Bancoult 3

The Queen (on the application of) Louis Olivier Bancoult v The Secretary of State for Foreign and Commonwealth Affairs [Bancoult(3)]

Background

In August 2010, Olivier Bancoult and the Chagos Refugees Group launched a legal action to challenge the lawfulness of the Chagos Marine Protected Area, declared by the former Foreign Secretary on 1 April 2010. The basis for the claim was that the Public Consultation exercise in 2009/10, preceding the declaration, was flawed because it did not reveal that resettlement of the islands was feasible, and also that there had been a failure to disclose certain information.

On 28 October 2010, Mr Justice Burnett stayed the action and ordered that the hearing take place after the European Court of Human Rights in Strasbourg had given its judgment on a case brought by the Chagos Islanders in September 2004, against the UK for violation of the European Convention on Human Rights. A ruling in that case was made in December 2012 that it was inadmissible.

On 16 March 2012, following an application by Mr Bancoult's lawyers, which was opposed by the Foreign Secretary, Mr Justice Ouseley lifted the stay, ordered that the hearing should be expedited, and gave permission for the grounds of the action to be amended to include 'improper motive', namely that a motive of the MPA was to create a means to prevent Chagossians from resettling in their homeland. This was based on evidence of confidential US cables (wikileaks) reporting a meeting at the embassy in London in May 2009 with two FCO officials. One official, the BIOT Commissioner, had told US Embassy officials, inter alia, that "establishing a marine park would in effect, put paid to resettlement claims of the archipelago's former residents".

On 4 July 2012, Mr Bancoult's lawyers applied to the High Court for permission to cross-examine the two FCO officials named in the US cables. This was strongly opposed by the Foreign Secretary. The application was granted by Lord Justice Burnton who acknowledged that cross-examination in judicial review proceedings was exceptional, but nonetheless, that the claim could not be fairly or justly determined without recourse to cross-examination. (Burnton LJ - Full Judgment).

A hearing date was set for 21-23 November 2012, but on 13 November 2012 an application was made by Mr Bancoult's lawyers for permission to further amend their case. This application, which was again opposed by the Foreign Secretary, was based upon:

(1) documents concerning the 2002 Feasibility Study which the FCO had denied existed since 2005, but which had been ‘found’ by the Treasury Solicitor in May 2012 and released in the course of these proceedings.

(2) further evidence of Chagossian traditional and historic fishing rights in Chagos, discovered in the release in April 2012 of FCO archives, going back to the 1960s.

The application was to add two further grounds - that there had been a failure to disclose that the MPA proposal would adversely affect the Chagossian fishing rights, and that the MPA was in breach of obligations under Article 198 of the EU Treaty which requires the UK to promote the economic and social development of the British Indian Ocean Territory.

The application was heard by Lord Justice Richards and Mr Justice Ouseley. They granted permission for all the amendments to be made (Richards LJ & Ouseley J - Full judgment). The Foreign Secretary's lawyers applied for a postponement to allow more time for preparation in the light of the new evidence. This was granted and the Judicial Review was set down for hearing in April 2013.

High Court Hearing (15-18, 22-24 April 2013)

The case was heard before Lord Justice Richards and Mr Justice Mitting over a period of 7 days in mid April 2013. The trial commenced with submissions concerning the admissibility of the copy of the WikiLeaks Cable and the right to cross-examine the BIOT Commissioner, Mr Colin Roberts, and his Administrator, Ms Joanne Yeadon, on the contents. The judges ruled that the Official Secrets Act 1989 did not preclude its use and that the Government policy of NCND (Neither Confirm Nor Deny) did not permit Mr Roberts and Ms Yeadon to refuse to answer questions. There was evident 'panic' from the FCO lawyers at this point and what can only be described as an ad hoc application by the FCO that the cable should not be admissible because it contravened Articles 24 and 27 of the Vienna Convention on Diplomatic Relations 1961 (VCDR). In the absence of an adjournment, the submissions that then followed were unprepared and incomplete but despite this the judges pressed ahead and ruled the Wikileaks cable inadmissible. As a result Mr Bancoult's counsel was deprived of pursuing the allegation of improper motive.

The judges delivered their full judgment on 11 June 2013 (R (Bancoult) v SS for Foreign & Commonwealth Affairs - 11 June 13.doc) in which they dismissed the claim.

Court of Appeal (31 March - 2 April 2014)

An appeal was lodged with the Court of Appeal on 23 August 2013 and was heard between 31 March - 2 April 2014 before Lord Justice Dyson (Master of the Rolls), Lady Justice Gloster, and Lord Justice Voss. Judgment was handed down on 23 May 2014 dismissing the appeal (R(Bancoult) v SS for Foreign & Commonwealth Affairs - 25 May 2014).

Supreme Court Appeal - 28 June 2017

An application for leave to appeal the Court of Appeal judgment was lodged with the UK Supreme Court in February 2015. The application was heard on 22 June 2015 on the papers (ie without both sides appearing in court). Permission to appeal was granted on 28 June 2016.

The full hearing was held on 28 and 29 June 2017 before Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Sumption, and Lord Reed. Judgment was handed down on 8 February 2018.

• The Supreme Court unanimously held that the Wikileaks cable should have been admitted into evidence before the Administrative Court. Lord Mance and Lord Sumption (with whom Lord Neuberger, Lord Kerr, Lord Clarke, and Lord Reed agreed) and Lady Hale wrote concurring judgments on the issue of the admissibility of the cable.

• A majority of the Court led by Lord Mance with whom Lord Neuberger, Lord Clarke, Lord Sumption and Lord Reed agreed, dismissed the appeal on limb (i) [the Respondent’s decision was motivated by the improper ulterior motive of making future resettlement by the Chagossians impracticable] ruling that the exclusion of the cable by the Administrative Court could have had no material effect on the outcome regarding improper motive. Lord Kerr and Lady Hale dissented on limb (i) of the appeal

• The Court unanimously dismissed the appeal on limb (ii) [the consultation which preceded the decision was flawed by a failure to disclose the arguable existence, on the part of Mauritius, of inshore fishing rights (i.e. within a 12-mile limit from the Mauritian shore)].