The Supreme Court dismissed a challenge to the 2010 marine protected area around the Chagos Islands. A leaked United States cable, said to show that officials wanted the reserve to make Chagossian resettlement impracticable, was admissible, but the majority held that it would not have shown an improper purpose in the Foreign Secretary’s own decision, and that the consultation was not unfair for failing to mention arguable Mauritian inshore fishing rights. The Court left open what effect a later international award, finding that those fishing rights exist, might have in domestic law.
The appellant chairs the Chagos Refugees Group, which represents Chagossians removed from the British Indian Ocean Territory between 1971 and 1973. Return remained prohibited under the BIOT Constitution and Immigration Orders 2004. This appeal did not reopen that ban. It concerned Proclamation No 1 of 2010, by which the BIOT Commissioner, Colin Roberts, acting on instructions given through a Secretary of State, established a marine protected area in the existing 200-mile environment zone. The Government said that the area would include a “no-take” marine reserve in which commercial fishing would be banned. No new fishing legislation was needed: existing licences were allowed to expire and no fresh licences were issued.
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The two grounds
The challenge had two limbs. First, the marine protected area was said to have been created for an improper ulterior purpose: to make resettlement impracticable by removing fishing as a source of occupation and livelihood. Second, the preceding consultation was said to have been unfair because it did not disclose the arguable existence of Mauritian inshore fishing rights, within 12 miles of shore. The appellant did not ask the Court to decide that those rights were legally enforceable. The case was confined to whether there was credible evidence of a United Kingdom undertaking to Mauritius, later reflected in preferential treatment of Mauritian vessels, which consultees should have been told about.
The leaked cable
The improper-purpose allegation rested on a leaked US diplomatic cable. It recorded a 2009 conversation with British officials and suggested that a marine reserve would make resettlement difficult. Newspapers published the cable before the hearing. The appellant had played no part in obtaining it.
The Administrative Court would not treat the cable as genuine. It held that using it would breach the inviolability of a diplomatic mission’s archives and official correspondence under articles 24 and 27(2) of the Vienna Convention on Diplomatic Relations, given effect by the Diplomatic Privileges Act 1964. Cross-examination therefore proceeded without any suggestion that the cable was authentic. The Court rejected both grounds. The Court of Appeal held that the cable was admissible because a third party had already disclosed it to the world, but decided that its exclusion could have made no difference and again rejected both grounds. The Secretary of State challenged that view of the Convention.
The Court unanimously held that the cable should have been admitted. The government had not shown that the leaked copy still belonged to the London mission’s archive when it was taken. The judges also examined how far inviolability could protect material already freely available to the public. They agreed on admissibility while differing in parts of their reasoning.
Improper purpose
The majority distinguished the views of the officials quoted in the cable from the purpose of the Foreign Secretary, who took the decision. Independent conservation interests had proposed the reserve, and the advice he received set out environmental and scientific reasons for establishing it.
Officials later advised him to delay. He instead instructed the Commissioner to declare the reserve on 1 April 2010. The Administrative Court found that his object was conservation. An existing prohibition on return was also material to the claim that the measure prevented resettlement.
Mr Roberts and Ms Yeadon had been cross-examined on the important passages. Mr Roberts accepted that he had said an entrenched marine protected area would in effect put paid to resettlement claims, but as a recognition of practical reality, not as the proposal’s motive. Both denied the phrase “Man Fridays”. The Administrative Court found Ms Yeadon an impressive and truthful witness and accepted that she regarded resettlement as already precluded by the 2004 Order, subject to proceedings in Strasbourg. Lord Mance held that there was no realistic possibility that admitting the cable, or allowing further cross-examination on it, would have changed that assessment. Even assuming an improper motive on the part of one or both officials, the papers showed the proposal being put to the Foreign Secretary in unobjectionable terms and his making his own decision against their final advice. The principle that an authorised official’s decision can count as the minister’s did not apply: Mr Miliband had not delegated the decision or taken a collective decision shaped by a hidden official motive.
The consultation and fishing rights
Permission to appeal was granted on the fishing-rights ground, but the appeal on it was dismissed. Lord Kerr agreed. There was credible material in government hands about undertakings going back to 1965, but legal advice, for which privilege was not waived, led Mr Roberts and Ms Yeadon to understand that Mauritius had no legal right which prevented a complete no-take zone. Mauritius itself did not clearly advance such rights during the consultation period and did not respond, relying instead on its sovereignty claim. The effect on commercial fishing was obvious. Chagossian and other responses did raise fishing and livelihood concerns. The omission of an express reference to arguable Mauritian rights did not make the consultation unfair, and there was no reason to think that drawing attention to them would have changed the decision.
After the Court of Appeal’s judgment, an arbitration under the United Nations Convention on the Law of the Sea held that the United Kingdom’s undertaking to keep Chagos fishing rights available to Mauritius so far as practicable was legally binding in relation to the territorial sea. The Government told the Supreme Court that it was committed to implementing that award and that the award did not require the marine protected area to be terminated. Lord Mance said that the international issues were different from the narrow consultation question before the Court. Whether the award could have any, and if so what, effect in domestic law on the marine protected area or the no-take policy was not before the Court.
The dissent
Lord Kerr and Lady Hale considered that admitting the cable could have affected the assessment of improper purpose. It was a contemporary record against which the officials’ evidence could have been tested. Lord Kerr would have sent the case back for a fresh hearing.
Verdict: The cable was admissible. The Court nevertheless dismissed the improper-purpose challenge by five votes to two, and unanimously dismissed the consultation challenge. It left open the domestic effect of the subsequent international arbitration award.
Source: R (Bancoult No 3) v Secretary of State for Foreign and Commonwealth Affairs [2018] UKSC 3
