R (on the application of Bancoult No 3) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)

Hilary Term

[2018] UKSC 3

On appeal from: [2014] EWCA Civ 708

R (on the application of Bancoult No 3) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)

before

Lord Neuberger

Lady Hale
Lord Mance
Lord Kerr
Lord Clarke
Lord Sumption
Lord Reed

JUDGMENT GIVEN ON

8 February 2018

Heard on 28 and 29 June 2017

Appellant	Respondent
Nigel Pleming QC	Steven Kovats QC
Richard Wald	Professor Malcolm Shaw QC
Stephen Kosmin	Penelope Nevill

Professor Robert McCorquodale

(Instructed by Clifford Chance

(Instructed by The Government

LLP)	Legal Department)

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

Introduction

1. The appellant is the chair of the Chagos Refugees Group. The Group represents Chagossians whose removal from the British Indian Overseas Territory

(the Chagos Islands - “BIOT”) and resettlement elsewhere was procured by the

United Kingdom government in the years 1971 to 1973. The circumstances have generated much national and now also international litigation. The sad history has been told on a number of occasions. It suffices to mention Chagos Islanders v The Attorney General [2003] EWHC 2222 (QB), R (Bancoult) Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453 and most recently in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35; [2017] AC 300. Following the last two decisions, it remains prohibited, under the BIOT Constitution and Immigration Orders 2004, for Chagossians to return to BIOT. Since the last judgment, the United Kingdom government has on 16 November 2016 announced its decision to maintain the ban on resettlement, after a study carried out by KPMG published on 31 January 2015. That decision is itself the subject of further judicial review proceedings.

2. The present appeal concerns the establishing for BIOT of “a marine reserve to be known as the Marine Protected Area” by Proclamation No 1 of 2010. The

Proclamation was issued by Mr Colin Roberts, Commissioner for BIOT, “acting in

pursuance of instructions given by Her Majesty through a Secretary of State”. The Marine Protected Area (“MPA”) was established in a 200 mile Environment

(Protection and Preservation) Zone (“EPPZ”) which had existed since Proclamation

No 1 of 2003 dated 17 September 2003. Proclamation No 1 of 2010 said (para 2) that, within the MPA:

“Her Majesty will exercise sovereign rights and jurisdiction

enjoyed under international law, including the United Nations Convention on the Law of the Sea, with regard to the protection and preservation of the environment of the [MPA]. The detailed legislation and regulations governing the said [MPA] and the implications for fishing and other activities in the [MPA] and the Territory will be addressed in future legislation

of the Territory.”

The creation of the MPA was accompanied by a statement issued by the respondent,

stating that it “will include a ‘no-take’ marine reserve where commercial fishing will

be banned”.

3. No fresh legislation or regulations relating to fishing were in the event issued or necessary. Fishing was already controlled. From 1984 it was controlled within the three mile territorial waters and the contiguous zone which extended a further nine miles (to 12 miles from shore) under Proclamation No 8 of 1984 and the Fishery Limits Ordinance 1984. Control was subject to a power (exercised on 21 February 1985) to designate Mauritius for the purpose of enabling fishing traditionally carried on within those limits. Proclamation No 1 of 1991 and the Fisheries (Conservation

and Management) Ordinance 1991 (“the 1991 Ordinance”) established a Fisheries

Conservation and Management Zone extending 200 miles from shore, within which a fee-carrying licence was required for any fishing. The Mauritian government was, however, informed that a limited number of licences would continue to be offered free of charge in view of the traditional fishing interests of Mauritius in the waters surrounding BIOT. Proclamation No 1 of 2003 establishing the EPPZ had no impact on fishing. The 1991 Ordinance was superseded by similarly entitled Ordinances in 1998 and then 2007, under which the licensing system was continued. The majority of fishing from Mauritius was inshore fishing carried out by the Talbot Fishing Company, owned by the Talbot brothers, one of whom was Chagossian. Their vessels were flagged to Mauritius until 2006 or 2007, when for economic reasons they were reflagged to Madagascar and the Comoros. A number of regular crew members on these boats were Chagossians. After the establishing of the MPA, and the accompanying announcement, the achievement of a no-take reserve or zone was in practice accomplished by allowing existing licences to expire and by not issuing any fresh licences to the Talbot vessels or other vessels from outside BIOT for inshore or other fishing in the MPA.

4. The present challenge has two limbs. One is that the decision to create the MPA had an improper ulterior motive, namely to make resettlement by the Chagossians impracticable. The other is that the consultation preceding the decision was flawed by a failure to disclose the arguable existence on the part of Mauritius of inshore fishing rights (ie within the 12 mile limit from shore). Both challenges are associated with the enforcement of a no-take zone by the refusal since 2009 of fishing licences, since the impracticality of resettlement is said to derive from the loss by Chagossians of occupational skills and possibilities, now and at any future time when resettlement might be contemplated.

5.         At the core of the appellant’s case on improper purpose is a document

published by The Guardian on 2 December 2010 and by The Telegraph on 4

February 2011, purporting to be a communication or “cable” sent on 15 May 2009

by the United States Embassy in London to departments of the US Federal Government in Washington, to elements in its military command structure and to its Embassy in Port Louis, Mauritius. The cable is recorded as having been passed to The Telegraph (and was presumably also passed to The Guardian) by Wikileaks. Its text purports to be a record, by a United States political counsellor, evidently a Mr Richard Mills, of conversation at a meeting on 12 May at the Foreign Office, London with Mr Roberts, Ms Joanne Yeadon, the Administrator for BIOT, and Mr Ashley

Smith, the Ministry of Defence’s Assistant Head of International Policy and

Planning. It also purports to refer to some previous meetings and a subsequent conversation involving Ms Yeadon. It starts with a one-paragraph summary and ends with two paragraphs of comment, and contains 12 paragraphs of purported record in between. Reliance is placed on passages in it, which it is submitted show, or could be used to suggest, that Mr Roberts, Commissioner for BIOT, had and disclosed an improper motive in relation to the creation of the MPA. It is common ground that there was in fact a meeting between US officials and Mr Roberts and Ms Yeadon at the Foreign Office on 12 May 2009.

6. The present proceedings took an unfortunate turn in this respect before the Administrative Court (Richards LJ and Mitting J). Burnton LJ had on 25 July 2012 given permission for Mr Roberts and Ms Yeadon to be cross-examined on the purported cable, acknowledging that it must have been obtained unlawfully and in probability by committing an offence under US law, but saying:

“I do not see how the present claim can be fairly or justly

determined without resolving the allegation made by the [appellant], based on the Wikileaks documents, as to what transpired at the meeting of 12 May 2009, and more widely whether at least one of the motives for the creation of the MPA

was the desire to prevent resettlement.”

