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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] Env LR 24, [2018] 1 WLR 973, [2018] WLR(D) 79, [2018] UKSC 3, [2018] 2 All ER 945, [2018] WLR 973 |
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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”.
3. No fresh legislation or regulations relating to fishing were in the event issued or necessary. Fishing was already controlled. From 1984 it was controlled within the three mile territorial waters and the contiguous zone which extended a further nine miles (to 12 miles from shore) under Proclamation No 8 of 1984 and the Fishery Limits Ordinance 1984. Control was subject to a power (exercised on 21 February 1985) to designate Mauritius for the purpose of enabling fishing traditionally carried on within those limits. Proclamation No 1 of 1991 and the Fisheries (Conservation and Management) Ordinance 1991 (“the 1991 Ordinance”) established a Fisheries Conservation and Management Zone extending 200 miles from shore, within which a fee-carrying licence was required for any fishing. The Mauritian government was, however, informed that a limited number of licences would continue to be offered free of charge in view of the traditional fishing interests of Mauritius in the waters surrounding BIOT. Proclamation No 1 of 2003 establishing the EPPZ had no impact on fishing. The 1991 Ordinance was superseded by similarly entitled Ordinances in 1998 and then 2007, under which the licensing system was continued. The majority of fishing from Mauritius was inshore fishing carried out by the Talbot Fishing Company, owned by the Talbot brothers, one of whom was Chagossian. Their vessels were flagged to Mauritius until 2006 or 2007, when for economic reasons they were reflagged to Madagascar and the Comoros. A number of regular crew members on these boats were Chagossians. After the establishing of the MPA, and the accompanying announcement, the achievement of a no-take reserve or zone was in practice accomplished by allowing existing licences to expire and by not issuing any fresh licences to the Talbot vessels or other vessels from outside BIOT for inshore or other fishing in the MPA.
4. The present challenge has two limbs. One is that the decision to create the MPA had an improper ulterior motive, namely to make resettlement by the Chagossians impracticable. The other is that the consultation preceding the decision was flawed by a failure to disclose the arguable existence on the part of Mauritius of inshore fishing rights (ie within the 12 mile limit from shore). Both challenges are associated with the enforcement of a no-take zone by the refusal since 2009 of fishing licences, since the impracticality of resettlement is said to derive from the loss by Chagossians of occupational skills and possibilities, now and at any future time when resettlement might be contemplated.
“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.
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.
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
“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.’”
25. It is worth underlining some points about the history which arise from this account. First, the whole idea of an MPA and a no-take zone was generated by independent environmental activity. An American environmental group, Pew, made the initial proposal to Professor Charles Sheppard, BIOT’s independent environmental adviser, in July 2007. This led on 22 April 2008 to discussions between Pew and Ms Yeadon about the creation of an MPA, in which there would be a no-take zone. On the same day, the Chagos Conservation Network, whose founders included Pew and Professor Sheppard, held its inaugural meeting at the Linnean Society, and expressed the view that there should be a no-take zone within BIOT waters. On February 2009, The Independent reported in an article that the Chagos Conservation Trust, the RSPB, the Zoological Society of London and Pew were launching a plan for an MPA, which would be compatible with defence interests and would offer a possibility that some Chagossians might return as environmental wardens; a marine biologist from York University was reported as describing the attitude of the British government towards the Chagos Islands up to that time as “one of benign neglect”; and the British government itself was reported as saying it would “work with the international environmental and scientific community to develop further the preservation of the unique environment”. (The Mauritian government’s response to this article was that the Chagos Islands were under its sovereignty, so that its consent would be required.)
26. Second, it is clear that, from the outset, the relevant decision-maker was to be the Secretary of State for Foreign and Commonwealth Affairs, Mr David Miliband, in person, not the civil servants who were directly or indirectly reporting to or advising him. Mr Miliband was first briefed on the idea of an MPA by a six and a half page note from Mr Roberts dated 5 May 2009. This was in terms to which no objection is or could be taken, and was followed up by a meeting with Mr Roberts and Professor Sheppard. The note identified and examined the “numerous benefits” and “wide range of potential beneficiaries” of an MPA. The benefits fell under the heads of conservation, climate change, scientific [research], development, reputational/political and security (the last being explained by Mr Roberts in a witness statement dated 1 May 2012 as relating to control of illegal, unregulated and unreported fishing). The note went on to examine risks. In that connection, it identified Mauritian sovereignty claims and “a side deal done at the time of excision which gave Mauritius the right to apply for fishing licences free of charge”, the Chagossian movements and the US military. The US military were not thought likely to oppose, and the note expressed confidence that reassurances could be given that they would not experience any rise in the security risk, impediment to freedom of manoeuvres or significant increase in environmental regulation.
27. In relation to the Chagossian movements, the note said:
“Their plans for resettlement are based on the establishment of an economy based on fishing and tourism. In the specific context of BIOT this would be incompatible with a marine reserve. They are therefore hostile to the proposal, unless the right of return comes with it. They have expressed unrealistic hopes that the reserve would create permanent resident employment based on the outer islands for Chagossians.
