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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hoareau & Anor, R (On the Application Of) v The Secretary of State for Foreign And Commonwealth Affairs [2020] EWCA Civ 1010 (30 July 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1010.html Cite as: [2020] EWCA Civ 1010, [2021] WLR 472, [2020] HRLR 17, [2021] 1 WLR 472 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, DIVISIONAL COURT
(SINGH LJ & CARR J)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE GREEN
and
LORD JUSTICE DINGEMANS
____________________
THE QUEEN (on the application of (1) SOLANGE HOAREAU (2) LOUIS OLIVIER BANCOULT |
Claimants/Appellants |
|
- and - |
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THE SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS |
Defendant/Respondent |
____________________
Phillippa Kaufmann QC, Paul Harris SC and Robert McCorquodale (instructed by Clifford Chance LLP) for the Second Claimant/Appellant
Sir James Eadie QC, Kieron Beal QC, John Bethell and Philippa Webb (instructed by Government Legal Department) for the Defendant/Respondent
Hearing dates : 12, 13, 14 & 15 May 2020
____________________
Crown Copyright ©
Sir Terence Etherton MR, Lord Justice Green and Lord Justice Dingemans:
Introduction
The Background
The Chagos Islands
A summary of relevant litigation relating to the Chagos Islands
The review of policy towards resettlement and the KPMG report
"In conclusion, whilst it can be said that the KPMG report identified that resettlement was feasible, such a statement without more would be over simplistic. Whilst physically feasible, any resettlement would present significant challenges and raise substantial concerns, including political, defence and environmental, before even addressing questions such as cost. As KPMG put it: "The issues and challenges facing the potential resettlement of selected islands in the Chagos Archipelago are very significant. They include: human, physical (infrastructure), political, environmental, financial and economic". These were all matters requiring evaluative judgments by the ultimate decision-makers in 2016."
10 March 2015 NSC meeting
15 March 2016 NSC meeting
" We have taken care in coming to our final decision on resettlement, noting the community's emotional ties to BIOT and their desire to go back to their former way of life.
I am today announcing that the Government has decided against resettlement of the Chagossian people to the British Indian Ocean Territory on the grounds of feasibility, defence and security interests, and cost to the British taxpayer. In coming to this decision, the Government has considered carefully the practicalities of setting up a small remote community on low-lying islands and the challenges that any community would face. These are significant, and include the challenge of effectively establishing modern public services, the limited healthcare and education that it would be possible to provide, and the lack of economic opportunities, particularly job prospects. The Government has also considered the interaction of any potential community with the US Naval Support Facility a vital part of our defence relationship.
The Government will instead seek to support improvements to the livelihoods of Chagossians in the communities where they now live. I can today announce that we have agreed to fund a package of approximately £40 million over the next ten years to achieve this goal. This money addresses the most pressing needs of the community by improving access to health and social care and to improved education and employment opportunities. Moreover, this fund will support a significantly expanded programme of visits to BIOT for native Chagossians.
The Government will work closely with Chagossian communities in the UK and overseas to develop cost-effective programmes which will make the biggest improvement in the life chances of those Chagossians who need it most.
"
The present proceedings and the hearing before the Divisional Court
The Divisional Court judgment
The Grounds of Appeal, the Respondent's Notice and a short Summary of the Submissions
Issue I: Whether the ECHR extended to the Chagos Islands, and if so whether there had been a breach of Article 8 and A1P1
The Issue
"Obligation to respect Human Rights"
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."
"1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible.
2. The Convention shall extend to the territory or territories named in the notification as from the thirtieth day after the receipt of this notification by the Secretary General of the Council of Europe.
3. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.
4. Any State which has made a declaration in accordance with paragraph 1 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided by Article 34 of the Convention."