Before the Administrative Court, objections were made to the use of the cable in cross-examination of Mr Roberts.

7. One objection, which did not find favour with the Administrative Court (and which is not live before the Supreme Court), was that the Official Secrets Act and

the UK government’s policy of “neither confirm nor deny” (“NCND”) in relation to

documents of this nature meant that Mr Roberts should not be required to answer questions relating to the purported cable. In relation to this objection, the Court ruled that Mr Roberts could be questioned on an assumption that the cable was what it purported to be, and that it would be open to the appellant at the end of the hearing to invite the Court to accept it as an accurate record of the meeting, and to rely on it evidentially. Various questions were put to Mr Roberts and answered on that basis, before Mr Kovats QC for the respondent asked for and obtained further time overnight to consider the position.

8.         The other objection was that use of the cable would be contrary to the

principle of inviolability of the US mission’s diplomatic archive in breach of articles

24 and 27(2) of the Vienna Convention on Diplomatic Relations 1961, given effect in the United Kingdom by section 2(1) of the Diplomatic Privileges Act 1964. This further objection only occurred to the respondent during the second day. It was therefore only made the subject of submissions on the third day. This led to the first ruling being effectively over-taken, by a further ruling that it would not be open to the appellant to invite the court to treat the cable as genuine or to find that it contained an accurate record of the meeting and that any further cross-examination should proceed on that basis, without any suggestion that the purported cable was genuine. Mr Pleming applied for, but was refused immediate permission to appeal that ruling. In these circumstances, he indicated that he had no further cross- examination of Mr Roberts, and on the next day conducted a cross-examination of

Ms Yeadon, limited as directed by the Court’s ruling.

9.         By a judgment dated 11 June 2013, the Administrative Court rejected the

appellant’s case both in so far as it was based on improper purpose and in so far as

it was based on failure to disclose the arguable existence of Mauritian fishing rights. The Court of Appeal (the Master of the Rolls, Gloster and Vos LJJ) [2014] 1 WLR 2921 reached the same overall conclusions, but after taking a different view of the admissibility of the purported cable. It held that, since the cable had already been disclosed to the world by a third party, admitting it in evidence would not have

violated the US London mission’s diplomatic archive. The Court of Appeal had

therefore to consider whether the exclusion of the cable from use before the

Administrative Court would or could have made any difference to that Court’s

decision on the issue of improper purpose. By a judgment given 23 May 2014, it decided against the appellant on both this issue and the issue relating to the omission of reference to arguable Mauritian fishing rights. The Supreme Court by order dated 7 July 2016 gave permission to appeal on the issue of improper purpose and directed that the application for permission to appeal on the issue relating to the omission of reference to arguable Mauritian fishing rights be listed for hearing with the appeal to follow if permission is granted. The respondent has in turn challenged the

correctness of the Court of Appeal’s conclusion that use of the cable would not have

contravened article 24 and/or 27(2) of the Vienna Convention.

The admissibility of the cable

10. I will take this issue first. In order to give some context to articles 24 and

27(2), the whole of articles 24, 25 and 27 of the Vienna Convention on Diplomatic
Relations are set out:

“Article 24

The archives and documents of the mission shall be inviolable at any time and wherever they may be.

Article 25

The receiving State shall accord full facilities for the performance of the functions of the mission.

…

Article 27

1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.

2. The official correspondence of the mission shall be

inviolable. Official correspondence means all correspondence
relating to the mission and its functions.

3.         The diplomatic bag shall not be opened or detained.

4. The packages constituting the diplomatic bag must bear

visible external marks of their character and may contain only
diplomatic documents or articles intended for official use.

5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy person inviolability and shall not be liable to any form of arrest or detention.

6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.

7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the

aircraft.”

11. The submissions on inviolability under these provisions range widely. They cover the nature of the archive, its location, the circumstances in which material originating from the archive may continue inviolable and the reach of the concept of inviolability itself. As to the nature of the archive, Professor Denza concludes in

Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations

(4th ed) (2016), at p 161, that, instead of trying to list all modern methods of

information storage, “it is probably better simply to rely on the clear intention of

article 24 to cover all physical items storing information”. Writing jointly in Satow’s

Diplomatic Practice (7th ed, edited by Sir Ivor Roberts) (2017), at p 238, para 13.31, Professor Denza and Joanne Foakes, former Legal Counsellor to the Foreign and

Commonwealth Office, say, after noting that the term “archives” is not defined in

the 1961 Vienna Convention:

“but it is normally understood to cover any form of storage of

information or records in words or pictures and to include modern forms of storage such as tapes, sound recordings and

films, or computer disks.”

That can be readily accepted, as can be the proposition that copies taken of documents which are part of the archive must necessarily also be inviolable.

12.       As to location, Mr Kovats on behalf of the respondent points to the words “at

any time and wherever they may be” in article 24, and to commentaries by Professor

Eileen Denza in her work, cited above, pp 158-159, and by Professor Rosalyn Higgins (as she then was) in Problems and Process: International Law and how we use it (OUP) (1995), pp 88-89. Professor Denza observes that the words quoted

mean “that archives not on the premises of the mission and not in the custody of a

member of the mission are entitled to inviolability”, and that:

“If archives fall into the hands of the receiving State after being

lost or stolen they must therefore be returned forthwith and may not be used in legal proceedings or for any other purpose of the

receiving State.”

Professor Higgins wrote:

“Article 24 stipulates that the archives and documents shall be

inviolable at any time and ‘wherever they may be’. It is clear

that this last phrase is meant to cover circumstances where a building other than embassy premises is used for storage of the archives; and also the circumstances in which an archived document has been, for example, taken there by a member of the Secretariat staff for overnight work - or even inadvertently left by him on the train or in a restaurant. What would happen if the Secretariat member, or a diplomat, took an overseas trip, and mislaid the document while abroad? The English High Court [in the Tin Council case: International Law Reports Vol 77 (1988) pp 107-145 at pp 122-123] was disturbed by the idea

that ‘wherever located’ could, on the face of it, mean even in

Australia or Japan. It is true that an English court is not likely to be in a position to enforce the inviolability of a document from the authorities of another country where that particular document happens to be located. But it is entirely another thing to say that, because a document happens to be outside the jurisdiction, an English court is thereby entitled to treat it, in matters that do fall within its own competence, as non-archival and thus without benefit of such inviolability as it is in a

position to bestow.”

