A Chagossian double bill: an environmental information contest, and a touch of Wikileaks

20 September 2012 by David Hart KC

The Chagos Refugees Group in Mauritius v. Foreign and Commonwealth Office, First Tier Tribunal, 4 September 2012, read judgment

and Bancoult v. FCO, 25 July 2012, Stanley Burnton LJ, read judgment

The manoevres by which the Chagossians were evicted from their islands in the Indian Ocean, the late 1960s and early 1970s, so to enable the US to operate an air base on Diego Garcia, do not show the UK Foreign Office in its best light. Indeed, after a severe rebuke from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

The first of these new cases is an environmental information appeal concerning the next phase of the story – how the FCO decided that it was not feasible to resettle the islanders in 2002-2004.

This decision was taken in the modern way – backed by a feasibility study prepared by consultants supporting the stance which the FCO ultimately were to take. And this case concerns the islanders’ attempts to get documents lying behind and around the taking of this decision.

From the islanders’ point of view, this decision by the FCO was more of the same. Unfeasible and uneconomic resettlement suited the FCO nicely. Yes, we moved you unlawfully 30 years ago, but you have to stay where you are because we now say it is impractical to move you back. The FCO countered – it is unfeasible, the islands need significant investment in infrastructure and employment (which the Chagossians could not provide from their own resources), and our consultants who carried out the review agree with us.

Hence this appeal about more documentation. The parts of general interest are applications for (a) earlier drafts of the feasibility study in the possession of the consultants and (b) disclosure of a note from the FCO to an FCO Minister (the Hamilton/Amos note.)

The Chagossians failed to get disclosure of the earlier drafts of the feasibility study from the consultants. The consultants had replied to the application by inviting the FCO to give permission for their release, but the FCO said no. In those circumstances, the question arose whether the information which the FCO “holds” includes these documents in the possession of the consultants.”Holds” is defined by reg. 3 of the Environmental Information Regulations as being in the FCO’s possession or “is held by another person on behalf of the authority.” The First Tier Tribunal held the FCO did not hold the drafts. The consultants held the old documents for their own purposes, as most professionals do, to ward off complaints or litigation in years to come – in this case the request for the documents came some 8 years after completion of the work. This conclusion may be technically right, but is unreal. The consultants would have had no hesitation in releasing the documents to the Chagossians had the FCO agreed; but the FCO did not agree, so the non-disclosure of the documents in the consultants files was in accordance with the wishes of the FCO. It is also odd that the consultants did not retain the drafts in part to help the client in years to come, not simply to ward off complaints or litigation by the client. Virtually a green light for government to park embarrassing drafts with consultants in circumstances where contractually government cannot call for them?

The Chagossians did rather better on the high-level FCO internal note. Yes, this qualified potentially as something which the FCO could refuse to disclose, but only if, after balancing public interests, the interest in retention prevailed over the interest in disclosure. As for the latter, the FTT readily accepted that there was a strong public interest in support of transparency of environmental information and the public understanding of foreign policy decisions, which supported disclosure [110]. The real question lay with the former element of the balancing exercise – whether the document needed to be retained to give government a “safe space” to develop policy decisions. The “safe space” concept was well described in OGC v. IC by Stanley Burnton J:

Section 35 of the Act reflects the public interest in confidential information held by a government department relating to the formulation of government policy remaining confidential. The Tribunal accepted, in paragraph 85, that Government needs to operate in a “safe space” “to protect information in the early stages of policy formulation and development”. In doing so, it followed the statement at paragraph 75(iv) of the decision of the Tribunal in the DFES case:

“The timing of a request is of paramount importance to the decision. We fully accept the DFES argument, supported by a wealth of evidence, that disclosure of discussions of policy options, whilst policy is in the process of formulation, is highly unlikely to be in the public interest, unless, for example, it would expose wrongdoing within government. Ministers and officials are entitled to time and space, in some instances to considerable time and space, to hammer out policy by exploring safe and radical options alike, without the threat of lurid headlines depicting that which has been merely broached as agreed policy. We note that many of the most emphatic pronouncements on the need for confidentiality to which we were referred, are predicated on the risk of premature publicity. In this case it was a highly relevant factor in June 2003 but of little, if any, weight in January 2005.”

The FTT was pretty robust about this on the facts. Whatever issues remained outstanding (including some further litigation), the public interest in not disclosing the document was “particularly weak” [121]. The policy of preventing settlement was not live at the date of the request or at the time of the FCO’s internal review of disclosure. The FTT came to this conclusion after seeing and reviewing the document in closed session, and without the appellants being present, in accordance with its usual practice. Secret justice, in one sense, but a pragmatic way of making sure that the FTT could really test what government was saying about a document without disclosing it to the party who wanted disclosure.

Both these parts of the ruling are of considerable interest, and the case may go further.

The Wider Picture

Those interested in the fate of the Chagossians will find in  [79] – [108] of this judgment a fascinating account of the story so far, including reference to two further unfinished pieces of litigation.

The first is in Strasbourg concerning the re-imposition of the ban on settlement in 2004, taken after the feasibility study – ruling awaited on admissibility, let alone merits.

Wikileaks

The second is a domestic judicial review of a Proclamation declaring a Marine Protected Area around the disputed islands. The Chagossians think that this is another wheeze by the FCO to prevent any possibility of re-settlement – they say that there was an improper motive for the making of the MPA. About the only thing the Chagossians could do if they were to be allowed to return is commercial fishing, and, hey presto, the MPA bans commercial fishing. The case is due to come to court later this year, and has already been to the High Court on the way.

This initial judgment allows them to cross-examine FCO officials (including Mr Roberts, the HM Commissioner for the islands who made the Proclamation), not least about a Wikileaked note of a May 2009 meeting which says

“7. …Roberts … asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents …”

It is unusual to have cross-examination in judicial review, but this rather does call for some explanation, given that the FCO denies that this is the motive – as opposed to the nature conservation interests which run deep and true through that department. The FCO’s rather despairing attempt to keep Our Man out of the box was based upon the unlawfulness of the Wikileaks process.

Stanley Burnton LJ was having nothing of this:

16. 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.

17. I do not see how the present claim can be fairly or justly determined without resolving the allegation made by the Claimant, 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. Given the conflicting evidence, in my judgment, in order to resolve the dispute, oral evidence will be necessary, including cross examination of Mr Roberts and Ms Yeadon.

I hear the sounds of advocates’ swords being sharpened for the trial – at last count, due in October 2012.

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