R (on the application of Bancoult (No 2)) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)

Trinity Term

[2016] UKSC 35

On appeal from: [2008] UKHL 61

R (on the application of Bancoult (No 2)) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)

before

Lord Neuberger, President

JUDGMENT GIVEN ON

29 June 2016

Heard on 22 June 2015

Appellant

Respondent

Paul Harris SC	Kieron Beal QC
Amal Clooney	Julian Blake

Chance LLP)

Government Legal

Department)

LORD MANCE: (with whom Lord Neuberger and Lord Clarke agree)

Introduction

1. In 2008 Lord Bingham of Cornhill and I were the dissenting minority when the majority in R (Bancoult) v Secretary of State for Foreign and Commonwealth

Affairs (No 2) [2008] UKHL 61, [2009] AC 453 (“Bancoult No 2”) allowed the Secretary of State’s appeal and upheld the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004 (“the 2004 Constitution Order”). Section

9 provides that, since the British Indian Ocean Territory (“BIOT”) was set aside for

defence purposes, no person shall have any right of abode there (section 9(1)) and further that no person shall be entitled to enter or be present there except as authorised by the Order itself or any other law.

2. I have not changed my opinion as to what would have been the appropriate outcome of the appeal to the House of Lords. But that is not the issue before us. The issue before us is whether the majority decision should be set aside, not on the grounds that it was wrong in law, but on grounds that the Secretary of State failed, in breach of his duty of candour in public law proceedings, to disclose relevant documents containing information which it is said would have been likely to have affected the factual basis on which the House proceeded. That was that the Secretary of State, when enacting section 9, could justifiably rely on the stage 2B report

prepared by Posford Haskoning Ltd (“Posford”) for its conclusion that any long-

term resettlement on the outlying Chagos Islands was infeasible, other than at prohibitive cost. In addressing the issue now before us, we are bound by the legal reasoning which led the majority to its conclusion - indeed, strictly bound without possibility of recourse to the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, since this is an application in the same proceedings.

1. The relevant documents are conveniently described as “the Rashid

documents”, after Ms Rashid, the deponent from the Treasury Solicitor’s

Department who by witness statement dated 1 May 2012 first produced them. She did this without commentary in Administrative Court proceedings in Bancoult (No

3), regarding the declaration of a Maritime Protected Zone (“MPA”) in the high seas

around BIOT. Ms Rashid made clear that she had no personal knowledge of events leading to the earlier failure to disclose. That the failure to disclose the Rashid documents in the Bancoult No 2 proceedings was culpable is not, and could not be, disputed. On the other hand, it is accepted that it was not intentional and did not involve any bad faith. I shall address the circumstances, the contents of the documents and their significance in due course.

4. In addition to relying on the alleged breach of candour, Mr Bancoult also seeks to adduce four heads of new material, put forward as constituting evidence unavailable at the time of the House of Lords decision. All are said to go to the reliability of the stage 2B report, to undermine or invalidate the basis on which the House proceeded and to constitute an independent justification for re-opening the decision. I will revert to this ground of application later in this judgment, and focus in the meanwhile on the alleged breach of candour.

The jurisdiction to set aside in cases of unfair procedure and fresh evidence

5. Unfair procedure: There is no doubt that the Supreme Court has inherent jurisdiction to correct any injustice caused by an earlier judgment of itself or its

predecessor, the House of Lords, though it is also clear that it “will not re-open any

appeal save in circumstances where, through no fault of a party, he or she has been

subjected to an unfair procedure” and that “there can be no question of that decision

being varied or rescinded by a later order made in the same case just because it is

thought that the first order is wrong”: R v Bow Street Metropolitan Stipendiary

Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, per Lord Browne-

Wilkinson. One party’s failure to disclose relevant documentary information is

clearly capable of subjecting the other party to an unfair procedure.

6. However, a decision to re-open an appeal also has important evaluative as well as discretionary aspects. The present applicant was, in its application to set aside (paras 109-130), content to express the evaluative aspect in terms used in an analogous context in the Court of Appeal in Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 and followed by the Privy Council in Bain v The Queen [2009] UKPC 4. As the Privy Council said in the latter case at para 6, quoting Lord Woolf CJ at p 547 in the former case:

“What will be of the greatest importance is that it should be

clearly established that a significant injustice has probably

occurred and that there is no alternative effective remedy.”

7. Fresh evidence: That the jurisdiction to set aside also extends to situations where fresh evidence is discovered after a judgment has been rendered which is not susceptible of appeal is also recognised in Court of Appeal authority: In re U [2005] EWCA Civ 52; [2005] 1 WLR 2398 Feakins v Department of Environment, Food and Rural Affairs [2006] EWCA Civ 699. The latter was a case where it was discovered that a DEFRA official had provided materially incorrect information to the court in a witness statement. In each case, however, it was emphasised that it was not sufficient simply to rely on the principles in Ladd v Marshall [1954] 1 WLR 1489, which apply when fresh evidence is sought to be adduced for or on an appeal. Rather, as it was put in In re U, para 22,

“… it must at least be shown, not merely that the fresh evidence

demonstrates a real possibility that an erroneous result was

arrived at in the earlier proceedings …, but that there exists a

powerful probability that such a result has in fact been

perpetrated.”

This statement was quoted from and accepted in the application to set aside, para

121. Further, as to the discretionary aspect, the court noted in Feakins:

“The court [in In re U] held that, although that was a necessary

condition, it was not sufficient; the court would have also to consider the extent to which the complaining party was author of his own misfortune and that there was no alternative

remedy.”

8. In oral submissions, Mr Edward Fitzgerald QC did not directly challenge the above principles as stated in In re U, stating in his reply that there was nothing between the parties on jurisdiction. However, in his written speaking note, directed

specifically to jurisdiction in response to the court’s invitation to focus on this, the

matter was put differently, and as follows (para 2.4(iv)):

“As to whether there would now be a different outcome, it is

submitted that it is only necessary to show at this threshold stage that there may well be a different outcome on a

reconsideration.”

See also, eg the submission (para 8.8) that Dr Shepherd “may well have had an ‘axe to grind’”. For my part, particularly where, as here, a party has failed to disclose the

documents which it is now submitted constituted important evidence, I prefer to

leave open whether a test of “probability” or, in the context of fresh evidence, “powerful probability” is too inflexible to cater for all possibilities. The

egregiousness of a procedural breach and/or the difficulty of assessing the consequences of such a breach or of the significance of fresh evidence might, it seems to me, in some situations militate in favour of a slightly lower test, perhaps

even as low as (though I do not decide this) whether the breach “may well have had”

a decisive effect of the outcome of the previous decision. I shall consider the present application in that light also, although I do not in the event consider that the outcome of this application depends at any point on the test applied.

The course of events leading to the present application

9. The regrettable facts lying behind these and other proceedings such as R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1) and (No 3) were outlined by Lord Hoffmann in paras 1-30 of his judgment in Bancoult No 2, in terms which both Lord Bingham and I accepted with only a few (presently immaterial) qualifications: see paras 68 and 137-139. BIOT consists of the Chagos Islands, the largest being Diego Garcia. In 1966 the United Kingdom agreed in principle to make BIOT available to the United States for at least 50 years for defence purposes, and with effect from July 1971 the United States took over Diego Garcia as a base. At the same time, by the Immigration Ordinance 1971, the Commissioner of BIOT prohibited any person from entering or being in BIOT without a permit issued by an immigration officer.