Again, so long as the document can be said to constitute part of the archive, a point to which I shall return, these statements appear not only authoritative in their sources, but convincing. As will appear, they also receive support from Shearson

Lehman Bros Inc v Maclaine, Watson and Co Ltd; International Tin Council

(Intervener) (No 2) [1988] 1 WLR 16. That is the House of Lords judgment in the Tin Council case, to the first instance decision in which Professor Higgins referred. The House in that case on any view accepted that there were some circumstances in which a document which was part of an archive, but for some reason no longer physically within the archive, remains inviolable.

13. This brings me to the circumstances in which material originating from the archive may continue inviolable and the reach of the concept of inviolability itself. The appellant, whose case on this aspect was presented by Professor Robert

McCorquodale, submits that the word “inviolable”, read in the context of the

Convention, does not embrace inadmissibility. In his submission, the concept is directed at some degree of interference, of a more or less forceful nature, and this limited sense is the only sense which applies in all the places where the concept is deployed. The submission corresponds with the approach taken by the Court of Appeal, which picked up the characteristically trenchant view of Dr F A Mann, that

“Inviolability, let it be stated once more, simply means freedom

from official interferences. Official correspondence of the mission over the removal of which the receiving state has had

no control can … be freely used in judicial proceedings.”

See “‘Inviolability’ and Other Problems of the Vienna Convention on Diplomatic

Relations in Further Studies in International Law, (1990) pp 326-327 and also

[1988] 104 LQR, p 178. But Professor McCorquodale’s submission does not allow

for the fact that a concept may embrace different shades of meaning according to
the particular context in which it is deployed.

14. The meaning of inviolability in the context of use of archive material in evidence was in fact the very subject of the House of Lords judgment in the Tin Council case. The issue arose there under article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972, whereby it was provided:

“The council shall have the like inviolability of official

archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic

mission.”

The Tin Council intervened in civil proceedings between private parties, relying on article 7(1) as rendering inadmissible various documents that the parties were proposing to adduce in evidence.

15. The House was in these circumstances asked to address the operation of article 7(1) on various “Agreed Assumptions of Fact” set out in a document so

entitled. One such assumption was that a Tin Council document was supplied to a third party by an officer or other staff member of the Tin Council without any authority. Mr Kentridge QC submitted that article 24 of the Vienna Convention and article 7(1) of the 1972 Order only afforded protection against executive or judicial

action by the host state, so that, “even if a document was stolen, or otherwise

obtained by improper means, from a diplomatic mission, inviolability could not be

relied on to prevent the thief or other violator from putting it in evidence”. Lord

Bridge, giving the sole fully reasoned judgment in the House, rejected this submission, saying (p 27F) that:

“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.”

16. The House went on to limit this to circumstances in which the third party receiving the document was aware of the absence of any authority to pass it to him (p 29B-C). To a limited extent therefore, the Tin Council succeeded in establishing that its documents would have inviolability, precluding their use in civil

proceedings. This was part of the ratio of the House of Lords’ decision, as appears at p 31D-E, even though Lord Bridge went on to add that “In the event the rejection of that [Mr Kentridge’s] argument turns out to be of minimal significance in the

context of the overall dispute”.

17. The Canadian case of Rex v Rose An Dig 1946, Case No 76, p 161 was cited to the House in the Tin Council case, but not referred to by Lord Bridge in his judgment. Rose was convicted of furnishing secret material to the Soviet Embassy

in reliance on documents stolen from the Embassy archive by a defector. Rose’s

claim that the stolen documents used against him were immune from use was

rejected, on the grounds that such a claim

“could not be admitted where the recognition of such immunity

was inconsistent with the fundamental right of self- preservation belonging to a State or where the executive had

impliedly refused to recognise such immunity.”

The absence of inviolability in cases where state security is involved has a pedigree going back to the extraordinary Cellamare conspiracy in 1718 by Antonio dei Giudice, Prince of Cellamare and Ambassador of Spain to France, to kidnap and

depose Philippe d’Orléans, Regent of France, and replace him as Regent by Philip

V of Spain: see Martens, Causes célèbres du droit des gens, I, p 149. Rex v Rose is nonetheless controversial, and, more importantly for present purposes, neither of the grounds on which it rests applies to this case.

18.       In his LQR article, cited above, Dr Mann was taking direct issue with the

House of Lords’ rejection in the Tin Council case of Mr Kentridge’s submission.

The Court of Appeal was in my opinion bound to reject Dr Mann’s analysis, and I

see no reason for adopting it. I also consider that the Court of Appeal was incorrect

to identify Dr Mann’s analysis as representing the weight of opinion (para 64).

Professor Denza says, at p 189, that:

“As regards use of the correspondence as evidence, article 27.2

may be regarded as duplicating the protection under article 24 of the Convention which gives inviolability to the archives and

documents of the mission ‘wherever they may be’.”

Professor Jean Salmon of The Free University, Brussels, describes F A Mann’s view

as regards article 27(2), in Further Studies in international law (OUP) (1990), p 226, as “une vue trop restrictive de l’inviolabilité”: Manuel de Droit Diplomatique

(1994), p 244. The quotation from Professor Higgins, set out in para 12 above does

not fit well with Dr Mann’s approach. S E Nahlik, Development of Diplomatic Law,

Selected Problems, 222(III) Recueil des Cours (1990), 291-292 and B S Murty, The

International Law of Diplomacy: The Diplomatic Instrument and World Order

(1989) at p 382 comment critically on Rex v Rose, while J Wouters, S Duquet & K Meuwissen, The Vienna Conventions on Diplomatic and Consular Relations (OUP, 2013) at para 28.4.5.1 state, citing Professor Salmon, that:

“The inviolability of diplomatic/consular archives and

documents entails that they cannot be opened, searched, or requisitioned without consent, and cannot be used as

evidence.”

19. In Fayed v Al-Tajir [1988] QB 712 the de facto head, later Ambassador, of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. For unclear reasons diplomatic immunity was waived, but the question remained whether the document could be used in court. The Court of Appeal held that the document enjoyed immunity from use, and the dispute was non-justiciable. Kerr LJ noted at p 736C-E that the judge in Rex v Rose had concluded that diplomatic

documents generally enjoyed “inviolability”, so anticipating the use of that term in

the Vienna Convention, and that he had expressed the concept of “inviolability” at

p 646 in wide terms:

“International law creates a presumption of law that documents

coming from an embassy have a diplomatic character and that every court of justice must refuse to acknowledge jurisdiction

or competence with regard to them.”

Kerr LJ also noted that this conclusion was supported by Denza on Diplomatic Law (1976), p 110. At p 736F-G, he distinguished the actual decision in Rex v Rose as having been reached on the basis that a citizen could not invoke immunity in litigation with his own government and on the basis of the principle said to derive from the Cellamare conspiracy, neither of which bases had any relevance in Fayed v Al-Tajir.