"140. The "effective control" principle of jurisdiction set out above does not replace the system of declarations under Article 56 of the Convention (formerly Article 63) which the States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible. Article 56 § 1 provides a mechanism whereby any State may decide to extend the application of the Convention, "with due regard ... to local requirements," to all or any of the territories for whose international relations it is responsible. The existence of this mechanism, which was included in the Convention for historical reasons, cannot be interpreted in present conditions as limiting the scope of the term "jurisdiction" in Article 1. The situations covered by the "effective control" principle are clearly separate and distinct from circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it is responsible (see Loizidou (preliminary objections), cited above, §§ 86-89 and Quark Fishing Ltd v. the United Kingdom (dec.), no. 15305/06, ECHR 2006-...)."
"The applicants are natives of, or descendants of natives of the Chagos Islands, sometimes referred to as "Ilois" or "Chagossians". They are resident largely in Mauritius, the Seychelles and the United Kingdom. Letters of authority have been received from 1,786 applicants and are contained in the file."
"73. Anachronistic as colonial remnants may be, the meaning of Article 56 is plain on its face and it cannot be ignored merely because of a perceived need to right an injustice. Article 56 remains a provision of the Convention which is in force and cannot be abrogated at will by the Court in order to reach a purportedly desirable result."
"75. The question remains as to whether the passage from Al-Skeini cited above indicates that there must now be considered to be alternative bases of jurisdiction which may apply even where a Contracting State has not extended application of the Convention to the overseas territory in issue, namely, that the United Kingdom can be held responsible for its acts and omissions in relation to the Chagos Islands, despite its exercise of its choice not to make a declaration under Article 56, if it nonetheless exercised "State agent authority and control" or "effective control" in the sense covered by the Grand Chamber judgment. This interpretation is strongly rejected by the respondent Government and would indeed render Article 56 largely purposeless and devoid of content since Contracting States generally did, and do, exercise authority and control over their overseas territories."
76. However, even accepting the above interpretation, the Court finds it unnecessary to rule on this particular argument since, in any event, the applicants' complaints fail for the reasons set out below."
The issue identified as not needing to be answered was, on one view, the very point which the Court did answer in paragraphs 72 - 74 when referring to Al-Skeini (ibid) and to its earlier judgment in Quark Fishing Ltd v United Kingdom (2007) 44 EHRR SE4; and in paragraph 75 the Court observed that, if the argument of the Applicants was correct, it would render Article 56 " largely purposeless and devoid of content since Contracting States generally did, and do, exercise authority and control over their overseas territories." At all events, the Court proceeded to identify additional grounds for rejecting the application which rendered the Applicant's arguments about Article 56 superfluous. The Court held (paragraphs 77 - 81) that the applicants fell into two camps. They had either (a) been compensated by the UK for what was an accepted violation of their rights; or (b), been afforded a proper opportunity under domestic law to bring claims for vindication of their substantive rights and/or for compensation. Accordingly, they were either (in the case of (a)) no longer "victims" within the meaning of Article 34 ECHR or (in the case of (b)) no longer "victims" because they had failed to exhaust their local remedies under Article 35 ECHR, and in either case they had no subsisting rights under the Convention which entitled them to proceed before the Court.
The Advisory Opinion of the ICJ and the Resolution of the General Assembly of the United Nations
"(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967? ;
(b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?"
"160. Both State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination. No example has been brought to the attention of the Court in which, following the adoption of resolution 1514 (XV), the General Assembly or any other organ of the United Nations has considered as lawful the detachment by the administering Power of part of a non-self-governing territory, for the purpose of maintaining it under its colonial rule. States have consistently emphasized that respect for the territorial integrity of a non-self-governing territory is a key element of the exercise of the right to self-determination under international law. The Court considers that the peoples of non-self-governing territories are entitled to exercise their right to self-determination in relation to their territory as a whole, the integrity of which must be respected by the administering Power. It follows that any detachment by the administering Power of part of a non-self-governing territory, unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to self-determination."
"174. The Court concludes that, as a result of the Chagos Archipelago's unlawful detachment and its incorporation into a new colony, known as the BIOT, the process of decolonization of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968."
