Trinity Term [2016] UKSC 35 On appeal from: [2008] UKHL 61

JUDGMENT
R (on the application of Bancoult (No 2))
(Appellant) v Secretary of State for Foreign and
Commonwealth Affairs (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Kerr
Lord Clarke
JUDGMENT GIVEN ON
29 June 2016
Heard on 22 June 2015
Appellant Respondent
Edward Fitzgerald QC Steven Kovats QC
Paul Harris SC Kieron Beal QC
Amal Clooney Julian Blake
(Instructed by Clifford
Chance LLP
)
(Instructed by The
Government Legal
Department
)
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LORD MANCE: (with whom Lord Neuberger and Lord Clarke agree)
Introduction
1. In 2008 Lord Bingham of Cornhill and I were the dissenting minority when
the majority in R (Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (No 2) [2008] UKHL 61, [2009] AC 453 (“Bancoult No 2”) allowed the
Secretary of State’s appeal and upheld the validity of section 9 of the British Indian
Ocean Territory (Constitution) Order 2004 (“the 2004 Constitution Order”). Section
9 provides that, since the British Indian Ocean Territory (“BIOT”) was set aside for
defence purposes, no person shall have any right of abode there (section 9(1)) and
further that no person shall be entitled to enter or be present there except as
authorised by the Order itself or any other law.
2. I have not changed my opinion as to what would have been the appropriate
outcome of the appeal to the House of Lords. But that is not the issue before us. The
issue before us is whether the majority decision should be set aside, not on the
grounds that it was wrong in law, but on grounds that the Secretary of State failed,
in breach of his duty of candour in public law proceedings, to disclose relevant
documents containing information which it is said would have been likely to have
affected the factual basis on which the House proceeded. That was that the Secretary
of State, when enacting section 9, could justifiably rely on the stage 2B report
prepared by Posford Haskoning Ltd (“Posford”) for its conclusion that any longterm resettlement on the outlying Chagos Islands was infeasible, other than at
prohibitive cost. In addressing the issue now before us, we are bound by the legal
reasoning which led the majority to its conclusion – indeed, strictly bound without
possibility of recourse to the Practice Statement (Judicial Precedent) [1966] 1 WLR
1234, since this is an application in the same proceedings.
3. The relevant documents are conveniently described as “the Rashid
documents”, after Ms Rashid, the deponent from the Treasury Solicitor’s
Department who by witness statement dated 1 May 2012 first produced them. She
did this without commentary in Administrative Court proceedings in Bancoult (No
3), regarding the declaration of a Maritime Protected Zone (“MPA”) in the high seas
around BIOT. Ms Rashid made clear that she had no personal knowledge of events
leading to the earlier failure to disclose. That the failure to disclose the Rashid
documents in the Bancoult No 2 proceedings was culpable is not, and could not be,
disputed. On the other hand, it is accepted that it was not intentional and did not
involve any bad faith. I shall address the circumstances, the contents of the
documents and their significance in due course.
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4. In addition to relying on the alleged breach of candour, Mr Bancoult also
seeks to adduce four heads of new material, put forward as constituting evidence
unavailable at the time of the House of Lords decision. All are said to go to the
reliability of the stage 2B report, to undermine or invalidate the basis on which the
House proceeded and to constitute an independent justification for re-opening the
decision. I will revert to this ground of application later in this judgment, and focus
in the meanwhile on the alleged breach of candour.
The jurisdiction to set aside in cases of unfair procedure and fresh evidence
5. Unfair procedure: There is no doubt that the Supreme Court has inherent
jurisdiction to correct any injustice caused by an earlier judgment of itself or its
predecessor, the House of Lords, though it is also clear that it “will not re-open any
appeal save in circumstances where, through no fault of a party, he or she has been
subjected to an unfair procedure” and that “there can be no question of that decision
being varied or rescinded by a later order made in the same case just because it is
thought that the first order is wrong”: R v Bow Street Metropolitan Stipendiary
Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, per Lord BrowneWilkinson. One party’s failure to disclose relevant documentary information is
clearly capable of subjecting the other party to an unfair procedure.
6. However, a decision to re-open an appeal also has important evaluative as
well as discretionary aspects. The present applicant was, in its application to set
aside (paras 109-130), content to express the evaluative aspect in terms used in an
analogous context in the Court of Appeal in Taylor v Lawrence [2002] EWCA Civ
90; [2003] QB 528 and followed by the Privy Council in Bain v The Queen [2009]
UKPC 4. As the Privy Council said in the latter case at para 6, quoting Lord Woolf
CJ at p 547 in the former case:
“What will be of the greatest importance is that it should be
clearly established that a significant injustice has probably
occurred and that there is no alternative effective remedy.”
7. Fresh evidence: That the jurisdiction to set aside also extends to situations
where fresh evidence is discovered after a judgment has been rendered which is not
susceptible of appeal is also recognised in Court of Appeal authority: In re U [2005]
EWCA Civ 52; [2005] 1 WLR 2398 Feakins v Department of Environment, Food
and Rural Affairs [2006] EWCA Civ 699. The latter was a case where it was
discovered that a DEFRA official had provided materially incorrect information to
the court in a witness statement. In each case, however, it was emphasised that it
was not sufficient simply to rely on the principles in Ladd v Marshall [1954] 1 WLR
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1489, which apply when fresh evidence is sought to be adduced for or on an appeal.
Rather, as it was put in In re U, para 22,
“… it must at least be shown, not merely that the fresh evidence
demonstrates a real possibility that an erroneous result was
arrived at in the earlier proceedings …, but that there exists a
powerful probability that such a result has in fact been
perpetrated.”
This statement was quoted from and accepted in the application to set aside, para
121. Further, as to the discretionary aspect, the court noted in Feakins:
“The court [in In re U] held that, although that was a necessary
condition, it was not sufficient; the court would have also to
consider the extent to which the complaining party was author
of his own misfortune and that there was no alternative
remedy.”
8. In oral submissions, Mr Edward Fitzgerald QC did not directly challenge the
above principles as stated in In re U, stating in his reply that there was nothing
between the parties on jurisdiction. However, in his written speaking note, directed
specifically to jurisdiction in response to the court’s invitation to focus on this, the
matter was put differently, and as follows (para 2.4(iv)):
“As to whether there would now be a different outcome, it is
submitted that it is only necessary to show at this threshold
stage that there may well be a different outcome on a
reconsideration.”
See also, eg the submission (para 8.8) that Dr Shepherd “may well have had an ‘axe
to grind’”. For my part, particularly where, as here, a party has failed to disclose the
documents which it is now submitted constituted important evidence, I prefer to
leave open whether a test of “probability” or, in the context of fresh evidence,
“powerful probability” is too inflexible to cater for all possibilities. The
egregiousness of a procedural breach and/or the difficulty of assessing the
consequences of such a breach or of the significance of fresh evidence might, it
seems to me, in some situations militate in favour of a slightly lower test, perhaps
even as low as (though I do not decide this) whether the breach “may well have had”
a decisive effect of the outcome of the previous decision. I shall consider the present
application in that light also, although I do not in the event consider that the outcome
of this application depends at any point on the test applied.
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The course of events leading to the present application
9. The regrettable facts lying behind these and other proceedings such as R
(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1) and
(No 3) were outlined by Lord Hoffmann in paras 1-30 of his judgment in Bancoult
No 2, in terms which both Lord Bingham and I accepted with only a few (presently
immaterial) qualifications: see paras 68 and 137-139. BIOT consists of the Chagos
Islands, the largest being Diego Garcia. In 1966 the United Kingdom agreed in
principle to make BIOT available to the United States for at least 50 years for
defence purposes, and with effect from July 1971 the United States took over Diego
Garcia as a base. At the same time, by the Immigration Ordinance 1971, the
Commissioner of BIOT prohibited any person from entering or being in BIOT
without a permit issued by an immigration officer.
10. Mr Bancoult represents Chagossians (or Ilois), indigenous inhabitants of
BIOT, whose removal and resettlement the United Kingdom procured between 1968
and 1973 by various non-forceful means with “a callous disregard of their interests”
(Lord Hoffmann, para 10). Compensation, initially in the 1970s of £650,000 and
then in 1982 of a further £4m in a trust fund set up under a Mauritian statute, was
paid and accepted in satisfaction of all claims by most (some 1,340) Chagossians,
though a few refused to sign. A challenge to this settlement was later made but struck
out as an abuse of process by Ouseley J in Chagos Islanders v Attorney General
[2003] EWHC 2222 (QB), leave to appeal being refused by the Court of Appeal
[2004] EWCA Civ 997. Ouseley J’s judgment made clear that there was no further
economic obligation on the United Kingdom to fund resettlement in BIOT.
11. A challenge to the Immigration Ordinance 1971 was on the other hand
successful. In R (Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (No 1) [2001] QB 1067, the Divisional Court decided that the Commissioner
for BIOT’s power to legislate for the “peace, order and good government” of BIOT
did not include a power to expel its inhabitants. The then Foreign Secretary, Mr
Robin Cook, stated publicly that he accepted this decision, and revoked the 1971
Ordinance by the Immigration Ordinance 2000. This confined the restriction on
entry or presence to persons not British Dependent Territories citizens by virtue of
their connection with BIOT. Mr Cook also announced that a recently completed
feasibility study into the prospects of resettling the Ilois would now proceed to a
second stage. This was originally intended to involve two phases, the first (Phase
2A) relating to hydrological monitoring, the second (Phase 2B) to a more general
examination, prior to a cost-benefit analysis (Phase 3). The second stage reports
were undertaken by Posford as project managers.
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12. In the event, the first two phases were amalgamated, leading to a report
entitled stage 2B published in July 2002. Its “General Conclusions”, para 1.11,
stated:
“To conclude, whilst it may be feasible to resettle the islands in
the short-term, the costs of maintaining long-term inhabitation
are likely to be prohibitive. Even in the short-term, natural
events such as periodic flooding from storms and seismic
activity are likely to make life difficult for a resettled
population.”
13. The Secretary of State in this light decided not to proceed with Phase 3,
terminated consideration of re-settlement and on 10 June 2004 introduced a new
prohibition on residence in BIOT by section 9 of the 2004 Constitution Order, to the
effect set out in para 1 above. A new Immigration Order 2004 was at the same time
also enacted, but needs no separate treatment here. The present proceedings were
begun for judicial review to quash section 9 of the Constitution Order. They
succeeded before the Divisional Court and Court of Appeal, but failed by a majority
of three to two before the House of Lords.
14. All members of the House accepted that the 2004 Constitution Order was
susceptible to judicial review on ordinary principles of legality, rationality and
procedural impropriety. But the majority (Lord Hoffmann, Lord Rodger of
Earlsferry and Lord Carswell) held: that, although the Chagossians had had
important common law rights of abode, they were not so fundamental that they could
not be removed by section 9; that the Secretary of State’s decision to remove such
rights, to reimpose immigration control and to prevent resettlement was in the
circumstances neither unreasonable nor an abuse of power; and that the previous
Foreign Secretary’s statements in 2000 (para 11 above) did not amount to a clear
and unambiguous promise that the Chagossians would be permitted to return and
settle permanently creating any legitimate expectation on which they could now
rely. Lord Bingham and I took the opposite view on these points, and would have
dismissed the Secretary of State’s appeal.
15. During the proceedings no challenge was made or suggested to the stage 2B
report or its findings. The Secretary of State relied on its findings in para 106 of his
skeleton argument before the Administrative Court dated 25 November 2004,
stating:
“… in any event, the defendant submits that it cannot
conceivably be said to be irrational for steps to be taken to
ensure that the BlOT is not resettled in circumstances where no
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viable long-term resettlement can be supported; where the costs
of resettlement would be extensive, prohibitively expensive
and potentially open-ended; and where the UK’s defence
interests and treaty obligations strongly militate against
permitting resettlement of the archipelago.”
Sir Sydney Kentridge QC expressly disavowed any challenge to the report’s
conclusions when opening the Chagossian’s case before the Divisional Court on 6
December 2005; and amended particulars put before that Court on 13 December
2005 on the issue of irrationality likewise made no such challenge.
16. Before the House of Lords the stage 2B report and its findings were equally
uncontentious. All members of the House proceeded on that basis. The argument on
behalf of the Chagossians was throughout that the findings did not justify the making
of the 2004 Constitution Order. Lord Bingham and I accepted that argument, but the
majority rejected it and, to differing extents, deployed the relevant findings in their
reasoning. Lord Hoffmann at para 53 said this:
“53. … I think it is very important that in deciding whether a
measure affects fundamental rights or has profoundly intrusive
effects, one should consider what those rights and effects
actually are. If we were in 1968 and concerned with a proposal
to remove the Chagossians from their islands with little or no
provision for their future, that would indeed be a profoundly
intrusive measure affecting their fundamental rights. But that
was many years ago, the deed has been done, the wrong
confessed, compensation agreed and paid. The way of life the
Chagossians led has been irreparably destroyed. The
practicalities of today are that they would be unable to exercise
any right to live in the outer islands without financial support
which the British government is unwilling to provide and which
does not appear to be forthcoming from any other source.
During the four years that the Immigration Ordinance 2000 was
in force, nothing happened. No one went to live on the islands.
Thus their right of abode is, as I said earlier, purely symbolic.
If it is exercised by setting up some camp on the islands, that
will be a symbol, a gesture, aimed at putting pressure on the
government. The whole of this litigation is, as I said in R v
Jones (Margaret) [2007] 1 AC 136, 177, the continuation of
protest by other means. No one denies the importance of the
right to protest, but when one considers the rights in issue in
this case, which have to be weighed in the balance against the
defence and diplomatic interests of the state, it should be seen
for what it is, as a right to protest in a particular way and not as
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a right to the security of one’s home or to live in one’s
homeland. It is of course true that a person does not lose a right
because it becomes difficult to exercise or because he will gain
no real advantage by doing so. But when a legislative body is
considering a change in the law which will deprive him of that
right, it cannot be irrational or unfair to consider the practical
consequences of doing so. Indeed, it would be irrational not to.”
(italics added for emphasis)
17. Lord Rodger at paras 110-114 said:
“110. Section 9 of the Constitution Order removes any right of
abode on the Chagos Archipelago which the claimant or
anyone else may have had. It is a stark provision. But the
Secretary of State’s decision to have it enacted and the effect
of that decision have to be judged against the circumstances at
the time it was taken. No-one was then actually living on the
outer islands and, even though the islanders had enjoyed a right
to return since November 2000, none of them had done so.
They were instead ‘seeking support from the UK and US
governments to financially assist their return or alternatively to
provide compensation’: Feasibility Study Phase 2B, Executive
Summary, para 1.1. More importantly, there was no prospect
that anyone would be able to live on the outer islands, except
on a subsistence basis, in the foreseeable future: Feasibility
Study Phase 2B, Executive Summary, para 1.11. Sir Sydney did
not dispute this, but contended that it was irrelevant. In other
words, the position was just the same as if people had actually
been living on the islands when the Orders were made. I am
unable to accept that submission. The impact of the legislation
on the people concerned would be very different in the two
situations. In my view, in reviewing the Secretary of State’s
decision to remove the right of abode, it is relevant that there
was actually no prospect of the Chagossians being able to live
on the outer islands in the foreseeable future. The government
accepts, of course, that they can apply for permits to visit the
islands and that an unreasonable refusal could be judicially
reviewed. Such visits have taken place in the past.
111. Against that background, can it be said that no
reasonable Secretary of State could have decided to have
section 9 enacted?
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112. On 15 June 2004 a junior minister, Mr Rammell, made
a written statement to Parliament. His good faith has not been
impugned by the respondent. The statement shows that, in
deciding to legislate to prevent people resettling on the outer
islands, the government took into account the fact that the
economic conditions and infrastructure which had once
supported the way of life of the Chagossians had ceased to
exist. Something new would have to be devised. The advice
was that the cost of providing the necessary support for
permanent resettlement was likely to be prohibitive and that
natural events were likely to make life difficult for any resettled
population. Human interference within the atolls was likely to
exacerbate stress on the marine and terrestrial environment
and would accelerate the effects of global warming. Flooding
would be likely to become more frequent and would threaten
the infrastructure and the freshwater aquifers and agricultural
production. Severe events might even threaten life. The
minister recorded that, for these reasons, the government had
decided to legislate to prevent resettlement. Although he made
no mention of it, the decision to legislate and to introduce
immigration controls at that particular time appears to have
been prompted by the prospect of protesters attempting to land
on the islands. In addition, Mr Rammell said that restoration of
full immigration control over the entire territory was necessary
to ensure and maintain the availability and effective use of the
territory for defence purposes. He referred to recent
developments in the international security climate since
November 2000 when such controls had been removed.
113. The ministerial statement indicates that a decision to
legislate was taken on the basis of the experts’ (second) report
on the difficulties and dangers of resettling the islands, these
difficulties and dangers being dangers and difficulties which
would affect the Chagossians themselves, if they were to try to
live on the outer islands. Given the terms of that report alone,
it could not, in my view, be said that no reasonable government
would have decided to legislate to prevent resettlement. In
particular, the advice that the cost of any permanent
resettlement would be “prohibitive” was an entirely legitimate
factor for the government, which is responsible for the way that
tax revenues are spent, to take into account. In addition, the
government had regard to defence considerations, the views of
its close ally, the United States, and the changed security
situation after 9/11. These additional factors reinforce the view
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that the decision to legislate was neither unreasonable nor
irrational.
114. Of course, the decision was adverse to the claim of the
Chagossians to return to settle on the outer islands. But that
does not mean that their interests had been ignored: a realistic
assessment of the long-term position of any potential
Chagossian settlers on the outer islands was central to the
expert report on which the government relied. In addition, the
government considered the overall interests of the United
Kingdom. It was entitled to do so. … In the absence of any
relevant legal criteria, judges are not well placed to secondguess the balance struck by ministers on such a matter.” (italics
added)
18. Lord Carswell said (para 120) that he agreed “with very little qualification”
with the reasoning of Lord Hoffmann and Lord Rodger, but his specific reasoning
focused on the lack of long term feasibility. He said that the Chagossians’ expressed
wish to return to their homeland was:
“put on an abstract basis by their counsel, for it is quite clear
that for them to resettle in the islands is wholly impracticable
without very substantial and disproportionate expenditure.
They are not in a position to meet such a cost. It could only be
shouldered by the British government, which has made it clear
that it is willing to permit and fund from time to time short
visits to the outlying islands, but not to support a large-scale
permanent resettlement. One might ask the question why this
campaign is being pursued, for the Chagossians already can
pay visits and there is no realistic prospect of resettlement
unless it is funded for them at huge expense. I do not find it
necessary to seek an answer to that question, but the practical
difficulties in the way of resettlement are in my view relevant
to the rationality of the government’s decision to make the
2004 Orders in Council.” (italics added)
19. On the present application, Mr Bancoult submits that, had the Rashid
documents been available prior to the hearing before the Divisional Court, the Court
of Appeal or the House of Lords, they would have led to a challenge being mounted
to stage 2B report, the conclusions drawn in that report would have been discredited,
and the majority reasoning in the above extracts would have been impossible. This
brings me to a consideration of the Rashid documents.