20. In principle, therefore, inviolability of documents which are part of the mission archive under articles 24 and 27(2) extends to make it impermissible to use such documents or copies in a domestic court of the host country, at any event absent extraordinary circumstances such as those of the Cellamare conspiracy or Rex v Rose and absent express waiver of the inviolability by the mission state. But the application of this principle to any particular document is subject to two qualifications. First, the document must constitute or remain part of the mission archive, and, second, its contents must not have become so widely disseminated in the public domain as to destroy any confidentiality or inviolability that could sensibly attach to it. These two qualifications may sometimes, but certainly not always, coincide. Taking the first, in the present case, there is no indication from where the Wikileaks document emanates, but there is no suggestion that it is likely to have emanated from the United States Embassy in London. It was sent both to the State Department in Washington and elsewhere. There is no indication that the United States Embassy in London attached any reservation to or placed any limitation on the use or distribution of the cable by the State Department or any other authority to whom the cable went. The cable was simply classified as Confidential. In these circumstances, once the document reached the State Department or any other addressee, it was, so far as appears and in the form in which it was there held, a document in the custody of the Federal Government of the United States or that other authority, and not part of the London Embassy archive. Bearing in mind the probability that the Wikileaks cable was extracted from the State Department or some other unknown foreign location to which it had been remitted for information and use there, it is not therefore established, even as a matter of probability that the cable remained part of the archive of the London mission, when it was so extracted. On that simple basis, the Wikileaks cable was available for use and admissible as evidence of its contents in the present proceedings. I therefore arrive as the same conclusion on this point as the Court of Appeal, albeit for different reasons.

21. Taking, second, the possibility of loss of inviolability due to a document from the mission archive coming into the public domain, I have come to the conclusion that this must in principle be possible, even in circumstances where the document can be shown to have been wrongly extracted from the mission archive. Whether it has occurred in any particular case will however depend on the context as well as the extent and circumstances of the dissemination. That seems to me to follow by analogy with the reasoning concerning the protection afforded by the law to confidential material (as opposed to that afforded on grounds of privacy and/or human rights) in cases such as Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 and PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] AC 1081, see also Passmore on Privilege, paras 7-039 and 7-042. In the present case, the cable has been put into the public domain by the Wikileaks publication and the newspaper articles which followed, in circumstances for which the appellant has no responsibility. In my opinion, the cable has as a result lost its inviolability, for all purposes including its use in cross-examination or evidence in the present proceedings. On that ground, I would therefore reach the same conclusion as the Court of Appeal expressed in para 64 of its judgment.

The allegation of improper purpose

22.       On the above basis, the question arising is whether the Court of Appeal was

right to conclude that the Administrative Court’s ruling that the cable was not

available for use or admissible had no material effect on the proceedings and was not a ground for allowing the appeal. The Court of Appeal, after reviewing all the material available, including the cable, the evidence given and the Administrative

Court’s findings, concluded (para 93) that

“even if the cable had been admitted in evidence, the court

would have decided that the MPA was not actuated by the improper motive of intending to create an effective long-term way to prevent Chagossians and their descendants from

resettling in the BIOT.”

A little earlier in its judgment, in para 89, the Court said that it did “not accept that

there is a realistic possibility that the [Administrative Court’s] assessment of the

evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had

been formally admitted as an authentic document”; that in reaching this conclusion,

it had “borne in mind the need to exercise caution in denying relief on the ground

that the legally correct approach would have made no difference to the outcome”;

but that it was “satisfied that the admission of the cable in evidence would have

made no difference”.

23.       Before the Supreme Court, criticism was directed at the Court of Appeal for

formulating its conclusions in terms of what “would”, rather than “could” have made

a difference. Reference was made to well-known authorities on the test applicable in cases of breach of natural justice (or unfairness) by public authorities, including Malloch v Aberdeen Corpn [1971] 1 WLR 1578 and R (Cotton) v Chief Constable of the Thames Valley Police [1990] IRLR 344, paras 59-60, per Bingham LJ. Reference was also made to the discussion, without decision, on the test applicable on an application to the Supreme Court to set aside a prior judgment of its own in Bancoult (No 4), cited in para 1 of this judgment. The precise test must depend on the context, including, in particular, how well-placed the court is to judge the effect of any unfairness. In the present case, the complaint is of lack of opportunity for full cross-examination and for the trial court to weigh the evidence it heard in the light of the cable, treating the cable as admissible. In these circumstances, I am prepared for present purposes to accept that the appropriate question is whether the admission of the cable for use in these ways could have made a difference. However, I also consider that this is in substance how the Court of Appeal approached the issue. The conclusion it reached (see para 22 above) was that there was no

“realistic possibility that the [Administrative Court’s]

assessment of the evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had been formally

admitted in evidence as an authentic document.”

Its statement at the end of para 89 that “the admission of the cable in evidence would

have made no difference” must be read, in context, as a shorthand resumé of this

conclusion. A conclusion that there was no realistic possibility that the assessment would have been affected amounts, in substance, to a conclusion that the admission of the cable could not realistically have made a difference. Nonetheless, it is incumbent upon the Supreme Court to consider for itself whether the Court of Appeal erred in reaching that conclusion.

24. The Administrative Court undertook in paras 53 to 77 of its judgment a full and careful review of the genesis and development of and decision to announce the MPA and a no-take zone, which the Court of Appeal accurately summarised as follows:

“75. … The catalyst for making the MPA was a proposal made in July 2007 by an American environmental group, Pew Environmental Group, to Professor Sheppard, the environmental adviser for the BIOT. On 5 May 2009, Mr Roberts submitted a briefing note to the Secretary of State which explained the benefits of the proposal. These included that, because of the absence of a settled population and the strict environmental regime already in force, the BIOT was one of the few places in which a large scale approach to conservation was possible; and it offered great scope for

scientific and climate change research. The Secretary of State’s

reaction was enthusiastic. His private secretary emailed Mr

Roberts to say that the Secretary of State was ‘fired up’ after the meeting and ‘enthusiastic to press ahead’ with the proposal.

76. This was followed by a meeting to discuss the proposal with US Embassy officials on 12 May 2009. This is the crucial meeting the gist of which was purportedly summarised in the copy cable dated 15 May 2009. Both Mr Roberts and Ms Yeadon attended the meeting and were cross-examined about

it. Mr Roberts denied making any reference to ‘Man Fridays’.

He said that he recognised that the declaration of an MPA, if

‘entrenched’, would create a serious obstacle to resettlement.

