Chagossians lose appeal against UK govt

The United Kingdom’s Supreme Court dismissed the appeal of Olivier Bancoult – representative of the Chagossian Community – against the Secretary of State for Foreign and Commonwealth Affairs. The bench comprising of Lord Neuberger (President), Lady Hale (Deputy President), Lord Mance, Lord Kerr, and Lord Clarke, turned down the appeal by a majority of 3 to 2. Lord Mance gives the majority judgement, with which Lord Neuberger agrees. Lord Clarke gives a separate judgement, concurring with Lord Mance. Lord Kerr gives a dissenting judgement, with which Lady Hale agrees in a separate dissent. “The Supreme Court has inherent jurisdiction to correct injustice caused by an unfair procedure which leads to an earlier judgement or is revealed by the discovery of fresh evidence, although a judgement cannot be set aside just because it is thought to have been wrong on points unrelated to such procedure or evidence. The authorities indicate as the threshold for setting aside a previous judgement whether a significant injustice has “probably occurred” in case of non-disclosure or whether there is a “powerful probability” of significant injustice in case of fresh evidence. But Lord Mance leaves open the possibility of the egregiousness of the procedural breach and/or the difficulty of assessing its consequences militating in favour of a lower threshold, and considers the application on that basis too. An applicant must also show that there is no alternative effective remedy,” said the ruling. In 2008, the Bancoult’s challenge to the 2004 Order by judicial review was dismissed by a majority of 3 to 2 in the House of Lords. In separate litigation concerning the UK government’s declaration of a Marine Protected Area (“MPA”) around the Chagos, the respondent in 2012 disclosed certain documents relating to the drafting of the 2B report (the “Rashid documents”). The appellant seeks to set aside the 2008 Decision on the grounds that (i) the Rashid documents cast doubt on the reliability of the 2B report and should, pursuant to the respondent’s duty of candour in public law proceedings, have been disclosed prior to the 2008 judgement, and (ii) four heads of new evidence have come to light, constituting independent justification for setting aside the 2008 judgement. In 2014-15 a new feasibility study concluded that, assuming for the first time possible re-settlement of Diego Garcia itself, scope existed for supported resettlement of BIOT (the “2014-15 study”). In 1962, the Chagos archipelago had a settled population of around 1,000. In 1966, the UK government agreed to allow the USA to use the largest of the Chagos Islands, Diego Garcia, as a military base. Pursuant to this arrangement, the Immigration Ordinance 1971 (the “Ordinance”) was issued. Section 4 of the Ordinance made it unlawful for a person to be in the BIOT without a permit and empowered the Commissioner to make an order directing that person’s removal. Between 1968 and 1973 the UK government procured the removal and resettlement of the Chagossians by various non-forceful means. In 2000 the appellant, Mr Bancoult, obtained a High Court order quashing section 4 of the Ordinance. The then Foreign Secretary announced that he accepted this decision, such that the prohibition on the resettlement of BIOT was lifted. He also announced that work on the second stage of a feasibility study into the resettlement of the former inhabitants would continue. The second stage of the feasibility study was published in 2002. It concluded that the costs of long term inhabitation of the outer islands would be prohibitive and life there precarious. In 2004, Queen Elizabeth, by Order in Council, made the BIOT Constitution Order which introduced a new prohibition on residence or presence in BIOT.