10. Mr Bancoult represents Chagossians (or Ilois), indigenous inhabitants of BIOT, whose removal and resettlement the United Kingdom procured between 1968

and 1973 by various non-forceful means with “a callous disregard of their interests”

(Lord Hoffmann, para 10). Compensation, initially in the 1970s of £650,000 and then in 1982 of a further £4m in a trust fund set up under a Mauritian statute, was paid and accepted in satisfaction of all claims by most (some 1,340) Chagossians, though a few refused to sign. A challenge to this settlement was later made but struck out as an abuse of process by Ouseley J in Chagos Islanders v Attorney General [2003] EWHC 2222 (QB), leave to appeal being refused by the Court of Appeal

[2004] EWCA Civ 997. Ouseley J’s judgment made clear that there was no further

economic obligation on the United Kingdom to fund resettlement in BIOT.

11. A challenge to the Immigration Ordinance 1971 was on the other hand successful. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2001] QB 1067, the Divisional Court decided that the Commissioner

for BIOT’s power to legislate for the “peace, order and good government” of BIOT

did not include a power to expel its inhabitants. The then Foreign Secretary, Mr Robin Cook, stated publicly that he accepted this decision, and revoked the 1971 Ordinance by the Immigration Ordinance 2000. This confined the restriction on entry or presence to persons not British Dependent Territories citizens by virtue of their connection with BIOT. Mr Cook also announced that a recently completed feasibility study into the prospects of resettling the Ilois would now proceed to a second stage. This was originally intended to involve two phases, the first (Phase 2A) relating to hydrological monitoring, the second (Phase 2B) to a more general examination, prior to a cost-benefit analysis (Phase 3). The second stage reports were undertaken by Posford as project managers.

12.       In the event, the first two phases were amalgamated, leading to a report

entitled stage 2B published in July 2002. Its “General Conclusions”, para 1.11,

stated:

“To conclude, whilst it may be feasible to resettle the islands in

the short-term, the costs of maintaining long-term inhabitation are likely to be prohibitive. Even in the short-term, natural events such as periodic flooding from storms and seismic activity are likely to make life difficult for a resettled

population.”

13. The Secretary of State in this light decided not to proceed with Phase 3, terminated consideration of re-settlement and on 10 June 2004 introduced a new prohibition on residence in BIOT by section 9 of the 2004 Constitution Order, to the effect set out in para 1 above. A new Immigration Order 2004 was at the same time also enacted, but needs no separate treatment here. The present proceedings were begun for judicial review to quash section 9 of the Constitution Order. They succeeded before the Divisional Court and Court of Appeal, but failed by a majority of three to two before the House of Lords.

14. All members of the House accepted that the 2004 Constitution Order was susceptible to judicial review on ordinary principles of legality, rationality and procedural impropriety. But the majority (Lord Hoffmann, Lord Rodger of Earlsferry and Lord Carswell) held: that, although the Chagossians had had important common law rights of abode, they were not so fundamental that they could

not be removed by section 9; that the Secretary of State’s decision to remove such

rights, to reimpose immigration control and to prevent resettlement was in the circumstances neither unreasonable nor an abuse of power; and that the previous

Foreign Secretary’s statements in 2000 (para 11 above) did not amount to a clear

and unambiguous promise that the Chagossians would be permitted to return and settle permanently creating any legitimate expectation on which they could now rely. Lord Bingham and I took the opposite view on these points, and would have

dismissed the Secretary of State’s appeal.

15. During the proceedings no challenge was made or suggested to the stage 2B report or its findings. The Secretary of State relied on its findings in para 106 of his skeleton argument before the Administrative Court dated 25 November 2004, stating:

“… in any event, the defendant submits that it cannot

conceivably be said to be irrational for steps to be taken to ensure that the BlOT is not resettled in circumstances where no viable long-term resettlement can be supported; where the costs of resettlement would be extensive, prohibitively expensive

and potentially open-ended; and where the UK’s defence

interests and treaty obligations strongly militate against

permitting resettlement of the archipelago.”

Sir Sydney Kentridge QC expressly disavowed any challenge to the report’s conclusions when opening the Chagossian’s case before the Divisional Court on 6

December 2005; and amended particulars put before that Court on 13 December
2005 on the issue of irrationality likewise made no such challenge.

16. Before the House of Lords the stage 2B report and its findings were equally uncontentious. All members of the House proceeded on that basis. The argument on behalf of the Chagossians was throughout that the findings did not justify the making of the 2004 Constitution Order. Lord Bingham and I accepted that argument, but the majority rejected it and, to differing extents, deployed the relevant findings in their reasoning. Lord Hoffmann at para 53 said this:

“53. … I think it is very important that in deciding whether a measure affects fundamental rights or has profoundly intrusive effects, one should consider what those rights and effects actually are. If we were in 1968 and concerned with a proposal to remove the Chagossians from their islands with little or no provision for their future, that would indeed be a profoundly intrusive measure affecting their fundamental rights. But that was many years ago, the deed has been done, the wrong confessed, compensation agreed and paid. The way of life the Chagossians led has been irreparably destroyed. The

practicalities of today are that they would be unable to exercise any right to live in the outer islands without financial support which the British government is unwilling to provide and which does not appear to be forthcoming from any other source.

During the four years that the Immigration Ordinance 2000 was in force, nothing happened. No one went to live on the islands. Thus their right of abode is, as I said earlier, purely symbolic. If it is exercised by setting up some camp on the islands, that will be a symbol, a gesture, aimed at putting pressure on the government. The whole of this litigation is, as I said in R v Jones (Margaret) [2007] 1 AC 136, 177, the continuation of protest by other means. No one denies the importance of the right to protest, but when one considers the rights in issue in this case, which have to be weighed in the balance against the defence and diplomatic interests of the state, it should be seen for what it is, as a right to protest in a particular way and not as

a right to the security of one’s home or to live in one’s

homeland. It is of course true that a person does not lose a right because it becomes difficult to exercise or because he will gain no real advantage by doing so. But when a legislative body is considering a change in the law which will deprive him of that right, it cannot be irrational or unfair to consider the practical

consequences of doing so. Indeed, it would be irrational not to.”

(italics added for emphasis)

17.       Lord Rodger at paras 110-114 said:

“110. Section 9 of the Constitution Order removes any right of abode on the Chagos Archipelago which the claimant or anyone else may have had. It is a stark provision. But the

Secretary of State’s decision to have it enacted and the effect

of that decision have to be judged against the circumstances at the time it was taken. No-one was then actually living on the outer islands and, even though the islanders had enjoyed a right to return since November 2000, none of them had done so.

