(3) The Supreme Court 2015

In 2008, the House of Lords considered the rationality of the 2004 Order in Council which removed the right of abode from the Chagosssian people. Government lawyers argued that two factors made the Order rational (1) that a 2002 Resettlement Feasibility Study had shown that resettlement of the northern atoll islands was unfeasible because of such considerations as sea-level rise, and increasing storminess which would lead to overtopping of the islands and damage to the infrastructure and the fresh water lens; (2) that the defence considerations of the UK and US made the presence of a settled population undesirable. Accepting these reasons, the House of Lords ruled (by a 3:2 majority) that legislating to prevent resettlement was lawful.

Prior to, throughout the hearing of the case, and since 2008, Chagossian lawyers had pressed the Government to release documents concerning the 2002 Study. On numerous occasions they have been told that all documents had been destroyed. In May 2012 the Government suddenly disclosed a large file of documents. These have now been analysed by both lawyers and experts (see: Review of 2002 Resettlement Study) who have concluded that the study was interfered with by government officials to alter the findings, and also that the Study itself was scientifically flawed.

Since the Government had been under what is called 'the Duty of Candour' during the House of Lords case to reveal all documents which it held, whether favourable or unfavourable, and since the validity of the Study was a central pillar on which that case was decided, Chagossian lawyers were granted legal aid to challenge that decision in the Supreme Court.

R (on the application of Bancoult No 2) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent) Case ID: UKSC 2015/0021

Bancoult 2 Counsel : Edward Fitzgerald QC, Paul Harris SC, Amal Clooney.

Bancoult 3 Counsel : Nigel Pleming QC (not present), Richard Wald, Stephen Kosmin; Professor Robert McCorquodale, Maya Lester (not present), Daniel Piccinin

UK team: Richard Gifford, Richard Dunne, Sam Brown, Johnny White, Clifford Chance LLP

Mauritius team: Robin Mardemootoo, Priscilla Balgobin-Bhoyrul, Pooja Bissoonauthsing, SPEAK Human Rights

US team: Ali Beydoun (American University, Washington).

In January 2015 an application was lodged with the UK Supreme Court to determine whether the judgment of the House of Lords in R (on the application of Bancoult No 2) v Secretary of State for Foreign and Commonwealth Affairs should be set aside on the alleged ground of material non-disclosure by the Secretary of State for Foreign and Commonwealth Affairs and, if so, whether the appellant should be permitted to adduce fresh evidence at the rehearing of the appeal

FACTS

On 16th April 1971, the British Indian Ocean Territory (BIOT) Commissioner enacted the Immigration Ordinance 1971, No 1 of 1971. Section 4 of the Ordinance made it unlawful for someone to be in BIOT without a permit, and the Ordinance also empowered the Commissioner to make an order directing that person's removal from BIOT. In 2000 the appellant obtained a High Court order quashing section 4 of the 1971 Immigration Ordinance. The Government did not appeal but announced that work on Phase 2 of a feasibility study into the resettlement of the former inhabitants would continue. The report of this stage of the study was published in 2002, concluding that the costs of long term inhabitation of the outer islands would be prohibitive and life there precarious. In 2004 Her Majesty by Order in Council made the BIOT Constitution Order and the BIOT Immigration Order which would restore full immigration control as a result of the feasibility study and of the need for effective use of BIOT for defence purposes. The appellant’s challenge to the 2004 Orders was dismissed by a majority of 3 to 2 in the House of Lords in 2008. The appellant has subsequently been provided with documents relating to the 2002 feasibility study which he contends were not disclosed in the proceedings in breach of the respondent’s duty of candour in public law proceedings, and which he alleges would have been highly likely to have affected the outcome of the appeal. The appellant then decided to commission a further expert report on the reliability of the feasibility study. The appellant is applying for an order setting aside the judgment of the House of Lords and, if granted, for permission to rely on fresh evidence at the re-hearing of the appeal.

Judgment appealed [2008] UKHL 61

The hearing took place on 22 June 2015 before Supreme Court Justices: Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke.

