I’ve been following this case for quite awhile ever since R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2)  UKHL 61,  1 AC 453 (“Bancoult (No.2)”).
It’s a cross between Constitutional Law to EU Law and how a Member States’ legislation is not compatible to International treaty.
Here is the judgment as below.
Case No: CO/8588/2010
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
MR JUSTICE MITTING
The Queen (on the application of Louis Olivier Bancoult)
– and –
Secretary of State for Foreign and Commonwealth Affairs
Nigel Pleming QC, Richard Wald, Maya Lester and Stephen Kosmin (instructed by Clifford Chance LLP) for the Claimant
Steven Kovats QC, Kieron Beal QC and Penelope Nevill (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 15-18, 22-24 April 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Richards :
This is the judgment of the court, to which both members have contributed. The case is a further chapter in the history of litigation arising out of the removal and subsequent exclusion of the local population from the Chagos Archipelago in the British Indian Ocean Territory (“BIOT”). The claimant, Mr Bancoult, has played a central role in that litigation. By the present claim he challenges the decision taken on 1 April 2010 by the Foreign Secretary to create a “no-take” Marine Protected Area (“MPA”) of some 250,000 m2 in BIOT. He brings the proceedings on his own behalf and for the benefit of others but does not act strictly in a representative capacity. He makes clear that he is in favour of environmental protection for the Chagos Islands and surrounding area but that he objects to the “no-take” character of the MPA.
By re-amended grounds of claim, the Foreign Secretary’s decision is alleged to be flawed in the following respects:
(1) an improper motive, namely an intention to create an effective long-term way to prevent Chagossians and their descendants from resettling in BIOT;
(2) the failure to reveal, as part of the consultation preceding the decision, that the Foreign Secretary’s own consultants had advised that resettlement of the population was feasible;
(3) the failure to disclose relevant environmental information in the course of the consultation;
(4) the failure to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and/or historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands;
(5) breach of the obligations imposed on the United Kingdom under Article 198 of the Treaty on the Functioning of the European Union (“the TFEU”), which relates to the association of overseas territories with the European Union.
There are some overlaps between those grounds, especially those dealing with the process of consultation, but the allegation of improper purpose and the alleged breach of the TFEU are largely stand-alone issues.
We set out here a bare outline of the factual background in order to provide the general context for what follows. For greater detail concerning the history of BIOT up to 2008, reference can be made to the speech of Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2)  UKHL 61,  1 AC 453 (“Bancoult (No.2)”), at -.
Prior to 1965 the Chagos Islands were a dependency of Mauritius, which at that time was a British colony. In 1965, by the British Indian Ocean Territories Order 1965, they were detached from Mauritius and constituted a separate colony known as BIOT. Mauritius itself became independent in 1968.
The detachment of the Chagos Islands from Mauritius took place in the context of proposals for the establishment of a US defence facility in the area, in particular on Diego Garcia. An agreement concerning the availability of BIOT for defence purposes was entered into between the British Government and the US Government in December 1966, and in due course the US Government gave notice that Diego Garcia would be required for the purpose in July 1971. Prior to that date the UK Government secured the removal of the population of Diego Garcia, mostly to Mauritius and the Seychelles. The Immigration Ordinance 1971, made by the BIOT Commissioner pursuant to the 1965 Order, then provided that no person was to enter or be present or remain in BIOT unless he was in possession of a permit. A small population remaining after that date on islands other than Diego Garcia left by the end of May 1973.
In 1998, long out of time, Mr Bancoult brought a challenge by way of judicial review to the Immigration Ordinance 1971. The challenge was upheld by the Divisional Court in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  QB 1067 (“Bancoult (No.1)”) in November 2000. The Foreign Secretary of the day accepted the court’s ruling and referred to work then in progress on the feasibility of resettling the Chagossians. The Immigration Ordinance 1971 was replaced by the Immigration Ordinance 2000, which provided that the restrictions on entry or residence should (with the exception of Diego Garcia) not apply to anyone who was a British Dependent Territories citizen by virtue of his connection with BIOT. Pending the outcome of the feasibility study, however, the change in the law led to no change in practice in the situation on the islands.
The report on Stage 1 of the feasibility study had been published in June 2000. The key report, however, was that on Phase 2B of the study, which was published in July 2002. It concluded that resettlement would be problematic in the short term and that the costs of maintaining long-term inhabitation of the islands were likely to be prohibitive.
In 2004 the Foreign Secretary announced that in the light of the feasibility study the British Government would not support resettlement of the islands to ensure and maintain the availability and effective use of the territory for defence purposes and had decided to restore full immigration control. The British Indian Ocean Territory (Constitution) Order 2004 was then made, providing by section 9 that no person was to have the right of abode in the territory and that no person was entitled to enter or be present in the territory except as authorised by or under the Order or any other law for the time being in force in the territory. At the same time the British Indian Ocean Territory (Immigration) Order 2004 dealt with the details of immigration control.
The 2004 Orders were the subject of a further application for judicial review by Mr Bancoult. He was successful in the lower courts but in October 2008, in Bancoult (No.2), the House of Lords upheld the validity of the Orders.
Mr Bancoult and other Chagossians also applied to the European Court of Human Rights, complaining inter alia about their removal from the islands and the prohibition on their return. That application was dismissed on 20 December 2012 as manifestly unfounded and accordingly inadmissible: see Application no.35622/04, Chagos Islanders v United Kingdom  56 EHRR SE 15.
A further avenue of complaint was to the European Commission, seeking to get the Commission to bring infringement proceedings against the United Kingdom for breach of Article 198 TFEU and other Treaty provisions. The Commission found no infringement of EU law and formally closed its file on the complaint in January 2013.
The MPA consultation and decision
The immediate background to the MPA proposal and the public consultation on it is described later in this judgment (see - below). The consultation itself ran from 10 November 2009 to 5 March 2010. The consultation document was published solely in electronic form, on a website, with a view to giving it wide availability.
In his foreword to the consultation document, the Foreign Secretary said: “We want to use this consultation to help us assess whether a marine protected area is the right option for the future environmental protection of the British Indian Ocean Territory”. The document stated that every effort had been made to bring the consultation to the attention of those with an interest in BIOT. It invited responses addressed to, but not restricted to, the following questions:
“1. Do you believe we should create a marine protected area in the British Indian Ocean Territory?
If yes, from consultations with scientific/environmental and fishery experts, there appear to us to be 3 broad options for a possible framework:
(i) Declare a full no-take marine reserve for the whole of the territorial waters and Environmental Preservation and Protection Zone (EPPZ)/Fisheries Conservation and Management Zone (FCMZ); or
(ii) Declare a no-take marine reserve for the whole of the territorial waters and EPPZ/FCMZ with exceptions for certain forms of pelagic fishery (e.g. tuna) in certain zones at certain times of the year.
(iii) Declare a no-take marine reserve for the vulnerable reef systems only.
2. Which do you consider the best way ahead? Can you identify other options?
3. Do you have any views on the benefits listed at page 11? What importance do you attach to them?
4. Finally, beyond marine protection, should other measures be taken to protect the environment in BIOT?”
Under the heading “Scope”, the document explained that the consultation was in response to a proposal of the Chagos Environment Network (to which a link was given) recommending the establishment of a conservation area in BIOT. It continued:
“Any decision to establish a marine protected area would be taken in the context of the Government’s current policy on the Territory, following the decision of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  UKHL 61 that the British Indian Ocean Territory (Constitution) Order 2004 and the British Indian Ocean Territory (Immigration) Order 2004 are lawful; i.e., there is no right of abode in the Territory and all visitors need a permit before entering the Territory. Access to a part of the Territory is also restricted under our Treaty obligations with the US. It is the Government’s provisional view, therefore, that we would not establish a permanent research facility in any part of the Territory. Any decision to establish a marine protected area would not affect the UK Government’s commitment to cede the Territory to Mauritius when it is no longer needed for defence purposes.
This consultation and any decision that may follow for the establishment of a marine protected area are, of course, without prejudice to the outcome of the current, pending proceedings before the European Court of Human Rights (ECtHR). This means that should circumstances change, all the options for a marine protected area may need to be reconsidered.”
There followed a summary of the questions and a “Background” section which described the extent of existing environmental protection of the area and set out the added value of creating an MPA. On the latter point it said that the Foreign and Commonwealth Office’s view took account of the findings of a workshop held on 5-6 August 2009 at the National Oceanography Centre, Southampton, to which a link was given.
Annex A to the document was headed “Impact/Costs & Benefits”. Under “Costs” it referred to the cost of patrolling the area and the absence of fishing licence income to offset that cost if a no-take MPA were created. Under “Benefits” it gave further links to the Chagos Environment Network brochure and the National Oceanographic Centre workshop, and summarised conservation benefits, climate change benefits, scientific benefits and development benefits. Under “Impact” it stated:
“As well as the international fishing community, there are some groups who will be directly or indirectly affected by the establishment of a marine protected area and any resulting restrictions or a ban on fishing.”
As regards the US, it referred to the possible need to exclude Diego Garcia and its 3 mile territorial waters from any MPA in order to avoid any impact on the operational capability of the base there. As regards Mauritius, it referred to a July 2009 joint communiqué, set out in Annex C, following discussions between the British Government and the Mauritian Government, and it stated that the Mauritian Government had in principle welcomed the concept of environmental protection in the area. As regards the Chagossian community, it stated:
“Following the decision of the House of Lords in [Bancoult (No.2)], the current position under the law of BIOT is that there is no right of abode in the Territory and all visitors need a permit. Under these current circumstances, the creation of a marine protected area would have no direct immediate impact on the Chagossian community. However, we recognise that these circumstances may change following any ruling that might be given in the proceedings currently pending before the European Court of Human Rights in Strasbourg in the case of Chagos Islanders v UK. Circumstances may also change when the Territory is ceded to Mauritius. In the meantime, the environment will be protected and preserved.”
The joint communiqué set out in Annex C referred to a round of bilateral talks between the Mauritian and British Governments in July 2009 and included the following (in the form in which it appeared after an initial protest by Mauritius):
“The British delegation proposed that consideration be given to preserving the marine biodiversity in the waters surrounding the Chagos Archipelago/British Indian Ocean Territory by establishing a marine protected area in the region. The Mauritian side welcomed, in principle, the proposal for environmental protection and agreed that a team of officials and marine scientists from both sides meet to examine the implications of the concept with a view to informing the next round of talks. The UK delegation made clear that any proposal for the establishment of the marine protected area would be without prejudice to the outcome of the proceedings in the European Court of Human Rights.
The Mauritian side reiterated the proposal it made in the first round of the talks for the setting up of a mechanism to look into the joint issuing of fishing licences in the region of the Chagos Archipelago/British Indian Ocean Territory. The UK delegation agreed to examine this proposal and stated that such examination would also include consideration of the implications of the proposed marine protected area.
Both Governments agreed that nothing in the conduct or content of the present meeting shall be interpreted as:
(a) a change in the position of Mauritius with regard to sovereignty over the Chagos Islands/British Indian Ocean Territory;
(b) a change in the position of the United Kingdom with regard to sovereignty over the Chagos Islands/British Indian Ocean Territory ….”
Annex D summarised UK policy on marine protected areas, including reference to relevant international programmes.
Following consideration of the responses to the consultation, the decision to declare a full no-take MPA was taken by the Foreign Secretary personally, in circumstances described later (see - below). The decision was announced on 1 April 2010 and the MPA was established on the same day by the BIOT Commissioner, by Proclamation No.1 of 2010. The decision has been implemented to date by ceasing to issue licences for commercial fishing and by obtaining additional funding to patrol BIOT waters. We were told that further BIOT implementing legislation is in the course of preparation.
GROUND 1: IMPROPER MOTIVE
The first of the five grounds on which the claimant relies to challenge the lawfulness of the decision to declare an MPA in BIOT waters is that it was made in whole or in part for an improper motive: “an intention to create an effective long-term way to prevent Chagossians and their descendants from resettling in the BIOT”.
The cornerstone of the claimant’s case is a document published by the Guardian on 2 December 2010 and by The Telegraph on 4 February 2011. It is claimed to be a copy of a “cable” (in fact, a communication sent, received and stored electronically but which can, if required, be printed) sent on 15 May 2009 by the US Embassy in London to departments of the US Federal Government in Washington, to elements of its military command and to its Embassy in Port Louis, Mauritius. The text, which (save as regards layout) is identical in both reports, concerns and, it is claimed, purports to record observations made by British officials to a US Embassy official on 12 May 2009 about a proposal to declare an MPA. It is common ground that there was a meeting between United States officials and Mr Colin Roberts, then FCO Director for Overseas Territories and HM Commissioner for the BIOT, and Ms Joanne Yeadon, then the BIOT Administrator, on 12 May 2009 at the Foreign Office. Mr Roberts and Ms Yeadon believe that no note was taken or made of the meeting by them and none has been retrieved from FCO files. If the document is a true copy of a US Embassy “cable” it is the only near-contemporaneous record of the meeting known to exist.
On 25 July 2012 Stanley Burnton LJ ordered Mr Roberts and Ms Yeadon to attend to be cross-examined about the document. In doing so, he acknowledged that what he described as “the Wikileaks documents” (three were then in issue) “must have been obtained unlawfully, and in all probability by the commission of a criminal offence or offences under the law of the United States of America”. He expressed understanding of the policy of HM Government neither to confirm nor deny the genuineness of leaked official documents (“the NCND policy”). The only submission made to him by Mr Kovats QC for the defendant was that it would be wrong to order cross-examination about documents which had been unlawfully obtained. He rejected that submission, for reasons which he gave at paragraph 16:
“However, the documents in question have been leaked, and indeed widely published. No claim has been made to the effect that the documents should not be considered by the court on the grounds of public interest immunity or the like. They are before the court. The court will have to decide whether or not they are genuine documents, that they are copies of what they purport to be. The memorandum of the meeting of 12 May 2009, in particular, appears to be a detailed record, which could fairly be the basis of cross-examination.”
He went on to state that he did not see how the present claim could fairly or justly be determined without resolving the allegation made by the claimant as to what transpired at the meeting of 12 May 2009.
Mr Pleming QC made it clear to us that he sought not merely to cross-examine Mr Roberts and Ms Yeadon about the contents of the document but, to the extent that their written and oral evidence differed from it, to invite us to prefer its contents to their evidence. In other words, he sought to rely on the document evidentially.
At our invitation, the evidential status of the document and its admissibility were re-visited in the course of the hearing. Issues not canvassed before Stanley Burnton LJ were fully debated before us and permitted us to reach a firm conclusion about the use, if any, to which the document might be put.
Application of the NCND policy
Mr Kovats was properly handicapped in dealing with the issue because of the longstanding NCND policy of the British Government. The reason for the policy is explained in the witness statement of Mr Martin Sterling, a senior policy adviser in the Cabinet Office: it would be prejudicial to the effective administration of public affairs to do so. Confirming the accuracy of information within a leaked document would compound any prejudice already caused and would reward persons involved in the leaking. Even a denial of accuracy would, by inference, lead to an unwarranted assumption that an undenied leak was accurate. Hence, subject to exceptional circumstances, the policy must apply universally to be effective.
Founding himself on that policy, Mr Kovats did not object to cross-examination of Mr Roberts and Ms Yeadon by putting to them the contents of the document, provided that it was not asserted that it was a true copy of an Embassy “cable”. Cross-examination of Mr Roberts proceeded for some time on that basis, but there came a point when Mr Pleming asked us to rule on whether he could cross-examine Mr Roberts on the basis indicated above, with a view to inviting the court in due course to accept the document as an accurate record of the meeting and to rely on it evidentially. At that stage, towards the end of day 2 of the hearing, we ruled in favour of permitting Mr Pleming to proceed on that basis, indicating that we would give our reasons in this judgment. In the event, however, that ruling was superseded the following day by a fresh ruling as to the effect of the Vienna Convention on Diplomatic Relations 1961, discussed below.
We make clear that if the only objection to the admission in evidence of the document were the NCND policy, we would have permitted it to be admitted, for the following reasons, which lay behind our initial ruling on the point. First, it is far from clear that the documents of other governments are covered by the policy. All that Mr Sterling states is that he “cannot see any reason for the NCND principle not applying in these circumstances”. Secondly, as Mr Sterling accepts, the policy admits of exceptions. Thirdly, it does not, as such, bind the court. Fourthly, in the circumstances with which we have to deal, the interests of justice would override the policy: the document has been in the public domain for many months, even if it got there as a result of an unlawful act. If it were necessary for us to take it into account evidentially to determine the true purpose of declaring the MPA, we would not regard the NCND policy as a sufficient reason for refusing to do so. To refuse to do so could, in principle, permit Her Majesty’s Government (“HM Government”) to conceal an improper and unlawful motive for an executive act which is claimed to have had an adverse impact upon the rights of a significant number of individuals of Chagossian origin or descent.
Revisiting the basis of Stanley Burnton LJ’s decision
Two issues, not canvassed before Stanley Burnton LJ, caused us to revisit the basis of his decision:
(1) Whether or not disclosure of the information contained in the document was or would be an offence under section 6 of the Official Secrets Act 1989, so as to require the court to exclude it.
(2) Whether or not the court was prohibited from admitting the document evidentially by Articles 24 and/or 27.2 of the Vienna Convention on Diplomatic Relations 1961, set out in and incorporated into English law by the Diplomatic Privileges Act 1964.
