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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Bancoult, R (on the application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)[2018] UKSC 3 (8 February 2018) URL: http://www.bailii.org/uk/cases/UKSC/2018/3.html Cite as: [2018] 2 All ER 945, [2018] WLR 973, [2018] UKSC 3, [2018] 1 WLR 973, [2018] WLR(D) 79, [2018] Env LR 24 |
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[2018] UKSC 3
On appeal from: [2014] EWCA Civ 708
JUDGMENT
R (on the application of Bancoult No 3) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)
before
Lord Neuberger
Lady Hale
Lord Mance
Lord Kerr
Lord Clarke
Lord Sumption
Lord Reed
JUDGMENT GIVEN ON
8 February 2018
Heard on 28 and 29 June 2017
Appellant Nigel Pleming QC Richard Wald Stephen Kosmin Professor Robert McCorquodale (Instructed by Clifford Chance LLP) |
|
Respondent Steven Kovats QC Professor Malcolm Shaw QC Penelope Nevill (Instructed by The Government Legal Department) |
LORD MANCE: (with whom Lord Neuberger, Lord Clarke and Lord Reed agree)
Introduction
1. The appellant is the chair of the Chagos Refugees Group. The Group represents Chagossians whose removal from the British Indian Overseas Territory (the Chagos Islands - “BIOT”) and resettlement elsewhere was procured by the United Kingdom government in the years 1971 to 1973. The circumstances have generated much national and now also international litigation. The sad history has been told on a number of occasions. It suffices to mention Chagos Islanders v The Attorney General [2003] EWHC 2222 (QB), R (Bancoult) Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453 and most recently in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35; [2017] AC 300. Following the last two decisions, it remains prohibited, under the BIOT Constitution and Immigration Orders 2004, for Chagossians to return to BIOT. Since the last judgment, the United Kingdom government has on 16 November 2016 announced its decision to maintain the ban on resettlement, after a study carried out by KPMG published on 31 January 2015. That decision is itself the subject of further judicial review proceedings.
“Her Majesty will exercise sovereign rights and jurisdiction enjoyed under international law, including the United Nations Convention on the Law of the Sea, with regard to the protection and preservation of the environment of the [MPA]. The detailed legislation and regulations governing the said [MPA] and the implications for fishing and other activities in the [MPA] and the Territory will be addressed in future legislation of the Territory.”
The creation of the MPA was accompanied by a statement issued by the respondent, stating that it “will include a ‘no-take’ marine reserve where commercial fishing will be banned”.
5.
At the core of the appellant’s case on improper purpose is a document
published by The Guardian on 2 December 2010 and by The Telegraph on 4 February
2011, purporting to be a communication or “cable”
sent on 15 May 2009 by the
United States Embassy in London to departments of the US Federal Government in
Washington, to elements in its military command structure and to its Embassy in
Port Louis, Mauritius. The
cable
is recorded as having been passed to The
Telegraph (and was presumably also passed to The Guardian) by
Wikileaks.
Its
text purports to be a record, by a United States political counsellor,
evidently a Mr Richard Mills, of conversation at a meeting on 12 May at the
Foreign Office, London with Mr Roberts, Ms Joanne Yeadon, the Administrator for
BIOT, and Mr Ashley Smith, the Ministry of Defence’s Assistant Head of
International Policy and Planning. It also purports to refer to some previous
meetings and a subsequent conversation involving Ms Yeadon. It starts with a
one-paragraph summary and ends with two paragraphs of comment, and contains 12
paragraphs of purported record in between. Reliance is placed on passages in
it, which it is submitted show, or could be used to suggest, that Mr Roberts,
Commissioner for BIOT, had and disclosed an improper motive in relation to the
creation of the MPA. It is common ground that there was in fact a meeting
between US officials and Mr Roberts and Ms Yeadon at the Foreign Office on 12
May 2009.
6.
The present proceedings took an unfortunate turn in this respect before
the Administrative Court (Richards LJ and Mitting J). Burnton LJ had on 25 July
2012 given permission for Mr Roberts and Ms Yeadon to be cross-examined on the
purported cable,
acknowledging that it must have been obtained unlawfully and
in probability by committing an offence under US law, but saying:
“I do not see how the present
claim can be fairly or justly determined without resolving the allegation made
by the [appellant], based on the Wikileaks
documents, as to what transpired at
the meeting of 12 May 2009, and more widely whether at least one of the motives
for the creation of the MPA was the desire to prevent resettlement.”
Before the Administrative Court, objections were made to
the use of the cable
in cross-examination of Mr Roberts.
7.
One objection, which did not find favour with the Administrative Court
(and which is not live before the Supreme Court), was that the Official Secrets
Act and the UK government’s policy of “neither confirm nor deny” (“NCND”) in
relation to documents of this nature meant that Mr Roberts should not be
required to answer questions relating to the purported cable.
In relation to
this objection, the Court ruled that Mr Roberts could be questioned on an
assumption that the
cable
was what it purported to be, and that it would be
open to the appellant at the end of the hearing to invite the Court to accept
it as an accurate record of the meeting, and to rely on it evidentially.
Various questions were put to Mr Roberts and answered on that basis, before Mr
Kovats QC for the respondent asked for and obtained further time overnight to
consider the position.
8.
The other objection was that use of the cable
would be contrary to the
principle of inviolability of the US mission’s diplomatic archive in breach of
articles 24 and 27(2) of the Vienna Convention on Diplomatic Relations 1961,
given effect in the United Kingdom by section 2(1) of the Diplomatic Privileges
Act 1964. This further objection only occurred to the respondent during the
second day. It was therefore only made the subject of submissions on the third
day. This led to the first ruling being effectively over-taken, by a further
ruling that it would not be open to the appellant to invite the court to treat
the
cable
as genuine or to find that it contained an accurate record of the
meeting and that any further cross-examination should proceed on that basis,
without any suggestion that the purported
cable
was genuine. Mr Pleming applied
for, but was refused immediate permission to appeal that ruling. In these
circumstances, he indicated that he had no further cross-examination of Mr
Roberts, and on the next day conducted a cross-examination of Ms Yeadon,
limited as directed by the Court’s ruling.
9.
By a judgment dated 11 June 2013, the Administrative Court rejected the
appellant’s case both in so far as it was based on improper purpose and in so
far as it was based on failure to disclose the arguable existence of Mauritian
fishing rights. The Court of Appeal (the Master of the Rolls, Gloster and Vos
LJJ) [2014] 1 WLR 2921 reached the same overall conclusions, but after taking a
different view of the admissibility of the purported cable.
It held that, since
the
cable
had already been disclosed to the world by a third party, admitting
it in evidence would not have violated the US London mission’s diplomatic
archive. The Court of Appeal had therefore to consider whether the exclusion of
the
cable
from use before the Administrative Court would or could have made any
difference to that Court’s decision on the issue of improper purpose. By a judgment
given 23 May 2014, it decided against the appellant on both this issue and the
issue relating to the omission of reference to arguable Mauritian fishing
rights. The Supreme Court by order dated 7 July 2016 gave permission to appeal
on the issue of improper purpose and directed that the application for
permission to appeal on the issue relating to the omission of reference to
arguable Mauritian fishing rights be listed for hearing with the appeal to follow
if permission is granted. The respondent has in turn challenged the correctness
of the Court of Appeal’s conclusion that use of the
cable
would not have
contravened article 24 and/or 27(2) of the Vienna Convention.
The admissibility of the cable
“Article 24
The archives and documents of the mission shall be inviolable at any time and wherever they may be.
Article 25
The receiving State shall accord full facilities for the performance of the functions of the mission.
…
Article 27
1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.
2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.
5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy person inviolability and shall not be liable to any form of arrest or detention.
6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.”
“but it is normally understood to cover any form of storage of information or records in words or pictures and to include modern forms of storage such as tapes, sound recordings and films, or computer disks.”
That can be readily accepted, as can be the proposition that copies taken of documents which are part of the archive must necessarily also be inviolable.
“If archives fall into the hands of the receiving State after being lost or stolen they must therefore be returned forthwith and may not be used in legal proceedings or for any other purpose of the receiving State.”
Professor Higgins wrote:
“Article 24 stipulates that the archives and documents shall be inviolable at any time and ‘wherever they may be’. It is clear that this last phrase is meant to cover circumstances where a building other than embassy premises is used for storage of the archives; and also the circumstances in which an archived document has been, for example, taken there by a member of the Secretariat staff for overnight work - or even inadvertently left by him on the train or in a restaurant. What would happen if the Secretariat member, or a diplomat, took an overseas trip, and mislaid the document while abroad? The English High Court [in the Tin Council case: International Law Reports Vol 77 (1988) pp 107-145 at pp 122-123] was disturbed by the idea that ‘wherever located’ could, on the face of it, mean even in Australia or Japan. It is true that an English court is not likely to be in a position to enforce the inviolability of a document from the authorities of another country where that particular document happens to be located. But it is entirely another thing to say that, because a document happens to be outside the jurisdiction, an English court is thereby entitled to treat it, in matters that do fall within its own competence, as non-archival and thus without benefit of such inviolability as it is in a position to bestow.”