They were instead ‘seeking support from the UK and US

governments to financially assist their return or alternatively to

provide compensation’: Feasibility Study Phase 2B, Executive

Summary, para 1.1. More importantly, there was no prospect

that anyone would be able to live on the outer islands, except on a subsistence basis, in the foreseeable future: Feasibility Study Phase 2B, Executive Summary, para 1.11. Sir Sydney did

not dispute this, but contended that it was irrelevant. In other words, the position was just the same as if people had actually been living on the islands when the Orders were made. I am unable to accept that submission. The impact of the legislation on the people concerned would be very different in the two

situations. In my view, in reviewing the Secretary of State’s

decision to remove the right of abode, it is relevant that there was actually no prospect of the Chagossians being able to live on the outer islands in the foreseeable future. The government accepts, of course, that they can apply for permits to visit the islands and that an unreasonable refusal could be judicially reviewed. Such visits have taken place in the past.

111. Against that background, can it be said that no reasonable Secretary of State could have decided to have section 9 enacted?

112. On 15 June 2004 a junior minister, Mr Rammell, made a written statement to Parliament. His good faith has not been impugned by the respondent. The statement shows that, in deciding to legislate to prevent people resettling on the outer islands, the government took into account the fact that the economic conditions and infrastructure which had once supported the way of life of the Chagossians had ceased to exist. Something new would have to be devised. The advice

was that the cost of providing the necessary support for permanent resettlement was likely to be prohibitive and that natural events were likely to make life difficult for any resettled population. Human interference within the atolls was likely to exacerbate stress on the marine and terrestrial environment and would accelerate the effects of global warming. Flooding would be likely to become more frequent and would threaten the infrastructure and the freshwater aquifers and agricultural production. Severe events might even threaten life. The minister recorded that, for these reasons, the government had

decided to legislate to prevent resettlement. Although he made no mention of it, the decision to legislate and to introduce immigration controls at that particular time appears to have been prompted by the prospect of protesters attempting to land on the islands. In addition, Mr Rammell said that restoration of full immigration control over the entire territory was necessary to ensure and maintain the availability and effective use of the territory for defence purposes. He referred to recent developments in the international security climate since November 2000 when such controls had been removed.

113. The ministerial statement indicates that a decision to legislate was taken on the basis of the experts’ (second) report

on the difficulties and dangers of resettling the islands, these difficulties and dangers being dangers and difficulties which would affect the Chagossians themselves, if they were to try to live on the outer islands. Given the terms of that report alone, it could not, in my view, be said that no reasonable government would have decided to legislate to prevent resettlement. In particular, the advice that the cost of any permanent

resettlement would be “prohibitive” was an entirely legitimate

factor for the government, which is responsible for the way that

tax revenues are spent, to take into account. In addition, the government had regard to defence considerations, the views of its close ally, the United States, and the changed security situation after 9/11. These additional factors reinforce the view that the decision to legislate was neither unreasonable nor irrational.

114. Of course, the decision was adverse to the claim of the Chagossians to return to settle on the outer islands. But that does not mean that their interests had been ignored: a realistic assessment of the long-term position of any potential Chagossian settlers on the outer islands was central to the expert report on which the government relied. In addition, the government considered the overall interests of the United

Kingdom. It was entitled to do so. … In the absence of any

relevant legal criteria, judges are not well placed to second-

guess the balance struck by ministers on such a matter.” (italics

added)

1. Lord Carswell said (para 120) that he agreed “with very little qualification”

with the reasoning of Lord Hoffmann and Lord Rodger, but his specific reasoning

focused on the lack of long term feasibility. He said that the Chagossians’ expressed

wish to return to their homeland was:

“put on an abstract basis by their counsel, for it is quite clear

that for them to resettle in the islands is wholly impracticable without very substantial and disproportionate expenditure.

They are not in a position to meet such a cost. It could only be shouldered by the British government, which has made it clear that it is willing to permit and fund from time to time short visits to the outlying islands, but not to support a large-scale permanent resettlement. One might ask the question why this campaign is being pursued, for the Chagossians already can pay visits and there is no realistic prospect of resettlement unless it is funded for them at huge expense. I do not find it necessary to seek an answer to that question, but the practical difficulties in the way of resettlement are in my view relevant

to the rationality of the government’s decision to make the
2004 Orders in Council.” (italics added)

19. On the present application, Mr Bancoult submits that, had the Rashid documents been available prior to the hearing before the Divisional Court, the Court of Appeal or the House of Lords, they would have led to a challenge being mounted to stage 2B report, the conclusions drawn in that report would have been discredited, and the majority reasoning in the above extracts would have been impossible. This brings me to a consideration of the Rashid documents.

The Rashid documents:

(a) Circumstances of late disclosure

20. By letter dated 5 December 2005 disclosure had been made on behalf of the Secretary of State to Sheridans, solicitors acting for Mr Bancoult, of a copy letter dated 23 May 2002 sent by Mr Charles Hamilton of BIOT to Ms Alex Holland, the

“senior environmental scientist” who was Posford’s project manager. This raised

questions and made comments on a draft stage 2B report. Between November 2005 and February 2006, requests were made on behalf of Mr Bancoult for disclosure of this draft report as well as any draft of the earlier feasibility study. The Treasury Solicitor, while replying that these requests did not go to any issue in Bancoult No 2, made searches, but was in the event only able to locate a draft feasibility study which was disclosed in early December 2005.

1. By letter dated 13 January 2006 (E1472) Mr Bancoult’s solicitors, Sheridans,

questioned, in relation to the stage 2B report, whether there had been “official input

into the work of consultants which undermines its authority”. The Treasury Solicitor

responded that this was an “extremely serious” allegation and needed to be

particularised. It was not particularised and, as stated, no challenge to the stage 2B report was then made. A further allegation that, in the absence of the draft stage 2B report, the General Conclusions must be assumed not to be the unguided advice of independent consultants was made by note dated 13 March 2009. On 7 October 2010 an email dated 29 May 2002 sent by Mr Charles Hamilton to Ms Holland advising that the final draft omit development scenarios (advice not in fact followed: para 40 below) was disclosed on behalf of the Secretary of State in the context of the issues arising in Bancoult (No 3). By letter dated 21 December 2010 Clifford Chance (now acting for Mr Bancoult as a result of the move to that firm of Mr Gifford the

individual partner handling Mr Bancoult’s affairs) wrote asserting that “the total absence of any records” of meetings in May-June 2000 and June/July 2002

regarding what became respectively the feasibility study and stage 2B report “casts

grave doubts on the ability of FCO to explain its conduct or to justify what appears to be serious and concerted influence practised to achieve a conclusion which

reflected the views of officials and contradicted the unguided advice of consultants.”

Clifford Chance referred in this connection to the disclosure of the email dated 29 May 2002 and to statements made to them in a letter dated 11 February 2010 by Mr Stephen Akester, one of the Phase 2B consultants, that resettlement was always feasible within reasonable cost parameters, but that he was not in the committee that drafted the stage 2B report.

22.       On 10 October 2011 Clifford Chance wrote in the light of the above urging a

yet further search for documents pursuant to the Secretary of State’s duty of candour

in the context of both Bancoult (No 2) and Bancoult (No 3).

