B e f o r e :
MASTER OF THE ROLLS
LADY JUSTICE GLOSTER
LORD JUSTICE VOS
|| THE QUEEN ON THE APPLICATION OF LOUIS OLIVER BANCOULT
||- and -
||SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
Nigel Pleming QC, Richard Wald, Professor Robert McCorquodale, Maya Lester, Daniel Piccinin and Stephen Kosmin (instructed by Clifford Chance LLP) for the Appellant
Steven Kovats QC, Kieron Beal QC, Professor Malcolm Shaw QC and Penelope Nevill (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 31 March, 1 & 2 April 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Master of the Rolls:
- This is the judgment of the court to which each member has contributed.
- This appeal is a further chapter in the history of litigation arising out of the removal and subsequent exclusion of the native population from the Chagos Archipelago in the British Indian Ocean Territory ("BIOT"). Mr Bancoult challenges the decision taken by the Secretary of State for Foreign and Commonwealth Affairs on 1 April 2010 to create a "no-take" Marine Protected Area ("MPA") of some 250,000 square miles in the BIOT.
- By re-amended grounds of claim, the decision is said to be flawed in five respects each of which was rejected by the Divisional Court (Richards LJ and Mitting J) in a detailed judgment which was given on 11 June 2013. Three of these grounds are the subject of the present appeal. These are that the decision was unlawful because (i) it was actuated by an improper motive, namely an intention to prevent Chagossians and their descendants from resettling in the BIOT; (ii) the consultation paper which preceded the decision failed to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands; and (iii) it was in breach of the obligations imposed on the United Kingdom under article 4(3) of the Treaty of the European Union ("TEU") in conjunction with articles 198 and 199 of the Treaty on the Functioning of the European Union ("the TFEU").
- The detailed history is set out in the speech of Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  UKHL 61,  1 AC 453 (Bancoult No 2). Prior to 1965, the Chagos Islands were a dependency of Mauritius. By the British Indian Ocean Territory Order 1965, they were detached from Mauritius and constituted a separate colony known as BIOT. An agreement concerning the availability of BIOT for defence purposes was entered into between the UK Government and the US Government in December 1966 and in due course the US Government gave notice that Diego Garcia would be required in July 1971. The Immigration Ordinance 1971, which was made by the BIOT Commissioner pursuant to the 1965 Order, provided that no person was to enter or be present or remain in BIOT unless he was in possession of a permit. A small population remaining after that date on islands other than Diego Garcia left by the end of May 1973.
- In 1998 Mr Bancoult brought a judicial review challenge to the 1971 Ordinance. This succeeded before the Divisional Court (Bancoult No 1). The 1971 Ordinance was replaced by the Immigration Ordinance 2000 which provided that the restrictions on entry or residence should (with the exception of Diego Garcia) not apply to anyone who was a British Dependent Territories citizen by virtue of his connection with BIOT.
- In 2004, the Secretary of State announced, in the light of a feasibility study that had been undertaken, that, in order to ensure and maintain the availability and effective use of the territory for defence purposes, the UK Government would not support resettlement of the islands. The British Indian Ocean Territory (Constitution) Order 2004 was then made. It provided that no person was to have the right of abode in the territory and that no person was to have the right to enter or be present in the territory except as authorised by or under the Order or any other law for the time being in force in the territory. At the same time, the British Indian Ocean Territory (Immigration) Order 2004 dealt with details of immigration control. The 2004 Orders were the subject of judicial review challenge by Mr Bancoult. He was successful in the lower courts, but in October 2008 his claim was dismissed by the House of Lords in Bancoult No 2.
- Mr Bancoult and other Chagossians applied to the European Court of Human Rights complaining about their removal from the islands and the prohibition on their return. This application was dismissed on 20 December 2012 as manifestly unfounded and inadmissible: Application no 35622/04, Chagos Islanders v United Kingdom  56 EHRR SE 15.
- There was a public consultation in relation to the MPA proposal. It ran from 10 November 2009 until 5 March 2010. In the foreward to the consultation document, the Secretary of State said: "We want to use this consultation to help assess whether a marine protected area is the right option for the future environmental protection of the British Indian Ocean Territory". The second ground of appeal raises the question of whether the fairness of the consultation was compromised by failing to disclose the effect that the MPA would have on the Chagossians' fishing rights. We refer to the relevant parts of the consultation document when we deal with this ground of appeal at paras 94 to 115 below.
THE FIRST GROUND OF APPEAL: IMPROPER MOTIVE
- The claimant's case is that the decision to declare an MPA in BIOT waters was in whole or in part actuated by the improper motive of seeking to prevent Chagossians and their descendants from resettling in the BIOT.
- The cornerstone of the case is a document published on Wikileaks and by The Guardian on 2 December 2010 and by The Daily Telegraph on 4 February 2011. It is claimed to be a copy of a "cable" (in fact, a communication sent, received and stored electronically but which can, if required, be printed) sent on 15 May 2009 by the US Embassy in London to departments of the US Federal Government in Washington, to elements of its military command and to its Embassy in Port Louis, Mauritius. The text, which (save as regards layout) is identical in both reports, concerns and, it is claimed, purports to record observations made by British officials to US Embassy officials on 12 May 2009 about a proposal to declare an MPA. It is common ground that there was a meeting between US officials and Mr Colin Roberts, then Foreign and Commonwealth Office ("FCO") Director for Overseas Territories and HM Commissioner for the BIOT, and Ms Joanne Yeadon, then the BIOT Administrator, on 12 May 2009 at the FCO. Mr Roberts and Ms Yeadon believe that no note was taken or made of the meeting by them and none has been retrieved from FCO files. If the document is a true copy of a US Embassy "cable" it is the only near-contemporaneous record of the meeting known to exist.
- The claimant contends that the statements in the copy cable attributed to the British civil servants revealed that a material and significant motive in the decision to establish the MPA was the prevention of resettlement of the Chagos Islands by Chagossians. It recorded, for example:
"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.....
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".
- On 25 July 2012 Stanley Burnton LJ ordered Mr Roberts and Ms Yeadon to attend to be cross-examined about the document. In doing so, he acknowledged that what he described as "the Wikileaks documents" (three were then in issue) "must have been obtained unlawfully, and in all probability by the commission of a criminal offence or offences under the law of the United States of America". He expressed understanding of the policy of HM Government neither to confirm nor deny the genuineness of leaked official documents ("the NCND policy"). The only submission made to him by Mr Kovats QC for the Secretary of State was that it would be wrong to order cross-examination about documents which had been unlawfully obtained. He rejected that submission, for reasons which he gave at para 16 of his judgment:
"However, the documents in question have been leaked, and indeed widely published. No claim has been made to the effect that the documents should not be considered by the court on the grounds of public interest immunity or the like. They are before the court. The court will have to decide whether or not they are genuine documents, that they are copies of what they purport to be. The memorandum of the meeting of 12 May 2009, in particular, appears to be a detailed record, which could fairly be the basis of cross-examination."
- He went on to state that he did not see how the present claim could fairly or justly be determined without resolving the allegation made by the claimant as to what transpired at the meeting of 12 May 2009.
- Mr Pleming QC made it clear to the Divisional Court that he sought not merely to cross-examine Mr Roberts and Ms Yeadon about the contents of the document but, to the extent that their written and oral evidence differed from it, to invite them to prefer its contents to their evidence. In other words, he sought to rely on the document evidentially.
- Founding himself on the UK Government's NCND policy, Mr Kovats did not object to cross-examination of Mr Roberts and Ms Yeadon by putting to them the contents of the document, provided that it was not asserted that it was a true copy of an Embassy "cable". We consider in some detail the cross-examination that took place at paras 80 to 87 below.
- Two issues, not canvassed before Stanley Burnton LJ, caused the Divisional Court to revisit the basis of his decision: (i) whether or not disclosure of the information contained in the document was or would be an offence under section 6 of the Official Secrets Act 1989, so as to require the court to exclude it; and (ii) whether or not the court was prohibited from admitting the document evidentially by articles 24 and/or 27.2 of the Vienna Convention on Diplomatic Relations 1961 ("the 1961 Convention"), set out in and incorporated into English law by the Diplomatic Privileges Act 1964.
- At para 30 of their judgment, the Divisional Court said:
"To address those issues it is necessary to make certain assumptions about the document. In principle, it can be one of two things: an accurate copy of a genuine Embassy "cable"; or an unsourced and worthless fiction. In the latter event, it would be of no evidential value, so that no question could arise of its admission in evidence. It is only if the document is genuine that the two questions referred to above arise. For this purpose, we do not need to make any finding on the authenticity of the document. We will simply assume for the purposes of argument that it is genuine. If it is, we know little about it apart from its contents. They state that it is classified as confidential. Mr Pleming conceded, and we can safely assume, that it has not been put into the public domain by or with the authority of the US Government. Mr Pleming suggested that it may have been one of the many documents alleged by US prosecutors to have been illicitly obtained from a US facility in Iraq in 2009 and 2010 by Private Bradley Manning. We have no evidence about that. Nor do we know the manner in which, or where, US Embassy archives are held. It has not been suggested that it is likely that the document was obtained from a storage facility at the US Embassy in London. In the light of those considerations, we are prepared to assume that the document was obtained illicitly by a person who was not authorised to obtain it from a US electronic document storage facility elsewhere than in the US Embassy in London."
Like the Divisional Court, we shall consider the 1961 Convention issues first.
The 1961 Convention
- Section 2(1) of the Diplomatic Privileges Act 1964 provides that the articles of the 1961 Convention set out in Schedule 1 to the Act shall have the force of law in the United Kingdom. Those articles include articles 24 and 27.2:
The archives and documents of the mission shall be inviolable at any time and wherever they may be.
2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions."
- The remainder of article 27 deals with free communication between a mission and its sending state, the diplomatic bag and diplomatic couriers.
- The purpose of these provisions can be identified not only from their text but also from the preamble to the 1961 Convention, which records that the States Parties realise "that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States".
- In both the first and third editions of her authoritative analysis of the 1961 Convention, Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations, Professor Eileen Denza noted in her introduction that article 27 was one of two provisions which increased for the benefit of diplomatic missions themselves the degree of immunity over what was previously accorded by customary international law:
"Article 27 sets out comprehensive rules for the protection of all forms of diplomatic communication – the most important to the functioning of a diplomatic mission of all its privileges and immunities": page 4.
- She identified the underlying purpose of Article 24 as "the protection of the confidentiality of information stored", so that "it is clearly right that the words "archives and documents" should be regarded as covering modern methods of storage such as computer discs": page 195. In the partial award by the Eritrea Ethopia Claims Commission handed down at The Hague on 19 December 2005, the Commission observed in paragraph 42 that "Article 24 confirms the inviolability of all diplomatic documents and official correspondence". In Professor Denza's view (p 221):
"the inviolability of the official correspondence of a mission has two aspects – it makes it unlawful for the correspondence to be opened by the authorities of the receiving state and it precludes the correspondence being used as evidence in the courts of the receiving state. As regards use of correspondence as evidence, Article 27.2 is probably unnecessary in view of the fact that Article 24 of the Convention gives inviolability to the archives and documents of the mission 'wherever they may be'."
- The Divisional Court said at para 40 that so far as it was concerned the breadth of articles 24 and 27.2 has been conclusively determined by the speech of Lord Bridge in Shearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No 2)  1 WLR 16. We discuss this decision at paras 32 to 37 below.