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The Rashid documents:
(a) Circumstances of late disclosure
20. By letter dated 5 December 2005 disclosure had been made on behalf of the
Secretary of State to Sheridans, solicitors acting for Mr Bancoult, of a copy letter
dated 23 May 2002 sent by Mr Charles Hamilton of BIOT to Ms Alex Holland, the
“senior environmental scientist” who was Posford’s project manager. This raised
questions and made comments on a draft stage 2B report. Between November 2005
and February 2006, requests were made on behalf of Mr Bancoult for disclosure of
this draft report as well as any draft of the earlier feasibility study. The Treasury
Solicitor, while replying that these requests did not go to any issue in Bancoult No
2, made searches, but was in the event only able to locate a draft feasibility study
which was disclosed in early December 2005.
21. By letter dated 13 January 2006 (E1472) Mr Bancoult’s solicitors, Sheridans,
questioned, in relation to the stage 2B report, whether there had been “official input
into the work of consultants which undermines its authority”. The Treasury Solicitor
responded that this was an “extremely serious” allegation and needed to be
particularised. It was not particularised and, as stated, no challenge to the stage 2B
report was then made. A further allegation that, in the absence of the draft stage 2B
report, the General Conclusions must be assumed not to be the unguided advice of
independent consultants was made by note dated 13 March 2009. On 7 October 2010
an email dated 29 May 2002 sent by Mr Charles Hamilton to Ms Holland advising
that the final draft omit development scenarios (advice not in fact followed: para 40
below) was disclosed on behalf of the Secretary of State in the context of the issues
arising in Bancoult (No 3). By letter dated 21 December 2010 Clifford Chance (now
acting for Mr Bancoult as a result of the move to that firm of Mr Gifford the
individual partner handling Mr Bancoult’s affairs) wrote asserting that “the total
absence of any records” of meetings in May-June 2000 and June/July 2002
regarding what became respectively the feasibility study and stage 2B report “casts
grave doubts on the ability of FCO to explain its conduct or to justify what appears
to be serious and concerted influence practised to achieve a conclusion which
reflected the views of officials and contradicted the unguided advice of consultants.”
Clifford Chance referred in this connection to the disclosure of the email dated 29
May 2002 and to statements made to them in a letter dated 11 February 2010 by Mr
Stephen Akester, one of the Phase 2B consultants, that resettlement was always
feasible within reasonable cost parameters, but that he was not in the committee that
drafted the stage 2B report.
22. On 10 October 2011 Clifford Chance wrote in the light of the above urging a
yet further search for documents pursuant to the Secretary of State’s duty of candour
in the context of both Bancoult (No 2) and Bancoult (No 3).
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23. The further search then made led to the Treasury Solicitor discovering
previously undisclosed documents, including the draft stage 2B report, in
circumstances described in its letter dated 15 March 2012 to Clifford Chance as
follows:
“In the context of the aforementioned matters, TSol recalled
archived files held by a third party document storage company
that were generated during the conduct of the Bancoult (No 2)
litigation. In the course of reviewing these files, it has become
apparent that they contain certain documents concerned with
the drafting of the Phase 2B report which originate from the
FCO but are no longer retained by the FCO on its own files as
a result of its document retention.”
It was subsequently further explained that
“there was clearly a point, occurring during 2005, when the
FCO no longer held the draft Phase 2B Executive Summary on
its files, as it was removed according to the FCO’s document
retention policies, and yet TSol retained a copy on its Bancoult
(No 2) files.”
The documents so discovered, including the draft stage 2B report, were then
disclosed by Ms Rashid’s witness statement dated 1 May 2012.
24. The Secretary of State accepts that, in the light of the requests made and
despite the absence of any challenge to the stage 2B report, the Rashid documents
should have been capable of location and should have been located and disclosed
pursuant to his general duty of candour in public law proceedings. The failures in
this regard were and are highly regrettable. But there is, as stated previously, no
basis for attributing them to any deliberate misconduct. The question is what
significance would or might have attached to, and what consequences would or
might have flowed from, their disclosure.
(b) Alleged significance of the Rashid documents
25. In Mr Bancoult’s written case, it is alleged that the Rashid documents would
have been significant under four heads:
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(i) As showing that, instead of being independent as understood, the final
report was subject to extensive alterations to reflect FCO views. Head (iv)
below concerns one particular difference alleged to be “centrally important”
to the stage 2B report’s conclusions.
(ii) As revealing that Dr Sheppard, the FCO’s scientific adviser, had
criticised the draft stage 2B report in an email sent to Charles Hamilton on
14 May 2002 and had, after the issue of the final report, also endorsed
criticisms of it made by a resettlement anthropologist, Jonathan Jenness,
instructed on behalf of Mr Bancoult.
(iii) As revealing evidence of lack of objectivity in Dr Sheppard’s input
into the stage 2B report before it was finalised. More specifically, it is said
that the documents show that Dr Sheppard was the only reviewer of the whole
draft, that heavy reliance on only one specialist made the report unsafe and
that, as a coral reef specialist well-known to be strongly dedicated to their
conservation, there is “concern” whether he could reasonably be regarded as
an objective assessor on the issue of reintroducing human settlement.
(iv) As showing alterations between the draft and final version of the stage
2B report in a manner which conflates and distorts the consultants’ original
finding in relation to storms creating difficulties for resettlement.
26. Taken together, it is submitted that it is certain that, had the Rashid
documents been disclosed, they would have caused the applicant’s representatives
to challenge the reliability of the feasibility study, that it is highly likely that the
challenge would have succeeded and that, if the House of Lords’ judgment is set
aside, a new hearing will reach a different conclusion.
27. The focus of the first and fourth heads of alleged significance of the Rashid
documents is alterations alleged to have been made and to have distorted the final
stage 2B report. The focus of the second and third heads is Dr Sheppard. The second
relies on his criticisms of the draft. The third suggests that his input lacked
objectivity and was unreliable.
(c) The first and fourth heads
28. These two heads stand or fall together. They are reproduced in the speaking
note which Mr Edward Fitzgerald QC used at the hearing before the Supreme Court.
That speaking note refers to “extensive alterations to the original draft in the final
draft”, which it suggests are likely to have “reflected FCO views and input” and to
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have been “unsupported by evidence in the body of the study”. According to Clifford
Chance’s letter dated 10 October 2011, there were 94 revisions over a period when
the document was open for editing for a total of seven and a half hours. The speaking
note says that “some” of the key changes are summarised in a summary note dated
17 February 2015 prepared by counsel for Mr Bancoult. This was based in turn on
a lengthy Analysis Note prepared by Mr Bancoult’s solicitor, Mr Gifford, in
conjunction with a coral scientist, Mr Dunne. In addition to the change relating to
storms and re-settlement identified in head (iv), the summary note identifies three
further “key amendments”.
29. That alterations would or might be made in the final report following
comments by the FCO and BIOT on the draft report cannot come as any surprise to
those representing Mr Bancoult, or be regarded as in any way unnatural. The stage
2B report was prepared by Posford under a contract expressed to be between the
Commissioner for BIOT and Posford Duvivier Environment dated 10 December
2001. The Terms of Reference set out in section 4 of the contract provided by clause
6 for monthly reporting and further by clause 6.3 that
“A draft final report, containing an account of the work done,
conclusions and recommendations will be submitted within
four months of commencing the assignment. Within two weeks
of the receipt of comments on the draft from recipients,
consultants will submit a Final Report.”
30. In this respect clause 6.3 echoed the provisions of clause 17 of the terms of
reference for the earlier contract dated 13 April 2000 made with David Crapper for
the feasibility study, which, when made was according to its terms intended also to
cover stage 2. Clause 17 provided:
“17. A draft report will be produced for the government of
the BIOT. On receiving comments on the draft report from the
government of the BIOT, the consultant will finalise the report
and provide the text in both paper and electronic form to the
government of the BlOT.”
Sheridans received a copy of this earlier contract, and in a letter dated 28 November
2005 noted and set out clause 17 specifically, not by way of objection, but in order
to ask for the draft report and for any comments on it made by the FCO and the
government of BIOT. Whether any of the actual alterations made can be described
as “extensive” or “as reflecting FCO views”, or be seen to have unbalanced the
report as a result, are matters to which I will come.
Page 15
31. Before doing so, it is convenient to examine events in more detail to identify
any overt trace of undue executive influence over the final report. After entry into
force of the contract dated 10 December 2001, Posford set about preparing for field
studies in BIOT, in particular on the two outlying islands of Ile de Coin and Ile
Boddam, as contemplated by its terms. These took place in February 2002, after
which Posford submitted a second progress report dated 1 March 2002. This was
tabled and discussed at a meeting with the FCO and BIOT on 6 March 2002. There
is no suggestion or likelihood that the draft executive summary was available to
anyone at this stage, and Ms Holland’s letter dated 12 April and Mr Hamilton’s
email dated 15 April 2002 (E2404) indicate that, once drafted and reviewed, such a
draft was only submitted to the FCO in early April 2002.
32. It is convenient at this point to introduce the fourth piece of new evidence on
which the applicant seeks to rely. It is a note of the 6 March 2002 meeting made by
Posford dated 7 March 2002. It was only obtained by the applicant’s advisers, after
a chance meeting, from Mr Stephen Akester of MacAlister Elliott & Partners
(“MEP”), sub-contractors to Posford who arranged the on-site investigations in the
Chagos in early 2002. As such it is not a document which was at any relevant time
in the possession of or available to the executive. But it records a meeting at which
FCO and BIOT representatives were present, and, taking it as an accurate record of
what took place at that meeting, what it records was within their knowledge, and
may also throw light on their roles in relation to the re-drafting and finalisation of
the stage 2B report. Mr Huckle of the FCO is reported as “reiterating the political
importance of the forthcoming feasibility report” which he stressed “had been
heightened in recent weeks because the Ilois are currently pursuing legal action
against the British and American governments”. He went on to point out that “the
outcome of the court case will either be compensation, or financial assistance to the
Ilois in resettling the islands” and that the questions were “how much, and what
forms of livelihood development will the British government permit”, which he said
was “where the feasibility report comes in”.
33. There is nothing here which appears to be anything other than a genuine
explanation as to the report’s current relevance – couched if anything in terms
anticipating that it would accept the possibility of resettlement. The FCO appears a
little later as saying that it “had hoped that Phase II would negate the need for Phase
III, ie if it concluded that resettlement wasn’t feasible, but realistically, that was
never likely to be the outcome. The FCO is hoping that the section on Climate
Change will resolve its difficulties, but Brian [Little] and I pointed out that a
considerable amount of money could be made in 25-100 years, and let’s not assume
that the Ilios are considering a return to subsistence or reliance on natural resources
…”. Again this confirms, if anything, that the FCO was resigned to a report
accepting the feasibility of some form of resettlement, and that Posford was well
capable of standing up for what it believed correct. Indeed, earlier in the note
Posford recorded that “allegedly, a number of those whom we competed against in
Page 16
the bidding process … have been taking pot shots at our approach within earshot of
‘important’ people. Sounds like sour grapes. That all said, our findings and
arguments must be tight and convincing.” There is no suggestion that the FCO was
inviting changes to bolster any sort of findings or conclusions in either the draft and
the final report, and no basis for regarding Posford as susceptible to any such
invitation. The express purpose of the 6 March meeting was, as stated, to “provide
a de-briefing” on Posford’s recent field studies on Ile du Coin and Ile Boddam.
34. In all the circumstances, the 7 March 2002 note provides no real support to a
suggestion that the content even of the draft stage 2B report was unduly interfered
with or influenced by the FCO or BIOT, still less that any subsequent alterations
between the draft submitted in April and the stage 2B report as finalised in June
were the result of any such undue interference or influence.
35. The follow-up exchanges after Posford had completed and submitted all
sections of the draft report in April 2002 (E2403) are evidenced by the Rashid
documents as well as the previously disclosed messages dated 23 and 29 May 2002
from Mr Hamilton to Ms Holland. They are also significant. Dr Sheppard had on 14
May 2002 sent Mr Hamilton very detailed comments on the draft report (E2409 on).
In relation to the Executive Summary, he wrote:
“This important section does not always reflect the content of
the volumes very well. This is doubtless due to haste and short
deadlines. Several key issues missed out are stated in the text
and in the conclusions. I suggest that after a period of reflection
this is revisited. Several conclusions are apparently at odds
either with each other or with other, known facts. During the
rewrite, these apparent contradictions in the text can be
resolved. They make parts of the report somewhat vulnerable.
One example is the widely varying estimates of numbers of
people that could be sustainably supported.”
36. Dr Sheppard went on in sections dealing with the body of the draft report to
note (a) the risk of water contamination, observing that the draft did not “clearly
state how such contamination could be prevented through the thin ‘roof’ of the
aquifers”, (b) a contradiction between statements that “Water recharge of aquifers
would increase by vegetation clearing (Groundwater resources section) … But:
water recharge would decrease with clearance of plants and development (from
volume IV)”, and (c) under “Other points”: “The point about Chagos is that it lies
in the most nutrient poor part of the Indian Ocean. The Chagos bank fishery potential
is estimated to be half that of other banks” (p 146).
Page 17
37. Mr Hamilton then wrote to Ms Holland on 23 May 2002, noting that he had
studied the drafts of the report in some detail, that it and any recommendations which
followed from it would be carefully examined and that “we are particularly anxious
therefore that its scientific content is as complete and watertight as possible”. He
made detailed comments on the draft, drawing heavily on Dr Sheppard’s comments,
particularly when writing this in relation to the Executive Summary:
“This important section does not always reflect the content of
the volumes very well. Several key points and conclusions in
the main text are important and stand out, but are not well
reflected in the summary. Further, several conclusions are
apparently at odds either with each other or with other known
facts. During your revision, I would be grateful if you would
resolve these apparent contradictions as they make parts of the
report unclear. Examples of issues needing reconciliation
include widely varying estimates of numbers of people that
could be sustainably supported, issues of water contamination
and the balances of water use for different activities, whether
plants increase or decrease water recharge, and the Chagos bank
fishery potential. Synthesis would doubtless resolve many of
these. I understand that different consultants wrote different
sections, so I think that this summary may be a suitable place
for an overall, concise synthesis, which would also include
overall environmental management recommendations. Many of
these points are noted in the attachments relating to different
sections, but are crucial for the writer of this Executive
Summary.”
38. As is apparent, Mr Hamilton was here picking up points made by Dr
Sheppard as indicated above. In attachment 7, relating to volume III of the draft
dealing with resettlement issues, Mr Hamilton discussed three scenarios which had
been included, noting various issues and that nothing had been said either on
scenario 3 (based partly around expensive tourism), although this appeared to be the
only attractive development option for interested parties, or on a possible scenario 4
(non-residential, but settled seasonally for some fishing). The discussion ended
“Possibly use of the ‘three scenarios’ just adds confusing complexity and begs
several questions which are not answered”. He ended by underlining the importance
attaching to “the overall synthesis (Executive Summary) which should clearly
highlight the main points which are brought out in the text”, and indicated that
following the draft’s revision he would call a meeting of all concerned to finalise
the report.
Page 18
39. Posford then prepared its own detailed comments on Mr Hamilton’s letter
which were sent to him by Ms Holland under cover of a faxed letter dated 28 May
2002. Her letter stated:
“To summarise the attached, we consider that some of the
comments are valid and we will revise our report in light of
these suggestions. However, we feel that others are somewhat
inaccurate and do not reflect the understanding we had with the
BlOT Administration on our approach. I should like to discuss
these comments with you at your earliest convenience.”
In the body of the comments, Posford replied to the points made on the three
scenarios as follows:
“Three scenarios: There was much debate during the drafting
of the report as to whether the three scenarios should be
included, but several of those involved considered that these
helped to develop conclusions about whether certain
resettlement activities would be possible, particularly in the
drafting of the environmental appraisal. We stopped at three
hypothetical scenarios, but recognise that there could be many
more combinations of activities. The suggestion of ‘scenario
4’, which is based on non-residential and non-development,
does not actually constitute· resettlement and was therefore not
considered as a scenario. However, you will note that Option 1
for fisheries development (p 165) does refer to this form of
livelihood activity. We would be grateful if you would give
direction as to whether you wish us to include or exclude the
development scenarios from the final report.”
To this last request, Mr Hamilton simply replied by email on 29 May 2002: “You
asked about the inclusion of development scenarios in the final report. Our advice
is that it would be better if these are excluded”.
40. However, as Mr Gifford’s and Mr Dunne’s Analysis Note acknowledges, this
“advice” was not in fact taken up in the final stage 2B report, “where the
Development Scenarios can be seen to be crucial to several parts of the study”.
Nevertheless, the Analysis Note seeks to portray Mr Hamilton’s letter and comments
dated 23 May 2002 as an exercise of editorial control, and his email of 29 May 2002
as “yet further attempts to exercise editorial control over the final report”. To my
mind, there is nothing untoward about them at all. The impression conveyed is one
Page 19
of independently minded exchanges, passing between people whose genuine
concern was to have as thorough, accurate and watertight a final report as possible.
41. Posford’s comments dated 28 May 2002 were evidently also sent to Dr
Sheppard, since he commented on them by email on 31st May 2002 (E2450-2451).
There were further technical exchanges between Brian Little, who had been
appointed as FCO Feasibility Study Project Manager under contract dated 29
January 2001, and Posford in late May and early June (E2452-2458 and E2465-
2467), and a further set of comments by Tony Falkland of Posford responding on
9th June to Dr Sheppard’s comments (E2459-2464) as well as to Brian Little’s
comments (E2465-2468). Dr Sheppard noted Mr Little’s comments on 11 June
(E2469), and Mr Little sent an email commenting on Posford’s response on 12 June
(E2470). A meeting was set up to discuss the final report on Friday 12 June, in
relation to which Mr Hamilton invited Dr Sheppard to act as a devil’s advocate. This
he evidently did (E2476-2477). Some “changes/deletions” were made, leading to
the final report.
42. Reading all these exchanges, nothing in them suggests anything but a proper,
professionally oriented and independent process, with all involved seeking to arrive
at objective and sustainable findings and conclusions.
43. I turn to the alterations which can now be seen to have been made between
the original draft and the final report. The General Conclusions, to which Sheridans
rightly attached importance in their note dated 13 March 2009 (para 21 above), are
now available in both their draft and their final form in the executive summary. A
fundamental point which risks being overlooked in discussion about differences
elsewhere in the executive summary or body of the text is that the “General
Conclusions” can now be seen to have been in identical terms in both their draft and
their final versions. Their terms have been set out in para 12 above. They represent
the critical conclusions, on which the majority in the House of Lords relied as
justifying the Secretary of State’s decision to make the 2004 Constitution Order, and
they were unaltered between the original draft and final versions.