23. The further search then made led to the Treasury Solicitor discovering previously undisclosed documents, including the draft stage 2B report, in circumstances described in its letter dated 15 March 2012 to Clifford Chance as follows:

“In the context of the aforementioned matters, TSol recalled

archived files held by a third party document storage company that were generated during the conduct of the Bancoult (No 2) litigation. In the course of reviewing these files, it has become apparent that they contain certain documents concerned with the drafting of the Phase 2B report which originate from the FCO but are no longer retained by the FCO on its own files as

a result of its document retention.”

It was subsequently further explained that

“there was clearly a point, occurring during 2005, when the

FCO no longer held the draft Phase 2B Executive Summary on

its files, as it was removed according to the FCO’s document

retention policies, and yet TSol retained a copy on its Bancoult

(No 2) files.”

The documents so discovered, including the draft stage 2B report, were then

disclosed by Ms Rashid’s witness statement dated 1 May 2012.

24. The Secretary of State accepts that, in the light of the requests made and despite the absence of any challenge to the stage 2B report, the Rashid documents should have been capable of location and should have been located and disclosed pursuant to his general duty of candour in public law proceedings. The failures in this regard were and are highly regrettable. But there is, as stated previously, no basis for attributing them to any deliberate misconduct. The question is what significance would or might have attached to, and what consequences would or might have flowed from, their disclosure.

(b)	Alleged significance of the Rashid documents

1. In Mr Bancoult’s written case, it is alleged that the Rashid documents would

have been significant under four heads:

(i) As showing that, instead of being independent as understood, the final report was subject to extensive alterations to reflect FCO views. Head (iv)

below concerns one particular difference alleged to be “centrally important”

to the stage 2B report’s conclusions.

(ii)       As revealing that Dr Sheppard, the FCO’s scientific adviser, had

criticised the draft stage 2B report in an email sent to Charles Hamilton on 14 May 2002 and had, after the issue of the final report, also endorsed criticisms of it made by a resettlement anthropologist, Jonathan Jenness, instructed on behalf of Mr Bancoult.

(iii)      As revealing evidence of lack of objectivity in Dr Sheppard’s input

into the stage 2B report before it was finalised. More specifically, it is said that the documents show that Dr Sheppard was the only reviewer of the whole draft, that heavy reliance on only one specialist made the report unsafe and that, as a coral reef specialist well-known to be strongly dedicated to their

conservation, there is “concern” whether he could reasonably be regarded as

an objective assessor on the issue of reintroducing human settlement.

(iv)      As showing alterations between the draft and final version of the stage

2B report in a manner which conflates and distorts the consultants’ original

finding in relation to storms creating difficulties for resettlement.

26.       Taken together, it is submitted that it is certain that, had the Rashid

documents been disclosed, they would have caused the applicant’s representatives

to challenge the reliability of the feasibility study, that it is highly likely that the

challenge would have succeeded and that, if the House of Lords’ judgment is set

aside, a new hearing will reach a different conclusion.

27. The focus of the first and fourth heads of alleged significance of the Rashid documents is alterations alleged to have been made and to have distorted the final stage 2B report. The focus of the second and third heads is Dr Sheppard. The second relies on his criticisms of the draft. The third suggests that his input lacked objectivity and was unreliable.

(c) The first and fourth heads

28. These two heads stand or fall together. They are reproduced in the speaking note which Mr Edward Fitzgerald QC used at the hearing before the Supreme Court.

That speaking note refers to “extensive alterations to the original draft in the final

draft”, which it suggests are likely to have “reflected FCO views and input” and to have been “unsupported by evidence in the body of the study”. According to Clifford

Chance’s letter dated 10 October 2011, there were 94 revisions over a period when

the document was open for editing for a total of seven and a half hours. The speaking

note says that “some” of the key changes are summarised in a summary note dated

17 February 2015 prepared by counsel for Mr Bancoult. This was based in turn on

a lengthy Analysis Note prepared by Mr Bancoult’s solicitor, Mr Gifford, in

conjunction with a coral scientist, Mr Dunne. In addition to the change relating to storms and re-settlement identified in head (iv), the summary note identifies three

further “key amendments”.

29. That alterations would or might be made in the final report following comments by the FCO and BIOT on the draft report cannot come as any surprise to those representing Mr Bancoult, or be regarded as in any way unnatural. The stage 2B report was prepared by Posford under a contract expressed to be between the Commissioner for BIOT and Posford Duvivier Environment dated 10 December 2001. The Terms of Reference set out in section 4 of the contract provided by clause 6 for monthly reporting and further by clause 6.3 that

“A draft final report, containing an account of the work done,

conclusions and recommendations will be submitted within four months of commencing the assignment. Within two weeks of the receipt of comments on the draft from recipients,

consultants will submit a Final Report.”

30. In this respect clause 6.3 echoed the provisions of clause 17 of the terms of reference for the earlier contract dated 13 April 2000 made with David Crapper for the feasibility study, which, when made was according to its terms intended also to cover stage 2. Clause 17 provided:

“17. A draft report will be produced for the government of the BIOT. On receiving comments on the draft report from the government of the BIOT, the consultant will finalise the report and provide the text in both paper and electronic form to the

government of the BlOT.”

Sheridans received a copy of this earlier contract, and in a letter dated 28 November 2005 noted and set out clause 17 specifically, not by way of objection, but in order to ask for the draft report and for any comments on it made by the FCO and the government of BIOT. Whether any of the actual alterations made can be described

as “extensive” or “as reflecting FCO views”, or be seen to have unbalanced the

report as a result, are matters to which I will come.

31. Before doing so, it is convenient to examine events in more detail to identify any overt trace of undue executive influence over the final report. After entry into force of the contract dated 10 December 2001, Posford set about preparing for field studies in BIOT, in particular on the two outlying islands of Ile de Coin and Ile Boddam, as contemplated by its terms. These took place in February 2002, after which Posford submitted a second progress report dated 1 March 2002. This was tabled and discussed at a meeting with the FCO and BIOT on 6 March 2002. There is no suggestion or likelihood that the draft executive summary was available to

anyone at this stage, and Ms Holland’s letter dated 12 April and Mr Hamilton’s

email dated 15 April 2002 (E2404) indicate that, once drafted and reviewed, such a
draft was only submitted to the FCO in early April 2002.

32. It is convenient at this point to introduce the fourth piece of new evidence on which the applicant seeks to rely. It is a note of the 6 March 2002 meeting made by

Posford dated 7 March 2002. It was only obtained by the applicant’s advisers, after

a chance meeting, from Mr Stephen Akester of MacAlister Elliott & Partners

(“MEP”), sub-contractors to Posford who arranged the on-site investigations in the

Chagos in early 2002. As such it is not a document which was at any relevant time in the possession of or available to the executive. But it records a meeting at which FCO and BIOT representatives were present, and, taking it as an accurate record of what took place at that meeting, what it records was within their knowledge, and may also throw light on their roles in relation to the re-drafting and finalisation of

the stage 2B report. Mr Huckle of the FCO is reported as “reiterating the political

importance of the forthcoming feasibility report” which he stressed “had been

heightened in recent weeks because the Ilois are currently pursuing legal action

against the British and American governments”. He went on to point out that “the

outcome of the court case will either be compensation, or financial assistance to the

Ilois in resettling the islands” and that the questions were “how much, and what

forms of livelihood development will the British government permit”, which he said
was “where the feasibility report comes in”.