Again, so long as the document can be said to constitute part of the archive, a point to which I shall return, these statements appear not only authoritative in their sources, but convincing. As will appear, they also receive support from Shearson Lehman Bros Inc v Maclaine, Watson and Co Ltd; International Tin Council (Intervener) (No 2) [1988] 1 WLR 16. That is the House of Lords judgment in the Tin Council case, to the first instance decision in which Professor Higgins referred. The House in that case on any view accepted that there were some circumstances in which a document which was part of an archive, but for some reason no longer physically within the archive, remains inviolable.
“Inviolability, let it be stated once more, simply means freedom from official interferences. Official correspondence of the mission over the removal of which the receiving state has had no control can … be freely used in judicial proceedings.”
See “‘Inviolability’ and Other Problems of the Vienna Convention on Diplomatic Relations in Further Studies in International Law, (1990) pp 326-327 and also [1988] 104 LQR, p 178. But Professor McCorquodale’s submission does not allow for the fact that a concept may embrace different shades of meaning according to the particular context in which it is deployed.
“The council shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission.”
The Tin Council intervened in civil proceedings between private parties, relying on article 7(1) as rendering inadmissible various documents that the parties were proposing to adduce in evidence.
“The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.”
“could not be admitted where the recognition of such immunity was inconsistent with the fundamental right of self-preservation belonging to a State or where the executive had impliedly refused to recognise such immunity.”
The absence of inviolability in cases where state security is involved has a pedigree going back to the extraordinary Cellamare conspiracy in 1718 by Antonio dei Giudice, Prince of Cellamare and Ambassador of Spain to France, to kidnap and depose Philippe d’Orléans, Regent of France, and replace him as Regent by Philip V of Spain: see Martens, Causes célèbres du droit des gens, I, p 149. Rex v Rose is nonetheless controversial, and, more importantly for present purposes, neither of the grounds on which it rests applies to this case.
“As regards use of the correspondence as evidence, article 27.2 may be regarded as duplicating the protection under article 24 of the Convention which gives inviolability to the archives and documents of the mission ‘wherever they may be’.”
Professor Jean Salmon of The Free University, Brussels, describes F A Mann’s view as regards article 27(2), in Further Studies in international law (OUP) (1990), p 226, as “une vue trop restrictive de l’inviolabilité”: Manuel de Droit Diplomatique (1994), p 244. The quotation from Professor Higgins, set out in para 12 above does not fit well with Dr Mann’s approach. S E Nahlik, Development of Diplomatic Law, Selected Problems, 222(III) Recueil des Cours (1990), 291-292 and B S Murty, The International Law of Diplomacy: The Diplomatic Instrument and World Order (1989) at p 382 comment critically on Rex v Rose, while J Wouters, S Duquet & K Meuwissen, The Vienna Conventions on Diplomatic and Consular Relations (OUP, 2013) at para 28.4.5.1 state, citing Professor Salmon, that:
“The inviolability of diplomatic/consular archives and documents entails that they cannot be opened, searched, or requisitioned without consent, and cannot be used as evidence.”
“International law creates a presumption of law that documents coming from an embassy have a diplomatic character and that every court of justice must refuse to acknowledge jurisdiction or competence with regard to them.”
Kerr LJ also noted that this conclusion was supported by Denza on Diplomatic Law (1976), p 110. At p 736F-G, he distinguished the actual decision in Rex v Rose as having been reached on the basis that a citizen could not invoke immunity in litigation with his own government and on the basis of the principle said to derive from the Cellamare conspiracy, neither of which bases had any relevance in Fayed v Al-Tajir.
20.
In principle, therefore, inviolability of documents which are part of
the mission archive under articles 24 and 27(2) extends to make it
impermissible to use such documents or copies in a domestic court of the host
country, at any event absent extraordinary circumstances such as those of the
Cellamare conspiracy or Rex v Rose and absent express waiver of the
inviolability by the mission state. But the application of this principle to
any particular document is subject to two qualifications. First, the document
must constitute or remain part of the mission archive, and, second, its
contents must not have become so widely disseminated in the public domain as to
destroy any confidentiality or inviolability that could sensibly attach to it.
These two qualifications may sometimes, but certainly not always, coincide.
Taking the first, in the present case, there is no indication from where the
Wikileaks
document emanates, but there is no suggestion that it is likely to
have emanated from the United States Embassy in London. It was sent both to the
State Department in Washington and elsewhere. There is no indication that the
United States Embassy in London attached any reservation to or placed any
limitation on the use or distribution of the
cable
by the State Department or
any other authority to whom the
cable
went. The
cable
was simply classified as
Confidential. In these circumstances, once the document reached the State
Department or any other addressee, it was, so far as appears and in the form in
which it was there held, a document in the custody of the Federal Government of
the United States or that other authority, and not part of the London Embassy
archive. Bearing in mind the probability that the
Wikileaks
cable
was extracted
from the State Department or some other unknown foreign location to which it
had been remitted for information and use there, it is not therefore
established, even as a matter of probability that the
cable
remained part of
the archive of the London mission, when it was so extracted. On that simple
basis, the
Wikileaks
cable
was available for use and admissible as evidence of
its contents in the present proceedings. I therefore arrive as the same
conclusion on this point as the Court of Appeal, albeit for different reasons.
21.
Taking, second, the possibility of loss of inviolability due to a
document from the mission archive coming into the public domain, I have come to
the conclusion that this must in principle be possible, even in circumstances
where the document can be shown to have been wrongly extracted from the mission
archive. Whether it has occurred in any particular case will however depend on
the context as well as the extent and circumstances of the dissemination. That
seems to me to follow by analogy with the reasoning concerning the protection
afforded by the law to confidential material (as opposed to that afforded on
grounds of privacy and/or human rights) in cases such as Attorney General v
Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 and PJS v News Group
Newspapers Ltd [2016] UKSC 26; [2016] AC 1081, see also Passmore on
Privilege, paras 7-039 and 7-042. In the present case, the cable
has been
put into the public domain by the
Wikileaks
publication and the newspaper
articles which followed, in circumstances for which the appellant has no
responsibility. In my opinion, the
cable
has as a result lost its
inviolability, for all purposes including its use in cross-examination or
evidence in the present proceedings. On that ground, I would therefore reach
the same conclusion as the Court of Appeal expressed in para 64 of its
judgment.
The allegation of improper purpose
22.
On the above basis, the question arising is whether the Court of Appeal
was right to conclude that the Administrative Court’s ruling that the cable
was
not available for use or admissible had no material effect on the proceedings
and was not a ground for allowing the appeal. The Court of Appeal, after
reviewing all the material available, including the
cable,
the evidence given
and the Administrative Court’s findings, concluded (para 93) that
“even if the cable
had been
admitted in evidence, the court would have decided that the MPA was not
actuated by the improper motive of intending to create an effective long-term
way to prevent Chagossians and their descendants from resettling in the BIOT.”
A little earlier in its judgment, in para 89, the Court
said that it did “not accept that there is a realistic possibility that the
[Administrative Court’s] assessment of the evidence of Mr Roberts and Ms Yeadon
would have been affected if the cable
had been formally admitted as an
authentic document”; that in reaching this conclusion, it had “borne in mind
the need to exercise caution in denying relief on the ground that the legally
correct approach would have made no difference to the outcome”; but that it was
“satisfied that the admission of the
cable
in evidence would have made no
difference”.
23.
Before the Supreme Court, criticism was directed at the Court of Appeal
for formulating its conclusions in terms of what “would”, rather than “could”
have made a difference. Reference was made to well-known authorities on the
test applicable in cases of breach of natural justice (or unfairness) by public
authorities, including Malloch v Aberdeen Corpn [1971] 1 WLR 1578 and R
(Cotton) v Chief Constable of the Thames Valley Police [1990] IRLR 344,
paras 59-60, per Bingham LJ. Reference was also made to the discussion, without
decision, on the test applicable on an application to the Supreme Court to set
aside a prior judgment of its own in Bancoult (No 4), cited in para 1 of
this judgment. The precise test must depend on the context, including, in
particular, how well-placed the court is to judge the effect of any unfairness.
In the present case, the complaint is of lack of opportunity for full cross-examination
and for the trial court to weigh the evidence it heard in the light of the
cable,
treating the
cable
as admissible. In these circumstances, I am prepared
for present purposes to accept that the appropriate question is whether the
admission of the
cable
for use in these ways could have made a difference.
However, I also consider that this is in substance how the Court of Appeal
approached the issue. The conclusion it reached (see para 22 above) was that
there was no
“realistic possibility that the
[Administrative Court’s] assessment of the evidence of Mr Roberts and Ms Yeadon
would have been affected if the cable
had been formally admitted in evidence as
an authentic document.”
Its statement at the end of para 89 that “the admission of
the cable
in evidence would have made no difference” must be read, in context,
as a shorthand resumé of this conclusion. A conclusion that there was no
realistic possibility that the assessment would have been affected amounts, in
substance, to a conclusion that the admission of the
cable
could not
realistically have made a difference. Nonetheless, it is incumbent upon the
Supreme Court to consider for itself whether the Court of Appeal erred in
reaching that conclusion.
