JUDGMENT
R (on the application of Bancoult No 3) (Appellant)
v Secretary of State for Foreign and
Commonwealth Affairs (Respondent)
before
Lord Neuberger
Lady Hale
Lord Mance
Lord Kerr
Lord Clarke
Lord Sumption
Lord Reed
JUDGMENT GIVEN ON
8 February 2018
Heard on 28 and 29 June 2017
Appellant Respondent
Nigel Pleming QC Steven Kovats QC
Richard Wald Professor Malcolm Shaw QC
Stephen Kosmin Penelope Nevill
Professor Robert McCorquodale
(Instructed by Clifford Chance
LLP
)
(Instructed by The Government
Legal Department
)
Page 2
LORD MANCE: (with whom Lord Neuberger, Lord Clarke and Lord Reed
agree)
Introduction
1. The appellant is the chair of the Chagos Refugees Group. The Group
represents Chagossians whose removal from the British Indian Overseas Territory
(the Chagos Islands – “BIOT”) and resettlement elsewhere was procured by the
United Kingdom government in the years 1971 to 1973. The circumstances have
generated much national and now also international litigation. The sad history has
been told on a number of occasions. It suffices to mention Chagos Islanders v The
Attorney General [2003] EWHC 2222 (QB), R (Bancoult) Secretary of State for
Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453 and
most recently in R (Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (No 4) [2016] UKSC 35; [2017] AC 300. Following the last two decisions,
it remains prohibited, under the BIOT Constitution and Immigration Orders 2004,
for Chagossians to return to BIOT. Since the last judgment, the United Kingdom
government has on 16 November 2016 announced its decision to maintain the ban
on resettlement, after a study carried out by KPMG published on 31 January 2015.
That decision is itself the subject of further judicial review proceedings.
2. The present appeal concerns the establishing for BIOT of “a marine reserve
to be known as the Marine Protected Area” by Proclamation No 1 of 2010. The
Proclamation was issued by Mr Colin Roberts, Commissioner for BIOT, “acting in
pursuance of instructions given by Her Majesty through a Secretary of State”. The
Marine Protected Area (“MPA”) was established in a 200 mile Environment
(Protection and Preservation) Zone (“EPPZ”) which had existed since Proclamation
No 1 of 2003 dated 17 September 2003. Proclamation No 1 of 2010 said (para 2)
that, within the MPA:
“Her Majesty will exercise sovereign rights and jurisdiction
enjoyed under international law, including the United Nations
Convention on the Law of the Sea, with regard to the protection
and preservation of the environment of the [MPA]. The
detailed legislation and regulations governing the said [MPA]
and the implications for fishing and other activities in the
[MPA] and the Territory will be addressed in future legislation
of the Territory.”
Page 3
The creation of the MPA was accompanied by a statement issued by the respondent,
stating that it “will include a ‘no-take’ marine reserve where commercial fishing will
be banned”.
3. No fresh legislation or regulations relating to fishing were in the event issued
or necessary. Fishing was already controlled. From 1984 it was controlled within
the three mile territorial waters and the contiguous zone which extended a further
nine miles (to 12 miles from shore) under Proclamation No 8 of 1984 and the Fishery
Limits Ordinance 1984. Control was subject to a power (exercised on 21 February
1985) to designate Mauritius for the purpose of enabling fishing traditionally carried
on within those limits. Proclamation No 1 of 1991 and the Fisheries (Conservation
and Management) Ordinance 1991 (“the 1991 Ordinance”) established a Fisheries
Conservation and Management Zone extending 200 miles from shore, within which
a fee-carrying licence was required for any fishing. The Mauritian government was,
however, informed that a limited number of licences would continue to be offered
free of charge in view of the traditional fishing interests of Mauritius in the waters
surrounding BIOT. Proclamation No 1 of 2003 establishing the EPPZ had no impact
on fishing. The 1991 Ordinance was superseded by similarly entitled Ordinances in
1998 and then 2007, under which the licensing system was continued. The majority
of fishing from Mauritius was inshore fishing carried out by the Talbot Fishing
Company, owned by the Talbot brothers, one of whom was Chagossian. Their
vessels were flagged to Mauritius until 2006 or 2007, when for economic reasons
they were reflagged to Madagascar and the Comoros. A number of regular crew
members on these boats were Chagossians. After the establishing of the MPA, and
the accompanying announcement, the achievement of a no-take reserve or zone was
in practice accomplished by allowing existing licences to expire and by not issuing
any fresh licences to the Talbot vessels or other vessels from outside BIOT for
inshore or other fishing in the MPA.
4. The present challenge has two limbs. One is that the decision to create the
MPA had an improper ulterior motive, namely to make resettlement by the
Chagossians impracticable. The other is that the consultation preceding the decision
was flawed by a failure to disclose the arguable existence on the part of Mauritius
of inshore fishing rights (ie within the 12 mile limit from shore). Both challenges
are associated with the enforcement of a no-take zone by the refusal since 2009 of
fishing licences, since the impracticality of resettlement is said to derive from the
loss by Chagossians of occupational skills and possibilities, now and at any future
time when resettlement might be contemplated.
5. At the core of the appellant’s case on improper purpose is a document
published by The Guardian on 2 December 2010 and by The Telegraph on 4
February 2011, purporting to be a communication or “cable” sent on 15 May 2009
by the United States Embassy in London to departments of the US Federal
Government in Washington, to elements in its military command structure and to its
Page 4
Embassy in Port Louis, Mauritius. The cable is recorded as having been passed to
The Telegraph (and was presumably also passed to The Guardian) by Wikileaks. Its
text purports to be a record, by a United States political counsellor, evidently a Mr
Richard Mills, of conversation at a meeting on 12 May at the Foreign Office, London
with Mr Roberts, Ms Joanne Yeadon, the Administrator for BIOT, and Mr Ashley
Smith, the Ministry of Defence’s Assistant Head of International Policy and
Planning. It also purports to refer to some previous meetings and a subsequent
conversation involving Ms Yeadon. It starts with a one-paragraph summary and
ends with two paragraphs of comment, and contains 12 paragraphs of purported
record in between. Reliance is placed on passages in it, which it is submitted show,
or could be used to suggest, that Mr Roberts, Commissioner for BIOT, had and
disclosed an improper motive in relation to the creation of the MPA. It is common
ground that there was in fact a meeting between US officials and Mr Roberts and
Ms Yeadon at the Foreign Office on 12 May 2009.
6. The present proceedings took an unfortunate turn in this respect before the
Administrative Court (Richards LJ and Mitting J). Burnton LJ had on 25 July 2012
given permission for Mr Roberts and Ms Yeadon to be cross-examined on the
purported cable, acknowledging that it must have been obtained unlawfully and in
probability by committing an offence under US law, but saying:
“I do not see how the present claim can be fairly or justly
determined without resolving the allegation made by the
[appellant], based on the Wikileaks documents, as to what
transpired at the meeting of 12 May 2009, and more widely
whether at least one of the motives for the creation of the MPA
was the desire to prevent resettlement.”
Before the Administrative Court, objections were made to the use of the cable in
cross-examination of Mr Roberts.
7. One objection, which did not find favour with the Administrative Court (and
which is not live before the Supreme Court), was that the Official Secrets Act and
the UK government’s policy of “neither confirm nor deny” (“NCND”) in relation to
documents of this nature meant that Mr Roberts should not be required to answer
questions relating to the purported cable. In relation to this objection, the Court ruled
that Mr Roberts could be questioned on an assumption that the cable was what it
purported to be, and that it would be open to the appellant at the end of the hearing
to invite the Court to accept it as an accurate record of the meeting, and to rely on it
evidentially. Various questions were put to Mr Roberts and answered on that basis,
before Mr Kovats QC for the respondent asked for and obtained further time
overnight to consider the position.
Page 5
8. The other objection was that use of the cable would be contrary to the
principle of inviolability of the US mission’s diplomatic archive in breach of articles
24 and 27(2) of the Vienna Convention on Diplomatic Relations 1961, given effect
in the United Kingdom by section 2(1) of the Diplomatic Privileges Act 1964. This
further objection only occurred to the respondent during the second day. It was
therefore only made the subject of submissions on the third day. This led to the first
ruling being effectively over-taken, by a further ruling that it would not be open to
the appellant to invite the court to treat the cable as genuine or to find that it
contained an accurate record of the meeting and that any further cross-examination
should proceed on that basis, without any suggestion that the purported cable was
genuine. Mr Pleming applied for, but was refused immediate permission to appeal
that ruling. In these circumstances, he indicated that he had no further crossexamination of Mr Roberts, and on the next day conducted a cross-examination of
Ms Yeadon, limited as directed by the Court’s ruling.
9. By a judgment dated 11 June 2013, the Administrative Court rejected the
appellant’s case both in so far as it was based on improper purpose and in so far as
it was based on failure to disclose the arguable existence of Mauritian fishing rights.
The Court of Appeal (the Master of the Rolls, Gloster and Vos LJJ) [2014] 1 WLR
2921 reached the same overall conclusions, but after taking a different view of the
admissibility of the purported cable. It held that, since the cable had already been
disclosed to the world by a third party, admitting it in evidence would not have
violated the US London mission’s diplomatic archive. The Court of Appeal had
therefore to consider whether the exclusion of the cable from use before the
Administrative Court would or could have made any difference to that Court’s
decision on the issue of improper purpose. By a judgment given 23 May 2014, it
decided against the appellant on both this issue and the issue relating to the omission
of reference to arguable Mauritian fishing rights. The Supreme Court by order dated
7 July 2016 gave permission to appeal on the issue of improper purpose and directed
that the application for permission to appeal on the issue relating to the omission of
reference to arguable Mauritian fishing rights be listed for hearing with the appeal
to follow if permission is granted. The respondent has in turn challenged the
correctness of the Court of Appeal’s conclusion that use of the cable would not have
contravened article 24 and/or 27(2) of the Vienna Convention.
The admissibility of the cable
10. I will take this issue first. In order to give some context to articles 24 and
27(2), the whole of articles 24, 25 and 27 of the Vienna Convention on Diplomatic
Relations are set out:
“Article 24
Page 6
The archives and documents of the mission shall be inviolable
at any time and wherever they may be.
Article 25
The receiving State shall accord full facilities for the
performance of the functions of the mission.
…
Article 27
1. The receiving State shall permit and protect free
communication on the part of the mission for all official
purposes. In communicating with the Government and the
other missions and consulates of the sending State, wherever
situated, the mission may employ all appropriate means,
including diplomatic couriers and messages in code or cipher.
However, the mission may install and use a wireless transmitter
only with the consent of the receiving State.
2. The official correspondence of the mission shall be
inviolable. Official correspondence means all correspondence
relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear
visible external marks of their character and may contain only
diplomatic documents or articles intended for official use.
5. The diplomatic courier, who shall be provided with an
official document indicating his status and the number of
packages constituting the diplomatic bag, shall be protected by
the receiving State in the performance of his functions. He shall
enjoy person inviolability and shall not be liable to any form of
arrest or detention.
Page 7
6. The sending State or the mission may designate
diplomatic couriers ad hoc. In such cases the provisions of
paragraph 5 of this article shall also apply, except that the
immunities therein mentioned shall cease to apply when such a
courier has delivered to the consignee the diplomatic bag in his
charge.
7. A diplomatic bag may be entrusted to the captain of a
commercial aircraft scheduled to land at an authorized port of
entry. He shall be provided with an official document
indicating the number of packages constituting the bag but he
shall not be considered to be a diplomatic courier. The mission
may send one of its members to take possession of the
diplomatic bag directly and freely from the captain of the
aircraft.”
11. The submissions on inviolability under these provisions range widely. They
cover the nature of the archive, its location, the circumstances in which material
originating from the archive may continue inviolable and the reach of the concept
of inviolability itself. As to the nature of the archive, Professor Denza concludes in
Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations
(4th ed) (2016), at p 161, that, instead of trying to list all modern methods of
information storage, “it is probably better simply to rely on the clear intention of
article 24 to cover all physical items storing information”. Writing jointly in Satow’s
Diplomatic Practice (7th ed, edited by Sir Ivor Roberts) (2017), at p 238, para 13.31,
Professor Denza and Joanne Foakes, former Legal Counsellor to the Foreign and
Commonwealth Office, say, after noting that the term “archives” is not defined in
the 1961 Vienna Convention:
“but it is normally understood to cover any form of storage of
information or records in words or pictures and to include
modern forms of storage such as tapes, sound recordings and
films, or computer disks.”
That can be readily accepted, as can be the proposition that copies taken of
documents which are part of the archive must necessarily also be inviolable.
12. As to location, Mr Kovats on behalf of the respondent points to the words “at
any time and wherever they may be” in article 24, and to commentaries by Professor
Eileen Denza in her work, cited above, pp 158-159, and by Professor Rosalyn
Higgins (as she then was) in Problems and Process: International Law and how we
use it (OUP) (1995), pp 88-89. Professor Denza observes that the words quoted
Page 8
mean “that archives not on the premises of the mission and not in the custody of a
member of the mission are entitled to inviolability”, and that:
“If archives fall into the hands of the receiving State after being
lost or stolen they must therefore be returned forthwith and may
not be used in legal proceedings or for any other purpose of the
receiving State.”
Professor Higgins wrote:
“Article 24 stipulates that the archives and documents shall be
inviolable at any time and ‘wherever they may be’. It is clear
that this last phrase is meant to cover circumstances where a
building other than embassy premises is used for storage of the
archives; and also the circumstances in which an archived
document has been, for example, taken there by a member of
the Secretariat staff for overnight work – or even inadvertently
left by him on the train or in a restaurant. What would happen
if the Secretariat member, or a diplomat, took an overseas trip,
and mislaid the document while abroad? The English High
Court [in the Tin Council case: International Law Reports Vol
77 (1988) pp 107-145 at pp 122-123] was disturbed by the idea
that ‘wherever located’ could, on the face of it, mean even in
Australia or Japan. It is true that an English court is not likely
to be in a position to enforce the inviolability of a document
from the authorities of another country where that particular
document happens to be located. But it is entirely another thing
to say that, because a document happens to be outside the
jurisdiction, an English court is thereby entitled to treat it, in
matters that do fall within its own competence, as non-archival
and thus without benefit of such inviolability as it is in a
position to bestow.”
Again, so long as the document can be said to constitute part of the archive, a point
to which I shall return, these statements appear not only authoritative in their
sources, but convincing. As will appear, they also receive support from Shearson
Lehman Bros Inc v Maclaine, Watson and Co Ltd; International Tin Council
(Intervener) (No 2) [1988] 1 WLR 16. That is the House of Lords judgment in the
Tin Council case, to the first instance decision in which Professor Higgins referred.
The House in that case on any view accepted that there were some circumstances in
which a document which was part of an archive, but for some reason no longer
physically within the archive, remains inviolable.
Page 9
13. This brings me to the circumstances in which material originating from the
archive may continue inviolable and the reach of the concept of inviolability itself.