Ms Yeadon also denied that Mr Roberts had used the words

‘Man Fridays’ or that he had said that establishing a marine

park would put paid to resettlement claims. The Divisional

Court said (para 61) that it found Ms Yeadon to be ‘an impressive and truthful witness’. Having referred to an

important note of a meeting held on 25 March 2009, the court

said at para 63: ‘as Ms Yeadon understood, at official level,

HM Government regarded the resettlement issue as settled by the 2004 Order, subject only to the pending decision of the

Strasbourg Court’ (this is a reference to the claimant’s

application which was eventually dismissed by the ECtHR on
20 December 2012: see para 7 above).

77. By a note dated 29 October 2009, Ms Yeadon proposed to Mr Roberts and the Secretary of State that consultation on the proposal to declare an MPA be launched on 10 November.

Under the heading ‘Risks’, she noted that the risk of an

aggressive reaction from the Chagossians and their supporters

was high and said: ‘they may claim that we are establishing a

Marine Protected Area in order to ensure that they can never

return to BIOT. This is not the case ...’ The court said (para 65) that it was ‘satisfied that in this passage Ms Yeadon again

stated what she genuinely believed: that the proposal to establish an MPA was not to ensure that the Chagossians could

never return.’

78. In a note dated 30 March 2010, Ms Yeadon proposed that the Secretary of State should publish the report on consultation and declare his belief that an MPA should be established, but only after further work had been done. There followed a flurry of emails between officials. The Secretary of

State did not accept Ms Yeadon’s advice. On 1 April, he

announced the creation of an MPA in the BIOT which included

a ‘no take’ Marine Reserve where commercial fishing would

be banned. Mr Roberts duly made the proclamation on 1 April.

79. The Divisional Court expressed its conclusion on the improper motive point in these terms:

‘74. This material makes it clear that it was the

personal decision of the Foreign Secretary to declare an MPA on 1 April 2010, against the advice of his officials. There is no evidence that, in doing so, he was motivated

to any extent by ‘an intention to create an effective long-

term way to prevent Chagossians and their descendants

from resettling in the BIOT’. His Private Secretary

could hardly have written on 7 May 2009, the day after the presentation of the proposal by Professor Sheppard

to him, that he was ‘really fired up about this’ if the

proposal was presented as a cynical ploy to frustrate Chagossian ambitions. It is obvious that he was responding to a proposal presented by a man, Professor Sheppard, who was keen to see it adopted and put into effect for scientific and conservation purposes only. Later, on 31 March 2010, when the Foreign Secretary made the decision to go ahead immediately, the decision had nothing to do with Chagossian ambitions. The decision to override official advice can best be understood in the political context: Parliament was about to be dissolved. The Foreign Secretary no doubt believed that the decision would redound to the credit of the Government and, perhaps, to his own credit. It would do so the more if a decision with immediate effect was taken. Officials thought that this would create

difficulties but it was the Foreign Secretary’s

prerogative to override their reservations and make the decision which he did. 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.

75. It is significant that the Foreign Secretary’s announcement contained the caveat which always accompanied public and private statements by officials: that the decision was subject to the pending judgment of the Strasbourg Court. Unless there was some deep plot to frustrate an adverse judgment, of which there is no evidence at all, this fact alone demonstrates that no sensible official in the FCO could have believed that the establishment of an MPA would fulfil the improper purpose alleged. Nor could it have done. The proclamation made by Mr Roberts on 1 April 2010 stated that:

‘The detailed legislation and regulations

governing the said Marine Protected Area and the implications for fishing and other activities in the Marine Protected Area and the territory will be

addressed in future legislation of the territory.’

The only step taken since then has been to allow fishing licences current at 1 April 2010 to expire and to issue no more. What prevents the return of Chagossians to the islands is the 2004 Order, not the MPA. If, at some future date, HM Government decided or was constrained by a judgment of a court to permit resettlement or the resumption of fishing by Chagossians, nothing in the measures so far taken would prevent it or even make it more difficult to achieve.

76. For the claimant’s case on improper purpose to be right a truly remarkable set of circumstances would have to have existed. Somewhere deep in government a long-term decision would have to have been taken to frustrate Chagossian ambitions by promoting the MPA. Both the administrator of the territory in which it was to be declared, Ms Yeadon, and the person who made the decision, the Foreign Secretary, would have to have been kept in ignorance of the true purpose. Someone - Mr Roberts? - would have been the only relevant official to have known the truth. He, and whoever else was privy to the secret, must then have decided to promote a measure which could not achieve their purpose, for the reasons explained above, while explaining to all concerned that the MPA would have to be reconsidered in the light of an adverse judgment of the Strasbourg Court. Those circumstances would provide an unconvincing plot for a novel. They cannot found a

finding for the claimant on this issue.’

80.       In order to test Mr Pleming’s submission that the effect

of the Divisional Court’s ruling was to deprive him of the

opportunity of properly testing the evidence of the witnesses, it is necessary to see what cross-examination he was able to undertake. During day 1 and day 2 of the hearing, Mr Pleming cross-examined Mr Roberts extensively about the meeting of 12 May 2009 by reference to various documents, including the cable. Although Mr Roberts was not prepared to answer questions as to whether the contents of the cable were accurate (because of the NCND policy), nevertheless he answered questions as to what he might or might not have said at the meeting: see day 1 pp 155 to 169 and day 2 at pp 9 to 41. Mr Pleming confirmed to the court that his general purpose in cross-examining on the cable, paragraph by paragraph, was to establish its general accuracy by reference to relatively uncontroversial passages in it.

81. Despite his repeated reliance on the NCND policy, Mr Roberts gave extensive evidence of what was discussed at the meeting on 12 May. For example, in relation to one passage

from the cable, he said: ‘I can confirm that the general content

and sense of the issues that you have just read out is consistent with the discussion we were having with the United States at

the time’. In relation to another passage, he said: ‘I don’t recall

what language I would have used at the time but it would have been consistent with the general position that we were trying to

set out to the United States’.

82. At p 36 on day 2, Mr Roberts accepted that he did say to the US officials that the establishment of an MPA would in effect put paid to the resettlement claims. He said that this was

‘a recognition of a reality’ that, if the MPA was ‘entrenched’

(ie a law which would be impossible or difficult to repeal), this

would be a ‘serious obstacle to resettlement’. He denied that he

had said anything about ‘footprints’ or ‘Man Fridays’: ‘that was not the nature of the conversation’. Mr Pleming sought to

persuade the court to give a ruling as to whether Mr Roberts should be required to answer questions about the accuracy of the contents of the cable. Mitting J asked whether it was necessary to have this debate, since Mr Roberts had accepted that a consequence of establishing an MPA would be that the hopes of the Chagossians to return would be thwarted. Richards LJ was not sure how much more Mr Roberts could say. He had

indicated why he declined to answer the ‘ultimate’ question;
but he had answered all the ‘intermediate’ questions.