SHORT REPORT OF THE HEARING

This was an appeal against the majority (3:2) judgment of the House of Lords in 2008 upholding the legality of the 2004 Constitution and Immigration Orders-in-Council which had removed the Chagossians right of abode.

Bancoult's counsel (Edward Fitzgerald QC) submitted that the SSFCA had failed to disclose vital documents which had been requested in 2005 (these included a draft of a 2002 Feasibility Study and an internal FCO review of that study) and that there had been a duty to disclose these documents at the time. A file containing the documents had been 'discovered' by the Treasury Solicitor in its archive and was then disclosed to Bancoult's lawyers in May 2012 without comment or explanation.

Mr Fitzgerald informed the court that examination of these documents had enabled Mr Bancoult's advisers to show that the conclusions of the 2002 Feasibility Study, namely that resettlement of the islands would be precarious and prohibitively expensive, were fundamentally flawed. Since it was these conclusions that had formed the basis for the SSFCA's decison for making the Orders-in-Council and this had clearly been accepted by the majority in the House of Lords (Lord Hoffmann, Lord Rodger, Lord Carswell) accordingly Mr Bancoult had been deprived of a fair hearing. He asked for the judgment to be set aside.

Counsel for the SSFCA (Steven Kovats QC) informed the court that had it been known that the documents existed in 2005, they would have been disclosed. He was unable to say when the documents, which dated from 2002, had been archived. Mr Kovats disagreed that the 2002 Study was unsound, and claimed that the Study could have been challenged at the time, independent of disclosure of this material. He also argued that the new 2014/15 Feasibility Study would now form the basis for any decisions on resettlement, and that accordingly it would be of little practical value to overturn the earlier decision which was based on the earlier study.

Mr Fitzgerald countered that the 2008 decision was not simply about resettlement, but went to the fundamental question of the right of abode which had thus been removed on a false premise. He also drew the court's attention to the analysis of the disclosed material which explained why a challenge to the 2002 Study had not been possible in the absence of disclosure.

Judgment was given on 29 Jun 2016.

Held, (1) (per Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Mance and Lord Kerr of Tonaghmore JJSC), that, although the Supreme Court would not reopen any appeal because it thought the decision originally reached was wrong, it had inherent jurisdiction to correct any injustice caused by an earlier judgment reached by it or its predecessor, the House of Lords, where, through no fault of a party, he or she had been subjected to an unfair procedure, where significant injustice had probably occurred and where there was no alternative effective remedy; that the jurisdiction to set aside was also available where fresh evidence was discovered after a judgment had been given which was not susceptible of appeal; and also where, as in the present case, a party had failed to disclose material which might constitute important evidence and might well have had a decisive effect on the outcome; and that, having regard to the duty of candour lying on a state party in public law proceedings, the Foreign Secretary should have located and disclosed the Rashid documents and failure to do so, though unintentional and not in bad faith, was reprehensible (post, paras 3, 5–8, 151–152, 154–159,160, 161, 183–186, 190–192).

But (2), refusing the application (Baroness Hale of Richmond DPSC, and Lord Kerr of Tonaghmore JSC dissenting), that on detailed examination of the 2008 decision and the Rashid documents, and, having regard to the general conclusions and the assessment of the vulnerability involved in resettlement which were expressed in the draft report and remained unaltered in the final report, there was no possibility, likelihood or prospect, nor might it well be, that a court would or could have seen in the process of finalising the report or in the associated materials now adduced, anything which made it irrational or otherwise unjustifiable for the Foreign Secretary to have acted as he did in 2004 ; that there was nothing in the fresh evidence and materials to indicate that there was any basis for setting aside the House of Lords’ decision; that the new circumstances created by the 2014–2015 feasibility study would provide a fresh opportunity for the executive to consider the question of resettlement and for any islander to challenge the 2004 Orders in the light of all the information now available; and that, accordingly, the House of Lords’ decision would not be set aside (post, paras 64 –76, 77– 80).

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