The appellant, whose case on this aspect was presented by Professor Robert
McCorquodale, submits that the word “inviolable”, read in the context of the
Convention, does not embrace inadmissibility. In his submission, the concept is
directed at some degree of interference, of a more or less forceful nature, and this
limited sense is the only sense which applies in all the places where the concept is
deployed. The submission corresponds with the approach taken by the Court of
Appeal, which picked up the characteristically trenchant view of Dr F A Mann, that
“Inviolability, let it be stated once more, simply means freedom
from official interferences. Official correspondence of the
mission over the removal of which the receiving state has had
no control can … be freely used in judicial proceedings.”
See “‘Inviolability’ and Other Problems of the Vienna Convention on Diplomatic
Relations in Further Studies in International Law, (1990) pp 326-327 and also
[1988] 104 LQR, p 178. But Professor McCorquodale’s submission does not allow
for the fact that a concept may embrace different shades of meaning according to
the particular context in which it is deployed.
14. The meaning of inviolability in the context of use of archive material in
evidence was in fact the very subject of the House of Lords judgment in the Tin
Council case. The issue arose there under article 7(1) of the International Tin
Council (Immunities and Privileges) Order 1972, whereby it was provided:
“The council shall have the like inviolability of official
archives as in accordance with the 1961 Convention Articles is
accorded in respect of the official archives of a diplomatic
mission.”
The Tin Council intervened in civil proceedings between private parties, relying on
article 7(1) as rendering inadmissible various documents that the parties were
proposing to adduce in evidence.
15. The House was in these circumstances asked to address the operation of
article 7(1) on various “Agreed Assumptions of Fact” set out in a document so
entitled. One such assumption was that a Tin Council document was supplied to a
third party by an officer or other staff member of the Tin Council without any
authority. Mr Kentridge QC submitted that article 24 of the Vienna Convention and
article 7(1) of the 1972 Order only afforded protection against executive or judicial
Page 10
action by the host state, so that, “even if a document was stolen, or otherwise
obtained by improper means, from a diplomatic mission, inviolability could not be
relied on to prevent the thief or other violator from putting it in evidence”. Lord
Bridge, giving the sole fully reasoned judgment in the House, rejected this
submission, saying (p 27F) that:
“The underlying purpose of the inviolability conferred is to
protect the privacy of diplomatic communications. If that
privacy is violated by a citizen, it would be wholly inimical to
the underlying purpose that the judicial authorities of the host
state should countenance the violation by permitting the
violator, or anyone who receives the document from the
violator, to make use of the document in judicial proceedings.”
16. The House went on to limit this to circumstances in which the third party
receiving the document was aware of the absence of any authority to pass it to him
(p 29B-C). To a limited extent therefore, the Tin Council succeeded in establishing
that its documents would have inviolability, precluding their use in civil
proceedings. This was part of the ratio of the House of Lords’ decision, as appears
at p 31D-E, even though Lord Bridge went on to add that “In the event the rejection
of that [Mr Kentridge’s] argument turns out to be of minimal significance in the
context of the overall dispute”.
17. The Canadian case of Rex v Rose An Dig 1946, Case No 76, p 161 was cited
to the House in the Tin Council case, but not referred to by Lord Bridge in his
judgment. Rose was convicted of furnishing secret material to the Soviet Embassy
in reliance on documents stolen from the Embassy archive by a defector. Rose’s
claim that the stolen documents used against him were immune from use was
rejected, on the grounds that such a claim
“could not be admitted where the recognition of such immunity
was inconsistent with the fundamental right of selfpreservation belonging to a State or where the executive had
impliedly refused to recognise such immunity.”
The absence of inviolability in cases where state security is involved has a pedigree
going back to the extraordinary Cellamare conspiracy in 1718 by Antonio dei
Giudice, Prince of Cellamare and Ambassador of Spain to France, to kidnap and
depose Philippe d’Orléans, Regent of France, and replace him as Regent by Philip
V of Spain: see Martens, Causes célèbres du droit des gens, I, p 149. Rex v Rose is
nonetheless controversial, and, more importantly for present purposes, neither of the
grounds on which it rests applies to this case.
Page 11
18. In his LQR article, cited above, Dr Mann was taking direct issue with the
House of Lords’ rejection in the Tin Council case of Mr Kentridge’s submission.
The Court of Appeal was in my opinion bound to reject Dr Mann’s analysis, and I
see no reason for adopting it. I also consider that the Court of Appeal was incorrect
to identify Dr Mann’s analysis as representing the weight of opinion (para 64).
Professor Denza says, at p 189, that:
“As regards use of the correspondence as evidence, article 27.2
may be regarded as duplicating the protection under article 24
of the Convention which gives inviolability to the archives and
documents of the mission ‘wherever they may be’.”
Professor Jean Salmon of The Free University, Brussels, describes F A Mann’s view
as regards article 27(2), in Further Studies in international law (OUP) (1990), p 226,
as “une vue trop restrictive de l’inviolabilité”: Manuel de Droit Diplomatique
(1994), p 244. The quotation from Professor Higgins, set out in para 12 above does
not fit well with Dr Mann’s approach. S E Nahlik, Development of Diplomatic Law,
Selected Problems, 222(III) Recueil des Cours (1990), 291-292 and B S Murty, The
International Law of Diplomacy: The Diplomatic Instrument and World Order
(1989) at p 382 comment critically on Rex v Rose, while J Wouters, S Duquet & K
Meuwissen, The Vienna Conventions on Diplomatic and Consular Relations (OUP,
2013) at para 28.4.5.1 state, citing Professor Salmon, that:
“The inviolability of diplomatic/consular archives and
documents entails that they cannot be opened, searched, or
requisitioned without consent, and cannot be used as
evidence.”
19. In Fayed v Al-Tajir [1988] QB 712 the de facto head, later Ambassador, of
the Embassy of the United Arab Emirates in London was sued by Mr Fayed in
respect of an Embassy communication addressed to an Embassy counsellor. For
unclear reasons diplomatic immunity was waived, but the question remained
whether the document could be used in court. The Court of Appeal held that the
document enjoyed immunity from use, and the dispute was non-justiciable. Kerr LJ
noted at p 736C-E that the judge in Rex v Rose had concluded that diplomatic
documents generally enjoyed “inviolability”, so anticipating the use of that term in
the Vienna Convention, and that he had expressed the concept of “inviolability” at
p 646 in wide terms:
“International law creates a presumption of law that documents
coming from an embassy have a diplomatic character and that
Page 12
every court of justice must refuse to acknowledge jurisdiction
or competence with regard to them.”
Kerr LJ also noted that this conclusion was supported by Denza on Diplomatic Law
(1976), p 110. At p 736F-G, he distinguished the actual decision in Rex v Rose as
having been reached on the basis that a citizen could not invoke immunity in
litigation with his own government and on the basis of the principle said to derive
from the Cellamare conspiracy, neither of which bases had any relevance in Fayed
v Al-Tajir.
20. In principle, therefore, inviolability of documents which are part of the
mission archive under articles 24 and 27(2) extends to make it impermissible to use
such documents or copies in a domestic court of the host country, at any event absent
extraordinary circumstances such as those of the Cellamare conspiracy or Rex v Rose
and absent express waiver of the inviolability by the mission state. But the
application of this principle to any particular document is subject to two
qualifications. First, the document must constitute or remain part of the mission
archive, and, second, its contents must not have become so widely disseminated in
the public domain as to destroy any confidentiality or inviolability that could
sensibly attach to it. These two qualifications may sometimes, but certainly not
always, coincide. Taking the first, in the present case, there is no indication from
where the Wikileaks document emanates, but there is no suggestion that it is likely
to have emanated from the United States Embassy in London. It was sent both to the
State Department in Washington and elsewhere. There is no indication that the
United States Embassy in London attached any reservation to or placed any
limitation on the use or distribution of the cable by the State Department or any other
authority to whom the cable went. The cable was simply classified as Confidential.
In these circumstances, once the document reached the State Department or any
other addressee, it was, so far as appears and in the form in which it was there held,
a document in the custody of the Federal Government of the United States or that
other authority, and not part of the London Embassy archive. Bearing in mind the
probability that the Wikileaks cable was extracted from the State Department or
some other unknown foreign location to which it had been remitted for information
and use there, it is not therefore established, even as a matter of probability that the
cable remained part of the archive of the London mission, when it was so extracted.
On that simple basis, the Wikileaks cable was available for use and admissible as
evidence of its contents in the present proceedings. I therefore arrive as the same
conclusion on this point as the Court of Appeal, albeit for different reasons.
21. Taking, second, the possibility of loss of inviolability due to a document from
the mission archive coming into the public domain, I have come to the conclusion
that this must in principle be possible, even in circumstances where the document
can be shown to have been wrongly extracted from the mission archive. Whether it
has occurred in any particular case will however depend on the context as well as
Page 13
the extent and circumstances of the dissemination. That seems to me to follow by
analogy with the reasoning concerning the protection afforded by the law to
confidential material (as opposed to that afforded on grounds of privacy and/or
human rights) in cases such as Attorney General v Guardian Newspapers Ltd (No
2) [1990] 1 AC 109 and PJS v News Group Newspapers Ltd [2016] UKSC 26;
[2016] AC 1081, see also Passmore on Privilege, paras 7-039 and 7-042. In the
present case, the cable has been put into the public domain by the Wikileaks
publication and the newspaper articles which followed, in circumstances for which
the appellant has no responsibility. In my opinion, the cable has as a result lost its
inviolability, for all purposes including its use in cross-examination or evidence in
the present proceedings. On that ground, I would therefore reach the same
conclusion as the Court of Appeal expressed in para 64 of its judgment.
The allegation of improper purpose
22. On the above basis, the question arising is whether the Court of Appeal was
right to conclude that the Administrative Court’s ruling that the cable was not
available for use or admissible had no material effect on the proceedings and was
not a ground for allowing the appeal. The Court of Appeal, after reviewing all the
material available, including the cable, the evidence given and the Administrative
Court’s findings, concluded (para 93) that
“even if the cable had been admitted in evidence, the court
would have decided that the MPA was not actuated by the
improper motive of intending to create an effective long-term
way to prevent Chagossians and their descendants from
resettling in the BIOT.”
A little earlier in its judgment, in para 89, the Court said that it did “not accept that
there is a realistic possibility that the [Administrative Court’s] assessment of the
evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had
been formally admitted as an authentic document”; that in reaching this conclusion,
it had “borne in mind the need to exercise caution in denying relief on the ground
that the legally correct approach would have made no difference to the outcome”;
but that it was “satisfied that the admission of the cable in evidence would have
made no difference”.
23. Before the Supreme Court, criticism was directed at the Court of Appeal for
formulating its conclusions in terms of what “would”, rather than “could” have made
a difference. Reference was made to well-known authorities on the test applicable
in cases of breach of natural justice (or unfairness) by public authorities, including
Malloch v Aberdeen Corpn [1971] 1 WLR 1578 and R (Cotton) v Chief Constable
Page 14
of the Thames Valley Police [1990] IRLR 344, paras 59-60, per Bingham LJ.
Reference was also made to the discussion, without decision, on the test applicable
on an application to the Supreme Court to set aside a prior judgment of its own in
Bancoult (No 4), cited in para 1 of this judgment. The precise test must depend on
the context, including, in particular, how well-placed the court is to judge the effect
of any unfairness. In the present case, the complaint is of lack of opportunity for full
cross-examination and for the trial court to weigh the evidence it heard in the light
of the cable, treating the cable as admissible. In these circumstances, I am prepared
for present purposes to accept that the appropriate question is whether the admission
of the cable for use in these ways could have made a difference. However, I also
consider that this is in substance how the Court of Appeal approached the issue. The
conclusion it reached (see para 22 above) was that there was no
“realistic possibility that the [Administrative Court’s]
assessment of the evidence of Mr Roberts and Ms Yeadon
would have been affected if the cable had been formally
admitted in evidence as an authentic document.”
Its statement at the end of para 89 that “the admission of the cable in evidence would
have made no difference” must be read, in context, as a shorthand resumé of this
conclusion. A conclusion that there was no realistic possibility that the assessment
would have been affected amounts, in substance, to a conclusion that the admission
of the cable could not realistically have made a difference. Nonetheless, it is
incumbent upon the Supreme Court to consider for itself whether the Court of
Appeal erred in reaching that conclusion.
24. The Administrative Court undertook in paras 53 to 77 of its judgment a full
and careful review of the genesis and development of and decision to announce the
MPA and a no-take zone, which the Court of Appeal accurately summarised as
follows:
“75. … The catalyst for making the MPA was a proposal
made in July 2007 by an American environmental group, Pew
Environmental Group, to Professor Sheppard, the
environmental adviser for the BIOT. On 5 May 2009, Mr
Roberts submitted a briefing note to the Secretary of State
which explained the benefits of the proposal. These included
that, because of the absence of a settled population and the
strict environmental regime already in force, the BIOT was one
of the few places in which a large scale approach to
conservation was possible; and it offered great scope for
scientific and climate change research. The Secretary of State’s
reaction was enthusiastic. His private secretary emailed Mr
Page 15
Roberts to say that the Secretary of State was ‘fired up’ after
the meeting and ‘enthusiastic to press ahead’ with the proposal.
76. This was followed by a meeting to discuss the proposal
with US Embassy officials on 12 May 2009. This is the crucial
meeting the gist of which was purportedly summarised in the
copy cable dated 15 May 2009. Both Mr Roberts and Ms
Yeadon attended the meeting and were cross-examined about
it. Mr Roberts denied making any reference to ‘Man Fridays’.
He said that he recognised that the declaration of an MPA, if
‘entrenched’, would create a serious obstacle to resettlement.
Ms Yeadon also denied that Mr Roberts had used the words
‘Man Fridays’ or that he had said that establishing a marine
park would put paid to resettlement claims. The Divisional
Court said (para 61) that it found Ms Yeadon to be ‘an
impressive and truthful witness’. Having referred to an
important note of a meeting held on 25 March 2009, the court
said at para 63: ‘as Ms Yeadon understood, at official level,
HM Government regarded the resettlement issue as settled by
the 2004 Order, subject only to the pending decision of the
Strasbourg Court’ (this is a reference to the claimant’s
application which was eventually dismissed by the ECtHR on
20 December 2012: see para 7 above).
77. By a note dated 29 October 2009, Ms Yeadon proposed
to Mr Roberts and the Secretary of State that consultation on
the proposal to declare an MPA be launched on 10 November.
Under the heading ‘Risks’, she noted that the risk of an
aggressive reaction from the Chagossians and their supporters
was high and said: ‘they may claim that we are establishing a
Marine Protected Area in order to ensure that they can never
return to BIOT. This is not the case …’ The court said (para 65)
that it was ‘satisfied that in this passage Ms Yeadon again
stated what she genuinely believed: that the proposal to
establish an MPA was not to ensure that the Chagossians could
never return.’