- Having considered and rejected various submissions made by Mr Pleming, the court concluded at para 51:
"Nothing in this material persuades us that we should depart from what appears to be, by now, a settled principle of public international and municipal law, that the inviolability of diplomatic communications requires that judicial authorities of states parties to the 1961 Convention should, in the absence of consent by the sending state, exclude illicitly obtained diplomatic documents and correspondence from judicial proceedings. Accordingly, we consider the document to be inadmissible as evidence in these proceedings. We gave a ruling to that effect at the conclusion of submissions on the issue on day 3 of the hearing, indicating that any further cross-examination of Mr Roberts and any cross-examination of Ms Yeadon must proceed on that basis."
- Professor McCorquodale makes two principal submissions, the first of which was not advanced in the court below. First, articles 24 and 27.2 of the 1961 Convention have no application because the UK cannot interfere with the inviolability of diplomatic documents or archives if they are not in its territory or otherwise under its jurisdiction. The Divisional Court assumed (para 30) that the cable was not illicitly obtained from the archives of the US mission in London, but was illicitly obtained from a "US electronic document storage facility elsewhere than in the US Embassy in London". He submits that, since the cable was not taken from the US mission within the territory of the UK, the UK is not a receiving state and the US is not a sending state for the purposes of the 1961 Convention. Accordingly, the 1961 Convention is not engaged. Secondly, he submits that, even if the 1961 Convention is engaged, the Divisional Court was wrong to equate "inviolability" with "inadmissibility".
The territoriality point
- Mr Kovats QC submits that the phrase "wherever they may be" in article 24 should be interpreted "in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose": see article 31.2 of the Vienna Convention on the Law of Treaties 1969. He says that there is no warrant for interpreting the phrase more restrictively so as to mean "wherever they may be in the receiving state". He submits that this is confirmed by article 45 which states that the archives remain inviolable even if diplomatic relations are broken off or a mission is permanently or temporarily recalled and even in the case of armed conflict. He relies on the comments of Professor Demza in Diplomatic Law at pp 192-193:
"The third way in which the customary international law rule was extended by Article 24 was that the International Law Commission and the Conference, by adding the words "wherever they may be", made it clear beyond argument that archives not on the premises of the mission and not in the custody of a member of the mission are entitled to inviolability. The Conference expressly rejected that part of the amendment of France and Italy which would have required archives and documents outside the mission to be identified by visible official signs. A US amendment which would have defined "archives and documents" to mean "the official records and reference collections belonging to or in the possession of the mission" was withdrawn. The position of archives is thus different from other property of the mission which under Article 22(3) is not generally given inviolability unless it is on the premises of the mission. 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."
- He also relies on Professor Higgins in Problems and Process: International Law and How We Use It (1994) at pp 88-89:
"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."
- Professor McCorquodale submits that, in the light of the limits of the receiving state's obligations under the 1961 Convention, the phrase "wherever they may be" must be restricted to those archives and documents which are held within the receiving state's territory. It cannot be extended to archives and documents held elsewhere in the world. The territorial nature of the obligations is exemplified by article 39 which provides that the privileges and immunities under the 1961 Convention are enjoyed only so long as the person entitled to them is in the territory of the receiving state. The words "wherever they may be" in article 24 are intended to make it clear that archives and documents are entitled to inviolability even when they are not on the premises of the mission in the receiving state and not in the custody of a member of the mission. The only exception to the requirement that the documents must be within the territory of the receiving state may be in relation to a third state's obligations under article 40.3 which provides:
"Third States shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving State…."
- It follows, he submits, that the UK cannot violate the diplomatic archives or documents of the US mission in the UK if they are not in its territory or otherwise under its jurisdiction. Whether they originated in the US mission in the UK is irrelevant.
- We see considerable force in the general approach advocated by Professor McCorquodale, but in the light of our decision on the question of admissibility below, we do not find it necessary to express a concluded view about it.
- The Divisional Court accepted the submission of Mr Kovats that (as Professor Denza said) one of the aspects of the inviolability of the official correspondence of a mission is that "it makes it unlawful for the correspondence being used as evidence in the courts of the receiving state". We need to consider Shearson Lehman since, as we have said, the Divisional Court regarded it as having conclusively determined the admissibility issue.
- This decision arose from an intervention by the International Tin Council ("ITC") which objected to the use in proceedings of documents which had emanated from it. Since there was uncertainty as to the precise nature of the documents and the circumstances in which they had been received by the parties to the litigation, the House of Lords dealt with the question of admissibility on the basis of agreed assumptions of fact. There were 13 categories of assumed facts. These included that the document or copy document (i) had been supplied to third parties with or without the consent of the ITC by a member of its staff or by one of the Member States of the ITC; (ii) had been made available to and published by the House of Commons Select Committee; (iii) had been released by the US authorities under the Freedom of Information Act; or (iv) had been a document whose provenance was unknown became widely available in the market and was referred to or quoted from in press reports.
- Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that 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 argument proceeded on the basis that article 7(1) should be construed as conferring inviolability on the archives and documents of the ITC to the like extent that article 24 of the 1961 Convention confers inviolability on the archives and documents of a diplomatic mission.
- The objection of the ITC was dismissed by the House of Lords. Lord Bridge gave the only substantive speech. He said that "the central question at the heart of the dispute which has to be asked in relation to each category is whether the documents in that category 'belong to' the ITC" (p 24H). He held that, once a document has been communicated by the ITC to a member or representative of a member (a category 1 document), the protection of article 7(1) ceases to apply to it (p 26E). In the course of his discussion about the other categories of documents (categories 2 to 13), Lord Bridge interposed the passage on which the Divisional Court relied:
"Mr Kentridge presented a forceful argument for the defendants based on the proposition that the only protection which the status of inviolability conferred by Article 24 of the Vienna Convention and Article 7(1) of the Order of 1972 affords is against executive or judicial action by the host state. Hence, it was submitted, even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence, but the mission would be driven to invoke some other ground of objection to its admissibility. I need not examine this argument at length. I reject it substantially for the reasons given by the Court of Appeal. 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."
- But he continued at p 27H by saying: "at the heart of the issue on which the validity of the ITC's claim to inviolability for the categories of document referred to in paras 2 to 13 of the assumed facts depends lies the question of authority". He concluded that, where a document was communicated to a third party by an officer or employee of the ITC, it no longer belonged to the ITC and article 7(1) did not apply. He therefore rejected the ITC's case because, on the assumed facts, each category of document was communicated with its authority. He expressed his conclusion at p 31D:
"Having regard to the way in which this matter reached your Lordships, it is not perhaps surprising that one cannot identify with precision the issues raised by the appeal and cross-appeal respectively. But the effect of the conclusions I have expressed is that the ITC have failed and the defendants have succeeded on all the issues save that raised by the separate argument advanced by Mr Kentridge with respect to inviolability which I have rejected."
- In our view, the rejection of the separate argument advanced by Mr Kentridge was not part of the ratio of the decision. It was not necessary for the conclusion that the documents did not enjoy the protection of article 7(1) because (i) they were assumed to have been communicated to members of the ITC or to a third party by an officer or employee of the ITC with actual or ostensible authority; therefore (ii) they no longer belonged to the ITC; and (iii) they no longer enjoyed inviolability as part of the official archives (p 28B).
- We accept, of course, that what Lord Bridge said in the passage relied on by the Divisional Court is of high persuasive value, but we do not consider that we are bound by it. In any event, the present case is distinguishable on the facts. The argument rejected by Lord Bridge was that, even if a document is stolen or obtained by improper means from a diplomatic mission, the 1961 Convention permits it to be adduced in evidence by the violator or anyone who receives the document from the violator. It would be wholly inimical to the underlying purpose of the 1961 Convention to permit a document to be admitted in such circumstances. But Lord Bridge was not addressing a case (such as the present case is assumed to be) where the document has not been obtained from the mission illicitly or by improper means, is in the public domain for the whole world to see and the party wishing to adduce the document in evidence has not been complicit in the publication of the document.
The submissions on behalf of Mr Bancoult
- The word "inviolability" which is used in several articles of the 1961 Convention is not defined. It is used in relation to mission premises (articles 22 and 30), archives, documents and official correspondence (articles 24 and 27.2) and persons (article 29). It has been suggested by Professor Clive Parry in 7 British Digest of International Law 700 (1965) that it means:
"immunity from all interference, whether under colour of law or right or otherwise, and connotes a special duty of protection, whether from such interferences or from mere insult, on the part of the receiving state."
- This definition was cited with approval by Dr F. A. Mann in chapter 12 of "Inviolability" and Other Problems of the Vienna Convention on Diplomatic Relations (1990) pp 326-7.
- It is not in dispute that it is unlawful for the mission's correspondence to be opened by the authorities of the receiving state. That is incontestably an act of interference by the receiving state. The view of Professor Denza that, in the absence of the consent of the sending state, such documents are inadmissible is explicitly rejected by Dr Mann (loc cit) and is not supported by any other commentator. Dr Mann says (p 327) that "inviolability means freedom from any act of constraint, in particular search, requisition, attachment or execution i.e. the measures specially enumerated in Article 22(3)". Article 22(3) states:
"The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution."
- At p 337, Dr Mann says:
"'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, as has been submitted above, be freely used in judicial proceedings."
- Dr Mann returned to the fray when he wrote a case comment on the decision of the House of Lords in Shearson Lehman in Law Quarterly Review  104 at p 178. He said that Lord Bridge should have accepted the submission that "inviolability" meant freedom from executive or judicial action by the host state. Neither in article 24 nor elsewhere in the 1961 Convention can "inviolability" have any other meaning than freedom from executive or judicial violation, interference or constraint. He added: "[a]lthough there is no decision anywhere which construes the term for the purposes of the convention, there is rich material in the academic writings, which supports this literal interpretation based on the Oxford English Dictionary and other sources".
- Professor McCorquodale submits that, in interpreting the word "inviolable", the court should have regard to the "object and purpose" stated in the preamble to the 1961 Convention of ensuring the "efficient performance of the functions of diplomatic missions". A document will be "violated" for the purposes of article 24 and 27.2 where a state has interfered in the diplomatic premises, persons, archives or documents by (i) the actions of its agents in seizing documents on the premises, on the person or in the archives; (ii) the actions of its organs in compelling the production of a document from the mission; and (iii) the failure of its organs to act with due diligence to prevent an individual from obtaining and using a document from the mission or its archives against the mission or against the person of the ambassador. Professor McCorquodale draws attention to article 31(2) which provides that "a diplomatic agent is not obliged to give evidence as a witness" and contrasts this with articles 24 and 27.2 which contain no reference to evidence.
- He also relies on R (Hoxha) v Special Adjudicator  UKHL 19,  1 WLR 1063 at para 9 where Lord Hope said with reference to article 31(1) of the Vienna Convention on the Law of Treaties:
"There is no warrant in this provision for reading into a treaty words which are not there. It is not open to a court, when it is performing its function, to expand the limits which the language of the treaty has set for it."
- Professor McCorquodale submits that the word "inviolable" cannot be interpreted as including "inadmissible" and it is impermissible to insert the word "inadmissible" into article 24 or 27.2.
The submissions on behalf of the Secretary of State
- Mr Kovats says that the Divisional Court was right to hold that the issue of admissibility was conclusively resolved by Shearson Lehman. But we have already given our reasons for holding that the relevant passage in the speech of Lord Bridge was not part of the ratio of the decision and that the case is in any event distinguishable on the facts: see paras 36 and 37 above. Mr Kovats also relies on and adopts the statement of Professor Denza (to which we have referred at para 22 above). He submits that the cable and any unauthorised copy of it is and remains part of the archive of the US mission; any unauthorised attempt to use the cable or the copy in legal proceedings would be a violation of the protection accorded by articles 24 and 27.2 of the 1961 Convention; and that, Shearson Lehman apart, the case-law is either neutral or supports the decision of the Divisional Court.
