Chagossians: Wikileaked cable admissible after all
26 May 2014
Bancoult v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 708 – read judgment
Rosalind English (here) has summarised this unsuccessful appeal against the rejection of the Chagossians’ claims by the Divisional Court, and I have posted on this litigation arising out of the removal and subsequent exclusion of the population from the Chagos Archipelago in the British Indian Ocean Territory: see here, here, here and here. The photograph is from 1971 – the last coconut harvest for the Chagossians.
There were three remaining grounds alleged against the Foreign & Commonwealth Office in this judicial review
(i) its decision in favour of a Marine Protected Area 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 MPA 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.
I want to look at (i), the improper purpose grounds, and (iii) the TEU/TFEU grounds, because in both respects the CA took a different course than the Divisional Court, even though the outcome was the same.
Mr Bancoult said that there was an improper motive for the making of the MPA, namely the FCO’s desire to get rid of the Chagossians’ claims for resettlement. The MPA banned commercial fishing, which was all they would have been able to survive on if they returned.
The cornerstone of this case, as the CA described it ,was a Wikileaked cable (here) concerning a May 2009 meeting between US high-ups and the HM Commissioner. The cable was sent by the US Embassy in London to departments of the US Federal Government, the US Embassy in Mauritius, and to the US military. Mr Roberts is recorded to have said
“7. …Roberts … asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents …”
So this was the motive. The cable had come, it appears from an US facility in Iraq via Bradley Manning, and found wide circulation via Wikileaks, the Guardian and the Daily Telegraph.
At an earlier stage of the proceedings, the Claimant had got a judgment from Stanley Burnton LJ s allowing them to cross-examine FCO officials including Mr Roberts on this document. However matters took a different turn in the Divisional Court, as a result of which it declared the document inadmissible in court.
The Vienna Convention on Diplomatic Relations
At the last moment during the hearing before the Divisional Court, the FCO took a new point on the inviolability, and hence the inadmissibility, of the cable. The Divisional Court agreed, but the CA disagreed on both scores.
The argument founds on Article 24 of the 1961 Vienna Convention on Diplomatic Relations, which states that
The archives and documents of the mission shall be inviolable at any time and wherever they may be.
The argument in the CA was evidently more sophisticated than that in the Divisional Court, with specialist international lawyers on both sides.
The initial point taken on behalf of the Chagossians was that the Convention did not apply. The cable was not taken from the US mission within the UK, and hence the UK is not a receiving state and the US is not a sending state within the Convention. The words “wherever they may be” in Article 24 must be restricted to those archives and documents held within the receiving state’s territory.
Hence, the UK cannot violate the diplomatic archives or documents of the US mission in the UK if they are not in its territory or otherwise under its jurisdiction. It was irrelevant whether the documents originated in the US mission in the UK or not.
The CA did not decide the point, but was evidently sympathetic to the Chagossians’ argument:
We see considerable force in the general approach advocated by Professor McCorquodale, but in the light of our decision on the question of admissibility below, we do not find it necessary to express a concluded view about it.
The Divisional Court had said that if the correspondence was inviolable, then it became inadmissible. It relied upon a dictum by Lord Bridge in Shearson Inc v. Maclaine Ltd (No.2)  1 WLR 16 on these provisions of the Convention
The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.
The CA disagreed; even if potentially inviolable, the document was admissible. It decided that Lord Bridge’s dictum was obiter (not necessary for the decision) and should not be followed. It concluded that
To summarise, we would allow the appeal on the admissibility issue on the narrow basis that admitting the cable in evidence in the instant case did not violate the archive and documents of the US mission, since it had already been disclosed to the world by a third party. 
The core of their argument was summarised at 
Inviolability involves the placing of a protective ring around the ambassador, the embassy and its archives and documents which neither the receiving state nor the courts of the receiving state may lawfully penetrate. If, however, a relevant document has found its way into the hands of a third party, even in consequence of a breach of inviolability, it is prima facie admissible in evidence. The concept of inviolability has no relevance where no attempt is being made to exercise compulsion against the embassy. Inviolability, like other diplomatic immunities, is a defence against an attempt to exercise state power and nothing more.
There was no exercise of (UK) state power here; one cannot equate use in court with the exercise of state power.
Official Secrets Act
The FCO had argued that s.6 of the Official Secrets Act 1989 prohibited the court from disallowing NCND (Neither Confirm Nor Deny). s.6 prohibits a “damaging disclosure” of confidential information. The cables contain confidential information. The information bore on international relations, and arguably, on defence. Hence, its disclosure by any person in this claim would be an offence if it was damaging.
The CA (like the Divisional Court) decided that any further disclosure of the document could not be damaging. It had been published in the Guardian and in the Times. The fact that the initial disclosure may have amounted to a criminal offence should not prevent its use in these proceedings.
