In 2008 the House of Lords, by a majority, upheld a 2004 Order removing any right of abode in the British Indian Ocean Territory, relying on a 2002 study which said that long-term resettlement of the outer Chagos Islands was likely to be prohibitively expensive. Mr Bancoult later asked the Supreme Court to set that decision aside, not because the law was wrong, but because the Government had failed to disclose documents about how the study was prepared. By a majority of three to two, the Supreme Court refused, holding that the missing material would not have made reliance on the study’s conclusions irrational.
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The Chagos Islanders had been removed from the British Indian Ocean Territory. Mr Bancoult challenged the exclusion of the islanders from their former home.
The 2004 ban and the 2008 decision
In 2000 the Divisional Court held that a 1971 Immigration Ordinance, which had prohibited entry to the Territory without a permit, was beyond the Commissioner’s power. The Foreign Secretary, Robin Cook, accepted that decision, revoked the Ordinance and announced that a feasibility study into resettlement would continue. The relevant later stage was a report by Posford Haskoning Ltd, published in July 2002 and known as the stage 2B report. Its General Conclusions 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.
A 2004 Order removed any right of abode. Mr Bancoult successfully challenged it in the lower courts, but a majority of the House of Lords upheld the Order in 2008.
Every member of the House accepted that the Order could be reviewed for legality, rationality and procedural impropriety. Lord Hoffmann, Lord Rodger and Lord Carswell held that the common-law right of abode was not so fundamental that section 9 could not remove it; that preventing resettlement was neither unreasonable nor an abuse of power; and that Mr Cook’s statements had not created a legitimate expectation of a permanent return. Lord Bingham and Lord Mance dissented. No one challenged the stage 2B report itself. The argument was that its findings did not justify the Order. The majority treated the lack of any realistic prospect of resettlement, and the prohibitive cost, as relevant to whether the decision was rational.
Why the case returned to the Supreme Court
This was not a fresh appeal on whether the House of Lords had been wrong in law. It was an application, in the same proceedings, to set the 2008 decision aside. The Supreme Court was bound by the majority’s legal reasoning. The question was whether non-disclosure, or later material, had made the procedure unfair.
The court has power to correct an injustice caused by an earlier judgment of the House of Lords or itself, but it will not reopen an appeal merely because the earlier order is thought to be wrong. One party’s failure to disclose relevant documents can make the procedure unfair. The parties also relied on cases concerning fresh evidence. Those cases require more than a real possibility of error: they speak of a powerful probability that an erroneous result has in fact occurred, together with consideration of any alternative remedy and of whether the complainant was the author of the misfortune. Lord Mance left open whether that probability test is too rigid, and was prepared to consider whether the breach may well have had a decisive effect. He held that the result did not depend on which test was used.
The missing documents
Public bodies defending judicial review proceedings owe a duty of candour. Documents about the feasibility study had not been disclosed in the original proceedings.
Mr Bancoult argued that the missing material could have undermined the study and changed the earlier result.
Why the majority refused to reopen the decision
Lord Mance, with whom Lord Neuberger and Lord Clarke agreed, rejected that case. The contract expressly allowed the Territory’s government to comment on a draft before the final report. Correspondence among Posford, officials and Dr Sheppard showed, in his view, an independent professional attempt to make the report accurate. Advice that development scenarios be omitted was not followed. A note of a meeting on 6 March 2002 recorded that officials hoped climate change might resolve their difficulties, but also that they were resigned to a report accepting some form of resettlement. Lord Mance found no real support for undue interference.
The decisive point was that the General Conclusions, and the immediately preceding section on vulnerability to climate, flooding, seismic risk and environmental fragility, were identical in the draft and the final report. The majority in the House of Lords had relied on those conclusions. The changes relied on by Mr Bancoult were limited. A passage about a possible northward shift of the cyclone belt was removed from the executive summary but remained in the body of the report. Dr Sheppard, then Head of Biological Sciences at Warwick University and an expert on the Territory, supported the climate conclusions and thought them if anything understated. He also thought the consultants had gone too far on cyclones and earthquakes. A change from a range of future sea-level rise to an average figure was not significant. Lord Mance found no basis for treating Dr Sheppard as lacking objectivity, or for treating the report as unreliable merely because he was the sole outside reviewer alongside the project manager.
The question was whether the Secretary of State acted rationally in June 2004 on the material which the executive then had or should be treated as having, not whether resettlement could be justified by evidence available years later. Lord Mance held that there was no probability, likelihood or prospect — and, in his view, no real possibility — that a court would have found it irrational or unjustifiable to act on the unaltered General Conclusions.
The majority considered the additional evidence individually and concluded that it did not justify reopening the appeal.
A later feasibility study changed the factual setting. A fresh challenge based on later information was distinct from reopening the 2008 judgment.
Lord Clarke agreed in the result. He emphasised the availability of a fresh challenge and regarded reopening the old appeal as disproportionate.
The dissent
Lord Kerr, with whom Lady Hale agreed, would have reopened the appeal. He considered it enough that there was a distinct or real possibility of a different outcome, and disagreed with Court of Appeal authority in so far as it required a probable wrong result. For him, the issue was not simply whether the Secretary of State could accept the report. It was whether those conclusions could rationally justify denying a right of abode solely to head off a campaign for funded resettlement, when the Government was under no legal obligation to fund it and the original removal had disregarded the islanders’ interests.
He regarded the documents as capable of having a decisive effect. Officials had made clear what result they hoped for; the draft had to be submitted for comment; Dr Sheppard had severely criticised much of the science, while endorsing the climate conclusions and some of Mr Jenness’s criticisms; and a conditional passage about a possible shift in the cyclone belt had become a firmer prediction of flooding, erosion and seawater intrusion. Lord Kerr thought the 2008 majority might not have expressed themselves so emphatically had they known this, and that a different outcome was distinctly possible. He would not have admitted most of the proposed new evidence, because an application to reopen is not an opportunity to impeach the old decision with material gathered afterwards. He did treat the March 2002 meeting note as material which should have been disclosed. He rejected arguments of delay and of mootness: unless the 2008 decision was set aside, section 9 would remain the lawful starting point. The non-disclosure was, in his view, reprehensible but not deliberate, and was not by itself enough to set the judgment aside.
Lady Hale agreed and added that, once an unfair procedure is clear, the court should not struggle too hard to conclude that the result would inevitably have been the same. Whether the documents might have made a difference should be judged objectively, not by reference to the particular judges who sat in 2008. She considered that justice required Mr Bancoult to have a fair chance to argue that reimposing the denial of the right of abode was irrational.
Verdict: By three votes to two the Court refused to reopen the 2008 judgment. Lord Kerr and Lady Hale would have ordered a rehearing. The Court did not decide a fresh challenge to the continued exclusion of the islanders.