- The Divisional Court considered that the case-law provided little if any support for Mr Bancoult's case. In Rose v The King  3 DLR 618, the defendant was a Canadian subject who had been convicted on charges of conspiracy to act with a group of Russian and Canadian subjects in a manner which was prejudicial to the safety of Canada. Part of the evidence was contained in documents which had been stolen by a clerk who was employed in the embassy and was handed over to the Canadian police. It was argued by the defendant that the documents were inadmissible by reason of diplomatic immunity. The Quebec Court of King's Bench, Appeal Side, held that the documents were admissible. The principal judgment was given by Bissonnette J and contains a lengthy review of the relevant international law principles. He said that Canadian law recognised the general inviolability of mission documents in order that diplomatic agents may manage the affairs of their Sovereigns in all freedom (p 642). But this general rule was not absolute: it was subject to exceptions. He held that it could not be invoked by a Canadian citizen in litigation between his government and himself; nor when the documents revealed an abuse of diplomatic privilege by the foreign state which constituted a threat to the safety of the receiving state; nor in cases where no one connected with the foreign state or its embassy claimed any privilege for the documents: see pp 646 to 648. This last aspect of the judge's reasoning was queried by Kerr LJ in Fayed v Al-Tajir  1 QB 712 at 736G. What Bissonnette J said at p 648 was:
"To sum up, I believe that diplomatic immunity is relative; that the Courts must give effect to it and accord its advantage to every diplomatic agent who claims it; that the privilege of taking advantage of the immunity of a foreign State cannot be admitted for a Canadian citizen in litigation between his Government and himself, when he is not part of a diplomatic corps; to impose, through a judicial decision, immunity upon a State which does not claim any, would be casting a slur upon its dignity, its sovereignty, and, through a gesture as ungracious as unexpected, would elevate a simple suit to a degree of international importance and create, at least in theory, a diplomatic conflict contrary to the will of the executive power itself."
- Mr Kovats says the explanation for the decision is that the Canadian executive was deploying the documents pursuant to its primary duty to protect its citizens and that the executive and the judiciary must speak with one voice. He submits that the decision should be treated with caution because it pre-dates the 1961 Convention. Further, he relies on Sir Ivor Roberts in Satow's Diplomatic Practice, 6th ed (2009) at p 113 (in a section written by Professor Denza): "this decision turned on the absence of any intervention or protest either from the Canadian government which had supplied the documents to the court or from the Soviet Union".
- To put it no higher, this decision shows that there are circumstances in which a mission document which is inviolable may be admitted in evidence. The immunity of diplomatic documents from use in legal proceedings is not absolute. Nor is the court's reasoning confined in the way that Mr Kovats suggests. To the extent that the decision was based on the fact that there was no objection by Russia to the admission of the documents in evidence, that is of direct relevance in the present case. That is because the US Government has not objected to the use of the cable in the present proceedings (although we accept that the weight to be given to this point would be greater if the US were a party to the proceedings). Furthermore, the decision cannot be brushed aside on the grounds that it predates the 1961 Convention: the preamble states that "the rules of customary public international law should continue to govern questions not expressly regulated by the provisions of the present Convention".
- The other cases relied on by Mr Bancoult in the court below were dismissed by the Divisional Court on the grounds that the inadmissibility point was not taken in any of them. These are Prosecutor v Charles Ghankay Taylor (Special Court of Sierra Leone, 27 January 2011), El Masri v Former Yugoslav Republic Republic of Macedonia (Grand Chamber of the ECtHR, 13 December 2012), and Bank Mellat v Council of the European Union (Fourth Chamber of the General Court at Luxembourg, 29 January 2013). Professor McCorquodale submits that the court should have considered "negative state practice" as an aid to the construction of "inviolability". He says that the very fact that no state raised the argument that article 24 and 27.2 prevented the admission of copy cables from the Wikileaks website is, of itself, evidence of state practice which is relevant to the proper interpretation of articles 24 and 27.2.
- In the absence of any ruling in these cases on either the construction of the 1961 Convention or on state practice, we doubt whether much can be made of them.
- In this court, Professor McCorquodale also relies on Stoll v Switzerland (Application no 69698/01, 10 December 2007, a decision of the Grand Chamber of the ECtHR). The court had to consider the admissibility of a document drafted by the Swiss ambassador to the US and sent to the Swiss government in Berne. It was subsequently obtained without the Swiss government's consent and published in newspapers. The applicant journalist was convicted of "publishing official deliberations". He complained that his conviction was contrary to article 10 of the European Convention on Human Rights. The Swiss government argued that the confidentiality of all diplomatic correspondence was enshrined in articles 24 to 27 of the 1961 Convention as an absolute principle of international customary law. The court held at para 126:
"Admittedly, the disclosure in issue is not covered by the provisions on the inviolability of archives and documents contained in the Vienna Convention on Diplomatic Relations (Articles 24 et seq) referred to by the Government (see paragraph 79 above), which are designed to protect the archives and documents of the accredited State against interference from the receiving State or persons or entities under its jurisdiction. Nevertheless, the principles derived from those provisions demonstrate the importance of confidentiality in this sphere.
- Mr Kovats submits that the 1961 Convention was not relevant in this case because it was only concerned with the internal actions of a single state, namely Switzerland. The Swiss government referred to the 1961 Convention in order to make a general point about the importance of diplomatic confidence, not to make a claim that the principle embodied in articles 24 and 27.2 applied in the instant case. In any event, what the Grand Chamber said about the 1961 Convention at para 126 contradicts the appellant's argument. They said that the Convention protected against interference from the receiving state "or persons or entities under its jurisdiction".
- We accept that the 1961 Convention was not directly relevant in the Stoll case. There is no discussion about articles 24 and 27.2 beyond that to which we have referred. In these circumstances, we consider that it would be wrong to make much of para 126. We do not, however, accept that it contradicts the appellant's argument.
- Mr Kovats relies on two authorities. The first is Iraq v Vinci Constructions Grands Projets SA (2005) 127 ILR (Belgian Court of Appeal) at pp 106-107. A French company obtained a judgment from an Iraqi court for payment of a debt owed under a building contract with the Iraqi Defence Ministry. On the basis of the judgment, the company obtained attachment orders over funds held in bank accounts of the Iraqi State in Brussels. Iraq objected relying on article 24 of the 1961 Convention in relation to the bank accounts of its embassy in Brussels. The Court of Appeal of Brussels upheld the objection. It said that not to extend the protection of article 24 would interfere with the activity of a diplomatic mission to the extent that it "would be prevented in such cases from using funds in a bank account since confidentiality could ultimately not be guaranteed". We do not consider that this decision sheds any light on the issue before this court. The question was whether there were any reasons to justify the receiving state (Belgium) compelling the sending state (Iraq) to disclose the bank accounts. This is an unexceptionable application of article 24.
- The second authority is Mid-east Sales Ltd v Engineering & Trading Co PVT Ltd  EWHC 892 (Comm), Males J. It concerned an application for a third party debt order covering various bank accounts which the Pakistani High Commissioner certified were used for diplomatic purposes. The judge upheld an objection to disclosure that was based on article 24 of the 1961 Convention. This decision is of no greater assistance in the present context than Iraq v Vinci.
- To summarise, we have found little in the case-law that has been cited to us which clearly points the way to resolving the admissibility issue.
Conclusion on the admissibility issue
- We see considerable force in the argument that was advanced by Mr Kentridge and rejected in Shearson Lehman. Inviolability involves the placing of a protective ring around the ambassador, the embassy and its archives and documents which neither the receiving state nor the courts of the receiving state may lawfully penetrate. If, however, a relevant document has found its way into the hands of a third party, even in consequence of a breach of inviolability, it is prima facie admissible in evidence. The concept of inviolability has no relevance where no attempt is being made to exercise compulsion against the embassy. Inviolability, like other diplomatic immunities, is a defence against an attempt to exercise state power and nothing more. In Shearson Lehman, the Court of Appeal was reluctant to hold that a document, originally obtained in violation of the archives of the ITC, should be admissible in a court of the receiving state. It felt that a court, as an arm of the receiving state, should play its part in protecting the archives of the ITC. But Mr Kentridge submitted that, in view of the existence of an adequate range of remedies available to the ITC if a relevant document was originally obtained in violation of its archives, there was no reason to give an extended meaning to the term "inviolable".
- This submission reflects the views expressed by Dr Mann in the publications to which we have already referred. We have already quoted the definition of "inviolability" given by Professor Clive Parry. There is no reference to inadmissibility here. As Dr Mann says, Professor Denza says that "these words are generally interpreted as according the same degree of protection as is given under art 22 of property on mission premises....namely immunity from search, requisition, attachment or execution". In the US, the Foreign Service Regulations have prescribed since at least 1941:
"Premises which are occupied by a diplomatic representative and members of his staff, either as offices or residences, the goods contained therein, and the records and archives of the mission are inviolable. They cannot be entered, searched or detained by the local authorities even under process of law."
- This definition was reaffirmed by the Foreign Relations Law of 1965 (section 77). Similar definitions are to be found in France (Dictionnaire de la Terminologie du Droit International published in 1960); Italy (Professor Guilano Rec. 100 (1960 ii) 111; and in Germany (Verdross-Simma, Universelles Volkerrecht (3rd ed 1984) s 895). Dr Mann said that to these statements many could be added.
- In short, the universal definition of "inviolability" is freedom from any act of interference on the part of the receiving state. None of the definitions contains any reference to inadmissibility. Dr Mann says (p 330) that a state which, without the use of force or without exercising executive authority has obtained possession of the diplomat's documents and uses them without his objection cannot be said to "violate" them within the meaning of article 24. He acknowledges that the position would be different if the state was responsible for the removal of the documents from the mission. In that event, the act of removal would itself amount to a violation of the documents and the unlawfulness of the removal would make it unlawful to benefit from the fruits of the unlawful activity.
- We note that in Shearson Lehman, Lord Bridge said at p 29B:
"An infringement of the protection must amount to a violation of the protected documents. It would surely be a misuse of language to say that a protected document had been violated because an officer of the I.T.C. supplied it to a third party without authority, unless the recipient was or ought to have been aware of the absence of authority."
- For the purpose of resolving the issue that arises in this appeal, however, it is not necessary to explore the circumstances in which documents removed from a mission without the consent of the sending state may be admitted in evidence. On the assumed facts of the present case, the documents were sent from the US mission in London to Washington with the consent of the sending state and were communicated to the world by a third party. Mr Bancoult was not implicated in the removal of the documents from the mission or their publication to the world. There is nothing in the case-law or the writings of the commentators (apart from those of Professor Denza) which says that the use of documents disclosed in such circumstances in legal proceedings would be contrary to articles 24 and 27.2 of the 1961 Convention. Professor Denza gives no reasons for her opinion that it would be.
- Quite apart from the fact that the weight of opinion is against the professor's view, it seems to us that it does not sit well with the object and purpose of the 1961 Convention. The purpose of the immunity conferred by articles 24 and 27.2 is to "ensure the efficient performance of the functions of the diplomatic missions". This idea has been articulated and applied in some of the cases: see, for example, Rose v The King (para 47 above) and Iraq v Vinci (para 55 above). Even if inviolability can in principle extend to inadmissibility of documents in some circumstances, it should not do so where the inadmissibility cannot promote or contribute to the efficient performance of the functions of a mission. The protection against the disclosure and use of the archives and documents of a mission can unquestionably promote and contribute to the efficient performance of a mission's functions in some cases. But it cannot do so where any damage that is done to a mission by the disclosure of an archive or document has already been done by their disclosure by a third party for which the party who wishes to adduce the evidence has no responsibility. In our judgment, it makes no sense for the concept of inviolability of the mission to be extended to prevent a document that is in the worldwide public domain from being admitted in proceedings in England and Wales, simply because it emanated from a diplomatic mission in the UK. Had the document emanated from the US embassy in Paris, we doubt whether the argument would have got off the ground. There is the further relevant point, derived from Rose v The King, that the US Government has not objected to the use of the cable in these proceedings.