It was our decision on the second of those issues, on day 3 of the hearing, that had the effect of superseding the ruling we had made on the application of the NCND policy.
To address those issues it is necessary to make certain assumptions about the document. In principle, it can be one of two things: an accurate copy of a genuine Embassy “cable”; or an unsourced and worthless fiction. In the latter event, it would be of no evidential value, so that no question could arise of its admission in evidence. It is only if the document is genuine that the two questions referred to above arise. For this purpose, we do not need to make any finding on the authenticity of the document. We will simply assume for the purposes of argument that it is genuine. If it is, we know little about it apart from its contents. They state that it is classified as confidential. Mr Pleming conceded, and we can safely assume, that it has not been put into the public domain by or with the authority of the US Government. Mr Pleming suggested that it may have been one of the many documents alleged by US prosecutors to have been illicitly obtained from a US facility in Iraq in 2009 and 2010 by Private Bradley Manning. We have no evidence about that. Nor do we know the manner in which, or where, US Embassy archives are held. It has not been suggested that it is likely that the document was obtained from a storage facility at the US Embassy in London. In the light of those considerations, we are prepared to assume that the document was obtained illicitly by a person who was not authorised to obtain it from a US electronic document storage facility elsewhere than in the US Embassy in London.
The Official Secrets Act 1989
Sections 2 and 3 of the Official Secrets Act 1989 make it an offence for a person who is or has been a Crown servant or Government contractor to make damaging disclosure, without lawful authority, of any information document or other article relating to defence or international relations. In both cases, a disclosure is damaging if it endangers the interests of the United Kingdom abroad or is likely to do so: section 2(2)(b) and (c) and section 3(2)(a) and (b). Section 6 widens the categories of persons who may commit an offence by making a damaging disclosure beyond Crown servants and Government contractors:
“6(1) This section applies where –
(a) any information, document or other article which –
(i) relates to … defence or international relations; and
(ii) has been communicated in confidence by or on behalf of the United Kingdom to another State …
has come into a person’s possession as a result of having been disclosed (whether to him or another) without the authority of that State…; and
(b) the disclosure without lawful authority of the information, document or article by the person into whose possession it has come is not an offence under any of the foregoing provisions of this Act
(2) Subject to sub-section (3) below, the person into whose possession the information, document or article has come is guilty of an offence if he makes a damaging disclosure of it knowing, or having reasonable cause to believe, that it is such as is mentioned in sub-section (1) above, that it has come into his possession as there mentioned and that its disclosure would be damaging.
(3) A person does not commit an offence under sub-section (ii) above if the information, document or article is disclosed by him with lawful authority or has been previously been made available to the public with the authority of the state … concerned …
(4) For the purposes of this section … the question whether a disclosure is damaging shall be determined as it would be in relation to a disclosure of the information, document or article in question by a Crown servant in contravention of section … 2(1) and 3(1) above.
(5) For the purposes of this section information or a document or article is communicated in confidence if it is communicated on terms requiring it to be held in confidence or in circumstances in which the person communicating it could reasonably expect that it would be so held.”
On the assumptions made above, the information contained in the document was communicated to US officials by British officials in confidence. It is not suggested that the information contained in the document has been made available to the public with the authority of the United States. Nor can it be suggested that any person publishing the information has lawful authority to do so. Lawful authority for a disclosure can only be given in the circumstances specified in section 7: in short, by a Crown servant in accordance with his official duty, by a government contractor in accordance with an official authorisation and by any other person, “if, and only if, it is made – (a) to a Crown servant for the purposes of his functions as such; or (b) in accordance with his official authorisation”: section 7(3). “Official authorisation” means an authorisation duly given by a Crown servant or Government contractor: section 7(5). It is not suggested, and there is no evidence that, any person publishing the document has done so with lawful authority thus defined. Nor can it be suggested that the defence available to a person making disclosure under section 7(4) – that he believed he had lawful authority to make the disclosure and had no reason to believe otherwise – is available here.
The information contained in the document relates to international relations and, at least arguably, to defence. Accordingly, its disclosure by any person relevant to these proceedings would be an offence if it was damaging.
Mr Pleming submitted that the “disclosure” of the information by using the document in these proceedings would not be damaging because it would add nothing to the disclosure which has already occurred as a result of the extensive publicity given to it. He relied on paragraph 63 of the White Paper on the reform of section 2 of the Official Secrets Act 1911. Reliance is, in principle, permissible as an aid to construction: R v. Shayler  1 AC 247 at  per Lord Bingham of Cornhill. However, paragraph 63 needs to be set in its context. The draftsman of the White Paper considered “a defence of prior publication” in paragraphs 62–64, including:
“62. Under the Government’s 1979 Bill it would not have been an offence to disclose without authority information in certain categories if the defendant could show that the information had been made available to the public before his disclosure. The rationale for this defence was that, if the information in these categories was publicly available, a second disclosure could not be harmful. It seems to the Government that this rationale is flawed. There are circumstances in which the disclosure of information in any of the categories which the Government proposes to cover in new legislation may be harmful even though it has been previously disclosed. Indeed, in certain circumstances a second or subsequent disclosure may be more harmful. For example, a newspaper story about a certain matter may carry little weight in the absence of firm evidence of its validity. But confirmation of that story by, say, a senior official of the relevant government department would be very much more damaging. In such circumstances, the Government considers that the official should still be subject to criminal sanctions ….
63. The Government does not, therefore, propose that there should be an absolute defence of prior publication for any category of information. But in cases in which the prosecution would under the Government’s proposals have to show that disclosure was likely to result in harm, the offence would not be made out if no further harm is likely to arise from a second disclosure. The prior publication of the information would be relevant evidence for the court to consider in determining whether harm was likely to result from a second disclosure, but it would not be – and, in the Government’s view, should not be – conclusive.”
As we have already noted, Mr Kovats did not object to the “disclosure” of the document for the purpose of cross-examining Mr Roberts and Ms Yeadon, provided that the questions were not posed on the premise that the document was genuine. It would be confirmation that it was genuine which would be damaging – an echo of paragraph 62 of the White Paper. We are satisfied that that concern can be allayed by adopting the course that we have already stated, of making an assumption that the document is genuine, without finding as a fact that it is.
Subject to that, we accept Mr Pleming’s argument. Extensive prior disclosure of the document and of the information contained in it means that the further disclosure effected by its use in these proceedings is not damaging. If no offence is thereby committed, the fact that, on first disclosure, an offence may have been committed by someone should not prevent its use in these proceedings.
The Vienna Convention on Diplomatic Relations
Section 2(1) of the Diplomatic Privileges Act 1964 provides that the articles of the Vienna Convention on Diplomatic Relations, signed at Vienna on 18 April 1961, set out in Schedule 1 to the Act shall have the force of law in the United Kingdom. Those articles include Articles 24 and 27.2:
The archives and documents of the mission shall be inviolable at any time and wherever they may be.
2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.”
The remainder of Article 27 deals with free communication between a mission and its sending state, the diplomatic bag and diplomatic couriers.
The purpose of these provisions can be identified not only from their text but also from the preamble to the Convention, which records that the States parties realise “that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States”. To that end, the text of Articles 24 and 27.2 have, in the material provided to us, invariably been broadly construed.
In both the first and third editions of her authoritative analysis of the Convention, Diplomatic Law, Professor Eileen Denza noted in her introduction that Article 27 was one of two provisions which increased for the benefit of diplomatic missions themselves the degree of immunity over what was previously accorded by customary international law.
“Article 27 sets out comprehensive rules for the protection of all forms of diplomatic communication – the most important to the functioning of a diplomatic mission of all its privileges and immunities”: page 4.
She identifies the underlying purpose of Article 24 as “the protection of the confidentiality of information stored”, so that “it is clearly right that the words “archives and documents” should be regarded as covering modern methods of storage such as computer discs”: page 195. In the partial award by the Eritrea Ethopia Claims Commission handed down at The Hague on 19 December 2005, the Commission observed in paragraph 42 that “Article 24 confirms the inviolability of all diplomatic documents and official correspondence”. In Professor Denza’s view:
“the inviolability of the official correspondence of a mission has two aspects – it makes it unlawful for the correspondence to be opened by the authorities of the receiving state and it precludes the correspondence being used as evidence in the courts of the receiving state. As regards use of correspondence as evidence, Article 27.2 is probably unnecessary in view of the fact that Article 24 of the Convention gives inviolability to the archives and documents of the mission ‘wherever they may be’.”
As far as we are concerned, the breadth of Articles 24 and 27.2 has been conclusively determined by the speech of Lord Bridge of Harwich in Shearson Lehman Brothers Inc. v. Maclaine Watson and Co. Ltd and International Tin Council (Intervener) (No. 2)  1 WLR 16. Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC “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”. In the litigation which arose out of its insolvent collapse, the ITC sought to prevent the use in litigation of documents which it claimed were part of its official archives. By the time that the case reached the House of Lords, it proceeded on the basis of manifold assumptions of fact. We are only concerned with one category of document: a document which had come into the possession of third parties which had either been stolen from ITC premises or illicitly copied there or obtained by bribery or deceit of its staff: pages 26G-27A. The issue ultimately turned upon the actual or ostensible authority of those who had supplied documents in that category to third parties. In the chain of reasoning which led to the conclusion that the documents were supplied with the authority of the ITC, Lord Bridge, giving reasons with which all other members of the Appellate Committee agreed, stated at page 27F–G:
“Mr Kentridge presented a forceful argument for the defendants based on the proposition that the only protection which the status of inviolability conferred by Article 24 of the Vienna Convention and Article 7(1) of the Order of 1972 affords is against executive or judicial action by the host state. Hence, it was submitted, 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, but the mission would be driven to invoke some other ground of objection to its admissibility. I need not examine this argument at length. I reject it substantially for the reasons given by the Court of Appeal. 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.”
Subject to the submissions made by Mr Pleming to which we refer to below, that statement of principle appears to provide a complete answer to the evidential use of the document in these proceedings. On the assumptions which we have made about its provenance, it was illicitly obtained. The claimant, has, no doubt at several removes, obtained possession of the document from the “violator”. Accordingly, he may not make use of it in judicial proceedings. Further, it is the information in the document which is the object of the protection conferred by Articles 24 and 27.2, not just the document itself.
Mr Pleming submitted that Lord Bridge’s observations do not or should not lead to the conclusion that we must refuse to admit the document as evidence, for the following reasons:
(1) The original “document” was electronic. Once it had been transmitted by the Embassy, it ceased to be “official correspondence of the mission”.
(2) The electronic storage facility where it was held and from which it was taken was not part of the “archives and documents of the mission”.
(3) Lord Bridge’s observations were obiter and should not be followed by us.
(4) Other courts of high standing have admitted “Wikileaks” documents and we should follow their example.
Mr Pleming’s first point requires us to consider the nature of the document. As we have stated, we have assumed that in its original form it was created, transmitted, received and stored electronically. We are satisfied that it nevertheless was and remains a “document” for the purposes of Article 24 and is included within the phrase “official correspondence” within Article 27.2. Article 31 of the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969, requires that:
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
The object and purpose of the 1961 Convention included the purpose stated in the preamble of ensuring “the efficient performance of the functions of diplomatic missions as representing States.” Correspondence was effected in 1961 by electronic and electro-mechanical means: by telegram and by telex. Although the states parties may not have envisaged the precise means by which future methods of electronic communication might be undertaken, they cannot sensibly be taken to have tied the meaning of “document” and “correspondence” to the technical means of communication between mission and government then existing. We have no doubt that the context, object and purpose of the 1961 Convention require the words “document” and “correspondence” to include modern forms of electronic communication with the possible exception of communication by voice only. Likewise, an electronic storage system of such communications is an “archive”.
The second limb of Mr Pleming’s first submission is that once the electronic document has been transmitted to the recipient, it ceases to be a document “of” the mission within Article 24. He relied on Lord Bridge’s observation in the ITC case at page 24F:
“It would seem to me perfectly natural to interpret the phrase “the archives and documents of the mission” in Article 24 of the Vienna Convention as referring to the archives and documents belonging to or held by the mission.”
He could also derive support from Lord Bridge’s treatment of an old fashioned method of communication, a letter, at page 27E:
“When A writes the confidential letter, it belongs to A. When B receives it, it belongs to B.”
The support which he can derive from Lord Bridge’s observations is, however, limited, because in the sentence following that passage Lord Bridge went on to state:
“I prefer therefore to speak not of the confidentiality, but of the privacy of documents which Article 24 of the Vienna Convention and Article 7(1) of Order of 1972 are designed to protect.”
It seems to us that Lord Bridge contemplated that the right to protect the privacy of the letter was capable of surviving the dispatch and receipt of the letter to a third person. If that person was under no obligation to keep the letter private, such as a member of the ITC, protection was lost. But it is implicit in his rejection of Mr Kentridge’s submission that protection would not be lost in the case of a communication by an Embassy to its government merely because the communication was sent to and received by that government. Further, the document with which we are concerned remained, after it was received and stored by the government, “correspondence relating to the mission and its functions” within Article 27.2. We are required to apply a broad and sensible construction to Articles 24 and 27.2. Taken together, they provide for comprehensive rules for the enduring protection of all forms of diplomatic communication. We are satisfied that the document remained inviolable notwithstanding that it was transmitted to and received and stored securely by the US Government.
Mr Pleming’s second point is a variant upon his first. Article 24 says in terms that the archives of a mission are inviolable “at any time and wherever they may be”. There is no reason why they should not be held electronically in a place which is geographically remote from the mission. We do not know how or where the US Embassy holds its archive nor whether the US Government would regard documents originating with the Embassy but held at numerous remote sites as being part of its archive. It is unnecessary to resolve this issue because, for the reasons expressed above, the combined effect of Articles 24 and 27.2 is to protect a document which, until illicitly obtained, was kept within secure electronic storage facilities under the control of the US Government.
As to Mr Pleming’s third point, we have already explained why, in our view, Lord Bridge’s observations at page 27 F-G form part of the ratio of the ITC case and bind us. If that is wrong, the observations are plainly of high authority and we would follow them unless persuaded that they were clearly wrong. Mr Pleming relied upon an article by Professor F.A. Mann in the Law Quarterly Review of 1988 in which he contended that Lord Bridge’s observations did not accord with academic writings which supported a literal interpretation of the word “inviolable”: it meant only that documents were free from “executive or judicial action by the host state”. He also doubted that Article 24 governed the admissibility of a document in legal proceedings. We do not share Professor Mann’s doubts and prefer the observations of Lord Bridge and his reasoning, supported as it is by Professor Denza’s unqualified statement to the same effect.
As to Mr Pleming’s fourth point, the cases on which he relied provide little if any support for his proposition. In Rose v. The King  3 DLR 618 the Quebec Court of King’s Bench, Appeal Side upheld the admission in a criminal case of documents taken by a witness from the Russian Embassy which evidenced a plot, to which Russian officials were party, against the Canadian State. At that time, Canadian law recognised the general inviolability of mission documents, but held that the general principle was subject to an exception in the case of documents which put the safety of the state to which the mission was accredited in peril. In that event, if seized by the Canadian State, they lost “the privilege of immunity”: per Bissonnette J at p.23 of 53 in the print-out with which we have been supplied. The case preceded the 1961 Convention. We do not know what answer Canadian law would now give to the problem then posed. It provides no authority for the interpretation of the 1961 Convention.
The remaining cases upon which Mr Pleming relied post-date the 1961 Convention, but do not assist him because in none of them was the issue raised with, or determined by, the court. In Prosecutor v. Charles Ghankay Taylor, the Special Court for Sierra Leone held on 27 January 2011 that two US Government cables leaked through Wikileaks and published in the Guardian on 17 December 2010 were in principle admissible to support an application by the defence to reopen their case. The decision was made under rule 92 bis of the Rules of Procedure and Evidence which provides:
“The information submitted may be received in evidence if, in the view of the trial chamber, it is relevant for the purpose for which it is submitted and if its reliability is susceptible of confirmation.”
In the report of the Special Court’s decision, no argument is noted to have been addressed about Articles 24 and 27.2 of the 1961 Convention. The court is not a party to the Convention although, as Mr Pleming submitted, it can be expected, if alerted to the need to do so, to abide by its terms. It was not so alerted.
In El Masri v. The Former Yugoslav Republic of Macedonia, in which the Grand Chamber of the Strasbourg Court handed down a final judgment on 13 December 2012, the applicant submitted US diplomatic cables in support of his application: paragraph 77. In its recital of the public sources highlighting concerns as to human rights violations allegedly occurring in US run detention facilities, the court referred to articles in which journalists had reported that the US Ambassador in Germany had informed the German authorities that the CIA had wrongly imprisoned the applicant: paragraph 128. The Vienna Convention on Consular Relations, done in Vienna on 24 April 1963, was cited under the heading “Relevant International Law and Other Public Material”, but only as to the obligation of competent authorities of the receiving state to inform the consular post of the sending state without delay of the arrest of one of its nationals under Article 36. The 1961 Convention was not cited. Even so, the court was careful in its findings at paragraphs 160 and 218 not to rely on the leaked cables or on what the US Ambassador was said to have said to the German Government.