“75. … The catalyst for making the MPA was a proposal made in July 2007 by an American environmental group, Pew Environmental Group, to Professor Sheppard, the environmental adviser for the BIOT. On 5 May 2009, Mr Roberts submitted a briefing note to the Secretary of State which explained the benefits of the proposal. These included that, because of the absence of a settled population and the strict environmental regime already in force, the BIOT was one of the few places in which a large scale approach to conservation was possible; and it offered great scope for scientific and climate change research. The Secretary of State’s reaction was enthusiastic. His private secretary emailed Mr Roberts to say that the Secretary of State was ‘fired up’ after the meeting and ‘enthusiastic to press ahead’ with the proposal.
76. This was followed by a
meeting to discuss the proposal with US Embassy officials on 12 May 2009. This
is the crucial meeting the gist of which was purportedly summarised in the copy
cable
dated 15 May 2009. Both Mr Roberts and Ms Yeadon attended the meeting and
were cross-examined about it. Mr Roberts denied making any reference to ‘Man
Fridays’. He said that he recognised that the declaration of an MPA, if
‘entrenched’, would create a serious obstacle to resettlement. Ms Yeadon also
denied that Mr Roberts had used the words ‘Man Fridays’ or that he had said
that establishing a marine park would put paid to resettlement claims. The
Divisional Court said (para 61) that it found Ms Yeadon to be ‘an impressive
and truthful witness’. Having referred to an important note of a meeting held
on 25 March 2009, the court said at para 63: ‘as Ms Yeadon understood, at
official level, HM Government regarded the resettlement issue as settled by the
2004 Order, subject only to the pending decision of the Strasbourg Court’ (this
is a reference to the claimant’s application which was eventually dismissed by
the ECtHR on 20 December 2012: see para 7 above).
77. By a note dated 29 October 2009, Ms Yeadon proposed to Mr Roberts and the Secretary of State that consultation on the proposal to declare an MPA be launched on 10 November. Under the heading ‘Risks’, she noted that the risk of an aggressive reaction from the Chagossians and their supporters was high and said: ‘they may claim that we are establishing a Marine Protected Area in order to ensure that they can never return to BIOT. This is not the case ...’ The court said (para 65) that it was ‘satisfied that in this passage Ms Yeadon again stated what she genuinely believed: that the proposal to establish an MPA was not to ensure that the Chagossians could never return.’
78. In a note dated 30 March 2010, Ms Yeadon proposed that the Secretary of State should publish the report on consultation and declare his belief that an MPA should be established, but only after further work had been done. There followed a flurry of emails between officials. The Secretary of State did not accept Ms Yeadon’s advice. On 1 April, he announced the creation of an MPA in the BIOT which included a ‘no take’ Marine Reserve where commercial fishing would be banned. Mr Roberts duly made the proclamation on 1 April.
79. The Divisional Court expressed its conclusion on the improper motive point in these terms:
‘74. This material makes it clear that it was the personal decision of the Foreign Secretary to declare an MPA on 1 April 2010, against the advice of his officials. There is no evidence that, in doing so, he was motivated to any extent by ‘an intention to create an effective long-term way to prevent Chagossians and their descendants from resettling in the BIOT’. His Private Secretary could hardly have written on 7 May 2009, the day after the presentation of the proposal by Professor Sheppard to him, that he was ‘really fired up about this’ if the proposal was presented as a cynical ploy to frustrate Chagossian ambitions. It is obvious that he was responding to a proposal presented by a man, Professor Sheppard, who was keen to see it adopted and put into effect for scientific and conservation purposes only. Later, on 31 March 2010, when the Foreign Secretary made the decision to go ahead immediately, the decision had nothing to do with Chagossian ambitions. The decision to override official advice can best be understood in the political context: Parliament was about to be dissolved. The Foreign Secretary no doubt believed that the decision would redound to the credit of the Government and, perhaps, to his own credit. It would do so the more if a decision with immediate effect was taken. Officials thought that this would create difficulties but it was the Foreign Secretary’s prerogative to override their reservations and make the decision which he did. There is simply no ground to suspect, let alone to believe or to find proved, that the Foreign Secretary was motivated by the improper purpose for which the claimant contends.
75. It is significant that the Foreign Secretary’s announcement contained the caveat which always accompanied public and private statements by officials: that the decision was subject to the pending judgment of the Strasbourg Court. Unless there was some deep plot to frustrate an adverse judgment, of which there is no evidence at all, this fact alone demonstrates that no sensible official in the FCO could have believed that the establishment of an MPA would fulfil the improper purpose alleged. Nor could it have done. The proclamation made by Mr Roberts on 1 April 2010 stated that:
‘The detailed legislation and regulations governing the said Marine Protected Area and the implications for fishing and other activities in the Marine Protected Area and the territory will be addressed in future legislation of the territory.’
The only step taken since then has been to allow fishing licences current at 1 April 2010 to expire and to issue no more. What prevents the return of Chagossians to the islands is the 2004 Order, not the MPA. If, at some future date, HM Government decided or was constrained by a judgment of a court to permit resettlement or the resumption of fishing by Chagossians, nothing in the measures so far taken would prevent it or even make it more difficult to achieve.
76. For the claimant’s case on improper purpose to be right a truly remarkable set of circumstances would have to have existed. Somewhere deep in government a long-term decision would have to have been taken to frustrate Chagossian ambitions by promoting the MPA. Both the administrator of the territory in which it was to be declared, Ms Yeadon, and the person who made the decision, the Foreign Secretary, would have to have been kept in ignorance of the true purpose. Someone - Mr Roberts? - would have been the only relevant official to have known the truth. He, and whoever else was privy to the secret, must then have decided to promote a measure which could not achieve their purpose, for the reasons explained above, while explaining to all concerned that the MPA would have to be reconsidered in the light of an adverse judgment of the Strasbourg Court. Those circumstances would provide an unconvincing plot for a novel. They cannot found a finding for the claimant on this issue.’
80. In order to test Mr
Pleming’s submission that the effect of the Divisional Court’s ruling was to
deprive him of the opportunity of properly testing the evidence of the
witnesses, it is necessary to see what cross-examination he was able to undertake.
During day 1 and day 2 of the hearing, Mr Pleming cross-examined Mr Roberts
extensively about the meeting of 12 May 2009 by reference to various documents,
including the cable.
Although Mr Roberts was not prepared to answer questions
as to whether the contents of the
cable
were accurate (because of the NCND
policy), nevertheless he answered questions as to what he might or might not
have said at the meeting: see day 1 pp 155 to 169 and day 2 at pp 9 to 41. Mr
Pleming confirmed to the court that his general purpose in cross-examining on
the
cable,
paragraph by paragraph, was to establish its general accuracy by
reference to relatively uncontroversial passages in it.
81. Despite his repeated
reliance on the NCND policy, Mr Roberts gave extensive evidence of what was
discussed at the meeting on 12 May. For example, in relation to one passage
from the cable,
he said: ‘I can confirm that the general content and sense of
the issues that you have just read out is consistent with the discussion we
were having with the United States at the time’. In relation to another
passage, he said: ‘I don’t recall what language I would have used at the time
but it would have been consistent with the general position that we were trying
to set out to the United States’.
82. At p 36 on day 2, Mr
Roberts accepted that he did say to the US officials that the establishment of
an MPA would in effect put paid to the resettlement claims. He said that this
was ‘a recognition of a reality’ that, if the MPA was ‘entrenched’ (ie a law which
would be impossible or difficult to repeal), this would be a ‘serious obstacle
to resettlement’. He denied that he had said anything about ‘footprints’ or
‘Man Fridays’: ‘that was not the nature of the conversation’. Mr Pleming sought
to persuade the court to give a ruling as to whether Mr Roberts should be
required to answer questions about the accuracy of the contents of the cable.
Mitting J asked whether it was necessary to have this debate, since Mr Roberts
had accepted that a consequence of establishing an MPA would be that the hopes
of the Chagossians to return would be thwarted. Richards LJ was not sure how
much more Mr Roberts could say. He had indicated why he declined to answer the
‘ultimate’ question; but he had answered all the ‘intermediate’ questions.
83. The court did not make
any final ruling at this stage and Mr Pleming continued with his
cross-examination of Mr Roberts by reference to the cable:
see day 2 pp 78 to
80. He put it to Mr Roberts that his purpose was to use the MPA to prevent or
kill off the claims for resettlement; and that this policy ‘shines out of the
record of that meeting and is not a policy you would want to put in written
form so that it could ever be seen by the Chagossians or in any litigation’. Mr
Roberts replied: ‘No, I reject that suggestion entirely. I do not believe it is
possible to keep a policy of that significance quiet.’”
27. In relation to the Chagossian movements, the note said:
“Their plans for resettlement are based on the establishment of an economy based on fishing and tourism. In the specific context of BIOT this would be incompatible with a marine reserve. They are therefore hostile to the proposal, unless the right of return comes with it. They have expressed unrealistic hopes that the reserve would create permanent resident employment based on the outer islands for Chagossians.