- To summarise, we would allow the appeal on the admissibility issue on the narrow basis that admitting the cable in evidence in the instant case did not violate the archive and documents of the US mission, since it had already been disclosed to the world by a third party.
The Official Secrets Act 1989
- The issue here is whether disclosure of the material contained in the cable would be an offence under section 6 of the Official Secrets Act 1989 so as to require the court to exclude it. Sections 2 and 3 of the Act make it an offence for a person who is or has been a Crown servant to make "damaging disclosure", without lawful authority, of any information, document or other article relating to defence or international relations. A disclosure is damaging if it endangers the interests of the United Kingdom abroad or is likely to do so: see section 2(2)(b) and (c) and section 3(2)(a) and (b). Section 6 provides:
"(1) This section applies where –
(a) any information, document or other article which –
(i) relates to security or intelligence, defence or international relations; and
(ii) has been communicated in confidence by or on behalf of the United Kingdom to another State …
has come into a person's possession as a result of having been disclosed (whether to him or another) without the authority of that State…; and
(b) the disclosure without lawful authority of the information, document or article by the person into whose possession it has come is not an offence under any of the foregoing provisions of this Act.
(2) Subject to sub-section (3) below, the person into whose possession the information, document or article has come is guilty of an offence if he makes a damaging disclosure of it knowing, or having reasonable cause to believe, that it is such as is mentioned in sub-section (1) above, that it has come into his possession as there mentioned and that its disclosure would be damaging.
(3) A person does not commit an offence under sub-section (2) above if the information, document or article is disclosed by him with lawful authority or has been previously been made available to the public with the authority of the state ……
(4) For the purposes of this section … the question whether a disclosure is damaging shall be determined as it would be in relation to a disclosure of the information, document or article in question by a Crown servant in contravention of section … 2(1) and 3(1) above.
(5) For the purposes of this section information or a document or article is communicated in confidence if it is communicated on terms requiring it to be held in confidence or in circumstances in which the person communicating it could reasonably expect that it would be so held."
- The Divisional Court held that, on the assumptions made at para 30 of its judgment (see para 17 above), the information contained in the cable was communicated to US officials by British officials in confidence. It was not suggested that the information was made available to the public with the authority of the US. Nor could it be suggested that any person publishing the information had lawful authority to make it available. Lawful authority for a disclosure could only be given in the circumstances specified in section 7.
- The information contained in the cable related to international relations and arguably also to defence. Thus, its disclosure by any person relevant to these proceedings would be an offence if it was damaging. It follows that, for present purposes, the critical question is whether disclosure would be damaging.
- Mr Pleming submitted to the Divisional Court and repeated to us that the "disclosure" of the information by using the cable in these proceedings would not be damaging because it would add nothing to the disclosure which has already occurred as a result of the extensive publicity given to it. He relied on paragraph 63 of the White Paper on the reform of section 2 of the Official Secrets Act 1911 as an aid to construction. In principle, this is permissible: R v. Shayler  1 AC 247 at para 11 per Lord Bingham. However, paragraph 63 needs to be set in its context. The draftsman of the White Paper considered "a defence of prior publication" in these terms:
"62. Under the Government's 1979 Bill it would not have been an offence to disclose without authority information in certain categories if the defendant could show that the information had been made available to the public before his disclosure. The rationale for this defence was that, if the information in these categories was publicly available, a second disclosure could not be harmful. It seems to the Government that this rationale is flawed. There are circumstances in which the disclosure of information in any of the categories which the Government proposes to cover in new legislation may be harmful even though it has been previously disclosed. Indeed, in certain circumstances a second or subsequent disclosure may be more harmful. For example, a newspaper story about a certain matter may carry little weight in the absence of firm evidence of its validity. But confirmation of that story by, say, a senior official of the relevant government department would be very much more damaging. In such circumstances, the Government considers that the official should still be subject to criminal sanctions ….
63. The Government does not, therefore, propose that there should be an absolute defence of prior publication for any category of information. But in cases in which the prosecution would under the Government's proposals have to show that disclosure was likely to result in harm, the offence would not be made out if no further harm is likely to arise from a second disclosure. The prior publication of the information would be relevant evidence for the court to consider in determining whether harm was likely to result from a second disclosure, but it would not be – and, in the Government's view, should not be – conclusive."
- As we have already noted (para 13), Mr Kovats did not object to the "disclosure" of the document for the purpose of cross-examining Mr Roberts and Ms Yeadon, provided that the questions were not posed by Mr Pleming on the premise that the document was authentic. It would be confirmation that it was authentic which would be damaging – an echo of paragraph 62 of the White Paper. The Divisional Court said that it was satisfied that this concern could be allayed by adopting the course of making the assumption that the document was authentic, without finding as a fact that it was.
- It held that the fact that there had been extensive prior disclosure of the cable and the information contained in it meant that the further disclosure effected by its use in the proceedings was not damaging and no offence would thereby be committed under the Official Secrets Act. The fact that, on first disclosure, an offence may have been committed should not prevent its use in these proceedings.
- Mr Kovats did not address us orally on this issue. His original (excessively long) skeleton argument addressed the issue between paras 54 and 75. His reduced skeleton argument merely says (at para 33) that the issue only arises if the court allowed the appeal on the 1961 Convention point. For all its length, the original skeleton argument has very little to say about whether the deployment of the cable in cross-examination would be damaging within the meaning of the Act if the court were to make no finding as to its authenticity. At para 69 of the original skeleton argument, Mr Kovats contended that, if the court were to make a finding that there was a US cable which stated what appears in the Guardian and Telegraph newspaper articles, that would for all practical purposes be understood as the court (i) authenticating the cable and (ii) overriding the NCND policy of the UK Government. He submits that these consequences would be damaging to international relations and defence within the meaning of section 6 of the Act.
- We can find no fault in the approach adopted by the Divisional Court or its reasoning. In view of the assumptions that it made, we do not see how they could reasonably be understood as authenticating the cable or overriding the NCND policy. Having regard to (i) the nature of the information contained in the cable and (ii) the fact that it was already in the public domain, it was right to hold that further disclosure in the proceedings could not be damaging.
The effect of the exclusion of the cable
- Although we have concluded that the cable should have been admitted in evidence, the question remains whether Mr Bancoult's case was adversely affected by the Divisional Court's ruling on admissibility. Mr Pleming submits that the effect of the ruling was to deprive him of the opportunity of properly testing the evidence of the principal witness, Mr Roberts, as well as that of his junior colleague, Ms Yeadon. He says that an expression of improper purpose by Mr Roberts was capable of infecting the subsequent consultation and the propriety of the decision taken by the Secretary of State on 1 April 2010. It is not possible to know what difference cross-examination based on the cable would have made. Absent such cross-examination, it was not properly open to the Divisional Court to dismiss the possibility of an improper purpose attaching to Mr Roberts or to the Secretary of State.
- The court dismissed this possibility after a careful and thorough review of the evidence at paras 53 to 77 of its judgment to which reference should be made. It is not necessary to rehearse in detail the review that was undertaken by the court. The following is a summary. 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.
- 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).
- 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."
- 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.
- 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."
- 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.
- 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".
- 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" (i.e. 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.
- 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".
- On day 2 pp 135 and 136, the court gave its ruling expressly allowing Mr Pleming to put questions to Mr Roberts as to the accuracy or otherwise of the summary of matters set out in the cable. A short time after Mr Pleming had resumed his cross-examination, Mr Kovats intervened to say that he wished to make submissions as to the admissibility of the cable on the basis of the 1961 Convention.
- Submissions were made on the morning of day 3. The court ruled at pp 128 and 129 that (i) articles 24 and 27.2 of the 1961 Convention precluded any reliance on the cable as a copy of a genuine cable regarding what was said at the meeting of 12 May; and (ii) any further cross-examination of Mr Roberts and any cross-examination of Ms Yeadon must proceed on that basis. Questions could not, therefore, be put on the basis that the purported cable was a copy of a genuine cable and the court would allow the witnesses to answer questions on the express basis that they neither confirmed nor denied the authenticity of the purported copy cable.
- On day 4 at pp 52 to 54, the court amplified the effect of its ruling. Richards LJ said that there was a distinction "between putting questions on the basis that the purported copy cable, the newspaper article, is a record of the meeting, and asking whether matters that are set out in the article are correct statements of what took place at the meeting". He added: "it is open to [Mr Pleming] to take the witness to the newspaper publication, and to refer to the text of that and to ask 'Is this what was said? Did you say this? Did this happen?' without breaching our ruling. It is a fine dividing line, but..... we would not stop you following that line of questioning".
- Mr Pleming did not apply to cross-examine Mr Roberts any further. He did, however, cross-examine Ms Yeadon extensively by reference to the cable. He put various paragraphs of the cable to her and asked specific questions based on them. Some questions produced forthright denials. For example, she strongly denied that Mr Roberts had used the words "Man Fridays": "Absolutely not. Mr Roberts did not say this. If he had said it, I would have been shocked". She also denied that he had said that establishing the MPA would in effect put paid to the resettlement claims of the former residents of the archipelago: "I'm telling the court he did not say that. It wouldn't have made any sense. The MPA wouldn't have done this. This was not British policy at the time." She denied that there was a "hidden agenda". There was no "ulterior motive". Mr Pleming also put to her that Mr Roberts had said at the meeting that the BIOT had a great role in ensuring the security of the UK and the US, much more than anyone foresaw in the 1960s. She said that she did not recall Mr Roberts saying this, "but it is something that would have been said". In answer to yet further questions based on the cable, Ms Yeadon said that she had no recollection as to whether what was recorded in the cable had been said or not.
- This 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.
- For the same reasons, we consider that it is unrealistic to suggest that the court would have reached a different conclusion as to the motivation or purpose of Mr Roberts, Ms Yeadon or the Secretary of State if the cable had been formally admitted as an authentic document and as evidence of the truth of its contents. The court had the benefit of seeing Mr Roberts and Ms Yeadon give evidence over a long period. It is clear that it accepted the material parts of their evidence. In doing so, the court was alive to the fact that (as stated at para 59 of the judgment) Mr Roberts recognised that an MPA, if entrenched, would create a serious obstacle to resettlement. We do not accept that there is a realistic possibility that the court's assessment of the evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had been formally admitted in evidence as an authentic document. In reaching this conclusion, we have borne in mind the need to exercise caution in denying relief on the ground that a legally correct approach would have made no difference to the outcome: see, for example, R (on the application of Cotton) v Chief Constable of the Thames Valley Police  IRLR 344, per Bingham LJ at para 60. But for the reasons that we have given, we are satisfied that the admission of the cable in evidence would have made no difference.
- It follows that, to the extent that the claimant's case is that the improper purpose of Mr Roberts and/or Ms Yeadon is to be imputed to the Secretary of State, this was rejected by the court's finding that there was no such improper purpose. For the reasons we have given, there is no basis for challenging this finding or for remitting the matter for further cross-examination to be conducted on the footing that the cable is admitted in evidence as an authentic document.
- More fundamentally, the Divisional Court made a clear finding at para 74 that it was the personal decision of the Secretary of State to declare an MPA on 1 April 2010 and that there was no evidence that he was motivated to any extent by an intention to prevent Chagossians and their descendants from resettling in the BIOT. It said that there was no ground to suspect, let alone to believe or to find, that the Secretary of State was motivated by the alleged improper purpose. There is no appeal against the finding that it was the Secretary of State who made the decision. Mr Pleming did not cross-examine Mr Roberts or Ms Yeadon as to any discussions they had with the Secretary of State about the proposal for an MPA, nor did he suggest to either of them that the Secretary of State was motivated by the alleged improper purpose. The fact that the cable was not admitted in evidence as an authentic document did not prevent Mr Pleming from pursuing such a line of cross-examination if that was what he wanted to do.