Finally, in Bank Mellat v. Council of the European Union, the Fourth Chamber of the General Court at Luxembourg noted in its judgment of 29 January 2013 the Commission’s submission that no account should be taken of leaked diplomatic cables: paragraph 99. The ground upon which it did so is not recorded. The court’s only observation at paragraph 103 was that the fact that some Member States were subject to diplomatic pressure “even if proved” did not imply that such pressure affected the contested measures. There is no reference to the 1961 Convention in the judgment.
Nothing in this material persuades us that we should depart from what appears to be, by now, a settled principle of public international and municipal law, that the inviolability of diplomatic communications requires that judicial authorities of states parties to the 1961 Convention should, in the absence of consent by the sending state, exclude illicitly obtained diplomatic documents and correspondence from judicial proceedings. Accordingly, we consider the document to be inadmissible as evidence in these proceedings. We gave a ruling to that effect at the conclusion of submissions on the issue on day 3 of the hearing, indicating that any further cross-examination of Mr Roberts and any cross-examination of Ms Yeadon must proceed on that basis.
Consideration of the substance of ground 1
Mr Pleming realistically acknowledged that our ruling as to the admissibility of the document undermined the factual premise of his first ground of challenge. He indicated that, if permitted to do so, he would wish to challenge our ruling by way of an interlocutory appeal. We declined to adjourn the hearing for that purpose, for reasons we gave at the time. Mr Pleming did not then seek to cross-examine Mr Roberts further but did cross-examine Ms Yeadon.
In the submissions that followed, Mr Pleming invited us in the circumstances to make no finding on the first ground. Mr Kovats, on the other hand, submitted that we should make findings on it. Because we have considered all of the other relevant documentary material and heard live evidence from the two officials principally concerned with the decision, Mr Roberts and Ms Yeadon (albeit we take account of the fact that cross-examination was limited in the way we have described), and we have reached a clear view about this ground, we propose to determine it and to express our detailed reasons for our findings.
The background to the challenged decision is a series of international conventions, signed and ratified by the United Kingdom, about the conservation of the Earth’s fauna and flora, of which the principal examples are given in paragraph 7 of Mr Roberts’ first witness statement. The catalyst for making and consulting upon the declaration of an MPA for the Chagos Archipelago was a proposal made by an American environmental group, Pew Environmental Group, to Professor Charles Sheppard, the environmental adviser for BIOT, in July 2007. In due course this led to a discussion on 22 April 2008 between representatives of Pew and Ms Yeadon about the creation of an MPA in which no fishing took place, in the jargon a “no take” MPA, in BIOT waters. On the same date the newly created Chagos Environmental Network, of which the founder members included Pew and Professor Sheppard, held its inaugural meeting at the Linnean Society. The meeting favoured the declaration of a “no take” MPA in BIOT waters.
A further meeting at the FCO on 23 April 2009, attended by Mr Roberts, Ms Yeadon and Professor Sheppard, amongst others, led to the preparation of a briefing note of 5 May 2009 from Mr Roberts to the Foreign Secretary. Its purpose was to inform him about the proposal to declare an MPA. We have a substantially unredacted copy of the note. It explained the broad concept in practical terms: to bring an end to fishing and to legislate for the protection of seas and atolls in BIOT, while leaving the military base on Diego Garcia unaffected. The note explained the benefits of the proposal: because of the absence of a settled human population and the strict environmental regime already in force, it was one of the few places in which a large scale approach to conservation was possible; it offered great scope for scientific and climate change research; because it would be the largest marine reserve in the world, it would redound to the credit of the United Kingdom and offset negative associations with Diego Garcia in the public mind; finally, it could result in greater control over access to the territory and so bring a security benefit.
Three “big risks” were identified in the note. The first was the claim by Mauritius to sovereignty over BIOT, a position complicated by “a side deal done at the time of excision which gave Mauritius the right to apply for fishing licences free of charge” (a modestly inaccurate description of the true position, which is set out in the section of our judgment on the “fishing rights” issue). The third risk was “the US military”, who would have to be reassured that their freedom of manoeuvre would not be impeded.
For the purpose of the first issue, the most significant “risk” was the second, described as “the Chagossian movements”. The note stated, correctly, that those removed from the territory when the military base was established and their descendants numbered several thousand and now lived in communities in Mauritius, Seychelles and the United Kingdom. The litigation history to that date was briefly sketched, and the parliamentary pressure for the Government to rethink its policy on resettlement noted. The part of the note on which Mr Pleming principally relied states:
“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 (contingency for losing the cases dealt with in earlier submissions), 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 defence 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 governance
Suggestions were made as to how the proposal should be carried forward if it was approved by the Foreign Secretary.
According to Mr Roberts, the meeting with the Foreign Secretary consisted of a slide or video presentation by Professor Sheppard about the environmental value of BIOT. In paragraph 13 of his first witness statement, Mr Roberts states that he did not suggest in the oral presentation that the establishment of an MPA might prevent resettlement in the future. The Foreign Secretary’s reaction was enthusiastic. On 7 May 2009, his private secretary emailed Mr Roberts:
“This looks right, and good. The Foreign Secretary was really fired up about this after the meeting, and is enthusiastic we press ahead with this. So do press ahead as you suggest, but my advice would be to keep the timelines taut, to keep him involved, and to ensure that the creation/announcement of the reserve is scheduled within a reasonable timescale”.
The next step was to discuss the proposal with US Embassy officials. The meeting, which is the subject of the excluded document, took place on 12 May 2009 at the FCO. Both Mr Roberts and Ms Yeadon were cross-examined about what Mr Roberts said at the meeting. He described the discussion as an open discussion, in which he responded to a series of questions posed by the Americans. He accepted that he would have communicated Ministers’ enthusiasm for the project; and said words to the effect that it would have no impact on American interests. He accepted that it was government policy that there should be no human footprint in the Chagos Archipelago other than on Diego Garcia and it is likely he would have said words to that effect. He adamantly denied making any reference to “Man Fridays”, for reasons which he explained: it was a quote from a colonial official from the 1960s and was considered in the FCO to be highly regrettable in every sense and offensive to the Chagossians. He accepted that he recognised that the declaration of an MPA, if “entrenched” (i.e. in a law which would be impossible or difficult to repeal) would create a serious obstacle to resettlement. However, he also made it clear to the Americans that the proposal was without prejudice to the decision of the Strasbourg Court on the application brought by the Chagossians against the United Kingdom.
Ms Yeadon also attended the meeting. In his submissions after she had given evidence, Mr Pleming suggested that she might not have attended the whole of the meeting; but he did not put that to her. We have no reason to doubt that she did attend the whole of that part of the meeting attended by Mr Roberts and was able to speak, from memory, about it. She was adamant that Mr Roberts did not say that BIOT’s former inhabitants would find it difficult if not impossible to pursue their claim for resettlement if the entire Chagos Archipelago were a marine reserve, and did not use the words “Man Fridays”:
“Absolutely not. Mr Roberts did not say this. If he had said it, I would have been shocked. I would probably have gone out of the room at the end of the meeting saying ‘I can’t believe what Mr Roberts has just said’.”
She later said that if Mr Roberts had said that, she would have reported it to the Director General of Defence and Intelligence because she would have been embarrassed and shocked at the use of terminology which is “just not used these days”. She explained why Mr Roberts would not have said that establishing a marine park would put paid to resettlement claims: it would not have made sense. Government policy was based on section 9 of the British Indian Ocean Territory (Constitution) Order 2004, which excluded a right of abode on the islands in the Archipelago. She adamantly denied that there was a hidden agenda.
We found Ms Yeadon to be an impressive and truthful witness. Perhaps because of the way Mr Pleming’s questions were phrased, she was less inhibited than Mr Roberts about answering questions based on the excluded document. Accordingly, her answers were blunter and more spontaneous than his.
Further, unknown to her when she gave those answers, there was a document, belatedly retrieved from FCO files, which unequivocally evidenced her state of mind at the time that the proposal for an MPA was being prepared for submission to the Foreign Secretary. On 25 March 2009, a meeting occurred between FCO officials, including Mr Roberts and Ms Yeadon and a Chagossian delegation which included the claimant and Mr Gifford, his solicitor. Attached to a letter sent to Mr Roberts, dated 14 April 2009, was a copy of the detailed notes of the meeting taken by Oliver Taylor, Mr Gifford’s assistant. One of the topics discussed was the difference between the draft report on the feasibility of resettlement of May 2000 and the final published version of June 2000. According to Mr Gifford’s notes, the advice given to officials in the draft “was an immediate unqualified one in favour of resettlement”, whereas the published report contained four qualifications, “which added up to a contingent conclusion” – that resettlement would be “costly and precarious”. He said that the conclusion “had been interfered with” and that interference was apparent from the handwritten amendment at the top of the document containing the draft conclusion, which had been written at a meeting attended by officials “and which had led directly to the amendment required by officials”. The thrust of his comment was that the report had been doctored by or at the instigation of officials. The note does not contain the word “doctored”. Mr Roberts, when questioned about this meeting, described it as an extraordinary meeting and said in terms that Mr Gifford had been offensive and had accused his predecessors of doctoring the report. Ms Yeadon, when questioned about the meeting, relying at that stage only on her memory – she thought that she had made no note of the meeting – agreed that Mr Gifford usually presented his arguments in a measured and detailed way and did not suggest that he had done otherwise at this meeting. In the late-discovered note of the meeting, written by her, she did describe Mr Gifford as “very hostile” and noted that the “atmospherics” of the meeting were not good. Nothing turns on these differences of recollection. What is important is the concluding paragraph, which must reflect Ms Yeadon’s thoughts at the time:
“The pressure being mounted by the APPG and Bancoult, Gifford etc. to try to get HMG to change its policy on resettlement is gaining in intensity. They are also trying to engage the US separately. Jeremy Corbyn and Oliver Bancoult have written to President Obama … and three officials from the US Embassy were invited and attended the fourth APPG meeting. The focus of questions was on defence/security with the APPG questioning the need to keep islands 150 miles away from Diego Garcia clear for defence purposes. Is this keenness to get a political solution sorted out an indication of their concern about their prospects at the ECHR? If they do lose then any legal means of resettlement, other than a complete change of policy by HMG, is at an end.”
Ms Yeadon said that 99.9% of her work concerned the BIOT. She said that the opinion expressed in the last sentence of the cited passage was her view; but she could not have held it if it had in fact been the view of her official superiors that resettlement remained a possibility, which required to be frustrated by the declaration of an MPA, unless they concealed that view from her throughout her tenure of office as administrator of the BIOT. On the documentary material and oral evidence which we have considered, we reject that possibility as fanciful. We are satisfied that, 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.
HM Government’s position was restated to US counterparts at the annual Political and Military talks held in September 2009. According to a note prepared by “BIOT Administration” of 7 September 2009 for the talks, the following reassurance was to be given:
“Nothing in the MPA proposal affects the UK government’s policy to prevent resettlement. We envisage no resident presence on the outer islands. However, any MPA proposal will be without prejudice to the current proceedings at the ECtHR.”
By a note dated 29 October 2009, Ms Yeadon proposed to Mr Roberts and to the Foreign Secretary, via his private secretary, that consultation on the proposal to declare an MPA be launched on 10 November. Under the heading “Risks” “Chagossians”, she noted that the risk of an aggressive reaction from the Chagossians and their supporters was high:
“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. By going out to public consultation we hope to counter this claim and any potential claims that a decision on establishing an MPA has already taken place and to that extent, public consultation is part of the risk strategy. However, there is a risk that the Chagossians may well seek a judicial review of the consultation process.”
We are 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.
Annex A to the consultation document noted that following the decision of the House of Lords in Bancoult (No.2), the current position under the law of BIOT was that there was no right of abode in the territory. It continued:
“Under these current circumstances, the creation of a Marine Protected Area would have no direct immediate impact on the Chagossian community. However, we recognise that these circumstances may change following any ruling that might be given in the proceedings currently pending before the European Court of Human Rights in Strasbourg in case of Chagos Islanders v. UK. Circumstances may also change when the territory is ceded to Mauritius. In the meantime, the environment will be protected and preserved.”
This passage is entirely consistent with Ms Yeadon’s view about HM Government’s policy and, we are satisfied, accurately states it.
In a note dated 30 March 2010 by Ms Yeadon to Mr Roberts and the Foreign Secretary, via his private secretary, Ms Yeadon proposed that the Foreign Secretary should publish the (favourable) report on the consultation and declare his belief that an MPA should be established, but only after further work had been done. The Foreign Secretary did not accept her advice but determined to direct Mr Roberts to declare a “no take” MPA on 1 April 2010.
There is no statement from the Foreign Secretary; but his reason for making the decision to declare an MPA against the advice of his officials can be discerned from a series of emails on 30 and 31 March 2010. The first was from the Foreign Secretary’s Assistant Private Secretary to Ms Yeadon at 18.06 on 30 March:
“The Minister is grateful for your submission. His inclination is to be bolder in our statement. He does not think that it is likely that we will be able to persuade the Mauritians or those fighting the Chagossian cause otherwise, but since the proposed MPA does not conflict with either our position on Mauritius or Chagossian rights, that we should actually decide to go ahead.”
Officials were hoping that he would not decide immediately to declare an MPA, but did not know what his decision would be. At 8.30 on 31 March 2010, John Murton emailed Ewan Ormiston, stating:
“I think Miliband will be seeing a balanced view of where we stand. I have no idea if he’ll follow the recommendation or not. If he DOES then we’ll be in a position of “looking favourably” upon an MPA but having to work through ‘issues’ relating to Chagossians/Mauritius. I think this would be good and would provide the basis for a resumption of talks following both elections. If he goes for the park straight away, we’ll face problems ….” (The reference to “both” elections is to elections in the UK and in Mauritius).
This email was copied to Ms Yeadon, who responded at 11.47:
“The Private Office have just telephoned. The Foreign Secretary is minded to ask Colin to declare an MPA and go for option 1 (full – no take zone). BUT FINAL DECISION NOT YET TAKEN.
The FS has said that in an ideal world, he would like to go for declaring an MPA and spend the next three months reaching some sort of agreement with the Mauritian Government on the governance (management) of the area but making it clear that we will have three months to consult them. But if they won’t come to any agreement, we will go ahead anyway. He has asked for ideas, whether the above is feasible, what are the implications? His objective is to find a way to mitigate the Mauritian reaction. We need to get something to him this afternoon…”
She copied this email to Mr Roberts, who responded at 12.07:
“I think we need to give a clearer steer to the FS ….”
He then proposed that the Foreign Secretary should adopt a staged approach with a twelve month timescale. This prompted a critical response from Andrew Allan at 12.31:
“I think this approach risks deciding (and being seen to decide) policy on the hoof for political timetabling reasons rather than on the basis of expert advice and public consultation. That’s a very different approach to the one we recommended yesterday and which the FS is still considering ….
I continue to think we have a better chance of getting a better result if we give ourselves a chance to work the many risks through. Some will never go away. But there are a lot we ought to be able to manage down if we don’t get pushed by an election timetable. If the FS chooses to push faster, then so be it. But I don’t think we should be encouraging him to think it the best option; and I do think we should be flagging up risks – which will be with us for months/years to come.”
The Foreign Secretary made his decision later that day. At 17.55 his Private Secretary emailed Ms Yeadon:
“The Foreign Secretary was grateful for your submission and the copy of the report on consultations. He has carefully considered the arguments in the submission and the views expressed during the consultation. He was grateful for your further note today. He has considered the submission in the light of the High Commissioner’s views and has given serious thought to the different possible options for announcing an MPA.
The Foreign Secretary has decided to instruct Colin Roberts to declare the full MPA (option 1) on 1 April. There will then need to be an announcement to this effect.
I would be grateful if you could take forward both.
The Foreign Secretary will then inform the House of Commons at FCO oral questions on Tuesday 6 April. I would be grateful for a brief (50 words) statement.”
This was evidently provided to him, because on 1 April 2010, he announced the creation of an MPA in BIOT which included a “no take” Marine Reserve where commercial fishing would be banned:
“I am today instructing the Commissioner of the British Indian Ocean Territory to declare a Marine Protected Area. The MPA will cover some quarter of a million square miles and its establishment will double the global coverage of the world’s oceans under protection. Its creation is a major step forward for protecting the oceans, not just around BIOT itself, but also throughout the world. This measure is a further demonstration of how the UK takes its international environmental responsibilities seriously.
The territory offers great scope for research in all fields of oceanography, biodiversity and many aspects of climate change, which are core research issues for UK science.
I have taken the decision to create this Marine Reserve following a full consultation, and careful consideration of the many issues and interests involved. The response to the consultation was impressive both in terms of quality and quantity. We intend to continue to work closely with all interested stakeholders, both in the UK and internationally, in implementing the MPA.
I would like to emphasise that the creation of the MPA will not change the UK’s commitment to cede the territory to Mauritius when it is no longer needed for defence purposes and it is, of course, without prejudice to the outcome of the current, pending proceedings before the European Court of Human Rights.”
Mr. Roberts duly made the proclamation on 1 April 2010.
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.
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.
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.
Mr Roberts’s note to the Foreign Secretary of 5 May 2009 demonstrates the only “collateral” factor relating to Chagossian ambitions which those who advised the Foreign Secretary about the proposal had in mind: it might permit HM Government to “calm down the resettlement debate” and attract support for the Government’s position from the environmental lobby. 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. We are satisfied that that was the limit of contemplation at official and political level of all of those who contributed to the decision to declare the MPA. We are satisfied that the decision was not taken, to any extent, for the improper purpose for which the claimant contends.