44. Immediately preceding these General Conclusions also appeared the
following section headed “Vulnerability”:
“There appear to be sufficient groundwater, soils, fisheries, and
environmental (eg limited tourism) resources to support a small
population on a subsistence basis with some commercial
opportunity, but there are some more fundamental issues
surrounding the feasibility of resettlement. These relate to the
vulnerability of a resettled population to current and predicted
Page 20
climatic conditions, and the fragility of the environment to
human-induced disturbance.
Under the present climate, it is assumed, based on historic
meteorological patterns and observations, that the islands are
already subject to regular overtopping events, flooding, and
erosion of the outer beaches. As global warming develops,
these events are likely to increase in severity and regularity. In
addition, the area is seismically active, and the possibility of a
tsunami is a concern. These events would threaten both the
lives and infrastructure of any people living on the islands.
Whilst it might be possible to protect the islands to some extent
in the short-term through coastal defence measures, it is likely
to be cost-prohibitive and non-pragmatic to consider this form
of defence in the long-term.
The environment of the Chagos Archipelago is highly diverse
and yet very susceptible to human disturbance. Coral reefs,
which are one of the most important ecosystems within the
Archipelago, are already exhibiting signs of stress from
increased sea surface temperatures and other climatic
phenomenon. Predictions from climate change experts indicate
that mass mortality of reef building corals in the Indian Ocean
is likely to occur as global warming increases, may be as soon
as within the next 20 years. This will not only have huge
implications for the long-term coastal defence of the islands,
and hence their very existence, but will also adversely affect
livelihoods, particularly fisheries and tourism, which are likely
to be the mainstay of any resettled population. Human
interference within the atolls, however well managed, is likely
to exacerbate stress on the marine and terrestrial environment
and will accelerate the effects of global warming. Thus
resettlement is likely to become less feasible over time.”
Again this passage was in identical form in the draft and final stage 2B report, and,
as the Analysis Note acknowledges, it constitutes the basis for the overall negative
assessment in the General Conclusions.
45. The identity of these core sections of the Executive Summary in the draft and
final reports raises obvious problems for the present application. But it is said that
these key sections refer back in turn to section 1.8. It is in section 1.8 that the
summary note dated 15 February 2015 identifies in total four “key amendments”.
Page 21
46. The following passages underlined and marked A, B or C in the following
extracts from the draft report are passages on which Mr Bancoult relies in support
of his case of inappropriately motivated or influenced alteration:
“1.8 CLIMATE CHANGE
The reports of the International Panel on Climate Change were
evaluated to determine the latest projections on climate change.
Global sea levels are expected to rise by about 38cm between
1990 and the 2080s. Indian and Pacific Ocean islands face the
largest relative increase in flood risk. Although there will be
regional variation, it is projected that sea level will rise by as
much as 5mm per year, with a range of 2-9mm per year, over
the next 100 years [B]. With a rise of 0.5 metres in sea level,
the implications of climate change on the Chagos Archipelago
are considerable, given that mean maximum elevation of the
islands is only two metres; the diversity of livelihoods available
is limited; and the relative isolation and exposure of the islands
to oceanic influences and climatic events. These implications
are discussed in the light of biodiversity and resettlement.
1.8.1 Implications for Biodiversity
The impacts of climate change on highly diverse and
productive coastal ecosystems such as coral reefs and atoll
islands will depend upon the rate of sea-level rise relative to
growth rates and sediment supply. In addition, space for and
obstacles to horizontal migration, changes in the climate-ocean
environment such as sea surface temperatures and storminess
as well as human pressures will influence the capacity of
ecosystems to adapt to the impacts of’ climate change.
[Two paragraphs dealing with coral bleaching and reefs]
Species that occupy terrestrial habitats for all or part of their
life-cycle, such as birds, turtles and coconut crabs, will also be
adversely affected by sea level rise. There is considerable
uncertainty about how climate change will affect the natural
environment in the Chagos Archipelago, but that the outcome
is likely to be an unfavourable shift in biodiversity.
Page 22
1.8.2 Implications for Resettlement
The most significant and immediate consequences of climate
change on a resettled population within the Chagos
Archipelago are likely to be related to changes in sea levels,
rainfall regimes, fresh water resources, soil moisture budgets,
prevailing winds (direction and speed) and short term variation
in regional and local patterns of wave action. At present, the
Chagos Archipelago lies just north of an active cyclone belt,
however, a small northward shift of this belt could lead to
frequent cyclones in the area [A]. This would lead to more
frequent flooding of the islands, with corresponding risk to life
and any infrastructure. It would also reduce agricultural
potential and the freshwater contained within the island
aquifers would experience higher levels of salinity.
Irrespective of whether the Chagos Archipelago becomes
subjected to regular cyclones, the general increase in
storminess that may accompany climate change would result in
increased wave energies and an increasing frequency of overtopping events [C]. Based on a 0.5m rise in sea level scenario,
models of overtopping events demonstrate an increase of
between 20-50% of the frequency of severe events. Of further
significance is the probability that sea level rise and
overtopping events would threaten the characteristics and
sustainability of the fresh groundwater lens.
The rate of erosion of the ocean coasts are likely to increase
with sea level rise and·increased storminess, and would be
accompanied by an increase in sediment transport, which
would have implications for shoreline infrastructure. On
islands where physical space is limited, as in Chagos, coastal
defences are likely to be low key and would need to be
developed with a view to sustainability.
It is advised that future settlers on the outer atolls should be
made aware of the risks of climate change in terms of their own
safety and that of any physical investment. Should people wish
to return, it would be prudent to provide specialist assistance in
the preparation of appropriate and sustainable land use and
coastal defence policies, which would ensure that the
vulnerability of the resettled population was minimised as far
as possible.”
Page 23
47. In the final stage 2B report, section 1.8 of the executive summary reads as
follows. Again, the passages underlined and marked A, B and C are passages on
which Mr Bancoult relies in support of his case of inappropriately motivated or
influenced alteration:
“CLIMATE CHANGE
According to the International Panel on Climate Change global
sea levels are expected to rise by about 38cm between 1990 and
the 2080s. Indian and Pacific Ocean islands face the largest
relative increase in flood risk. Although there will be regional
variation, it is projected that sea level will rise by an average of
5mm per year over the next 100 years [B]. The implications of
these predictions for resettlement of the Chagos Archipelago
are considerable, given that mean elevation of the islands is
only two metres.
The most significant and immediate consequences of climate
change for the Chagos Archipelago are likely to be related to
changes in sea-level, rainfall regimes, soil moisture budgets,
prevailing winds, and short term variation in regional and local
patterns of wave action. As a consequence, most islands will
experience increased levels of flooding, accelerated erosion,
and seawater intrusion into freshwater sources. The extent and
severity of storm impacts, including storm surge floods and
shore erosion are predicted to increase [A]. Although the risks
associated with climate change are not easily established the
implications of these issues to resettlement of the outer atolls
of the Chagos Archipelago are outlined briefly below.
Implications for water resources: Rising sea level would not
have a significant effect on island freshwater lenses in the
Chagos archipelago unless land is lost by inundation. If rising
mean sea level causes land to be permanently inundated, then
there will be a consequent loss in fresh groundwater.
Increased storminess [C]: The Chagos islands have a small
storm surge envelope thus even small changes in sea level and
storm surge height implies an increase in the area threatened
with inundation. It has been predicted that the flooding severity
for a 1 in 50-year storm event with 0.5m of sea level rise is
almost as high as the present day 1 in 1000-year event.
Page 24
Inundation can cause seawater intrusion into freshwater lenses.
This not only reduces the availability of water for human
consumption, but if salinity concentrations are high enough it
can lead to decreased agricultural production.
Biological systems and biodiversity: Climate change is
predicted to have a significant impact on the marine and
terrestrial environments of the Archipelago. Coral reefs are one
of the most important ecosystems likely to be affected, and
their ability to cope will depend upon the rate of sea-level rise
relative to their growth rate. The Chagos coral reefs were
severely affected by the 1998 El Nino event, therefore any
future sea surface warming would increase pressure on already
stressed coral reefs. The added pressure of human interference
within the marine environment would further weaken the
ability of these systems to cope with climate change.
Fisheries and aquaculture: It is predicted that climate change
may have a severe impact on the abundance and distribution of
reef fish populations. In addition, there is strong evidence of a
correlation between the annual incidence of ciguatera (fish
poisoning) and local warming of the sea surface, which will
have an impact on fisheries potential, for subsistence and
commercial purposes. Climate change is expected to have both
positive and negative impacts on aquaculture; but the
implications for seaweed farming (as investigated during this
study) is not positive, with increased temperatures leading to
reductions in productivity [D].
Human health, settlement and infrastructure: Populations,
infrastructure and livelihoods are likely to be highly vulnerable
to the impacts of climate change. Sustainability in food and
water availability will be among the most pressing issues,
together with the vulnerability of infrastructure to flooding and
storm surges.
Vulnerability and adaptation: There is a wide range of
adaptation strategies that could be employed by a resettled
population in response to climate change. Integrated coastal
management has been strongly advocated as the key planning
framework for adaptation.
Page 25
Adapting to island instability: There are two issues that need to
be taken into account in adapting to island instability: shoreline
erosion and sediment inundation of the island surface.
Adaptation can fall within three broad categories depending on
the level of infrastructure and population density on islands: no
response; accommodation (infrastructure and dwellings are
replaced at a rate commensurate with island migration); or
protection (maintenance of infrastructure through coastal
protection measures). The latter is likely to be the most costly
strategy, and should be avoided through wise land use
planning.
Adaptation to inundation: Response to inundation will vary
depending on the level of development on islands. On islands
that will have little infrastructure, as is likely to be the case in
Chagos, the costs to protect against inundation are likely to be
prohibitive. Adaptation measures will include siting of
infrastructure in low risk areas and the application of
appropriate infrastructure designs, such as revised floor levels
and open structures. More robust measures to prevent
inundation, such as seawalls, are not recommended as they
necessitate costly maintenance and future vertical extension as
sea level rises, and they can lead to adverse impacts on coastal
habitats.
Adaptation to reef response: Discussion of the possible
response of coral reefs to sea-level rise indicates that at worst
reef food and sediment resources diminish and at best they are
maintained at similar levels or may even increase. The
importance of reefs as both natural coastal protection structures
and providers of food means that any adaptation measures
against climate change, and any human livelihood activities,
should not compromise the health of the reef system.
Minimising adverse effects on reefs will require robust
pollution control measures and effective waste management.
From an examination of projected climate change scenarios, it
is likely that the Chagos Archipelago, and any population
settled on the outer atolls, will be vulnerable to its effects. The
main issue facing a resettled population on the low-lying
islands will be flooding events, which are likely to increase in
periodicity and intensity, and will not only threaten
infrastructure but also the freshwater aquifers and agricultural
production. Severe events may even threaten life. Increases in
Page 26
sea surface temperatures are likely to have adverse effects on
coral reefs and consequently their ability to act as a coastal
defence to the islands, and to support fisheries. This will place
more pressure on resettled populations to not only counteract
the pressures of climate change but also to ensure that their
subsistence and income needs are met.”
48. The “key amendments” relied upon therefore fall under four heads. It is worth
emphasising their limited extent in the overall context of the report, and particularly
in the light of the unaltered General Conclusions and Vulnerability sections.
Whatever the suggestion – whether it is that the alterations were the product of undue
executive influence or that they in some way demonstrate that the final report was
unreliable or that the Secretary of State would have reached a different decision
regarding the making of the 2004 Constitution Order if he had only been shown the
draft rather than the final report – the limited extent of the alterations in the overall
context of the report points to my mind sharply against giving it credence or weight.
49. However, I must also examine the amendments more closely. Taking first the
change identified at [A] the main criticism is that
“The effect of this change is to delete from the feasibility study
the important fact that the Chagos Islands are not within the
cyclone belt at present, but to the North of it. There is no
information anywhere in the Phase 2B study to indicate that (1)
the cyclone belt has moved, either northward or in any other
direction, in the past; or (2) that it is likely to move in the future;
or (3) that if it were to move it would move closer to the Chagos
Islands as opposed to moving further away from them.”
This is not however correct. Both the Gifford/Dunne Analysis Note and Mr
Jenness’s report demonstrate that the passage removed from the draft executive
summary remained in the body of the report: see E1330, citing passages from Part
III which set out the same information as appeared in the draft about the effect of a
small shift north in the cyclone belt.
50. A second criticism addressed to the change at [A] relates to the addition of
new sentences stating that “As a consequence [of climate change], most islands will
experience increased levels of flooding, accelerated erosion, and seawater intrusion
into freshwater sources” and that “The extent and severity of storm impacts,
including storm surge floods and shore erosion are predicted to increase”. For the
latter, it is said, “There is no factual basis and it is not supported by a close reading
of the body of the report”. As to this, two points arise. First, both the draft and the
Page 27
final reports start by stating that the “most significant and immediate consequences
of climate change for the Chagos Archipelago are likely to be related to changes in
sea levels, rainfall regimes, soil moisture budgets, prevailing winds and … wave
action”. The statements in the final version that “As a consequence most islands will
experience increased levels of flooding, accelerated erosion, and seawater intrusion
into freshwater sources” and that the extent and severity of storm impacts, including
storm surge floods and shore erosion are predicted to increase” follow
unsurprisingly from this initial sentence.
51. Second, as to the criticism of lack of evidential support, no basis appears for
doubting that these statements were fully endorsed, and if anything regarded as
understated, by Dr Sheppard. Dr (now Professor) Sheppard was at the time Head of
Biological Sciences at Warwick University, and was (unlike Mr Jenness, who was
a resettlement anthropologist) an acknowledged expert on climate change and
marine science in general and on BIOT in particular. He supported Posford’s
conclusions in this area and believed that they were, if anything, understated: see eg
E2409, where on 14 May 2002 he commented on the draft report:
“Oceanographic, climate, groundwater and soils sections are
scientifically sound (with some queries and revisions suggested).
These broadly show that development in the islands is not
sensible, long term nor sustainable (and may even become
dangerous) for the first two development scenarios.”
See further E2461, where on 31st May Dr Sheppard noted, in relation to rainfall and
recharging of the lenses and in view of changes to future rainfall projected by the
Hadley Centre’s website, that the “consequences to sustainable settlement numbers
could be considerable”; and E2519 to E2523 where in October 2002 he responded
to Mr Jenness’s criticisms of the final version, stating, in particular, that
“past lack of flooding, lack of erosion, steady temperature, are
no guide at all to conditions from now on …”
and that
“… our climatic entry into the ‘unknown’ is difficult to accept
for those who are unversed in such matters, as seems to be the
case with Jenness.” (E2519)
52. Dr Sheppard went on (E2520):
Page 28
“The climate modelling section, which is the part which most
effectively supports the notion that resettlement will be
‘hazardous’ is the most criticised by Jenness. In fact the model
is pretty rigorous and is probably correct. It does miss some
detail, but its general tenet is almost certainly, unhappily for the
Chagos islands, quite accurate, and fits well with climate
modelling and predictions from many other sources. Again,
Jenness is unaware just how much change is forecast. (If he is
aware, he is writing propaganda, not a scientific critique.)”
53. If anything, it is clear that Dr Sheppard thought that Posford should have gone
further. Thus at E2463 he is recorded as having advised on 31 May 2002 that
“following should be further addressed or resolved in the final report”, viz
“Effects of sea level rise on the boundaries or depths of the
lenses, especially in islands whose central parts are near sea
level (two islands were ‘levelled’ and this could be usefully
incorporated).”
Posford’s response was that “The effects of sea level rise on the groundwater
systems was not in the TOR for the groundwater section”. As a further example,
commenting on Mr Jenness’ views at E2522, Dr Sheppard records:
“Cyclones and Earthquakes
Posford do go on a lot about cyclones and earthquakes, which
is validly criticised by Jenness. Whatever weather changes will
occur, cyclones (and certainly earthquakes) are not expected to
change at all. Jenness is correct to say that Posford went
overboard unjustifiably on this. (Posford should – as was
recommended to them – have made more on sea level rise and
warming, which is touched on, and would have been
unassailable.)”
Dr Sheppard’s view about cyclones quite probably led to the removal of the
reference to cyclones from the executive summary to the body of the text. The final
bracketed sentence also speaks against any idea that Posford were engaged in a
whitewash, or that the consultants were not acting independently.
54. Dr Sheppard went on (E2522):
Page 29
“Erosion and overtopping
• Jenness says that ‘there is no need to defer any
plans (for resettlement) before rates of island erosion are
established’. That is plain daft, unless all constructions
are moveable.
• Jenness says that lack of overtopping damage in
the past means that estimates of increased overtopping
in future are exaggerated. The climate is changing, and
the past is now no guide to the future in this respect.
• Jenness acknowledges elsewhere that climate
change is occurring and that things may get worse. But
he says that this is no reason to not develop. All that is
needed is that development should use ‘careful’ land use
planning and management with strong components for
costal management and reef health. What does he mean?
This sweeps a huge issue (the issue) under the carpet.
The only land which will be above projected flooding is
a rim around part of most islands. He says ‘it should not
preclude resettlement of the Chagos in a prudently
planned fashion’. Where?”
55. A final quotation from Dr Sheppard reads (E2524):
“Jenness has much to say about the omissions on health,
economics etc. Some are valid. But he really should go and
stand on one of the islands, holding a copy of the island’s
profile above sea level, before he says “Land loss may be
inevitable and should be planned for. Loss of groundwater can
be planned for …” and “… can be managed with modest
investment”. This may be true for, say 20 years. But beyond
that we are talking here not about a little loss of a beach, but
possibility of broaching of the rims and flooding of large inland
areas.”
56. The upshot is in my opinion that there is no basis for regarding as suspicious
or actually or potentially significant in any way either (a) the removal in the final
version of paragraph 1.8 of the reference to the possibility of a small northward shift
of the cyclone belt or (b) the inclusion of (i) a reference to increased levels of
Page 30
flooding, accelerated erosion and seawater intrusion into freshwater sources or (ii)
the predicted increase in severity of storm impacts, including storm surge floods and
shore erosion.
57. I can take the other three key amendments, [B], [C] and [D] quite briefly. The
first, a change in respect of future sea water level rises from a range of 2-9mm per
year to an average of 5mm a year cannot conceivably be sinister or significant, or,
if it had been known to or focused on by any decision-maker, have led to a change
in any ministerial decision. The second is a complaint that the draft executive
summary referred to “the general increase in storminess that may accompany
climate change” (E2397) while the final executive summary contained a paragraph
starting “Increased storminess” (E2498). The Summary Note does not record that
the latter paragraph continues “the Chagos islands have a small storm surge
envelope thus even small changes in sea level and storm surge height implies an
increase in the area threatened with inundation”. To my mind, there is therefore
nothing in the difference. But, if there is, it is clear from Dr Sheppard’s views,
already set out, that he would support the reported threat. The third and last point
relates to a new paragraph noting that “it is predicted that climate change may have
a severe impact on the abundance and distribution of reef fish populations” (E2499).