- The claimant has not sought to challenge the findings of the Divisional Court at paras 74 to 77 in so far as they were based on the oral and documentary evidence that was placed before them. The challenge is based solely on the ground that the claimant was deprived of the opportunity of (i) adducing the cable in evidence as a near-contemporaneous authentic record of the meeting of 12 May 2009; (ii) inviting the court to accept the contents of the cable as evidence of the truth of what was said at the meeting; (iii) inviting the court to prefer the cable to the evidence of Mr Roberts and Ms Yeadon; and (iv) cross-examining Mr Roberts and Ms Yeadon on the basis that the cable should be treated as an authentic document. We have already sufficiently explained why in reality (iv) was not a lost opportunity. For similar reasons, we do not consider that there is any realistic possibility that, if Mr Pleming had been able to take any of the steps in (i) to (iii), the finding of the court would have been different.
- We therefore conclude that, even if the cable had been admitted in evidence, the court would have decided that the MPA was not actuated by the improper motive of intending to create an effective long-term way to prevent Chagossians and their descendants from resettling in the BIOT. In other words, the court's ruling that the cable was not admissible had no effect on the proceedings and is not, therefore, a ground for allowing the appeal.
THE SECOND GROUND OF APPEAL: THE CONSULTATION PAPER
The consultation paper
- The second ground of appeal relates to the claimant's challenge that the MPA decision was flawed by reason of the failure to disclose, in the consultation paper, "that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and/or historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands."; see paragraph 7(d) of the claimant's re-amended statement of facts and grounds.
- As we have already said, the consultation ran from 10 November 2009 to 5 March 2010. The consultation document was published solely in electronic form, on a website, with a view to giving it wide availability. In addition to what was stated by the Secretary of State in his foreward (which we have quoted at paragraph 8 above), the document also contained the following passages which are relevant for present purposes (and are largely taken from the Divisional Court's summary):
"Who should read this document? Anyone with an interest in the British Indian Ocean Territory or the Overseas Territories in general. Anyone with an interest in the protection of the environment.
Making your views heard: we are keen to gather all views on Environmental Protection Agency British Indian Ocean Territory in any supporting evidence. You should not feel constrained by the specific question(s) or feel obliged to offer responses to all of them. Concentrate on those in which you have most interest. It would be helpful if you could describe your views, suggestions and experiences when responding, rather than giving "yes" or "no" answers.
We have made every effort to bring the consultation to the attention of those with an interest in the British Indian Ocean Territory. The document has been disseminated to wider audience through website representative groups, directly to representative interested parties/government/organisations with the main interest. However, if you think there are other ways that we can increase awareness of the consultation, please do let us know.
It would be helpful if you construct your response to address the question(s) below, but you should not be restricted to those questions. Please send us any information that you feel is relevant to your response.
1. Do you believe we should create a marine protected area in the British Indian Ocean Territory?
If yes, from consultations with scientific/environmental and fishery experts, there appear to us to be 3 broad options for a possible framework:
(i) Declare a full no-take marine reserve for the whole of the territorial waters and Environmental Preservation and Protection Zone (EPPZ)/Fisheries Conservation and Management Zone (FCMZ); or
(ii) Declare a no-take marine reserve for the whole of the territorial waters and EPPZ/FCMZ with exceptions for certain forms of pelagic fishery (e.g. tuna) in certain zones at certain times of the year.
(iii) Declare a no-take marine reserve for the vulnerable reef systems only.
2. Which do you consider the best way ahead? Can you identify other options?
3. Do you have any views on the benefits listed at page 11? What importance do you attach to them?
4. Finally, beyond marine protection, should other measures be taken to protect the environment in BIOT?"
- Under the heading "Scope", the document explained that the consultation was in response to a proposal of the Chagos Environment Network "The Chagos Archipelago: its Nature and Future" (to which a link was given), which recommended the establishment of a conservation area in the BIOT. The document continued:
"Any decision to establish a marine protected area would be taken in the context of the Government's current policy on the Territory, following the decision of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  UKHL 61 that the British Indian Ocean Territory (Constitution) Order 2004 and the British Indian Ocean Territory (Immigration) Order 2004 are lawful; i.e., there is no right of abode in the Territory and all visitors need a permit before entering the Territory. Access to a part of the Territory is also restricted under our Treaty obligations with the US. It is the Government's provisional view, therefore, that we would not establish a permanent research facility in any part of the Territory. Any decision to establish a marine protected area would not affect the UK Government's commitment to cede the Territory to Mauritius when it is no longer needed for defence purposes.
This consultation and any decision that may follow for the establishment of a marine protected area are, of course, without prejudice to the outcome of the current, pending proceedings before the European Court of Human Rights (ECtHR). This means that should circumstances change, all the options for a marine protected area may need to be reconsidered.
An Impact Assessment has been written for this proposal and can be found at Annex A. …"
- There followed a "Background" section which described the extent of existing environmental protection of the area and set out the Foreign and Commonwealth Office's view as to the added value of creating an MPA, which it was said took account of the findings of a workshop held on 5-6 August 2009 at the National Oceanography Centre, Southampton, to which a link was given. Annex A to the document was headed "Impact/Costs & Benefits". Under "Costs" it referred to the cost of patrolling the area and the absence of fishing licence income to offset that cost if a no-take MPA were created. Under "Benefits" it gave further links to the Chagos Environment Network brochure and the National Oceanographic Centre workshop, and summarised conservation benefits, climate change benefits, scientific benefits and development benefits.
- Under the heading "Impact" it stated:
"As well as the international fishing community, there are some groups who will be directly or indirectly affected by the establishment of a marine protected area and any resulting restrictions or a ban on fishing."
As regards the US, it referred to the possible need to exclude Diego Garcia and its 3 mile territorial waters from any MPA in order to avoid any impact on the operational capability of the base there. As regards Mauritius and the Chagossian community, it stated:
We have discussed the establishment of a marine protected area with the Mauritian government in bilateral talks on the British Indian Ocean Territory - the most recent being in July 2009 (see communiqué of the meeting held in Port Lewis at Annex C). The Mauritian government has in principle welcomed the concept of environmental protection in the area. The UK government has confirmed to the Mauritian that the establishment of the marine protected area will have no impact on the UK's commitment to cede the Territory to Mauritius when it is no longer needed for defence purposes. We will continue to discuss the protection of the environment with the Mauritians.
The Chagossian community
"Following the decision of the House of Lords in [Bancoult (No.2)], the current position under the law of BIOT is that there is no right of abode in the Territory and all visitors need a permit. Under these current circumstances, the creation of a marine protected area would have no direct immediate impact on the Chagossian community. However, we recognise that these circumstances may change following any ruling that might be given in the proceedings currently pending before the European Court of Human Rights in Strasbourg in the case of Chagos Islanders v UK. Circumstances may also change when the Territory is ceded to Mauritius. In the meantime, the environment will be protected and preserved."
- The joint communiqué set out in Annex C referred to a round of bilateral talks between the Mauritian and British Governments in July 2009 and included the following (in the form in which it appeared after an initial protest by Mauritius):
"The British delegation proposed that consideration be given to preserving the marine biodiversity in the waters surrounding the Chagos Archipelago/British Indian Ocean Territory by establishing a marine protected area in the region. The Mauritian side welcomed, in principle, the proposal for environmental protection and agreed that a team of officials and marine scientists from both sides meet to examine the implications of the concept with a view to informing the next round of talks. The UK delegation made clear that any proposal for the establishment of the marine protected area would be without prejudice to the outcome of the proceedings in the European Court of Human Rights.
The Mauritian side reiterated the proposal it made in the first round of the talks for the setting up of a mechanism to look into the joint issuing of fishing licences in the region of the Chagos Archipelago/British Indian Ocean Territory. The UK delegation agreed to examine this proposal and stated that such examination would also include consideration of the implications of the proposed marine protected area.
Both Governments agreed that nothing in the conduct or content of the present meeting shall be interpreted as:
(a) a change in the position of Mauritius with regard to sovereignty over the Chagos Islands/British Indian Ocean Territory;
(b) a change in the position of the United Kingdom with regard to sovereignty over the Chagos Islands/British Indian Ocean Territory …."
- Annex D summarised UK policy on marine protected areas, including reference to relevant international programmes.
- From the date of the creation of the MPA on 1 April 2010, no new licences for commercial fishing were issued, although existing licences were allowed to run their course.
The Divisional Court's judgment in relation to the consultation paper
- The Divisional Court dealt at considerable length with the issue as to whether the consultation paper was flawed in the manner alleged by the claimant; see paras 100 to 162 of its judgment. It extensively reviewed the relevant history of fishing activity in the BIOT undertaken both by Mauritian vessels under licence and by Chagossians and summarised the evidence and respective submissions of the parties. It concluded (at paras 160-162):
"160. Whether the omission of reference to the issue resulted in a flawed consultation must also be assessed in the context of what the consultation document did contain. 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. We do not place much weight on the link in the consultation document to the National Oceanography Centre report referring to Mauritian historical fishing rights, but the point was there for anyone who wished to advance or develop it. 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.
161. We add in passing that in so far as complaint is made about the statement in the consultation document that the creation of an MPA "would have no direct immediate impact on the Chagossian community", it was open to consultees to draw attention to the fact that Chagossian fishermen on commercial fishing vessels would be affected by the ban on fishing in the MPA, and to the consequences of that for them and their families, whether or not that could be said to amount to a "direct immediate impact". The way the matter was expressed in the consultation document did not give rise to a legal flaw in the consultation process.
162. For those reasons we have reached the clear conclusion that the claimant's case on the fishing rights issue should fail."
The submissions on behalf of Mr Bancoult in relation to the consultation paper and fishing rights
- The broad complaint presented to this court (and to the Divisional Court) by Mr Pleming on behalf of the claimant was that the consultation paper wrongly stated that the MPA proposal had "no direct effect on the Chagossians" and failed to mention that, at the very least, Mauritius had an arguable claim to continue to fish in the proposed MPA area of the BIOT, irrespective of its claims to sovereignty. So far as the Chagossians themselves were concerned, Mr Pleming submitted that, in reality, the evidence clearly showed that the Chagossians had traditionally enjoyed and exercised fishing rights in Chagos waters in the no-take area of the MPA at least up until 1973, when the last of the resident population left the islands; that thereafter a considerable number of Chagossians, who were Mauritian citizens, exercised such traditional fishing rights by working as crew members on Mauritian-flagged vessels operating in the BIOT, until the imposition of the MPA, coupled with the decision taken in October 2010 not to grant any new commercial fishing licences, brought such activity to an end; and that, moreover, the claimant and other displaced Chagossians had an entitlement to the preservation of their important historic links with the sea and fishing around the Chagos Islands, against the day when they should return to the islands, whether under British or Mauritian (or joint UK-Mauritian) sovereignty.
- Mr Pleming submitted that the absence of any (or any adequate) mention of the Chagossian and Mauritian fishing interests and/or rights in the consultation paper, amounted to an important and material flaw in the consultation process which had the result of making the consultation and the subsequent decision unfair and unlawful. The FCO played down the interests of the Chagossians and the Mauritians in the paper, with the result that not only the Chagossians, but also the wider world, were deprived of the opportunity of making relevant representations on behalf of the Chagossian community. He referred by way of example to a statement of Professor David Bellamy, an environmentalist.