78. In a note dated 30 March 2010, Ms Yeadon proposed
that the Secretary of State should publish the report on
consultation and declare his belief that an MPA should be
established, but only after further work had been done. There
followed a flurry of emails between officials. The Secretary of
State did not accept Ms Yeadon’s advice. On 1 April, he
announced the creation of an MPA in the BIOT which included
Page 16
a ‘no take’ Marine Reserve where commercial fishing would
be banned. Mr Roberts duly made the proclamation on 1 April.
79. The Divisional Court expressed its conclusion on the
improper motive point in these terms:
‘74. This material makes it clear that it was the
personal decision of the Foreign Secretary to declare an
MPA on 1 April 2010, against the advice of his officials.
There is no evidence that, in doing so, he was motivated
to any extent by ‘an intention to create an effective longterm way to prevent Chagossians and their descendants
from resettling in the BIOT’. His Private Secretary
could hardly have written on 7 May 2009, the day after
the presentation of the proposal by Professor Sheppard
to him, that he was ‘really fired up about this’ if the
proposal was presented as a cynical ploy to frustrate
Chagossian ambitions. It is obvious that he was
responding to a proposal presented by a man, Professor
Sheppard, who was keen to see it adopted and put into
effect for scientific and conservation purposes only.
Later, on 31 March 2010, when the Foreign Secretary
made the decision to go ahead immediately, the decision
had nothing to do with Chagossian ambitions. The
decision to override official advice can best be
understood in the political context: Parliament was
about to be dissolved. The Foreign Secretary no doubt
believed that the decision would redound to the credit of
the Government and, perhaps, to his own credit. It
would do so the more if a decision with immediate effect
was taken. Officials thought that this would create
difficulties but it was the Foreign Secretary’s
prerogative to override their reservations and make the
decision which he did. There is simply no ground to
suspect, let alone to believe or to find proved, that the
Foreign Secretary was motivated by the improper
purpose for which the claimant contends.
75. It is significant that the Foreign Secretary’s
announcement contained the caveat which always
accompanied public and private statements by officials:
that the decision was subject to the pending judgment of
the Strasbourg Court. Unless there was some deep plot
to frustrate an adverse judgment, of which there is no
Page 17
evidence at all, this fact alone demonstrates that no
sensible official in the FCO could have believed that the
establishment of an MPA would fulfil the improper
purpose alleged. Nor could it have done. The
proclamation made by Mr Roberts on 1 April 2010
stated that:
‘The detailed legislation and regulations
governing the said Marine Protected Area and the
implications for fishing and other activities in the
Marine Protected Area and the territory will be
addressed in future legislation of the territory.’
The only step taken since then has been to allow fishing
licences current at 1 April 2010 to expire and to issue no
more. What prevents the return of Chagossians to the
islands is the 2004 Order, not the MPA. If, at some
future date, HM Government decided or was
constrained by a judgment of a court to permit
resettlement or the resumption of fishing by
Chagossians, nothing in the measures so far taken would
prevent it or even make it more difficult to achieve.
76. For the claimant’s case on improper purpose to
be right a truly remarkable set of circumstances would
have to have existed. Somewhere deep in government a
long-term decision would have to have been taken to
frustrate Chagossian ambitions by promoting the MPA.
Both the administrator of the territory in which it was to
be declared, Ms Yeadon, and the person who made the
decision, the Foreign Secretary, would have to have
been kept in ignorance of the true purpose. Someone –
Mr Roberts? – would have been the only relevant official
to have known the truth. He, and whoever else was privy
to the secret, must then have decided to promote a
measure which could not achieve their purpose, for the
reasons explained above, while explaining to all
concerned that the MPA would have to be reconsidered
in the light of an adverse judgment of the Strasbourg
Court. Those circumstances would provide an
unconvincing plot for a novel. They cannot found a
finding for the claimant on this issue.’
Page 18
80. In order to test Mr Pleming’s submission that the effect
of the Divisional Court’s ruling was to deprive him of the
opportunity of properly testing the evidence of the witnesses, it
is necessary to see what cross-examination he was able to
undertake. During day 1 and day 2 of the hearing, Mr Pleming
cross-examined Mr Roberts extensively about the meeting of
12 May 2009 by reference to various documents, including the
cable. Although Mr Roberts was not prepared to answer
questions as to whether the contents of the cable were accurate
(because of the NCND policy), nevertheless he answered
questions as to what he might or might not have said at the
meeting: see day 1 pp 155 to 169 and day 2 at pp 9 to 41. Mr
Pleming confirmed to the court that his general purpose in
cross-examining on the cable, paragraph by paragraph, was to
establish its general accuracy by reference to relatively
uncontroversial passages in it.
81. Despite his repeated reliance on the NCND policy, Mr
Roberts gave extensive evidence of what was discussed at the
meeting on 12 May. For example, in relation to one passage
from the cable, he said: ‘I can confirm that the general content
and sense of the issues that you have just read out is consistent
with the discussion we were having with the United States at
the time’. In relation to another passage, he said: ‘I don’t recall
what language I would have used at the time but it would have
been consistent with the general position that we were trying to
set out to the United States’.
82. At p 36 on day 2, Mr Roberts accepted that he did say to
the US officials that the establishment of an MPA would in
effect put paid to the resettlement claims. He said that this was
‘a recognition of a reality’ that, if the MPA was ‘entrenched’
(ie a law which would be impossible or difficult to repeal), this
would be a ‘serious obstacle to resettlement’. He denied that he
had said anything about ‘footprints’ or ‘Man Fridays’: ‘that was
not the nature of the conversation’. Mr Pleming sought to
persuade the court to give a ruling as to whether Mr Roberts
should be required to answer questions about the accuracy of
the contents of the cable. Mitting J asked whether it was
necessary to have this debate, since Mr Roberts had accepted
that a consequence of establishing an MPA would be that the
hopes of the Chagossians to return would be thwarted. Richards
LJ was not sure how much more Mr Roberts could say. He had
Page 19
indicated why he declined to answer the ‘ultimate’ question;
but he had answered all the ‘intermediate’ questions.
83. The court did not make any final ruling at this stage and
Mr Pleming continued with his cross-examination of Mr
Roberts by reference to the cable: see day 2 pp 78 to 80. He put
it to Mr Roberts that his purpose was to use the MPA to prevent
or kill off the claims for resettlement; and that this policy
‘shines out of the record of that meeting and is not a policy you
would want to put in written form so that it could ever be seen
by the Chagossians or in any litigation’. Mr Roberts replied:
‘No, I reject that suggestion entirely. I do not believe it is
possible to keep a policy of that significance quiet.’”
25. It is worth underlining some points about the history which arise from this
account. First, the whole idea of an MPA and a no-take zone was generated by
independent environmental activity. An American environmental group, Pew, made
the initial proposal to Professor Charles Sheppard, BIOT’s independent
environmental adviser, in July 2007. This led on 22 April 2008 to discussions
between Pew and Ms Yeadon about the creation of an MPA, in which there would
be a no-take zone. On the same day, the Chagos Conservation Network, whose
founders included Pew and Professor Sheppard, held its inaugural meeting at the
Linnean Society, and expressed the view that there should be a no-take zone within
BIOT waters. On February 2009, The Independent reported in an article that the
Chagos Conservation Trust, the RSPB, the Zoological Society of London and Pew
were launching a plan for an MPA, which would be compatible with defence
interests and would offer a possibility that some Chagossians might return as
environmental wardens; a marine biologist from York University was reported as
describing the attitude of the British government towards the Chagos Islands up to
that time as “one of benign neglect”; and the British government itself was reported
as saying it would “work with the international environmental and scientific
community to develop further the preservation of the unique environment”. (The
Mauritian government’s response to this article was that the Chagos Islands were
under its sovereignty, so that its consent would be required.)
26. Second, it is clear that, from the outset, the relevant decision-maker was to
be the Secretary of State for Foreign and Commonwealth Affairs, Mr David
Miliband, in person, not the civil servants who were directly or indirectly reporting
to or advising him. Mr Miliband was first briefed on the idea of an MPA by a six
and a half page note from Mr Roberts dated 5 May 2009. This was in terms to which
no objection is or could be taken, and was followed up by a meeting with Mr Roberts
and Professor Sheppard. The note identified and examined the “numerous benefits”
and “wide range of potential beneficiaries” of an MPA. The benefits fell under the
heads of conservation, climate change, scientific [research], development,
Page 20
reputational/political and security (the last being explained by Mr Roberts in a
witness statement dated 1 May 2012 as relating to control of illegal, unregulated and
unreported fishing). The note went on to examine risks. In that connection, it
identified Mauritian sovereignty claims and “a side deal done at the time of excision
which gave Mauritius the right to apply for fishing licences free of charge”, the
Chagossian movements and the US military. The US military were not thought
likely to oppose, and the note expressed confidence that reassurances could be given
that they would not experience any rise in the security risk, impediment to freedom
of manoeuvres or significant increase in environmental regulation.
27. In relation to the Chagossian movements, the note said:
“Their plans for resettlement are based on the establishment of
an economy based on fishing and tourism. In the specific
context of BIOT this would be incompatible with a marine
reserve. They are therefore hostile to the proposal, unless the
right of return comes with it. They have expressed unrealistic
hopes that the reserve would create permanent resident
employment based on the outer islands for Chagossians.
Assuming we win in Strasbourg [as in the event occurred], we
should be aiming to calm down the resettlement debate.
Creating a reserve will not achieve this, but it could create a
context for a raft of measures designed to weaken the
movement. This could include:
– presenting new evidence about the precariousness of
any settlement (climate change, rising sea levels,
known coastal defences costs on Diego Garcia)
– activating the environmental lobby
– contributing to the establishment of community
institutions in the UK and possibly elsewhere
– committing to an annual visit for representatives of
the communities to the outer islands on All Saints’
Day
Page 21
– inclusion of a Chagossian representative in the
reserve government.
– [an irrelevant redaction]”
28. It is not suggested that this note was other than an objective assessment of
the proposal, or that it contains or suggests any improper motivation. As the
Administrative Court stated (para 77), the only “collateral” factor relating to
Chagossian ambitions which it shows is that the proposal might, in various ways,
permit the Government to “calm down the resettlement debate” and attract support
for the Government’s position from the environmental lobby. The Administrative
Court went on:
“This could not have the effect of creating an effective longterm way to prevent resettlement and Mr Pleming rightly
conceded that it would not taint a decision genuinely to further
environmental and scientific purposes.”
That remains the position before the Supreme Court.
29. The note was followed up by a meeting between the Secretary of State, Mr
Roberts and Professor Sheppard, which was on the evidence principally devoted to
a slide show by Professor Sheppard showing the environmental benefits of an MPA.
As a result of the note and meeting, Mr Miliband was “fired up” by the proposal and
“enthusiastic to press ahead”.
30. Thirdly, the meeting a week later between Mr Roberts, Ms Yeadon and
representatives of the United States Embassy was aimed at briefing a United States
counsellor (Mr Richard Mills) interested in knowing more about the Chagos Islands
position, no doubt as it related to the United States concerns identified in the note
dated 5 May 2009. In his initial summary in para 1 of the cable, its author recorded
Mr Roberts as saying that
“the BIOT’s former inhabitants would find it difficult, if not
impossible to pursue their claim for resettlement on the islands
if the entire Chagos Archipelago were a marine reserve.”
The ensuing paragraphs included the following:
Page 22
“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 …”
The final paragraph of comment included this:
“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.”
31. Accepting the Wikileaks memorandum as a genuine record of the meeting, it
must be seen in that context. What would have concerned the United States were the
consequences of an MPA, not the motivation. Further, the opening and the final two
paragraphs are evidently comment or attempted summary by Mr Mills, while it is
the intermediate paragraphs that purport to record the actual course of the discussion.
In the case of The Guardian report of the cable, the intermediate paragraphs have
interposed what are evidently journalistic captions. I note at this point Lord Kerr’s
suggestion (paras 84 and 86) that US military needs provided no reason for Mr
Roberts and Ms Yeadon to assure the Americans, or ask them to confirm their
requirement, that no resettlement would occur elsewhere in the BIOT. The “obvious
question” which Lord Kerr considers to arise in this regard was not raised before the
Supreme Court. But the answer is clear. The original exchange of notes between the
United States and United Kingdom in 1966 provided that all of the BIOT be “set
aside for defence purposes” and that any significant change of the BIOT’s status that
could impact the BIOT’s strategic use would require US consent. Hence also, Mr
Roberts’ statement in this connection in his note dated 5 May 2009 that
“We expect we will have our work cut out to reassure the US
military that creation of a reserve will not result in trouble for
them. Trouble could be any rise in the security risk, any
impediment to the freedom of manoeuvre, or any significant
raising of the bar in terms of environmental regulation.”
Lord Kerr himself says in para 88 that the theme that “… the MPA would prevent
any resettlement of the islands … certainly preoccupied the Americans” in May
2009.
Page 23
32. In November 2009 a consultation was launched in respect of the proposal.
The motivation for the proposal was explained as being environmental and
scientific, and various options were presented for public consideration. The
consultation process ended in early March. The proposal then returned to the
political arena, where the same picture of independent decision-making by the
Secretary of State emerges as nearly a year before. This concluded with Mr Miliband
instructing Mr Roberts as Commissioner for BIOT to issue Proclamation No 1 of
2010 (para 2 above), and with an FCO statement dated 1 April 2010 to the effect
that “This will include a ‘no-take’ marine reserve where commercial fishing will be
banned”.
33. More specifically, the events leading to this decision were as follows. A
submission dated 30 March 2010 from Ms Yeadon had discussed how best to
progress the proposal. In it, Ms Yeadon pointed to likely opposition and possible
international moves by the Mauritian government and advised that, rather than any
immediate decision, more time should be taken to work through the various issues
and a positive, but not definitive, announcement should be made. However, at 18.06
on the same day, Mr Miliband’s office informed Ms Yeadon that Mr Miliband’s
“inclination [was] to be bolder” and actually to decide to go ahead.
34. At 8.30 next morning, Mr John Murton, at that time, it appears, the British
High Commissioner in Mauritius, commented that he had no idea whether Mr
Miliband would follow the recommendations of the day before, but that, if he went
for the MPA immediately, they would face problems. Shortly before 11.47 next day,
Mr Miliband’s office informed Ms Yeadon by telephone that Mr Miliband was
minded to ask Mr Roberts to declare an MPA and a full no-take zone, that no final
decision has yet been taken, and that he would like to find some way of mitigating
the Mauritian reaction. An internal email reaction by Mr Roberts at 12.07 proposed
to give Mr Miliband “a clearer steer”. This led to an immediate rejection by another
civil servant, Mr Andrew Allen, who at 12.31 stated his view that “this approach
risks deciding (and being seen to decide) policy on the hoof for political time-tabling
reasons rather than on the basis of expert advice and public consultation” and was a
very different approach to the one recommended the day before, which Mr Miliband
was still considering. The reference to political time-tabling is a clear reference to
the general election due not later than five years after 5 May 2005, and in fact
announced on 6 April 2010 for 6 May 2010. Mr Allen’s view was endorsed by Mr
John Murton at 12.45, with the additional comment that – while “Obviously the
Foreign Secretary is free to make whatever decision he chooses” – “to declare the
MPA today could have very significant negative consequences for the bilateral
relationship” with Mauritius, where an announcement of general elections was also
expected, that same day, where ministers were uncontactable as a result and where
the prime minister “would greatly resent our timing”. Mr Murton thought that “there
might be a market for a proposal to work with Mauritius as a privileged partner on
management issues etc prior to a final decision on an MPA”. These exchanges led
Page 24
to the preparation of a further note from Ms Yeadon addressed to Mr Roberts, and,
when finalised, evidently also forwarded to the Secretary of State. The note reported
the views expressed and repeated the previous day’s recommendation against any
rapid decision.