The complaint is that the body of the report is expressed in more nuanced terms.
Again, it is clear that Dr Sheppard took a clear view of the likely effects of climate
change, and there is no reason to suspect that the final version represented anything
other than a genuine prediction. Any difference in nuance should also have been
apparent and, whether or not so, cannot conceivably support an argument that the
minister acted irrationally in making the Orders he did on the basis of the final report.
Heads (ii) and (iii)
58. These two heads face in opposite directions. Both aim at undermining the
stage 2B report. But head (ii) does so by relying on Dr Sheppard and his alleged
endorsement of criticisms by Mr Jenness, the resettlement anthropologist instructed
on behalf of Mr Bancoult to consider the stage 2B report in autumn 2002, while head
(iii) suggests that Dr Sheppard’s input into the stage 2B report lacked objectivity
and was unreliable.
59. As to the latter suggestion, the applicant has through his representatives been
prepared for a long time to cast wide-ranging aspersions on a large number of
people, including Dr Sheppard. But I do not think that they are made good, and that
includes the suggestions that Dr Sheppard allowed his interest in preserving coral
reefs to influence the advice he gave government. On the contrary, Dr Sheppard
comes across in the material as a forthright and very independent character, not
hesitating to comment bluntly on those working for government or for the applicant:
see eg his email of 14 May at E2406, comments of 14, 30 and 31 May 2002 set out
Page 31
or reported at E2409-2422, E2450-2451 and E2460-2464 and further comments on
Mr Jenness (some cited above) at E2518-2525. I also see no basis for regarding the
stage 2B report as unreliable or for treating reliance on it as irrational in 2004, simply
because Dr Sheppard had been the sole outside reviewer instructed by the executive,
in addition to Mr Little, who had been appointed as FCO Feasibility Study Project
Manager.
60. As to the former suggestion, although Dr Sheppard agreed with aspects of Mr
Jenness’s report, it is apparent from his comments on that report which I have
already set out that he disagreed fundamentally with any suggestion that Mr
Jenness’s report undermined the conclusions in the stage 2B report, and that he
would himself have gone, if anything, further in discounting the risks of climate
change that underlay those conclusions.
Conclusion relating to the Rashid documents
61. The essential issues, as summarised in Mr Fitzgerald QC’s speaking note, are
(i) whether due disclosure of the Rashid documents would have led to a challenge
by Mr Bancoult’s representatives to the stage 2B report in the original judicial
review proceedings, and, if so, (ii) whether it is likely that such a challenge would
have resulted in a different outcome in the House of Lords on the rationality of the
removal by the 2004 Constitution Order of the right of abode. The two questions are
of course inter-connected, since any decision whether or not to challenge the stage
2B report would have depended on an assessment of the prospects of such a
challenge succeeding.
62. As to the first question, some caution is in my view required before accepting
outright the submission that it is “certain” that there would have been such a
challenge. Mr Bancoult’s advisers had in December 2005 had disclosure of Mr
Hamilton’s extensive letter dated 23 May 2002 evidencing the nature of the FCO’s
involvement in and input into the process of re-drafting and finalisation of the report
(see paras 20 and 37-38 above). Mr Bancoult’s solicitors felt able, from January
2006 onwards, to make serious allegations about lack of independence of the stage
2B report as well as about allegedly significant alterations between the draft and
final versions of the preliminary study from January 2006 onwards (see eg E1472
and E1487). Yet, at the same time, the applicant through Sydney Kentridge QC was
expressly disclaiming before the Divisional Court any challenge to the study or its
outcome: see E1482. Mr Bancoult’s advisers did not at that stage think they could
or should even try to overcome the first hurdle. Further, they maintained this attitude
for years, including after disclosure in October 2010 of the email dated 29 May 2002
(paras 21 and 39-40 above), despite continuing to make serious allegations in
correspondence of lack of independence and invalidity.
Page 32
63. For present purposes, I am however prepared to assume without deciding that
a challenge would have been made, and to proceed directly to a consideration of the
second. In Mr Fitzgerald’s formulation, that is whether it is likely that such a
challenge would have resulted in a different outcome – but in my judgment it makes
no difference ultimately whether the test should be formulated at the slightly higher
level of a requirement to show “a probability” that it would have done so or at the
perhaps slightly lower level of whether it “may well have” done so.
64. The second question reduces itself ultimately to a question whether it is
probable or likely, or whether it may well be, that the material now available would
have led the court (at whichever level the case was being considered) to conclude
that it was irrational or unjustified for the Secretary of State to accept and act on the
General Conclusions set out in the stage 2B report. Those were the General
Conclusions on which the Secretary of State acted when making, and which the
majority in the House of Lords regarded as justifying his decision to make, section
9 of the 2004 Constitution Order. In addressing this question, I proceed on the basis
that it is necessary and appropriate to treat the Secretary of State, when deciding in
June 2004 whether to make section 9 of the 2004 Constitution Order, as having
available to him or within his knowledge all the contemporary material which in fact
existed in the possession of the executive. That includes the draft report and all the
exchanges taking place and advice received in the process of its redrafting and
finalisation. Is it either probable or likely, or may it well be, that the court would
have concluded that the material now shown to have been within the executive’s
possession or knowledge at the relevant date in June 2004 undermines the rationality
or justifiability of the Secretary of State’s decision to rely on such Conclusions?
65. The answer in my opinion is clear. The General Conclusions, and the section
on Vulnerability immediately preceding them remained unaltered from the draft to
the final stage 2B report. There is no probability, likelihood or prospect (and, for
completeness, in my view also no real possibility) that a court would have seen or
would see, in the process of preparation, re-drafting and finalisation of the stage 2B
report and in the associated material which can now be seen to have existed,
anything which could, would or should have caused the Secretary of State to doubt
the General Conclusions, or which made it irrational or otherwise unjustifiable to
act on them in June 2004. On that basis, the application to set aside the House of
Lords’ judgment by reference to the Rashid and other documents disclosed late must
fail.
Additional evidence
66. The first head consists of the Analysis Note. This, as its name indicates,
consists essentially of an analysis of primary material and/or submissions on it. Its
development has taken place over years starting originally it seems as early as 2006
Page 33
and continuing up to at least 2012. We have it in various forms. It is not conceived
or presented as evidence, though I have taken its contents into account in considering
the parties’ respective cases and submissions on the material which is admissible
and relevant.
67. The second head consists of information provided by Mr Stephen Akester,
who, after their chance meeting, wrote to Mr Gifford a letter dated 11 February 2011
explaining the role of his company, MEP, as a sub-contractor to Posford. MEP was
principally concerned with water resources and fisheries, and organised the site visit
to the Chagos in early 2001. Mr Akester explains that his own experience was in
regional development. In his letter, Mr Akester said that after the site visit, MEP
reported and it appears provided Posford with the three development scenarios, after
which Posford and he had no further involvement. But he explained:
“Because I and our team considered that resettlement was
feasible, I prepared a draft of the different levels of
development that would be appropriate to support such
resettlement, given the fragility of the islands and bearing in
mind that there had, in contravention of the normal practice of
consulting potential settlers, been no consultation with the
Chagossians themselves (this was excluded from our terms of
reference).

After submitting our report via PH to BIOT, I was surprised
that we heard nothing further concerning the text of it either
from PH or from BIOT. I was not invited to any further
meetings with BIOT, did not receive any draft prior to its
critique by BIOT on 23 May 2002, and heard nothing more
about the terms of the report until the final Executive summary
had been approved by BIOT and sent to me. By then, it was of
course too late to make any further comments. We were
therefore unable to modify the terms of the ‘General
Conclusion’ which I find to be wrong in its claim that
resettlement involves obstacles which cannot be overcome by
reasonable measures. Such issues are inherent in small island
development and are regularly resolved within reasonable cost
parameters.”
68. That Posford’s sub-contractor may have disagreed with conclusions drawn
by Posford is a matter outside any conceivable sphere of information or knowledge
Page 34
that the Secretary of State or executive may be treated as having had at any material
time. The material is thus correctly analysed as potential fresh evidence. But fresh
evidence going to what issue? The ultimate issue is whether the Secretary of State
was justified in acting as he did on the material which was or should have been
available to him at the time, not whether his decision could be justified on a
revisiting of the whole issue of resettlement in the light of any other material which
either party could adduce now. In any event, the views expressed by Mr Akester in
the letter dated 11 February 2010 cannot meet the test, however relaxed the terms in
which this might be expressed, for setting aside the House of Lords judgment, even
if they were material to any issue. I say this quite apart from the fact that, despite
complaints regarding suggested lack of independence, no step was taken to set aside
that judgment in the years following receipt of such letter, until after the Rashid
documents had been disclosed.
69. The third piece of evidence is a further review of the report, prepared for the
applicant by Professor Paul Kench of the University of Auckland dated 5 October
2012. According to the applicant’s case:
“He concludes that not only were the findings of the ocean and
coastal processes section in the feasibility study unsound,
because of lack of specialist understanding and methodological
flaws, but also that the relevant summary (section 1.6) in the
Executive Summary was not supported by those findings. This
conclusion casts grave doubt on the pivotal findings of the
feasibility study with regard to increased risk of sea-water
flooding, which influenced the decision of the majority in the
House of Lords …”
70. Like the information in Mr Akester’s letter, this material does not go to any
issue relevant to the question whether the Secretary of State acted rationally in the
light of the material to be treated as available or within his or the executive’s
knowledge in June 2004. It would be relevant if the issue were whether the
conclusions in the stage 2B report were sustainable today. But that is not the issue.
I add for completeness that I am also unpersuaded that any good reason has been
shown for not obtaining such an expert’s report at any time prior to the disclosure
of the Rashid documents, having regard to the serious allegations of inadequacy and
lack of independence of the report that were being made at such time, both before
and after receipt of Mr Akester’s letter dated 11 February 2010.
71. The fourth piece of evidence is Posford’s memorandum dated 7 March 2002,
the information in which I am, for reasons already explained, prepared to take into
account as material within the executive’s knowledge, but which does not persuade
me that there is any basis for setting aside the House of Lords judgment.
Page 35
Other relevant considerations
72. There is one other factor, which would have been both relevant and in my
opinion decisive, had I reached a conclusion that the threshold test for setting aside
was or might otherwise have been satisfied. The applicant submits that nothing other
than a reversal of the House of Lords decision (in so far as it proceeded on the basis
that the stage 2B report could be relied on) will overturn the constitutional bar on
their return to the Chagos. But there has been a new 2104-2015 feasibility study,
published by KPMG in March 2015, which assesses the risks differently from the
prior report and finds that, at some cost and taking into account (for the first time)
the possibility of resettlement on Diego Garcia itself (E925-926), there would be
scope for supported resettlement: see E917-918. In practical terms, the background
has shifted, and logically the constitutional ban needs to be revisited. As Mr Steven
Kovats QC expressly accepted during oral submissions, it is open to any Chagossian
now or in the future to challenge the failure to abrogate the 2004 Orders in the light
of all the information now available. That is in my opinion a factor militating
strongly against the setting aside of the House of Lords’ judgment and ordering a
rehearing either of the whole appeal or of the limited issue whether it was rational
for the Secretary of State to make the 2004 Constitution Order in the light of the
material available to him or the executive generally in 2004. Even the latter issue
could lead to further lengthy litigation and, quite possibly, a completely fresh
hearing at first instance about a factually superseded study report.
73. There has been a yet further development consisting of the declaration by the
Secretary of State on 1 April 2010 of the Marine Protected Area (“MPA”) in the
high seas surrounding the Chagos Islands. That declaration is the subject of a
challenge by Mr Bancoult by way of judicial review in Bancoult (No 3). The
challenge failed before the Divisional Court on 11 June 2013, [2013] EWHC 1502
(Admin), and before the Court of Appeal on 23 May 2014, [2014] EWCA Civ 708.
It is now the subject of a combined application to the Supreme Court for permission
to appeal and for a protective costs order without which it is said that it will not be
possible to pursue any appeal.
74. The Secretary of State’s notice of objection dated 6 February 2015 in respect
of this application supports the Court of Appeal’s statement that the MPA (the only
practical effect of which according to the Divisional Court was to prohibit
commercial fishing in BIOT waters) had no meaningful or real effect at all on the
economic, cultural or social development of BIOT, basically because there never
had been commercial fishing there and there is no resident population in BIOT
outside the US naval defence facility. Having said that, the notice goes on to state
that:
Page 36
“The MPA does not preclude resettlement in the event that Her
Majesty’s government concludes that it is appropriate to permit
and/or support resettlement of the islands. Whilst that decision
is being considered in the light of an ongoing Feasibility Study
commenced in January 2014 (and expected to be the subject of
an imminent report by a panel of experts), the possibility of
commercial fishing within the BIOT by a resident population
is not realistic without resettlement and without a resident
population.
The Court of Appeal was right to note that it was therefore the
prohibition on residential settlement on the BIOT which
directly impacted upon the economic, social and cultural
development of the BIOT. But that was not the decision that
was under challenge in Bancoult (No 3). That decision was
unsuccessfully challenged in Bancoult (No 2), culminating in a
decision of the House of Lords …”
75. These passages confirm that resettlement is not precluded by the MPA, if the
outcome of the new KPMG feasibility study of the ensuing public consultation on
resettlement options, and of the ongoing governmental policy review persuades the
government that it is appropriate to permit and support resettlement. If the outcome
of that study, consultation and review does not persuade the government, then Mr
Bancoult will be able, in principle, to apply to challenge the government’s refusal to
permit and/or support resettlement as irrational, unreasonable and/or
disproportionate, whichever may in context be the right test, by way of judicial
review. If the MPA does prove to prejudice or limit the prospects of resettlement or
the nature of any resettlement that may be permitted by the government or on
judicial review by the Court, that will be a result of the MPA, which can only be
avoided or removed by a successful challenge in the Bancoult (No 3) proceedings.
Conclusion
76. For all the reasons I have given, this application to set aside the House of
Lords’ judgment and to direct a rehearing of the appeal to the House of Lords in
Bancoult (No 2) fails in my opinion and must be dismissed.
LORD CLARKE:
77. I am in many ways sympathetic to the case advanced by Mr Bancoult. Indeed,
I was a member of the Court of Appeal which decided the appeal in his favour. In
Page 37
these circumstances it is not perhaps surprising that I much prefer the reasoning of
the minority to that of the majority in the House of Lords. It is however common
ground that the question now before the court is not whether the majority were
correct but whether the issue should be re-opened. I have read the judgments of Lord
Kerr and Lady Hale on one side and of Lord Mance, supported by Lord Neuberger,
on the other. I have reluctantly concluded that Lord Mance’s analysis is to be
preferred and that the application should be refused for the reasons he gives.
78. One of the factors which has led me to that conclusion is that, as I see it, that
is not the end of the road. I agree with Lord Mance’s conclusion in para 72 that there
is a critical factor which is in any event conclusive. The background to much of the
debate between the parties had been the feasibility of the Chagossians returning to
the Chagos Islands. The 2014-2015 feasibility study considers, among other things,
the possibility of resettlement on Diego Garcia. Given that new factor, the study
concludes that there would be scope for supported resettlement. As Lord Mance puts
it, the background has now shifted and logically the constitutional ban needs to be
revisited. The outcome of the new (and ongoing) feasibility study will no doubt
consider the prospects of resettlement.
79. In the light of the results of the study the government will no doubt consider
whether it is (as Lord Mance puts it at para 75) appropriate to permit and support
resettlement. It was expressly accepted on behalf of the government that it will be
open to any Chagossian to challenge the failure to abrogate the 2004 Orders in the
light of all the information which is now available or becomes available in the light
of the ongoing study. For example, it will, at any rate in principle, be open to Mr
Bancoult to institute judicial review proceedings to challenge any future refusal of
the government to permit or support resettlement as, in Lord Mance’s words
“irrational, unreasonable or disproportionate”.
80. In all these circumstances I do not think that it would be right now to set aside
the judgment of the House of Lords and to direct a rehearing. It would be
disproportionate to do so without having regard to the new circumstances taking into
account the possibility of resettlement on Diego Garcia.
LORD KERR: (dissenting) (with whom Lady Hale agrees)
Introduction
81. The Chagos Islands are in the middle of the Indian Ocean. Since the early
19th century they had been part of the British colony of Mauritius but they were
detached from that country before Mauritius gained its independence in 1968.
Page 38
82. The islands consist of a group of coral atolls. The largest of these, Diego
Garcia, has a land area of approximately thirty square kilometres. To the north of
this are Peros Banhos (thirteen square kilometres) and the Salomon Islands (five
square kilometres).
83. In 1962 a Seychelles company acquired the coconut plantations on these three
islands. The gathering of coconuts and the extraction and sale of the copra or kernel
from them was the main form of employment for the inhabitants. After the
acquisition of the plantations, it appears that the company exercised a paternalistic,
even feudal, control of the islands’ affairs. Company officers acted as justices of the
peace and generally administered most aspects of civilian life. Partly as a
consequence of that, Chagossians had what might be considered to be a simple
existence. They were largely illiterate and their skills were confined to those that the
activities on the islands required. But it was an existence which they valued and,
especially when contrasted with what transpired after 1971, one which was
unquestionably worthwhile.
84. Apart from indigenous inhabitants, some workers on the plantations came
from Mauritius and the Seychelles. But the settled population of the three islands
was some 1,000 in 1962. Many of the families which comprised that population had
lived in the islands for generations. Their living conditions, although not at all
affluent, were far from deprived. Every family had a house and some land. They
grew vegetables on the land and kept poultry or pigs to supplement the imported
provisions which the company supplied. Some fishing also took place. All who
wanted to have and were capable of employment had a job. This was principally in
the copra industry but employment was also to be had in construction, boat building
and domestic service. The Chagossians therefore enjoyed what Lord Hoffmann (in
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No2)
[2009] AC 453) described as “a rich community life”.
85. World affairs were soon to interrupt that simple but rich community life.
Events are well described in para 6 of Lord Hoffmann’s speech:
“Into this innocent world there intruded, in the 1960s, the brutal
realities of global politics. In the aftermath of the Cuban missile
crisis and the early stages of the Vietnam War, the United
States felt vulnerable without a land based military presence in
the Indian Ocean. A survey of available sites suggested that
Diego Garcia would be the most suitable. In 1964 it entered
into discussions with Her Majesty’s government which agreed
to provide the island for use as a base. At that time the
independence of Mauritius and the Seychelles was foreseeable
and the United States was unwilling that sovereignty over
Page 39
Diego Garcia should pass into the hands of an independent,
non-aligned government. The United Kingdom therefore made
the British Indian Ocean Territories Order 1965 (the BIOT
Order) which, under powers contained in the Colonial
Boundaries Act 1895 (58 & 59 Vict c 34), detached the Chagos
Archipelago (and some other islands) from the colony of
Mauritius and constituted them a separate colony known as
BIOT …”
86. In 1966, in an exchange of notes between the British and United States’
governments, the United Kingdom agreed in principle to make BIOT available to
the United States for defence purposes. Later in the same year it was agreed that a
military base on Diego Garcia would be established and that the United States would
be allowed to occupy the other islands if they wished.