In those circumstances, it is not necessary for us to analyse the case law on improper purpose in situations where more than one purpose may be in play.
GROUND 2: THE FEASIBILITY STUDY
Grounds 2 to 4 all concern the lawfulness of the consultation that preceded the MPA decision. There was no dispute as to the relevant legal principles, including the requirement that a consultation “must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response” (R v North and East Devon Health Authority, ex parte Coughlan  QB 213 at ), and the absence of any general requirement that a consultation must present information about options that it has already been decided not to entertain (R (Stirling) v London Borough of Haringey  EWCA Civ 116 at -).
Grounds 2 and 3 overlap and were dealt with together by Mr Pleming in his oral submissions. In the interests of clarity, however, we propose to deal with them separately, taking ground 2 first.
The claimant’s submissions on ground 2
The claimant contends by ground 2 that the MPA decision was flawed by “the failure to reveal, as part of the consultation preceding the decision, that the Foreign Secretary’s own consultants had advised that resettlement of the population was feasible”. This takes one back to the reports published in the period 2000-2002 on the feasibility of resettlement of the Chagos Islands. The feasibility study was in progress in late 2000 when the Foreign Secretary accepted the Divisional Court’s ruling in Bancoult (No.1), and the ultimate conclusions of the study were relied on in support of HM Government’s subsequent decision to make the 2004 Orders preventing resettlement (see - above).
The draft report on Stage 1 of the feasibility study, in May 2000, contained the conclusion that “there is no obvious physical reason why one or both of the two Atolls [Peros Banhos and Salomon] should not be repopulated by the sort of numbers (up to around 1000) of Ilois who are said to have expressed an interest in resettlement”. The version published by the Foreign and Commonwealth Office in June 2000, following a meeting between the consultants and BIOT officials who are said to have exercised editorial control over the report, contained the more qualified conclusion that “resettlement of one or both atolls is physically possible, but only if a number of conditions are met …”. The change of wording between the draft report and the published version has been known since December 2005 but forms part of the present complaint.
Over the period November 2001 to March 2002 the BIOT Administration commissioned Posford Haskoning, together with MacAlister Elliott and Partners Ltd and Agrisystems Ltd, to undertake Phase 2B of the feasibility study. The Phase 2B report was published in July 2002. Its Executive Summary contained the following “general conclusion”:
“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.”
The claimant advances elaborate criticisms of that general conclusion and of the process that led to it.
For an exposition of his case in relation to the feasibility study the claimant relies on a 31 page “Analysis Note on the Resettlement Studies” prepared jointly by Mr Richard Gifford, the claimant’s solicitor, and Mr Richard Dunne, a scientific adviser to the claimant and also a barrister. The Analysis Note amounts in substance to a lengthy submission and was adopted for that purpose by Mr Pleming. Some of the material referred to in it was disclosed for the first time in these proceedings, in May 2012. The matters covered in the Analysis Note include the terms of reference and structure of the study; the exercise of editorial control by the FCO over the Phase 2B report; the changes made between the draft and final versions of the Phase 2B report and the reasons why those changes were made; the reliability and robustness of the consultants’ findings, including consideration of the nature and quality of the process of internal peer review by the British Government’s advisers, Dr Charles Sheppard (now Professor Sheppard) and Mr Brian Little; the disclosure in February 2010 by one of the consultants on the Phase 2B team, Mr Stephen Akester (of MacAlister Elliott and Partners Ltd), that he had disagreed strongly with the proposition that resettlement was “not feasible” and had proposed to BIOT three hypothetical resettlement scenarios which provided for the return of the population (and which were not referred to in the report’s Executive Summary but did appear as an appendix in another volume of the report); and a summary of reasons to doubt the reliability of the general conclusion in the Executive Summary.
Whilst a challenge to the scientific basis of the feasibility study is a central plank of the Chagossians’ campaign in favour of resettlement, it is not the subject of the present proceedings (and an application to introduce up to date evidence directed towards the scientific basis of the feasibility study was refused by the Divisional Court in November 2012). What is said in these proceedings is that the existence of serious question marks about the feasibility study, and the existence of evidence in favour of resettlement at the time of the feasibility study, should have been included in the consultation document for the MPA proposal so as to enable consultees to make informed comments on that proposal and in particular about the relationship between environmental protection and resettlement. The feasibility of resettlement is said to have been relevant at least to the possibility that there would be a need for some resident population to manage the MPA: this would have fallen within the scope of the invitation to identify options additional to the three set out in the consultation document.
In support of that submission, reliance is placed on the evidence of Professor David Bellamy. Professor Bellamy did not submit an individual response to the consultation but he signed a petition by the Chagos Environment Network in favour of option 1 (a full no-take MPA). Subsequently, however, he wrote a letter dated 12 May 2010 to Mr Gifford, the claimant’s solicitor, in which he stated his belief that the marine conservation of the Chagos Archipelago was not in conflict with the resettlement of its native population, and went on to say:
“… I also recognise that the House of Lords has upheld the legality of the policy of exiling the population from its homeland. On reading the consultation document, I noted that the government did not intend to change that policy, unless there were in some unspecified way, a change of circumstances. Since, however, there was no indication as to the way in which the MPA could be redesigned to accommodate such a change, it seemed fairly clear that this was a mere distant contingency which was unlikely to affect the government’s policy. Hence the options presented in the Consultation Document were clearly within the current policy context and this is how I considered them.
… [He then referred to evidence that had since emerged about the feasibility of resettlement, including the advice of the consultant Mr Akester, referred to above.]
By contrasting this advice with the claimed conclusions of the Feasibility Study, and the absence of any review of the policy of exile described in the Consultation Document, I believe that my support for option one is undermined, and the calculation of optimum benefit is thrown into question. I believe that if the Consultation Document had frankly disclosed the advice of independent experts that resettlement was feasible, then the balance of advantage would have shifted markedly to designing a MPA which integrated the resettlement of the population with the interests of marine conservation.
To that extent, I believe that the Consultation process failed to inform the outside world of material facts and this failure has cast doubt on the legitimacy of the consultation process.”
In a witness statement in these proceedings he comments on that letter and on its deployment in the Foreign Secretary’s grounds of opposition. He states that the consultation document nowhere made clear that the British Government was opposed to resettlement, and that what he wrote in his letter about the government having set is face against resettlement “was not based on what I had read in the Consultation Document but was the result of my own particular knowledge about the Chagos”. He expresses the view that the possibility of resettlement was within the scope of the consultation. He goes on:
“7. As I have said before, it is in my view preferable for the MPA to have the advantage of a resident population, on purely environmental grounds and without it, the MPA is unlikely to be equally successful.
8. … The balance to be struck between population and environment is a matter that deserves the closest and most careful study ….
9. Consideration of some form of resettlement could not validly be excluded from the design of a serious Marine Protected Area, with the benefits to be provided from a resettled population or a permitted return of an optimum number of former inhabitants put before the consulting public for their views.
10. For these reasons I reject the suggestion that resettlement and the feasibility of resettlement is unrelated to the matters raised in the consultation.”
The defendant’s submissions on ground 2
Mr Kovats advanced three broad submissions in response to this ground of challenge: (i) the feasibility study was not mentioned in the consultation document because it was simply irrelevant to the MPA consultation; (ii) the claimant’s attempt to use the present proceedings to attack the feasibility study is an abuse of the process of the court; and (iii) in any event, the claimant’s criticisms of the feasibility study are baseless.
As to relevance, the Foreign Secretary’s case is that the feasibility study was not relevant to the MPA consultation because the “no resettlement” policy was a given and was not being opened up for reconsideration under that consultation. The position was made clear in the consultation document itself: “Any decision to establish a marine protected area would be taken in the context of the Government’s current policy on the Territory, following the decision of the House of Lords in [Bancoult (No.2)]; i.e. there is no right of abode in the Territory and all visitors need a permit before entering the Territory” (see the full passage at  above). The only proviso, again made clear in the consultation paper, was that the consultation and any decision for the establishment of an MPA were without prejudice to the outcome of the pending proceedings before the ECtHR and that all options might need to be reconsidered if the outcome of those proceedings led to a change of circumstances. Similar terms were used in a letter dated 19 March 2010 from the British High Commissioner in Mauritius to the Office of the Mauritian Prime Minister, in which the point was underlined by the addition of the words: “The British Government does not intend to resettle the Chagossians in the Territory”. The proposed MPA was solely an environmental measure. It was reversible and was not a bar to a future change of policy on resettlement but it was not itself about resettlement. Notwithstanding the explanation given in his witness statement, Professor Bellamy’s letter of 12 May 2010 shows that when considering the consultation document he had correctly understood the policy and that the British Government did not intend to change the policy.
The case on abuse of process is that the claimant has had ample opportunity since 2002 to mount an argument about the feasibility study. Drafts of the Stage 1 study were disclosed in December 2005, at a time when they could have been deployed in the Bancoult (No.2) proceedings. The only new point relates to differences between the Phase 2B draft disclosed in May 2012 and the final version of the report: Mr Kovats accepted that this of itself fell outside the scope of his abuse argument, but submitted that it was immaterial because one did not need the draft in order to mount an attack on the scientific validity of the report. Any challenge to the feasibility study could and should have been mounted by Bancoult (No.2) at the latest.
Mr Kovats’s third main submission, concerning the substance of the criticisms made of the feasibility study, relied inter alia on the second witness statement of Ms Zaqia Rashid and the documents exhibited thereto, which give a narrative account of the drafting process. We took the view, however, that Mr Kovats did not need this point in order successfully to resist ground 2, and we therefore did not encourage him to develop his submissions on it.
Discussion of the feasibility study issue
We can state our conclusions on this ground very briefly indeed. We accept Mr Kovats’s primary submission, that the feasibility study was irrelevant to the MPA consultation. The consultation was clearly about conservation, not about resettlement. The “no resettlement” policy was an established policy which was not being opened up for debate. The consultation was directed at the question whether, against the background of that policy, there should be an MPA and, if so, what form it should take. Whether the policy itself was justified and whether resettlement was feasible were not within the scope of the MPA proposal. The fact that, notwithstanding the policy, some consultees might wish to put forward alternative options involving resettlement of the islands did not make it necessary for the consultation document to address resettlement. We are satisfied that the exclusion of such matters from the document was fully justified and did not render the consultation process unfair or unlawful.
In those circumstances we think it unnecessary to address Mr Kovats’s submissions on abuse of process or his substantive response to the criticisms of the feasibility study.
GROUND 3: ENVIRONMENTAL INFORMATION
The third ground alleges that the MPA decision was flawed by “the failure to disclose relevant environmental information in the course of the consultation”. The issue is a short one, adding little if anything to ground 2, because the alleged failure to disclose environmental information concerns information relevant to the feasibility of resettlement, not information relevant to the conservation measures proposed, and the reasoning that led to our conclusion on ground 2 is equally applicable here.
A request for disclosure of information was made by letter dated 23 December 2009 from the claimant’s solicitors, in the context of the MPA consultation. It is said that the request was made pursuant to the Environmental Information Regulations 2004 and the Freedom of Information Act 2000. There is an issue as to whether it constituted a valid request under the 2004 Regulations, but nothing turns on the point and we say no more about it. There is also an issue, about which we again need say no more, as to whether the information of which disclosure was sought was adequately particularised. What matters for present purposes is the general character of the information sought. That is set out with sufficient clarity in the claimant’s written submissions:
“48. … The documents that were sought in the course of the MPA Consultation were highly relevant to the feasibility of resettlement such that their omission prevented the actual or possible consultees from giving intelligent consideration and making informed responses to the question of whether an MPA was warranted, and if so, what form it should take.
49. As a matter of fact, the information that was disclosed for the purposes of the MPA Consultation … did not include any information concerning the feasibility of resettlement of the exiled Chagossian population ….
52. … The documents sought described, inter alia, the extent of climate change impact on the outlying islands in the Chagos archipelago and how this might affect resettlement ….
59. The effect of the Defendant’s omission was to exclude any consideration of how the feasibility of resettlement might be relevant to consultees ….”
As we have said in relation to ground 2, this was not a consultation about resettlement and it was not necessary for the consultation document to address the feasibility of resettlement. The complaint that it omitted environmental information relevant to resettlement gets the claimant nowhere.
As presented by Mr Pleming, ground 3 appeared also to have a broader aspect to it. He referred to the annex to the consultation document on “Impact/costs & benefits” (Annex A), described it as “pretty thin” and cited the criticisms made of it in a joint response to the consultation, dated 5 February 2010, by Mr Dunne and Professor Brown. The response stated that the scope and content of the impact assessment in Annex A was “lamentable”, and gave these examples: (1) failure to identify the scale, size or identity of the international fishing community or the detailed consequences, financial and employment, for the imposition of a MPA on them; (2) failure adequately to describe the full nature of the environmental status and legislative status of Diego Garcia; (3) failure adequately to describe the position of the Mauritian Government and the claims of sovereignty; and (4) failure adequately to address the issues of the claimed right of abode by the Chagossians or to indicate how this could affect the legal status or implementation of the proposed MPA. There is little in those points by way of claimed lack of environmental information. We note, moreover, that in the main body of the letter the authors concluded that “there are strong scientific and conservation reasons to strengthen and unify existing legislation in support of the proposal to create any of the 3 options put forward in the consultation”; and that a petition by the Marine Education Trust, annexed to the letter, supported the declaration of an MPA and made no complaint about any lack of environmental information, but opposed the three options in the consultation document on the sole ground that “full no-take protection of reef areas would provide no means for resettled islanders to utilise their marine resources for subsistence or income generation”. Here too, therefore, the concern was about resettlement, not about the desirability of the conservation measures proposed.
In any event, in so far as it is contended that the consultation document was deficient in its provision of environmental information relevant to the proposed conservation measures, we reject the contention. It is true that the document itself addressed the issue at a relatively high level of generality; but this accorded with the intention of making the document clear and intelligible to the wide range of consultees to whom it was addressed, and the document included links to the Chagos Environment Network brochure and the National Oceanography Centre report where more detailed consideration of the environmental issues could be found (see - above). It is plain in any event that the environmental considerations were strongly in favour of the proposed MPA. The circumstances were in no way comparable to those of a major building development with potentially significant adverse effects on the environment, for which a detailed environmental impact assessment is therefore required by law. We are satisfied that the environmental information provided in this case was sufficient for the purposes of a valid consultation.
For those reasons we reject the claimant’s case under ground 3.
GROUND 4: FISHING RIGHTS
The fourth ground of challenge is that the MPA decision is flawed by “the failure to disclose [in the consultation] that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and/or historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands”. The main focus is on rights allegedly enjoyed by Mauritius to fish in BIOT waters, in particular as a result of an undertaking given by the British Government in September 1965 as part of the terms for the detachment of the Chagos Archipelago from Mauritius. It is said that even if it was only arguable that such rights existed, the point was of obvious relevance to the proposal to create a no-take MPA and should therefore have been disclosed in the consultation.
Before examining the claimant’s case any further, it is helpful to summarise the factual history. That history is the subject of extensive documentation and detailed analysis in the parties’ submissions and in the witness statements, particularly those of Mr Richard Dunne on behalf of the claimant. The account given below, although lengthy, seeks only to cover the main points and to convey the overall flavour.
The September 1965 undertaking
In July 1965, in the context of proposals for the establishment of a US defence facility in the area of the Chagos Archipelago, the Governor of Mauritius was instructed to commence negotiations with Mauritian ministers about proposals for the detachment of the islands from Mauritius, which at that time was still a British colony. In early discussions the Premier of Mauritius, Sir Seewoosagur Ramgoolam, raised the question of “mineral or other valuable rights that might arise in the future”; and ministers expressed the wish for provision to be made “for safeguarding mineral rights to Mauritius and ensuring preference for Mauritius if fishing or agricultural rights were ever granted”.
The question of detachment was then discussed at a meeting on 23 September 1965 at Lancaster House, London, attended by the Secretary of State for the Colonies, Colonial Office officials and a number of Mauritian ministers, including the Premier. The official minute of the meeting records:
“22. Summing up the discussion, the SECRETARY OF STATE asked whether he could inform his colleagues that Dr Ramgoolam, Mr Bissoondoyal and Mr Mohamed were prepared to agree to the detachment of the Chagos Archipelago on the understanding that he would recommend to his colleagues the following:-
(vi) the British Government would use their good offices with the US Government to ensure that the following facilities in the Chagos Archipelago would remain available to the Mauritius Government as far as practicable:
(b) Fishing Rights ….”
The reference to “fishing rights” was one of a number of additions made to the draft at the request of the Premier prior to agreement of the minute. What was recorded in paragraph 22(vi) in relation to fishing rights is conveniently referred to as “the September 1965 undertaking”.
The minute was sent by the Colonial Office to the Governor of Mauritius on 6 October 1965 with a request for confirmation that the Mauritian Government was willing to agree that Britain should now take the necessary legal steps to detach the Chagos Archipelago on the conditions enumerated in the minute; and with the statement that as regards various points, including that of fishing rights, the British Government would “make appropriate representations to the American Government as soon as possible” and would keep the Mauritius Government informed of progress in the matter. On 5 November 1965 the Mauritius Council of Ministers confirmed agreement to the detachment of the Chagos Archipelago on the conditions enumerated.