- Mr Pleming mounted three principal challenges to the Divisional Court's decision in relation to what was said (or not said) in the consultation paper in relation to fishing rights:
Ground (i): he submitted that, at para 151 of its judgment, the Divisional Court had misdirected itself in concluding that Chagossian traditional fishing rights were lost in 1973 "with the loss of the right of abode and their removal from the islands" and that "there is nothing in the history since the last of the resident population left in 1973 to justify the view that Chagossians as such have continued to enjoy fishing rights in respect of BIOT waters or, therefore, that a no-take MPA would have an adverse effect on such rights". He submitted that the right of abode was not lost in 1973, was expressly affirmed by the Divisional Court in 2000 (per Laws LJ in Bancoult No 1 at para 39) and remained until 2008 when it was finally extinguished as a result of the House of Lords' judgment in Bancoult No 2. Despite their physical removal from the islands by the UK Government, Chagossians continued to exercise traditional fishing rights in the Chagos Archipelago, albeit from fishing vessels which now travelled from Mauritius, or under a Mauritian flag. These were Chagossian traditional fishing rights which continued, not just at the time of the public consultation on the MPA in late 2009/early 2010, but until the decision was taken not to renew licences in October 2010. Accordingly he submitted there was clear and credible evidence that "a no-take MPA would have an adverse effect on such rights" of the Chagossians.
Ground (ii): Mr Pleming submitted that, at para 155 of its judgment, the Divisional Court had misdirected itself as to the significance of the "number of Mauritian-flagged vessels licensed to fish in BIOT waters and affected by the no-take MPA" and as to the question of whether this constituted "a sufficient argument concerning the existence of Mauritian fishing rights in respect of BIOT waters as to require mention to be made of it in the consultation document if the consultation was to be lawful". The fact that the number of Chagossians engaged in this fishing was small was not material. In the circumstances, the statement in the consultation document that the creation of an MPA "would have no direct immediate impact on the Chagossian community" was materially misleading in as much as the traditional fishing rights practised by Chagossians owning and employed on vessels from Mauritius fishing in BIOT waters would be extinguished by a no-take MPA.
Ground (iii): Mr Pleming submitted that, the Divisional Court misdirected itself when considering the legal stance taken by Mauritius in the paper by Professor Sir Ian Brownlie CBE, QC. It wrongly concluded at para 133 of its judgment that the "alternative legal framework" which was advanced in that paper "was bound up closely with the issue of sovereignty" and that "the paper contains no suggestion that Mauritius might enjoy fishing rights over BIOT waters on grounds other than sovereignty". In so concluding, the Divisional Court disregarded important sections of the paper which clearly demonstrated that, notwithstanding the argument by Mauritius as to sovereignty, the "alternative legal framework" involved promises or undertakings offered by the United Kingdom in 1965. One such promise was tied to the acknowledgment of then existing fishing rights. Furthermore there was a direct distinction to be drawn between what Professor Brownlie called "reversionary rights" and those giving immediate and continuing access to the natural resources of the BIOT such as fishing rights. Professor Brownlie's paper, properly understood, therefore stated that undertakings acknowledging then existing fishing rights were distinct from the issue of Mauritian sovereignty. In para 144 of its judgment the Divisional Court erred in implicitly accepting the evidence of Mr Roberts as to why he considered that Mauritius had expressed no claim to fishing rights and so concluded, erroneously, at para 155 that "save in the context of the separate dispute over sovereignty, Mauritius did not suggest that it had any special rights to fish in BIOT". The overall finding at para 159 that there "was not a sufficient reason in the circumstances why the issue should have been mentioned explicitly in the consultation document" was a product of the Divisional Court's misdirection.
- Accordingly, Mr Pleming submitted, the consultation was materially flawed when it said that the creation of the MPA "would have no direct immediate impact on the Chagossian community", and failed to mention the arguable Mauritian claims to fishing rights. These flaws (contrary to the conclusion of the Divisional Court at para 161) were not cured by the fact that consultees could disagree and raise additional questions.
- The particular points made by Mr Pleming were that the consultation process was flawed because the consultation paper:
(i) did not refer to the fact that, prior to their final departure from the Chagos Islands in May 1973, Chagossians living in the Islands had traditionally engaged in fishing in the Chagos Archipelago of a nature which was described in a minute dated 17 November 1965 from the Governor of Mauritius to the Colonial Office as "mainly hand line with some basket and net fishing by local population for own consumption"; see para 107 of the judgment; on any basis, as Mr Kovats pointed out, this could not be described as commercial fishing of the waters;
(ii) did not expressly refer to the fact that, following the expulsion of the remaining Chagossians in 1973, until such time as the decision was taken not to renew licences in October 2010, a relatively few Chagossians, living in Mauritius, were employed on fishing vessels which travelled from Mauritius, or under a Mauritian flag, and commercially fished in the waters of the Chagos Islands;
(iii) did not refer to the fact that the Chagossians claimed to have an entitlement to the preservation of their historic links with the sea and fishing around the Chagos Islands, against the day when they should ultimately return to the Islands;
(iv) stated that the creation of an MPA "would have no direct immediate impact on the Chagossian community";
(v) did not state that it was arguable that Mauritius had fishing rights in respect of BIOT waters, independent of its claim to sovereignty to the Chagos Islands.
Conclusion on the consultation paper issue
- Largely for the reasons given by the Divisional Court, we reject the claimant's appeal on this ground. We comment on each of the three grounds of challenge as follows.
- Ground (i): we can see no fault with the statement at para 151 of the judgment to which we have referred at para 105 above. The reality is that, since 1973, the Chagossians had neither enjoyed, nor exercised, any rights in their capacity as Chagos Islanders to fish the BIOT waters. The evidence demonstrated that there was no history of commercial fishing in the BIOT by Chagossians, even before 1973 and certainly not after that date. Being employed as crew members on Mauritian (or other) flagged vessels, which had licences to fish the BIOT waters, cannot be equated with the exercise of "traditional fishing rights" by the Chagossians. In this context it is, in our view, immaterial precisely when the right of abode was lost and there is no need to explore any application of the doctrine of "relation back" in respect of the House of Lords' judgment in Bancoult No 2 in 2008. What is clear is that, as at the date of the consultation paper, the House of Lords had determined in Bancoult No 2 that there was no right of abode in the BIOT.
- Ground (ii): likewise we reject Mr Pleming's second ground of challenge. The reality was, as the Divisional Court pointed out at paras 153-156 of its judgment, not only that the numbers engaged in the fishery were small, but also that Mauritius had at no time contended that the effect of the obligation undertaken by the UK Government in September 1965 was to confer fishing rights on Mauritius as a matter of international law, separate from the issue of sovereignty.
- Ground (iii): but, in our judgment, even if, as Mr Pleming submitted, the legal stance taken by Mauritius in relation to fishing rights (as set out in the paper by Professor Sir Ian Brownlie CBE, QC) was not limited to the issue of sovereignty, but extended to an alternative "legal framework" that Mauritius might claim to enjoy fishing rights over the BIOT waters on grounds other than sovereignty, that was no basis for concluding that the consultation process was flawed. In para 144 of its judgment the Divisional Court accepted the evidence of Mr Roberts as to why he considered that Mauritius had expressed no claim to fishing rights. If that had been wrong as a matter of fact, there was nothing to prevent Mauritius, or indeed anyone else, from raising the argument that a ban on fishing would have been incompatible with Mauritian fishing rights. It follows that we concur with the view expressed in the last two sentences at paragraph 160 of the Divisional Court's judgment:
"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."
- We reject the submission that the consultation process was flawed because the detailed points raised by Mr Pleming were not expressly referred to in the consultation paper. The impact of the proposed imposition of the MPA was clearly addressed. The reality was that the terms of the consultation paper offered a clear opportunity to the Chagossians, and indeed to anyone else, to canvas the alleged fishing rights of the Chagossians as traditionally enjoyed and their alleged entitlement to preserve their historic links with, and knowledge of, fishing in Chagos Islands waters and to raise concerns that the proposals might damage such links. It would (or should) also have been obvious to anyone reading the paper that the proposals might affect both the continued ability of Mauritius (and indeed other flagged) vessels to fish in Chagos Islands waters under licence, and that, consequently, the livelihood of Chagossians employed on such vessels might be threatened. It was open to consultees to draw attention to the fact that the total ban imposed by the MPA might weaken the Chagossians' knowledge of, and traditional links with, the BIOT waters. It was also open to consultees to draw attention to the fact that Chagossian fishermen on Mauritian commercial fishing vessels might be affected by the ban on fishing in the MPA, and the consequences of that to them and their families. We do not accept Mr Pleming's submission that non-Chagossian consultees might have responded to the consultation differently if the asserted claims of the Chagossians had been more strongly emphasised or underlined in the consultation paper.
- Accordingly we reject the second ground of appeal.
THE THIRD GROUND OF APPEAL: BREACH OF THE TFEU
- This part of the judgment addresses the four European law questions that have been argued on this appeal. The first question, which was raised by the claimant, was whether the Divisional Court had misdirected itself in finding that the declaration of an MPA was compatible with EU law. The claimant's primary submission was that the imposition of the MPA causing the elimination of existing fishing activity and potential consequential economic development of the BIOT was sufficient to engage and breach the UK's EU treaty obligations in article 4(3) of the TEU read in conjunction with articles 198 and 199 of the TFEU. The remaining three questions were raised by the Secretary of State's Respondent's Notice as follows:-
(i) Whether the Divisional Court was wrong to hold that article 4(3) of the TEU, read together with articles 198 and 199 of the TFEU, was capable of giving rise to directly effective rights which could be enforced by individuals before national courts;
(ii) Whether the Divisional Court ought to have held that the subject matter of the dispute fell outside the applicable scope of EU law; and
(iii) Whether the Divisional Court was wrong to hold that it could reach a decision that was inconsistent with the decision of the European Commission without requesting a preliminary ruling from the Court of Justice of the European Union ("the CJEU").
- It would be logical to deal with the first two points raised in the Respondent's Notice first, since they go to the heart of the applicability of EU law to the Secretary of State's decision to declare an MPA. Nonetheless, we think we should start by considering the way in which the Divisional Court addressed the application of EU law to the facts. We shall do so on the assumption, but without deciding at this stage, that the Secretary of State would not succeed on his Respondent's Notice. Before doing that, however, we should recite the basic provisions of the treaties upon which primary reliance is placed.
The central provisions of the treaties
- We set out only the central provisions of the treaties relied upon by the claimant, but we do so adding emphasis to the parts of the provisions upon which particular reliance is placed.
- Article 4(3) of the TEU provides as follows:-
"Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives".
- Article 198 of the TFEU provides as follows:-
"The Member States agree to associate with the Union the non-European countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom. These countries and territories (hereinafter called 'the countries and territories') are listed in Annex II.
The purpose of association shall be to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union as a whole.
In accordance with the principles set out in the preamble to the Treaty, association shall serve primarily to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire".
- Article 199 of the TFEU provides as follows:-
"Association shall have the following objectives:
1. Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to the Treaties.
2. Each country or territory shall apply to its trade with Member States and with the other countries and territories the same treatment as that which it applies to the European State with which it has special relations.
3. The Member States shall contribute to the investments required for the progressive development of these countries and territories.
4. For investments financed by the Union, participation in tenders and supplies shall be open on equal terms to all natural and legal persons who are nationals of a Member State or of one of the countries and territories.
5. In relations between Member States and the countries and territories the right of establishment of nationals and companies or firms shall be regulated in accordance with the provisions and procedures laid down in the Chapter relating to the right of establishment and on a non-discriminatory basis, subject to any special provisions laid down pursuant to Article 203."
- Article 203 of the TFEU allows the Council, acting unanimously on a proposal from the European Commission, to lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the EU. The Council Decision of 25 November 2013 on the association of overseas countries and territories with the European Union ("Overseas Association Decision") (2013/755/EU) and its predecessors duly laid down such provisions, which were applicable to the BIOT. No specific provision of the Overseas Association Decision is relied upon by the claimant.