Assuming we win in Strasbourg [as in the event occurred], we should be aiming to calm down the resettlement debate. Creating a reserve will not achieve this, but it could create a context for a raft of measures designed to weaken the movement. This could include:
- presenting new evidence about the precariousness of any settlement (climate change, rising sea levels, known coastal defences costs on Diego Garcia)
- activating the environmental lobby
- contributing to the establishment of community institutions in the UK and possibly elsewhere
- committing to an annual visit for representatives of the communities to the outer islands on All Saints’ Day
- inclusion of a Chagossian representative in the reserve government.
- [an irrelevant redaction]”
“This could not have the effect of creating an effective long-term way to prevent resettlement and Mr Pleming rightly conceded that it would not taint a decision genuinely to further environmental and scientific purposes.”
That remains the position before the Supreme Court.
30.
Thirdly, the meeting a week later between Mr Roberts, Ms Yeadon and
representatives of the United States Embassy was aimed at briefing a United
States counsellor (Mr Richard Mills) interested in knowing more about the
Chagos Islands position, no doubt as it related to the United States concerns
identified in the note dated 5 May 2009. In his initial summary in para 1 of
the cable,
its author recorded Mr Roberts as saying that
“the BIOT’s former inhabitants would find it difficult, if not impossible to pursue their claim for resettlement on the islands if the entire Chagos Archipelago were a marine reserve.”
The ensuing paragraphs included the following:
“7. … Roberts stated that according to the HGM’s [sic] current thinking on a reserve, there would be no ‘human footprints’ or ‘Man Fridays’ on the BIOT’s uninhabited islands. He asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents …”
The final paragraph of comment included this:
“15. Establishing a marine reserve might indeed, as FCO’s Roberts stated, be the most effective long-term way to prevent any of the Chagos Islands’ former inhabitants or their descendants from resettling in the BIOT.”
31.
Accepting the Wikileaks
memorandum as a genuine record of the meeting,
it must be seen in that context. What would have concerned the United States
were the consequences of an MPA, not the motivation. Further, the opening and
the final two paragraphs are evidently comment or attempted summary by Mr
Mills, while it is the intermediate paragraphs that purport to record the
actual course of the discussion. In the case of The Guardian report of the
cable,
the intermediate paragraphs have interposed what are evidently
journalistic captions. I note at this point Lord Kerr’s suggestion (paras 84
and 86) that US military needs provided no reason for Mr Roberts and Ms Yeadon
to assure the Americans, or ask them to confirm their requirement, that no
resettlement would occur elsewhere in the BIOT. The “obvious question” which
Lord Kerr considers to arise in this regard was not raised before the Supreme
Court. But the answer is clear. The original exchange of notes between the
United States and United Kingdom in 1966 provided that all of the BIOT
be “set aside for defence purposes” and that any significant change of the
BIOT’s status that could impact the BIOT’s strategic use would require US
consent. Hence also, Mr Roberts’ statement in this connection in his note dated
5 May 2009 that
“We expect we will have our work cut out to reassure the US military that creation of a reserve will not result in trouble for them. Trouble could be any rise in the security risk, any impediment to the freedom of manoeuvre, or any significant raising of the bar in terms of environmental regulation.”
Lord Kerr himself says in para 88 that the theme that “… the MPA would prevent any resettlement of the islands ... certainly preoccupied the Americans” in May 2009.
36.
In these circumstances, the present issue can be approached, as the courts
below have done, at two different levels. The first involves considering
whether there is any real likelihood or risk that the Administrative Court’s
assessment of Mr Roberts’ and/or Ms Yeadon’s motivation would have been
different if the Administrative Court had permitted further cross-examination
on the Wikileaks
memorandum and had accepted that memorandum as evidence of
what its contents purport to record. The second is whether there is any real
likelihood or risk that any improper motivation on the part of Mr Roberts
and/or Ms Yeadon affected the ultimate decision-maker (Mr Miliband) or his
decision.
37.
As to the first level, the Administrative Court heard both Mr Roberts
and Ms Yeadon being cross-examined on the most important passages of the cable,
particularly the summary in the first and last paragraphs and the purported
recital of actual discussion in para 7. Mr Roberts accepted that he said words
to the effect that it was governmental policy that there should be no human
footprint on the Chagos Islands (other of course than Diego Garcia), embracing
within that term absence of scientific or wardens’ offices, temporary workers
as well as resettlement. He accepted that he had said that establishing an MPA
would in effect put paid to resettlement claims, but explained that this was
recognition of a reality that the Chagossians themselves had originally raised
and that it only related to an MPA “entrenched” by law. He said that
entrenchment was in the event never pursued, and that the proposal for an MPA
was at the time always subject to the outcome of the proceedings in Strasbourg.
Ms Yeadon on the other hand denied that Mr Roberts had said that establishing
an MPA would in effect put paid to resettlement claims. Resettlement was, in
her view, already precluded by the 2004 Order (subject only to the pending
decision of the Strasbourg Court), a point on which the Administrative Court
accepted her evidence, finding it to be supported in a note of a meeting of 25
March 2009 between Mr Roberts, Ms Yeadon and a Chagossian delegation including
the appellant and their solicitor, Mr Gifford. Both Mr Roberts and Ms Yeadon
were adamant that Mr Roberts had not used, and would never have used, the
highly emotive words Man (or Men) Fridays.
38.
The first tier question in these circumstances is whether further
cross-examination might have led to more material favourable to the appellant’s
case of improper motivation on the part of Mr Roberts and/or Ms Yeadon and
whether admission of the cable
in evidence to counterbalance the evidence of Mr
Roberts and Ms Yeadon might have led the Administrative Court to accept that
either or both was, when advancing the proposal for an MPA, improperly
motivated by the desire to prevent resettlement.
39.
As to this question, the “extensive” evidence given by Mr Roberts about
the meeting on 12 May and Ms Yeadon’s own evidence give a picture which is
generally and substantially consistent with that presented by the cable.
In my
opinion, Lord Kerr’s references to an account or statements “inconsistent
with”, or “directly contrary to” or “flatly contradict[ing]” or “in obvious
conflict” (paras 91, 92, 94 and 107) are not borne out by comparison of the
evidence and the
cable.
That too was how the Court of Appeal evidently saw the
position: see its paras 80 to 82 quoted in para 24 above; and see also para 37
above.
41.
It is equally difficult to think that the Administrative Court could
have concluded, by reference either to further cross-examination or to the
cable
itself, that Mr Roberts in fact used the phrase “Man Fridays”, which he
and Ms Yeadon adamantly denied that he would ever have used. The phrase had
already had considerable currency, including in court judgments, and was
well-known known in British circles as infamous. Lord Kerr in para 97 notes the
Court of Appeal’s reference in para 82 of its judgment to the fact that Mr
Pleming QC was not permitted to put to Mr Roberts the “ultimate question”. This
the Court of Appeal identified as being whether the
cable
was accurate, before
continuing “but Mr Roberts had answered all the ‘intermediate’ questions”. Lord
Kerr treats the ultimate question as being “whether [Mr Roberts] had an
explanation for the fact that he was recorded as having made certain statements
which he denied having uttered”. However, as to this, Mr Roberts was not party
to the
cable,
and had, by his answers to the “intermediate” questions, given
the only explanation that he could be expected to give about any differences,
namely that the
cable
was wrong. Even more importantly in this connection, it
is difficult to see that the Administrative Court could have been assisted in
its task on the central issue, even if it had concluded that the phrase “Man
Fridays” was used.
42.
In these circumstances, I do not consider that it has been shown that
the Court of Appeal erred in concluding that neither further cross-examination
on the cable
nor the
cable
itself, if admitted as evidence, would have led to
any different outcome before the Administrative Court. Assuming that the test
should be whether this could realistically have led to any different outcome,
the answer would still, in my opinion, be negative.
“it was the personal decision of the Foreign Secretary to declare an MPA on 1 April 2010, against the advice of his officials.”
and that this
“can best be understood in the political context: Parliament was about to be dissolved. The Foreign Secretary no doubt believed that the decision would redound to the credit of the Government and, perhaps, to his own credit. It would do so the more if a decision with immediate effect was taken.”
44.
The documentation and exchanges available all show that the proposal was
put up by civil servants to the Secretary of State. Bearing in mind its nature
and context, this was bound to occur. It was put up in appropriate terms
without any suggestion of any improper motive, both initially in May 2009 and
ultimately in March 2010. The documentation and exchanges also show that he
made his decision of 31 March 2010 on that basis, against his civil servants’
recommendation to give the proposal further thought and attention. Any suggestion
that further cross-examination of Mr Roberts and/or Ms Yeadon or the admission
of the cable
as evidence of its contents might have led the Administrative
Court to conclude that Mr Miliband was motivated in his enthusiasm, not by his
assessment of the merits of the proposal as such, but by extraneous
considerations relating to a desire to make return difficult for the
Chagossians, finds no basis in the documentation or exchanges and has to my
mind no plausibility at all. There is no basis whatever for impugning Mr Miliband’s
motivation. There is in particular no basis for suggesting that he may have
connived at or joined with Mr Roberts and/or Ms Yeadon in a collusive exercise
of documenting an objective-decision making process, while at the same time pursuing
and concealing an illicit agenda.
