11/02/2019

Divisional Court dismisses latest challenges to UK government policy on the Chagos Islands

The Divisional Court (Singh LJ and Carr J) has handed down judgment in the latest challenge to the UK Government’s policy on resettlement of the British Indian Ocean Territory (BIOT), R (Hoareau and Bancoult (No.5) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) [Judgment] [Press Summary]

BIOT was created in 1965 from territory in the colonies of Mauritius and the Seychelles, including the Chagos Islands. Its inhabitants, the Chagossians, were removed and a US military base built on the island of Diego Garcia under an agreement with the UK Government. The UK Government has expressed its deep regret for the treatment of the Chagossians. In a well-known series of cases, stretching back to 1975, Chagossians have sought to challenge UK Government policy on BIOT.

The judgment relates to two conjoined claims for judicial review of the 2016 decisions: (i) not to support or permit resettlement of the British Indian Ocean Territory; and (ii) to provide a support package of approximately £40m over 10 years for Chagossians in the communities in which they now live. The decisions were challenged on a wide-range of grounds, including: irrationality, incompatibility with the European Convention on Human Rights, failure to comply with the public sector equality duty in the Equality Act 2010, errors of fact and procedural unfairness.

The Divisional Court dismissed all the claimants’ claims. Much of the judgment addresses the very extensive factual material that was put before the court. The judgment is notable for the following points:

Firstly, the procedural innovations that the Court adopted to the handling of sensitive government documents, including Cabinet minutes and diplomatic communications, (considered in the Court’s interim judgment [2018] EWHC 3825 (Admin)). Early in 2018, the Court appointed Public Interest Immunity Advocates (from the existing pool of security-vetted Special Advocates) to review the disclosed documents with the Defendant’s legal team and propose redactions, gists and – for the first time – summaries of Cabinet minutes, to enable the substance of decision-making to be put before the court. The Court then created a Confidentiality Ring, including the Claimants’ counsel, within which submissions and argument could be made on materials that could not be referred to in open court.

Secondly, a strong restatement of the principles that underpin judicial review. At [326], the Court said:

“Judicial review is an important mechanism for the maintenance of the rule of law. It serves to correct unlawful conduct on the part of public authorities. However, judicial review is not an appeal against governmental decisions on their merits. The wisdom of governmental policy is not a matter for the courts and, in a democratic society, must be a matter for the elected government alone…. Judicial review is not, and should not be regarded as, politics by another means.”

In an earlier, interim, hearing in this case, Singh LJ gave an important judgment [2018] EWHC 1508 (Admin) on the duty of candour in judicial review proceedings and how it differs from the private law duty of full and frank disclosure. That judgment has already been cited with approval by the Court of Appeal.

Penelope Nevill and John Bethell appeared as counsel for the Secretary of State, instructed by the Government Legal Department, along with Sir James Eadie QC, Steven Kovats QC, Kieron Beal QC and Sarah Wilkinson.