35. Mr Miliband did not accept the advice tendered on 30 and 31 March 2010.
He said he had carefully considered it and given serious thought to the different
possible options. But his decision was to instruct Mr Roberts to declare the full MPA
on 1 April 2010.
36. In these circumstances, the present issue can be approached, as the courts
below have done, at two different levels. The first involves considering whether
there is any real likelihood or risk that the Administrative Court’s assessment of Mr
Roberts’ and/or Ms Yeadon’s motivation would have been different if the
Administrative Court had permitted further cross-examination on the Wikileaks
memorandum and had accepted that memorandum as evidence of what its contents
purport to record. The second is whether there is any real likelihood or risk that any
improper motivation on the part of Mr Roberts and/or Ms Yeadon affected the
ultimate decision-maker (Mr Miliband) or his decision.
37. As to the first level, the Administrative Court heard both Mr Roberts and Ms
Yeadon being cross-examined on the most important passages of the cable,
particularly the summary in the first and last paragraphs and the purported recital of
actual discussion in para 7. Mr Roberts accepted that he said words to the effect that
it was governmental policy that there should be no human footprint on the Chagos
Islands (other of course than Diego Garcia), embracing within that term absence of
scientific or wardens’ offices, temporary workers as well as resettlement. He
accepted that he had said that establishing an MPA would in effect put paid to
resettlement claims, but explained that this was recognition of a reality that the
Chagossians themselves had originally raised and that it only related to an MPA
“entrenched” by law. He said that entrenchment was in the event never pursued, and
that the proposal for an MPA was at the time always subject to the outcome of the
proceedings in Strasbourg. Ms Yeadon on the other hand denied that Mr Roberts
had said that establishing an MPA would in effect put paid to resettlement claims.
Resettlement was, in her view, already precluded by the 2004 Order (subject only to
the pending decision of the Strasbourg Court), a point on which the Administrative
Court accepted her evidence, finding it to be supported in a note of a meeting of 25
March 2009 between Mr Roberts, Ms Yeadon and a Chagossian delegation
including the appellant and their solicitor, Mr Gifford. Both Mr Roberts and Ms
Yeadon were adamant that Mr Roberts had not used, and would never have used,
the highly emotive words Man (or Men) Fridays.
Page 25
38. The first tier question in these circumstances is whether further crossexamination might have led to more material favourable to the appellant’s case of
improper motivation on the part of Mr Roberts and/or Ms Yeadon and whether
admission of the cable in evidence to counterbalance the evidence of Mr Roberts
and Ms Yeadon might have led the Administrative Court to accept that either or both
was, when advancing the proposal for an MPA, improperly motivated by the desire
to prevent resettlement.
39. As to this question, the “extensive” evidence given by Mr Roberts about the
meeting on 12 May and Ms Yeadon’s own evidence give a picture which is generally
and substantially consistent with that presented by the cable. In my opinion, Lord
Kerr’s references to an account or statements “inconsistent with”, or “directly
contrary to” or “flatly contradict[ing]” or “in obvious conflict” (paras 91, 92, 94 and
107) are not borne out by comparison of the evidence and the cable. That too was
how the Court of Appeal evidently saw the position: see its paras 80 to 82 quoted in
para 24 above; and see also para 37 above.
40. When it came to considering whether the Foreign Office representatives had
some ulterior motive in their proposal for an MPA, the Administrative Court was
also impressed by the evidence of Mr Roberts and Ms Yeadon. It is true that it did
not directly address the contradiction between their evidence on the question
whether Mr Roberts had said that an MPA would put paid to resettlement. But it
accepted that a wish to preclude resettlement was not part of Ms Yeadon’s
motivation, because she regarded resettlement as off the table anyway as a result of
the 2004 Order, and it must also have accepted Mr Roberts’ evidence that what he
was explaining to the United States counsellor was the practical consequences of an
MPA, which is what would have been of interest to Mr Mills, rather than its
motivation. It is difficult to see what further cross-examination by reference to Mr
Mills’ memorandum could have achieved. It is also difficult to think that admission
of the memorandum, without more, would have outweighed the impression which
the Court obtained from the oral evidence it heard. The memorandum is at the very
lowest ambiguous as to whether the references to resettlement were uttered in
circumstances indicating that they had a role in motivating the proposal for an MPA.
On the face of it, it seems very unlikely that a British civil servant would have
disclosed an improper motivation of this nature, rather than have been outlining the
practical consequences of an MPA which is what would have concerned the
Americans.
41. It is equally difficult to think that the Administrative Court could have
concluded, by reference either to further cross-examination or to the cable itself, that
Mr Roberts in fact used the phrase “Man Fridays”, which he and Ms Yeadon
adamantly denied that he would ever have used. The phrase had already had
considerable currency, including in court judgments, and was well-known known in
British circles as infamous. Lord Kerr in para 97 notes the Court of Appeal’s
Page 26
reference in para 82 of its judgment to the fact that Mr Pleming QC was not
permitted to put to Mr Roberts the “ultimate question”. This the Court of Appeal
identified as being whether the cable was accurate, before continuing “but Mr
Roberts had answered all the ‘intermediate’ questions”. Lord Kerr treats the ultimate
question as being “whether [Mr Roberts] had an explanation for the fact that he was
recorded as having made certain statements which he denied having uttered”.
However, as to this, Mr Roberts was not party to the cable, and had, by his answers
to the “intermediate” questions, given the only explanation that he could be expected
to give about any differences, namely that the cable was wrong. Even more
importantly in this connection, it is difficult to see that the Administrative Court
could have been assisted in its task on the central issue, even if it had concluded that
the phrase “Man Fridays” was used.
42. In these circumstances, I do not consider that it has been shown that the Court
of Appeal erred in concluding that neither further cross-examination on the cable
nor the cable itself, if admitted as evidence, would have led to any different outcome
before the Administrative Court. Assuming that the test should be whether this could
realistically have led to any different outcome, the answer would still, in my opinion,
be negative.
43. Let me assume however that this is wrong, and that Mr Roberts and/or Ms
Yeadon did have and voice to the United States Embassy officials an illegitimate
motive for the proposal for an MPA. The second level question then arises whether
there is or can be any conceivable basis for thinking that this affected the ultimate
decision-maker, Mr Miliband, or his decision. In my opinion, the answer to this is
even more clearly in the negative. The Administrative Court’s conclusion in para
74, summarised in para 91 of the Court of Appeal’s judgment was that it was clear
that
“it was the personal decision of the Foreign Secretary to declare
an MPA on 1 April 2010, against the advice of his officials.”
and that this
“can best be understood in the political context: Parliament was
about to be dissolved. The Foreign Secretary no doubt believed
that the decision would redound to the credit of the
Government and, perhaps, to his own credit. It would do so the
more if a decision with immediate effect was taken.”
Page 27
44. The documentation and exchanges available all show that the proposal was
put up by civil servants to the Secretary of State. Bearing in mind its nature and
context, this was bound to occur. It was put up in appropriate terms without any
suggestion of any improper motive, both initially in May 2009 and ultimately in
March 2010. The documentation and exchanges also show that he made his decision
of 31 March 2010 on that basis, against his civil servants’ recommendation to give
the proposal further thought and attention. Any suggestion that further crossexamination of Mr Roberts and/or Ms Yeadon or the admission of the cable as
evidence of its contents might have led the Administrative Court to conclude that
Mr Miliband was motivated in his enthusiasm, not by his assessment of the merits
of the proposal as such, but by extraneous considerations relating to a desire to make
return difficult for the Chagossians, finds no basis in the documentation or
exchanges and has to my mind no plausibility at all. There is no basis whatever for
impugning Mr Miliband’s motivation. There is in particular no basis for suggesting
that he may have connived at or joined with Mr Roberts and/or Ms Yeadon in a
collusive exercise of documenting an objective-decision making process, while at
the same time pursuing and concealing an illicit agenda.
45. The final matter for consideration on this basis is whether any relevance
could attach to improper motivation on the part of one or more civil servants, when
there is no indication whatever that it shaped or in any way influenced ministerial
thinking. The answer must in my opinion be negative. If the Secretary of State as
the ultimate decision-maker, the actual decision-making process and the decision
were unaffected by an improper motive held by a civil servant, on a proposal bound
because of its significance to be put up to the Secretary of State, the decision can
and should stand by itself. That would on all the evidence be the present position,
even if one assumes that the cable discloses, or would if deployed have led to a
conclusion, that there was, some improper motivation on the part of Mr Roberts
and/or Ms Yeadon in (or after) May 2009.
46. Mr Pleming QC submits that an opposite conclusion flows from a form of
reconfiguration of the principle in Carltona Ltd v Commissioners of Works [1943]
2 All ER 560, and that the Secretary of State can be “fixed with the knowledge,
motives and considerations of … civil servants when relying on them unless he
proves otherwise”. The problem with that submission is that, even if one or more
civil servants had improper motives or considerations in mind, Mr Miliband did not
rely on any decision or conduct of those civil servants to which such motives and
considerations had any relevance. The relevant civil servants were, as stated, bound
to put the matter before the Secretary of State. They did so in proper terms,
ultimately counselling against any immediate decision to declare an MPA and notake zone. The Secretary of State rejected their recommendation, and made his own
decision.
Page 28
47. Carltona does not have any bearing on this situation. It stands for the
proposition that ministerial powers are commonly delegable and that, where this is
the case and delegation occurs, the decision of an authorised official falls to be
treated as the decision of the minister. Here, therefore, it may readily be accepted
that, if a Minister were simply to rely on a civil servant, in effect to take a decision
in the Minister’s name, then it would be the knowledge, motives and considerations
held by and influencing the civil servant that would be relevant. A ministerial
decision may also be vulnerable to challenge if taken in ignorance of or on the basis
of some mistake as to some material factor. Similarly, if a ministerial decision is
arrived at by a collective decision-making process involving a minister and his
departmental civil servants, it may well be impossible to separate the ultimate
ministerial decision from the knowledge and motives of civil servants involved in
its preparation: see eg Bushell v Secretary of State for the Environment [1981] AC
75, 95-96, per Lord Diplock. But these are situations very far from the present case.
In the present case, far from the relevant decision being taken by an official on behalf
of the minister or being a collective decision, it is clear that the minister, Mr
Miliband, took his own decision on the relevant matters. His civil servants put the
matter up to him in terms to which no objection is taken as such, he formed his own
strong views on the basis of the material put before him and he made the relevant
decision. In these circumstances it is his state of mind that is critical, not that of his
civil servants.
48. I note here Lord Kerr’s suggestion that the Secretary of State’s decision could
be regarded as having been reached without regard to material factors or
considerations if taken “in ignorance of a concealed reason for the recommendation
on which he acted” (para 117) and/or without awareness of “the view of the civil
servants that the MPA would” eliminate the chances of resettlement of the Chagos
Islands, contrary to the advice on which he in fact acted (para 118). Neither of these
points was part of the applicant’s case before the Supreme Court, which focused on
the existence of an allegedly improper motive on the part of Mr Roberts and/or Ms
Yeadon. Reliance on their suggested views as material information which should
have been made available to the Secretary of State is a quite different matter. If this
were sufficient to undermine a ministerial decision, then logically any irrelevant
misconception possessed by any civil servant at any level in the civil service
hierarchy in relation to any proposal ultimately reaching Cabinet level could
undermine a Cabinet decision. There is in any event no basis for regarding any such
views as material, since the appeal has been conducted on the basis that the creation
of the MPA “could not have the effect of creating an effective long-term way to
prevent resettlement”: see para 28 above. The only suggested reason why an MPA
or no-take zone might preclude resettlement was that it would deprive Chagossians
of an important source of food and livelihood. But this is not an objection deriving
from the establishment of an MPA, but from a policy, reversible at any time, of
refusing fishing licences.
Page 29
49. For these reasons, I would hold that no basis exists on which the Supreme
Court would be justified in reaching a different conclusion to that reached in the
Court of Appeal, upholding the Administrative Court, though for different reasons,
on the point.
Fishing rights
50. The position in respect of this adjourned application for permission to appeal
is unusual. I say at the outset that I consider that permission to appeal should be
given. But permission to raise the issue of Mauritian fishing rights at all was only
given by the Administrative Court on the limited basis that the appellant
“does not contend in these proceedings that the traditional or
historical fishing rights relied on are legally enforceable, so that
the question whether there are enforceable rights under
international law would not arise for decision.”
The appellant’s case, as explained by Mr Pleming before the Administrative Court,
was
“simply that there is credible evidence that HMG gave an
undertaking to the Government of Mauritius which has
subsequently been evidenced by preferential treatment for
Mauritius registered vessels, and that this was an important part
of the background yet was not put before consultees, who were
in consequence misled.”
The Administrative Court held the appellant to that position, and Mr Pleming has
not sought to resile from it before the Court of Appeal or Supreme Court. Further,
he made clear that before the Supreme Court the only fishing rights relied on are
Mauritian fishing rights. That means (and it is unnecessary to attempt any precise
definition) fishing rights enjoyed by Mauritian registered and, quite probably,
owned vessels, on which in practice Chagossians are often also found as crew.
51. Yet, since the Court of Appeal’s judgment in May 2014, an arbitration
between the Republic of Mauritius and the United Kingdom under Annex VII of the
United Nations Convention on the Law of the Sea (“UNCLOS”) has concluded in
an award dated 18 March 2015, finding, inter alia:
Page 30
“that the United Kingdom’s undertaking to ensure that fishing
rights in the Chagos Archipelago would remain available to
Mauritius as far as practicable is legally binding insofar as it
relates to the territorial sea.”
During the course of the hearing before the Supreme Court, the Government put
before the Court a statement that:
“HM Government is committed to implementing the Dispositif
made in 2015 following Arbitration between the UK and
Mauritius over the Marine Protected Zone (MPA) around the
British Indian Overseas Territory (BIOT). In line with the
Dispositif, the UK will continue to work with Mauritius to
agree the best way to meet our obligation to ensure fishing
rights in the territorial sea remain available to Mauritius, so far
as practicable. The Arbitral Award did not require the
termination of the MPA but the UK will continue to approach
discussions with an open mind about the best way to ensure
proper conservation management of this unique marine
environment.”