Did the Divisional Court misdirect itself in finding that the declaration of a MPA was compatible with EU law?
- The core of the claimant's argument on substantive infringement is that article 4(3) of the TEU and article 198 of the TFEU were breached by the UK when it imposed the MPA, because the MPA could jeopardise the attainment of the EU's objectives including the promotion of the economic, social and cultural development of the BIOT and the furtherance of the interests and the prosperity of the potential inhabitants of the BIOT. The UK had, it is said, a negative obligation under these articles not to jeopardise these specific objectives.
- The claimant points to certain findings of fact made by the Divisional Court. First, the MPA had a serious adverse effect on the incomes of the Chagossian fishermen resident in Mauritius and employed on boats registered in other countries. Secondly, the MPA had cut an important link between those Chagossian fishermen and their ancestral home. Thirdly, the MPA would result over time in the diminution of the particular expertise of those Chagossian fishermen in relation to fishing in BIOT waters. Finally, the Divisional Court accepted that these matters were relevant to the potential effectiveness of a resettlement strategy based on fishing and tourism as suggested in the "Returning Home" paper of March 2008 produced by the Chagos Refugees Group.
- In the light of those findings, the claimant submits, in essence, that it was not open to the Divisional Court to conclude that (i) the MPA had no appreciable adverse effect on the economic cultural and social development of the islands, (ii) the decision to create the MPA fell far short of a decision that deprived article 198 of the TFEU of its effet utile, and (iii) the MPA did not jeopardise the attainment of the objectives of the treaties.
- Insofar as the Divisional Court was relying upon a margin of appreciation or the principle encapsulated in the maxim 'de minimis non curat lex', the claimant argues that it was wrong to do so, first because no such principles apply to breaches of these treaty obligations, secondly because the effect of the MPA was to sever the last remaining link between the Chagossians and their homeland, so giving the MPA a far greater significance, and thirdly because the Divisional Court ignored the significance of the elimination of the potential for economic development. The claimant urged the court to view all these alleged breaches in the context of the history of the UK's unlawful expulsion of Chagossians from their homeland, and of the Chagossians' aspirations to return to their homeland.
- In answer, the Secretary of State submits that the Divisional Court made no error of law on this point, but instead undertook a multi-factorial evaluative assessment with which this court should not interfere. He relies in particular on the findings made by the Divisional Court to the effect that: (i) there was no commercial fishing (as opposed to hand fishing for personal consumption) in the BIOT before the population left; (ii) the only fishing that continued in the BIOT was fishing by a small number of vessels flagged to non-EU countries; and (iii) the only Chagossian involvement in this fishing activity was by 20-50 employees on Mauritian registered boats. Finally, the Secretary of State points, as the Divisional Court did, to the reversible nature of the MPA and the fact that it was concerned only with the lawfulness of the imposition of the MPA and not the removal of the indigenous population.
- In our judgment, the Divisional Court was entitled to reach the factual conclusions that it did. It undertook a careful evaluation of the evidence and concluded that there were actually no Chagossian fishing activities at all when the MPA was imposed. The few Mauritian ships holding licences to fish were, it was true, manned by some Chagossians, but that did not turn Mauritian fishing activity into Chagossian fishing activity. The effect on a few individual exiled Chagossians and the maintenance of their local fishing expertise cannot, in our judgment, even arguably, amount to jeopardising the promotion of the economic and social development of the BIOT and the furtherance of the interests and the prosperity of the inhabitants of the BIOT, whether or not the inhabitants can properly be interpreted as including those with aspirations to return to the BIOT.
- Article 4(3) of the TEU and articles 198 and 199 of the TFEU are all directed at the macro-economic picture, not at the minutiae of the interests of a handful of individuals. As we have already pointed out above in the second section of this judgment, there was no commercial fishing by Chagossians in the BIOT before the Chagossians were removed; the main commercial activity having been coconut farming, not fishing. There was no Chagossian fishing activity when the MPA was imposed, and no intention to undertake such activity unless re-settlement became a reality. The EU's objectives of promoting economic, social and cultural development of the BIOT cannot be attained or even aspired to whilst the Chagossians are prohibited from living in the islands. It is that prohibition that could be said to jeopardise the promotion of the economic, social and cultural development of the BIOT. Realistically, the MPA had no meaningful or real effect at all on such development.
- Moreover, there can have been no possible breach of article 4(3) of the TEU taken together with article 199 of the TFEU. There was no evidence of any trade within the BIOT at the time of the MPA, and no evidence of any trade between the BIOT and the UK or any other Member State. Accordingly, the objectives in article 199 including equal trade treatment, investment for progressive development and non-discrimination were not in any meaningful sense jeopardised in relation to trade with the BIOT.
- EU treaties must be given a purposive construction. We do not accept that the loss of some local fishing knowledge held by a few individuals can amount to a violation of the EU objectives of promoting economic, social or cultural development. Nor do we accept the argument that the MPA jeopardises the potential for a resettlement strategy based on fishing and tourism. The MPA can, as the Divisional Court held, be removed or amended at any time. The FCO itself announced in January 2014 a new resettlement feasibility study including the possibly of reintroducing fishing. That demonstrates directly the unreality of the suggestion that the MPA is itself responsible for the damaging the development of the BIOT.
- We do not think it is necessary for us to decide whether the de minimis or the margin of appreciation principles could or should be applied in the context of an alleged breach of these treaty obligations, because we do not think there was a breach whether or not the principles apply. Nor do we think that it is necessary to decide whether the word "inhabitants" in article 198 of the TFEU can include prospective or former inhabitants. Both issues raise potentially difficult questions of EU law that might themselves be appropriate for a preliminary ruling if they were likely to be determinative of the point we have to decide. But we do not think they are. We are prepared to assume both points in favour of the claimant. Even making that assumption, we cannot see that there has been a breach of the articles concerned.
- In truth the allegations are an artificial construct. The obligations in article 4(3) of the TEU read together with articles 198 and 199 of the TFEU are looking at the big picture. Viewed from that perspective, it is impossible to contend that the facts found by the Divisional Court as consequences of the imposition of the MPA actually or prospectively jeopardised the EU's objectives of promoting the economic, social and cultural development of the BIOT. Such development of the BIOT, and the furtherance of the interests and prosperity of inhabitants of the BIOT, are simply not about the individual incomes of Chagossians resident in Mauritius, individuals' historic local knowledge, or even the severing of a cultural link (which was in practice severed long before the Chagossians were removed from the BIOT). To breach the treaty articles, the Member State would have to be shown to have done something significant to jeopardise the macro objectives of the promotion of economic, cultural and social development of the BIOT or the furtherance of the interests of the inhabitants of the BIOT. In truth, it is not the MPA that can be said to jeopardise those objectives, even if the prohibition on Chagossians living in BIOT could be said to do so. The findings made by the Divisional Court did not arguably amount to a breach of article 4(3) of the TEU read together with articles 198 and 199 of the TFEU.
- In these circumstances, we have reached the clear conclusion that the Divisional Court did not misdirect itself in finding that the MPA was compatible with EU law. This was a conclusion that the Divisional Court was entitled to reach on the evidence. It was unaffected by any error of law, and it was a conclusion with which this court ought not to interfere.
- Accordingly, the three EU law points raised by the Respondent's Notice (direct effect, outside the scope of EU law, and the effect of the Commission's decision) do not strictly need to be decided. Significant argument was, however, addressed to them, and, as we have said, at least the first two arise logically before the question of whether the Divisional Court misdirected itself as to the application of EU law. We think, therefore, that we should shortly express our views on these points.
Was the Divisional Court wrong to hold that article 4(3) of the TEU, read together with articles 198 and 199 of the TFEU, was capable of giving rise to directly effective rights which could be enforced by individuals before national courts?
- The Divisional Court concluded at para 196 of its judgment that the obligation in article 4(3) of the TEU to refrain from any measure which could jeopardise the attainment of the Union's objectives was sufficiently clear, precise and unconditional to be capable of giving rise to directly effective rights on which individuals can rely before the domestic courts.
- The argument on this point has been somewhat obscured by a disagreement between the parties as to what precisely the claimant was contending for. The Secretary of State seems to have understood the claimant as contending that there was a positive obligation on the UK under article 4(3) of the TEU and article 198 of the TFEU to promote the economic and social development of BIOT, whilst the claimant submits that he contends only for a negative obligation to refrain from jeopardising the objective of promoting economic development. The point is important, because it is easier to reject the notion of such a positive obligation as the European Commission expressly did in the conclusion it reached in dealing with the claimant's complaint on 7 July 2011 saying that articles 198 and 199 did not "give rise to a positive obligation for the Member States to actively promote the economic and social development of their OCTs [overseas countries and territories]".
- The parties are, however, agreed as to two matters: first, that the basic test for directly effective treaty obligations is whether the obligation in question is sufficiently clear, precise and unconditional (see NV Algemene Transport – en Expetie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration (Case 26/62) relating to "obligations which the Treaty imposes in a clearly defined way upon … Member States"), and secondly, that there is no authority which directly decides whether the obligations in article 4(3) of the TEU, read together with articles 198 and 199 of the TFEU as to OCTs, are of direct effect.
- The Secretary of State placed great reliance on the decision of the CJEU in Hurd v. Jones (Case 44/84). In that case, an English teacher at a European School in Luxembourg claimed that supplements paid to him should be exempt from UK tax under European law, and claimed that the UK was obliged under article 5 (the then equivalent of article 4(3) of the TEU) to give effect to a 1957 Decision to which it had acceded when the UK joined the EU. The argument was that article 5 prevented the UK taking measures that jeopardised the attainment of the EU's objectives detrimental to the functioning of the school. The CJEU said this:-
"38. As regards, more specifically, Article 5 of the EEC Treaty, it should be noted that the second sentence of the first paragraph of that Article imposes on Member States an obligation to facilitate the achievement of the Community's tasks, while the second paragraph requires Member States to abstain from any measure which could jeopardize the attainment of the objectives of the Treaty. As the court held in particular in its judgment of 10 February 1983 (case 230/81 Luxembourg v European Parliament (1983) ecr 255), that provision is the expression of the more general rule imposing on Member States and the Community institutions mutual duties of genuine cooperation and assistance. Those duties, which are derived from the treaties, cannot be applied to agreements between the Member States which lie outside that framework, such as for example the statute of the European school.
39. The position would be different if the implementation of a provision of the treaties or of secondary Community law or the functioning of the Community institutions were impeded by a measure taken to implement such an agreement concluded between the Member States outside the scope of the treaties. In that event the measure in question could be regarded as contrary to the obligations arising under the second paragraph of article 5 of the EEC Treaty. …
47. According to a consistent line of Decisions of the court, a provision produces direct effect in relations between the Member States and their subjects only if it is clear and unconditional and not contingent on any discretionary implementing measure.
48. Those requirements are not fulfilled with regard to the obligation at issue in these proceedings, namely the obligation arising from Article 5 of the EEC Treaty to refrain from any unilateral measure that would interfere with the system adopted for financing the Community and apportioning financial burdens between the Member States. The differences which exist in that respect between the practices of the Member States concerning the detailed rules and procedures for exempting teachers from domestic taxation show that the substance of that obligation is not sufficiently precise. It is for each Member State concerned to determine the method by which it chooses to prevent its tax treatment of teachers at the European schools from producing detrimental effects for the system of financing the Community and apportioning financial burdens between the Member States.
49. … it must therefore be stated that, by virtue of the duty of genuine cooperation and assistance which Member States owe the Community and which finds expression in the obligation laid down in Article 5 of the EEC treaty to facilitate the achievement of community's tasks and to refrain from jeopardizing the attainment of the objectives of the Treaty, Member States are prohibited from subjecting to domestic taxation the salaries paid by the European schools to their teachers, where the burden of such taxation is borne by the Community budget. That obligation does not produce direct effects capable of being relied upon in relations between Member States and their subjects."