45.
The final matter for consideration on this basis is whether any
relevance could attach to improper motivation on the part of one or more civil
servants, when there is no indication whatever that it shaped or in any way
influenced ministerial thinking. The answer must in my opinion be negative. If
the Secretary of State as the ultimate decision-maker, the actual
decision-making process and the decision were unaffected by an improper motive
held by a civil servant, on a proposal bound because of its significance to be
put up to the Secretary of State, the decision can and should stand by itself.
That would on all the evidence be the present position, even if one assumes
that the cable
discloses, or would if deployed have led to a conclusion, that
there was, some improper motivation on the part of Mr Roberts and/or Ms Yeadon
in (or after) May 2009.
47. Carltona does not have any bearing on this situation. It stands for the proposition that ministerial powers are commonly delegable and that, where this is the case and delegation occurs, the decision of an authorised official falls to be treated as the decision of the minister. Here, therefore, it may readily be accepted that, if a Minister were simply to rely on a civil servant, in effect to take a decision in the Minister’s name, then it would be the knowledge, motives and considerations held by and influencing the civil servant that would be relevant. A ministerial decision may also be vulnerable to challenge if taken in ignorance of or on the basis of some mistake as to some material factor. Similarly, if a ministerial decision is arrived at by a collective decision-making process involving a minister and his departmental civil servants, it may well be impossible to separate the ultimate ministerial decision from the knowledge and motives of civil servants involved in its preparation: see eg Bushell v Secretary of State for the Environment [1981] AC 75, 95-96, per Lord Diplock. But these are situations very far from the present case. In the present case, far from the relevant decision being taken by an official on behalf of the minister or being a collective decision, it is clear that the minister, Mr Miliband, took his own decision on the relevant matters. His civil servants put the matter up to him in terms to which no objection is taken as such, he formed his own strong views on the basis of the material put before him and he made the relevant decision. In these circumstances it is his state of mind that is critical, not that of his civil servants.
Fishing rights
“does not contend in these proceedings that the traditional or historical fishing rights relied on are legally enforceable, so that the question whether there are enforceable rights under international law would not arise for decision.”
The appellant’s case, as explained by Mr Pleming before the Administrative Court, was
“simply that there is credible evidence that HMG gave an undertaking to the Government of Mauritius which has subsequently been evidenced by preferential treatment for Mauritius registered vessels, and that this was an important part of the background yet was not put before consultees, who were in consequence misled.”
The Administrative Court held the appellant to that position, and Mr Pleming has not sought to resile from it before the Court of Appeal or Supreme Court. Further, he made clear that before the Supreme Court the only fishing rights relied on are Mauritian fishing rights. That means (and it is unnecessary to attempt any precise definition) fishing rights enjoyed by Mauritian registered and, quite probably, owned vessels, on which in practice Chagossians are often also found as crew.
“that the United Kingdom’s undertaking to ensure that fishing rights in the Chagos Archipelago would remain available to Mauritius as far as practicable is legally binding insofar as it relates to the territorial sea.”
During the course of the hearing before the Supreme Court, the Government put before the Court a statement that:
“HM Government is committed to implementing the Dispositif made in 2015 following Arbitration between the UK and Mauritius over the Marine Protected Zone (MPA) around the British Indian Overseas Territory (BIOT). In line with the Dispositif, the UK will continue to work with Mauritius to agree the best way to meet our obligation to ensure fishing rights in the territorial sea remain available to Mauritius, so far as practicable. The Arbitral Award did not require the termination of the MPA but the UK will continue to approach discussions with an open mind about the best way to ensure proper conservation management of this unique marine environment.”
“In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.”
The breaches so found concerned the relationship between the United Kingdom and Mauritius. It was the tribunal’s view that, after a second meeting between United Kingdom and Mauritian representatives on 21 July 2009, there remained outstanding a number of unanswered issues, as well as information that the United Kingdom promised to provide to Mauritius, but that, despite this, the United Kingdom had in March 2010 elected to press ahead with the final approval and proclamation of the MPA without providing any convincing explanation for the urgency with which it did this on 31 March and 1 April 2010.
i) Mr Gifford and Chagossians resident in Crawley made representations against any no-take ban in the territorial waters, on a basis summarised as follows:
“Very limited fishing anyway, so limited environmental benefit from a ban.
Could have significant consequences for the Chagossians. What effect on the Chagossian community?
Should not be possible to use MPA as a way of entrenching no right of abode.
Inconsistent, as far as concerns fishing, with the law of the sea (UNCLOS).”
ii) The Diego Garcian Society also representing Chagossians wrote in favour of:
“4th option, a no-take marine reserve for the whole of the territorial waters and EPPZ/FCMZ with exceptions for certain types of pelagic fishery (eg tuna) and artisanal fishing by Diego Garcians and other Chagossian fishing projects only.”
iii) The members of the Chagos Refugees Group, led by the appellant and joined by Mr Gifford as their lawyer submitted that the consultation process was “premature (and flawed)” as “putting the cart before the horse”, inter alia, because it needed to be with the consent of the Chagossians, rather than pushed ahead unilaterally, because the sovereignty of Mauritius was also involved and because:
“[There] Are fishing rights which they need in their sea.”
and
“Need human rights first - wrong to come before ECHR judgment.”
60. The Divisional Court observed (para 160):
“The potential impact of an MPA on commercial fishing was squarely raised and must have been obvious to all concerned. The responses from fishing interests show that the impact was clearly understood. If anyone wished to raise an argument that a ban on fishing would be incompatible with Mauritian fishing rights, they were free to do so. … Against that background, the omission of express reference to the point in the consultation document itself is in our view a matter of no significance. It did not affect the fairness of the consultation or the validity of the MPA decision taken following that consultation.”
The Court of Appeal rejected the appeal on this ground, largely for the same reasons given by the Divisional Court (para 108), and specifically agreed with the last two sentences quoted above (para 111).
Conclusion
LORD SUMPTION: (with whom Lord Neuberger, Lord Clarke and Lord Reed agree)
68.
A diplomatic mission is not a separate legal entity. Its archives and
documents belong to the sending state. But the protection of article 24 is
limited to the archives and documents of the mission. It does not extend to
those of any other organ of the sending state. The latter may be protected by
other rules of law: for example by the criminal law, the law of confidence or
the law of copyright. But they are not protected by the Vienna Convention.
Against that background, what is it that identifies a document as belonging to
the archives or documents of the mission, as opposed to some other organ of the
sending state? (I will return below to the particular problems raised by their
unauthorised possession by third parties). The test is not their location, for
they are protected “wherever they may be”. It must necessarily be whether they
are under the control of the mission’s personnel, as opposed to other agents of
the sending state. The draftsmen of article 24 were thinking in terms of
physical documents. But retrievable electronic files are also documents and may
be part of an archive. The same protection therefore applies to them, provided
that access to them is under the control of the mission’s personnel, whether
directly or by virtue of the terms on which the mission transmitted the
document to another governmental entity. This appeal is not the occasion for
determining the exact circumstances in which a mission will be treated as
having control over a document by virtue of the terms on which it transmits it,
because there is no suggestion that the US diplomatic cable
was released on
terms. The relevant point for present purposes is that because the designation
of a document as that of the mission depends on control, its origin and content
is in itself irrelevant. Thus the archives and documents of a mission may
include original or copy documents which emanate from some other organ of the
sending state or from a third party, in which case so far as they are under the
control of the mission’s personnel they will enjoy the same protection as the
mission’s internally generated documents. Correspondingly, copy documents or
originals emanating from the mission may be found in the archives of another
organ of the state (say, its foreign ministry) where they will not enjoy the
protection of article 24.
“International law creates a presumption of law that documents coming from an embassy have a diplomatic character and that every court of justice must refuse to acknowledge jurisdiction or competence in regard to them.”
Fayed v Al-Tajir [1988] QB 712 was a decision of the Court of Appeal in England in a defamation action. The defendant, who was described as the de facto ambassador of the United Arab Emirates in London, had made the statements complained of in internal correspondence of the embassy, copied to the foreign minister. The relevant letter was subsequently communicated to the plaintiff by its recipient, a counsellor at the embassy, without authority. The issue was held to be non-justiciable, and the letter subject to absolute privilege. But Kerr LJ (with whom Croom-Johnson LJ agreed) considered that the letter was also protected by article 24 of the Vienna Convention. In Shearson Lehman Bros Inc v Maclaine Watson & Co (International Tin Council intervener) (No 2) [1988] 1 WLR 16, the House of Lords considered the deployment in evidence of copies of documents of the International Tin Council which had been obtained by third parties. By statute, the Council’s official archives enjoyed the same protection as those of a diplomatic mission. The Appellate Committee held that the question depended on whether the third party had obtained them with the authority of the Council or in circumstances where he could reasonably assume authority. On the assumption that a document forming part of the Council’s archives had been communicated to the third party without authority, Lord Bridge (with whom the rest of the Appellate Committee agreed) held at p 27G-H that it would be
“wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or any one who receives the document from the violator, to make use of the document in judicial proceedings.”
