La nouvelle tant attendue est tombée en début d’après midi. La Cour Suprême de Londres a rejeté l'appel d'olivier Bancoult du Groupe refugies Chagos. La Cour Suprême l'a rejeté par une majorité de 3 contre 2 tout comme le jugement de 2008 interdisant le relogement des Chagossiens dans l'archipel. Les juges posent la question si la présentation des documents plus connu comme Rashid documents pourraient remettre en question les procédures du précédent jugement de 2008. Et si cette remise en question auraient pu changer le jugement de 2008 précisément. Ce qui n'est pas réellement le cas notent la majorité des juges. Cependant Lord Kerr et Lady Hale seraient d'avis eux qu'il faudrait casser le jugement de 2008. Ces 2 juges estiment effectivement que ces Rashid documents auraient bien pu faire changer le jugement de 2008.
A Lire le jugement complet de la Cour Suprême Britannique.
Trinity Term
[2016] UKSC 35
On appeal from:
[2008] UKHL 61
JUDGMENT
R (on the application of Bancoult
(
No 2)
)
(Appellant)
v
Secretary of State for Foreign and
Commonwealth
Affairs (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Kerr
Lord Clarke
JUDGMENT GIVEN ON 29 June 2016
Heard on
22 June 2015
Appellant
Respondent
Edward Fitzgerald QC
Steven Kovats QC
Paul Harris SC
Kieron Beal QC
Amal Clooney
Julian Blake
(Instructed by Clifford Chance LLP)
(Instructed by The Government Legal Department)
Page
2
LORD
MANCE
: (
with whom Lord Neuberger
and Lord Clarke agree
)
Introduction
1.
In 2008 Lord Bingham of Cornhill and I were the dissenting minority when
the majority in
R (Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (No 2)
[2008] UKHL 61, [2009]
AC 453 (“
Bancoult No 2
”) allowed the
Secretary of Sta
te’s appeal and upheld the validity of section 9 of the British Indian
Ocean Territory (Constitution) Order 2004 (“the 2004 Constitution Order”). Section
9 provides that, since the British Indian Ocean Territory (“BIOT”) was set aside for
defence purposes,
no person shall have any right of abode there (section 9(1)) and
further that no person shall be entitled to enter or be present there except as
authorised by the
Order itself or any other law.
2.
I have not changed my opinion as to what would have been the
appropriate
outcome of the appeal to the House of Lords. But that is not the issue before us. The
issue before us is whether the majority decision should be set aside, not on the
grounds that it was wrong in law, but on grounds that the Secretary of State
failed,
in breach of his duty of candour in public law proceedings, to disclose relevant
documents containing information which it is said would have been likely to have
affected the factual basis on which the House proceeded. That was that the Secretary
o
f State, when enacting section 9, could justifiably rely on the stage 2B report
prepared by Posford Haskoning Ltd (“Posford”) for its conclusion that any long
-
term resettlement on the outlying Chagos Islands was infeasible, other than at
prohibitive cost.
In addressing the issue now before us, we are bound by the legal
reasoning which led
the majority to its conclusion
-
indeed, strictly bound without
possibility of recourse to the
Practice Statement
(Judicial Precedent)
[1966] 1 WLR
1234, since this is an
application in the same proceedings.
3.
The relevant documents are conveniently described as “the Rashid
documents”, after Ms Rashid, the deponent from
t
he Treasury Solicitor’s
Department wh
o by witness statement dated 1
May 2012 first produced them. She
did
this without commentary in Administrative Court proceedings in
Bancoult
(
No
3
)
, regarding the declaration of a Maritime Protected Zone (“MPA”) in the high seas
around BIOT. Ms Rashid made clear that she had no personal knowledge of events
leading to the ea
rlier failure to disclose. That the failure to disclose the Rashid
documents in the
Bancoult No 2
proceedings was culpable is not, and could not be,
disputed. On the other hand, it is accepted that it was not intentional and did not
involve any bad faith.
I shall address the circumstances, the contents of the
documents and th
eir significance in due course.
Page
3
4.
In addition to relying on the alleged breach of candour, Mr Bancoult also
seeks to adduce four heads of new material, put forward as constituting evidenc
e
unavailable at the time of the House of Lords decision. All are said to go to the
reliability of the stage 2B report, to undermine or invalidate the basis on which the
House proceeded and to constitute an independent justification for re
-
opening
the
deci
sion. I will revert to this ground of application later in this judgment, and focus
in the meanwhile on the alleged breach of candour.
The jurisdiction to set aside in cases of unfair procedure and fresh evidence
5.
Unfair procedure:
There is no doubt that the Supreme Court has inherent
jurisdiction to correct any injustice caused by an earlier judgment of itself or its
predecessor, the House of Lords,
though it
is
also clear
that it “will not re
-
open any
appeal save in circumstances where, through no fault of a party, he or she has been
subjected to an unfair procedure” and that “there can be no question of that decision
being varied or rescinded by a later order made in the same case just because
it is
thought that the first order is wrong”:
R v Bow Street Metropolitan Stipendiary
Magistrate, Ex p
Pinochet
Ugarte (No 2)
[2000] 1 AC 119,
per Lord Browne
-
Wilkinson. One party’s failure to disclose relevant documentary information is
clearly capable o
f subjecting the other party to an unfair pr
ocedure.
6.
However, a decision to re
-
open an appeal also has important evaluative as
well as discretionary aspects
.