- In Hurd v. Jones, therefore, the relevant obligation was held, as Ms Maya Lester (who argued this aspect of the case for the claimant) submitted, not to have been sufficiently precise. More importantly perhaps, the CJEU was pointing out that article 4(3) of the TEU was "the expression of the more general rule imposing on Member States and the Community institutions mutual duties of genuine cooperation and assistance", and that such duties, could not be applied to "agreements between the Member States which lie outside that framework".
- Mr Kieron Beal Q.C., who argued this aspect of the case for the Secretary of State, referred us to numerous CJEU decisions where the nature of article 4(3) was considered. As it seems to us, however, none of them took us much further than the principles enunciated in van Gend & Loos and Hurd v. Jones. They depended very much on the particular circumstances in which article 4(3) was deployed, none of which was even similar to the situation in this case. The closest the authorities came to giving assistance on this point was Antillean Rice Mills NV v. Commission of the European Communities (Case C-390/95), where Advocate General Alber indicated somewhat elliptically at paras 54-55 of his opinion that he did not think that article 132 (the predecessor of article 199 of the TFEU) was directly effective.
- In our judgment, the underlying question of direct effect in this case is not quite as straightforward as the Divisional Court perceived it to be. The authorities do not seem to us to say that, simply because you can spell out of treaty provisions a clear, precise and unconditional obligation on a Member State, that obligation will automatically be directly enforceable. The question of direct effect is also concerned with whether the provisions in question are in the nature of general rules imposing on Member States mutual duties of genuine cooperation and assistance, and whether there are likely to be legitimate differences that exist between the practices of the Member States concerning the detailed rules and procedures for implementing the general rules. These factors will have a bearing on whether the provisions are properly to be regarded as being of direct effect.
- It is worthy of note in this case that the detailed applicable rules for achieving the objectives in Part 4 of the TFEU (which includes article 198 and 199) have been laid down in successive Overseas Association Decisions, yet the claimant in this case has placed no reliance on any of those detailed provisions.
- We have formed the view that it would be surprising if the objectives stated in articles 198 and 199 could properly be regarded as sufficiently clear, precise and unconditional to be regarded as directly effective. This is not because one cannot spell a clear obligation out of the words of article 4(3) read together with articles 198 and 199. It is because articles 198 and 199 are all about the attainment of objectives of association between OCTs and the European Union, not about the detailed ways in which that association and those objectives should be fulfilled. Simply adding to the statement of the objectives the words of article 4(3) requiring Member States to "refrain from any measure which could jeopardise the attainment of the Union's objectives" does not seem to us to turn what are statements of aspiration into directly effective provisions of EU law.
- The claimant's argument is attractive in one sense. It is easy to state that, by the imposition of the MPA, the UK has taken (or, in the words of article 4(3) of the TEU, not refrained from) a measure which might jeopardise the promotion of the economic, social and cultural development of the BIOT. That statement reads as if it is an obvious breach. But this is not a semantic exercise. It is a substantive one; and in our judgment, Part 4 of the TFEU provides for objectives that are not hard-edged obligations. The objectives may be achieved in many different ways in different OCTs, and we do not believe, that, even taking into account the obligatory provision in article 4(3) of the TEU, they can have a direct effect or be directly enforceable in the national courts.
- As we have already mentioned, this part of our decision is not determinative of the outcome. Had it been determinative, we would not have considered the matter to be free from doubt, and bearing in mind the lack of any direct CJEU authority on the point, we would have thought it appropriate to refer the matter for a preliminary ruling to the CJEU.
Ought the Divisional Court to have held that the subject matter of the dispute fell outside the applicable scope of EU law?
- The Divisional Court did not expressly address this point, even though it was argued by the Secretary of State. And once again, we have been deluged with a host of CJEU cases. We can address the point shortly, because all of Mr Beal's main propositions were common ground. They were, essentially at least, that: (i) OCTs are treated as non-member countries by the EU, save to the extent that they are expressly brought within the scope of EU law; (ii) relations between a Member State and an OCT cannot be equated with the relations between two Member States; and (iii) facts and matters that concern a wholly internal situation between a UK national and the UK Government do not fall within the scope of EU law.
- Ms Lester submitted for the claimant that the free movement cases upon which the Secretary of State relied were nothing to the point. Here, the claimant relies on his aspiration to return to his homeland and on the economic activity or potential economic activity in which he hopes to engage. The EU dimension is that the BIOT is specifically mentioned in annex II to the TFEU, and the UK has assumed responsibilities in relation to it.
- In our judgment, if the obligations in article 4(3) of the TEU read together with articles 198 and 199 of the TFEU were of direct effect, it would be open to the claimant to assert those rights against the UK. It is true that the claimant is now a UK Citizen, but his assertions do not, in any sense, relate to a wholly internal UK situation. There is no analogy with the way in which a Member State treats its own nationals or nationals of third party states (e.g. Dereci v. Bunderministerium für Inneres (Case C-256/11)). It is true also that the Divisional Court held that the claimant could not rely on the rights of others, but we think it was correct to say that the claimant was asserting his own rights as a displaced Chagossian. Displaced Chagossians are the only persons affected by the UK's obligations in relation to the BIOT, because there is no resident population. The fact that these persons are UK citizens would not, of itself, deprive them of the right to assert EU law rights in relation to the BIOT against the UK.
- In the circumstances, we think that the Divisional Court was right not to have held that the subject matter of the dispute fell outside the applicable scope of EU law.
Was the Divisional Court wrong to hold that it could reach a decision that was inconsistent with the decision of the European Commission without requesting a preliminary ruling from the CJEU?
- In paras 174-182, the Divisional Court summarised the complaint that the claimant made to the European Commission and the decisions that the Commission reached in relation to it, ultimately closing the file. We do not propose to repeat that material in this judgment.
- It is clear to us, however, that the arguments advanced by the claimant in support of his complaint to the Commission were substantively the same as the argument advanced to us. The arguments were more wide-ranging but, when the Commission came ultimately to reject the claimant's complaint, it did so on 28 June 2012 on the basis that "your letter refers to a violation of Article 4(3) TFEU [sic] in conjunction with Articles 198 and 199 TFEU … However, as already indicated, no infringement of Articles 198 and 199 could be established".
- Accordingly, the conclusion that we have already reached as to the breach of the treaty articles is, as was the Divisional Court's conclusion, the same as that reached by the Commission. The point now raised by the Secretary of State is, therefore, more academic than our consideration of "direct effect" which underlay the need to decide on the question of the alleged breach of the treaty articles relied upon. We propose, therefore, to deal with matter very briefly.
- The legal basis for the Commission's action in responding to the claimant's complaint is contained in article 258 of the TFEU which provides that: "If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union". In Alfons Lütticke v. European Commission (Case 48/65)  ECR 27, the CJEU made clear that: "[t]he part of the procedure which precedes reference of the matter to the Court constitutes an administrative stage intended to give the Member State concerned the opportunity of conforming with the Treaty. During this stage, the Commission makes known its view by way of an opinion only after giving the Member State concerned the opportunity to submit its observations. No measure taken by the Commission during this stage has any binding force" (emphasis added).
- The Divisional Court concluded at para 193 that the decision to close the file, rather than to bring infringement proceedings before the CJEU, did not amount to a binding decision that the UK was complying with EU law in relation to the matters complained about. It was, therefore, open to the claimant to raise the EU law matters in these proceedings without the court being constrained by either the reasoning or the conclusion of the Commission.
- Four authorities are relevant. In Air Transport Association of America v. Secretary of State for Energy and Climate Change (Case C-366/10), the CJEU said at paras 47-8 that there was settled case law to the effect that national courts do not have the power to declare acts of the European Union institutions to be invalid. In Masterfoods Ltd v. HB Ice Cream Ltd (Case C-344/98)  ECR I-11369, which the Divisional Court dealt with extensively at paras 185-187, the CJEU held, in effect, that in respect of a breach of EU competition rules, general principles of legal certainty require national courts to avoid giving decisions which would conflict with the Commission's decision. In Mediaset SpA v. Ministero dello Sviluppo economico (Case C-69/13)  ECR I-0000 at paras 25, 28, 29-31 and 36, the CJEU decided that statements of position made by the Commission, whilst not binding on the national court, should be taken into account as a relevant factor in its assessment, even if its own findings would not call into question any binding decision of the Commission. Finally, in Crehan v. Inntrepreneur Pub Co  1 AC 333, the House of Lords held that Masterfoods was inapplicable to that case because there was no possibility of a conflict between "a decision of the commission that the Whitbread agreement infringed article 81 and a decision of the national court that the Inntrepreneur agreements did not" (see paras 56 and 69 of Lord Hoffmann's speech).
- In our judgment what these cases show is that it is necessary to identify precisely in any given situation what the European Commission is deciding and what it is not deciding. Here, there was no question of the national court declaring an act of the Commission to have been invalid. The Commission's rejection of the claimant's complaint was not formally brought before the court. Moreover, the position is not analogous to a competition infringement upon which the Commission has reached a concluded view.
- Undoubtedly, however, in this case, the European Commission has considered and opined upon the arguments that were addressed to the national court. Although the Commission's decision is not binding, and the questions considered by the Commission were never referred to the CJEU under article 258 of the TFEU, the Commission has expressed a view. As it turns out, that view is similar to the views of this court. The question of a reference does not therefore arise. But had these views clashed, we think that it might well have been appropriate to refer the matter to the CJEU for a preliminary ruling on the grounds that the matter was not acte clair.
- We conclude, therefore, on this point that the Divisional Court was wrong to say that the court was not in any way constrained by the Commission's statement of position and reasoning in response to the claimant's complaint. Had it been reaching an opposite conclusion to that of the Commission, it should, at least, have given careful consideration to the need for a reference to be made for a preliminary ruling from the CJEU. Happily, that has not proved necessary since our conclusions and reasoning broadly accord with those of the Commission.
- Accordingly, we reject the third ground of appeal.
- It follows that, for the reasons we have given, we dismiss the claimant's appeal.
UPON hearing Nigel Pleming QC, Professor Robert McCorquodale, Richard Wald, Stephen Kosmin, Maya Lester, and Daniel Piccinin for the appellant and Steven Kovats QC, Professor Malcolm Shaw QC, Kieron Beal QC and Penelope Nevill for the respondent
AND UPON reading the appellant's written submissions in support of permission to appeal to the Supreme Court
AND UPON the respondent reserving his right to seek permission to (cross-)appeal to the Supreme Court, if so advised
IT IS ORDERED as follows
- The appeal is dismissed.
- The appellant shall pay 50% of the respondent's costs of and occasioned by the appeal, to be determined pursuant to s.26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and regulation 15 of the Civil Legal Aid (Costs) Regulations 2013 as to the amount of recoverable costs and the amount to be paid by the appellant.
- Subject to a request being made by the respondent within 3 months of the date of this Order, the assessment of the amount to be paid by the appellant to the respondent shall be made by a costs judge pursuant to regulation 16 of the Civil Legal Aid (Costs) Regulations 2013.
- There shall be a detailed assessment of the appellant's publicly funded costs.
- Permission to appeal is refused.
- Should the respondent be so advised, any application for permission to cross-appeal is to be made on the papers and filed no later than 6 June 2014, to be determined on the papers within 14 days thereafter.
NIGEL PLEMING QC
Professor ROBERT MCCOQUODALE
Counsel for the appellant
STEVEN KOVATS QC
KIERON BEAL QC
Professor MALCOLM SHAW QC
Counsel for the respondent
23 May 2014