Cases in other jurisdictions are rare, but it may be noted that the German Federal Court has applied a similar principle to evidence derived from the monitoring of telephone lines contrary to the corresponding principle of the Vienna Convention on Consular Relations (1963): BGHSt 36, 396 (4.4.1990).
75. In principle, as I have explained, article 24 protects documents under the control of the mission, but not documents which never were or are no longer under its control. The extension of the protection to documents under a mission’s control which (or the contents of which) have come into the hands of third parties without authority is necessary in order make article 24 effective by preserving the confidentiality of unlawfully communicated documents in accordance with the article’s purpose. The English courts cannot, consistently with the privileges and immunities of a diplomatic mission, allow themselves to be made the instrument by which that confidentiality is destroyed. But once the documents have been published to the world, it has already been destroyed. There is nothing left to be preserved of the interest protected by article 24. It is arguable that where a document has been put into the public domain by the very person who has violated the archives and documents of the mission, he should not be allowed to rely on the fact, although the difficulties of the argument have often been pointed out, for example by Lord Goff in Attorney General v Guardian Newspapers (No 2) 1990] 1 AC 109, 286-287. But that is a refinement which does not arise on the facts in the present appeal, and I need not consider it further.
76.
The Secretary of State’s cross-appeal faces, as it seems to me, two distinct
and equally insuperable difficulties. The first is that, although the cable
relied upon by Mr Bancoult must have emanated directly or indirectly from a US
government source, the Secretary of State is unable to establish that it was
obtained by
Wikileaks,
and through them by The Guardian and The
Telegraph, from the archives of the US embassy in London as opposed to some
other unprotected organ of the US government. He has not therefore established
the essential factual foundation for reliance on article 24 of the Vienna
Convention. Secondly, even if the
cable
had come from the archives of the US
embassy, the document has entered the public domain. Mr Bancoult was not party
to the leaking of the
cable
and has not put it in the public domain. He has
merely made use of what is now the common knowledge of any one who cares to
interest himself in these matters. In my opinion it cannot possibly be a
violation of the US embassy’s archives or documents for Mr Bancoult to make use
in litigation of the common knowledge of mankind simply because it was once
confidential to the US embassy in London. Nor could it be a violation for the
English courts to take cognizance of a document which has escaped from the
control of the US embassy and whose confidential status long ago came to an
end.
LORD KERR: (dissenting)
Improper motive
(i) Background
82.
Before considering these arguments, one must be clear about the
importance of that item of evidence, a cable
which, the appellant claims, was sent
on 15 May 2009 by the United States Embassy in London to departments of the US
Federal Government in Washington. That
cable,
it is claimed, contained a record
of what was said at a meeting on 12 May 2009 between a United States political
counsellor, Mr Richard Mills, and Mr Colin Roberts, Head of Overseas
Territories Directorate, Commissioner for British Indian Ocean Territory (BIOT)
and Ms Joanne Yeadon, Administrator of BIOT and Mr Ashley Smith, the Ministry
of Defence’s Assistant Head of International Policy and Planning. As the Court
of Appeal said (at para 10 of its judgment), the
cable
is “the only
near-contemporaneous record of the meeting”. It purports to have been composed
three days after the meeting took place. If it is authentic, or, perhaps more
pertinently, if there is no reason to doubt its authenticity, it is, at least
potentially, a significant source of evidence about the reasons for making the
MPA.
83.
The first paragraph of the cable
stated that a senior Foreign and
Commonwealth Office official (Mr Roberts) had assured his American counterparts
that the establishment of the MPA would “in no way impinge” on the US
government’s use of the British Indian Ocean Territory (BIOT). In that context,
Mr Roberts is said to have asserted that “the BIOT’s former inhabitants [the
Chagos Islanders] would find it difficult, if not impossible, to pursue their
claim for resettlement on the islands if the entire Chagos Archipelago were a
marine reserve.”
84.
It is, of course, understandable that Mr Roberts would want to make it clear
that the establishment of the MPA would not affect America’s use of BIOT as a
military base. But, whether that also required the statement that the Chagos
Islanders would find it difficult to resettle if the entire Chagos
Archipelago became a marine reserve is more imponderable. After all, many
of the islands in the archipelago were not required by the US for their
military activities in the area. The obvious question arises, therefore, why it
was necessary to state that the MPA would have the effect of preventing
resettlement in any of the islands. It has been pointed out that this
issue was not raised in argument in the Supreme Court. That, as it seems to me,
is beside the point. The unalterable fact is that no evidence has been produced
which established that the entire archipelago was required for American
military activities. What was at stake here was the denial of the opportunity
to the Chagos Islanders to return to their ancestral homeland and whether that
denial was required in order to achieve the reasonable requirements of the USA.
That circumstance should concern this court, whether or not it was
raised in argument, when we are asked to consider the impact which the
introduction of the cable
in evidence might have had on the outcome of the
proceedings before the Divisional Court. There was no evidence that the
continuation of military activities required the depopulation of all the
islands. In those circumstances, the reason that the civil servants advised the
minister to make a MPA was highly relevant. It is therefore not only legitimate
for, it is required of, a court examining the reasons for making the MPA to
address the question whether the minister has been properly appraised of all
material factors. If it was wholly unnecessary to keep uninhabited the islands
other than Diego Garcia, the motives of the civil servants in recommending that
course were directly relevant to the question of why they had advocated the
establishment of the MPA. Was it to frustrate any further campaign to allow the
Chagos Islanders to return to their homeland? To dismiss and treat as
irrelevant this consideration simply because it did not feature in the
appellant’s argument cannot be right. It has been pointed out that, in the
original exchange of notes between the United States and United Kingdom in 1966
it was stipulated that all of the BIOT be “set aside for defence
purposes” and that any significant change of the BIOT’s status that could
impact the BIOT’s strategic use would require US consent. But what of that?
Here we are examining the motivation for the recommendation of the
establishment of an MPA. Was it for the purpose of protecting marine life? Or
was it in order to ensure that the Chagossians’ campaign could go no further
and that the Americans’ desire to have all the BIOT preserved for their use
(assuming that that desire had persisted since 1966) would be fulfilled? It is
no answer to the charge of improper motive as to the reasons for advocating the
establishment of the MPA, that this chimed with the wishes of the USA.
85.
At para 7 of the cable,
Mr Roberts is recorded as saying that a way had
to be found to “get through the various Chagossian lobbies”. He is said to have
admitted that the British government was under pressure from the Chagos
Islanders to permit resettlement of the outer islands. Further, Mr Roberts is
recorded as having observed that, according to the British government’s current
thinking, there would be “no human footprints” and no “Man Fridays” on BIOT’s
uninhabited islands. In the words of the
cable,
Mr Roberts asserted that
“establishing a marine park would, in effect, put paid to resettlement claims
of the archipelago’s former residents”. When it was suggested by the Americans
present at the meeting that the advocates of Chagossian resettlement continued
vigorously to press their case, Mr Roberts replied that the UK’s environmental
lobby was “far more powerful than the Chagossians’”.
86.
Comment by the author of the cable
is littered with observations about
the possible resettlement of the Chagos Islands. Reference is made to the
possible “appeal” by the Chagossians to the European Court of Human Rights
(ECtHR) and the British government’s assurance that this would be firmly
resisted. This is the pervasive theme of the meeting. And the
cable
also stated
that after the meeting had ended, Ms Yeadon urged US embassy officials to affirm
that the US government required the entire BIOT for defence purposes. She is
recorded as having said that “making this point would be the best rejoinder to the Chagossians’ assertion that partial settlement of
the outer islands would have no impact on the use of Diego Garcia”. This is
important. There is no evidence that America did need the entire BIOT. Why, if
she did, did Ms Yeadon urge the US government to make this claim, if not in
order to thwart the Chagos Islanders’ aspiration to return to at least part of
their homeland?
87.
The final two paragraphs of the cable
contain significant observations
in relation to the importance placed on the possibility of resettlement. These
are the relevant passages from those paragraphs:
“Regardless of the outcome of the ECtHR case, however, the Chagossians and their advocates, including the ‘All Party Parliamentary Group on Chagos Islands (APPG)’, will continue to press their case in the court of public opinion. Their strategy is to publicise what they characterise as the plight of the so-called Chagossian diaspora, thereby galvanising public opinion and, in their best-case scenario, causing the government to change course and allow a ‘right of return.’ They would point to the government’s recent retreat on the issue of Gurkha veterans’ right to settle in the UK as a model …
We do not doubt the current government’s resolve to prevent the resettlement of the islands’ former inhabitants, although as FCO Parliamentary Under-Secretary Gillian Merron noted in an April parliamentary debate, ‘FCO will continue to organise and fund visits to the territory by the Chagossians.’ We are not as sanguine as the FCO’s Yeadon, however, that the Conservatives would oppose a right of return. Indeed, MP Keith Simpson, the Conservatives’ Shadow Minister, Foreign Affairs, stated in the same April parliamentary debate in which Merron spoke, that HMG ‘should take into account what I suspect is the all-party view that the rights of the Chagossian people should be recognised, and that there should at the very least be a timetable for the return of those people at least to the outer islands, if not the inner islands.’ Establishing a marine reserve might, indeed, as the FCO’s Roberts stated, be the most effective long-term way to prevent any of the Chagos Islanders’ former inhabitants or their descendants from resettling in the BIOT.”