On 8 November 1965 BIOT was created by the British Indian Ocean Territory Order 1965, thus effecting its detachment from Mauritius. Mauritius itself became independent from the United Kingdom on 12 March 1968.
In a debate in the Mauritius Legislative Assembly on 21 December 1965 the Premier was asked whether the British Government had definitively undertaken the obligation that “all fishing facilities around Diego will be safeguarded”. The answer given on behalf of the Premier ducked the question:
“I am not clear what the Hon Member means by the word ‘safeguarded’. So far as I am aware the only fishing that now takes place in the territorial waters of Diego Garcia is casual fishing by those employed there and as the Hon Member is aware, they will be resettled elsewhere.”
In November and December 1965 there were communications between the Colonial Office, the Governor of Mauritius and the BIOT Commissioner concerning the nature and extent of fishing practised by the people in the Chagos Archipelago and by vessels from Mauritius and the Seychelles. A minute dated 17 November 1965 from the Governor of Mauritius described the nature of the fishing practised by the people in the Chagos Archipelago as “mainly hand line with some basket and net fishing by local population for own consumption”, and the use made of international waters in the Archipelago as “nil, though vessels from Seychelles and occasionally Mauritius use anchorage facilities”.
In early 1966 exchanges took place between government departments in London on the terms of what became a minute dated 13 March 1966 from the Colonial Office to the Governor of Mauritius, seeking his views on the case to be put to the Americans, pursuant to the September 1965 undertaking, on the subject of fishing. The minute of 13 March 1966 suggested a proposition along the lines of (a) unrestricted access before any of the islands were taken over for defence uses and cleared of population, and (b) unrestricted access thereafter by Mauritius fishing vessels to the high seas and to the islands not excluded for defence reasons, with consideration to be given to the possibility of limited access for fishing in the waters surrounding islands excluded for defence use. It said that before an approach was made to the Americans more thought would have to be given to the related questions of territorial waters and fishing limits: the effect of extending current UK law to BIOT would be a twelve mile fishery limit drawn from base lines in accordance with the 1958 Territorial Sea Convention (“granting ‘habitual fishing rights’ between the six and twelve mile lines to Mauritius and any other states whose vessels had fished in the area during the preceding ten years”) and retaining a three mile territorial sea limit from the same base lines. It also raised the question of the extent to which the Chagos Archipelago was an important fishing ground from the point of view of Mauritius, noting that any fishing limits accepted with Mauritius primarily in mind would apply to other countries too: “It would thus be convenient to be able to base any undertaking to Mauritius on habitual or traditional fishing arrangements, provided that no other countries can claim similar use in the past. It is essential that, in helping to meet a special plea on the part of Mauritius, we can still keep other fishing fleets at a safe distance”. In that connection it sought facts and figures about existing fishing activities and any planned increases.
The Governor of Mauritius replied on 25 April 1966 that in his view a proposition along the lines suggested would be acceptable in Mauritius provided access to islands were interpreted as permission to establish shore facilities, and that his own information was that the only fishing in the Chagos Archipelago at present was casual fishing for local consumption.
The available documents contain no direct record of discussions with the Americans on the subject of fishing but there is some indirect reference to those discussions. It appears that the proposals referred to above were put to the Americans, who saw no difficulty with them, and that the various measures described below were also acceptable to the Americans. The subject was not, however, elaborated in the formal inter-governmental agreements. An Exchange of Notes between the British Government and the US Government dated 30 December 1966, concerning the availability of BIOT for defence purposes, made no reference at all to fishing. An Exchange of Notes dated 25 February 1976 between the two governments (replacing a 1972 Exchange of Notes) stated simply:
“… the Government of the United Kingdom will not permit commercial fishing or oil or mineral exploration or exploitation in or under those areas of the waters, continental shelf and sea-bed around Diego Garcia over which the United Kingdom has sovereignty or exercises sovereign rights, unless it is agreed that such activities would not harm or be inimical to the defence use of the island.”
The creation of a 12 mile fisheries zone; the Fishery Limits Ordinance 1971
The idea of applying a twelve mile fishery limit within BIOT, raised in the Colonial Office minute of 13 March 1966, was the subject of further consideration and elaboration within the British Government. A set of proposals to be put to Mauritian ministers was prepared on the basis of the minute of 13 March 1966 but with an additional paragraph about the possibility of declaring an exclusive fishing zone up to nine miles beyond the territorial sea. It is not clear whether those proposals were in fact put or what reaction they received.
A letter dated 24 August 1967 from the BIOT Administrator to the Commonwealth Office proposed the adoption of a twelve mile fishery limit under the 1958 Territorial Sea Convention, the administration of fishery control within those limits unless and until a defence presence was established, and the administration of control when a presence was established. A reply dated 24 April 1968 from the Commonwealth Office indicated no objection in principle to the enactment of legislation to create a twelve mile limit but noted the need to consider what concessions should be granted to foreign governments. It referred to the paucity of information about foreign vessels which might have established “habitual fishing rights” in the relevant waters. It also referred to the September 1965 undertaking as “an undertaking … given to Mauritius Ministers to ensure that fishing rights remain available to Mauritius in the Chagos Archipelago as far as is practicable”. It proposed three fishing zones, which it described as “slightly more restrictive than those previously considered by the Americans and over which they saw no problem”. There was some subsequent refinement of the zones, and in October 1968 it was reported that the Americans had no significant objection to the proposed zones.
In the event, on 10 July 1969, by Proclamation No.1 of 1969, the Commissioner for BIOT, acting on the instructions of the Foreign Secretary, established an exclusive fisheries zone contiguous to the territorial sea of the BIOT, extending from the outer margin of the territorial sea to twelve miles from shore (“the contiguous zone”). After further discussion, effect was given to this by the Fishery Limits Ordinance 1971, section 3(1) of which made it an offence to fish in the BIOT territorial sea or the contiguous zone, subject to the other provisions of the Ordinance. Section 3(3) made provision for the taking of fish for commercial research, scientific research or sporting purposes under a licence granted by the Commissioner to the owner or operator of the boat. Section 4 provided:
“For the purpose of enabling fishing traditionally carried on in any area within the contiguous zone by foreign fishing boats to be continued, the Commissioner may by order designate any country outside the Territory and the area in which and descriptions of fish or marine product for which fishing boats registered in that country may fish.”
The background material shows that it was intended to designate Mauritius under Article 4. Thus, a minute dated 2 July 1971 from the Foreign and Commonwealth Office to the British High Commission in Mauritius stated:
“… the Commissioner of BIOT will use his powers under Section 4 of the BIOT Ordinance No 2/1971, to enable Mauritian fishing boats to continue fishing in the 9-mile contiguous zone in the waters of the Chagos Archipelago. This exemption stems from the understanding on fishing rights reached between HMG and the Mauritius Government, at the time of the Lancaster House Conference in 1965 ….”
That intention was conveyed in similar terms by the High Commissioner to the Mauritius Government on 15 July 1971. In the event, no designation under section 4 was in fact made but some fishing by Mauritian vessels in BIOT waters did take place in practice.
Events of the late 1970s and early 1980s
On 31 May 1977 the East African Department of the Foreign and Commonwealth Office asked its legal advisers for advice about “the legal import of our undertaking to the Mauritians” in 1965, in the context of questions about the three mile territorial sea and the 1971 Ordinance on fishery limits. The reply, dated 1 July 1977, expressed doubt about the position but appeared to take the view on balance that the obligation was to ensure that fishing rights remained available.
The Chagossians and the status of the Chagos Islands became a factor in Mauritian internal politics in the 1970s, with a growing campaign for their return to Mauritius. In June 1980 Prime Minister Ramgoolam issued a statement referring to the excision of Diego Garcia from Mauritius before Mauritius became independent in 1968. The statement acknowledged British sovereignty over the island and referred incidentally to fishing rights:
“As a result of the excision, Diego Garcia became part of what is known as the British Indian Ocean Territories, and Great Britain has sovereignty over it, although we, by arrangement with Great Britain, have preserved our mineral rights, fishing rights. And the day Great Britain doesn’t need Diego Garcia, Diego Garcia will be returned to us without compensation.”
An internal minute dated 30 June 1980 within the FCO’s East African Department raised the possibility of a course of action involving concessions to boost the position of Prime Minister Ramgoolam: the proposed concessions included the declaration of a 200 mile fishing limit around the Chagos Islands, within which, apart from the United Kingdom, only Mauritius would have fishing rights.
In August 1980 the Parliamentary Under Secretary of State, with whom the issue of fishing and mineral rights in the Chagos Archipelago had been raised on a visit to Mauritius, asked his officials whether the British Government was in a position to clarify to the Mauritian Government its view of the position. A reply minute dated 29 September 1980 referred to the September 1965 undertaking and to the 1971 Ordinance on fisheries limits and stated that the legal position had not altered but “as far as we are aware the Mauritians have only one boat suitable for fishing in the waters of the Chagos Archipelago … and have made little use of their rights”. As the discussions continued, various views were expressed: for example, in an FCO East African Department minute dated 19 January 1982 an official gave it as his understanding that BIOT had exclusive fishing rights over the territorial sea together with the contiguous zone but that the Mauritians had traditional fishing rights within the contiguous zone. The discussions led in due course to the 1984 Ordinance referred to below.
Notwithstanding Prime Minister Ramgoolam’s June 1980 statement acknowledging British sovereignty, by 1982 Mauritius was making a legislative claim to sovereignty over BIOT. That legislative claim is currently to be found in section 111 of the Constitution of the Republic of Mauritius, which defines the territory of Mauritius as including the Chagos Islands. We were told that there has evolved a practice of exchanges of diplomatic notes between the United Kingdom and Mauritius in which each protests any assertion by the other of sovereignty over BIOT. Examples of this practice are to be found in the further history of the BIOT fishing regime, described below. Sovereignty is also the ground on which Mauritius has protested to international bodies over actions of the United Kingdom in respect of BIOT waters, as also described below. The respective positions of the United Kingdom and Mauritius in respect of sovereignty over the Chagos Archipelago or BIOT are also made clear in the joint communiqué attached as Annex C to the MPA consultation document (see  above). Mauritius’s stance in relation specifically to the MPA is described below.
The Fishery Limits Ordinance 1984
Returning to the history of the fishing regime: by early 1984, as appears from an FCO East African Department minute dated 10 January 1984, consideration was being given to amending the Fishery Limits Ordinance 1971 so as to make fishing by Mauritian vessels in the territorial sea and contiguous zone subject to licence. But a licensing regime was not in fact adopted at this time. Arrangements similar to those already existing were continued by Proclamation No.8 of 1984 and the Fishery Limits Ordinance 1984. The power of designation under section 4 of the 1984 Ordinance applied, however, to fishing in the territorial sea as well as in the contiguous zone (whereas in the 1971 Ordinance it had related only to the contiguous zone); and on this occasion the power was actually exercised, on 21 February 1985, so as to “designate Mauritius for the purpose of enabling fishing traditionally carried on in areas within the fishery limits to be continued by fishing boats registered in Mauritius”.
The creation of a 200 mile fisheries zone and full licensing regime: the 1991, 1998 and 2007 Ordinances
In 1991, in the light of conservation concerns and increased fishing by third country vessels, the decision was taken to extend the fisheries limit around the islands from 12 miles to 200 miles and to lay down a full licensing regime. A fisheries and conservation management zone extending from the territorial sea to the 200 mile limit (“the FCMZ”) was established by Proclamation No.1 of 1991 and the Fisheries (Conservation and Management) Ordinance 1991. Section 4 of the Ordinance prohibited fishing in internal waters, the territorial sea or the FCMZ without a licence. Section 20 empowered the Commissioner to make regulations providing inter alia for fees to be paid in respect of licences.
The minutes relating to the decision show a concern that the declaration of a 200 mile fisheries limit might exacerbate bilateral problems with Mauritius, given Mauritius’s claim to the Chagos Archipelago. It was considered prudent to license Mauritian vessels without cost, so as to defuse criticism. Accordingly, by a note verbale dated 23 July 1991 the British High Commission in Mauritius informed the Mauritius Government of the intention to extend the fishing zone from 12 miles to 200 miles, explained the environmental reasons for the measure, and continued:
“In view of the traditional fishing interests of Mauritius in the waters surrounding British Indian Ocean Territory, a limited number of licences free of charge have been offered to artisanal fishing companies for inshore fishing. We shall continue to offer a limited number of licences free of charge on this basis.”
By a note verbale in response, dated 7 August 1991, the Mauritius Government protested on grounds of sovereignty:
“The Ministry wishes to remind the High Commission that the Government of Mauritius considers that the Chagos Archipelago, referred to as the British Indian Ocean Territory in the note under reference, is an integral part of Mauritius, and that the Government of Mauritius has reaffirmed its sovereignty over the Chagos Archipelago and its maritime rights in respect of the Chagos Archipelago ….
The Ministry furthermore wishes to point out that, in the light of the above, the Government of Mauritius does not ipso facto accept the validity of the offer of free licences for inshore fishing.”
There ensued a debate within the FCO as to whether, for reasons of viability of the fisheries regime, charges should be imposed for licences even in respect of Mauritian vessels. The argument against such a course was that it was “clearly against the spirit” of the September 1965 undertaking to impose such a charge and that it would look shabby and greedy to do so (British High Commission minute of 15 November 1991). That argument prevailed. By letter dated 5 May 1992 to Marine Resources Assessment Group (“MRAG”), a commercial operation which managed the BIOT fisheries, the BIOT Commissioner confirmed that it was intended to issue free licences to Mauritian vessels. In a letter of 1 July 1992 to the Prime Minister of Mauritius, providing “clarification about British policy towards Mauritian claims to sovereignty over the British Indian Ocean Territory”, the BIOT Commissioner stated:
“… HMG takes seriously its obligations to ensure the conservation of the resources of the Archipelago and declared a 200 mile exclusive fishing zone on 1 October 1991 as its contribution to safeguarding the tuna and other fish stocks of the Indian Ocean. The British Government has honoured the commitments entered into in 1965 to use its good offices with the United States Government to ensure that fishing rights would remain available to Mauritius as far as practicable. It has issued free licences for Mauritius fishing vessels to enter both the original 12 mile fishing zone of the territory and now the wider waters of the exclusive fishing zone. It will continue to do so, provided that the Mauritian vessels respect the licence conditions laid down to ensure proper conservation of local fishing resources.”
By a note verbale dated 13 April 1999, the British High Commission informed the Mauritius Government that as a precautionary measure in order to conserve the fishery while the effects of coral bleaching on the Chagos reefs were monitored, the number of licences for inshore fisheries for the 1999 season would be reduced from six to four. A note verbale in response, dated 1 July 1999, simply reaffirmed the position of the Mauritius Government that sovereignty over the Chagos Archipelago rested with Mauritius.
On 17 September 2003, by Proclamation No.1 of 2003, the BIOT Commissioner, acting on the instructions of the Secretary of State, established for BIOT the Environment (Protection and Preservation) Zone (“the EPPZ”) covering the same geographical area as the FCMZ. This was an environmental measure with no impact on fishing. Once more it prompted objections from the Mauritius Government on sovereignty grounds.
The 1991 Ordinance on the FCMZ was repealed and replaced by a 1998 Ordinance, which in turn was repealed and replaced by the Fisheries (Conservation and Management) Ordinance 2007. None of this involved any material change in the fishing regime. Under the 2007 Ordinance it remains an offence to fish in the FCMZ without a licence.
In the period 1991 to 2009, when the licensing system was in operation, the vast majority of licences granted was for deep sea fishing by third country vessels (for example, those of France, Japan, Spain and Taiwan). According to statistics provided by MRAG, the position in relation to fishing by Mauritian-flagged vessels was as follows: for deep sea fishing, between two and six licences were granted annually in the period 1991 to 1999, and none thereafter; and for inshore fishing, between three and seven licences were granted annually in the period 1992 to 1999, between two and four licences annually in the period 2000 to 2004, none in the period 2005 to 2008, and two in 2009.
No new fishing licences have been issued since the creation of the MPA on 1 April 2010, though licences then in force were permitted to run their course and the last such licence expired in October 2010. There has been no challenge by the owner or operator of any vessel to the decision not to grant any new licences.
Fishing by Chagossians
Factually, the Chagossians themselves are brought into the fishing rights issue in two ways. First, reliance is placed on the fact that prior to their removal from the Chagos Islands the inhabitants traditionally carried on fishing for local consumption. Such Chagos-based activity, the existence of which is recognised in the contemporaneous documentation, came to an end by no later than May 1973 when the last of the resident population left the islands. Secondly, to the extent that Mauritius enjoys fishing rights in BIOT waters, reliance is placed on the position of Chagossians as indirect beneficiaries of those rights. Many Chagossians are Mauritian citizens and are able in that capacity to exercise Mauritian fishing rights. Moreover a substantial number of Chagossians worked as crew members of Mauritian-flagged vessels operating in BIOT until the MPA brought such activity to an end. In effect it is said that the position of the Chagossians became subsumed after 1973 within that of Mauritius with regard to fishing rights.
Reference is made in particular to vessels operated by three Mauritian-based companies owned or managed by members of a family with strong Chagossian links, the Talbots. It would seem that all or most of the licences granted over the years for inshore fishing by Mauritian vessels in BIOT waters were in respect of Talbot vessels. There is also important evidence from two fishermen born on Chagos, Mr Joseph Volly and Mr Sylvestre, concerning the employment of them and other Chagossians as crew members of such vessels, and the significance of this in terms of using and maintaining their knowledge of Chagos waters, gaining an income and sustaining a link to their homeland. That evidence is summarised at - below, in the context of the EU law issue, where it is also an important feature of the claimant’s case. The creation of a no-take MPA is said to have had a direct economic impact on such people.