87. In 1967, the UK government bought all the lands held by the Seychelles
company. Although the company was granted a lease which allowed it to continue
to run the coconut plantations, it was stipulated that this would come to an end
whenever the United States needed the islands. In 1970 the US government gave
notice that it would need Diego Garcia in July 1971 and, acting under powers
granted to him by the British Indian Ocean Territories Order 1965, the
Commissioner for BIOT promptly made the Immigration Ordinance 1971. It
provided (in section 4(1)) “that no person shall enter the territory or, being in the
territory, shall be present or remain in the territory, unless he is in possession of a
permit … [issued by an immigration officer]”.
88. Even before the making of this Ordinance, the UK authorities were active in
preparing for the occupation of Diego Garcia by the United States. Between 1968
and 1971 they secured the removal of the inhabitants of the island, mainly to
Mauritius and the Seychelles. A small population remained for a short time on Peros
Banhos and the Salomon Islands, but they too were evacuated by the middle of 1973.
The islanders were told that the company was closing down its activities and that
unless they accepted transportation elsewhere, they would be left without supplies.
In effect, therefore, although they were not forcibly removed, they were given no
choice but to leave their homes.
89. The Chagossians were resettled mainly in Mauritius. There they were largely
left to their own devices. Since that country suffered high unemployment and
considerable poverty, the conditions in which the displaced Chagossians were
required to live, principally in the slums of St Louis, were miserable and squalid. It
is now beyond question that their interests had not been considered by the British
authorities to any extent. Indeed, one might say that the removal of the Chagossians
from their homes was cynically engineered by ensuring that the Seychelles company
Page 40
could no longer continue its commercial activities and that the inhabitants’ means
of livelihood was thereby brought to an inevitable end. As Lord Hoffmann put it (in
para 10 of his speech), “the removal and resettlement of the Chagossians was
accomplished with a callous disregard of their interests.”
Legal proceedings
90. In 1975 proceedings were issued by a former inhabitant of Diego Garcia,
Michael Vencatessen, against the Foreign Secretary, the Defence Secretary and the
Attorney General. Damages were claimed for intimidation and deprivation of liberty
associated with the circumstances in which he had been required to leave Diego
Garcia. In negotiations between the UK government and Mr Vencatessen’s advisers,
the latter were treated as acting on behalf of all the Chagossians.
91. An initial purported settlement of the claim failed to win the approval of the
Chagossian community and negotiations resumed in which the Mauritius
government was also involved. Finally in July 1982 it was agreed that the UK
government would pay £4m into a trust fund for the Chagossians, set up under a
Mauritian statute. The agreement was signed by the two governments in the presence
of Chagossian representatives. It provided that individual beneficiaries should sign
forms renouncing all their claims arising out of their removal from the islands. The
vast majority of the displaced persons signed.
92. Matters did not end there. On 30 September 1998 Mr Bancoult applied for
judicial review of the Immigration Ordinance 1971 and a declaration that it was void
because it purported to authorise the banishment of British Dependent Territory
citizens from the Chagos Islands. He also sought a declaration that the policy which
prevented him from returning to and residing in the territory was unlawful. The UK
government reacted to these proceedings by commissioning an independent
feasibility study to examine whether it would be possible to resettle some of the
Chagossians on Peros Banhos and the Salomon Islands. Return to Diego Garcia was
regarded as unfeasible because, under the arrangements made with the UK
government, the United States was entitled to occupy that island until 2016 at least.
93. On 3 November 2000 the Divisional Court (Laws LJ and Gibbs J) gave
judgment in favour of Mr Bancoult: R (Bancoult) v Secretary of State for Foreign
and Commonwealth Affairs [2001] QB 1067 (Bancoult (No 1)). An order was made
quashing section 4 of the Immigration Ordinance 1971 as ultra vires. The
government did not appeal this decision. Instead the Foreign Secretary issued a
statement in which he referred to the feasibility study, Phase 2 of which was, he said,
well under way. As a result of the court’s judgment, the statement said, the feasibility
Page 41
of resettling the Chagossians took on “a new importance” and a new Ordinance
allowing them to visit the outer islands would be made.
94. On the same day that the statement was issued, the commissioner revoked the
1971 Immigration Ordinance and made the Immigration Ordinance 2000. This
largely repeated the provisions of the previous Ordinance but contained a new
section 4(3) which provided that the restrictions on entry or residence imposed by
section 4(1) should (with the exception of Diego Garcia) not apply to anyone who
was a British Dependent Territories citizen by virtue of his connection with BIOT.
Some Chagossians visited the outer islands to tend family graves or to re-familiarise
themselves with the lands that they had been forced to leave. No-one attempted to
resettle there.
95. Before the feasibility study was published, a group action was begun on
behalf of the Chagossians. This claimed compensation and restoration of the
property rights of the islanders and declarations of their entitlement to return to all
the Chagos Islands and to measures facilitating their return. The action was taken
against the Attorney General and other ministers. On 9 October 2003 Ouseley J in
Chagos Islanders v Attorney General [2003] EWHC 2222 struck out this action on
the grounds, inter alia, that the claim to more compensation after the settlement of
the Vencatessen case was an abuse of process, and that the claims were in any case
statute-barred. An application for leave to appeal against that order was refused on
22 July 2004 (Dame Elizabeth Butler-Sloss P, Sedley and Neuberger LJJ) [2004]
EWCA Civ 997.
96. The feasibility report was published in June 2002. Its findings were
summarised by Lord Hoffmann in para 23 of his speech:
“… It concluded that ‘agroforestal production would be
unsuitable for commercial ventures’. So there could be no
return to gathering coconuts and selling copra. Fisheries and
mariculture offered opportunities although they would require
investment. Tourism could be encouraged, although there was
nowhere that aircraft could land. It might only be feasible in
the short term to resettle the islands, although the water
resources were adequate only for domestic rather than
agricultural or commercial use. But looming over the whole
debate was the effect of global warming which was raising the
sea level and already eroding the corals of the low lying atolls.
In the long term, the need for sea defences and the like would
make the cost of inhabitation prohibitive. On any view, the
idyll of the old life on the islands appeared to be beyond recall.
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Even in the short term, the activities of the islanders would
have to be very different from what they had been.”
97. In light of the feasibility report the government decided that it would not
support resettlement of the islands. In any event, in their perception, Diego Garcia
would have to be excluded from any resettlement plans because of what was
considered to be the UK’s treaty obligations to the United States. Added to these
considerations were reports of planned direct action by various groups who intended
to launch landing expeditions to the islands. These factors combined to prompt the
government to restore full immigration control. The British Indian Ocean Territory
(Constitution) Order 2004 (the Immigration Order) was made. This included section
9 which provided:
“(1) Whereas the territory was constituted and is set aside to
be available for the defence purposes of the government of the
United Kingdom and the government of the United States of
America, no person has the right of abode in the territory.
(2) Accordingly, no person is entitled to enter or be present
in the territory except as authorised by or under this Order or
any other law for the time being in force in the territory.”
98. A challenge to the validity of section 9 by way of judicial review was made.
The Divisional Court [2006] EWHC 1038 (Admin), paras 120-122 held that it was
invalid because its rationality had to be judged by the interests of BIOT. That meant
the people who lived or used to live on BIOT. The Court of Appeal (Sir Anthony
Clarke MR, Waller and Sedley LJJ) [2008] QB 365 affirmed that decision but on
somewhat different grounds. The Master of the Rolls and Sedley LJ held that there
had been an abuse of power in enacting the 2004 Order because the interests of the
Chagossians had not been taken into account. All three members of the Court of
Appeal agreed that the Foreign Secretary’s statement after the judgment in Bancoult
(No 1) and the Immigration Ordinance 2000 constituted promises to the Chagossians
which gave rise to a legitimate expectation that, in the absence of a relevant change
of circumstances, their rights of entry and abode in the islands would not be revoked
and there had been no such change. The Court of Appeal’s decision was appealed to
the House of Lords and by a majority (Lord Hoffmann, Lord Rodger and Lord
Carswell, Lord Bingham and Lord Mance dissenting) R (Bancoult) v Secretary of
State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453 the appeal was
allowed and the decision of the Court of Appeal was reversed.
Page 43
The present application
99. By this application, Mr Bancoult, the respondent in the appeal before the
House of Lords, seeks to have its decision set aside on the ground of material nondisclosure. He claims that documents held by the defendant which should have been
produced in the course of the earlier proceedings are likely to have made a
significant difference to the outcome of those proceedings. Before examining that
claim, it is necessary to say something about the various stages and phases that were
planned for the feasibility study and how those stages and phases changed in the
course of its progress. It will also be necessary to consider the opinions of the House
of Lords before assessing whether disclosure of the documents is likely to have
affected its decision.
The various stages of the feasibility study and the process of disclosure
100. The report on stage 1 of the feasibility study had been published in June 2000
just before the hearing of Bancoult (No 1). It was, the applicant claims, largely in
favour of resettlement. It identified fishing as a major means of subsistence for a
resettled population. Shortly after the Foreign Secretary’s statement following the
decision in Bancoult (No 1), the stages of the feasibility study were re-named. Stage
1 was now referred to as the preliminary study. Phase 2A was to be a technical report
on hydrogeological monitoring on the Salomon and Peros Banhos atolls. A more
substantial Phase 2B was to be a general examination of some pre-requisites to resettlement, prior to the full cost benefit analysis that was originally intended to come
at stage 2 but which would now be a stage 3 of the report.
101. Phase 2A, the hydrogeological survey, was started in 2001 but was never
published as a separate report, its work being subsumed into Phase 2B. The latter
phase was begun in late 2001 and completed in mid-2002. A report on it was
published in July 2002. The full cost-benefit analysis, contemplated as stage 3 was
never carried out. Phase 2B reported that resettlement would be precarious and that
its cost would be prohibitive. The government decided not to proceed with the
planned stage 3 (the cost-benefit analysis). It terminated consideration of
resettlement, and introduced the 2004 Order prohibiting residence on the islands.
102. Richard Gifford was a partner in the firm of solicitors which acted for Mr
Bancoult in the litigation which culminated in the decision of the House of Lords.
In advance of the hearing before the Divisional Court he sought disclosure of the
drafts of the three phases of the feasibility study and of any comments made on these
by officials. Correspondence was exchanged with the Treasury Solicitor in which
the relevance of some of the material sought was disputed but it is unnecessary to
review this. Comments on the draft of the preliminary study could not be located at
Page 44
first. They were then discovered and supplied. Mr Gifford claims that they revealed
“clear evidence of a crude re-writing of the important ‘General Conclusion’ from an
entirely positive statement to a qualified one”.
103. It might be thought that since the document which is said to have prompted
the 2004 Order was the report on the Phase 2B study, the re-writing of the
preliminary report’s conclusion is of no particular importance. The fact that it was
rewritten, however, when set against the now known position that there was
extensive rewriting of the draft Phase 2B report may indicate a greater need for
caution in examining the reasons for this rewriting.
104. On 6 December 2005 the Treasury Solicitor had written to Mr Gifford stating
that draft reports for the preliminary feasibility study and the Phase 2B study report
had been located and were available for inspection. In a letter of 13 December,
however, this statement was corrected and it was stated that only a draft of the
preliminary study had been found. No draft for the Phase 2B report had been found.
This was confirmed in a letter of 23 December 2005.
105. During the hearing before the Divisional Court a number of inquiries were
made by the judges of the defendant as to whether all relevant documents had been
disclosed. The court was informed that if any further relevant documents were found
these would be disclosed. Subsequently, on 3 February 2006, Mr Bancoult’s
solicitor wrote to the defendant, specifically asking for the disclosure of “all
documents and materials which demonstrate and support your counsel’s assertion
that resettlement of the Chagos Islands is ‘not feasible’”. This was met with the
response that the material was not relevant but, when the appeal against the
Divisional Court’s decision was pending, the UK Chagos Support Association asked
for a copy of the draft of the Phase 2B report, and was informed by letter from the
Foreign and Commonwealth Office on 6 October 2006 that no copy of the draft
report had been retained on their files. This was confirmed on 9 November 2006, in
response to a Freedom of Information request.
106. The applicant claims that, faced with the absence of relevant documentation
relating to the production and acceptance of the feasibility study, it was considered
that a challenge to the reliability of the study could not be made. Counsel for the
claimant in the Court of Appeal therefore stated that the government’s entitlement
to terminate the feasibility study after the Phase 2B report and to decline to support
a return to the islands was not contested. In view of the appellants’ knowledge at
that time, I do not consider that this was in any sense unreasonable.
107. In any event, the stance taken by counsel did not make the feasibility study
irrelevant to the case, however. The report remained relevant as being the alleged
Page 45
“good reason” relied on for not proceeding with resettlement and for denying
Chagossians the right to return.
108. But the challenge to the government’s decision would have been, the
applicant claims, of a very different stripe, if the existence of highly critical
comments on the Phase 2B report had been known. Then the rationality of the
decision not only not to fund resettlement but to deny Chagossians the right to return
to the islands would have been strongly contested. That challenge would have been
founded directly on the lack of reasonableness in relying on a report which was so
obviously flawed and open to criticism.
109. The existence of undisclosed documents first became known in the course of
the hearing before the High Court of a case called R (Bancoult) v Secretary of State
for Foreign and Commonwealth Affairs (No 3) [2013] EWHC 1502 (Admin). That
case concerned the creation of a “no take” marine protected reserve around the
Chagos Islands on 1 April 2010. In those proceedings Mr Bancoult challenged the
legality of the creation of the reserve. Exhibited to a witness statement filed on
behalf of the Foreign Secretary (the defendant in the proceedings) was a bundle of
documents. The statement to which the documents were exhibited was that of Zaqia
Rashid, a solicitor in the Treasury Solicitor’s department. She observed that she
produced the documents without comment as to the reasons that they had not been
disclosed earlier.
110. Before Ms Rashid’s statement in Bancoult (No 3) had been received, Mr
Bancoult had made a number of freedom of information requests to the Foreign and
Commonwealth Office concerning drafts of the feasibility reports. He was not
satisfied with the replies that he received and lodged a complaint with Information
Commissioner and a subsequent appeal to the First-tier Tribunal General Regulatory
Chamber – Chagos Refugees Group (in Mauritius) v Information Comr (Case
EA/2011/0030). The hearing of the appeal took place after the documents attached
to Ms Rashid’s statement had been received and was therefore principally concerned
with two memoranda which had not been included in those documents. It also
touched on explanations given for the failure to disclose the documents, however.
The Foreign Office explained that this was due to a combination of factors. There
had been a clerical oversight in relation to some of these and a recall of archived
material which was more rigorously reviewed in the course of the Bancoult (No 3)
litigation led to others being disclosed.
111. What have become known as the Rashid documents (ie those exhibited to Ms
Rashid statement) contained a draft version of the executive summary of the Phase
2B feasibility study; and a covering letter from Posford (Royal) Haskoning (the
consultants appointed to carry out the study) forwarding the remaining draft
volumes. They also contained a number of documents generated during the
Page 46
preparation and finalisation of the feasibility study. These included (1) documents
relating to the scope of work to be undertaken both for the first part of the original
two stage study, later re-named the preliminary study under the Phase 2A contract
and under the Phase 2B contract; (2) a memorandum of a meeting between BIOT
officials and the consultants; (3) correspondence between the FCO and an external
scientific adviser in relation to the Chagos Archipelago, Dr Charles Sheppard; (4)
correspondence between the Foreign Office and the consultants and (5) details of
the amendments to the draft Phase 2B report.
The House of Lords decision
112. The appeal to the House of Lords from the Court of Appeal’s decision ranged
over three principal areas, only one of which is relevant to this application. The first
concerned the scope of the courts’ power to review the validity of an Order in
Council legislating for a colony. What were described as “the extreme positions”
adopted by the parties were both rejected by Lord Hoffmann. It had been argued on
behalf of the government that no review of the making of an Order in Council was
legally legitimate since this involved the exercise of a legislative power. On behalf
of the Chagossians it was claimed that the right of abode in one’s homeland was so
sacred that the Crown did not have power to remove it in any circumstances. Lord
Hoffmann decided that there was a power of review and that the main point in the
appeal was “the application of the ordinary principles of judicial review” (para 52).
The question whether there had been any contravention of those principles was the
second principal area involved in the appeal and it is this ground which underpins
the current application. I will consider it presently.
113. The other two members of the majority, Lord Rodger and Lord Carswell,
agreed with Lord Hoffmann on his rejection of the “extreme positions” of the parties
on whether the government had power to make the Order. They also agreed that the
courts had power to review the making of the 2004 Order on the normal judicial
review grounds (paras 105 and 122).
114. The third area of dispute was whether a legitimate expectation on the part of
the Chagossians had been created by the Foreign Secretary’s statement and the 2000
Ordinance. Lord Hoffmann held that this argument failed at the first hurdle – that
there had to be a promise which was “clear, unambiguous and devoid of relevant
qualification” per Bingham LJ in R v Inland Revenue Comrs, Ex p MFK
Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. Lord Rodger and Lord
Carswell agreed.
115. In powerful dissenting speeches, Lord Bingham and Lord Mance concluded
that the government did not have power by Order in Council to exclude the
Page 47
Chagossians from their homeland – (Lord Bingham at para 71 and Lord Mance at
para 160). They also held that the Foreign Secretary’s statement and the making of
the 2000 Ordinance created a legitimate expectation on the part of the Chagossians
that they would be allowed “to return to the outer islands unless or until the United
Kingdom’s treaty obligations might at some later date forbid it” – Lord Bingham at
para 73. These findings and their conflict with the conclusions of the majority are
not relevant to this application. The findings of Lord Bingham and Lord Mance in
relation to the rationality of the decision to make the 2004 Order most certainly are,
however. But before examining their reasons for determining that that decision was
irrational, it is necessary to look at the speeches of the majority in order to see
precisely why they considered that the charge of irrationality had to fail.
