R (on the application of Bancoult No 3) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)
|Cite as:|| UKSC 3|
|Hand-down Date:||February 08, 2018|
Hilary Term  UKSC 3 On appeal from:  EWCA Civ 708
R (on the application of Bancoult No 3) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent) before
Lord Neuberger Lady Hale Lord Mance
Lord Kerr Lord Clarke Lord Sumption Lord Reed JUDGMENT GIVEN ON 8 February 2018 Heard on 28 and 29 June 2017 Appellant Respondent Nigel Pleming QC
Steven Kovats QC Professor Malcolm Shaw QC Penelope Nevill (Instructed by The Government Legal Department) Richard Wald
Professor Robert McCorquodale (Instructed by Clifford Chance
LORD MANCE: (with whom Lord Neuberger, Lord Clarke and Lord Reed agree)
The appellant is the chair of the Chagos Refugees Group. The Group represents Chagossians whose removal from the British Indian Overseas Territory (the Chagos Islands - "BIOT") and resettlement elsewhere was procured by the United Kingdom government in the years 1971 to 1973. The circumstances have generated much national and now also international litigation. The sad history has been told on a number of occasions. It suffices to mention Chagos Islanders v The Attorney General  EWHC 2222 (QB), R (Bancoult) Secretary of State for Foreign and Commonwealth Affairs (No 2)  UKHL 61;  AC 453 and most recently in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4)  UKSC 35;  AC 300. Following the last two decisions, it remains prohibited, under the BIOT Constitution and Immigration Orders 2004, for Chagossians to return to BIOT. Since the last judgment, the United Kingdom government has on 16 November 2016 announced its decision to maintain the ban on resettlement, after a study carried out by KPMG published on 31 January 2015. That decision is itself the subject of further judicial review proceedings.
The present appeal concerns the establishing for BIOT of "a marine reserve to be known as the Marine Protected Area" by Proclamation No 1 of 2010. The Proclamation was issued by Mr Colin Roberts, Commissioner for BIOT, "acting in pursuance of instructions given by Her Majesty through a Secretary of State". The Marine Protected Area ("MPA") was established in a 200 mile Environment (Protection and Preservation) Zone ("EPPZ") which had existed since Proclamation No 1 of 2003 dated 17 September 2003. Proclamation No 1 of 2010 said (para 2) that, within the MPA:
"Her Majesty will exercise sovereign rights and jurisdiction enjoyed under international law, including the United Nations Convention on the Law of the Sea, with regard to the protection and preservation of the environment of the [MPA]. The detailed legislation and regulations governing the said [MPA] and the implications for fishing and other activities in the [MPA] and the Territory will be addressed in future legislation of the Territory."
The creation of the MPA was accompanied by a statement issued by the respondent, stating that it "will include a 'no-take' marine reserve where commercial fishing will be banned".
No fresh legislation or regulations relating to fishing were in the event issued or necessary. Fishing was already controlled. From 1984 it was controlled within the three mile territorial waters and the contiguous zone which extended a further nine miles (to 12 miles from shore) under Proclamation No 8 of 1984 and the Fishery Limits Ordinance 1984. Control was subject to a power (exercised on 21 February 1985) to designate Mauritius for the purpose of enabling fishing traditionally carried on within those limits. Proclamation No 1 of 1991 and the Fisheries (Conservation and Management) Ordinance 1991 ("the 1991 Ordinance") established a Fisheries Conservation and Management Zone extending 200 miles from shore, within which a fee-carrying licence was required for any fishing. The Mauritian government was, however, informed that a limited number of licences would continue to be offered free of charge in view of the traditional fishing interests of Mauritius in the waters surrounding BIOT. Proclamation No 1 of 2003 establishing the EPPZ had no impact on fishing. The 1991 Ordinance was superseded by similarly entitled Ordinances in 1998 and then 2007, under which the licensing system was continued. The majority of fishing from Mauritius was inshore fishing carried out by the Talbot Fishing Company, owned by the Talbot brothers, one of whom was Chagossian. Their vessels were flagged to Mauritius until 2006 or 2007, when for economic reasons they were reflagged to Madagascar and the Comoros. A number of regular crew members on these boats were Chagossians. After the establishing of the MPA, and the accompanying announcement, the achievement of a no-take reserve or zone was in practice accomplished by allowing existing licences to expire and by not issuing any fresh licences to the Talbot vessels or other vessels from outside BIOT for inshore or other fishing in the MPA.