Assuming we win in Strasbourg [as in the event occurred], we should be aiming to calm down the resettlement debate. Creating a reserve will not achieve this, but it could create a context for a raft of measures designed to weaken the movement. This could include:
- presenting new evidence about the precariousness of any settlement (climate change, rising sea levels, known coastal defences costs on Diego Garcia)
- activating the environmental lobby
- contributing to the establishment of community institutions in the UK and possibly elsewhere
- committing to an annual visit for representatives of the communities to the outer islands on All Saints’ Day
- inclusion of a Chagossian representative in the reserve government.
- [an irrelevant redaction]”
28. It is not suggested that this note was other than an objective assessment of the proposal, or that it contains or suggests any improper motivation. As the Administrative Court stated (para 77), the only “collateral” factor relating to Chagossian ambitions which it shows is that the proposal might, in various ways, permit the Government to “calm down the resettlement debate” and attract support for the Government’s position from the environmental lobby. The Administrative Court went on:
“This could not have the effect of creating an effective 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.”
“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.
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.
“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.
47. Carltona does not have any bearing on this situation. It stands for the proposition that ministerial powers are commonly delegable and that, where this is the case and delegation occurs, the decision of an authorised official falls to be treated as the decision of the minister. Here, therefore, it may readily be accepted that, if a Minister were simply to rely on a civil servant, in effect to take a decision in the Minister’s name, then it would be the knowledge, motives and considerations held by and influencing the civil servant that would be relevant. A ministerial decision may also be vulnerable to challenge if taken in ignorance of or on the basis of some mistake as to some material factor. Similarly, if a ministerial decision is arrived at by a collective decision-making process involving a minister and his departmental civil servants, it may well be impossible to separate the ultimate ministerial decision from the knowledge and motives of civil servants involved in its preparation: see eg Bushell v Secretary of State for the Environment [1981] AC 75, 95-96, per Lord Diplock. But these are situations very far from the present case. In the present case, far from the relevant decision being taken by an official on behalf of the minister or being a collective decision, it is clear that the minister, Mr Miliband, took his own decision on the relevant matters. His civil servants put the matter up to him in terms to which no objection is taken as such, he formed his own strong views on the basis of the material put before him and he made the relevant decision. In these circumstances it is his state of mind that is critical, not that of his civil servants.
48. I note here Lord Kerr’s suggestion that the Secretary of State’s decision could be regarded as having been reached without regard to material factors or considerations if taken “in ignorance of a concealed reason for the recommendation on which he acted” (para 117) and/or without awareness of “the view of the civil servants that the MPA would” eliminate the chances of resettlement of the Chagos Islands, contrary to the advice on which he in fact acted (para 118). Neither of these points was part of the applicant’s case before the Supreme Court, which focused on the existence of an allegedly improper motive on the part of Mr Roberts and/or Ms Yeadon. Reliance on their suggested views as material information which should have been made available to the Secretary of State is a quite different matter. If this were sufficient to undermine a ministerial decision, then logically any irrelevant misconception possessed by any civil servant at any level in the civil service hierarchy in relation to any proposal ultimately reaching Cabinet level could undermine a Cabinet decision. There is in any event no basis for regarding any such views as material, since the appeal has been conducted on the basis that the creation of the MPA “could not have the effect of creating an effective long-term way to prevent resettlement”: see para 28 above. The only suggested reason why an MPA or no-take zone might preclude resettlement was that it would deprive Chagossians of an important source of food and livelihood. But this is not an objection deriving from the establishment of an MPA, but from a policy, reversible at any time, of refusing fishing licences.
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.”
53. I would accept that, if there was a failure properly to consult about arguable fishing rights, that could lead to a declaration of limited validity. In parenthesis, I add that the case based on improper motivation can also be related to fishing rights, since the reason why it is suggested that an MPA or no-take zone might preclude resettlement is that it would deprive Chagossians of an important source of food and livelihood. I would therefore also have been attracted by (but do not, in the light of my conclusion in para 49 above, need to consider further) the suggestion that improper motivation might also have led to a limited declaration. Further, in either case, I would be minded to accept the Secretary of State’s case that any declaration could be related and limited to the no-take zone, rather than the MPA. Mr Pleming objected that this was a new point, only raised by the Secretary of State after the hearing. But it is a pure point of law and the Administrative Court itself pointed out in para 75 of its judgment that the restrictions on fishing did not derive from the MPA itself. On the contrary, the MPA stated that the implications for fishing would be addressed in future legislation, and the only actual step taken regarding fishing was to allow existing fishing licences to expire and to withhold further fishing licences. The appellant’s real complaint can therefore be identified as being to the current policy, in so far as it has been to refuse fishing licences giving effect to the Mauritian fishing rights now recognised by the UNCLOS tribunal’s award. That is essentially a limited complaint, which could, it seems to me, appropriately be addressed by a limited declaration as to the invalidity of such a policy of refusal.