52. It therefore appears that, at the international level, the fishing rights, the
arguable existence of which the appellant claims should have been recognised in the
consultation paper, have not only been held to exist, but are rights, to which so far
as they have been held to exist, the United Kingdom is committed to giving effect.
In these circumstances, it is possible to wonder what further purpose these
proceedings might have, since it is on these rights that the appellant’s objections to
the MPA and/or no-take zone centre. Ostensibly, the appellant’s case is that, if there
was improper motivation and/or a failure properly to consult about arguable fishing
rights, the MPA and no-take zone should be declared to have been invalidly
declared. But Mr Pleming indicated at the outset of the hearing before the Supreme
Court that, at any rate in relation to the latter failure if accepted, it would be possible
for a court to limit any invalidity to the extent of the arguable fishing rights. A later
draft declaration which Mr Pleming submitted showed that, if it were feasible to
contemplate a declaration of limited invalidity, the identification of what was
involved in Mauritian fishing rights could still be controversial. That is however, as
already indicated, another matter.
53. I would accept that, if there was a failure properly to consult about arguable
fishing rights, that could lead to a declaration of limited validity. In parenthesis, I
add that the case based on improper motivation can also be related to fishing rights,
since the reason why it is suggested that an MPA or no-take zone might preclude
resettlement is that it would deprive Chagossians of an important source of food and
Page 31
livelihood. I would therefore also have been attracted by (but do not, in the light of
my conclusion in para 49 above, need to consider further) the suggestion that
improper motivation might also have led to a limited declaration. Further, in either
case, I would be minded to accept the Secretary of State’s case that any declaration
could be related and limited to the no-take zone, rather than the MPA. Mr Pleming
objected that this was a new point, only raised by the Secretary of State after the
hearing. But it is a pure point of law and the Administrative Court itself pointed out
in para 75 of its judgment that the restrictions on fishing did not derive from the
MPA itself. On the contrary, the MPA stated that the implications for fishing would
be addressed in future legislation, and the only actual step taken regarding fishing
was to allow existing fishing licences to expire and to withhold further fishing
licences. The appellant’s real complaint can therefore be identified as being to the
current policy, in so far as it has been to refuse fishing licences giving effect to the
Mauritian fishing rights now recognised by the UNCLOS tribunal’s award. That is
essentially a limited complaint, which could, it seems to me, appropriately be
addressed by a limited declaration as to the invalidity of such a policy of refusal.
54. I must however revert to the case as it stands, however artificially, before the
Supreme Court, on the basis that the appellant’s only complaint is that there was, at
the time of the consultation, credible evidence that the United Kingdom had given
an undertaking to the Government of Mauritius to permit Mauritian fishing in the
territorial waters of the Chagos Islands (free of charge), that these arguable rights
should have been mentioned, that the consultation process was defective
accordingly and that the MPA, or (for reasons I have indicated) at least the no-take
zone, was invalid, at least to the extent that it excluded Mauritian fishing.
55. The UNCLOS tribunal in its award found that the United Kingdom was in
breach of its obligations under UNCLOS article 2(3) (“sovereignty over the
territorial sea is exercised subject to the Convention and to other rules of
international law”) and article 56(2), which reads, less ambiguously:
“In exercising its rights and performing its duties under this
Convention in the exclusive economic zone, the coastal State
shall have due regard to the rights and duties of other States and
shall act in a manner compatible with the provisions of this
Convention.”
The breaches so found concerned the relationship between the United Kingdom and
Mauritius. It was the tribunal’s view that, after a second meeting between United
Kingdom and Mauritian representatives on 21 July 2009, there remained
outstanding a number of unanswered issues, as well as information that the United
Kingdom promised to provide to Mauritius, but that, despite this, the United
Kingdom had in March 2010 elected to press ahead with the final approval and
Page 32
proclamation of the MPA without providing any convincing explanation for the
urgency with which it did this on 31 March and 1 April 2010.
56. The issues of both law and fact before the tribunal were, therefore, very
different from that now before the Supreme Court, which is narrowly focused on the
adequacy of the public consultation. It is unnecessary to go back in detail over all
the issues which were considered in the courts below. I can summarise the position
as it emerges, in my opinion, from the evidence and documents as follows. First, the
actual extent of inshore fishing by Mauritian vessels in territorial waters, after the
Chagossians left and until the no-take zone affected licensing, was always limited,
but it was significant for those involved, including the owners and Chagossian crew
members. The principal vessels involved were those of the Talbot brothers.
57. Secondly, there was credible evidence in the United Kingdom Government’s
possession (though not all of it necessarily available to Mr Roberts or Ms Yeadon)
as to the existence of Mauritian fishing rights dating back to undertakings given in
1965. However, thirdly, extensive legal advice (for which privilege has not been
waived) was taken on this subject during the period January to November 2009, and,
on the basis of that advice, both Mr Roberts and Ms Yeadon understood that
Mauritius “did not have legal rights to fish in BIOT territorial waters, which
prevented the United Kingdom Government from establishing an MPA, including a
complete no-take zone”. Fourthly, for that reason, “after considering the position
and receiving legal advice” Mr Roberts and Ms Yeadon “did not believe that
Mauritius or the Chagossians had, or might have had, any such rights”, and Ms
Yeadon in particular saw the 1965 undertaking as being “of a political, not legal,
nature”; and, as a result, no reference was made in the consultation document to any
such rights.
58. Fifthly, despite the appellant’s reliance on a paper prepared by Professor
Brownlie for and read at a United Kingdom-Mauritius meeting in January 2009,
containing at most only a fleeting suggestion of such rights, Mauritius never really
advanced such rights with any clarity at any time throughout 2009 to March 2010,
referring instead constantly to its sovereignty claim and refusing on that basis to
engage with any consultation. In particular, it made no suggestion of any such rights
in the second United Kingdom-Mauritius meeting in July 2009 or in a submission
to the House of Lords in February 2010. The Administrative Court correctly so
concluded (para 158).
59. Sixthly, Mauritius had the opportunity of responding to the consultation and
making the point that it had fishing rights, but did not avail itself of this. Chagossians
and others also had the opportunity of responding, and some did:
Page 33
i) Mr Gifford and Chagossians resident in Crawley made representations
against any no-take ban in the territorial waters, on a basis summarised as
follows:
“Very limited fishing anyway, so limited environmental benefit
from a ban.
Could have significant consequences for the Chagossians.
What effect on the Chagossian community?
Should not be possible to use MPA as a way of entrenching no
right of abode.
Inconsistent, as far as concerns fishing, with the law of the sea
(UNCLOS).”
ii) The Diego Garcian Society also representing Chagossians wrote in
favour of:
“4th option, a no-take marine reserve for the whole of the
territorial waters and EPPZ/FCMZ with exceptions for certain
types of pelagic fishery (eg tuna) and artisanal fishing by Diego
Garcians and other Chagossian fishing projects only.”
iii) The members of the Chagos Refugees Group, led by the appellant and
joined by Mr Gifford as their lawyer submitted that the consultation process
was “premature (and flawed)” as “putting the cart before the horse”, inter
alia, because it needed to be with the consent of the Chagossians, rather than
pushed ahead unilaterally, because the sovereignty of Mauritius was also
involved and because:
“[There] Are fishing rights which they need in their sea.”
and
“Need human rights first – wrong to come before ECHR
judgment.”
Page 34
60. The Divisional Court observed (para 160):
“The potential impact of an MPA on commercial fishing was
squarely raised and must have been obvious to all concerned.
The responses from fishing interests show that the impact was
clearly understood. If anyone wished to raise an argument that
a ban on fishing would be incompatible with Mauritian fishing
rights, they were free to do so. … Against that background, the
omission of express reference to the point in the consultation
document itself is in our view a matter of no significance. It did
not affect the fairness of the consultation or the validity of the
MPA decision taken following that consultation.”
The Court of Appeal rejected the appeal on this ground, largely for the same reasons
given by the Divisional Court (para 108), and specifically agreed with the last two
sentences quoted above (para 111).
61. The case open to the appellant is that there was credible evidence of
Mauritian fishing rights, deriving from an undertaking given by the United Kingdom
Government to the Government of Mauritius and subsequently evidenced by
preferential treatment given to Mauritius registered or owned vessels. Approaching
this case in the light of the matters which I have mentioned, I have no hesitation in
agreeing with the assessment of both courts below that the absence of any mention
of such evidence or of the arguable fishing rights to which it related does not
undermine the consultation, make it unfair or justify setting it or any decision
consequent upon it aside. It was obvious, as the Court of Appeal also said (para 112),
that at least one of the options would affect inshore fishing, and threaten the
livelihood of vessels which had previously been licensed to fish in territorial waters.
62. It was open to Mauritius or anyone affected to raise this objection in response
to the consultation. Mauritius notably did not respond at all. Others made various
points about the option of a no-take ban in territorial waters and/or the loss of alleged
fishing rights. It would be wholly inappropriate to treat the consultation process as
invalid, when the party to whom the alleged rights belonged (the Republic of
Mauritius) had full opportunity of asserting them in response to the consultation,
and when others indirectly involved actually took advantage of the opportunity of
raising them. Finally, there is also no reason to believe that the ultimate decision
would or could have been any different, if the consultation had specifically drawn
attention to the possible existence of such fishing rights.
Page 35
Conclusion
63. For these reasons, I would grant permission to appeal on the issue of fishing
rights, but dismiss the appeal both on the issue of improper motivation and on the
issue arising from the failure to mention the possible Mauritian inshore fishing rights
in the consultation document before the decision to declare an MPA and a no-take
zone. I repeat that the latter issue has been before the Supreme Court solely on the
basis that there was convincing evidence that such Mauritian fishing rights existed.
The significance of the finding in the UNCLOS tribunal’s arbitration award dated
18 March 2015 that such fishing rights do actually exist is not before us. In
particular, whether that finding is capable of having any and if so what effect in
domestic law, as regards either the MPA or the no-take zone is not before us.
LORD SUMPTION: (with whom Lord Neuberger, Lord Clarke and Lord
Reed agree)
64. I agree with the disposal proposed by Lord Mance and with his reasons. I add
a judgment of my own to address the status and use in evidence of information about
the contents of diplomatic correspondence which has come into the hands of third
parties. This question is the subject of the Secretary of State’s cross-appeal, and
raises points of some general importance. The leaking of governmental documents
and their widespread distribution through the internet is a phenomenon of our time.
The status of leaked documents in the public domain is an issue which is likely to
recur.
65. The basis in modern international law for the protection of the documents of
a diplomatic mission is article 24 of the Vienna Convention on Diplomatic Relations
(1961), which provides that “the archives and documents of the diplomatic mission
shall be inviolable at any time and wherever they may be.” Article 27.2, which
provides for the inviolability of “the official correspondence of the mission”, was
added (as part of an article about freedom of communication) in order to deal with
the problem of the interception en route of communications not made by diplomatic
courier or diplomatic bag, which would not necessarily be part of the mission’s
archives or documents at the time of interception: see ILC Yearbook 1958, i, 143,
paras 34-35, and Denza, Diplomatic Law, 4th ed (2016), 189-190. These provisions
have the force of law by statute in the United Kingdom, under the Diplomatic
Privileges Act 1964.
66. Any issue of this kind is likely to give rise to two fundamental questions. The
first is how a document is to be identified as part of “archives and documents” of a
diplomatic mission. The second is what it means to describe such a document as
“inviolate”.
Page 36
67. Traditionally, the protection accorded to a mission’s documents was viewed
as a particular aspect of the inviolability of its premises and the diplomatic bag, and
of the immunities of diplomatic couriers. This was why, upon a cessation of
diplomatic relations, when the premises of the mission would become entitled to a
lesser degree of protection, the practice was to destroy the mission’s archives or
entrust them to a protecting power as the diplomats left. As a general rule, the
movable property of a mission was protected only so far as it was located on its
premises, and indeed this is still the position today: see article 22.3 of the
Convention. Before the Vienna Convention came into force in 1964, the status of a
mission’s archives located outside diplomatic premises was therefore uncertain. To
resolve that uncertainty, the words “at any time and wherever they may be” were
added to article 24 at the United Nations Conference on Diplomatic Intercourse and
Immunities which approved the final text of the Convention. The archives and
documents of a mission were now to be protected as such and not only by virtue of
their presence in a protected location or in protected hands. As the French delegate
explained when introducing the amendment, “the object was to establish clearly the
absolute inviolability of the mission’s archives and documents as such, and not
merely as part of the furniture of the mission”: Official Records, i, (1962), 148 (para
2).
68. A diplomatic mission is not a separate legal entity. Its archives and
documents belong to the sending state. But the protection of article 24 is limited to
the archives and documents of the mission. It does not extend to those of any other
organ of the sending state. The latter may be protected by other rules of law: for
example by the criminal law, the law of confidence or the law of copyright. But they
are not protected by the Vienna Convention. Against that background, what is it that
identifies a document as belonging to the archives or documents of the mission, as
opposed to some other organ of the sending state? (I will return below to the
particular problems raised by their unauthorised possession by third parties). The
test is not their location, for they are protected “wherever they may be”. It must
necessarily be whether they are under the control of the mission’s personnel, as
opposed to other agents of the sending state. The draftsmen of article 24 were
thinking in terms of physical documents. But retrievable electronic files are also
documents and may be part of an archive. The same protection therefore applies to
them, provided that access to them is under the control of the mission’s personnel,
whether directly or by virtue of the terms on which the mission transmitted the
document to another governmental entity. This appeal is not the occasion for
determining the exact circumstances in which a mission will be treated as having
control over a document by virtue of the terms on which it transmits it, because there
is no suggestion that the US diplomatic cable was released on terms. The relevant
point for present purposes is that because the designation of a document as that of
the mission depends on control, its origin and content is in itself irrelevant. Thus the
archives and documents of a mission may include original or copy documents which
emanate from some other organ of the sending state or from a third party, in which
case so far as they are under the control of the mission’s personnel they will enjoy
Page 37
the same protection as the mission’s internally generated documents.
Correspondingly, copy documents or originals emanating from the mission may be
found in the archives of another organ of the state (say, its foreign ministry) where
they will not enjoy the protection of article 24.