33. There is nothing here which appears to be anything other than a genuine explanation as to the report’s current relevance - couched if anything in terms

anticipating that it would accept the possibility of resettlement. The FCO appears a

little later as saying that it “had hoped that Phase II would negate the need for Phase III, ie if it concluded that resettlement wasn’t feasible, but realistically, that was

never likely to be the outcome. The FCO is hoping that the section on Climate Change will resolve its difficulties, but Brian [Little] and I pointed out that a

considerable amount of money could be made in 25-100 years, and let’s not assume

that the Ilios are considering a return to subsistence or reliance on natural resources

…”. Again this confirms, if anything, that the FCO was resigned to a report

accepting the feasibility of some form of resettlement, and that Posford was well capable of standing up for what it believed correct. Indeed, earlier in the note

Posford recorded that “allegedly, a number of those whom we competed against in the bidding process … have been taking pot shots at our approach within earshot of ‘important’ people. Sounds like sour grapes. That all said, our findings and

arguments must be tight and convincing.” There is no suggestion that the FCO was

inviting changes to bolster any sort of findings or conclusions in either the draft and the final report, and no basis for regarding Posford as susceptible to any such

invitation. The express purpose of the 6 March meeting was, as stated, to “provide
a de-briefing” on Posford’s recent field studies on Ile du Coin and Ile Boddam.

34. In all the circumstances, the 7 March 2002 note provides no real support to a suggestion that the content even of the draft stage 2B report was unduly interfered with or influenced by the FCO or BIOT, still less that any subsequent alterations between the draft submitted in April and the stage 2B report as finalised in June were the result of any such undue interference or influence.

35. The follow-up exchanges after Posford had completed and submitted all sections of the draft report in April 2002 (E2403) are evidenced by the Rashid documents as well as the previously disclosed messages dated 23 and 29 May 2002 from Mr Hamilton to Ms Holland. They are also significant. Dr Sheppard had on 14 May 2002 sent Mr Hamilton very detailed comments on the draft report (E2409 on). In relation to the Executive Summary, he wrote:

“This important section does not always reflect the content of

the volumes very well. This is doubtless due to haste and short deadlines. Several key issues missed out are stated in the text and in the conclusions. I suggest that after a period of reflection this is revisited. Several conclusions are apparently at odds either with each other or with other, known facts. During the rewrite, these apparent contradictions in the text can be resolved. They make parts of the report somewhat vulnerable. One example is the widely varying estimates of numbers of

people that could be sustainably supported.”

36.       Dr Sheppard went on in sections dealing with the body of the draft report to

note (a) the risk of water contamination, observing that the draft did not “clearly

state how such contamination could be prevented through the thin ‘roof’ of the

aquifers”, (b) a contradiction between statements that “Water recharge of aquifers

would increase by vegetation clearing (Groundwater resources section) … But:

water recharge would decrease with clearance of plants and development (from

volume IV)”, and (c) under “Other points”: “The point about Chagos is that it lies

in the most nutrient poor part of the Indian Ocean. The Chagos bank fishery potential

is estimated to be half that of other banks” (p 146).

37. Mr Hamilton then wrote to Ms Holland on 23 May 2002, noting that he had studied the drafts of the report in some detail, that it and any recommendations which

followed from it would be carefully examined and that “we are particularly anxious

therefore that its scientific content is as complete and watertight as possible”. He made detailed comments on the draft, drawing heavily on Dr Sheppard’s comments,

particularly when writing this in relation to the Executive Summary:

“This important section does not always reflect the content of

the volumes very well. Several key points and conclusions in the main text are important and stand out, but are not well reflected in the summary. Further, several conclusions are apparently at odds either with each other or with other known facts. During your revision, I would be grateful if you would resolve these apparent contradictions as they make parts of the report unclear. Examples of issues needing reconciliation include widely varying estimates of numbers of people that could be sustainably supported, issues of water contamination and the balances of water use for different activities, whether plants increase or decrease water recharge, and the Chagos bank fishery potential. Synthesis would doubtless resolve many of these. I understand that different consultants wrote different sections, so I think that this summary may be a suitable place for an overall, concise synthesis, which would also include overall environmental management recommendations. Many of these points are noted in the attachments relating to different sections, but are crucial for the writer of this Executive

Summary.”

38. As is apparent, Mr Hamilton was here picking up points made by Dr Sheppard as indicated above. In attachment 7, relating to volume III of the draft dealing with resettlement issues, Mr Hamilton discussed three scenarios which had been included, noting various issues and that nothing had been said either on scenario 3 (based partly around expensive tourism), although this appeared to be the only attractive development option for interested parties, or on a possible scenario 4 (non-residential, but settled seasonally for some fishing). The discussion ended

“Possibly use of the ‘three scenarios’ just adds confusing complexity and begs

several questions which are not answered”. He ended by underlining the importance attaching to “the overall synthesis (Executive Summary) which should clearly

highlight the main points which are brought out in the text”, and indicated that

following the draft’s revision he would call a meeting of all concerned to finalise

the report.

1. Posford then prepared its own detailed comments on Mr Hamilton’s letter

which were sent to him by Ms Holland under cover of a faxed letter dated 28 May

2002. Her letter stated:

“To summarise the attached, we consider that some of the

comments are valid and we will revise our report in light of these suggestions. However, we feel that others are somewhat inaccurate and do not reflect the understanding we had with the BlOT Administration on our approach. I should like to discuss

these comments with you at your earliest convenience.”

In the body of the comments, Posford replied to the points made on the three scenarios as follows:

“Three scenarios: There was much debate during the drafting

of the report as to whether the three scenarios should be included, but several of those involved considered that these helped to develop conclusions about whether certain resettlement activities would be possible, particularly in the drafting of the environmental appraisal. We stopped at three hypothetical scenarios, but recognise that there could be many

more combinations of activities. The suggestion of ‘scenario 4’, which is based on non-residential and non-development,

does not actually constitute· resettlement and was therefore not considered as a scenario. However, you will note that Option 1 for fisheries development (p 165) does refer to this form of livelihood activity. We would be grateful if you would give direction as to whether you wish us to include or exclude the

development scenarios from the final report.”

To this last request, Mr Hamilton simply replied by email on 29 May 2002: “You

asked about the inclusion of development scenarios in the final report. Our advice

is that it would be better if these are excluded”.

1. However, as Mr Gifford’s and Mr Dunne’s Analysis Note acknowledges, this

“advice” was not in fact taken up in the final stage 2B report, “where the

Development Scenarios can be seen to be crucial to several parts of the study”. Nevertheless, the Analysis Note seeks to portray Mr Hamilton’s letter and comments

dated 23 May 2002 as an exercise of editorial control, and his email of 29 May 2002

as “yet further attempts to exercise editorial control over the final report”. To my

mind, there is nothing untoward about them at all. The impression conveyed is one of independently minded exchanges, passing between people whose genuine concern was to have as thorough, accurate and watertight a final report as possible.