Mauritius’s stance in relation to the consultation and the MPA
Mauritius’s stance towards the creation of the MPA has rested from the outset on its claim to sovereignty over the Chagos Archipelago.
In 2008 it had been agreed to have bilateral talks between the United Kingdom and Mauritius on issues relating to BIOT. The first round of talks took place on 14 January 2009, by which time the Pew Environmental Group’s proposal for a large scale BIOT marine reserve was circulating. The legal stance taken by Mauritius can be seen from a paper by Professor Sir Ian Brownlie CBE, QC which was presented on behalf of the state. The paper put forward a legal framework within which the position of Mauritius was to be assessed. At the forefront was “recognition of the sovereignty of Mauritius in respect of the Chagos Archipelago”. Later in the paper Professor Brownlie turned to “an alternative legal framework, represented by the talks at Lancaster House in 1965, and the arrangements which resulted”. He quoted from the contemporaneous documentation (the key passages of which have been set out above) as evidence of “promises of reversionary rights”. He suggested that the undertakings involved “an indirect recognition by the United Kingdom of the legal interest of Mauritius in the Chagos Archipelago” and that it would be “entirely fitting if the present talks were to involve offers from the UK side which reflect the content of the promises which appear in the record of the 1965 talks”. Whilst Mr Pleming submitted that Professor Brownlie’s paper shows that Mauritius was interested in more than an assertion of sovereignty, it seems to us that the “alternative legal framework” was bound up closely with the issue of sovereignty, suggesting a way forward towards a future deal. The paper contains no suggestion that Mauritius might enjoy fishing rights over BIOT waters on grounds other than sovereignty.
All this is entirely consistent with a Mauritian note verbale of 5 March 2009 which restated the sovereignty claim and asserted that “[t]he creation of any Marine Park in the Chagos Archipelago will therefore require, on the part of all parties that have genuine respect for international law, the consent of Mauritius”.
A further round of bilateral talks took place on 21 July 2009. This resulted in the joint communiqué subsequently set out in Annex C to the MPA consultation document. On publication of the consultation document on 10 November 2009, the Mauritius Government sent an immediate note verbale complaining about the text of the joint communiqué included within it. The text was immediately amended in order better to reflect the views expressed in the note verbale. But a further note verbale dated 23 November 2009 complained that the amendment still did not fully reflect those views, and expressed the belief that it was inappropriate for the consultation on the proposed MPA, so far as Mauritius was concerned, to take place outside the bilateral framework of discussions between the United Kingdom and Mauritius. The note continued:
“The Government of Mauritius considers that an MPA project in the Chagos Archipelago should not be incompatible with the sovereignty of the Republic of Mauritius over the Chagos Archipelago and should address the issues of resettlement, access to the fisheries resources, and the economic development of the islands in a manner which would not prejudice an eventual enjoyment of sovereignty. A total ban on fisheries exploitation and omission of those issues from any MPA project would not be compatible with the long-term resolution of, or progress in the talks, on the sovereignty issue.”
On 15 December 2009 the Secretary of State wrote to the Mauritian Foreign Minister, stressing that the public consultation did not prejudice or cut across the bilateral dialogue. The Foreign Minister’s reply dated 30 December 2009 and an accompanying note verbale reiterated the Mauritian position set out previously and stated that the exclusion of such important issues as resettlement, access to fisheries resources and economic development in any discussion relating to the proposed MPA would not be compatible with resolution of the issue of sovereignty over the Chagos Archipelago and progress in the ongoing talks between Mauritius and the United Kingdom. In the circumstances Mauritius was not in a position to hold separate consultations with the UK team of experts on the proposal to establish an MPA.
A note verbale dated 19 February 2010 from the Mauritian Prime Minister’s Office to the British High Commissioner repeated the position of the Government of Mauritius that the consultation document should be withdrawn. It continued:
“I further wish to inform you that the Government of Mauritius insists that any proposal for the protection of the marine environment in the Chagos Archipelago needs to be compatible with and meaningfully take on board the position of Mauritius on the sovereignty over the Chagos Archipelago and address the issues of resettlement and access by Mauritians to fisheries resources in that area.”
The assertion by Mauritius that the establishment of the MPA infringes its sovereignty over the Chagos Archipelago has also been advanced before the United Nations (in an address by the Mauritian Foreign Minister to the UN General Assembly on 28 September 2010) and in a claim brought by Mauritius against the United Kingdom under Part XV of the United Nations Convention on the Law of the Sea (“UNCLOS”). According to the statement of claim in those proceedings, dated 20 December 2010, the dispute relates to the interpretation and application of numerous provisions of UNCLOS; and in support of its claims, Mauritius also invokes other rules of international law, including the principle of permanent sovereignty over natural resources. The court does not have further particulars since the arbitration is private and confidential. We are told that the United Kingdom has lodged objections to jurisdiction, which the arbitral tribunal has directed to be heard together with the merits of the claim. No resolution can be expected prior to our judgment in the case now before us.
The absence of reference to fishing rights in the consultation document
The terms of the consultation document have been set out in the introduction to this judgment. The document referred generally to the impact of the creation of an MPA on “the international fishing community”. In relation to Mauritius it annexed the joint communiqué referring inter alia to the dispute over sovereignty, but it made no mention of the issue of Mauritian fishing rights in BIOT waters. It stated in relation to the Chagossians that in current circumstances (no right of abode, and the need for a visitor permit) the creation of an MPA “would have no direct immediate impact on the Chagossian community”.
The third witness statement of Mr Roberts deals at length with the thinking that lay behind the terms of the consultation document. He states, for example:
“19. In the run up to the second round of bilateral talks with Mauritius [July 2009], my firm understanding as a result of the enquiries undertaken as part of the MPA scoping process and advice received from legal advisers, was that Mauritius did not have legal rights to fish in BIOT waters, whether as a result of the 1965 undertakings or otherwise, which prevented HMG from establishing an MPA, including a complete no-take MPA. If there was a ‘fishing right’, it was no more than for Mauritius flagged vessels which applied to BIOTA [BIOT Administration] for licences to be issued them free of charge, but only insofar as BIOT chose to issue licences. HMG reserved the right to decide whether or not to issue a licence. In the case of a regime where no licences were issued, the question of a free licence simply would not arise.”
Nothing that occurred at the second round of bilateral talks caused Mr Roberts to change that view: no objection to the MPA proposal was raised by Mauritius on the grounds of fishing rights. Thus, when it came to the consultation document:
“30. … Mauritian ‘fishing rights’ or the possibility of Mauritian ‘fishing rights’ were not included in the consultation document because, as far as we were concerned, Mauritius did not have any.”
As to the Chagossian aspects of the claimant’s “fishing rights” point, Mr Roberts’s understanding throughout was that the arrangements to issue licences free of charge applied only to certain Mauritian-flagged vessels. He refers to the Talbot vessels and states that Mr Alain Talbot was contacted in Mauritius in July 2009 to discuss directly the proposals for an MPA. Mr Talbot did not raise the question of Mauritian or Chagossian rights, and there was never any suggestion that the Chagossians were the beneficiaries of any “fishing rights” that Mauritius might have under the arrangements for free fishing licences.
Mr Roberts ends his third statement:
“39. To conclude, there was no reference to any historical or traditional ‘fishing rights’ of Mauritius or the Chagossians which might stem from the 1965 understandings in the public consultation document, or the possibility that any rights might exist, because, after considering the question and receiving legal advice, we did not believe that Mauritius or the Chagossians had, or might have had, any such rights.”
Ms Yeadon’s third witness statement contains evidence to similar effect. She states inter alia that she “considered Mauritian ‘fishing rights’ under the 1965 understanding, which had in practice taken the form of free licences for Mauritian-flagged vessels to fish in BIOT waters, to be an undertaking of a political, not legal, nature”, and she gives this as her reason for not including any reference to the issue in the consultation document. She also notes that the consultation document included a link to the draft report of the workshop held on 5-6 August at the National Oceanography Centre (see  above), in which reference was made to “Mauritian/Chagossian historical fishing rights, at present regulated through free licences” (in the final report, published in December 2009, the reference to “Chagossian” historical fishing rights was removed at Ms Yeadon’s request).
The full detail of the advice received by Mr Roberts and Ms Yeadon is not known (privilege in the legal advice has not been waived), but the claimant makes various points in relation to the advice that is known. For example, criticism is directed towards the terms of a 1996 FCO briefing paper which Mr Roberts read on coming into office as BIOT Commissioner in autumn 2008; and it is said that Mr Roberts misinterpreted Professor Brownlie’s paper for the bilateral talks between the United Kingdom and Mauritius in January 2009 (see  above, where, however, the claimant’s construction of the paper is rejected). Attention is also drawn to pre-consultation advice given on 8 July 2009 by MRAG, the company responsible for management of the BIOT fisheries. MRAG questioned the appropriateness of a full no-take MPA within BIOT and suggested a more limited option focused on the vulnerable reefs in the area of the islands (this seems to be reflected in the third of the options put forward in the consultation paper itself). Its comments included the following:
“4. Legal and historical obligations may pose a constraint on declaring the whole FCMZ as a closed area. UNCLOS requires that coast states make provision for access to its EEZ by foreign fishers; Mauritius has historical agreements to fish inside the BIOT FCMZ.
a. United Nations Conventions on the Law of the Sea …
b. Mauritian historical fishing rights
In addition to UNCLOS article 62 which refers to States whose nationals have habitually fished in the zone, the right of Mauritians to fish in BIOT waters was enshrined in the agreements made between UK and Mauritius in 1965. The 1971 ordinance on fishing also left an exception for certain foreign vessels to fish. This ‘right to fish’ has been put into practice since the declaration of the FCMZ in 1991 as ‘free licences’ although the BIOT Administration reserves the right to limit the number of licences issued relative to the surplus allowable catch. For the banks (inshore) fishery a limit of six eighty-day licences has been applied. There is documentary evidence of Mauritian fishing in the Chagos archipelago since at least 1977.”
The claimant’s submissions on the fishing rights issue
By way of outline of the claimant’s submissions on the fishing rights issue, Mr Pleming made the following general points:
(1) The documents disclose at least that it is likely that Mauritius had and continues to have a right to fish in the waters surrounding the Chagos Islands.
(2) The claimant does not have to prove as a matter of international law that Mauritius did have and continues to have such a right: that will be determined in the UNCLOS arbitration (subject to the United Kingdom’s objections to jurisdiction). If it was even arguable that Mauritius had continuing fishing rights, that information should have been included in the consultation so that consultees could express their views on what should be the preferred option for any MPA.
(3) Fishing by Mauritians (and by Chagossians either as Mauritian citizens or as crews on Mauritian fishing boats) was clearly and obviously relevant to the form of the proposed MPA. Any existing right to fish by Mauritius would make a no-take MPA impossible, so that options with some fishing would become the only options and would perhaps highlight to consultees the need to consider not only the options set out in the consultation paper but also other options (“option 4”) with an active role for Chagossians. Accurate and complete information on the legal position in relation to existing fishing rights was of obvious interest to all consultees, not just to Mauritius.
(4) The views of Mauritius on fishing were also highly relevant to the consultation on a no-take MPA. If the proposal was implemented it would be a decision with international consequences, and Mauritius is expressly referred to in the consultation document.
(5) The advice upon which Mr Roberts and Ms Yeadon appear to have relied as justifying the exclusion of any reference to Mauritian fishing rights in the consultation document was confused and incomplete. Mauritius itself continued to protest throughout the consultation process that its rights and interests were not being considered or respected, but this was not revealed to consultees.
(6) The claimant has an interest in the fishing issue. On return to the Chagos Islands he will want to fish and will want to eat fish caught by others, and some form of commercial fishing may be necessary to support the Chagossian community. Until the Chagossians return, it is very important that their link with the sea and fishing around the Chagos Islands continues. This fact should have been reflected in the consultation document.
(7) The exclusion of Mauritian/Chagossian fishing rights from the consultation, given the effect of a no-take MPA on those rights, amounted to an important and material flaw in the consultation process which rendered the consultation and the subsequent decision unlawful.
In development of those points, Mr Pleming submitted that by the September 1965 undertaking there was a clear and unequivocal agreement or undertaking by the British Government to Mauritian ministers at the time of the detachment of the Chagos Archipelago from Mauritius in 1965. This was not a treaty (Mauritius was not a separate state at the time) but the promise was made with the intention of being acted on and of continuing beyond the independence of Mauritius. It reflected the Chagossians’ traditional rights to fish in Chagos waters. The creation of BIOT and the removal of the Chagossians from the islands did not extinguish those rights. The documents show that British officials subsequently considering the issue treated the September 1965 undertaking as binding. In furtherance, or practical manifestation, of the undertaking the British Government allowed traditional fishing to continue from 1965 onwards and, when a licensing system was introduced, granted free licences to fishing vessels from Mauritius. Those continued actions, on which Mauritius and the Chagossians relied, were consistent with the unilateral actions of the British Government having created and then recognised international law rights to fish in BIOT waters: a unilateral act by a state can found legally binding obligations in international law. Further, in light of its consistent and unequivocal behaviour over the years, the British Government is estopped as a matter of international law from denying the existence of Mauritian/Chagossian fishing rights. The contemporaneous documents evidencing the unilateral undertaking sounding in international law should be preferred to the third witness statements of Mr Roberts and Ms Yeadon.
In places the claimant’s submissions appear to slide between (a) the assertion that, as a matter of international law, Mauritius had fishing rights in BIOT waters which should have been mentioned in the consultation, and (b) the contention that such rights arguably existed and were the subject of dispute between Mauritius and the United Kingdom, and that this should have been mentioned in the consultation. It is important therefore to note the basis on which the claimant was granted permission to amend the grounds of claim so as to introduce the fishing rights issue. The judgment of the Divisional Court handed down on 21 November 2012, giving reasons for the permission to amend, recorded Mr Pleming’s response to the Secretary of State’s objections to the raising of matters of international law:
“15. Mr Pleming QC sought to meet those arguments by saying that the claimant does not contend in these proceedings that the traditional or historical fishing rights relied on are legally enforceable, so that the question whether there are enforceable rights under international law would not arise for decision. The point made by the claimant is simply that there is credible evidence that HMG gave an undertaking to the Government of Mauritius which has subsequently been evidenced by preferential treatment for Mauritius registered fishing vessels, and that this was an important part of the background yet was not put before consultees, who were in consequence misled.”
The defendant’s submissions on the fishing rights issue
Mr Kovat’s submissions on behalf of the Foreign Secretary were in summary these:
(1) The consultation document made no reference to Mauritian traditional and/or historic rights to fish in BIOT waters because the Foreign Secretary considered that Mauritius did not have any. The arrangements stemming from the 1965 understandings were political, not legal; and in any event by 2009 those arrangements had evolved into arrangements only that, if a fishing licence was issued, the licence fee would be waived. Mauritius had no greater right to undertake commercial fishing in BIOT waters than any other state.
(2) What was relevant to the consultation, and was identified in the consultation document, was the proposed option of ending commercial fishing.
(3) The claimant’s secondary case, that Mauritius did have special fishing rights, involves a proposition of law that is not justiciable in the Administrative Court for four overlapping reasons: (a) any such rights belong to Mauritius and can be claimed only by the Government of Mauritius; the claimant has no standing to assert or enforce such rights; (b) because judicial review is discretionary and for long-established reasons of comity, the Administrative Court should decline jurisdiction to determine whether Mauritius, a sovereign state, has such rights; (c) any such rights exist only on the plane of public international law and the Administrative Court has no jurisdiction to determine such a point or should decline to exercise any jurisdiction for reasons of comity and the conduct of international relations; and (d) Mauritius has instituted proceedings against the United Kingdom under UNCLOS in respect of the MPA and it is for the UNCLOS arbitral tribunal, not the Administrative Court, to determine the issue. Mr Kovats also referred to the complex issues that would arise under the principles of international law relating to unilateral declarations, state practice, acceptance and waiver.
(4) In any event the claimant’s secondary case entails that there should have been consultation on a point of law that the Foreign Secretary rejected and that Mauritius (the only person with standing to advance it) was not advancing, and that on the claimant’s own case would not have precluded the creation of a no-take MPA (since the relevant ground of challenge relates only to the consultation process and it is not contended that the MPA decision itself was incompatible with the rights of Mauritius under international law).
(5) The claimant’s primary case, that as a matter of fact there was a dispute between the United Kingdom and Mauritius about the existence of fishing rights and that the fact of this dispute should have been mentioned in the consultation document, presupposes that if consultees had been aware of such a dispute they might have suggested that this was a reason for not creating a no-take MPA, a supposition which is not supported by any evidence. More importantly, the claimant is wrong on the facts. There was no such dispute and accordingly there was no such fact to mention in the consultation document. The dispute related to sovereignty, as to which the position taken by Mauritius was indeed mentioned in the consultation document.
(6) Not only did Mauritius not raise fishing rights (as distinct from sovereignty); nor did Mr Alain Talbot (see  above); and although a number of international commercial fishing interests responded to the consultation document, none of them was Mauritian. The only person to mention Mauritian historical fishing rights in the responses to consultation was MRAG (whose pre-consultation advice is referred to at  above).
