R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2016] UKSC 35

The Chagossians sought to set aside the House of Lords' 2008 decision upholding the validity of section 9 of the BIOT Constitution Order 2004, which denied them right of abode. They relied on late-disclosed documents (the Rashid documents) said to undermine the feasibility study justifying the Order. The Supreme Court dismissed the application by a 3-2 majority.

Facts

The Chagossians are indigenous inhabitants of the British Indian Ocean Territory (BIOT), who were removed between 1968 and 1973 to make way for a United States military base on Diego Garcia. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2001] QB 1067, the Divisional Court quashed the Immigration Ordinance 1971 which had prohibited their return. Following a feasibility study (the Phase 2B report prepared by Posford Haskoning in 2002) which concluded that long-term resettlement would be prohibitively expensive, the Secretary of State enacted section 9 of the British Indian Ocean Territory (Constitution) Order 2004, again removing any right of abode. In Bancoult (No 2) [2008] UKHL 61, the House of Lords by a 3-2 majority upheld the validity of section 9.

In subsequent proceedings (Bancoult (No 3)), the Treasury Solicitor in May 2012 disclosed previously undisclosed documents (the “Rashid documents”), including a draft of the Phase 2B report and correspondence between the FCO, the consultants and Dr Charles Sheppard (an FCO scientific adviser). Mr Bancoult applied to set aside the House of Lords’ decision in Bancoult (No 2), alleging breach of the Secretary of State’s duty of candour in failing to disclose these documents.

Issues

The Supreme Court had to decide:

• Whether it had jurisdiction to set aside the earlier decision and, if so, the applicable test;
• Whether the failure to disclose the Rashid documents amounted to an unfair procedure justifying setting aside the decision;
• Whether the documents would or might well have led to a different outcome had they been disclosed in the original proceedings;
• Whether additional fresh evidence (including expert reports and statements from sub-contractors) justified re-opening the case.

Arguments

For the Appellant

Mr Fitzgerald QC argued that disclosure of the Rashid documents would have led to a challenge to the reliability of the Phase 2B report. The documents showed: extensive alterations to the draft reflecting FCO views; criticisms of the draft by Dr Sheppard; lack of objectivity in Dr Sheppard’s input; and material alterations conflating and distorting the consultants’ findings on storms and resettlement. He submitted that the test was whether there “may well” have been a different outcome.

For the Respondent

The Secretary of State accepted the documents should have been disclosed but contended this was not deliberate. It was argued that the documents would not have led to a different outcome, that the General Conclusions of the Phase 2B report remained unchanged between draft and final versions, and that a new 2014-2015 KPMG feasibility study had in any event shifted the background.

Judgment

Majority (Lord Mance, with whom Lord Neuberger and Lord Clarke agreed)

Lord Mance accepted that the Supreme Court has inherent jurisdiction to correct injustice caused by an earlier judgment, citing Ex p Pinochet Ugarte (No 2). He left open whether the appropriate threshold was “probability” or whether a slightly lower test (“may well have had a decisive effect”) might apply in cases involving egregious procedural breaches, finding that the outcome did not depend on the test applied.

On the merits, Lord Mance analysed each alleged significant feature of the Rashid documents. He found that the General Conclusions and the “Vulnerability” section of the Phase 2B report were identical in both the draft and final versions. The alterations elsewhere in section 1.8 (concerning climate change) were limited in extent and supported by Dr Sheppard’s robust scientific views; if anything, Dr Sheppard considered the report understated the risks. The exchanges between the FCO, BIOT and the consultants demonstrated “a proper, professionally oriented and independent process”. There was no basis to regard Dr Sheppard as lacking objectivity.

Lord Mance concluded that there was no probability, likelihood or prospect that a court would have found the material undermined the rationality of the Secretary of State’s decision to rely on the General Conclusions in June 2004. The additional evidence (the Akester letter, Professor Kench’s review and the Analysis Note) was either inadmissible because it did not go to information available to the executive in 2004, or insufficient.

Lord Mance also held that the 2014-2015 KPMG feasibility study had shifted the background, and that Mr Bancoult could challenge any future refusal to permit resettlement by way of judicial review. This was a factor militating strongly against setting aside the House of Lords’ judgment.

Lord Clarke, although sympathetic to Mr Bancoult and having been a member of the Court of Appeal which decided in his favour, reluctantly agreed with Lord Mance, emphasising that the ongoing feasibility study and the possibility of future challenge meant that setting aside the earlier decision would be disproportionate.

Minority (Lord Kerr, with whom Lady Hale agreed)

Lord Kerr would have granted the application. He held that the real issue on rationality before the House of Lords was not merely whether the Secretary of State acted reasonably in accepting the report’s findings, but whether it was rational to deny the Chagossians their fundamental right of abode in order to forestall a campaign to obtain government funding for resettlement, when no legal obligation to fund existed. The test should be whether there was a real possibility of a different outcome, and it was sufficient that the non-disclosure may well have had a decisive effect.

Lord Kerr considered the Rashid documents revealed: that the consultants were told what the government hoped the outcome would be; that the draft was subject to BIOT approval; that Dr Sheppard had been highly critical of much of the science; that Dr Sheppard endorsed some of Mr Jenness’s criticisms; and most importantly that conditional predictions about climate change in the draft had been transformed into firm predictions in the final report, with omissions concerning the cyclone belt. He concluded that the appeal might well have been decided differently and that the application should be allowed.

Lady Hale agreed with Lord Kerr, emphasising the duty of candour in public law and the importance of procedural fairness. She considered that the court should not struggle to find the result would have been the same when there had been an unfair procedure.

Implications

The jurisdiction to set aside

The judgment confirms that the Supreme Court has inherent jurisdiction to set aside a decision of its predecessor (the House of Lords) where an injustice has been caused by an unfair procedure, including the failure to disclose relevant documents. However, the threshold remains high. The majority left open whether the appropriate test is one of “probability” or whether a lower test such as “may well have had a decisive effect” could apply, particularly in cases of egregious procedural breach.

Duty of candour

The decision reinforces the high duty of candour owed by public authorities in judicial review proceedings. All members of the Court acknowledged that the failure to disclose the Rashid documents was culpable, although not deliberate or in bad faith. Lady Hale’s observations underscore that the duty includes proper record-keeping and full and fair disclosure of all relevant material.

Practical impact for the Chagossians

The decision means the validity of section 9 of the 2004 Constitution Order stands. However, the majority expressly noted that it remains open to any Chagossian to challenge any future refusal to permit or support resettlement by way of judicial review in light of the new 2014-2015 KPMG feasibility study, which considered for the first time the possibility of resettlement on Diego Garcia itself. The constitutional ban, in the majority’s view, logically needs to be revisited.

Wider significance

The case illustrates the limited circumstances in which a final decision of the United Kingdom’s highest court may be re-opened. It also exposes the tension between procedural fairness and finality of judgments. The strong dissenting judgments of Lord Kerr and Lady Hale highlight the continuing controversy over the treatment of the Chagossians and the importance of holding public authorities to high standards when fundamental rights are at stake.

Verdict: The application to set aside the House of Lords’ judgment in Bancoult (No 2) and direct a rehearing of the appeal was dismissed by a majority of 3-2 (Lord Mance, Lord Neuberger and Lord Clarke; Lord Kerr and Lady Hale dissenting).

Source: R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2016] UKSC 35