41. Posford’s comments dated 28 May 2002 were evidently also sent to Dr Sheppard, since he commented on them by email on 31st May 2002 (E2450-2451). There were further technical exchanges between Brian Little, who had been appointed as FCO Feasibility Study Project Manager under contract dated 29 January 2001, and Posford in late May and early June (E2452-2458 and E2465- 2467), and a further set of comments by Tony Falkland of Posford responding on

9th June to Dr Sheppard’s comments (E2459-2464) as well as to Brian Little’s

comments (E2465-2468). Dr Sheppard noted Mr Little’s comments on 11 June (E2469), and Mr Little sent an email commenting on Posford’s response on 12 June

(E2470). A meeting was set up to discuss the final report on Friday 12 June, in

relation to which Mr Hamilton invited Dr Sheppard to act as a devil’s advocate. This he evidently did (E2476-2477). Some “changes/deletions” were made, leading to

the final report.

42. Reading all these exchanges, nothing in them suggests anything but a proper,

professionally oriented and independent process, with all involved seeking to arrive
at objective and sustainable findings and conclusions.

43. I turn to the alterations which can now be seen to have been made between the original draft and the final report. The General Conclusions, to which Sheridans rightly attached importance in their note dated 13 March 2009 (para 21 above), are now available in both their draft and their final form in the executive summary. A fundamental point which risks being overlooked in discussion about differences

elsewhere in the executive summary or body of the text is that the “General

Conclusions” can now be seen to have been in identical terms in both their draft and

their final versions. Their terms have been set out in para 12 above. They represent the critical conclusions, on which the majority in the House of Lords relied as

justifying the Secretary of State’s decision to make the 2004 Constitution Order, and

they were unaltered between the original draft and final versions.

44.       Immediately preceding these General Conclusions also appeared the

following section headed “Vulnerability”:

“There appear to be sufficient groundwater, soils, fisheries, and

environmental (eg limited tourism) resources to support a small population on a subsistence basis with some commercial opportunity, but there are some more fundamental issues surrounding the feasibility of resettlement. These relate to the vulnerability of a resettled population to current and predicted climatic conditions, and the fragility of the environment to human-induced disturbance.

Under the present climate, it is assumed, based on historic meteorological patterns and observations, that the islands are already subject to regular overtopping events, flooding, and erosion of the outer beaches. As global warming develops, these events are likely to increase in severity and regularity. In addition, the area is seismically active, and the possibility of a tsunami is a concern. These events would threaten both the lives and infrastructure of any people living on the islands. Whilst it might be possible to protect the islands to some extent in the short-term through coastal defence measures, it is likely to be cost-prohibitive and non-pragmatic to consider this form of defence in the long-term.

The environment of the Chagos Archipelago is highly diverse and yet very susceptible to human disturbance. Coral reefs, which are one of the most important ecosystems within the Archipelago, are already exhibiting signs of stress from increased sea surface temperatures and other climatic phenomenon. Predictions from climate change experts indicate that mass mortality of reef building corals in the Indian Ocean is likely to occur as global warming increases, may be as soon as within the next 20 years. This will not only have huge implications for the long-term coastal defence of the islands, and hence their very existence, but will also adversely affect livelihoods, particularly fisheries and tourism, which are likely to be the mainstay of any resettled population. Human interference within the atolls, however well managed, is likely to exacerbate stress on the marine and terrestrial environment and will accelerate the effects of global warming. Thus

resettlement is likely to become less feasible over time.”

Again this passage was in identical form in the draft and final stage 2B report, and, as the Analysis Note acknowledges, it constitutes the basis for the overall negative assessment in the General Conclusions.

45. The identity of these core sections of the Executive Summary in the draft and final reports raises obvious problems for the present application. But it is said that these key sections refer back in turn to section 1.8. It is in section 1.8 that the

summary note dated 15 February 2015 identifies in total four “key amendments”.

46. The following passages underlined and marked A, B or C in the following

extracts from the draft report are passages on which Mr Bancoult relies in support
of his case of inappropriately motivated or influenced alteration:

“1.8 CLIMATE CHANGE

The reports of the International Panel on Climate Change were evaluated to determine the latest projections on climate change. Global sea levels are expected to rise by about 38cm between 1990 and the 2080s. Indian and Pacific Ocean islands face the largest relative increase in flood risk. Although there will be regional variation, it is projected that sea level will rise by as

much as 5mm per year, with a range of 2-9mm per year, over

the next 100 years [B]. With a rise of 0.5 metres in sea level, the implications of climate change on the Chagos Archipelago are considerable, given that mean maximum elevation of the islands is only two metres; the diversity of livelihoods available is limited; and the relative isolation and exposure of the islands to oceanic influences and climatic events. These implications are discussed in the light of biodiversity and resettlement.

1.8.1 Implications for Biodiversity

The impacts of climate change on highly diverse and productive coastal ecosystems such as coral reefs and atoll islands will depend upon the rate of sea-level rise relative to growth rates and sediment supply. In addition, space for and obstacles to horizontal migration, changes in the climate-ocean environment such as sea surface temperatures and storminess as well as human pressures will influence the capacity of ecosystems to adapt to the impacts of' climate change.

[Two paragraphs dealing with coral bleaching and reefs]

Species that occupy terrestrial habitats for all or part of their life-cycle, such as birds, turtles and coconut crabs, will also be adversely affected by sea level rise. There is considerable uncertainty about how climate change will affect the natural environment in the Chagos Archipelago, but that the outcome is likely to be an unfavourable shift in biodiversity.

1.8.2 Implications for Resettlement

The most significant and immediate consequences of climate change on a resettled population within the Chagos Archipelago are likely to be related to changes in sea levels, rainfall regimes, fresh water resources, soil moisture budgets, prevailing winds (direction and speed) and short term variation in regional and local patterns of wave action. At present, the

Chagos Archipelago lies just north of an active cyclone belt, however, a small northward shift of this belt could lead to

frequent cyclones in the area [A]. This would lead to more frequent flooding of the islands, with corresponding risk to life and any infrastructure. It would also reduce agricultural potential and the freshwater contained within the island aquifers would experience higher levels of salinity.

Irrespective of whether the Chagos Archipelago becomes subjected to regular cyclones, the general increase in

storminess that may accompany climate change would result in increased wave energies and an increasing frequency of over-

topping events [C]. Based on a 0.5m rise in sea level scenario, models of overtopping events demonstrate an increase of between 20-50% of the frequency of severe events. Of further significance is the probability that sea level rise and overtopping events would threaten the characteristics and sustainability of the fresh groundwater lens.

The rate of erosion of the ocean coasts are likely to increase with sea level rise and·increased storminess, and would be accompanied by an increase in sediment transport, which would have implications for shoreline infrastructure. On islands where physical space is limited, as in Chagos, coastal defences are likely to be low key and would need to be developed with a view to sustainability.

It is advised that future settlers on the outer atolls should be made aware of the risks of climate change in terms of their own safety and that of any physical investment. Should people wish to return, it would be prudent to provide specialist assistance in the preparation of appropriate and sustainable land use and coastal defence policies, which would ensure that the vulnerability of the resettled population was minimised as far

as possible.”