"Demands that the United Kingdom of Great Britain and Northern Ireland withdraw its colonial administration from the Chagos Archipelago unconditionally within a period of no more than six months from the adoption of the present resolution, thereby enabling Mauritius to complete the decolonization of its territory as rapidly as possible".
Conclusions on the impact of the Advisory Opinion and UN Resolution on the application of the ECHR
"45. Having failed to recognize the peremptory status of the territorial integrity rule in the context of decolonization, the Court has failed to properly articulate the consequences of the United Kingdom's internationally wrongful conduct. Any treaty that conflicts with the right of the Mauritian people to exercise their right to self-determination with respect to the Chagos Archipelago is void. This has clear implications for the agreement between the United Kingdom/United States. Further consequences flow from the serious nature of the United Kingdom's internationally wrongful conduct. All States are under an obligation to co-operate to bring an end to the United Kingdom's unlawful administration of the Chagos Archipelago. Moreover, all States are under an obligation not to recognize as lawful the situation created by the United Kingdom's continued administration of the Chagos Archipelago and not to render aid or assistance in maintaining the illegal situation.
"7. Calls upon all other international, regional and intergovernmental organizations, including those established by treaty, to recognize that the Chagos Archipelago forms an integral part of the territory of Mauritius, to support the decolonization of Mauritius as rapidly as possible, and to refrain from impeding that process by recognizing, or giving effect to any measure taken by or on behalf of, the "British Indian Ocean Territory"
(emphasis added)
"The presumption is that a rule of customary international law will be taken to shape the common law unless there is some positive reason based on constitutional principle, statute law or common law that it should not (for ease of reference, we refer to these together as reasons of constitutional principle). The presumption reflects the policy of the common law that it should be in alignment with the common customary law applicable between nations. The position is different from that in relation to unincorporated treaty obligations, which do not in general alter domestic law. In part, since the making of treaties is a matter for the executive, this reflects the principle that the Crown has no power to alter domestic law by its unilateral action: see J.H. Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 499-500 (Lord Oliver) and R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2017] 2 WLR 583. The common law is more receptive to the adoption of rules of customary international law because of the very demanding nature of the test to establish whether a rule of customary international law exists: see above. That is not something that the Crown can achieve by its own unilateral action by simple agreement with one other state. Accordingly, in the case of a rule of customary international law the presumption is that it will be treated as incorporated into the common law unless there is some reason of constitutional principle why it should not be. In the case of an obligation in an unincorporated treaty the relevant rule is the opposite of this, namely that it will not be recognised in the common law."
"Speaking generally, in my opinion, the presumption when considering any such policy issue is that [customary international law], once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration."
We treat this statement of principle as expressing the present law. Applying these principles to the present case any presumption that customary law shapes the common law such as to give rise to a common law right of resettlement confronts the obstacle that there is statute law in the form of legislation (the Constitution Order see paragraph 29 above) which prohibits return to the Chagos Islands, in other words there is a statutory block on the right of resettlement. This was held by the majority of the House of Lords in Bancoult (No 2) to prevent the application of any otherwise inconsistent international law rule (see Lord Hoffmann at paragraph 66). It has not been argued upon this appeal that this particular conclusion of the House of Lords was not binding upon us.
Issue II: Whether anxious scrutiny was to be applied by the Divisional Court and the Decision Maker
Anxious scrutiny
"The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."
"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."
"The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations."
Anxious scrutiny as applied to the Decision Maker
Issue III: The rationality of the decision
Consideration of right of return
The runway
"The maps overleaf plot the approximate lengths of a selected number of islands within Peros Banhos and Salomon Islands, such islands perhaps offering sufficient length and appropriate topography for a landing strip that could be serviced by either longer range jets or short haul propeller aircraft.
The table below provides a quick summary of our high-level assessment of the various options.
Clearly all of the lengths and assessments summarised below would need to be verified by appropriately skilled and technically competent specialists in the aviation sector."
The deliverability and calculation of the support package
Conclusion