To the above summary may be added points drawn from the legal analysis in Mr Kovats’s skeleton argument: that if the court accepts that it should not make a determination as to the existence or otherwise of Mauritian fishing rights as a matter of international law, it is impossible for the claimant to establish that the Foreign Secretary misdirected himself in law in taking the view that Mauritius had no such rights; that it was a rational decision not to mention the issue (and in particular not to mention the September 1965 undertaking) in the consultation document; and that the omission of reference to it in the consultation document did not give rise to unfairness, a fortiori when account is taken of the fact that this was a web-based consultation and that the consultation document contained a link to the National Oceanography Centre workshop report which did contain a reference to “Mauritian historical fishing rights”.
Discussion of the fishing rights issue
The factual background to this issue and the rival submissions of the parties have a length and complexity that we do not intend to emulate in setting out our conclusions on the issue.
In so far as the claimant’s fishing rights case rests on the position of Chagossians as such (as opposed to their reliance on any rights enjoyed by Mauritius), we see no tenable basis for it. Any traditional fishing rights enjoyed by the inhabitants of the Chagos Archipelago were lost with the loss of the right of abode and their removal from the islands. There is nothing in the history since the last of the resident population left in 1973 to justify the view that Chagossians as such have continued to enjoy fishing rights in respect of BIOT waters or, therefore, that a no-take MPA would have an adverse effect on such rights. Certainly there is insufficient substance in this aspect of the matter to have called for specific reference to it in the consultation document in order to meet the requirements of a lawful consultation process.
The real focus must therefore be on the position of Mauritius, and that is how the claimant’s case was presented in practice by Mr Pleming.
The question whether, as a matter of international law, Mauritius enjoys fishing rights in BIOT waters is not one that we consider appropriate for determination in these proceedings. In our judgment, Mr Kovats’s submissions under the general heading of justiciability are compelling. We see real objections of principle to our purporting to determine the existence or non-existence of the international law rights of Mauritius in national proceedings to which Mauritius is not a party. If and to the extent that Mauritius wishes to assert such rights, it can do so in the context of the claim that it has brought against the United Kingdom under UNCLOS. That arbitration is the appropriate forum for the determination of such an issue. This court should, moreover, avoid any pronouncement that might compromise the position of the United Kingdom in those proceedings. Both parties made substantial reference in their written submission to authorities relevant to the question of justiciability, but those authorities were touched on only lightly in oral submissions. None of them is particularly close to the situation with which we are concerned in this case, but in our view R (Campaign for Nuclear Disarmament) v Prime Minister  EWHC 2777 (Admin), upon which Mr Kovats placed particular reliance, provides more pertinent guidance than does Republic of Ecuador v Occidental Exploration and Production Company  EWHC 774 (Comm) (affirmed by the Court of Appeal in  EWCA Civ 1116,  QB 432), by reference to which Mr Pleming sought to counter the CND case.
We do not consider it necessary to engage in fuller analysis of this aspect of the issue because we take the view in any event that it is not open to the claimant to invite the court to make a determination as to whether Mauritius does or does not have fishing rights in respect of BIOT waters as a matter of international law. Permission to introduce the fishing rights issue was granted on the basis that “the claimant does not contend in these proceedings that the traditional or historical fishing rights relied on are legally enforceable, so that the question whether there are enforceable rights under international law would not arise for decision” (see  above). In our judgment, the claimant should not be allowed to resile from that position. Had it not been adopted, permission to introduce the fishing rights ground might well have been refused in the first place.
The issue therefore comes down to whether there was a sufficient argument concerning the existence of Mauritian fishing rights in respect of BIOT waters as to require mention to be made of it in the consultation document if the consultation was to be lawful. In our judgment, the claimant’s case attaches a wholly disproportionate significance to that point. The number of Mauritian-flagged vessels licensed to fish in BIOT waters and affected by the no-take MPA had been extremely small for many years – none in the period 2005-2008, and just two in 2009. Save in the context of the separate dispute over sovereignty, Mauritius did not suggest that it had any special rights to fish in BIOT; nor was that suggestion made by the operators of the Mauritian-flagged vessels themselves. The earlier history, through which we were taken at such length, does not serve to give the issue a significance that it lacked in current practice.
Whatever the precise character of the obligation undertaken by the British Government in September 1965 (whether it was simply a political promise or a legal undertaking to make representations to the US Government or a legal undertaking to achieve a particular substantive result), the reality is that Mauritius at no time contended that the effect of the undertaking was to confer fishing rights on Mauritius as a matter of international law. Had such rights existed, the introduction of an exclusive 12 mile fisheries zone by the 1971 Ordinance would have been inconsistent with them, as would the extension to a 200 mile zone and the introduction of a full licensing regime by the 1991 Ordinance, even though fishing by Mauritian vessels was permitted to continue throughout and licences were issued to such vessels without charge: we reject the claimant’s characterisation of these events as being “in furtherance or practical manifestation” of the September 1965 undertaking. Yet Mauritius made no complaint that the measures were inconsistent with rights enjoyed by it pursuant to the undertaking.
The contemporaneous documents show that over the years some British officials believed that there was or might be a legal obligation to allow fishing by Mauritian vessels in BIOT waters, whereas others evidently looked at the question in essentially political terms. What is important, however, is that from Mauritius’s perspective the issue of fishing rights was viewed from an early stage in terms of sovereignty, not as one based on the September 1965 undertaking. In diplomatic exchanges between the two governments and in the stance adopted by Mauritius on the wider international plane it was presented consistently in the context of Mauritius’s claim to sovereignty over the Chagos Archipelago.
Mr Kovats is therefore correct in his submission that there was no dispute with Mauritius about fishing rights based on the September 1965 undertaking and there was nothing that needed to be mentioned on that score in the consultation document. The dispute with Mauritius concerned sovereignty, and that was expressly mentioned in the consultation document.
The absence of a relevant dispute with Mauritius is not strictly dispositive of the claimant’s contention that there existed an arguable case that Mauritius enjoyed fishing rights based on the September 1965 undertaking. As we have said, the belief that such rights existed or might exist certainly formed part of the thinking of some British officials in the past. Moreover, the issue of Mauritian historical fishing rights was still being mentioned in general terms in the run-up to the MPA consultation (see, for example, the references to it in MRAG’s July 2009 comments and in the National Oceanography Centre report on the August 2009 workshop, described above). But the issue was considered by Mr Roberts and Ms Yeadon, the officials responsible for the preparation of the consultation document, who took the view that Mauritius did not have fishing rights that would preclude a no-take MPA. The claimant cannot show that that view was wrong in law and has not persuaded us that it was an unreasonable view to take on the available evidence. The existence of arguments in favour of a contrary view was not a sufficient reason in the circumstances why the issue should have been mentioned explicitly in the consultation document.
Whether the omission of reference to the issue resulted in a flawed consultation must also be assessed in the context of what the consultation document did contain. The potential impact of an MPA on commercial fishing was squarely raised and must have been obvious to all concerned. The responses from fishing interests show that the impact was clearly understood. If anyone wished to raise an argument that a ban on fishing would be incompatible with Mauritian fishing rights, they were free to do. We do not place much weight on the link in the consultation document to the National Oceanography Centre report referring to Mauritian historical fishing rights, but the point was there for anyone who wished to advance or develop it. Against that background, the omission of express reference to the point in the consultation document itself is in our view a matter of no significance. It did not affect the fairness of the consultation or the validity of the MPA decision taken following that consultation.
We add in passing that in so far as complaint is made about the statement in the consultation document that the creation of an MPA “would have no direct immediate impact on the Chagossian community”, it was open to consultees to draw attention to the fact that Chagossian fishermen on commercial fishing vessels would be affected by the ban on fishing in the MPA, and to the consequences of that for them and their families, whether or not that could be said to amount to a “direct immediate impact”. The way the matter was expressed in the consultation document did not give rise to a legal flaw in the consultation process.
For those reasons we have reached the clear conclusion that the claimant’s case on the fishing rights issue should fail.
GROUND 5: THE EU LAW ISSUE
The claimant’s case on breach of EU law falls into a separate compartment from the other issues. It was the subject of submissions at the hearing by Ms Maya Lester on behalf of the claimant and by Mr Kieron Beal QC on behalf of the Foreign Secretary. The case in essence is that the decision to create the MPA was in breach of the United Kingdom’s obligations under Article 4(3) of the Treaty on European Union (“the TEU”) and Article 198 of the Treaty on the Functioning of the European Union (“the TFEU”) not to jeopardise the objectives of association of BIOT with the European Union.
The legislative framework
Article 4(3) of the TEU provides:
“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.”
Part IV of the TFEU concerns association of overseas countries and territories. The core provision is Article 198:
“The Member States agree to associate with the Union the non-European countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom. These countries and territories (hereinafter called ‘the countries and territories’) are listed in Annex II.
The purpose of association shall be to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union as a whole.
In accordance with the principles set out in the preamble to the Treaty, association shall serve primarily to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire.”
BIOT is one of the overseas countries and territories listed in Annex II.
Article 199 provides that association shall have various objectives, which in summary are the application of equal treatment to trade between Member States and the countries and territories; the making of contributions by the Member States to the investments required for the progressive development of the countries and territories; and the regulation of rights of establishment. Article 200 prohibits customs duties on imports between the Member States and the countries and territories, and Article 201 relates to the remedying of any deflections of trade caused by the level of duties applicable to goods from third countries. Article 202 concerns freedom of movement of workers.
Article 203 provides:
“The Council, acting unanimously on a proposal from the Commission, shall, on the basis of the experience acquired under the association of the countries and territories with the Union and of the principles set out in the Treaties, lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the Union ….”
Those detailed rules and procedures are set out in Council Decision of 27 November 2001 on the association of the overseas countries and territories with the European Community (“the Overseas Association Decision”), which featured in the parties’ written submissions but had only a background place in the case as presented at the hearing.
The claimant’s case
The evidence on which the claimant’s case on this issue is built includes witness statements from two Chagossian fishermen, Mr Joseph Volly and Mr Sylvestre Sakir, who were born on the Peros Banhos atoll and left with their families between 1968 and 1973.
Mr Volly explains that his father was an experienced fisherman from whom he learned relevant skills and knowledge of the waters of the Chagos Archipelago. He describes the fishing methods of the Chagossians and states that between 1981 and the end of 2009 he would whenever possible make an annual winter fishing trip which lasted approximately two months, fishing in the Great Chagos Bank, treacherous waters where only Chagossian fishermen really understand where the fish are to be found. He earned enough in those trips to support his family. Since fishing in BIOT has been banned he has experienced financial difficulties: he has not been able to earn nearly as much by fishing elsewhere. He states therefore that the MPA has had a direct immediate impact on the Chagossian community. He knows of at least 20 Chagossian fishermen who were able to sustain themselves and their families by making fishing trips to the Chago Islands before the ban took effect and who since then have experienced financial difficulties. At the end of his witness statement he also makes this point: “Fishing in Chagos is an important part of our culture, and has been, over the years of our exile, the only way that any of our members have been able to sustain a real link to our homeland”.
Mr Sakir gives a similar account of his own life as a professional fisherman working on licensed fishing boats operating in the waters of the Chagos Archipelago. He too states that his standard of living has dropped considerably since the MPA took effect. He says that 40 to 50 Chagossians have been employed in this way for the past decade. Although not allowed to set foot on the islands, “we are nonetheless at home in the waters of the Archipelago, and feel that we are entitled to the benefits of this rich fishing ground since it is, after all, the place of our birth and our ancestral home. Our traditional fishing rights have been continuously exercised by this means since our exile 40 years ago, and we regard it as an extremely valuable link”.
Fishing plays an important part in proposals for resettlement of the Chagos Islands. A document entitled Returning Home, published in March 2008 by the Chagos Refugees Group and UK Chagos Support Association, stated that the capacity to earn money to pay for basic goods and services was essential to the success of resettlement and that tourism and fisheries were the critical components of such an income generation strategy. Reference was made to two forms of legitimate commercial fishing in the Chagos Islands (this, of course, predated the MPA): ocean (or deep sea) fishing and inshore (or bank) fishing. The operators of deep sea fishery vessels, from countries such as Spain, France, Japan and Taiwan, had no requirement for land-based facilities in the region and their only significance for Chagos resettlement was the revenue accruing from licences, but when account was taken of the costs of management of the industry the net benefit to financing resettlement was likely to be very small. Inshore fishing had an unrealised production potential and the potential for a significantly larger number of fishermen being engaged than at present: given access to boats and markets, there could be up to 50 fishermen operating from Peros Banhos and deriving significant incomes throughout the year.
Notwithstanding that Returning Home attached little significance to deep sea fishing for the purposes of Chagos resettlement, Ms Lester drew our attention to evidence relating to fishing in BIOT waters by vessels of EU Member States and to representations by Spanish and French fishing interests, in particular, against the creation of an MPA.
Against the background of those strands in the evidence, she submitted that the decision to create an MPA does the opposite of what Article 198 requires. Far from promoting the economic and social development of BIOT, the prohibition of all fishing in BIOT stifles such development completely; it snuffs out the one consistent thread of economic activity the Chagossians have been allowed to pursue, and the one continuous link they have had with their homeland. Far from establishing close economic relations between BIOT and the European Union, it eliminates economic relations between them. It runs counter to furthering the interests and prosperity of the inhabitants in order to lead them to the economic, social and cultural development to which they aspire. It renders Article 198 and its related provisions ineffective; it deprives them of their effet utile. In short, rather than pursuing the objectives of association of BIOT with the Union, it dissociates BIOT from the Union. This, she submitted, was in clear breach of the United Kingdom’s Treaty obligations.
The European Commission’s rejection of the Chagossians’ complaint
By letter dated 21 January 2009 the claimant’s solicitor, Mr Gifford of Clifford Chance, acting “on behalf of the displaced Chagossian population”, lodged a formal complaint with the European Commission alleging that the United Kingdom’s treatment of the Chagossians was in breach of Article 182 of the EC Treaty (the predecessor of Article 198 TFEU) and of the Overseas Association Decision, and requesting the Commission to take infringement proceedings against the United Kingdom.
Following internal exchanges between the relevant Directorate-General (which for much of the relevant period was the Directorate-General for Development and Co-operation and is conveniently referred to in short as “DG Devco”) and the Commission’s Legal Service, the complaint was rejected by a letter from a Commissioner dated 9 July 2009. The relevant part of that letter included these reasons:
“… Articles 182 and 183 of the EC Treaty [i.e. articles 198 and 199 TFEU] do not impose a series of absolute and unconditional obligations upon the Community. In the same vein, the overseas association decision does not entail an obligation for the Community to undertake specific actions in every area of cooperation mentioned in that decision with a view to each OCT’s economic and social development.
… Moreover, the association of the OCTs with the Community does not give rise to a positive obligation for the Member States to which the OCTs are linked to actively promote, at their level, the economic and social development of their own territories. For example, the fact that several OCTs no longer receive individual financial assistance from the related Member State does not constitute a violation of Article 182 of the EC Treaty.
On the other hand, the Member States must abstain from any measure which could jeopardise the attainment of the objectives of the Treaty. However, the relevant Commission services are of the opinion that the UK’s Orders in Council stating that no person has the right of abode in BIOT does not constitute such a measure, bearing in mind that the archipelago has not had a permanent indigenous population since the accession of the UK to the European Community.”
By letter dated 1 June 2010 to the President of the Commission, Mr Gifford renewed the complaint. One of the points he made was that “the deportation of the population was not accomplished until 26 May 1973 so that at the date when the UK acceded to the European Union, there remained a population living in the Chagos Archipelago … which is to be considered fully indigenous”. In addition to elaborating the arguments previously advanced, the letter drew attention to fresh matters arising since his letter of 21 January 2009, including the creation of the “no-take” MPA:
“The effect of this is permanently to frustrate the primary economic resource of BIOT namely its fisheries potential, which even its own consultants have identified as the most available resource for the economic development of the archipelago. If unchallenged, this decision would provide a permanent obstacle of the realisation of Community objectives in regard to this OCT of the EU.”
A follow-up letter dated 14 January 2011 advised the Commission of further developments, including the purported US Embassy “cable” that we have discussed at length in the section above on the issue of improper motive.
There were then further exchanges between DG Devco and the Commission’s Legal Service. DG Devco prepared a draft reply based on the reply of 9 July 2009, noting that as a matter of fact the new arguments introduced by Mr Gifford did not change the legal analysis developed by the Legal Service in 2009, but at the same time drawing attention to an analysis to contrary effect developed by the services of DG Devco which included the following:
“It is agreed that no positive obligation is created by Part IV TFEU on the Member States concerned to actively promote the objectives of the OCRs-EU association …
However, my services are of the opinion that article 198 TFEU should be construed in conjunction with Article 4(3) TEU. Article 4(3) TEU provides for the principle of sincere cooperation: ‘Member States should refrain from any measure which could jeopardise the attainment of the Union’s objectives’. It is my services’ view that the interventions and measures taken by the UK do not contribute to and jeopardise the attainment of the objectives set in Article 198, in particular:
The removal for an indefinite amount of time of all population from the Chagos Islands annihilates the perspectives for any economic, social and cultural development of the Chagos population …
The creation of a Marine Protected Area also annihilates the perspectives of attaining the objectives set in Article 198 to the extent that it excludes and forbids the return of a human population on the Chagos archipelago, including obviously the Chagos population.