69. “Inviolability” is a term variously used in the Convention about diplomatic
premises (articles 22, 30), documents (articles 24, 30), official correspondence
(article 27), diplomatic personnel (articles 27, 29, 31, 38, 40) and personal property
(article 30). But it is a protean word, whose meaning is necessarily sensitive to its
context and purpose. It used to be thought that all diplomatic privileges and
immunities reflected the extra-territorial character of a foreign sovereign and, by
extension, of its diplomatic representatives. But in the modern law, its justification
is pragmatic and wholly functional. In the words of the fourth recital to the
Convention, it is intended “to ensure the efficient performance of the functions of
diplomatic missions as representing States.” It has been recognised ever since Vattel
(Droit des Gens, Bk IV, 123), the first writer to deal with the question, that the basis
of the rule of international law is that the confidentiality of diplomatic papers and
correspondence is necessary to an ambassador’s ability to perform his functions of
communicating with the sovereign who sent him and reporting on conditions in the
country to which he is posted. The purpose of article 24 in protecting a mission’s
archives qua archives, and not as mere items of property, is to protect the
confidentiality of the mission’s work, without which it is conceived that it cannot
effectively represent the sending state. In particular, it is “to protect the privacy of
diplomatic communications”: Shearson Lehman Bros Inc v Maclaine Watson & Co
(International Tin Council intervener) (No 2) [1988] 1 WLR 16, 27G (Lord Bridge).
The confidentiality of such documents does not depend on their particular contents
or subject-matter, which is not a matter which a domestic court could properly
examine, but on their status as part of the archives and documents of a diplomatic
mission protected by article 24 of the Convention.
70. Dr F A Mann, a notable opponent of the larger claims of international law in
the domestic legal world, was of the opinion that the inviolability of a mission’s
archives and documents served only to protect them from interference by the
receiving state, for example by seizing them or allowing them to be the subject of
compulsory legal process: “‘Inviolability’ and other Problems of the Vienna
Convention on Diplomatic Relations”, Further Studies in International Law (1990),
326-338. A rather similar view was put forward at the United Nations Conference
preceding the adoption of the Convention, as a reason for rejecting the addition of
the words “wherever they may be”, but it is clear that this objection did not find
favour with the majority: see Official Records, i (1962), 149, 150 (paras 9, 22). The
Court of Appeal, however, appear (paras 39-42, 58-61) to have adopted it in the
present case. I agree with Lord Mance that so narrow an approach is not supported
by the generality of commentators. It is also, in my view, inconsistent with the
concept of inviolability. Whatever may be involved in that concept, it is clear that
Page 38
article 24 is not only concerned with the duties of the receiving state but describes
the status of a mission’s archives and documents erga omnes. It is the obligation of
the receiving state to give effect to that status. That obligation, extends beyond
simply refraining from violating it itself. As the International Law Commission
observed in its report of 1957 to the United Nations General Assembly, “the
receiving State is obliged to respect the inviolability itself and to prevent its
infringement by other parties”: ILC Yearbook 1957, ii, 137. It was on this basis that
the International Court of Justice held in US Diplomatic and Consular Staff in
Tehran (1980) ICJ Rep, 3, at paras 61-63, 66-67, 69, 77 that the failure of the
government of Iran to intervene to prevent or terminate the occupation of the US
embassy in Tehran by militants was a violation not only of articles 22 (premises)
and 29 (diplomatic agents), which impose express obligations on the receiving state
to protect against action by third parties, but also of article 24 (archives and
documents), which contains no express provision of that kind.
71. I make this point in order to correct what I regard as an error of the Court of
Appeal. But it is not decisive of the present appeal, which is concerned with the
legitimacy of a court receiving into evidence a document emanating from the
archives and documents of a diplomatic mission. If this is a violation of article 24,
the violation does not consist only in the receiving state failing to protect the
archives and documents against third party action. The court is itself an organ of the
receiving state, and the violation consists also in its receipt and use of the material.
No one doubts that if the document has been communicated to a third party with the
actual or ostensible authority of the responsible personnel of the mission, any
immunity in respect of it is lost. In the form communicated, it is no longer the
mission’s document: Shearson Lehman Bros Inc v Maclaine Watson & Co
(International Tin Council intervener) (No 2) [1988] 1 WLR 16, 27-28. But what if
the document, or more plausibly a copy of the document or information about it, has
come into the hands of a third party without authority? Subject to an important
reservation (see below) I think that in that case there is a violation if the courts of
the receiving state receive it in evidence. This is not, as is sometimes suggested,
because of the words “wherever they may be”. They have a different purpose, as I
have explained. It is because of what is involved in the notion of inviolability, and
in the receiving state’s obligation to give effect to it. The real objection is to the
receiving state employing them for a purpose inconsistent with their confidential
status.
72. Article 25 of the Convention, which is not one of the articles scheduled to the
Diplomatic Privileges Act but informs the interpretation of those that are, requires
the receiving state to “accord full facilities for the performance of the functions of
the mission”. As Professor Denza observes (Diplomatic Law, 4th ed (2016), 170),
article 25 is not an additional source of rights but an ancillary provision intended to
make effective those facilities which are assured by other provisions of the
Convention. Thus it has been held that as a matter of public international law it
Page 39
prevents the courts of the receiving state from acting “in such manner as to obstruct
the mission in carrying out its functions”, for example by permitting the judicial
enforcement of judgments against embassy property: Alcom Ltd v Republic of
Colombia [1984] AC 580, 599. A similar view was expressed by the German
Constitutional Court in the Philippine Embassy Bank Account Case (1977) 46
BVerfGE 342, 395, 397-398 and by the United States District Court for the District
of Columbia in Liberian Eastern Timber Corp v Government of the Republic of
Liberia (1987) 89 ILR 360, 363.
73. In my opinion, similar considerations apply to the reception in evidence by
the courts of the receiving state of confidential documents obtained directly or
indirectly through a violation of a mission’s archives and documents. Article 24
gives effect to the confidential status of these documents, which is necessary to the
functioning of the mission. Their inviolability necessarily imports that the state will
take reasonable steps to prevent the violation of that status and will not itself be party
to its violation. In Rose v The King [1947] 3 DLR 618, a decision of the Appellate
Division of the Supreme Court of Quebec, the appellant had been convicted on
charges of conspiracy with (among others) members of the embassy of the Soviet
Union in Ottawa to violate the provisions of the Official Secrets Act. The evidence
against him had included documents abstracted by a defector without authority from
the files of the Russian military attaché and delivered to the Canadian government.
The appeal was dismissed on the controversial ground that diplomatic immunity was
subject to an exception for cases where embassy personnel had conspired against
the security of the receiving state. But, subject to this supposed exception,
Bissonnette J, in a judgment with which the rest of the court concurred, considered
that as a matter of customary international law no court had “jurisdiction or
competence … to take cognizance” of documents emanating from a foreign embassy
without the consent of the sending state. At p 646, he observed:
“International law creates a presumption of law that documents
coming from an embassy have a diplomatic character and that
every court of justice must refuse to acknowledge jurisdiction
or competence in regard to them.”
Fayed v Al-Tajir [1988] QB 712 was a decision of the Court of Appeal in England
in a defamation action. The defendant, who was described as the de facto
ambassador of the United Arab Emirates in London, had made the statements
complained of in internal correspondence of the embassy, copied to the foreign
minister. The relevant letter was subsequently communicated to the plaintiff by its
recipient, a counsellor at the embassy, without authority. The issue was held to be
non-justiciable, and the letter subject to absolute privilege. But Kerr LJ (with whom
Croom-Johnson LJ agreed) considered that the letter was also protected by article
24 of the Vienna Convention. In Shearson Lehman Bros Inc v Maclaine Watson &
Co (International Tin Council intervener) (No 2) [1988] 1 WLR 16, the House of
Page 40
Lords considered the deployment in evidence of copies of documents of the
International Tin Council which had been obtained by third parties. By statute, the
Council’s official archives enjoyed the same protection as those of a diplomatic
mission. The Appellate Committee held that the question depended on whether the
third party had obtained them with the authority of the Council or in circumstances
where he could reasonably assume authority. On the assumption that a document
forming part of the Council’s archives had been communicated to the third party
without authority, Lord Bridge (with whom the rest of the Appellate Committee
agreed) held at p 27G-H that it would be
“wholly inimical to the underlying purpose that the judicial
authorities of the host state should countenance the violation by
permitting the violator, or any one who receives the document
from the violator, to make use of the document in judicial
proceedings.”
Cases in other jurisdictions are rare, but it may be noted that the German Federal
Court has applied a similar principle to evidence derived from the monitoring of
telephone lines contrary to the corresponding principle of the Vienna Convention on
Consular Relations (1963): BGHSt 36, 396 (4.4.1990).
74. There is, however, a reservation of some importance which follows from the
nature of the protection accorded by article 24 of the Convention, as I have analysed
it. It concerns documents which, although indirectly obtained without authority from
the archives and documents of a mission, have entered the public domain. By that I
mean that they have been disclosed not simply to a few people or in circumstances
where it would take some significant effort on the part of others to discover their
contents, but that they are freely available to any one who cares to know. This was
not a question considered in any of the cases cited in the previous paragraph, and
may not have arisen on the facts.
75. In principle, as I have explained, article 24 protects documents under the
control of the mission, but not documents which never were or are no longer under
its control. The extension of the protection to documents under a mission’s control
which (or the contents of which) have come into the hands of third parties without
authority is necessary in order make article 24 effective by preserving the
confidentiality of unlawfully communicated documents in accordance with the
article’s purpose. The English courts cannot, consistently with the privileges and
immunities of a diplomatic mission, allow themselves to be made the instrument by
which that confidentiality is destroyed. But once the documents have been published
to the world, it has already been destroyed. There is nothing left to be preserved of
the interest protected by article 24. It is arguable that where a document has been
put into the public domain by the very person who has violated the archives and
Page 41
documents of the mission, he should not be allowed to rely on the fact, although the
difficulties of the argument have often been pointed out, for example by Lord Goff
in Attorney General v Guardian Newspapers (No 2) 1990] 1 AC 109, 286-287. But
that is a refinement which does not arise on the facts in the present appeal, and I
need not consider it further.
76. The Secretary of State’s cross-appeal faces, as it seems to me, two distinct
and equally insuperable difficulties. The first is that, although the cable relied upon
by Mr Bancoult must have emanated directly or indirectly from a US government
source, the Secretary of State is unable to establish that it was obtained by Wikileaks,
and through them by The Guardian and The Telegraph, from the archives of the US
embassy in London as opposed to some other unprotected organ of the US
government. He has not therefore established the essential factual foundation for
reliance on article 24 of the Vienna Convention. Secondly, even if the cable had
come from the archives of the US embassy, the document has entered the public
domain. Mr Bancoult was not party to the leaking of the cable and has not put it in
the public domain. He has merely made use of what is now the common knowledge
of any one who cares to interest himself in these matters. In my opinion it cannot
possibly be a violation of the US embassy’s archives or documents for Mr Bancoult
to make use in litigation of the common knowledge of mankind simply because it
was once confidential to the US embassy in London. Nor could it be a violation for
the English courts to take cognizance of a document which has escaped from the
control of the US embassy and whose confidential status long ago came to an end.
77. It was suggested to us that even if there was no remaining confidence in the
document or its contents, the mission’s archives and documents would be violated
by making findings about its authenticity, since those findings would inevitably
increase their interest and value. For the same reason it was suggested that to do this
without the consent of the sending state would amount to the exercise of compulsion.
I do not accept this. If the contents of the document are no longer protected from
public scrutiny because they are in the public domain, I cannot see that any greater
protection can attach to inferences drawn from those same contents, whether about
its authenticity or anything else.
78. In those circumstances, I would dismiss the Secretary of State’s cross-appeal,
albeit for reasons somewhat different from those of the Court of Appeal.
Page 42
LORD KERR: (dissenting)
Improper motive
(i) Background
79. The only legitimate purpose for introducing a marine protected area (MPA)
around the Chagos Islands was to protect marine life. If it could be demonstrated
that this was not the reason that it was introduced, or that there was a collateral
purpose for its introduction, the establishment of an MPA would be unlawful.
80. It is a centrepiece of the appellant’s case that his counsel was denied the
opportunity to pursue a line of cross examination that would have revealed an
ulterior motive for the MPA. This claim prompts the need for a careful examination
of the circumstances in which Mr Pleming’s cross examination of Mr Roberts and
Ms Yeadon before the Divisional Court was curtailed. It is also necessary to look
closely at how this matter was considered by the Court of Appeal.
81. The appellant also argues, however, that the refusal to admit a critical item
of evidence meant that the Divisional Court did not assess that evidence for its
potential to undermine the case for the respondent.
82. Before considering these arguments, one must be clear about the importance
of that item of evidence, a cable which, the appellant claims, was sent on 15 May
2009 by the United States Embassy in London to departments of the US Federal
Government in Washington. That cable, it is claimed, contained a record of what
was said at a meeting on 12 May 2009 between a United States political counsellor,
Mr Richard Mills, and Mr Colin Roberts, Head of Overseas Territories Directorate,
Commissioner for British Indian Ocean Territory (BIOT) and Ms Joanne Yeadon,
Administrator of BIOT and Mr Ashley Smith, the Ministry of Defence’s Assistant
Head of International Policy and Planning. As the Court of Appeal said (at para 10
of its judgment), the cable is “the only near-contemporaneous record of the
meeting”. It purports to have been composed three days after the meeting took place.
If it is authentic, or, perhaps more pertinently, if there is no reason to doubt its
authenticity, it is, at least potentially, a significant source of evidence about the
reasons for making the MPA.
83. The first paragraph of the cable stated that a senior Foreign and
Commonwealth Office official (Mr Roberts) had assured his American counterparts
that the establishment of the MPA would “in no way impinge” on the US
government’s use of the British Indian Ocean Territory (BIOT). In that context, Mr
Page 43
Roberts is said to have asserted that “the BIOT’s former inhabitants [the Chagos
Islanders] would find it difficult, if not impossible, to pursue their claim for
resettlement on the islands if the entire Chagos Archipelago were a marine reserve.”
84. It is, of course, understandable that Mr Roberts would want to make it clear
that the establishment of the MPA would not affect America’s use of BIOT as a
military base. But, whether that also required the statement that the Chagos Islanders
would find it difficult to resettle if the entire Chagos Archipelago became a marine
reserve is more imponderable. After all, many of the islands in the archipelago were
not required by the US for their military activities in the area. The obvious question
arises, therefore, why it was necessary to state that the MPA would have the effect
of preventing resettlement in any of the islands. It has been pointed out that this issue
was not raised in argument in the Supreme Court. That, as it seems to me, is beside
the point. The unalterable fact is that no evidence has been produced which
established that the entire archipelago was required for American military activities.
What was at stake here was the denial of the opportunity to the Chagos Islanders to
return to their ancestral homeland and whether that denial was required in order to
achieve the reasonable requirements of the USA. That circumstance should concern
this court, whether or not it was raised in argument, when we are asked to consider
the impact which the introduction of the cable in evidence might have had on the
outcome of the proceedings before the Divisional Court. There was no evidence that
the continuation of military activities required the depopulation of all the islands. In
those circumstances, the reason that the civil servants advised the minister to make
a MPA was highly relevant. It is therefore not only legitimate for, it is required of,
a court examining the reasons for making the MPA to address the question whether
the minister has been properly appraised of all material factors. If it was wholly
unnecessary to keep uninhabited the islands other than Diego Garcia, the motives of
the civil servants in recommending that course were directly relevant to the question
of why they had advocated the establishment of the MPA. Was it to frustrate any
further campaign to allow the Chagos Islanders to return to their homeland? To
dismiss and treat as irrelevant this consideration simply because it did not feature in
the appellant’s argument cannot be right. It has been pointed out that, in the original
exchange of notes between the United States and United Kingdom in 1966 it was
stipulated that all of the BIOT be “set aside for defence purposes” and that any
significant change of the BIOT’s status that could impact the BIOT’s strategic use
would require US consent. But what of that? Here we are examining the motivation
for the recommendation of the establishment of an MPA. Was it for the purpose of
protecting marine life? Or was it in order to ensure that the Chagossians’ campaign
could go no further and that the Americans’ desire to have all the BIOT preserved
for their use (assuming that that desire had persisted since 1966) would be fulfilled?