116. The summary of the findings of the feasibility report contained in para 23 of
Lord Hoffmann’s speech has been set out above (para 16). This provided the
backdrop to his examination of the issue of irrationality. Having accepted Sir
Thomas Bingham MR’s statement of principle in R v Ministry of Defence, Ex p
Smith [1996] QB 517, 554, to the effect that where a measure affects fundamental
rights or has profoundly intrusive effects, the courts will anxiously scrutinise the
decision to introduce it, Lord Hoffmann said this at para 53:
“… However, I think it is very important that in deciding
whether a measure affects fundamental rights or has
profoundly intrusive effects, one should consider what those
rights and effects actually are. If we were in 1968 and
concerned with a proposal to remove the Chagossians from
their islands with little or no provision for their future, that
would indeed be a profoundly intrusive measure affecting their
fundamental rights. But that was many years ago, the deed has
been done, the wrong confessed, compensation agreed and
paid. The way of life the Chagossians led has been irreparably
destroyed. The practicalities of today are that they would be
unable to exercise any right to live in the outer islands without
financial support which the British government is unwilling to
provide and which does not appear to be forthcoming from any
other source. During the four years that the Immigration
Ordinance 2000 was in force, nothing happened. No one went
to live on the islands. Thus their right of abode is, as I said
earlier, purely symbolic. If it is exercised by setting up some
camp on the islands, that will be a symbol, a gesture, aimed at
putting pressure on the government. The whole of this litigation
is, as I said in R v Jones (Margaret) [2007] 1 AC 136, 177 the
continuation of protest by other means. No one denies the
importance of the right to protest, but when one considers the
rights in issue in this case, which have to be weighed in the
Page 48
balance against the defence and diplomatic interests of the
state, it should be seen for what it is, as a right to protest in a
particular way and not as a right to the security of one’s home
or to live in one’s homeland. It is of course true that a person
does not lose a right because it becomes difficult to exercise or
because he will gain no real advantage by doing so. But when
a legislative body is considering a change in the law which will
deprive him of that right, it cannot be irrational or unfair to
consider the practical consequences of doing so. Indeed, it
would be irrational not to.”
117. Some observations can be made about this passage. In the first place it clearly
implies that a decision to remove the Chagossians from their homeland with little or
no provision for their future would indeed be a profoundly intrusive measure and
one for which compelling justification would be required. And, of course, this is
precisely what happened between 1968 and 1973. The Chagossians were removed.
The islanders’ need to accept that removal must have been seen by them as a matter
of survival. Whatever one might think of the argument that the evacuation of the
islands was necessary (and, therefore, justified) in order to accommodate the
American bases, it is impossible to defend the failure to ensure that the Chagossians
were adequately housed and provided for in their new surroundings.
118. In accordance with the standard set by Lord Hoffmann, the decision to
remove the Chagossians without making adequate provision for them and their
subsequent actual removal when that provision was not in place must therefore have
been irrational when those events occurred. The fact that their removal, when it in
fact occurred, was unreasonable cannot, in my opinion, be left out of account in
assessing whether the subsequent decision to perpetuate the Chagossians’ exile was
rational. I will give my reasons for that conclusion later.
119. Secondly, it appears that Lord Hoffmann considered that the importance of
the right to live in the outer islands, because it could not be fulfilled without financial
help, was diminished because it was “purely symbolic”. This was a view strongly
challenged in the speech of Lord Mance. In para 138 he said:
“… [The wish of the Chagossians] for recognition of their
historic connection, and on their case rights of abode, in
relation to the Chagos Islands is deep-felt, longstanding and, in
my view, understandable. Arguments that any right of abode is
symbolic, since it would be impracticable to exercise without
expensive government support to which it is accepted that there
is no right and which would not be forthcoming, in my view
miss the point. If anything, they indicate that the right claimed
Page 49
could be recognised without this being likely to have any
practical effect on the present state of the Chagos Islands.
These islands (apart from Diego Garcia) appear to exist as an
unspoilt nature paradise to which an increasing number of longdistance yachtsmen venture to spend periods of months without
noticeable disturbance to the operations of the United States
base at Diego Garcia many miles away.”
120. This passage throws into sharp focus the question whether the practicability
of fulfilment of an undeniable right affects its intrinsic worth. It also emphasises the
need to look closely at the question whether it was necessary to deny the
Chagossians the right to live on the outer islands in order to avoid responsibility for
funding such an option. At a theoretical level at least, a clear distinction can be
drawn between, on the one hand, a refusal to underwrite the costs of resettlement,
and, on the other, depriving the Chagossians of the right to return to their homeland.
If all that the British government wanted to avoid was paying for the cost of
resettlement, why should it not simply say so? But the riposte to an argument that it
was unnecessary to forbid return to the islands and that refusing to fund such a return
was enough to achieve the government’s aims might be that given by Lord
Hoffmann himself. This was that to permit an unfunded return would merely assist
in the campaign on which the Chagossians were embarked. In order to frustrate that
campaign, it was necessary to remove from the Chagossians their right to return to
the place where they and their ancestors were born and had lived.
121. Lord Mance suggested (also in para 138 of his speech) that it had not been
shown that “that the Chagossians have been, in Bancoult (No 1) or the present
proceedings, engaged in a mere campaign to obtain the UK government support for
resettlement or to embarrass the United Kingdom and United States governments”.
Whether or not there was evidence from which to infer that there was such a
campaign, it is clear from Lord Hoffmann’s speech that the rationality of the
decision to enact the 2004 Order depended crucially on its being shown that the
conclusion that it was necessary in order to forestall a campaign by the Chagossians
was not unreasonable. This is also clear from the speeches of Lord Rodger and Lord
Carswell. At para 112, Lord Rodger said that “the decision to legislate and to
introduce immigration controls … appears to have been prompted by the prospect
of protesters attempting to land on the islands.” And at para 132 Lord Carswell
expressed his full agreement with Lord Hoffmann and Lord Rodger.
122. Does the decision of the majority on the issue of irrationality preclude any
re-examination of the question of whether the right of the Chagossians to go and live
where they were born was merely symbolic or, if it was, that its importance was
thereby devalued? Is the second question set out above (whether the purpose of the
Chagossians’ challenge was to advance a campaign to obtain financial support from
the UK government and to embarrass the UK and US governments) forever settled
Page 50
by the decision of the majority? In my opinion, the answer to these questions is a
conditional “No”. The conclusion that the decision to enact the 2004 Order could
withstand the charge of irrationality was multi-factorial. If it now transpires that one
of the bases for that conclusion was reliance on information that has now proved to
be wrong or incomplete, this inevitably reflects on the cogency of the other grounds
on which the conclusion was based. The various reasons for a decision such as this
are, of their nature, interlinked. They may also be interdependent. Weight given to
one factor may be affected by the discovery that the weight given to another can no
longer be sustained. If, therefore, it emerges that the decision on the feasibility of
resettlement was reached on information that was plainly wrong or open to serious
challenge and that it is at least distinctly possible that a different decision on that
question would have been formed had the full picture been known, it seems to me
that the rationality of the enactment of the 2004 Order should be re-examined
generally.
123. Leaving that debate aside for the present, however, it is necessary to focus
directly on the feasibility of a return to the islands and the various views expressed
about that.
124. Lord Hoffmann’s summary of his conclusions (para 23 of his speech) on this
question have already been discussed. He also relied on the written statement to the
House of Commons on 15 June 2004 by the Foreign Office Under Secretary of State,
Mr Bill Rammell, that in the light of the feasibility report it would be impossible for
the government to promote or even permit resettlement to take place.
125. Lord Rodger also relied on the contents of the feasibility report and Mr
Rammell’s statement. At paras 112 and 113 he said this:
“112. On 15 June 2004 a junior minister, Mr Rammell, made
a written statement to Parliament. His good faith has not been
impugned by the respondent. The statement shows that, in
deciding to legislate to prevent people resettling on the outer
islands, the government took into account the fact that the
economic conditions and infrastructure which had once
supported the way of life of the Chagossians had ceased to
exist. Something new would have to be devised. The advice
was that the cost of providing the necessary support for
permanent resettlement was likely to be prohibitive and that
natural events were likely to make life difficult for any resettled
population. Human interference within the atolls was likely to
exacerbate stress on the marine and terrestrial environment and
would accelerate the effects of global warming. Flooding
would be likely to become more frequent and would threaten
Page 51
the infrastructure and the freshwater aquifers and agricultural
production. Severe events might even threaten life. The
minister recorded that, for these reasons, the government had
decided to legislate to prevent resettlement. Although he made
no mention of it, the decision to legislate and to introduce
immigration controls at that particular time appears to have
been prompted by the prospect of protesters attempting to land
on the islands. In addition, Mr Rammell said that restoration of
full immigration control over the entire territory was necessary
to ensure and maintain the availability and effective use of the
territory for defence purposes. He referred to recent
developments in the international security climate since
November 2000 when such controls had been removed.
113. The ministerial statement indicates that a decision to
legislate was taken on the basis of the experts’ (second) report
on the difficulties and dangers of resettling the islands – these
difficulties and dangers being dangers and difficulties which
would affect the Chagossians themselves, if they were to try to
live on the outer islands. Given the terms of that report alone,
it could not, in my view, be said that no reasonable government
would have decided to legislate to prevent resettlement. In
particular, the advice that the cost of any permanent
resettlement would be prohibitive was an entirely legitimate
factor for the government which is responsible for the way that
tax revenues are spent to take into account. In addition, the
government had regard to defence considerations, the views of
its close ally, the United States, and the changed security
situation after 9/11. These additional factors reinforce the view
that the decision to legislate was neither unreasonable nor
irrational.”
126. Although Lord Rodger noted that factors other than those outlined in the
experts’ second report were in play, it is clear from these paragraphs that he
acknowledged that the report was the principal influence in the government’s
decision. He identified a number of features from it as being of particular
importance: 1. the cost of permanent resettlement was likely to be prohibitive; 2.
natural events would make life difficult for the inhabitants; 3. stress on the marine
and terrestrial environments would be aggravated; 4. the effects of global warming
would be increased; 5. flooding was likely to become more frequent and fresh water
supplies and agricultural production would be endangered; and 6. severe events
might even threaten life. By any standard, these were anticipated consequences of
considerable moment.
Page 52
127. Lord Carswell also relied heavily on the report. At para 121 he said that it
was “quite clear” that resettlement was “wholly impracticable without very
substantial and disproportionate expenditure”. The practical difficulties in the way
of resettlement were in his view “relevant to the rationality of the government’s
decision”.
128. The claims made for the rationality of the decision to introduce the 2004
Order were forthrightly rejected in a lucid and strong passage of Lord Bingham’s
speech. At para 72 he said:
“… section 9 was irrational in the sense that there was, quite
simply, no good reason for making it. (1) It is clear that in
November 2000 the re-settlement of the outer islands (let alone
sporadic visits by Mr Bancoult and other Chagossians) was not
perceived to threaten the security of the base on Diego Garcia
or national security more generally. Had it been, time and
money would not have been devoted to exploring the feasibility
of resettlement. (2) The United States government had not
exercised its treaty right to extend its base to the outer islands.
(3) Despite highly imaginative letters written by American
officials to strengthen the Secretary of State’s hand in this
litigation, there was no credible reason to apprehend that the
security situation had changed. It was not said that the criminal
conspiracy headed by Osama bin Laden was, or was planning
to be, active in the middle of the Indian Ocean. In 1968 and
1969 American officials had expressly said that they had no
objection to occupation of the outer islands for the time being.
(4) Little mention was made in the courts below of the
rumoured protest landings by LALIT. Even now it is not said
that the threatened landings motivated the introduction of
section 9, only that they prompted it. Had the British authorities
been seriously concerned about the intentions of Mr Bancoult
and his fellow Chagossians they could have asked him what
they were. (5) Remarkably, in drafting the 2004 Constitution
Order, little (if any) consideration appears to have been given
to the interests of the Chagossians whose constitution it was to
be. (6) Section 9 cannot be justified on the basis that it deprived
Mr Bancoult and his fellows of a right of little practical value.
It cannot be doubted that the right was of intangible value, and
the smaller its practical value the less reason to take it away.”
129. Now, it is true that none of the reasons outlined in this paragraph touches on
the question of feasibility as such but they provide a powerful and, in my view,
unanswered case for rejecting the claim that the decision to introduce the 2004 Order
Page 53
was rational unless it could be shown that the feasibility argument was so strong as
to outweigh it. This is crucial. If significant doubt could have been cast on the claims
made in relation to feasibility, then the case for the government that its decision was
rational would have been thrown into considerable disarray.
130. Lord Mance was unimpressed by the use of the feasibility report as a basis
for denying the Chagossians their fundamental right of abode in their homeland. At
para 168 he pointed to the central incongruity of using a report published in 2002 to
justify the enactment of the 2004 Order, two years later and to the circumstance that
the government had been found to be under no legal obligation to fund resettlement:
“… The report is in fact dated 28 June 2002, so the BIOT Order
2004 was enacted two years after the report, and nine months
after Ouseley J’s decision that the government had no duty to
fund resettlement, although a month before the Court of Appeal
finally refused permission to appeal against that decision. In the
absence of any legal obligation to fund resettlement, the
prospective cost of doing so appears to me (as it did to Sedley
LJ in the Court of Appeal: para 71) an unconvincing reason for
withdrawing any right of abode and any right to enter or be
present in BIOT. The Secretary of State notes in his written
case that, even in the absence of any legal obligation to fund
resettlement (and although the United Kingdom has made clear
its determination to resist any suggestion that it should provide
such funds on a voluntary basis), there could be ‘public and
political pressure claiming that the United Kingdom should
provide funding for the cost of resettlement’. That is not a
reason articulated at the time or supported by any reference in
the written case.”
131. The logic of this reasoning is, in my opinion, irresistible. At its height, the
feasibility report spoke to the impracticability of resettlement and the inordinate cost
of funding any attempt by the Chagossians to resettle in their homeland. But it had
been held that the government was under no legal obligation to fund a resettlement.
As a justification for denying the fundamental right of abode in the country of one’s
birth, therefore, the report could be relied on only to forestall “public and political
pressure” on the United Kingdom that the government should meet what the
feasibility report said was the inordinate cost of resettlement. Quite apart from the
consideration that, as Lord Mance pointed out, this was not a reason proffered by
the government either by way of explanation of the reason for the 2004 Order or in
its written case, this was a heavy burden for the report to bear. It was not enough
that it be shown that the cost was exorbitant or that resettlement was impracticable;
these had to be so great that the risk of the government coming under pressure to
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meet the cost and permit resettlement was such that the Chagossians had to be
refused the right to return to their traditional home.
132. Against that background, any reservations about the veracity of the claims
made in the report assume an unmistakable significance. Unless the report was
compelling and irrefutable in its conclusions, its capacity to act as the sole
justification for the denial of such an important right was, at least, suspect.
133. Many criticisms of the reliability of the Phase 2B feasibility study have been
made on behalf of the applicant. These have included examination of 1. the approach
of the consultants to their task; 2. the editorial control exercised by the FCO; 3. the
avowedly misleading representation that the consultants acted wholly
independently; 4. the alterations to the terms of reference of the preliminary study;
5. the criticisms made of the scientific value of the Phase 2B report; and 6. the
changes to the text of the report. Many documents prepared to support the
applicant’s case have been submitted. While I have read and closely considered all
of these, I do not find it necessary or helpful to set all of them out in any detail. What
follows is a summary of the principal matters to emerge from all this material which
are pertinent to the central issue to be determined viz whether this appeal should be
re-opened.
The draft preliminary report and some of the changes made to it
134. An examination of the background to the Phase 2B report must begin with
the preliminary stage report. As mentioned (para 102 above) Mr Gifford claimed
that there had been a crude rewriting of the conclusion of this report from the version
in the original draft. In its original conception the feasibility study was intended to
comprise two stages, the first of which was to see whether “settlement appears
possible and environmentally acceptable” (with an estimate of the numbers who
might wish to return to the outlying islands). Consultants delivered a draft report in
May 2000. The principal conclusion was contained in para 5.1.1:
“The conclusion of this preliminary study is that there is no
obvious physical reason why one or both of the two atolls
should not be repopulated, by the sort of numbers (up to or
around one thousand) of Ilois [Chagossians] who are said to
have expressed an interest in re-settlement. … Carrying
capacity is largely a function of the nature of economic activity
which accompanies re-settlement, and its capability of
financing the necessary amount of resources to ensure adequate
supplies of water and to minimise the environmental impact.”
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135. It was recognised that further feasibility studies would have to be undertaken
and so the draft report continued at para 5.1.13:
“If a decision is taken to examine further the feasibility of resettlement, the next stage of the feasibility study should be
largely concerned with examining the technical, financial,
economic and environmental aspects of specific development
proposals put forward by groups of islanders who are serious
about re-settlement and who have proper financial and
technical backing for their proposed enterprises.”
136. When the report reached its final form, there was a notable alteration to the
principal conclusion. In the published version it read in para 5.1:
“The conclusion of this preliminary study is that resettlement
of one or both of the two atolls is physically possible, but only
if a number of conditions are met. These include confirmation
that:
 a sustainable and affordable water resource can
be developed;
 the nature and scale of settlement will not
damage the environment;
 public money is available to finance infrastructure
and basic services;
 and one or more private investors are willing to
develop viable enterprises which can generate sufficient
incomes to pay for the investment and recurrent costs of
re-settlement.”
137. Taken on its face, this change may not appear especially significant. But,
apart from the difference in language and structure, it had incorporated as essential
pre-conditions matters which the draft report had indicated should be the subject of
further study and investigation. Again, however, this may betoken no more than a
recognition of a need for caution about future planning. It is perhaps on this account
that these changes did not feature to any great extent in the presentation of Mr
Bancoult’s case at any of the stages of the proceedings which ended in the appeal to
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the House of Lords. In light of changes to and criticisms of the draft Phase 2B report,
it may be that greater importance should be attached to them and that they could be
regarded as heralding a reluctance on the part of the government to countenance any
return of the Chagossians to Peros Banhos and the Salomon Islands. Certainly, it is
not difficult to conclude that such an argument would have been made, had the
criticisms of the draft Phase 2B report and the changes made to it been known. What
would have been made of such an argument is now perhaps difficult to say but the
fact that it could have been – but was not – advanced should weigh in the balance as
to whether the decision of the House of Lords should be set aside.
The draft Phase 2B report and the criticisms made of it
138. In his statement to the House of Commons Mr Rammell had said that the
government had “commissioned a feasibility study by independent experts to
examine and report on the prospects for re-establishing a viable community in the
outer islands of the territory”. While it is strictly true that the consultants were
independent, the terms of reference for the study made it clear that the BIOT
government (for convenience, in the next sections this will be referred to as ‘BIOT’)
retained the right to see and comment on a draft of the final report. In particular,
para 6.3 of the terms of reference for Phase 2B of the study provided that a draft
final report, containing a report of the work done, conclusions and
recommendations, had to be submitted to BIOT within four months of the
assignment starting. After BIOT received the draft, it was then able to make
comments on it and it was only after these had been received that the final version
of the report would be published. All of this might be regarded as, if not standard
government practice, at least not untoward. But the applicant suggests that the way
that the procedure in fact operated in this case robbed the final report of any claim
to true independence. He claims that when the extent of the widespread changes to
the draft originally submitted became known (after the Rashid documents became
available) what might have appeared as a wholly independent report took on a very
different complexion.
139. It is further suggested that this conclusion is reinforced by a consideration of
the contents of a memorandum of a meeting between on 6 March 2002 between
Alex Holland of the consultants, Alan Huckle (head of the Overseas Territories
Department and BIOT Commissioner), Louise Savill (BIOT Administrator) and
Brian Little (FCO Feasibility Study Project Manager). This followed 21 days of field
work in Peros Banhos and the Salomon Islands. A progress report covering the
period from 25 January to 28 February 2002 was considered at the 6 March meeting.