These interventions make it now impossible for Articles 198 and 199 TFEU to produce any effect, as far as Chagos Islands are concerned. Although the forcible displacement of Chagossians took place decades ago, the British government is still actively hindering their return, notably by opposing their demands (also in national and international courts) and by creating a Protected Marine Area, which is likely to limit the possibility for Chagossians to return home.
In sum, it may be argued that, by forcibly displacing Chagossians, the UK jeopardised the effet utile of Part IV TFEU, and in particular of Articles 198 and 199 TFEU: Member States agreed to associate the BIOT to the EU (and to the EEC before it) in order to promote their economic and social development and to lead them to the social and cultural development they aspire to. This objective obviously cannot be pursued if those islands have been deprived of their inhabitants. In sum, it might be considered, contrary to the conclusion of the draft letter, that the UK has violated its obligation of sincere cooperation (ex Article 4(3)) by depriving Part IV TFEU of effet utile” (original italics).
DG Devco’s contrary analysis did not commend itself to the Legal Service, which shared the view that Articles 198 and 199 TFEU do not impose a series of absolute and unconditional obligations on the Community and could not as such be a sufficient legal basis for launching an infringement procedure against the United Kingdom, but gave the following reason for rejecting the argument under Article 4(3) TEU:
“According to your note, it may be argued that, by clearing the Chagos Islands of their population, the UK has made it impossible for Articles 198 and 199 TFEU to produce any effect. This would be, according to your analysis, contrary to Article 4(3) TEU.
However, the UK measure at stake was taken prior to UK’s accession to the EU. According to the documentation submitted by the complainant, compulsory removal of the population of the Chagos Islands was effected under the Immigration Ordinance 1971. As a consequence, the measure would not be covered by Article 4(3).
As highlighted by the complainant, the execution of the removal decision was completed only after accession. However, the remaining inhabitants, even if EU citizens, could not claim a right to return on the basis of Article 20 TFEU and Article 45 of the Charter of Fundamental Rights. These provisions do not cover movement of persons between the Member States and the OCTs.”
That reasoning is criticised on behalf of the claimant as failing to take proper account of the fact that the last of the resident population was removed from the Chagos Islands in May 1973, after the United Kingdom’s accession to the European Community; and for failing in any event to address the effect of the MPA. It is submitted that Article 4(3) TEU and Article 198 TFEU impose a continuing duty and that the MPA decision breached the obligations they impose by jeopardising the potential for economic development, a potential which still existed at the time of the decision.
The Legal Service’s view, however, prevailed within the Commission. DG Devco sent Mr Gifford a formal reply dated 7 July 2011 confirming the 2009 analysis and supplementing it with various points, including:
“The competent Commission services have come to the conclusion that neither the outcome of the feasibility study on the resettlement of the Chagossians in their islands nor the creation of a Marine Protected Area can have a bearing on our previous assessment.
You drew my attention on the fact that the Chagos Islands were still inhabited when the UK joined the European Communities on 1 January 1973, as the exile procedure was not accomplished until 26 May 1973. The competent Commission services would wish to clarify that, in any event, the expulsion was decided and entered into effect before the accession of the UK to the European Union. The expulsion at the beginning of the year 1973 of the remaining population in Peros Banhos and the Salomon Islands constituted the end of execution of a decision taken before the accession of the UK to the EU.”
A letter dated 3 January 2012 informed Mr Gifford of DG Devco’s intention formally to propose that the Commission terminate the case, subject to any new information that might prove an infringement. That led to detailed further representations, by letters from Mr Gifford dated 23 and 31 January 2012. Following yet further internal exchanges with the Legal Service, DG Devco responded to Mr Gifford on 28 June 2012, giving brief reasons why the further representations had not caused them to modify their assessment.
By letter dated 15 February 2013, DG Devco informed Mr Gifford that the Commission had decided on 24 January 2013 “not to follow-up and close the file, as no infringement of EU law could be established”. At the date of the hearing before us the time for challenging the decision by an application for annulment pursuant to Article 263 TFEU was about to expire. Ms Lester made clear that no appeal would be lodged. She said that it was open to doubt whether the claimant had standing to bring such a challenge and that even if the decision were challenged successfully and the Commission were required to bring infringement proceedings against the United Kingdom there would be an unacceptable delay before the process could be completed.
The defendant’s submissions
It is convenient to turn at this point to Mr Beal’s submissions on behalf of the Foreign Secretary, which placed heavy reliance on the Commission’s decision.
First, he submitted that it is not open to a national court to reach a decision that would conflict with the Commission decision; and since the creation of the MPA was within the scope of the Commission procedure and was found by the Commission to be compatible with EU law, it is not open to this court to make a contrary finding.
Mr Beal founded that submission on Case C-344/98, Masterfoods Ltd v HB Ice Cream Ltd  ECR I-11369, a case concerning parallel proceedings in the Irish courts and before the Commission in respect of agreements alleged to be in breach of the competition rules contained at that time in Articles 85 and 86 of the EC Treaty. The Commission adopted a decision that the agreements were in breach, but an application was then made to the Court of First Instance for annulment of the Commission’s decision. In the meantime the High Court had found the agreements to be compatible with Articles 85 and 86. On an appeal against the High Court’s judgment, the Supreme Court made a reference to the Court of Justice for a preliminary ruling, asking questions about the effect of the Commission’s decision and the application to the Court of First Instance on the national proceedings. The Court of Justice referred to the Commission’s particular role under the Treaty in relation to application of the Community competition rules, including its exclusive competence to adopt decisions in implementation of Article 85(3) and its shared competence with national courts to apply Articles 85(1) and 86. The court also referred to the duty of Member States under Article 5 of the EC Treaty (now Article 4(3) TFEU, quoted above). The judgment continued:
“50. Under the fourth paragraph of Article 189 of the Treaty, a decision adopted by the Commission implementing Articles 85(1), 85(3) or 86 of the Treaty is to be binding in its entirety upon those to whom it is addressed.
51. The Court has held … that in order not to breach the general principle of legal certainty, national courts must, when ruling on agreements or practices which may subsequently be the subject of a decision by the Commission, avoid giving decisions which would conflict with a decision contemplated by the Commission in the implementation of Articles 85(1) and 86 and Article 85(3) of the Treaty.
52. It is even more important that when national courts rule on agreements or practices which are already the subject of a Commission decision they cannot take decisions running counter to that of the Commission, even if the latter’s decision conflicts with a decision given by a national court of first instance.”
The court then referred to the possibility of a reference for a preliminary ruling if a national court has doubts as to the validity or interpretation of an act of a Community institution, and said that when the outcome of the dispute before the national court depends on the validity of a Commission decision the national court should, in order to avoid reaching a decision that runs counter to that of the Commission, stay its proceedings pending final judgment in an action for annulment by the Community courts, unless it considers that a reference to the Court of Justice for a preliminary ruling on the validity of the Commission decision is warranted.
The approach in Masterfoods was followed in Case C-375/07, Staatssecretaris van Financien v Heuschen & Schrouff Oriental Foods Trading BV  ECR I-8691, a case involving post-clearance recovery of import duties. As part of its reasoning, the court referred to the Commission’s specific power of decision in this field and noted that “where an application for remission of import duties has been submitted to the Commission by a Member State for the purposes of Article 239 of the Customs Code and the Commission has already adopted a decision containing assessments of fact and law in a particular case concerning import operations, such assessments bind all the authorities of the Member State to which it was addressed” (paragraph 64).
Mr Beal submitted that this court is required in the present context to follow the approach in those cases. The court can entertain the issues raised but must avoid any finding that would run counter to the Commission’s decision that the creation of the MPA is in accordance with EU law. If otherwise minded to take a different view from that of the Commission, the court should make a reference for a preliminary ruling as to the validity of the Commission’s decision.
A second and related line of argument by Mr Beal was based on the judgment of the Court of Justice in Case C-188/92, TWD Textilwerke Deggendorf GmbH v Federal Republic of Germany  ECR I-846. In that case the Commission had made a decision, addressed to the Federal Republic of Germany, that aid granted to a producer was in contravention of the state aid rules of the Treaty. The producer brought proceedings in the national court to challenge the measures taken by the German authorities to give effect to the Commission’s decision. On a reference for a preliminary ruling, the Court of Justice held that the producer had had the right to bring an action for annulment of the Commission’s decision, and that it was not possible to question the lawfulness of the decision before the national courts in an action brought against the measures taken by the national authorities for implementing the decision: it would otherwise “enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time-limit for bringing an action has expired” (paragraph 18).
In the present case, submitted Mr Beal, it was open to the claimant to bring an action for annulment of the Commission decision; once the time-limit for bringing such an action had expired the decision became definitive as against the claimant; and it is not then open to the claimant to challenge the validity of the decision by the back-door route of proceedings in the national court.
The third procedural argument advanced by Mr Beal is that Article 4(3) TEU and Article 198 TFEU do not create directly effective rights on which the claimant can rely. It is submitted that Article 198 TFEU does not impose a sufficiently clear, precise and unconditional obligation on Member States not to act in a particular way. It anticipates that further legislative measures will be taken in order to give effect to the overall objectives, as confirmed by the wording of Article 203 and the adoption of the Overseas Association Deicision pursuant to that article. Article 4(3) TEU can be relied on in conjunction with other, directly effective provisions of EU law but does not of itself give rise to free-standing direct effect: the content of the obligation of cooperation depends on the underlying EU obligation to which it relates. It is further submitted that the claimant has not asserted and cannot assert any individual rights under the articles relied on. He has not himself been affected by the decision to impose an MPA, and it is not open to him to rely on the rights of others, such as the owners of Spanish-registered vessels fishing in BIOT waters. Nor does a purely hypothetical prospect of exercising a right establish a sufficient connection with EU law to justify the application of EU provisions (Case C-299/95, Kremzow v Austrian State  ECR I-2637 at paragraphs 16-18).
Passing from those procedural arguments, Mr Beal submitted that in any event the MPA decision did not give rise to any substantive infringement of Article 198 or related provisions. Its only practical impact was in relation to commercial fishing, but there is no evidence that any fish caught in BIOT waters were landed in BIOT or were the subject of trade between BIOT and Member States or third countries; individuals with fishing licences were able to use them until their expiry, and none of the former licensees has challenged the refusal to issue new licences following the creation of the MPA. The MPA had no conceivable impact on the economic or social development of BIOT as an overseas country or territory and did not interfere adversely with the rights of any “inhabitants” of BIOT to pursue economic, social or cultural development. It did not have the effect of dissociating BIOT from the Union or of rendering the association provisions ineffective.
Discussion of the EU law issue
We are not persuaded by Mr Beal’s arguments as to the effect of the Commission’s decision on the proceedings before us. The judgments in Masterfoods, Heuschen & Schrouff and TWD were directed towards areas such as competition, state aids and import duties where the Commission is entrusted with specific functions in relation to the making of binding decisions on the application of EU law to particular factual situations. Decisions whether or not to bring infringement proceedings against a Member State are of a different character. Article 258 TFEU provides:
“If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.”
Thus, even a reasoned opinion by the Commission does not amount to a binding decision that the Member State is in breach of its Treaty obligations; the Commission has to bring proceedings before the Court of Justice for the purpose of establishing an infringement. A fortiori, a decision to close the file on a complaint rather than to bring infringement proceedings does not amount to a binding decision that the Member State concerned is complying with EU law in relation to the matters that were the subject of complaint.
Further, the present proceedings cannot in any sense be regarded as a collateral challenge to the validity of the Commission’s decision to close the file. The claimant is not asking the national court to re-open the file or to bring infringement proceedings against the United Kingdom. Nor is he seeking, as in TWD, to challenge national measures implementing the Commission’s decision. What is in issue before this court is the validity of the Foreign Secretary’s decision to create the MPA, not the validity of the Commission’s decision.
We are therefore satisfied not only that it is open to the claimant to raise the EU law issue in the present proceedings (a point which was in any event effectively determined in the claimant’s favour by the decision of the Divisional Court granting leave to amend so as to add the EU law issue), but also that the court is not constrained by the Commission’s reasoning or decision when reaching a conclusion on the issue. But even if we were precluded by the Masterfoods approach from making a finding that ran counter to the Commission’s decision, it would not give rise to any practical difficulty in this case since, for the reasons given below, we have reached the same substantive conclusion as the Commission that the MPA decision is compatible with EU law.
Nor are we persuaded that Mr Beal’s arguments as to direct effect provide a sufficient answer to the claimant’s case. The case is advanced on the basis that the MPA decision renders Article 198 and its related provisions ineffective, along the lines of the analysis put forward by DG Devco in its exchanges with the Commission’s Legal Service (see  above). For that purpose, as it seems to us, the obligation in Article 4(3) TEU to refrain from any measure which could jeopardise the attainment of the Union’s objectives is sufficiently clear, precise and unconditional to be capable of giving rise to directly effective rights on which individuals can rely. We accept that the claimant cannot rely on the rights of others, but we do not think that his case involves him doing that. He is not seeking to rely, for example, on the rights of the owners of Spanish-flagged vessels fishing in BIOT waters (the example given by Mr Beal), but on the rights of the displaced Chagossian population and their descendants; and to the extent that any Chagossian is able to rely for this purpose on the direct effect of the relevant Treaty provisions, the claimant is in our view able to do so.
When it comes to the question whether there is a substantive infringement of the relevant Treaty provisions, however, Mr Beal’s submissions are in our view well founded. In making the substantive assessment it is important to keep in mind that we are concerned in this case only with the lawfulness of the MPA decision, not with the removal of the indigenous population from the Chagos Islands in the first place or with the British Government’s “no resettlement” policy or the 2004 Orders on which the policy is based. The issue facing us is therefore very much narrower than that addressed by the Commission when reaching its decision on the Chagossians’ complaint. For example, in its reasons for rejecting the complaint the Commission attached weight to its view that the removal of the population was the result of a decision taken before the accession of the United Kingdom to the European Community; but that aspect of its decision, heavily criticised by the claimant, need not concern us. We must proceed, moreover, on the basis that the 2004 Orders and the policy to which they give effect are lawful: the Orders themselves were upheld by the House of Lords in 2008, the Commission has declined to intervene, and neither the 2004 Orders nor the policy are or can be challenged in the present proceedings.
As we have explained in the section of our judgment on the issue of improper motive, the decision to create the MPA was taken against the background of the “no resettlement” policy but was a discrete issue and did nothing to prevent or restrict a change in the policy or to prevent the return of the Chagossians in the event that the policy was changed. It was made clear in the consultation document that any decision to create an MPA was without prejudice to the outcome of the proceedings then pending before the Strasbourg Court; so that if those proceedings were to result in the United Kingdom having to resettle the Chagossians on the islands, the creation of an MPA would not prevent that being done. The MPA was not “entrenched”. That it can be reversed or modified as necessary to accommodate any future change in the “no resettlement” policy is underlined by the fact that it has been implemented to date simply by exercising existing powers to withhold further fishing licences. In relation to the MPA we therefore disagree with the passage in the analysis put forward by DG Devco for consideration by the Commission’s Legal Service which stated that the creation of an MPA “annihilates the perspectives of attaining the objectives set in Article 198 to the extent that it excludes and forbids the return of a human population on the Chagos Islands …”. The creation of the MPA had no such exclusionary or prohibitive effect.
All that the MPA does, for so long as it remains in force, is to prohibit fishing in BIOT waters. In terms of Article 198 TFEU, that has no appreciable adverse effect on “the economic and social development” of the Chagos Islands, or on “economic relations” between the islands and the Union, or on “the economic, social and cultural development to which [the inhabitants] aspire” (even leaving aside the fact that the islands have no resident population, and assuming that the former population and their descendants can properly be regard as “inhabitants” for this purpose). Deep sea fishing in BIOT waters has had no trading connection with the Chagos Islands, and for reasons given in Returning Home (see  above), even if licence income could be directed towards the financing of any resettlement the net effect would be likely to be very small. The only fisheries link with the islands lies in the fact that a small number of vessels flagged to Mauritius, Comoros or Madagascar and licensed to engage in inshore fishing – no more than 4 such licences were granted annually in the decade prior to the introduction of the MPA – employed Chagossian fishermen resident on Mauritius, namely Mr Volly and Mr Sakir and the 20 to 50 others whom they mention in their witness statements (see - above). According to their evidence, the prohibition on fishing around the Chagos Archipelago has had a serious adverse effect on their incomes and has cut an important link with their ancestral home. No doubt it will also result over time in the diminution of their particular expertise in relation to fishing in those waters. That is clearly of some relevance to the potential effectiveness of a resettlement strategy based on fishing and tourism, as set out in Returning Home and on which Ms Lester placed emphasis in her submissions.
Taking all those matters into account, however, we consider that the decision to create the MPA falls far short of a decision that deprives Article 198 TFEU and related provisions of their effet utile; it does not jeopardise the attainment of the objectives of those provisions; let alone does it amount to the dissociation of BIOT from the Union. In short, we have reached the same conclusion as the Commission that the MPA is compatible with EU law, but we have done so after adopting a narrower focus than the Commission was required to adopt and by concentrating attention on the specific character and effects of the MPA as we know them to be in the light of the evidence before this court.
For the reasons we have given, the claim is dismissed.