83. The court did not make any final ruling at this stage and Mr Pleming continued with his cross-examination of Mr Roberts by reference to the cable: see day 2 pp 78 to 80. He put it to Mr Roberts that his purpose was to use the MPA to prevent or kill off the claims for resettlement; and that this policy

‘shines out of the record of that meeting and is not a policy you

would want to put in written form so that it could ever be seen

by the Chagossians or in any litigation’. Mr Roberts replied: ‘No, I reject that suggestion entirely. I do not believe it is

possible to keep a policy of that significance quiet.’”

25. It is worth underlining some points about the history which arise from this account. First, the whole idea of an MPA and a no-take zone was generated by independent environmental activity. An American environmental group, Pew, made

the initial proposal to Professor Charles Sheppard, BIOT’s independent

environmental adviser, in July 2007. This led on 22 April 2008 to discussions between Pew and Ms Yeadon about the creation of an MPA, in which there would be a no-take zone. On the same day, the Chagos Conservation Network, whose founders included Pew and Professor Sheppard, held its inaugural meeting at the Linnean Society, and expressed the view that there should be a no-take zone within BIOT waters. On February 2009, The Independent reported in an article that the Chagos Conservation Trust, the RSPB, the Zoological Society of London and Pew were launching a plan for an MPA, which would be compatible with defence interests and would offer a possibility that some Chagossians might return as environmental wardens; a marine biologist from York University was reported as describing the attitude of the British government towards the Chagos Islands up to

that time as “one of benign neglect”; and the British government itself was reported as saying it would “work with the international environmental and scientific

community to develop further the preservation of the unique environment”. (The

Mauritian government’s response to this article was that the Chagos Islands were

under its sovereignty, so that its consent would be required.)

26. Second, it is clear that, from the outset, the relevant decision-maker was to be the Secretary of State for Foreign and Commonwealth Affairs, Mr David Miliband, in person, not the civil servants who were directly or indirectly reporting to or advising him. Mr Miliband was first briefed on the idea of an MPA by a six and a half page note from Mr Roberts dated 5 May 2009. This was in terms to which no objection is or could be taken, and was followed up by a meeting with Mr Roberts

and Professor Sheppard. The note identified and examined the “numerous benefits” and “wide range of potential beneficiaries” of an MPA. The benefits fell under the

heads of conservation, climate change, scientific [research], development, reputational/political and security (the last being explained by Mr Roberts in a witness statement dated 1 May 2012 as relating to control of illegal, unregulated and unreported fishing). The note went on to examine risks. In that connection, it

identified Mauritian sovereignty claims and “a side deal done at the time of excision which gave Mauritius the right to apply for fishing licences free of charge”, the

Chagossian movements and the US military. The US military were not thought likely to oppose, and the note expressed confidence that reassurances could be given that they would not experience any rise in the security risk, impediment to freedom of manoeuvres or significant increase in environmental regulation.

27.       In relation to the Chagossian movements, the note said:

“Their plans for resettlement are based on the establishment of

an economy based on fishing and tourism. In the specific context of BIOT this would be incompatible with a marine reserve. They are therefore hostile to the proposal, unless the right of return comes with it. They have expressed unrealistic hopes that the reserve would create permanent resident employment based on the outer islands for Chagossians.

Assuming we win in Strasbourg [as in the event occurred], we should be aiming to calm down the resettlement debate. Creating a reserve will not achieve this, but it could create a context for a raft of measures designed to weaken the movement. This could include:

-	presenting new evidence about the precariousness of any settlement (climate change, rising sea levels, known coastal defences costs on Diego Garcia)
-	activating the environmental lobby

- contributing to the establishment of community

institutions in the UK and possibly elsewhere

-	committing to an annual visit for representatives of
the communities to the outer islands on All Saints’
Day

- inclusion of a Chagossian representative in the

reserve government.

-	[an irrelevant redaction]”

28. It is not suggested that this note was other than an objective assessment of the proposal, or that it contains or suggests any improper motivation. As the

Administrative Court stated (para 77), the only “collateral” factor relating to

Chagossian ambitions which it shows is that the proposal might, in various ways,

permit the Government to “calm down the resettlement debate” and attract support

for the Government’s position from the environmental lobby. The Administrative

Court went on:

“This could not have the effect of creating an effective long-

term way to prevent resettlement and Mr Pleming rightly conceded that it would not taint a decision genuinely to further

environmental and scientific purposes.”

That remains the position before the Supreme Court.

29. The note was followed up by a meeting between the Secretary of State, Mr Roberts and Professor Sheppard, which was on the evidence principally devoted to a slide show by Professor Sheppard showing the environmental benefits of an MPA.

As a result of the note and meeting, Mr Miliband was “fired up” by the proposal and

“enthusiastic to press ahead”.

30. Thirdly, the meeting a week later between Mr Roberts, Ms Yeadon and representatives of the United States Embassy was aimed at briefing a United States counsellor (Mr Richard Mills) interested in knowing more about the Chagos Islands position, no doubt as it related to the United States concerns identified in the note dated 5 May 2009. In his initial summary in para 1 of the cable, its author recorded Mr Roberts as saying that

“the BIOT’s former inhabitants would find it difficult, if not

impossible to pursue their claim for resettlement on the islands

if the entire Chagos Archipelago were a marine reserve.”

The ensuing paragraphs included the following:

“7. … Roberts stated that according to the HGM’s [sic] current thinking on a reserve, there would be no ‘human footprints’ or ‘Man Fridays’ on the BIOT’s uninhabited

islands. He asserted that establishing a marine park would, in

effect, put paid to resettlement claims of the archipelago’s

former residents …”

The final paragraph of comment included this:

“15. Establishing a marine reserve might indeed, as FCO’s Roberts stated, be the most effective long-term way to prevent

any of the Chagos Islands’ former inhabitants or their

descendants from resettling in the BIOT.”

31. Accepting the Wikileaks memorandum as a genuine record of the meeting, it must be seen in that context. What would have concerned the United States were the consequences of an MPA, not the motivation. Further, the opening and the final two paragraphs are evidently comment or attempted summary by Mr Mills, while it is the intermediate paragraphs that purport to record the actual course of the discussion. In the case of The Guardian report of the cable, the intermediate paragraphs have

interposed what are evidently journalistic captions. I note at this point Lord Kerr’s

suggestion (paras 84 and 86) that US military needs provided no reason for Mr Roberts and Ms Yeadon to assure the Americans, or ask them to confirm their

requirement, that no resettlement would occur elsewhere in the BIOT. The “obvious

question” which Lord Kerr considers to arise in this regard was not raised before the

Supreme Court. But the answer is clear. The original exchange of notes between the

United States and United Kingdom in 1966 provided that all of the BIOT be “set aside for defence purposes” and that any significant change of the BIOT’s status that

could impact the BIOT’s strategic use would require US consent. Hence also, Mr

Roberts’ statement in this connection in his note dated 5 May 2009 that

“We expect we will have our work cut out to reassure the US

military that creation of a reserve will not result in trouble for them. Trouble could be any rise in the security risk, any impediment to the freedom of manoeuvre, or any significant

raising of the bar in terms of environmental regulation.”