This report laid down the future work programme, with draft reports from individual
consultants due at Posford Haskoning by 22 March 2002, followed by submission
of the entire first draft to BIOT on 31 March 2002.
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140. The memorandum of this meeting was prepared by Ms Holland. In it she
recorded Mr Huckle as saying: “The FCO had hoped that Phase II would negate the
need for Phase III, ie if it concluded that resettlement wasn’t feasible.” The comment
is then made, “realistically, that was never likely to be the outcome”. Lord Mance
has stated at para 33 that there is “no suggestion that the FCO was inviting changes
to bolster any sort of findings or conclusions in either the draft and the final report,
and no basis for regarding Posford as susceptible to any such invitation”. It is true
that there is no record of an explicit invitation to “bolster” or change findings. But
it is telling that the memorandum recorded that “FCO is hoping that the section on
climate change will resolve its difficulties.” In my view, while these statements
might be supposed not to entirely undermine the subsequent findings of the
consultants, it is clear that the consultants were being given an unmistakable steer
as to what FCO wanted the outcome of the report to be and, inevitably, whatever
one might think about Posford’s susceptibility to suggestions, this at least raises
questions about the independence and impartiality of the judgment that the
consultants ultimately made. Those questions in turn play into the validity of the
scientific analysis made by the consultants.
141. The Executive Summary of the draft report was received by BIOT in the
week beginning 8 April 2002. The remaining sections of the draft arrived on 15
April. On 24 April 2002 Charles Hamilton (who had just succeeded Louise Savill
as BIOT Administrator) asked Dr Charles Sheppard (a tropical marine ecologist at
Warwick University who had extensive previous work experience in the Chagos) to
carry out a peer review of the consultants’ report. This was provided on 14 May
2002. Dr Sheppard wrote an email to accompany his report. In this he excoriated
some parts of the consultants’ work. Some sections of the report were, he said, “quite
hopeless”. These related principally to the resources section. Importantly, however,
Dr Sheppard endorsed the consultants’ conclusions on the practicability of
resettlement largely on account of anticipated climatic conditions. The consultants’
views on this were, Dr Sheppard said, “supported by emerging science connected
with tropical science generally”. It might therefore be said that on the central issue
which influenced the majority in the House of Lords, viz whether resettlement was
a feasible option, the consultants’ assessment was essentially supported by Dr
Sheppard.
142. The applicant points to a more general criticism voiced by Dr Sheppard,
however. This, he says, is bound to have prompted his advisers to mount a wholesale
and direct challenge to the methodology and reliability of the feasibility report
generally. In this connection, the applicant relies particularly on a sharp criticism of
the report by Dr Sheppard in the following strongly-worded terms:
“… the present Posford report should not in my view be
released in its present form; some of its science would be badly
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savaged by anyone not happy with your conclusions, and so,
by implication, could some of the conclusions themselves.”
143. The claim that if this comment had been known by the applicant’s advisers,
it would have led to a more direct challenge to the feasibility report must be
approached with caution in light of the fact that the applicant had engaged a
resettlement anthropologist, Jonathan Jenness. He was asked to conduct a review of
the feasibility report primarily to provide input on the resettlement issues which
were excluded from the Phase 2B study, but Mr Jenness also made some strong
criticisms of the claimed conclusions of the study, without knowing how those
conclusions had been arrived at.
144. Mr Jenness’ report was submitted to FCO. The applicant and his advisers
were unaware that it had been subjected to a critique by Dr Sheppard until FCO
wrote to his solicitors on 2 December 2002 enclosing Dr Sheppard’s report. He
challenged and criticised a number of Mr Jenness’ conclusions but he said that many
of his points about the inadequacies and errors in the Posford report were valid.
There must be some doubt, however, that Dr Sheppard’s acknowledgment that parts
of Mr Jenness’ criticisms of the feasibility study were sound would have led to a
markedly different strategy on the part of Mr Bancoult’s advisers, not least because
of the astringency of Dr Sheppard’s other observations on Mr Jenness’ report.
145. Whether disclosure of Dr Sheppard’s critique of Mr Jenness would have led
to a different conclusion by the majority in the House of Lords calls for rather more
subtle consideration, however. As I have said, the essential issue for the House of
Lords was whether the cost of resettlement was so exorbitant or that resettlement
was so impracticable that the risk of the government coming under pressure to meet
the cost and permit resettlement was such that the Chagossians had to be refused the
right to return to their traditional home. It seems to me that, in light of Dr Sheppard’s
general criticisms of the consultants’ report and his endorsement of some of Mr
Jenness’ disparagement of it, it is at least questionable that such heavy reliance
would have been placed by the majority on its conclusions.
Alterations made to the draft Phase 2B report
146. The draft report contained a supremely important passage at the second part
of para 1.8, which was originally included in the section on resettlement. It reads:
“… the most significant and immediate consequences of
climate change on a resettled population within the Chagos
Archipelago are likely to be related to changes in sea levels,
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rainfall regimes, fresh water resources, soil moisture budgets,
prevailing winds (direction and speed) and short term variation
in regional and local patterns of wave action. At present the
Chagos archipelago lies just north of an active cyclone belt,
however, a small northward shift of this belt could lead to
frequent cyclones in the area. This would lead to more frequent
flooding of the islands, with corresponding risk to life and any
infrastructure. It would also reduce agricultural potential and
the freshwater contained within the island aquifers would
experience higher levels of salinity”. (emphasis added)
147. The final version of the report in the equivalent section was in the following
terms:
“The most significant and immediate consequences of climate
change for the Chagos Archipelago are likely to be related to
changes in sea levels, rainfall regimes, soil moisture budgets,
prevailing winds and short term variation in regional and local
patterns of wave action. As a consequence most islands will
experience increased levels of flooding, accelerated erosion,
and seawater intrusion into freshwater sources. The extent and
severity of storm impacts, including storm surge floods and
shore erosion are predicted to increase. Although the risks
associated with climate change are not easily established the
implications of these issues to resettlement in the outer atolls
of the Chagos Archipelago are outlined briefly below”
(emphasis added).
148. The most obvious and significant points to be made about these two passages
is in (i) the transformation of a conditional forecast of frequent flooding etc,
predicated on a possible northward shift of the active cyclone belt, into a firm
prediction that these and other consequences will occur; (ii) the omission of any
reference to the cyclone belt in the final version; and (iii) the new wording in the
final version predicting an increase in storm surge floods and shore erosion
unconnected with cyclones. A new sentence has been added stating that “[t]he extent
and severity of storm impacts, including storm surge floods and shore erosion are
predicted to increase”. No evidence was provided to support the assertion contained
in this sentence.
149. The significance of translating the prediction of possible consequences of
climate changes into a positive statement that these will occur lies, of course, in the
impetus that it gives to the notion that there really was no practical means of
resettling the islands. As it happens, there is no evidence that these consequences
Page 60
have begun to materialise even now, although that may not be taken into account on
the issue of whether the application to re-open the appeal should be allowed. But the
essential message of the final report that these consequences would occur cannot but
have influenced the decision of the majority of the House of Lords that the perceived
need to enact the 2004 Order was not irrational. It is one thing to say that it is rational
to forbid Chagossians to return to their homeland if the dire consequences that were
spoken of were going to occur. It is quite another to say that it was reasonable if it
was merely possible that they might happen.
The jurisdiction to set aside a decision of the House of Lords and the test to be
applied
150. It is possible, at least theoretically, to distinguish between the question
whether this court has jurisdiction to set aside a decision of its predecessor and the
test to be applied in deciding whether to do so. In practice, however, these concepts
overlap because the jurisdiction tends to be defined in terms of the conditions which
justify its invocation.
151. In R v Bow Street Metropolitan Stipendiary Magistrates, Ex p Pinochet
Ugarte (No 2) [2000] 1 AC 119, 132D, Lord Browne-Wilkinson said:
“In principle it must be that your Lordships, as the ultimate
court of appeal, have power to correct any injustice caused by
an earlier order of this House. There is no relevant statutory
limitation on the jurisdiction of the House in this regard and
therefore its inherent jurisdiction remains unfettered. In
Broome v Cassell & Co Ltd (No 2) [1972] AC 1136 your
Lordships varied an order for costs already made by the House
in circumstances where the parties had not had a fair
opportunity to address argument on the point.”
152. There is likewise no relevant statutory limitation on the jurisdiction of this
court. And its inherent jurisdiction must comprehend the right to correct an injustice
caused by an earlier order made by it or however such injustice arises. This point
was made by Lord Hope, delivering the judgment of the panel in R (Edwards) v
Environment Agency (No 2) [2011] 1 WLR 79 where he said at para 35:
“The Supreme Court is a creature of statute. But it has inherited
all the powers that were vested in the House of Lords as the
ultimate court of appeal. So it has the same powers as the House
had to correct any injustice caused by an earlier order of the
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House or this court. It would however be more consistent with
the principle which Lord Browne-Wilkinson described to say
that the power is available to correct any injustice, however it
may have arisen …”
153. Of course, in this context, what is meant by injustice is the critical issue.
Providing a comprehensive definition of the circumstances in which it would be
appropriate to exercise this jurisdiction is impossible but one can begin with the
uncontroversial statement that it must be sparingly invoked. Lord BrowneWilkinson was careful to make that point in emphatic terms. At 132E of Pinochet
he said:
“… it should be made clear that the House will not re-open any
appeal save in circumstances where, through no fault of a party,
he or she has been subjected to an unfair procedure. Where an
order has been made by the House in a particular case there can
be no question of that decision being varied or rescinded by a
later order made in the same case just because it is thought that
the first order is wrong.”
154. By “wrong” in this connection one may safely assume that Lord BrowneWilkinson had in mind a conclusion that the earlier court’s decision was, in the
minds of the subsequent panel, one which should not have been reached on the
particular facts and legal issues before it. So it is not sufficient to show that the
earlier decision was wrong in that sense. But is it necessary to show that, not only
was a party “subjected to an unfair procedure” but that a “wrong” decision was
thereby procured? On one view, the statement in the earlier passage quoted above,
that the jurisdiction should be invoked to “correct any injustice” might indicate this,
for how could an injustice occur if the outcome of the proceedings would have been
the same in any event? But Lord Browne-Wilkinson’s later reference to Broome v
Cassell (No 2) suggests that the jurisdiction is not so confined. This appears to
indicate that where parties have not had a fair opportunity to address argument on a
relevant point, an injustice, sufficient to animate the jurisdiction, is present.
155. The question remains, however, whether it is a necessary prerequisite that the
earlier decision would not have been, or is likely not to have been, reached, if the
defect in procedure or other irregularity had not occurred. The applicant has
accepted that “it must be shown that the non-disclosure probably had, or may well
have had, a decisive effect on the outcome”. This concession was based largely on
Court of Appeal jurisprudence. The respondent agreed with the applicant’s
formulation of the appropriate test.
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156. In Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528, it was held that
the Court of Appeal could re-open proceedings which it had already heard and
determined if it was “clearly established that a significant injustice has probably
occurred and that there is no alternative effective remedy”. It is apparent that
“significant injustice” in that case connoted an actual injustice (in the form of an
adverse result which should not have occurred), although, as it happens, no such
injustice was held to have happened there. A tangible injustice in the form of the
probably wrong outcome was considered to be necessary. This approach was
followed in Feakins v Department of the Environment, Food and Rural Affairs
[2006] EWCA Civ 699.
157. After Taylor v Lawrence was decided, CPR 52.17 headed “Re-opening of
Final Appeals” was promulgated on 6 October 2003. It provided:
“The Court of Appeal … will not re-open a final determination
of any appeal unless –
(a) it is necessary to do so in order to avoid real
injustice;
(b) the circumstances are exceptional and make it
appropriate to re-open the appeal; and
(c) there is no alternative effective remedy.”
158. No such provision exists in the Supreme Court Rules. Obviously, there will
customarily be no alternative effective remedy where the decision that is sought to
be re-opened is one of the Supreme Court. Should the approach of this court be the
same as that otherwise indicated in this provision? For reasons earlier given, the
power to re-open should be invoked sparingly and the need for exceptional
circumstances is unobjectionable. The requirement that the circumstances are such
as to make it appropriate to re-open the appeal is somewhat general and rather begs
the question, when is it appropriate that the appeal should be re-opened. This is an
issue on which, I think, it is quite impossible to be prospectively prescriptive. It
seems to me, therefore, that the truly important condition in CPR 52.17 is that the
re-opening of an appeal should be necessary in order to avoid injustice and that this
is the touchstone which this court should adopt as a guide to when this exceptional
course should be followed.
159. Does real injustice involve a conclusion that the circumstance which prompts
the application to re-open the appeal probably had, or may well have had, a decisive
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effect on the outcome? I am content to say that this should normally be required.
But I enter two caveats to that proposition. In the first place, it may not always be
possible to forecast that such a decisive effect would probably or might well accrue.
In that event, I would not preclude in every circumstance the possibility of a reopening of the appeal. The second possible exception to the general rule might arise
where the behaviour of the party whose failure to place before the court relevant
material was so egregious that, even if it was not considered likely that the outcome
of the appeal would be affected, it would nevertheless be appropriate that the appeal
be re-opened in order to demonstrate that all pertinent information had been fully
considered and that due process had been followed.
160. Neither situation arises here. I am satisfied, therefore, that it is incumbent on
the applicant to show that if the material in the Rashid documents had been available
to the House of Lords they would have had, or may well have had, a decisive effect
on the outcome of the appeal. I am entirely satisfied, however, that it is enough that
it be established that there is a real possibility that a different outcome would have
occurred had the information been available at the time of the original hearing. How
could it be otherwise? If it is shown that it is distinctly possible that a party might
have achieved a different result had relevant material been available to it, I cannot
understand how it could be said that that party has not suffered an injustice by being
denied the material and thereby being denied the opportunity of securing the
outcome that they sought. If I might have persuaded the court that it should reach a
different view if I had material that could have influenced that view, have I not
suffered an injustice by being deprived of that chance? Of course I have. To the
extent that Taylor v Lawrence and Feakins v Department of the Environment, Food
and Rural Affairs suggest otherwise I emphatically disagree with them.
161. It is, therefore, my firm belief that it is not necessary to show that it was
probable that a different outcome would have been brought about; it is enough that
there exists a distinct possibility that this would be so. Furthermore, the formulation
whether “it was irrational or unjustified for the Secretary of State to accept and act
on the General Conclusions” does not focus on the essential issue here. It was not
simply a question of the Secretary of State accepting the conclusions; it was a matter
of using those conclusions as a basis for denying a right of abode to the Chagossians
solely in order to deter a campaign by the Chagossians to be allowed to return to
their homeland. The House of Lords was not addressing in the abstract the question
of the “rationality or justifiability of the Secretary of State’s decision to rely on such
conclusions” (Lord Mance in the final sentence of para 64). What it was about was
an examination of the sufficiency of his reliance on those reasons as a basis for
denying the Chagos Islanders’ entitlement to return to live in their homeland, when
there was no question of any legal obligation on the part of the government to fund
that return.
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162. It is therefore, I am afraid, not enough to say that there was nothing in “the
re-drafting and finalisation of the stage 2B report … which could, would or should
have caused the Secretary of State to doubt the General Conclusions or which made
it irrational or otherwise unjustifiable to act on them in June 2004” – Lord Mance
para 65. The critical issues were the nature of the action taken and the background
against which it occurred. It might not be irrational to accept the conclusions of the
report but that, with respect, is simply not the point. The question is whether it was
rational to deny these islanders their fundamental right to live where they and their
ancestors were born for the sole reason of seeking to avoid a potentially
embarrassing campaign that the British government should put right the callous
disregard that had been shown them when they were effectively forced from the
islands between 1968 and 1973.
163. The House of Lords was not merely considering whether it was reasonable
for the Secretary of State to accept the report’s findings. The rationality challenge
was to the action that he took, having accepted those findings. In the knowledge that
the British government was not under any legal obligation to fund resettlement and
that the most it had to fear was a campaign by the islanders that they be allowed to
return home and that the government should facilitate that, the minister decided that
they should be denied their right of abode in their homeland. That is the true nature
of the rationality challenge. And that is why (as I explain at para 165 below) that it
is necessary to recognise how severe the challenge to justify the 2004 Order truly
was. When that central truth is confronted, it becomes clear how any doubt on the
authority of the report was likely to or certainly should have caused the majority of
the panel to question the rationality of the decision. And that is why there is, at the
very least, a distinct possibility that there would have been a different outcome.
Would the Rashid documents have had, or may they well have had a decisive
effect?
164. In my view the principal relevant documents exhibited to Ms Rashid’s
statement were: 1. the memorandum of the meeting of 6 March 2002 in which the
government’s hopes for the outcome of the feasibility study were made clear; 2. Dr
Sheppard’s critique of the draft Phase 2B report; 3. Dr Sheppard’s endorsement of
some of Mr Jenness’ criticism of the feasibility study; 4. The draft Phase 2B report
which, when contrasted with the final report, illustrated the distinct change in
emphasis in the prediction of climate changes, especially since these bore directly
on the question of the feasibility of resettlement.
165. In deciding whether the disclosure of these documents before the appeal was
heard by the House of Lords would or might well have had a decisive effect on the
outcome, one must keep closely in mind the real issue on rationality. This was
whether it was rational to deny the Chagossians the right to return to their homeland
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in order to deflect or prevent a campaign that the UK government should fund
resettlement costs. The issue was not whether it would be reasonable for the
government to meet those costs. It had been decided that there was no legal
obligation on them to do so. It could not, therefore, be sought to justify the decision
to introduce the 2004 Order on the basis that it was not reasonable that the UK
government should have to fund the resettlement costs. The government did not need
to defend a decision that it would not pay for resettlement. It had been told by a court
that it was not legally obliged to do so.
166. What motivated the decision to categorically forbid the Chagossians the right
to go back to live in their homeland was an anticipated campaign that might have
been politically embarrassing for the government. When this apprehended harm is
pitted against the importance of the right to be denied, it is not difficult to recognise
how severe the challenge to justify the 2004 Order truly was. People were told that
they could not go back to live where they and their ancestors had lived. Moreover,
that denial took place against a background that they had been evacuated from the
islands in circumstances which were plainly unjustified. When the decision came to
be made in 2004 whether they should be allowed to return to live in the outlying
islands, the fact that their removal from them had been organised with “callous
disregard of their interests” was a plainly relevant circumstance. It could not have
been properly left out of account by a conscientious decision-maker. There is no
evidence that regard was had to that factor. Irrespective of whether it was or not,
however, the circumstances in which the Chagossians were originally removed from
their homeland rendered any subsequent decision to refuse to allow them to return
all the more difficult to justify.
