) Declare a no-take marine reserve for the vulnerable reef systems only.

2. Which do you consider the best way ahead? Can you identify other options?

3. Do you have any views on the benefits listed at page 11? What importance do you attach to them?

4. Finally, beyond marine protection, should other measures be taken to protect the environment in BIOT?"

15

Under the heading "Scope", the document explained that the consultation was in response to a proposal of the Chagos Environment Network (to which a link was given) recommending the establishment of a conservation area in BIOT. It continued:

"Any decision to establish a marine protected area would be taken in the context of the Government's current policy on the Territory, following the decision of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61 that the British Indian Ocean Territory (Constitution) Order 2004 and the British Indian Ocean Territory (Immigration) Order 2004 are lawful; i.e., there is no right of abode in the Territory and all visitors need a permit...

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