88.
It is plain, as I have said, that a dominant theme of the meeting was
that the establishment of the MPA would prevent any resettlement of the
islands. It certainly preoccupied the Americans and it was a recurring refrain
in the assurances that Mr Roberts and Ms Yeadon are said to have given. Viewed
in isolation, the cable
certainly creates a suspicion that this was a
motivating factor in the decision to declare an MPA.
89.
The Divisional Court concluded that the cable
was not admissible in
evidence. It nevertheless permitted Mr Pleming to cross examine Mr Roberts and
Ms Yeadon about its contents on the basis that its authenticity was assumed but
not established. The Court of Appeal considered that the
cable
was admissible
but held that, even if it had been admitted, it would have made no difference
to the conclusion of the Divisional Court that improper motive had not been
established.
90.
The arguments about admissibility have been fully canvassed in the
judgments of Lord Mance and Lord Sumption and need not be repeated here. I
agree with Lord Mance that it has not been established that the cable
remained
part of the archive of the London mission and, on that account, that the status
of inviolability can no longer be claimed. I also agree with Lord Sumption that
it cannot be a violation of the US embassy’s archives to use in litigation a
document which has entered the public domain.
91.
One must keep in mind that the exclusion of the cable
had two distinct
effects. First, it restricted the cross examination of Mr Roberts and Ms
Yeadon. It was not possible to challenge them on the basis that the document
was genuine and was to be taken as having recorded their statements at the meeting
and, in Ms Yeadon’s case, subsequently. Being able to confront a witness with
statements that she or he previously made which are inconsistent with their
testimony is one of the most important forensic tools in the cross-examiner’s
armoury. Technically, Mr Pleming was bound by the answers given by the
witnesses to questions based on the
cable’s
contents. This would not have been
the case if the
cable
had been admitted in evidence.
92.
It has been suggested that the evidence given by Mr Roberts about the
meeting on 12 May and Ms Yeadon’s own evidence “give a picture which is
generally and substantially consistent with that presented by the cable”.
Much
of the evidence that they gave coincides with the contents of the
cable,
it is
true. But in crucial areas it is incontestably inconsistent. It is not in the
least surprising that much of the evidence from the civil servants and the
contents of the
cable
were found to coincide. Indeed, it was part of Mr
Pleming’s admitted strategy to point to that coincidence in order to establish
the
cable’s
authenticity. But to imply that there were not highly significant
differences, differences which, moreover, touched on the very issue at stake in
this case, is unrealistic. Mr Roberts denied using the expression, “Man Fridays”.
Ms Yeadon denied that Mr Roberts had said that “establishing an MPA would in
effect put paid to resettlement claims”. This is directly contrary to the
contents of the
cable.
Indeed, it is directly contrary to the evidence of Mr
Roberts himself, for he is recorded as having accepted that he did say to the
US officials that the establishment of an MPA would in effect put paid to the
resettlement claims. The opportunity to exploit these differences if the
cable
had been admitted in evidence, as it should have been, cannot be airily
dismissed. The entire cursus of the cross examination (and consequently the
conclusions that might have been reached on the critical issue) could have been
radically different.
93.
The second consequence of excluding the cable
from evidence was that it
did not rank as independent material with the potential to act as a significant
counterweight to the FCO witnesses’ testimony. If the Divisional Court had
admitted the
cable
in evidence, it would have to be pitted as an item of
evidence which was in many respects directly contrary to the testimony of Mr Roberts
and Ms Yeadon. The court would have been required to assess the veracity and
reliability of their claims against the contemporaneous evidence provided by
the
cable.
As it was, the Divisional Court merely theorised about whether Mr
Pleming’s cross examination would have been more effective if the
cable
had
been admitted in evidence. It did not consider the
cable’s
contents for their
capacity to discredit the testimony of the two FCO witnesses.
(ii) The curtailing of cross examination
94.
Dealing with the impact of the exclusion of the cable
from evidence, the
Court of Appeal said at para 88:
“[Our] outline of the
cross-examination of both witnesses does not capture its full flavour. It was
extensive and searching. In our judgment, Mr Pleming was not disadvantaged by
not being able to put questions on the basis that the cable
was authentic and a
true record of what was said at the meeting of 12 May 2009. He tested the
evidence of Mr Roberts and Ms Yeadon on the basis of the
cable.
It is true that
he was not able to put questions like: ‘have you any explanation for the fact
that you are recorded as having said X when you deny having said it?’ But it is
unrealistic to suppose that, if Mr Pleming had been able to put such questions,
this would have materially affected the thrust or course of the
cross-examination or of the answers that were given. The Divisional Court was
right to say that the dividing line between questions which its ruling permitted
and those which it did not permit was ‘fine’. In our judgment, the inhibition
on Mr Pleming’s questions can have had no material effect on the course or the
outcome of the cross-examination. Mr Pleming was able to, and did in fact,
explore the accuracy of the contents of the
cable
with both witnesses. In
particular, he probed the purpose of the MPA and whether what was purportedly
recorded in the
cable
as having been said had in fact been said.”
95.
It is true that there was extensive cross examination of Mr Roberts and
Ms Yeadon based on the contents of the cable.
The difference between probing
witnesses’ accounts and confronting them with admissible evidence which flatly
contradicts their accounts should not be underestimated, however.
96.
As the Court of Appeal observed (in para 80 of its judgment), Mr Roberts
refused to answer questions as to whether the contents of the cable
were
accurate. This was in reliance on the government’s policy of “neither confirm
nor deny” (NCND) policy. It appears to have been accepted without demur by the
Divisional Court and the Court of Appeal that NCND justified this stance. For
my part, I would not be disposed to accept that this policy could be resorted
to in order to avoid answering a relevant question with which the court was
required to deal. Given that the Divisional Court had decided that the
authenticity of the
cable
should be assumed, it appears to me that Mr Roberts
should have been required to answer as to whether what was recorded in the
cable
faithfully recorded what had taken place. As it happens, of course, Mr
Roberts did address the question whether some parts of the
cable
were accurate
- see para 81 of the Court of Appeal’s judgment.
97.
What is clear, in my view, is that Mr Roberts could not have relied on
NCND if the cable
had been admitted in evidence. Nor could he have refused to
deal with what the Court of Appeal described in para 82 of its judgment as “the
ultimate question”: whether he had an explanation for the fact that he was
recorded as having made certain statements which he denied having uttered. In
deciding whether being required to answer such a question could have made a
difference to the outcome of the Divisional Court case, one must consider the
range of possible responses that might have been given. (In this context, Lord
Mance has accepted for the purposes of the appeal that the appropriate question
is whether the admission of the
cable
could have made a difference - see
para 23 of his judgment. For reasons that I will give later in this judgment, I
consider that this is indubitably the correct test in this instance.)
98.
If one imagines that Mr Roberts’ answer to the “ultimate question” was
that he had no explanation, or even, when pressed, that the cable
was indeed
accurate and that he recanted his initial disavowal of what he was recorded as
having said, it is not difficult to conclude that this could have made a
significant difference to the court’s assessment of him as a reliable witness.
The Court of Appeal did not consider the range of possible responses that Mr
Roberts might have given to this question. In my opinion, it should have done.
And if it had done, it could not have reached the conclusion that it did.
(iii) The capacity of the cable
to counter the FCO
evidence
99.
The Court of Appeal dealt cryptically with the second issue, namely, the
status of the cable
as independent material with the potential to act as a
counterweight to the FCO witnesses’ testimony. At para 89, the court said,
“[w]e do not accept that there is a realistic possibility that the court’s
assessment of the evidence of Mr Roberts and Ms Yeadon would have been affected
if the
cable
had been formally admitted in evidence as an authentic document”.
“It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence … reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”
101. That approach was approved by the Privy Council in Grace Shipping Inc v CF Sharp & Co (Malaya) Pte Ltd [1987] 1 Lloyd’s Rep 207 and applied in a number of subsequent cases. For example, in Goodman v Faber Prest Steel [2013] EWCA Civ 153, the Court of Appeal held that the trial judge had erred in accepting a personal injury claimant’s evidence of pain without dealing with contradictory documentary evidence and explaining why the claimant’s evidence was to be preferred. Moore-Bick LJ applied the approach of Robert Goff LJ and stated that “memory often plays tricks and even a confident witness who honestly believes in the accuracy of his recollection may be mistaken. That is why in such cases the court looks to other evidence to see to what extent it supports or undermines what the witness says and for that purpose contemporary documents often provide a valuable guide to the truth”. He concluded that:
“[O]ne is left with the clear impression that [the judge] was swayed by Mr Goodman’s performance in the witness box into disregarding the important documentary evidence bearing on what had become the central question in the case. It may have been open to her to prefer what he had said in the witness box, but if she was minded to do so it was incumbent on her to deal with the documentary evidence and explain why Mr Goodman’s oral evidence was to be preferred.”