Lord Kerr himself says in para 88 that the theme that “… the MPA would prevent any resettlement of the islands ... certainly preoccupied the Americans” in May

2009.

32. In November 2009 a consultation was launched in respect of the proposal. The motivation for the proposal was explained as being environmental and scientific, and various options were presented for public consideration. The consultation process ended in early March. The proposal then returned to the political arena, where the same picture of independent decision-making by the Secretary of State emerges as nearly a year before. This concluded with Mr Miliband instructing Mr Roberts as Commissioner for BIOT to issue Proclamation No 1 of 2010 (para 2 above), and with an FCO statement dated 1 April 2010 to the effect

that “This will include a ‘no-take’ marine reserve where commercial fishing will be

banned”.

33. More specifically, the events leading to this decision were as follows. A submission dated 30 March 2010 from Ms Yeadon had discussed how best to progress the proposal. In it, Ms Yeadon pointed to likely opposition and possible international moves by the Mauritian government and advised that, rather than any immediate decision, more time should be taken to work through the various issues and a positive, but not definitive, announcement should be made. However, at 18.06

on the same day, Mr Miliband’s office informed Ms Yeadon that Mr Miliband’s
“inclination [was] to be bolder” and actually to decide to go ahead.

34. At 8.30 next morning, Mr John Murton, at that time, it appears, the British High Commissioner in Mauritius, commented that he had no idea whether Mr Miliband would follow the recommendations of the day before, but that, if he went for the MPA immediately, they would face problems. Shortly before 11.47 next day,

Mr Miliband’s office informed Ms Yeadon by telephone that Mr Miliband was

minded to ask Mr Roberts to declare an MPA and a full no-take zone, that no final decision has yet been taken, and that he would like to find some way of mitigating the Mauritian reaction. An internal email reaction by Mr Roberts at 12.07 proposed

to give Mr Miliband “a clearer steer”. This led to an immediate rejection by another civil servant, Mr Andrew Allen, who at 12.31 stated his view that “this approach

risks deciding (and being seen to decide) policy on the hoof for political time-tabling

reasons rather than on the basis of expert advice and public consultation” and was a

very different approach to the one recommended the day before, which Mr Miliband was still considering. The reference to political time-tabling is a clear reference to the general election due not later than five years after 5 May 2005, and in fact

announced on 6 April 2010 for 6 May 2010. Mr Allen’s view was endorsed by Mr

John Murton at 12.45, with the additional comment that - while “Obviously the Foreign Secretary is free to make whatever decision he chooses” - “to declare the

MPA today could have very significant negative consequences for the bilateral

relationship” with Mauritius, where an announcement of general elections was also

expected, that same day, where ministers were uncontactable as a result and where

the prime minister “would greatly resent our timing”. Mr Murton thought that “there

might be a market for a proposal to work with Mauritius as a privileged partner on

management issues etc prior to a final decision on an MPA”. These exchanges led

to the preparation of a further note from Ms Yeadon addressed to Mr Roberts, and, when finalised, evidently also forwarded to the Secretary of State. The note reported

the views expressed and repeated the previous day’s recommendation against any

rapid decision.

35. Mr Miliband did not accept the advice tendered on 30 and 31 March 2010. He said he had carefully considered it and given serious thought to the different possible options. But his decision was to instruct Mr Roberts to declare the full MPA on 1 April 2010.

36. In these circumstances, the present issue can be approached, as the courts below have done, at two different levels. The first involves considering whether

there is any real likelihood or risk that the Administrative Court’s assessment of Mr Roberts’ and/or Ms Yeadon’s motivation would have been different if the

Administrative Court had permitted further cross-examination on the Wikileaks memorandum and had accepted that memorandum as evidence of what its contents purport to record. The second is whether there is any real likelihood or risk that any improper motivation on the part of Mr Roberts and/or Ms Yeadon affected the ultimate decision-maker (Mr Miliband) or his decision.

37. As to the first level, the Administrative Court heard both Mr Roberts and Ms Yeadon being cross-examined on the most important passages of the cable, particularly the summary in the first and last paragraphs and the purported recital of actual discussion in para 7. Mr Roberts accepted that he said words to the effect that it was governmental policy that there should be no human footprint on the Chagos Islands (other of course than Diego Garcia), embracing within that term absence of

scientific or wardens’ offices, temporary workers as well as resettlement. He

accepted that he had said that establishing an MPA would in effect put paid to resettlement claims, but explained that this was recognition of a reality that the Chagossians themselves had originally raised and that it only related to an MPA

“entrenched” by law. He said that entrenchment was in the event never pursued, and

that the proposal for an MPA was at the time always subject to the outcome of the proceedings in Strasbourg. Ms Yeadon on the other hand denied that Mr Roberts had said that establishing an MPA would in effect put paid to resettlement claims. Resettlement was, in her view, already precluded by the 2004 Order (subject only to the pending decision of the Strasbourg Court), a point on which the Administrative Court accepted her evidence, finding it to be supported in a note of a meeting of 25 March 2009 between Mr Roberts, Ms Yeadon and a Chagossian delegation including the appellant and their solicitor, Mr Gifford. Both Mr Roberts and Ms Yeadon were adamant that Mr Roberts had not used, and would never have used, the highly emotive words Man (or Men) Fridays.

38. The first tier question in these circumstances is whether further cross- examination might have led to more material favourable to the appellant’s case of

improper motivation on the part of Mr Roberts and/or Ms Yeadon and whether admission of the cable in evidence to counterbalance the evidence of Mr Roberts and Ms Yeadon might have led the Administrative Court to accept that either or both was, when advancing the proposal for an MPA, improperly motivated by the desire to prevent resettlement.

39.       As to this question, the “extensive” evidence given by Mr Roberts about the

meeting on 12 May and Ms Yeadon’s own evidence give a picture which is generally

and substantially consistent with that presented by the cable. In my opinion, Lord

Kerr’s references to an account or statements “inconsistent with”, or “directly

contrary to” or “flatly contradict[ing]” or “in obvious conflict” (paras 91, 92, 94 and

107) are not borne out by comparison of the evidence and the cable. That too was how the Court of Appeal evidently saw the position: see its paras 80 to 82 quoted in para 24 above; and see also para 37 above.