54. I must however revert to the case as it stands, however artificially, before the Supreme Court, on the basis that the appellant’s only complaint is that there was, at the time of the consultation, credible evidence that the United Kingdom had given an undertaking to the Government of Mauritius to permit Mauritian fishing in the territorial waters of the Chagos Islands (free of charge), that these arguable rights should have been mentioned, that the consultation process was defective accordingly and that the MPA, or (for reasons I have indicated) at least the no-take zone, was invalid, at least to the extent that it excluded Mauritian fishing.
“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.
56. The issues of both law and fact before the tribunal were, therefore, very different from that now before the Supreme Court, which is narrowly focused on the adequacy of the public consultation. It is unnecessary to go back in detail over all the issues which were considered in the courts below. I can summarise the position as it emerges, in my opinion, from the evidence and documents as follows. First, the actual extent of inshore fishing by Mauritian vessels in territorial waters, after the Chagossians left and until the no-take zone affected licensing, was always limited, but it was significant for those involved, including the owners and Chagossian crew members. The principal vessels involved were those of the Talbot brothers.
57. Secondly, there was credible evidence in the United Kingdom Government’s possession (though not all of it necessarily available to Mr Roberts or Ms Yeadon) as to the existence of Mauritian fishing rights dating back to undertakings given in 1965. However, thirdly, extensive legal advice (for which privilege has not been waived) was taken on this subject during the period January to November 2009, and, on the basis of that advice, both Mr Roberts and Ms Yeadon understood that Mauritius “did not have legal rights to fish in BIOT territorial waters, which prevented the United Kingdom Government from establishing an MPA, including a complete no-take zone”. Fourthly, for that reason, “after considering the position and receiving legal advice” Mr Roberts and Ms Yeadon “did not believe that Mauritius or the Chagossians had, or might have had, any such rights”, and Ms Yeadon in particular saw the 1965 undertaking as being “of a political, not legal, nature”; and, as a result, no reference was made in the consultation document to any such rights.
59. Sixthly, Mauritius had the opportunity of responding to the consultation and making the point that it had fishing rights, but did not avail itself of this. Chagossians and others also had the opportunity of responding, and some did:
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)
“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
79. The only legitimate purpose for introducing a marine protected area (MPA) around the Chagos Islands was to protect marine life. If it could be demonstrated that this was not the reason that it was introduced, or that there was a collateral purpose for its introduction, the establishment of an MPA would be unlawful.
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?
“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.”
(ii) The curtailing of cross examination
“[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.”
(iii) The capacity of the cable to counter the FCO evidence
“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.”
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:
(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.
(v) The genesis and development of the MPA
114. In his note of 5 May 2009 to Mr Miliband, Mr Roberts referred to the Chagos Islanders’ plans for resettlement. He was bound to do so because this was an obvious aspect to be taken into account, in the event that an MPA was declared. The note contains a significant passage on this question (quoted by Lord Mance at para 27):
“Assuming we win in Strasbourg, we should be aiming to calm down the resettlement debate. Creating a reserve will not achieve this, but it could create a context for a raft of measures designed to weaken the movement.”
115. This statement is to be contrasted with what Mr Roberts is quoted in para 7 of the cable as having said during the meeting with American officials some seven days later. At that meeting he is recorded as having claimed that British government thinking was that there would be “no human footprints” and no “Man Fridays” on BIOT’s uninhabited islands. He is also recorded as having asserted that “establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents”. So, although he told the minister that the MPA would not “calm down the resettlement debate”, he was telling the Americans that the resettlement claims would be effectively extinguished. And, of course, in further contrast to what the minister was being led to believe would be the effect of the MPA on the Chagossians’ hopes of resettlement, Ms Yeadon was recorded in the cable as encouraging US embassy officials to affirm that the US government required the entire BIOT for defence purposes so as to nullify the Chagossians’ assertion that partial settlement of the outer islands would have no impact on the use of Diego Garcia.
117. Lord Mance has suggested (in paras 41-43) that even if Mr Roberts and/or Ms Yeadon had an improper motive, there is no conceivable reason to conclude that this affected the ultimate decision-maker. I am afraid that I cannot agree. True it is, as the Court of Appeal observed in para 91 of its judgment, that the decision was personal to the Foreign Secretary. True it may also be, as the Court of Appeal found, that the Foreign Secretary believed that the declaration of an MPA would “redound to the credit of the government and, perhaps, to his own credit”, although I am not at all clear as to the evidence on which the court drew to support that conclusion. But, if the minister had been aware that the civil servants were recommending the establishment of an MPA with the covert purpose of ensuring that the Chagos Islanders’ ambition to return to their homeland would never be fulfilled, can it be said that his decision would be immune from challenge? Surely not.
120. The fact that the Foreign Secretary rejected the proposal that he should consult on the proposal is nothing to the point, in my opinion. He decided to proceed with the MPA on the basis of advice that it would not, of itself, eliminate the chances of resettlement of the Chagos Islands. If, contrary to that advice, it was the view of the civil servants that the MPA would achieve precisely that aim, the minister should have been aware of it. Not being informed of it meant that he was not in a position to take all material considerations into account.
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.