It is no answer to the charge of improper motive as to the reasons for advocating the
establishment of the MPA, that this chimed with the wishes of the USA.
Page 44
85. At para 7 of the cable, Mr Roberts is recorded as saying that a way had to be
found to “get through the various Chagossian lobbies”. He is said to have admitted
that the British government was under pressure from the Chagos Islanders to permit
resettlement of the outer islands. Further, Mr Roberts is recorded as having observed
that, according to the British government’s current thinking, there would be “no
human footprints” and no “Man Fridays” on BIOT’s uninhabited islands. In the
words of the cable, Mr Roberts asserted that “establishing a marine park would, in
effect, put paid to resettlement claims of the archipelago’s former residents”. When
it was suggested by the Americans present at the meeting that the advocates of
Chagossian resettlement continued vigorously to press their case, Mr Roberts
replied that the UK’s environmental lobby was “far more powerful than the
Chagossians’”.
86. Comment by the author of the cable is littered with observations about the
possible resettlement of the Chagos Islands. Reference is made to the possible
“appeal” by the Chagossians to the European Court of Human Rights (ECtHR) and
the British government’s assurance that this would be firmly resisted. This is the
pervasive theme of the meeting. And the cable also stated that after the meeting had
ended, Ms Yeadon urged US embassy officials to affirm that the US government
required the entire BIOT for defence purposes. She is recorded as having said that
“making this point would be the best rejoinder to the Chagossians’ assertion that
partial settlement of the outer islands would have no impact on the use of Diego
Garcia”. This is important. There is no evidence that America did need the entire
BIOT. Why, if she did, did Ms Yeadon urge the US government to make this claim,
if not in order to thwart the Chagos Islanders’ aspiration to return to at least part of
their homeland?
87. The final two paragraphs of the cable contain significant observations in
relation to the importance placed on the possibility of resettlement. These are the
relevant passages from those paragraphs:
“Regardless of the outcome of the ECtHR case, however, the
Chagossians and their advocates, including the ‘All Party
Parliamentary Group on Chagos Islands (APPG)’, will continue to
press their case in the court of public opinion. Their strategy is to
publicise what they characterise as the plight of the so-called
Chagossian diaspora, thereby galvanising public opinion and, in their
best-case scenario, causing the government to change course and
allow a ‘right of return.’ They would point to the government’s recent
retreat on the issue of Gurkha veterans’ right to settle in the UK as a
model …
Page 45
We do not doubt the current government’s resolve to prevent the
resettlement of the islands’ former inhabitants, although as FCO
Parliamentary Under-Secretary Gillian Merron noted in an April
parliamentary debate, ‘FCO will continue to organise and fund visits
to the territory by the Chagossians.’ We are not as sanguine as the
FCO’s Yeadon, however, that the Conservatives would oppose a right
of return. Indeed, MP Keith Simpson, the Conservatives’ Shadow
Minister, Foreign Affairs, stated in the same April parliamentary
debate in which Merron spoke, that HMG ‘should take into account
what I suspect is the all-party view that the rights of the Chagossian
people should be recognised, and that there should at the very least be
a timetable for the return of those people at least to the outer islands,
if not the inner islands.’ Establishing a marine reserve might, indeed,
as the FCO’s Roberts stated, be the most effective long-term way to
prevent any of the Chagos Islanders’ former inhabitants or their
descendants from resettling in the BIOT.”
88. It is plain, as I have said, that a dominant theme of the meeting was that the
establishment of the MPA would prevent any resettlement of the islands. It certainly
preoccupied the Americans and it was a recurring refrain in the assurances that Mr
Roberts and Ms Yeadon are said to have given. Viewed in isolation, the cable
certainly creates a suspicion that this was a motivating factor in the decision to
declare an MPA.
89. The Divisional Court concluded that the cable was not admissible in
evidence. It nevertheless permitted Mr Pleming to cross examine Mr Roberts and
Ms Yeadon about its contents on the basis that its authenticity was assumed but not
established. The Court of Appeal considered that the cable was admissible but held
that, even if it had been admitted, it would have made no difference to the conclusion
of the Divisional Court that improper motive had not been established.
90. The arguments about admissibility have been fully canvassed in the
judgments of Lord Mance and Lord Sumption and need not be repeated here. I agree
with Lord Mance that it has not been established that the cable remained part of the
archive of the London mission and, on that account, that the status of inviolability
can no longer be claimed. I also agree with Lord Sumption that it cannot be a
violation of the US embassy’s archives to use in litigation a document which has
entered the public domain.
91. One must keep in mind that the exclusion of the cable had two distinct effects.
First, it restricted the cross examination of Mr Roberts and Ms Yeadon. It was not
possible to challenge them on the basis that the document was genuine and was to
be taken as having recorded their statements at the meeting and, in Ms Yeadon’s
Page 46
case, subsequently. Being able to confront a witness with statements that she or he
previously made which are inconsistent with their testimony is one of the most
important forensic tools in the cross-examiner’s armoury. Technically, Mr Pleming
was bound by the answers given by the witnesses to questions based on the cable’s
contents. This would not have been the case if the cable had been admitted in
evidence.
92. It has been suggested that the evidence given by Mr Roberts about the
meeting on 12 May and Ms Yeadon’s own evidence “give a picture which is
generally and substantially consistent with that presented by the cable”. Much of the
evidence that they gave coincides with the contents of the cable, it is true. But in
crucial areas it is incontestably inconsistent. It is not in the least surprising that much
of the evidence from the civil servants and the contents of the cable were found to
coincide. Indeed, it was part of Mr Pleming’s admitted strategy to point to that
coincidence in order to establish the cable’s authenticity. But to imply that there
were not highly significant differences, differences which, moreover, touched on the
very issue at stake in this case, is unrealistic. Mr Roberts denied using the
expression, “Man Fridays”. Ms Yeadon denied that Mr Roberts had said that
“establishing an MPA would in effect put paid to resettlement claims”. This is
directly contrary to the contents of the cable. Indeed, it is directly contrary to the
evidence of Mr Roberts himself, for he is recorded as having accepted that he did
say to the US officials that the establishment of an MPA would in effect put paid to
the resettlement claims. The opportunity to exploit these differences if the cable had
been admitted in evidence, as it should have been, cannot be airily dismissed. The
entire cursus of the cross examination (and consequently the conclusions that might
have been reached on the critical issue) could have been radically different.
93. The second consequence of excluding the cable from evidence was that it did
not rank as independent material with the potential to act as a significant
counterweight to the FCO witnesses’ testimony. If the Divisional Court had
admitted the cable in evidence, it would have to be pitted as an item of evidence
which was in many respects directly contrary to the testimony of Mr Roberts and
Ms Yeadon. The court would have been required to assess the veracity and reliability
of their claims against the contemporaneous evidence provided by the cable. As it
was, the Divisional Court merely theorised about whether Mr Pleming’s cross
examination would have been more effective if the cable had been admitted in
evidence. It did not consider the cable’s contents for their capacity to discredit the
testimony of the two FCO witnesses.
(ii) The curtailing of cross examination
94. Dealing with the impact of the exclusion of the cable from evidence, the
Court of Appeal said at para 88:
Page 47
“[Our] outline of the cross-examination of both witnesses does
not capture its full flavour. It was extensive and searching. In
our judgment, Mr Pleming was not disadvantaged by not being
able to put questions on the basis that the cable was authentic
and a true record of what was said at the meeting of 12 May
2009. He tested the evidence of Mr Roberts and Ms Yeadon on
the basis of the cable. It is true that he was not able to put
questions like: ‘have you any explanation for the fact that you
are recorded as having said X when you deny having said it?’
But it is unrealistic to suppose that, if Mr Pleming had been
able to put such questions, this would have materially affected
the thrust or course of the cross-examination or of the answers
that were given. The Divisional Court was right to say that the
dividing line between questions which its ruling permitted and
those which it did not permit was ‘fine’. In our judgment, the
inhibition on Mr Pleming’s questions can have had no material
effect on the course or the outcome of the cross-examination.
Mr Pleming was able to, and did in fact, explore the accuracy
of the contents of the cable with both witnesses. In particular,
he probed the purpose of the MPA and whether what was
purportedly recorded in the cable as having been said had in
fact been said.”
95. It is true that there was extensive cross examination of Mr Roberts and Ms
Yeadon based on the contents of the cable. The difference between probing
witnesses’ accounts and confronting them with admissible evidence which flatly
contradicts their accounts should not be underestimated, however.
96. As the Court of Appeal observed (in para 80 of its judgment), Mr Roberts
refused to answer questions as to whether the contents of the cable were accurate.
This was in reliance on the government’s policy of “neither confirm nor deny”
(NCND) policy. It appears to have been accepted without demur by the Divisional
Court and the Court of Appeal that NCND justified this stance. For my part, I would
not be disposed to accept that this policy could be resorted to in order to avoid
answering a relevant question with which the court was required to deal. Given that
the Divisional Court had decided that the authenticity of the cable should be
assumed, it appears to me that Mr Roberts should have been required to answer as
to whether what was recorded in the cable faithfully recorded what had taken place.
As it happens, of course, Mr Roberts did address the question whether some parts
of the cable were accurate – see para 81 of the Court of Appeal’s judgment.
97. What is clear, in my view, is that Mr Roberts could not have relied on NCND
if the cable had been admitted in evidence. Nor could he have refused to deal with
what the Court of Appeal described in para 82 of its judgment as “the ultimate
Page 48
question”: whether he had an explanation for the fact that he was recorded as having
made certain statements which he denied having uttered. In deciding whether being
required to answer such a question could have made a difference to the outcome of
the Divisional Court case, one must consider the range of possible responses that
might have been given. (In this context, Lord Mance has accepted for the purposes
of the appeal that the appropriate question is whether the admission of the cable
could have made a difference – see para 23 of his judgment. For reasons that I will
give later in this judgment, I consider that this is indubitably the correct test in this
instance.)
98. If one imagines that Mr Roberts’ answer to the “ultimate question” was that
he had no explanation, or even, when pressed, that the cable was indeed accurate
and that he recanted his initial disavowal of what he was recorded as having said, it
is not difficult to conclude that this could have made a significant difference to the
court’s assessment of him as a reliable witness. The Court of Appeal did not consider
the range of possible responses that Mr Roberts might have given to this question.
In my opinion, it should have done. And if it had done, it could not have reached the
conclusion that it did.
(iii) The capacity of the cable to counter the FCO evidence
99. The Court of Appeal dealt cryptically with the second issue, namely, the
status of the cable as independent material with the potential to act as a
counterweight to the FCO witnesses’ testimony. At para 89, the court said, “[w]e do
not accept that there is a realistic possibility that the court’s assessment of the
evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had
been formally admitted in evidence as an authentic document”.
100. Case law emphasises the importance of documentary evidence in assessing
the credibility of oral witnesses. In Onassis v Vergottis [1968] 2 Lloyd’s Rep 403
Lord Pearce, having reviewed the various reasons that a witness’s oral testimony
might not be credible, stated, “all these problems compendiously are entailed when
a judge assesses the credibility of a witness; they are all part of one judicial process.
And in the process contemporary documents and admitted or incontrovertible facts
and probabilities must play their proper part.” In Armagas Ltd v Mundogas SA (The
Ocean Frost) [1985] 1 Lloyd’s Rep 1, 57 Robert Goff LJ made this observation:
“It is frequently very difficult to tell whether a witness is telling
the truth or not; and where there is a conflict of evidence …
reference to the objective facts and documents, to the
witnesses’ motives, and to the overall probabilities, can be of
very great assistance to a judge in ascertaining the truth.”
Page 49
101. That approach was approved by the Privy Council in Grace Shipping Inc v
CF Sharp & Co (Malaya) Pte Ltd [1987] 1 Lloyd’s Rep 207 and applied in a number
of subsequent cases. For example, in Goodman v Faber Prest Steel [2013] EWCA
Civ 153, the Court of Appeal held that the trial judge had erred in accepting a
personal injury claimant’s evidence of pain without dealing with contradictory
documentary evidence and explaining why the claimant’s evidence was to be
preferred. Moore-Bick LJ applied the approach of Robert Goff LJ and stated that
“memory often plays tricks and even a confident witness who honestly believes in
the accuracy of his recollection may be mistaken. That is why in such cases the court
looks to other evidence to see to what extent it supports or undermines what the
witness says and for that purpose contemporary documents often provide a valuable
guide to the truth”. He concluded that:
“[O]ne is left with the clear impression that [the judge] was
swayed by Mr Goodman’s performance in the witness box into
disregarding the important documentary evidence bearing on
what had become the central question in the case. It may have
been open to her to prefer what he had said in the witness box,
but if she was minded to do so it was incumbent on her to deal
with the documentary evidence and explain why Mr
Goodman’s oral evidence was to be preferred.”
102. It is not to be suggested that the Divisional Court ignored or disregarded the
“important documentary evidence” which the cable constituted. But if it had
admitted the cable in evidence, as should have happened, the contrast between some
of its contents and the evidence of Mr Roberts and Ms Yeadon would have been
starker. The need to confront the discrepancy between the two could not have been
avoided.
103. Although said in relation to commercial litigation, I consider that the
observations of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013]
EWHC 3560 (Comm), paras 15-22 have much to commend them. In particular, his
statement at para 22 appears to me to be especially apt:
“… the best approach for a judge to adopt … is, in my view, to
place little if any reliance at all on witnesses’ recollections of
what was said in meetings and conversations, and to base
factual findings on inferences drawn from the documentary
evidence and known or probable facts. This does not mean that
oral testimony serves no useful purpose – though its utility is
often disproportionate to its length. But its value lies largely, as
I see it, in the opportunity which cross-examination affords to
subject the documentary record to critical scrutiny and to gauge
Page 50
the personality, motivations and working practices of a witness,
rather than in testimony of what the witness recalls of particular
conversations and events. Above all, it is important to avoid the
fallacy of supposing that, because a witness has confidence in
his or her recollection and is honest, evidence based on that
recollection provides any reliable guide to the truth.”