117. Lord Mance has suggested (in paras 41-43) that even if Mr Roberts and/or Ms Yeadon had an improper motive, there is no conceivable reason to conclude that this affected the ultimate decision-maker. I am afraid that I cannot agree. True it is, as the Court of Appeal observed in para 91 of its judgment, that the decision was personal to the Foreign Secretary. True it may also be, as the Court of Appeal found,

that the Foreign Secretary believed that the declaration of an MPA would “redound

to the credit of the government and, perhaps, to his own credit”, although I am not

at all clear as to the evidence on which the court drew to support that conclusion. But, if the minister had been aware that the civil servants were recommending the establishment of an MPA with the covert purpose of ensuring that the Chagos

Islanders’ ambition to return to their homeland would never be fulfilled, can it be

said that his decision would be immune from challenge? Surely not.

118. It is not a question of reconfiguring the principle in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 so as to fix the Secretary of State with the knowledge, motives and considerations of civil servants. Rather it is whether a decision of the Secretary of State, taken in ignorance of a concealed reason for the recommendation on which he acted, can be regarded as lawful. In my judgment, a decision taken on a recommendation made to him without knowledge of the true reasons that it was made, cannot be upheld on the basis that it was a decision made without regard to material factors. On the premise that the advice to the Foreign Secretary was fashioned so as to withhold from him the true motivation for it, his decision is impeachable because he was deprived of the opportunity to consider all relevant circumstances and, on that account, it could not stand.

119. Again, it is suggested that this was not argued on behalf of the appellant before this court. For the reasons given earlier, I do not accept that this is a basis on which the point may be ignored, if it has validity. Lord Mance has stated, however, that the withholding of such information, if it were deemed sufficient to undermine

a ministerial decision, would lead logically to the conclusion that “any irrelevant

misconception possessed by any civil servant at any level in the civil service hierarchy in relation to any proposal ultimately reaching Cabinet level could

undermine a Cabinet decision.” - para 48. With much regret, I must register my profound disagreement with this statement. In the first place, if the appellant’s case

is made good, the purpose of Mr Roberts and Ms Yeadon was not the product of a

“misconception”. It was the outworking of a strategy to promote the establishment

of the MPA for an ulterior motive. A minister whose imprimatur was required to endorse the advice given would surely need to be aware of the true motive for recommending the course that he had been advised to follow, in order that his decision be immune from challenge. There is no logical connection between the withholding of vital, relevant information from a decision-maker and his failure to

be aware of a “misconception” on the part of those advising him.

120. The fact that the Foreign Secretary rejected the proposal that he should consult on the proposal is nothing to the point, in my opinion. He decided to proceed with the MPA on the basis of advice that it would not, of itself, eliminate the chances of resettlement of the Chagos Islands. If, contrary to that advice, it was the view of the civil servants that the MPA would achieve precisely that aim, the minister should have been aware of it. Not being informed of it meant that he was not in a position to take all material considerations into account.

121. I consider, therefore, that the Court of Appeal should have recognised that there was a substantial possibility that, not only would the Divisional Court have taken a different view of the evidence of Mr Roberts and Ms Yeadon, if they had admitted the cable and the case had proceeded to its conventional conclusion, but that there was an equally substantial possibility that it would have concluded that

the Foreign Secretary’s decision could be impugned because it was taken on a

misapprehension of the true facts and circumstances. For these reasons, I would have allowed the appeal and ordered that the matter be remitted for hearing before a Divisional Court with the direction that it be reconsidered on the basis that the cable was admissible in evidence.

Fishing rights

122.     I agree with Lord Mance on the issue of fishing rights.

LADY HALE:

123. This case is of huge importance to the Chagossians in their campaign to be permitted to re-settle in their islands and to fish in the waters surrounding them. On the substance of the appeal, I agree with Lord Kerr that we cannot be confident that

the findings of the Divisional Court would have been the same had the “Wikileaks cable” been admitted into evidence and counsel been permitted to cross-examine the

FCO officials upon it. The crucial legal issue in the case is therefore the admissibility of the cable, which is a matter of considerable importance both nationally and internationally.

124.     I agree with both Lord Mance and Lord Sumption that “inviolable” in articles

24 and 27(2) of the Vienna Convention on Diplomatic Relations in general means,

among other things, that the archives and documents (article 24) and the “official

correspondence” (article 27(2)) of the mission cannot generally be admitted in

evidence, at least in the courts of the receiving state, because to do so would interfere in the privacy of the communications of the mission, both internally and with its sending government. The question, therefore, is when such inviolability is lost.

125.     In Lord Mance’s view, the cable did not remain part of the archive of the

London mission once it had been remitted to the State Department or some other location for information and use there (para 20). It is indeed very probable that the leak did not take place from the mission but from elsewhere in the United States government. Nevertheless, as the main purpose of the inviolability rule is to allow the mission to communicate in confidence with the sending government, documents emanating from a mission must retain their confidentiality and consequent inviolability in some circumstances.

126.     Lord Sumption agrees with Lord Mance but bases this on the principle of

“control”. Documents, he says, are inviolable if “they are under the control of the

mission’s personnel, as opposed to other agents of the sending state” (para 68). I can

agree with this only if it is understood that “control” includes the restrictions placed

by the sending mission (and for that matter the sending state communicating with the mission) on the further transmission and use of the document. It is my understanding of civil service practice in this country that the initiator of a document decides upon the appropriate level of confidentiality and marks the document accordingly. Other persons within government who receive the document are bound to respect that marking. (Cabinet Office, Government Security Classifications, April 2014, eg para 28.) It is reasonable to assume that other countries have similar practices in their intra-governmental communications.

127. It cannot be the case that a diplomatic communication loses its inviolability once it has left the mission. The concept of control must include the restrictions placed by the sending mission on the dissemination of the communication, subject to the directions of their superiors in the sending state. In both versions of the Wikileaks cable which we have - one published in the Guardian and one in the Daily Telegraph - it was classified Confidential by Political Counsellor Richard Mills for reasons 1.4b and d (whatever they may be). That indicates a rather low level of control exercised over the document, which obviously found its way into many hands before it was acquired and put into the public domain by Wikileaks.

128. Whatever may be the position in relation to other documents passing between a mission and their sending department, it seems clear in this case that whatever control there had initially been exercised over this document, it was lost even before it was put into the public domain. I therefore agree that it was no longer inviolable and should have been admitted in evidence in this case. As Lord Kerr has explained, its contents were such that they could have made a difference to the result. I would therefore have allowed this appeal.