The upshot on improper purpose
This more robust approach on admissibility did not assist the Chagossians. Though the evidence had been declared inadmissible by the Divisional Court, it had in fact been deployed in cross-examination of the relevant officials. Oddly, for a significant meeting attended by two senior officials, the FCO or BIOT could not find any record of the meeting in their files. There were however documents both before and after this meeting in which matters were put differently. The Divisional Court had been impressed by the evidence of one witness (Ms Yeadon). They and the CA attached importance to the fact that the ultimate decision was taken by David Milliband, as Foreign Secretary, against his officials’ advice.
The Divisional Court had said
There is simply no ground to suspect, let alone to believe or to find proved, that the Foreign Secretary was motivated by the improper purpose for which the claimant contends.
The CA analysed whether, if the Divisional Court had allowed the document to be admissible, the conduct of the hearing before the Divisional Court would have been different. It decided there was no grounds for saying that things would have been approached differently. The cross-examination, as it was, was extensive and searching, and there was a fine line drawn by the Divisional Court between questions which were allowed (is this what was said at the meeting?) and those which were not (have you any explanation for why you are recorded as saying this in this record of the meeting?).
Hence, the CA concluded that even if the cable been admitted into evidence it would not have affected the Divisional Court’s view that the MPA was not actuated by an improper motive. Hence, this ground of appeal was dismissed.
The EU law issue
The Treaty on the Functioning of the European Union (TFEU – Art.198) contains an agreement by member states to associate with other countries in the EU and territories with special relations with the UK – including BIOT. The purpose of the association was to promote the economic and social development and close economic relations. And Article 4(3) Treaty of European Union (TEU) obliges member states to refrain from any measure which could jeopardise the attainment of the EU’s objectives in its treaties.
So the Chagossians said that the decision to create an MPA did the opposite of promoting economic and social development, and hence the UK was in breach of this EU duty.
Relevance of Commission’s rejection of the argument
This complaint had already been before the EU Commission which had rejected it. The FCO’s preliminary argument was that the Court should not reach any view counter to that of the Commission; the Claimant’s remedy should have been to seek annulment of the Commission decision in the EU Courts.
The Divisional Court rejected this point, saying that the domestic courts were unconstrained by the Commission’s view.The caselaw relied upon arose in areas (competition etc) where the Commission had specific functions. Here, the Claimant was alleging that the UK was in breach of its Treaty obligations, and that was a matter for the courts, both domestic and EU.
However, the CA disagreed with the Divisional Court that the domestic courts were not in any way constrained by the Commission’s statement of position, and it might have been inclined to refer the matter to the CJEU, had it disagreed with the Commission’s assessment (which it didn’t).
Could any TFEU breach found a claim?
The Divisional Court went on to decide that an individual could rely on a breach of Article 4(3) if established – such a measure was sufficiently clear, precise and unconditional to be capable of giving rise to directly effective rights on which individuals can rely.
The CA disagreed. Things were not as simple as that:
We have formed the view that it would be surprising if the objectives stated in articles 198 and 199 could properly be regarded as sufficiently clear, precise and unconditional to be regarded as directly effective. This is not because one cannot spell a clear obligation out of the words of article 4(3) read together with articles 198 and 199. It is because articles 198 and 199 are all about the attainment of objectives of association between OCTs and the European Union, not about the detailed ways in which that association and those objectives should be fulfilled. Simply adding to the statement of the objectives the words of article 4(3) requiring Member States to “refrain from any measure which could jeopardise the attainment of the Union’s objectives” does not seem to us to turn what are statements of aspiration into directly effective provisions of EU law. 
My emphasis, because that seems to be the key to the CA’s view – which it summarises at - the articles
provide for objectives which are not hard-edged obligations.
Had it mattered, it would however have referred this point to the CJEU, because the argument was by no means straightforward.
The CA also concluded that potentially any breach fall within the scope of EU law, despite the obligations relating to non-member countries of the EU.
Breach of EU law?
Even had these treaty obligations been actionable in principle, the CA would not have found for Mr Bancoult on the facts. There were no Chagossian fishing activities at the time the MPA was imposed. Any effect, the CA said, upon exiled Chagossians could not even arguably amount to jeopardising the economic and social; development of the BIOT.
To my mind, the significant element in this ruling is the inadmissibility point. The proceedings in the Divisional Court had the air of unreality about them. A note of a meeting existed; the FCO agreed the meeting had taken place, and could not produce its own note. The note was some evidence of an improper motive. The note had not been obtained unlawfully by the FCO or indeed the Chagossians. It was and is all over the papers and internet. It is therefore a strong ruling indeed to declare it inadmissible – in effect to pretend it was not there, even though the Divisional Court listened to a sustained set of questions about it.
The CA, equipped with sustained argument on inviolability and inadmissibility, disagreed. No consolation to the Chagossians, but at least a more pragmatic approach was taken by the CA.
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