The present challenge has two limbs. One is that the decision to create the MPA had an improper ulterior motive, namely to make resettlement by the Chagossians impracticable. The other is that the consultation preceding the decision was flawed by a failure to disclose the arguable existence on the part of Mauritius of inshore fishing rights (ie within the 12 mile limit from shore). Both challenges are associated with the enforcement of a no-take zone by the refusal since 2009 of fishing licences, since the impracticality of resettlement is said to derive from the loss by Chagossians of occupational skills and possibilities, now and at any future time when resettlement might be contemplated.
At the core of the appellant's case on improper purpose is a document published by The Guardian on 2 December 2010 and by The Telegraph on 4 February 2011, purporting to be a communication or "cable" sent on 15 May 2009 by the United States Embassy in London to departments of the US Federal Government in Washington, to elements in its military command structure and to its
Embassy in Port Louis, Mauritius. The cable is recorded as having been passed to The Telegraph (and was presumably also passed to The Guardian) by Wikileaks. Its text purports to be a record, by a United States political counsellor, evidently a Mr Richard Mills, of conversation at a meeting on 12 May at the Foreign Office, London with Mr Roberts, Ms Joanne Yeadon, the Administrator for BIOT, and Mr Ashley Smith, the Ministry of Defence's Assistant Head of International Policy and Planning. It also purports to refer to some previous meetings and a subsequent conversation involving Ms Yeadon. It starts with a one-paragraph summary and ends with two paragraphs of comment, and contains 12 paragraphs of purported record in between. Reliance is placed on passages in it, which it is submitted show, or could be used to suggest, that Mr Roberts, Commissioner for BIOT, had and disclosed an improper motive in relation to the creation of the MPA. It is common ground that there was in fact a meeting between US officials and Mr Roberts and Ms Yeadon at the Foreign Office on 12 May 2009.
The present proceedings took an unfortunate turn in this respect before the Administrative Court (Richards LJ and Mitting J). Burnton LJ had on 25 July 2012 given permission for Mr Roberts and Ms Yeadon to be cross-examined on the purported cable, acknowledging that it must have been obtained unlawfully and in probability by committing an offence under US law, but saying:
"I do not see how the present claim can be fairly or justly determined without resolving the allegation made by the [appellant], based on the Wikileaks documents, as to what transpired at the meeting of 12 May 2009, and more widely whether at least one of the motives for the creation of the MPA was the desire to prevent resettlement."
Before the Administrative Court, objections were made to the use of the cable in cross-examination of Mr Roberts.
One objection, which did not find favour with the Administrative Court (and which is not live before the Supreme Court), was that the Official Secrets Act and the UK government's policy of "neither confirm nor deny" ("NCND") in relation to documents of this nature meant that Mr Roberts should not be required to answer questions relating to the purported cable. In relation to this objection, the Court ruled that Mr Roberts could be questioned on an assumption that the cable was what it purported to be, and that it would be open to the appellant at the end of the hearing to invite the Court to accept it as an accurate record of the meeting, and to rely on it evidentially. Various questions were put to Mr Roberts and answered on that basis, before Mr Kovats QC for the respondent asked for and obtained further time overnight to consider the position.
The other objection was that use of the cable would be contrary to the principle of inviolability of the US mission's diplomatic archive in breach of articles 24 and 27(2) of the Vienna Convention on Diplomatic Relations 1961, given effect in the United Kingdom by section 2(1) of the Diplomatic Privileges Act 1964. This further objection only occurred to the respondent during the second day. It was therefore only made the subject of submissions on the third day. This led to the first ruling being effectively over-taken, by a further ruling that it would not be open to the appellant to invite the court to treat the cable as genuine or to find that it contained an accurate record of the meeting and that any further cross-examination should proceed on that basis, without any suggestion that the purported cable was genuine. Mr Pleming applied for, but was refused immediate permission to appeal that ruling. In these circumstances, he indicated that he had no further crossexamination of Mr Roberts, and on the next day conducted a cross-examination of Ms Yeadon, limited as...
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