In R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs  UKSC 35, the Supreme Court last week dismissed the attempt to set aside the House of Lord’s controversial 2008 decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  UKHL 61. The challenge was grounded in the disclosure of documents in the parallel proceedings of Bancoult No 3 relating to the reliability of a feasibility study into the long term viability of settlement in Chagos Islands.
The Chagos Saga
Those who have followed David Hart and Rosalind English’s posts on the long running saga of the Chagossians will be familiar with the extremely unedifying tale of the British Government’s removal and resettlement between 1968 and 1973 of the Chagossians from their homes in the British Indian Ocean Territories in order to enable the construction of the key US base of Diego Garcia. In 2000 the Divisional Court upheld a challenge to the original statutory ordinance prohibiting the Chagossians from entering or being resident in the BIOT on the grounds that the Commissioner for the BIOT’s power to legislate for the peace, order and good government of the BIOT did not include a power to expel its inhabitants. However, following the completion of a feasibility study into the resettlement of the Chagossians a new statutory order was enacted in 2004 again prohibiting them from living in the islands. The 2008 decision rejected a challenge to the rationality, legality and procedural fairness of that order.
The present claim sought to overturn the 2008 decision on the basis that (1) the Foreign Secretary failed in breach of his duty of candour in public law proceedings to disclose relevant documents containing documents that would have been likely to affect the factual basis on which the House of Lords made its decision; and (2) there was new material that undermined that factual basis. Specifically, further documents had been disclosed that cast significant doubt on the conclusions of the feasibility study that any long term resettlement on the Chagos Islands was infeasible except at prohibitive cost. Accordingly, the Claimant would have been in a position to challenge the reliability of those conclusions, it was highly likely that the challenged would have succeeded, and that if the 2008 judgment was set aside, a new hearing would reach a different conclusion.
Lord Mance gave the leading judgment for the majority. He began by addressing the alleged breach of duty of candour, and emphasised that a party’s failure to disclose relevant documentary information was clearly capable of subjecting another party to an unfair procedure. However, when considering whether to re-open an appeal it had to be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy. Similarly, where fresh evidence has been discovered after a judgment that could not be appealed, then there had to be a powerful probability that an erroneous result was reached in the earlier proceedings.
Lord Mance analysed the 2008 judgment and set out citations from it that showed that the conclusions of the feasibility study had been given significant (perhaps even conclusive) weight by the majority. He summarised the issue as to whether it was probable or likely (he did not need to decide which it should be) that the material now available would have led the House of Lords to conclude that it was irrational and unjustified for the Foreign Secretary to accept and act on the feasibility study’s conclusions.
Lord Mance then turned to the feasibility study and to the documents disclosed that shed additional light on the degree to which the content of its ultimate conclusions had been influenced by pressure from the government and/or had not be based on sound science. Lord Mance noted that the critical conclusions had remained unchanged from the draft written by the consultancy who authored the report and the final version produced following comment and input from the FCO. Accordingly he held that there was no probability, likelihood or even possibility that the court would have seen anything in the new material that would or should have caused the Foreign Sectary to doubt the report’s conclusions, or made it irrational or otherwise unjustifiable to act on them in June 2004. The issue was whether the Foreign Secretary was justified in acting as he did on the material that was or should have been available to him, not whether his decision could be justified on a revisiting of the whole issue of resettlement in the light of any other material which either party could adduce in 2016.
Lord Mance went on to hold that even if the threshold test for setting aside the House of Lords’ decision had been met, it would have been decisive that a new 2015 feasibility study has found that there is scope for settled resettlement. According “in practical terms., the background has shifted, and logically the constitutional ban needs to be revisited… it is open to any Chagossian now or in the future to challenge the future to abrogate the 2004 orders in light of all the information now available.
Lord Kerr’s powerful dissent (with which Baroness Hale agreed) is worth reading. He began by stating that if the decision on the feasibility of resettlement was reached on information that was plainly wrong, or was open to serious challenge, and it was at least distinctly possible that a different decision would have been formed if the full picture had been known, then the rationality of the 2004 Order should be re-examined.
Lord Kerr identified that in light of the Divisional Court holding that the government was no legal obligation to fund a resettlement, the feasibility study’s conclusions had to be capable of sustaining the Foreign Secretary’s decision that the risk of the government coming under pressure to meet the cost of, and to permit the resettlement of the Chagossians was such that they had to refused the right to return to their homes. That was the decision whose rationality was being challenged. Accordingly he held that “any reservations about the veracity of the claims made in the report assume an unmistakable significance. Unless the report was compelling and irrefutable in its conclusions, its capacity to act as the sole justification for the denial of such an important right was, at least, suspect.” Lord Kerr also analysed the study, and the light shed by the new documents on how it had reached its final form. However, unlike Lord Mance, he concluded that there were questions raised about the validity of its conclusions. Therefore it was at least questionable that the majority of the House of Lords would have placed such heavy reliance on its conclusions, and a distinct possibility that there would have been different outcome. The appeal should therefore be re-opened.
The most trenchant part of Lord Kerr’s dissent is his categorical (and in my opinion compelling) argument that there was no possible juridical basis to deny a remedy solely because the Chagossians might be allowed to resettle in entirely different circumstances and for completely different reasons as underlay the original decision.
It should be noted that the Supreme Court has given permission to appeal in Bancoult No 3 – in a challenge surrounding whether the Marine Protection Zone created around the Chagos Islands was created for the improper purpose of ensuring that the Chagossians would not be able to return. One day the Chagossians may yet be vindicated in their search for justice.
On another note – for those interested in the duty of candour see also a recent judgment of Sir Kenneth Parker in R (Biffa Waste Management Services Ltd) v the Commissioners for Her Majesty’s Revenue and Customs  EWHC 1444 (Admin).