102.
It is not to be suggested that the Divisional Court ignored or
disregarded the “important documentary evidence” which the cable
constituted.
But if it had admitted the
cable
in evidence, as should have happened, the
contrast between some of its contents and the evidence of Mr Roberts and Ms
Yeadon would have been starker. The need to confront the discrepancy between
the two could not have been avoided.
103. Although said in relation to commercial litigation, I consider that the observations of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), paras 15-22 have much to commend them. In particular, his statement at para 22 appears to me to be especially apt:
104.
The intellectual exercise on which the Divisional Court was engaged in
evaluating the evidence of Mr Roberts and Ms Yeadon, having refused to admit
the cable
in evidence, was quite different from that on which it would have had
to embark if the evidence had been received. By refusing to admit the evidence,
the court effectively had confined its role to an assessment of how well the
witnesses had withstood cross examination. If the
cable
had been admitted, the
discrepancies between the contents of the
cable
and their testimony would have
had to be considered objectively, while keeping in mind all the adjurations as
to the likelihood of contemporaneous documentary evidence being intrinsically
more reliable.
105.
If the Divisional Court had admitted the cable
in evidence, what were
the possible consequences? If it had concluded, as well it might, that it was
inherently unlikely that the
cable
would have recorded Mr Roberts as having
said there would be “no human footprints” and no “Man Fridays” on BIOT’s
uninhabited islands, unless he had actually used those words, what impact would
that have had on his believability? These were striking expressions. Indeed, Ms
Yeadon said that, if they had been used, she would have been shocked. Could
they have been fabricated by the author of the
cable?
Why should they have
been? If the
cable
had been admitted and was therefore a freestanding item of
evidence, it is at least possible that the Divisional Court would have decided
that it was unlikely that the person who composed the
cable
would have
fabricated those phrases and attributed them directly to Mr Roberts. And, if it
was concluded that this was unlikely, what effect would that have on Mr
Roberts’ credibility in light of his denial of having used them?
106.
When the Court of Appeal came to consider what difference the admission
in evidence of the cable
might have made, the question for them should have
been whether a different outcome was possible, not whether that would
have happened or even whether it was likely. (I will explain presently why I
consider that the possibility of a different result was the correct test.) The
Court of Appeal, however, seems to have considered various possible
formulations at different points of its judgment. At para 89 it twice stated
that it was unrealistic to suggest that the court “would” have reached a
different conclusion, had the evidence been admitted. Later in the same paragraph
the court said that it had borne in mind that “a legally correct approach would
have made no difference to the outcome: see, for example, R v Chief
Constable of the Thames Valley Police, Ex p Cotton [1990] IRLR 344, per
Bingham LJ at para 60.” These statements suggest that the appeal court
considered that, unless the admission of the
cable
would have made a
difference, as opposed to whether it could have done so, a review of the
Divisional Court’s decision would not be appropriate. I do not consider that
this is the correct test and I turn now to that issue.
(iv) The correct test
“… it was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer. But I need not decide that because there was here, I think, a substantial possibility that a sufficient number of the committee might have been persuaded not to vote for the appellant’s dismissal.”
108.
The “substantial possibility” that the Divisional Court would have
reached a different conclusion if Mr Roberts’ evidence had taken a different
turn as a consequence of his having to address and answer the “ultimate
question” cannot be dismissed, in my opinion. Moreover, if the court had been
required to confront the obvious conflict between Mr Roberts’ and Ms Yeadon’s
evidence and that contained in the cable,
again there was a distinct
possibility that it would have been concluded that the frustration of the
campaign by the Chagossians to resettle the outlying islands was, at least, a
collateral purpose in the civil servants’ recommendation to the minister that
the MPA be established.
110.
As noted at para 106 above, the Court of Appeal suggested that the
proper manner of dealing with the question was to ask whether a legally correct
approach would have made no difference to the outcome. In relation to this
case, that means that one should ask the question, if the Divisional Court had
admitted the cable
in evidence and if it had permitted cross examination on the
basis that it was in evidence, would this not have affected the outcome. On one
view, this partakes of the application of a “could” test, and, in effect, this
is how Lord Mance considers that the Court of Appeal dealt with the issue. For
the reasons given earlier, I do not agree. Even if that had been the Court of
Appeal’s approach, however, I could not agree with the conclusion that it
reached.
112.
The Court of Appeal did not review the range of possible outcomes that
might have accrued if the cable
had been admitted in evidence or if Mr Pleming
had been permitted to press on with this cross examination to demand an
explanation as to why the civil servants’ evidence differed from its contents.
In my opinion, that was central to a proper examination of the issue.
(v) The genesis and development of the MPA
“Assuming we win in Strasbourg, we should be aiming to calm down the resettlement debate. Creating a reserve will not achieve this, but it could create a context for a raft of measures designed to weaken the movement.”
115.
This statement is to be contrasted with what Mr Roberts is quoted in
para 7 of the cable
as having said during the meeting with American officials
some seven days later. At that meeting he is recorded as having claimed that
British government thinking was that there would be “no human footprints” and
no “Man Fridays” on BIOT’s uninhabited islands. He is also recorded as having
asserted that “establishing a marine park would, in effect, put paid to
resettlement claims of the archipelago’s former residents”. So, although he
told the minister that the MPA would not “calm down the resettlement debate”,
he was telling the Americans that the resettlement claims would be effectively
extinguished. And, of course, in further contrast to what the minister was
being led to believe would be the effect of the MPA on the Chagossians’ hopes
of resettlement, Ms Yeadon was recorded in the
cable
as encouraging US embassy
officials to affirm that the US government required the entire BIOT for defence
purposes so as to nullify the Chagossians’ assertion that partial settlement of
the outer islands would have no impact on the use of Diego Garcia.
116.
The circumstance that the decision to make the MPA rested with the
minister does not immunise the process by which that decision was made from the
possible taint of improper motive. If those who advised the minister were
actuated by such a motive but tailored their advice to the minister so as to
conceal it, the fact that the minister took the decision does not render the
underlying collateral purpose of no consequence. The contrast between the
advice given to the minister and the contents of the cable
incidentally
reinforces the need for an unrestrained cross examination of the witnesses,
particularly because, as Lord Mance observed in para 40, the Divisional Court
did not address the contradiction in the evidence of Mr Roberts and that of Ms
Yeadon as to whether the former did in fact say that an MPA would put paid to
resettlement.
121.
I consider, therefore, that the Court of Appeal should have recognised
that there was a substantial possibility that, not only would the Divisional
Court have taken a different view of the evidence of Mr Roberts and Ms Yeadon,
if they had admitted the cable
and the case had proceeded to its conventional
conclusion, but that there was an equally substantial possibility that it would
have concluded that the Foreign Secretary’s decision could be impugned because
it was taken on a misapprehension of the true facts and circumstances. For
these reasons, I would have allowed the appeal and ordered that the matter be
remitted for hearing before a Divisional Court with the direction that it be
reconsidered on the basis that the
cable
was admissible in evidence.
Fishing rights
122. I agree with Lord Mance on the issue of fishing rights.
LADY HALE:
123.
This case is of huge importance to the Chagossians in their campaign to
be permitted to re-settle in their islands and to fish in the waters
surrounding them. On the substance of the appeal, I agree with Lord Kerr that
we cannot be confident that the findings of the Divisional Court would have
been the same had the “Wikileaks
cable”
been admitted into evidence and counsel
been permitted to cross-examine the FCO officials upon it. The crucial legal
issue in the case is therefore the admissibility of the
cable,
which is a
matter of considerable importance both nationally and internationally.
125.
In Lord Mance’s view, the cable
did not remain part of the archive of
the London mission once it had been remitted to the State Department or some
other location for information and use there (para 20). It is indeed very
probable that the leak did not take place from the mission but from elsewhere
in the United States government. Nevertheless, as the main purpose of the
inviolability rule is to allow the mission to communicate in confidence with
the sending government, documents emanating from a mission must retain their
confidentiality and consequent inviolability in some circumstances.
127.
It cannot be the case that a diplomatic communication loses its
inviolability once it has left the mission. The concept of control must include
the restrictions placed by the sending mission on the dissemination of the
communication, subject to the directions of their superiors in the sending
state. In both versions of the Wikileaks
cable
which we have - one published in
the Guardian and one in the Daily Telegraph - it was classified Confidential by
Political Counsellor Richard Mills for reasons 1.4b and d (whatever they may
be). That indicates a rather low level of control exercised over the document,
which obviously found its way into many hands before it was acquired and put
into the public domain by
Wikileaks.