Richard III and Chagossian judicial review claims all dismissed
23 May 2014
The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others  EWHC 1662 (QB) 23 May 2014 – read judgment
The facts of this application for judicial review were set out in David Hart QC’s post on the original permission hearing. To recap briefly, the Plantagenet Alliance, a campaigning organisation representing a group of collateral descendants of Richard III were given the go ahead to seek judicial review of the decision taken by the respondents – the Secretary of State, Leicester Council and Leicester University, regarding his re-interment at Leicester Cathedral without consulting them. More specifically, the claimant’s main case was that there was an obligation, principally on the part of the Ministry of Justice, to revisit or reconsider the licence once the remains had been conclusively identified as those of Richard III.
The Divisional Court (of three judges) unanimously rejected this argument on all grounds. It could not be said in public law terms that the Secretary of State failed to act as a reasonable or rational decision-maker when deciding not to revisit the exhumation licence in the light of the information which he already had. The Court hammered the final nail on the consultation coffin by declaring that there was
no sensible basis for imposing a requirement for a general public consultation, with leaflets, on-line petitions, publicity campaigns, nor for advertisements trying to ascertain who is a relative and then weighing their views against the general public, when there are, in reality, only two possible contenders (Leicester and York)
A short summary of the decision in Bancoult follows.
Bancoult v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 708 – read judgment
David Hart has also posted on the various stages of the litigation arising out of the removal and subsequent exclusion of the native population from the Chagos Archipelago in the British Indian Ocean Territory: see here, here, here and here. This appeal against the rejection of their claims by the Divisional Court was based on three grounds:
The FCO’s 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 Marine Protected Area 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.
The Court of Appeal rejected the appeal on all three grounds. The Master of the Rolls, giving judgment, found that there was no basis for overturning the Divisional Court’s conclusion 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. The consultation argument was roundly dismissed: the Court concluded that in reality, 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.
The Court was also of the view that the Divisional Court had been 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. Nor could there have been any possible breach of article 4(3) of the TEU. They did 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.
A full analysis of both these interesting judgments, covering a wide range of topics from the public duty to consult and common law fairness, will follow from David Hart Q.C. in the next few days.