47. In the final stage 2B report, section 1.8 of the executive summary reads as follows. Again, the passages underlined and marked A, B and C are passages on which Mr Bancoult relies in support of his case of inappropriately motivated or influenced alteration:

“CLIMATE CHANGE

According to the International Panel on Climate Change global sea levels are expected to rise by about 38cm between 1990 and the 2080s. Indian and Pacific Ocean islands face the largest relative increase in flood risk. Although there will be regional variation, it is projected that sea level will rise by an average of 5mm per year over the next 100 years [B]. The implications of these predictions for resettlement of the Chagos Archipelago are considerable, given that mean elevation of the islands is only two metres.

The most significant and immediate consequences of climate change for the Chagos Archipelago are likely to be related to changes in sea-level, rainfall regimes, soil moisture budgets, prevailing winds, and short term variation in regional and local patterns of wave action. As a consequence, most islands will

experience increased levels of flooding, accelerated erosion, and seawater intrusion into freshwater sources. The extent and severity of storm impacts, including storm surge floods and

shore erosion are predicted to increase [A]. Although the risks associated with climate change are not easily established the implications of these issues to resettlement of the outer atolls of the Chagos Archipelago are outlined briefly below.

Implications for water resources: Rising sea level would not have a significant effect on island freshwater lenses in the Chagos archipelago unless land is lost by inundation. If rising mean sea level causes land to be permanently inundated, then there will be a consequent loss in fresh groundwater.

Increased storminess [C]: The Chagos islands have a small storm surge envelope thus even small changes in sea level and storm surge height implies an increase in the area threatened with inundation. It has been predicted that the flooding severity for a 1 in 50-year storm event with 0.5m of sea level rise is almost as high as the present day 1 in 1000-year event. Inundation can cause seawater intrusion into freshwater lenses. This not only reduces the availability of water for human consumption, but if salinity concentrations are high enough it can lead to decreased agricultural production.

Biological systems and biodiversity: Climate change is predicted to have a significant impact on the marine and terrestrial environments of the Archipelago. Coral reefs are one of the most important ecosystems likely to be affected, and their ability to cope will depend upon the rate of sea-level rise relative to their growth rate. The Chagos coral reefs were severely affected by the 1998 El Nino event, therefore any future sea surface warming would increase pressure on already stressed coral reefs. The added pressure of human interference within the marine environment would further weaken the ability of these systems to cope with climate change.

Fisheries and aquaculture: It is predicted that climate change may have a severe impact on the abundance and distribution of reef fish populations. In addition, there is strong evidence of a correlation between the annual incidence of ciguatera (fish poisoning) and local warming of the sea surface, which will have an impact on fisheries potential, for subsistence and commercial purposes. Climate change is expected to have both positive and negative impacts on aquaculture; but the implications for seaweed farming (as investigated during this study) is not positive, with increased temperatures leading to reductions in productivity [D].

Human health, settlement and infrastructure: Populations, infrastructure and livelihoods are likely to be highly vulnerable to the impacts of climate change. Sustainability in food and water availability will be among the most pressing issues, together with the vulnerability of infrastructure to flooding and storm surges.

Vulnerability and adaptation: There is a wide range of adaptation strategies that could be employed by a resettled population in response to climate change. Integrated coastal management has been strongly advocated as the key planning framework for adaptation.

Adapting to island instability: There are two issues that need to be taken into account in adapting to island instability: shoreline erosion and sediment inundation of the island surface. Adaptation can fall within three broad categories depending on the level of infrastructure and population density on islands: no response; accommodation (infrastructure and dwellings are replaced at a rate commensurate with island migration); or protection (maintenance of infrastructure through coastal protection measures). The latter is likely to be the most costly strategy, and should be avoided through wise land use planning.

Adaptation to inundation: Response to inundation will vary depending on the level of development on islands. On islands that will have little infrastructure, as is likely to be the case in Chagos, the costs to protect against inundation are likely to be prohibitive. Adaptation measures will include siting of infrastructure in low risk areas and the application of appropriate infrastructure designs, such as revised floor levels and open structures. More robust measures to prevent inundation, such as seawalls, are not recommended as they necessitate costly maintenance and future vertical extension as sea level rises, and they can lead to adverse impacts on coastal habitats.

180. Alternatively, it might be suggested that there are occasions where it is appropriate for a court to take a pragmatic view and dispose of a case in a particular way because of a new factual context. Quite apart from the unfortunate imprecision of such an approach, it must surely only be permissible when the particular disposal allows the court to achieve justice in the changed circumstances. Given the narrowness of the issue before the Supreme Court on this appeal, taking account of changed circumstances in the Chagos Islands does not achieve justice. We are not

in a position to make an order that vindicates the applicant’s right to resettle on

Diego Garcia or elsewhere on the archipelago. The suggestion that we need not re- open this appeal because of the possibility that the 2014/5 feasibility study would permit resettlement depends on (a) the government changing its stance as a result of the study; failing which (b) the applicant or others of like mind having the appetite to bring forward yet further litigation, despite the unhappy previous experience of past proceedings; (c) their being able to secure the services of lawyers prepared to work for them pro bono or on some other uncertain basis; and (d) the courts deciding in favour of the Chagossians in that speculative litigation. Even if it could be said that a favourable outcome of the 2014/5 feasibility study is possible, the

Chagossians’ ability to obtain the result that the original appeal, if successful before

the House of Lords, would have achieved is remote in the extreme. That this should provide a basis for denying them an outcome to which they were otherwise entitled is in my view inconceivable.

Delay

181. The respondent has claimed that there was undue delay in making the application to re-open the appeal. I do not consider that there is any merit in that claim. The Rashid documents were disclosed on 1 May 2012, in the course of the Bancoult (No 3) proceedings. The applicant sought to raise the issue of their non- disclosure in those proceedings. He was not permitted to do so. It was held that the feasibility study had not played a part in the decision to create a marine protected area - paras 81 to 93 of judgment given on 11 June 2013. That decision was appealed to the Court of Appeal, and judgment was given in the Court of Appeal on 23 May 2014 ([2014] EWCA Civ 708; [2014] 1 WLR 2921).

182. The applicant then sought to resolve the matter by inviting the respondent to agree that the judgment in the present action should be set aside by consent. This request was made in a letter dated 5 December 2013. It was refused on 5 January

2014. Counsel’s opinion was obtained on 26 January 2014 and legal aid was applied

for immediately. It was eventually granted on 29 September 2014. There is no suggestion that the applicant was in any way responsible for delay between the submission of the application for legal aid and its grant. The application form was filed on 9 January 2015. There was no culpable delay on the part of the applicant.

Duty of candour

1. A respondent’s duty of candour in judicial review proceedings is summarised

at p 125 of Fordham’s Judicial Review Handbook (Sixth Edition 2012):

“A defendant public authority and its lawyers owe a vital duty

to make full and fair disclosure of relevant material. That should include (1) due diligence in investigating what material is available; (2) disclosure which is relevant or assists the claimant, including on some as yet unpleaded ground; and (3)

disclosure at the permission stage if permission is resisted. …

A main reason why disclosure is not ordered in judicial review is because courts trust public authorities to discharge this self- policing duty, which is why such anxious concern is expressed

where it transpires that they have not done so.”

