Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4)
 UKSC 35;  WLR (D) 344
2016 June 29
Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Mance, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebon JJSC
Supreme Court — Jurisdiction — Application to set aside decision of House of Lords — Judicial review challenging irrationality of ministerial determination not to resettle colonial territory — State party failing to disclose certain relevant documents — Jurisdiction of Supreme Court to set aside decisions of House of Lords — Whether failure impugning House of Lords’ decision — Whether decision to be set aside
In 1966 the United Kingdom agreed to make the islands of the Chagos archipelago, the British Indian Ocean Territory (“BIOT”), available to the United States for defence purposes. In 1971 the United States took over Diego Garcia, the largest island as a military base and the Commissioner for BIOT made an Immigration Ordinance whereby the indigenous inhabitants were compulsorily removed and prohibited from returning to the islands. In 2000 the applicant, a citizen of BIOT who had been born there and was prevented from returning, obtained an order in the Divisional Court quashing the 1971 Ordinance. The Foreign Secretary accepted the court’s decision and announced that a recently commissioned feasibility study into the prospects of resettling the islanders would proceed to a second stage of assessment. In 2002 a report of the study was published which concluded that while resettlement was feasible in the short-term, the long-term cost was likely to be prohibitive and that, even in the short-term, natural events, including storms and seismic activity, were likely to make life difficult for a resettled population. In 2004 the Foreign Secretary decided not to proceed with resettlement and immigration controls were reintroduced by section 9 of the BIOT Constitution Order and the BIOT Immigration Order which prohibited entry, presence or residence in the islands. In judicial review proceedings to quash section 9 of the Constitution Order the applicant was successful in the Divisional Court and the Court of Appeal, but, in 2008, the House of Lords, by a majority, allowed the Foreign Secretary’s appeal: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  AC 453. During the proceedings there was no challenge the feasibility report, and its findings were relied on by the Foreign Secretary and accepted by the applicant. The majority concluded that the Foreign Secretary’s decision not to permit return, was not, in all the circumstances, irrational or unfair. In separate subsequent litigation the Foreign Secretary disclosed certain relevant documents (the “Rashid documents”) relating to the preparation and finalisation of the feasibility report on which he had relied in the earlier proceedings. The applicant sought to set aside the House of Lords’ decision on the grounds that (i) the Rashid documents cast doubt on the reliability of the feasibility report and should, pursuant to the Foreign Secretary’s duty of candour in public law proceedings, have been disclosed in the earlier proceedings, and (ii) fresh evidence was now available which invalidated the basis on which the House of Lords had proceeded and provided independent justification for setting aside their majority decision. In particular the applicant asserted that the Rashid documents showed that alterations made by government officials to the draft report undermined the objectivity and independence of the final report and that, had the Rashid documents been disclosed in the earlier proceedings, the reliability of the feasibility report could have been successfully challenged. In 2014–2015, following the departure of the United States from Diego Garcia, a new feasibility study was commissioned which recognised the possibility of resettlement of BIOT.
On the application to set aside the House of Lords’ decision —
Held, (1) (per Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Mance and Lord Kerr of Tonaghmore JJSC), that, although the Supreme Court would not reopen any appeal because it thought the decision originally reached was wrong, it had inherent jurisdiction to correct any injustice caused by an earlier judgment reached by it or its predecessor, the House of Lords, where, through no fault of a party, he or she had been subjected to an unfair procedure, where significant injustice had probably occurred and where there was no alternative effective remedy; that the jurisdiction to set aside was also available where fresh evidence was discovered after a judgment had been given which was not susceptible of appeal; and also where, as in the present case, a party had failed to disclose material which might constitute important evidence and might well have had a decisive effect on the outcome; and that, having regard to the duty of candour lying on a state party in public law proceedings, the Foreign Secretary should have located and disclosed the Rashid documents and failure to do so, though unintentional and not in bad faith, was reprehensible (post, paras 3, 5–8, 151–152, 154–159,160, 161, 183–186, 190–192).
R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2)  1 AC 119, HL(E); Taylor v Lawrence  QB 528, CA and In re Uddin (A Child)  1 WLR 2398, CA applied.
But (2), refusing the application (Baroness Hale of Richmond DPSC, and Lord Kerr of Tonaghmore JSC dissenting), that on detailed examination of the 2008 decision and the Rashid documents, and, having regard to the general conclusions and the assessment of the vulnerability involved in resettlement which were expressed in the draft report and remained unaltered in the final report, there was no possibility, likelihood or prospect, nor might it well be, that a court would or could have seen in the process of finalising the report or in the associated materials now adduced, anything which made it irrational or otherwise unjustifiable for the Foreign Secretary to have acted as he did in 2004 ; that there was nothing in the fresh evidence and materials to indicate that there was any basis for setting aside the House of Lords’ decision; that the new circumstances created by the 2014–2015 feasibility study would provide a fresh opportunity for the executive to consider the question of resettlement and for any islander to challenge the 2004 Orders in the light of all the information now available; and that, accordingly, the House of Lords’ decision would not be set aside (post, paras 64 –76, 77– 80).
Edward Fitzgerald QC, Paul Harris SC and Amal Clooney (instructed by Clifford Chance LLP) for the applicant.
Steven Kovats QC, Kieron Beal QC and Julian Blake (instructed by Treasury Solicitor) for the Foreign Secretary.
Reported by: Diana Procter, Barrister
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