The present applicant was, in its application to set
aside (paras 109
-
130), content to express the
evaluative aspect in terms used in an
analogous context in the Court of Appeal in
Taylor v Lawrence
[2002
] EWCA Civ
90;
[2003] QB 528 and followed by the Privy Council in
Bain v The Queen
[2009]
UKPC 4. As the Privy Council said in the latter case at para
6, quoting Lord Woo
lf
CJ at p
547 in the former case:
“What will be of the greatest importance is that it should be
clearly established that a significant injustice has probably
occurred and that there is no
alternative effective remedy.”
7.
Fresh evidence:
That the jurisdiction to set aside also extends to situations
where fresh evidence is discovered after a judgment has been rendered which is not
susceptible of appeal is also recognised in Court of Appeal authority:
In r
e U
[2005]
EWCA Civ 52; [2005] 1 WLR
2398
Feakins v D
epartment of
E
nvironment,
F
ood
and Rural Affairs
[2006] EWCA Civ 699. The latter was a case where it was
discovered that a DEFRA official had provided materially incorrect information to
the court in a witness statement. In each case, howe
ver, it was emphasised that it
was not sufficient simply to rely on the principles in
Ladd v Marshall
[1954] 1 WLR
Page
4
1489, which apply when fresh evidence is sought to be adduced for or on an a
ppeal.
Rather, as it was put in
In re
U
, para 22
,
“
...
it must at l
east be shown, not merely that the fresh evidence
demonstrates a real possibility that an erroneous result was
arrived at in the earlier proceedings
...
, but that there exists a
powerful probability that such a result
has in fact
been
perpetrated.”
This stat
ement was quoted from and accepted in the application to set aside, para
121. Further, as to the discretionary aspect, the court noted in
Feakins
:
“The court [in
In
re U
] held that, although that
was a necessary
condition, it was not sufficient; the court
would have also to
consider the extent to which the complaining party was author
of his own misfortune and that there was no alternative
remedy.”
8.
In oral submissions, Mr Edward Fitzgerald QC did not directly challenge the
above principles as stated in
In r
e
U
, stating in his reply that there was nothing
between the parties on jurisdiction. However, in his written speaking note, directed
specifically to jurisdiction
in response to the c
ourt’s invitation to focus on this, the
matter was put differently, and a
s follows (para 2.4(iv)):
“As to whether there would now be a different outcome, it is
submitted that it is only necessary to show at this threshold
stage that there
may well be
a different outcome on a
reconsideration
.”
S
ee also, eg
the submission (para 8.8) that Dr Shepherd “may well have had an ‘axe
to grind’”. For my part, particularly where, as here, a party has failed to disclose the
documents which it is now submitted constituted important evidence, I prefer to
leave open wheth
er a test of “probability” or, in the context of fresh evidence,
“powerful probability” is too inflexible to cater for all possibilities. The
egregiousness of a procedural breach and/or the difficulty of assessing the
consequences of such a breach or of th
e significance of fresh evidence might, it
seems to me, in some situations militate in favour of a slightly lower test, perhaps
even as low as (though I do not decide this) whether the breach “may well have had”
a decisive effect of the outcome of the prev
ious decision. I shall consider the present
application in that light also, although I do not in the event consider that the outcome
of this application depends at any point on the test applied.
Page
5
The course of events leading to the present application
9.
The r
egrettable facts lying behind these and other proceedings such as
R
(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1)
and
(No 3)
were outline
d by Lord Hoffmann in paras 1
-
30 of his judgment in
Bancoult
No 2
, in terms which both Lo
rd Bingham and I accepted with only a few (presently
immaterial) quali
fications: see paras 68 and 137
-
139.
BIOT consists of the Chagos
Islands, the largest being Diego Garcia. In 1966 the United Kingdom agreed in
principle to make BIOT available to the Uni
ted States for at least 50 years for
defence purposes, and with effect from July 1971 the United States took over Diego
Garcia as a base. At the same time, by the Immigration Ordinance 1971, the
Commissioner of BIOT prohibited any person from entering or b
eing in BIOT
without a permit issued by an immigration officer.
10.
Mr Bancoult represents Chagossians (or Ilois), indigenous inhabitants of
BIOT, whose removal and resettlement the United Kingdom procured between 1968
and 1973 by various non
-
forceful means wi
th “a callous disregard of their interests”
(Lord Hoffmann, para 10). Compensation, initially in the 1970s of £650,000 and
then in 1982 of a further £4
m
in a trust fund set up under a Mauritian statute, was
paid and accepted in satisfaction of all claims b
y most (some 1
,
340) Chagossians,
though a few refused to sign. A challenge to this settlement was later made but struck
out as an abuse of process by Ouseley J in
Chagos Islanders v Attorney General
[2003] EWHC 2222
(QB)
, leave to appeal being refused by
t
he Court of Appeal
[2004] EWCA Civ
997. Ouseley J’s judgment made clear that there was no further
economic obligation on the United Kingdom to fund resettlement in BIOT.
11.
A challenge to the Immigration Ordinance 1971 was on the other hand
successful. In
R (
Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (No 1)
[2001] QB 1067, the Divisional Court decided that the Commissioner
for BIOT’s power to legislate for the “peace, order and good government” of BIOT
did not include a power to expel
its inhabitants. The then Foreign Secretary, Mr
Robin Cook, stated publicly that he accepted this decision, and revoked the 1971
Ordinance by the Immigration Ordinance 2000. This confined the restriction on
entry or presence to persons not British Dependen
t Territories citizens by virtue
of
their connection with BIOT.
Mr Cook also announced that a recently completed
feasibility study into the prospects of resettling the Ilois would now proceed to a
second stage. This was originally intended to
involve two p
hases, the first (P
hase
2A) relating to hydrological monitoring, the second
(P
hase 2B) to a more general
examination, pri
or to a cost
-
benefit analysis (P
hase 3). The second stage reports
were undertaken by Posford as project managers.