104. The intellectual exercise on which the Divisional Court was engaged in
evaluating the evidence of Mr Roberts and Ms Yeadon, having refused to admit the
cable in evidence, was quite different from that on which it would have had to
embark if the evidence had been received. By refusing to admit the evidence, the
court effectively had confined its role to an assessment of how well the witnesses
had withstood cross examination. If the cable had been admitted, the discrepancies
between the contents of the cable and their testimony would have had to be
considered objectively, while keeping in mind all the adjurations as to the likelihood
of contemporaneous documentary evidence being intrinsically more reliable.
105. If the Divisional Court had admitted the cable in evidence, what were the
possible consequences? If it had concluded, as well it might, that it was inherently
unlikely that the cable would have recorded Mr Roberts as having said there would
be “no human footprints” and no “Man Fridays” on BIOT’s uninhabited islands,
unless he had actually used those words, what impact would that have had on his
believability? These were striking expressions. Indeed, Ms Yeadon said that, if they
had been used, she would have been shocked. Could they have been fabricated by
the author of the cable? Why should they have been? If the cable had been admitted
and was therefore a freestanding item of evidence, it is at least possible that the
Divisional Court would have decided that it was unlikely that the person who
composed the cable would have fabricated those phrases and attributed them directly
to Mr Roberts. And, if it was concluded that this was unlikely, what effect would
that have on Mr Roberts’ credibility in light of his denial of having used them?
106. When the Court of Appeal came to consider what difference the admission
in evidence of the cable might have made, the question for them should have been
whether a different outcome was possible, not whether that would have happened or
even whether it was likely. (I will explain presently why I consider that the
possibility of a different result was the correct test.) The Court of Appeal, however,
seems to have considered various possible formulations at different points of its
judgment. At para 89 it twice stated that it was unrealistic to suggest that the court
“would” have reached a different conclusion, had the evidence been admitted. Later
in the same paragraph the court said that it had borne in mind that “a legally correct
approach would have made no difference to the outcome: see, for example, R v Chief
Constable of the Thames Valley Police, Ex p Cotton [1990] IRLR 344, per Bingham
LJ at para 60.” These statements suggest that the appeal court considered that, unless
the admission of the cable would have made a difference, as opposed to whether it
Page 51
could have done so, a review of the Divisional Court’s decision would not be
appropriate. I do not consider that this is the correct test and I turn now to that issue.
(iv) The correct test
107. In Malloch v Aberdeen Corpn [1971] 1 WLR 1578, the appellant had been
dismissed from his employment as a teacher by a motion passed by an education
committee. He claimed that he had not been given a fair hearing and that, if he had
been permitted to make representations, it was possible that some members of the
committee would not have voted in favour of his dismissal. (The motion required to
be carried by a two-thirds majority). The House of Lords held that teachers in
Scotland had in general a right to be heard before they were dismissed and, since, in
view of the ambiguity of the regulations by reason of which the appellant had been
dismissed, he might have had an arguable case before the committee and might have
influenced sufficient members to vote against his dismissal. The committee was in
breach of duty in denying him a hearing and the resolution and dismissal were
accordingly unlawful. At 1582H Lord Reid dealt with an argument that affording
the appellant a hearing would have made no difference. He said:
“… it was argued that to have afforded a hearing to the
appellant before dismissing him would have been a useless
formality because whatever he might have said could have
made no difference. If that could be clearly demonstrated it
might be a good answer. But I need not decide that because
there was here, I think, a substantial possibility that a sufficient
number of the committee might have been persuaded not to
vote for the appellant’s dismissal.”
108. The “substantial possibility” that the Divisional Court would have reached a
different conclusion if Mr Roberts’ evidence had taken a different turn as a
consequence of his having to address and answer the “ultimate question” cannot be
dismissed, in my opinion. Moreover, if the court had been required to confront the
obvious conflict between Mr Roberts’ and Ms Yeadon’s evidence and that contained
in the cable, again there was a distinct possibility that it would have been concluded
that the frustration of the campaign by the Chagossians to resettle the outlying
islands was, at least, a collateral purpose in the civil servants’ recommendation to
the minister that the MPA be established.
109. Lord Mance has said that the test to be applied in deciding whether a different
outcome could or would have eventuated “must depend on the context, including,
in particular, how well-placed the court is to judge the effect of any unfairness” –
para 23. Perhaps. I would observe, however, that if the court cannot with confidence
Page 52
judge the measure of unfairness to the affected individual, this should surely impel
the adoption of the “could” rather than the “would” test. Unless one could be
confident that unfairness would not accrue, I find it difficult to see how it could be
otherwise.
110. As noted at para 106 above, the Court of Appeal suggested that the proper
manner of dealing with the question was to ask whether a legally correct approach
would have made no difference to the outcome. In relation to this case, that means
that one should ask the question, if the Divisional Court had admitted the cable in
evidence and if it had permitted cross examination on the basis that it was in
evidence, would this not have affected the outcome. On one view, this partakes of
the application of a “could” test, and, in effect, this is how Lord Mance considers
that the Court of Appeal dealt with the issue. For the reasons given earlier, I do not
agree. Even if that had been the Court of Appeal’s approach, however, I could not
agree with the conclusion that it reached.
111. What “might” have happened, as opposed to what “would” have happened
involves consideration of a different range of imponderables. Deciding what would
have happened involves the decision-maker in imposing, to some extent at least, his
or her own view as to what ought to have happened. By contrast, deciding what
might have happened requires the decision-maker to envisage a range of possibilities
and to decide whether any one of those might have been chosen by the original
decider, if the position before him or her had been as it has now been found to obtain.
112. The Court of Appeal did not review the range of possible outcomes that might
have accrued if the cable had been admitted in evidence or if Mr Pleming had been
permitted to press on with this cross examination to demand an explanation as to
why the civil servants’ evidence differed from its contents. In my opinion, that was
central to a proper examination of the issue.
(v) The genesis and development of the MPA
113. It is true, as Lord Mance points out in para 25 of his judgment, that the “whole
idea of an MPA and a no-take zone” came from Pew, an American environmental
group. It is also true, again as stated by Lord Mance, that David Miliband, the then
Secretary of State for Foreign and Commonwealth Affairs, was the relevant
decision-maker as to whether the MPA should be established. The circumstance that
it was the minister, and not the civil servants who were advising him, who would
ultimately decide whether the MPA would be made does not, of itself, dispose of
the question whether there was a collateral motive in the advocacy of the scheme by
Mr Roberts and Ms Yeadon.
Page 53
114. In his note of 5 May 2009 to Mr Miliband, Mr Roberts referred to the Chagos
Islanders’ plans for resettlement. He was bound to do so because this was an obvious
aspect to be taken into account, in the event that an MPA was declared. The note
contains a significant passage on this question (quoted by Lord Mance at para 27):
“Assuming we win in Strasbourg, we should be aiming to calm
down the resettlement debate. Creating a reserve will not
achieve this, but it could create a context for a raft of measures
designed to weaken the movement.”
115. This statement is to be contrasted with what Mr Roberts is quoted in para 7
of the cable as having said during the meeting with American officials some seven
days later. At that meeting he is recorded as having claimed that British government
thinking was that there would be “no human footprints” and no “Man Fridays” on
BIOT’s uninhabited islands. He is also recorded as having asserted that “establishing
a marine park would, in effect, put paid to resettlement claims of the archipelago’s
former residents”. So, although he told the minister that the MPA would not “calm
down the resettlement debate”, he was telling the Americans that the resettlement
claims would be effectively extinguished. And, of course, in further contrast to what
the minister was being led to believe would be the effect of the MPA on the
Chagossians’ hopes of resettlement, Ms Yeadon was recorded in the cable as
encouraging US embassy officials to affirm that the US government required the
entire BIOT for defence purposes so as to nullify the Chagossians’ assertion that
partial settlement of the outer islands would have no impact on the use of Diego
Garcia.
116. The circumstance that the decision to make the MPA rested with the minister
does not immunise the process by which that decision was made from the possible
taint of improper motive. If those who advised the minister were actuated by such a
motive but tailored their advice to the minister so as to conceal it, the fact that the
minister took the decision does not render the underlying collateral purpose of no
consequence. The contrast between the advice given to the minister and the contents
of the cable incidentally reinforces the need for an unrestrained cross examination
of the witnesses, particularly because, as Lord Mance observed in para 40, the
Divisional Court did not address the contradiction in the evidence of Mr Roberts and
that of Ms Yeadon as to whether the former did in fact say that an MPA would put
paid to resettlement.
117. Lord Mance has suggested (in paras 41-43) that even if Mr Roberts and/or
Ms Yeadon had an improper motive, there is no conceivable reason to conclude that
this affected the ultimate decision-maker. I am afraid that I cannot agree. True it is,
as the Court of Appeal observed in para 91 of its judgment, that the decision was
personal to the Foreign Secretary. True it may also be, as the Court of Appeal found,
Page 54
that the Foreign Secretary believed that the declaration of an MPA would “redound
to the credit of the government and, perhaps, to his own credit”, although I am not
at all clear as to the evidence on which the court drew to support that conclusion.
But, if the minister had been aware that the civil servants were recommending the
establishment of an MPA with the covert purpose of ensuring that the Chagos
Islanders’ ambition to return to their homeland would never be fulfilled, can it be
said that his decision would be immune from challenge? Surely not.
118. It is not a question of reconfiguring the principle in Carltona Ltd v
Commissioners of Works [1943] 2 All ER 560 so as to fix the Secretary of State with
the knowledge, motives and considerations of civil servants. Rather it is whether a
decision of the Secretary of State, taken in ignorance of a concealed reason for the
recommendation on which he acted, can be regarded as lawful. In my judgment, a
decision taken on a recommendation made to him without knowledge of the true
reasons that it was made, cannot be upheld on the basis that it was a decision made
without regard to material factors. On the premise that the advice to the Foreign
Secretary was fashioned so as to withhold from him the true motivation for it, his
decision is impeachable because he was deprived of the opportunity to consider all
relevant circumstances and, on that account, it could not stand.
119. Again, it is suggested that this was not argued on behalf of the appellant
before this court. For the reasons given earlier, I do not accept that this is a basis on
which the point may be ignored, if it has validity. Lord Mance has stated, however,
that the withholding of such information, if it were deemed sufficient to undermine
a ministerial decision, would lead logically to the conclusion that “any irrelevant
misconception possessed by any civil servant at any level in the civil service
hierarchy in relation to any proposal ultimately reaching Cabinet level could
undermine a Cabinet decision.” – para 48. With much regret, I must register my
profound disagreement with this statement. In the first place, if the appellant’s case
is made good, the purpose of Mr Roberts and Ms Yeadon was not the product of a
“misconception”. It was the outworking of a strategy to promote the establishment
of the MPA for an ulterior motive. A minister whose imprimatur was required to
endorse the advice given would surely need to be aware of the true motive for
recommending the course that he had been advised to follow, in order that his
decision be immune from challenge. There is no logical connection between the
withholding of vital, relevant information from a decision-maker and his failure to
be aware of a “misconception” on the part of those advising him.
120. The fact that the Foreign Secretary rejected the proposal that he should
consult on the proposal is nothing to the point, in my opinion. He decided to proceed
with the MPA on the basis of advice that it would not, of itself, eliminate the chances
of resettlement of the Chagos Islands. If, contrary to that advice, it was the view of
the civil servants that the MPA would achieve precisely that aim, the minister should
Page 55
have been aware of it. Not being informed of it meant that he was not in a position
to take all material considerations into account.
121. I consider, therefore, that the Court of Appeal should have recognised that
there was a substantial possibility that, not only would the Divisional Court have
taken a different view of the evidence of Mr Roberts and Ms Yeadon, if they had
admitted the cable and the case had proceeded to its conventional conclusion, but
that there was an equally substantial possibility that it would have concluded that
the Foreign Secretary’s decision could be impugned because it was taken on a
misapprehension of the true facts and circumstances. For these reasons, I would have
allowed the appeal and ordered that the matter be remitted for hearing before a
Divisional Court with the direction that it be reconsidered on the basis that the cable
was admissible in evidence.
Fishing rights
122. I agree with Lord Mance on the issue of fishing rights.
LADY HALE:
123. This case is of huge importance to the Chagossians in their campaign to be
permitted to re-settle in their islands and to fish in the waters surrounding them. On
the substance of the appeal, I agree with Lord Kerr that we cannot be confident that
the findings of the Divisional Court would have been the same had the “Wikileaks
cable” been admitted into evidence and counsel been permitted to cross-examine the
FCO officials upon it. The crucial legal issue in the case is therefore the admissibility
of the cable, which is a matter of considerable importance both nationally and
internationally.
124. I agree with both Lord Mance and Lord Sumption that “inviolable” in articles
24 and 27(2) of the Vienna Convention on Diplomatic Relations in general means,
among other things, that the archives and documents (article 24) and the “official
correspondence” (article 27(2)) of the mission cannot generally be admitted in
evidence, at least in the courts of the receiving state, because to do so would interfere
in the privacy of the communications of the mission, both internally and with its
sending government. The question, therefore, is when such inviolability is lost.
125. In Lord Mance’s view, the cable did not remain part of the archive of the
London mission once it had been remitted to the State Department or some other
location for information and use there (para 20). It is indeed very probable that the
leak did not take place from the mission but from elsewhere in the United States
Page 56
government. Nevertheless, as the main purpose of the inviolability rule is to allow
the mission to communicate in confidence with the sending government, documents
emanating from a mission must retain their confidentiality and consequent
inviolability in some circumstances.
126. Lord Sumption agrees with Lord Mance but bases this on the principle of
“control”. Documents, he says, are inviolable if “they are under the control of the
mission’s personnel, as opposed to other agents of the sending state” (para 68). I can
agree with this only if it is understood that “control” includes the restrictions placed
by the sending mission (and for that matter the sending state communicating with
the mission) on the further transmission and use of the document. It is my
understanding of civil service practice in this country that the initiator of a document
decides upon the appropriate level of confidentiality and marks the document
accordingly. Other persons within government who receive the document are bound
to respect that marking. (Cabinet Office, Government Security Classifications, April
2014, eg para 28.) It is reasonable to assume that other countries have similar
practices in their intra-governmental communications.
127. It cannot be the case that a diplomatic communication loses its inviolability
once it has left the mission. The concept of control must include the restrictions
placed by the sending mission on the dissemination of the communication, subject
to the directions of their superiors in the sending state. In both versions of the
Wikileaks cable which we have – one published in the Guardian and one in the Daily
Telegraph – it was classified Confidential by Political Counsellor Richard Mills for
reasons 1.4b and d (whatever they may be). That indicates a rather low level of
control exercised over the document, which obviously found its way into many
hands before it was acquired and put into the public domain by Wikileaks.
128. Whatever may be the position in relation to other documents passing between
a mission and their sending department, it seems clear in this case that whatever
control there had initially been exercised over this document, it was lost even before
it was put into the public domain. I therefore agree that it was no longer inviolable
and should have been admitted in evidence in this case. As Lord Kerr has explained,
its contents were such that they could have made a difference to the result. I would
therefore have allowed this appeal.