184. In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at para 50 Laws LJ said, “There is a … very high

duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue which the

court must decide.” The duty extends to disclosure of “materials which are

reasonably required for the court to arrive at an accurate decision” - Graham v Police

Service Commission [2011] UKPC 46 at para 18. The purpose of disclosure is to

“explain the full facts and reasoning underlying the decision challenged, and to

disclose relevant documents, unless, in the particular circumstances of the case, other factors, including those which may fall short of public interest immunity, may exclude their disclosure - R (AHK) v Secretary of State for Home Department (No 2) [2012] EWHC 1117 at para 22.

185. The Rashid documents should have been disclosed. That is accepted by the respondent. They contained material that was obviously germane to the issues between the parties. The fact that they were not disclosed, despite numerous pointed requests for their production and the circumstance that, in some instances, their very existence was denied are deeply disturbing. The failure to locate the documents throughout the proceedings before the Divisional Court, the Court of Appeal and the House of Lords is not merely unfortunate, it is plainly reprehensible.

186. But I am not persuaded that the non-production of the documents until the hearing in Bancoult (No 3) was deliberate. The applicant has accepted as much, having said in his written case that the non-disclosure of the documents may

“conceivably” have been due to an oversight. I believe that the preponderance of

evidence suggests that this is the most likely explanation, although it was a grievous oversight and one which, it is to be hoped, will be so regarded by the relevant authorities. An omission by government to disclose such material as was contained in the Rashid documents and its failure thereby to discharge its duty of candour was wholly unacceptable when such a fundamental right was at stake.

187. The applicant has suggested that, in light of the seriousness of the failure to disclose these documents and in view of their high relevance, judicial criticism will not suffice and that the decision of the House of Lords should be set aside on account only of their non-disclosure. I do not agree. If there are circumstances in which a failure to disclose documents would alone be cause for setting aside a judgment, they are not present here. For the reasons earlier given, however, I consider that the decision should be set aside and the appeal re-opened.

LADY HALE: (dissenting)

188. This is another chapter in the epic saga of the Chagossians, their expulsion from their homeland and their persistent attempts to secure, if not their actual return,

then at least the recognition of their right to do so. It is a saga which shows “how

the imperial common good is riven by competing theoretical justifications for empire: one, based in liberal imperialism, emphasises the civilising nature of empire and focuses on the good governance of colonies; the other, based in a utilitarian imperialism, instead focuses on how best to appropriate colonial possessions for the

benefit of the imperial power” (T Frost and CRG Murray, “The Chagos Island cases: the empire strikes back” (2015) 66 NILQ 263, 266). Thus far, it is the latter which

has not only driven the actions of government but has also triumphed in the courts:

“Lord Hoffmann acknowledged that a choice between the liberal and utilitarian

faces of imperialism did rest with the court, and decisively affirmed the utilitarian
importance of the imperial interests at stake …” (Ibid, 287).

189. Courts have, of course, to do justice according to law. Any doubts about whether it is legally possible for the imperial power to exile a people from their homeland have to be rigorously suppressed. That question of law has been finally resolved in these proceedings by the decision of the majority in Bancoult (No 2). Nevertheless, the decision to exile a people has to be taken in accordance with the law; and the people to whom it is of such momentous importance are entitled to expect the highest standards of decision-making and the most scrupulous standards of fairness from the institutions of imperial government. The challenge in the main proceedings is to the rationality of the decision in 2004 to re-impose the denial of

the Chagossians’ right of abode in their homeland, the first denial in 1971 having

been declared unlawful in Bancoult (No 1), a decision which was accepted by the government of the day. The challenge in this application is to the decision of the

majority in Bancoult (No 2) that the government’s decision was rational. The

question for the appellate committee, as Lord Kerr has explained, was not whether it was rational to accept the conclusions of the feasibility study, but whether, on the basis of that report, it was rational to take the drastic decision to re-impose the denial of the right of abode.

190. The question for us is not whether the majority got the answer to that question wrong. We could no more set that decision aside on that basis than we could set aside their decision that the imperial government had the power to do this. The basis upon which this court could set aside the earlier decision is that explained by Lord Browne-Wilkinson in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 132D:

“In principle it must be that your Lordships, as the ultimate

court of appeal, have power to correct any injustice caused by

an earlier order of this House. … However, it should be made

clear that the House will not re-open any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. When an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is

wrong.”

1. The previous decision in that case was set aside because of Lord Hoffmann’s

connection with an intervener in the case. He should not have decided the case without that connection being disclosed to the other parties. The House did not therefore have to consider whether his participation made any difference to the result (although, given that the earlier decision had been reached by a majority of three to two and that at the re-hearing a rather different decision was reached, there was surely a very real possibility that it did). I accept that, even if it has power to do so, this court should not set aside a decision reached after an unfair procedure if the result would inevitably have been the same had the procedure been fair. However, if it is clear that the procedure was unfair, this court should not struggle too hard to discover that the result would have been the same. It is for the court which rehears the case to reach its own conclusions. The parties are entitled to procedural as well as substantive justice.

192. It is a proud feature of the law of judicial review of administrative action in this country that the public authority whose actions or decisions are under challenge has a duty to make full and fair disclosure of all the relevant material. Only if this is done can the court perform its vital role of deciding whether or not those actions or decisions were lawful. There is no doubt in this case that the Rashid documents should have been disclosed. They were obviously relevant to the issues in the case. Not only that, the government was asked for them many times and denied their existence. This is scarcely a good advertisement for the quality of government record keeping. No doubt files are sometimes transferred to the Treasury Solicitor for litigation purposes and their existence forgotten. But this should not happen in any well-regulated system of file-keeping. It was deeply unfair to the applicant, and to the court, that these documents were not disclosed. This was all the more unfair, given the sorry treatment of the Chagossians in the past and the importance of what was at stake for them.

193. Given that context, this court should not take much convincing that their disclosure might have made a difference to the decision in the case. What light they do cast upon the rationality of the decision under challenge will be a matter for the court which does reconsider the case. To my mind, it is quite obvious that they might have made a difference and we certainly cannot be satisfied that they would not. They showed that the science of the report had been severely criticised both by the

government’s own expert and by an expert on behalf of the islanders; it matters not

in what direction those criticisms had tended; what they did was cast doubt upon the authority of the report. They showed that the government had made it plain to the consultants what it wanted the conclusions to be. They showed that important changes had been made to the conclusion. They showed that the central findings about climate change had been changed. They showed that the islands were not in a cyclone belt. The question whether this might have made a difference has to be answered objectively rather than by reference to the particular judges who were then sitting on the case.

194. Ultimately, this is a case about justice. While I deeply admire the industry and intellectual honesty of Lord Mance, which has led him to the conclusion that the decision with which he disagreed at the time should not be set aside, for the reasons given by Lord Kerr, with which I agree, I would grant this application. Justice to my mind demands that the applicant be given a fair chance to satisfy this

court that the decision to re-impose the denial of the islanders’ right of abode was

not a rational one.