167. If the Rashid documents had been before the House of Lords, the following
matters would have had to be squarely confronted:
(i) despite the claims for their independence, the consultants had been
told in unequivocal terms what the government hoped would be the outcome
of their report;
(ii) the draft report had to be submitted to BIOT officials who had the
opportunity to approve or require amendment of its contents;
(iii) much of the science of the report (although not that relating to climatic
changes) had been severely criticised by Dr Sheppard;
(iv) many of the criticisms of the report by Mr Jenness had been endorsed
by Dr Sheppard (even though he was also extremely critical of Mr Jenness);
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(v) most importantly, the draft report’s central findings in relation to
climate change, couched in conditional terms, had been altered to provide a
firm prediction that such changes would take place.
168. In my view, the collective effect of these revelations is that the appeal might
well have been decided differently. The passages from the speeches of the majority
which have been quoted earlier, for perfectly understandable reasons, bear no trace
of reservation or doubt as to the anticipated consequences of any attempt to resettle
the islands. If the members of the House of Lords knew that much of the science of
the report was considered to be suspect by the scientist retained by the FCO; that the
consultants had been given a clear indication of what the government hoped the
report would deliver; that the changes to the conclusions of the preliminary study
(which were known) proved to be a mild herald of the more radical changes to the
Phase 2B report; that the Chagos Islands were not in an active cyclone belt and that
this had a direct bearing on the predictions contained in the report, is it likely that
the speeches of the majority concerning the anticipated consequences of an attempt
to resettle would have been expressed in such emphatic terms? In my judgment it is
not. And if the majority felt compelled, as it surely would, to recognise the lack of
certainty in some of the central predictions, is it likely that they would have been
prepared to hold as rational a decision to completely deny the Chagossians the right
to return to their homeland, simply because a failure to do so would give rise to a
campaign that the government should fund resettlement, when it had already been
held that they were under no obligation to do so? In my opinion, it is at least
distinctly possible that a different view would have been taken by the majority and
that the outcome of the appeal would have been different. I would therefore grant
the application to re-open the appeal.
Other matters
(i) New evidence
169. The applicant sought to introduce new evidence which, he claimed, would
show that the dire consequences which the feasibility study predicted have not in
fact materialised and were, in any event, highly suspect from the start. Four species
of evidence were involved:
(i) a “comprehensive analysis of the Phase 2 feasibility study based … on
a comparison of the original draft disclosed in the Rashid documents … with
the final published version of the study” and on other information contained
in the documents. This was prepared by Richard Gifford and by a coral reef
scientist, Richard Dunne;
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(ii) information provided to the applicant by Stephen Akester, who was
one of the members of the team which prepared the feasibility study. Mr
Akester stated that he did not agree with the conclusion of the feasibility study
that resettlement was not feasible, and that he was not consulted about the
finalisation of the original draft of the study. It is claimed that he was the only
member of the team of consultants the only person with direct experience of
re-settlement on small coral atolls;
(iii) a review of the feasibility study, prepared by Professor Paul Kench, of
the University of Auckland, New Zealand, dated 5 October 2012. He
concluded that not only were the findings of the ocean and coastal processes
section in the feasibility study unsound, because of lack of specialist
understanding and methodological flaws, but also that the relevant summary
in the executive summary was not supported by those findings. This
conclusion, it was claimed, cast grave doubt on the pivotal findings of the
feasibility study especially in relation to increased risk of sea-water flooding;
(iv) the written note of 6 March 2002, referred to in para 138 above.
170. It is not open to an applicant for a re-opening of an appeal to adduce evidence
solely for the purpose of retrospectively impeaching the decision of the court whose
judgment he seeks to have reviewed. This would, in effect, allow an appeal against
the decision based on information acquired for the purpose of undermining the
judgment. An application to re-open an appeal must be based on the contention that
if the original appeal had been conducted in the way that it ought to have been, it is
probable or at least distinctly possible that there would have been a different
outcome.
171. On this account, much of the material which the applicant seeks to introduce
is not admissible, irrespective of whether it complies with the conditions which
should be met, based on the principles of Ladd v Marshall [1954] 1 WLR 1489, for
the introduction of fresh evidence. In truth, an application to re-open an appeal will
rarely, if ever, be the occasion for an application to introduce fresh evidence in the
conventional meaning of that term. The essence of an application to re-open an
appeal, in so far as it relates to evidence, is that evidence which should have been
before the original court was not. For this reason, I consider that none of the socalled items of evidence in the first three categories above is admissible.
172. The memorandum of 6 March 2002, by contrast constitutes material which
ought to have been disclosed before the Divisional Court hearing. If it had been, I
consider that it would unquestionably have featured in that and subsequent
proceedings in the case, bearing, as it undoubtedly did, on not only the independence
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of the consultants but also on the result that the Foreign Office hoped to obtain from
the feasibility study.
(ii) The paucity of the peer review of the feasibility study and Dr
Sheppard’s impartiality
173. It was argued on behalf of the applicant that, in light of the range of subjects
covered by the feasibility study, a professional peer review of the draft study, carried
out by up to six specialists was essential. Unique reliance on the expertise of Dr
Sheppard, whose specialism is coral reef ecology, was insufficient to give the report
the authority that it required. There is nothing in this point. If the rationality of
deciding to introduce the 2004 Order depended at all on the robustness of the peer
review of the feasibility study, this point could have been made during the earlier
proceedings. But, in any event, while it may be good practice to have a
comprehensive peer review of a report such as the feasibility study, that is a very far
cry from saying that it was irrational to rely on the study in the absence of such a
review.
174. It was suggested that Dr Sheppard’s input into the revision of the draft of the
feasibility study was mainly composed of criticisms of those parts of the study which
tended to suggest that resettlement was feasible. Thus in his input to the final version
he described the natural resources sections, which suggested a variety of ways in
which natural resources could be exploited to provide a livelihood for the islands as
“dismal”, while stating that the oceanographic, climate, groundwater and soils
sections were scientifically sound. This, it was claimed, reflected the fact that Dr
Sheppard was “well-known to be strongly dedicated to [the] conservation … [of
coral reefs]” and it was therefore questionable whether he could “reasonably be
regarded as an objective assessor of a study on the issue of reintroducing human
settlement to the pristine and now deserted environment which he was so committed
to protecting”.
175. Even if one was prepared to take these highly contentious and untested claims
at their height, they fall very far short of showing that taking Dr Sheppard’s views
into account in deciding to introduce the 2004 Order was irrational. The applicant
does not dispute that Dr Sheppard was a well-recognised expert in his field. The
suggestion that he might have allowed his interest in preserving coral reefs to
influence the advice that he gave to the government is, at best, speculative. I consider
that this argument is without merit.
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Is the application moot?
176. The respondent has argued that events occurring since the decision of the
House of Lords and a further review of the feasibility of resettlement render this
application unnecessary. In July 2013 the respondent announced that a new
feasibility study would be carried out. The terms of reference for this study were
published on 31 January 2014. The new study was to consider a range of options for
the re-settlement of BIOT, including not just the outer Chagos Islands but also Diego
Garcia where the United States military base is located.
177. These developments do not render the re-opening of the appeal of merely
academic interest. If the original judgment of the House of Lords is not set aside,
the starting point for all future consideration of the resettlement issue will be that
section 9 of the Constitution Order is valid, and that the removal of the Chagos
Islanders’ right of abode was lawful. If it proves that there would have been a
different outcome in the appeal before the House of Lords if the material from the
Rashid documents had been before their Lordships, it would obviously not be right
that the position concerning the Chagossians’ right to return to their homeland,
recognised first by the Divisional Court, should not be retrospectively vindicated,
with whatever legal consequences that this might entail.
178. Lord Mance in para 72 and Lord Clarke in para 78 of their judgments have
characterised as “conclusive” the consideration that the 2014/5 feasibility study
takes into account the possibility of resettlement on the islands, including Diego
Garcia. They both suggest that “the background has now shifted” and that “the
constitutional ban needs to be revisited”. With respect, whatever the outcome of the
2014/5 feasibility study, it cannot be right to suggest that this is relevant to a decision
whether the appeal should be re-opened, much less that it is conclusive of that issue.
179. The fallacy of the suggestion can be demonstrated in this way: let us suppose
that timeous disclosure of the Rashid documents would have led the House of Lords
to a different conclusion on the question of the rationality of the decision to make
the 2004 Orders. Could it seriously be suggested that the appeal should not be reopened because of the possibility that the Chagos Islanders might be allowed to
resettle in entirely different circumstances and for completely different reasons than
those which underlay the original decision? What is the juridical basis on which
such a conclusion might be made? Is it an instance of the exercise of judicial
discretion to deny a remedy to which the applicant is otherwise plainly entitled? For
such a result, it would be necessary to demonstrate that the applicant would achieve
the same result as would accrue on the successful re-opening of the appeal.
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180. Alternatively, it might be suggested that there are occasions where it is
appropriate for a court to take a pragmatic view and dispose of a case in a particular
way because of a new factual context. Quite apart from the unfortunate imprecision
of such an approach, it must surely only be permissible when the particular disposal
allows the court to achieve justice in the changed circumstances. Given the
narrowness of the issue before the Supreme Court on this appeal, taking account of
changed circumstances in the Chagos Islands does not achieve justice. We are not
in a position to make an order that vindicates the applicant’s right to resettle on
Diego Garcia or elsewhere on the archipelago. The suggestion that we need not reopen this appeal because of the possibility that the 2014/5 feasibility study would
permit resettlement depends on (a) the government changing its stance as a result of
the study; failing which (b) the applicant or others of like mind having the appetite
to bring forward yet further litigation, despite the unhappy previous experience of
past proceedings; (c) their being able to secure the services of lawyers prepared to
work for them pro bono or on some other uncertain basis; and (d) the courts deciding
in favour of the Chagossians in that speculative litigation. Even if it could be said
that a favourable outcome of the 2014/5 feasibility study is possible, the
Chagossians’ ability to obtain the result that the original appeal, if successful before
the House of Lords, would have achieved is remote in the extreme. That this should
provide a basis for denying them an outcome to which they were otherwise entitled
is in my view inconceivable.
Delay
181. The respondent has claimed that there was undue delay in making the
application to re-open the appeal. I do not consider that there is any merit in that
claim. The Rashid documents were disclosed on 1 May 2012, in the course of the
Bancoult (No 3) proceedings. The applicant sought to raise the issue of their nondisclosure in those proceedings. He was not permitted to do so. It was held that the
feasibility study had not played a part in the decision to create a marine protected
area – paras 81 to 93 of judgment given on 11 June 2013. That decision was appealed
to the Court of Appeal, and judgment was given in the Court of Appeal on 23 May
2014 ([2014] EWCA Civ 708; [2014] 1 WLR 2921).
182. The applicant then sought to resolve the matter by inviting the respondent to
agree that the judgment in the present action should be set aside by consent. This
request was made in a letter dated 5 December 2013. It was refused on 5 January
2014. Counsel’s opinion was obtained on 26 January 2014 and legal aid was applied
for immediately. It was eventually granted on 29 September 2014. There is no
suggestion that the applicant was in any way responsible for delay between the
submission of the application for legal aid and its grant. The application form was
filed on 9 January 2015. There was no culpable delay on the part of the applicant.
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Duty of candour
183. A respondent’s duty of candour in judicial review proceedings is summarised
at p 125 of Fordham’s Judicial Review Handbook (Sixth Edition 2012):
“A defendant public authority and its lawyers owe a vital duty
to make full and fair disclosure of relevant material. That
should include (1) due diligence in investigating what material
is available; (2) disclosure which is relevant or assists the
claimant, including on some as yet unpleaded ground; and (3)
disclosure at the permission stage if permission is resisted. …
A main reason why disclosure is not ordered in judicial review
is because courts trust public authorities to discharge this selfpolicing duty, which is why such anxious concern is expressed
where it transpires that they have not done so.”
184. In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth
Affairs [2002] EWCA Civ 1409 at para 50 Laws LJ said, “There is a … very high
duty on public authority respondents, not least central government, to assist the court
with full and accurate explanations of all the facts relevant to the issue which the
court must decide.” The duty extends to disclosure of “materials which are
reasonably required for the court to arrive at an accurate decision” – Graham v Police
Service Commission [2011] UKPC 46 at para 18. The purpose of disclosure is to
“explain the full facts and reasoning underlying the decision challenged, and to
disclose relevant documents, unless, in the particular circumstances of the case,
other factors, including those which may fall short of public interest immunity, may
exclude their disclosure – R (AHK) v Secretary of State for Home Department (No
2) [2012] EWHC 1117 at para 22.
185. The Rashid documents should have been disclosed. That is accepted by the
respondent. They contained material that was obviously germane to the issues
between the parties. The fact that they were not disclosed, despite numerous pointed
requests for their production and the circumstance that, in some instances, their very
existence was denied are deeply disturbing. The failure to locate the documents
throughout the proceedings before the Divisional Court, the Court of Appeal and the
House of Lords is not merely unfortunate, it is plainly reprehensible.
186. But I am not persuaded that the non-production of the documents until the
hearing in Bancoult (No 3) was deliberate. The applicant has accepted as much,
having said in his written case that the non-disclosure of the documents may
“conceivably” have been due to an oversight. I believe that the preponderance of
evidence suggests that this is the most likely explanation, although it was a grievous
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oversight and one which, it is to be hoped, will be so regarded by the relevant
authorities. An omission by government to disclose such material as was contained
in the Rashid documents and its failure thereby to discharge its duty of candour was
wholly unacceptable when such a fundamental right was at stake.
187. The applicant has suggested that, in light of the seriousness of the failure to
disclose these documents and in view of their high relevance, judicial criticism will
not suffice and that the decision of the House of Lords should be set aside on account
only of their non-disclosure. I do not agree. If there are circumstances in which a
failure to disclose documents would alone be cause for setting aside a judgment,
they are not present here. For the reasons earlier given, however, I consider that the
decision should be set aside and the appeal re-opened.
LADY HALE: (dissenting)
188. This is another chapter in the epic saga of the Chagossians, their expulsion
from their homeland and their persistent attempts to secure, if not their actual return,
then at least the recognition of their right to do so. It is a saga which shows “how
the imperial common good is riven by competing theoretical justifications for
empire: one, based in liberal imperialism, emphasises the civilising nature of empire
and focuses on the good governance of colonies; the other, based in a utilitarian
imperialism, instead focuses on how best to appropriate colonial possessions for the
benefit of the imperial power” (T Frost and CRG Murray, “The Chagos Island cases:
the empire strikes back” (2015) 66 NILQ 263, 266). Thus far, it is the latter which
has not only driven the actions of government but has also triumphed in the courts:
“Lord Hoffmann acknowledged that a choice between the liberal and utilitarian
faces of imperialism did rest with the court, and decisively affirmed the utilitarian
importance of the imperial interests at stake …” (Ibid, 287).
189. Courts have, of course, to do justice according to law. Any doubts about
whether it is legally possible for the imperial power to exile a people from their
homeland have to be rigorously suppressed. That question of law has been finally
resolved in these proceedings by the decision of the majority in Bancoult (No 2).
Nevertheless, the decision to exile a people has to be taken in accordance with the
law; and the people to whom it is of such momentous importance are entitled to
expect the highest standards of decision-making and the most scrupulous standards
of fairness from the institutions of imperial government. The challenge in the main
proceedings is to the rationality of the decision in 2004 to re-impose the denial of
the Chagossians’ right of abode in their homeland, the first denial in 1971 having
been declared unlawful in Bancoult (No 1), a decision which was accepted by the
government of the day. The challenge in this application is to the decision of the
majority in Bancoult (No 2) that the government’s decision was rational. The
question for the appellate committee, as Lord Kerr has explained, was not whether
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it was rational to accept the conclusions of the feasibility study, but whether, on the
basis of that report, it was rational to take the drastic decision to re-impose the denial
of the right of abode.
190. The question for us is not whether the majority got the answer to that question
wrong. We could no more set that decision aside on that basis than we could set
aside their decision that the imperial government had the power to do this. The basis
upon which this court could set aside the earlier decision is that explained by Lord
Browne-Wilkinson in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p
Pinochet Ugarte (No 2) [2000] 1 AC 119, 132D:
“In principle it must be that your Lordships, as the ultimate
court of appeal, have power to correct any injustice caused by
an earlier order of this House. … However, it should be made
clear that the House will not re-open any appeal save in
circumstances where, through no fault of a party, he or she has
been subjected to an unfair procedure. When an order has been
made by the House in a particular case there can be no question
of that decision being varied or rescinded by a later order made
in the same case just because it is thought that the first order is
wrong.”
191. The previous decision in that case was set aside because of Lord Hoffmann’s
connection with an intervener in the case. He should not have decided the case
without that connection being disclosed to the other parties. The House did not
therefore have to consider whether his participation made any difference to the result
(although, given that the earlier decision had been reached by a majority of three to
two and that at the re-hearing a rather different decision was reached, there was
surely a very real possibility that it did). I accept that, even if it has power to do so,
this court should not set aside a decision reached after an unfair procedure if the
result would inevitably have been the same had the procedure been fair. However,
if it is clear that the procedure was unfair, this court should not struggle too hard to
discover that the result would have been the same. It is for the court which rehears
the case to reach its own conclusions. The parties are entitled to procedural as well
as substantive justice.
192. It is a proud feature of the law of judicial review of administrative action in
this country that the public authority whose actions or decisions are under challenge
has a duty to make full and fair disclosure of all the relevant material. Only if this is
done can the court perform its vital role of deciding whether or not those actions or
decisions were lawful. There is no doubt in this case that the Rashid documents
should have been disclosed. They were obviously relevant to the issues in the case.
Not only that, the government was asked for them many times and denied their
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existence. This is scarcely a good advertisement for the quality of government record
keeping. No doubt files are sometimes transferred to the Treasury Solicitor for
litigation purposes and their existence forgotten. But this should not happen in any
well-regulated system of file-keeping. It was deeply unfair to the applicant, and to
the court, that these documents were not disclosed. This was all the more unfair,
given the sorry treatment of the Chagossians in the past and the importance of what
was at stake for them.
193. Given that context, this court should not take much convincing that their
disclosure might have made a difference to the decision in the case. What light they
do cast upon the rationality of the decision under challenge will be a matter for the
court which does reconsider the case. To my mind, it is quite obvious that they might
have made a difference and we certainly cannot be satisfied that they would not.
They showed that the science of the report had been severely criticised both by the
government’s own expert and by an expert on behalf of the islanders; it matters not
in what direction those criticisms had tended; what they did was cast doubt upon the
authority of the report. They showed that the government had made it plain to the
consultants what it wanted the conclusions to be. They showed that important
changes had been made to the conclusion. They showed that the central findings
about climate change had been changed. They showed that the islands were not in a
cyclone belt. The question whether this might have made a difference has to be
answered objectively rather than by reference to the particular judges who were then
sitting on the case.
194. Ultimately, this is a case about justice. While I deeply admire the industry
and intellectual honesty of Lord Mance, which has led him to the conclusion that
the decision with which he disagreed at the time should not be set aside, for the
reasons given by Lord Kerr, with which I agree, I would grant this application.
Justice to my mind demands that the applicant be given a fair chance to satisfy this
court that the decision to re-impose the denial of the islanders’ right of abode was
not a rational one.