Warning: include(/home/131800/domains/speakhumanrights.org/html/plugins/twofactorauth/totp/dirs.php) [function.include]: failed to open stream: No such file or directory in /nfs/c09/h03/mnt/131800/domains/speakhumanrights.org/html/includes/framework.php on line 29

Warning: include() [function.include]: Failed opening '/home/131800/domains/speakhumanrights.org/html/plugins/twofactorauth/totp/dirs.php' for inclusion (include_path='.:/usr/local/php-5.3.29/share/pear') in /nfs/c09/h03/mnt/131800/domains/speakhumanrights.org/html/includes/framework.php on line 29

Warning: include(/home/131800/domains/speakhumanrights.org/html/plugins/system/gkextmenu/javascript.php) [function.include]: failed to open stream: No such file or directory in /nfs/c09/h03/mnt/131800/domains/speakhumanrights.org/html/includes/framework.php on line 31

Warning: include() [function.include]: Failed opening '/home/131800/domains/speakhumanrights.org/html/plugins/system/gkextmenu/javascript.php' for inclusion (include_path='.:/usr/local/php-5.3.29/share/pear') in /nfs/c09/h03/mnt/131800/domains/speakhumanrights.org/html/includes/framework.php on line 31

Warning: session_start() [function.session-start]: Cannot send session cookie - headers already sent by (output started at /nfs/c09/h03/mnt/131800/domains/speakhumanrights.org/html/includes/framework.php:29) in /nfs/c09/h03/mnt/131800/domains/speakhumanrights.org/html/libraries/joomla/session/session.php on line 664

Warning: session_start() [function.session-start]: Cannot send session cache limiter - headers already sent (output started at /nfs/c09/h03/mnt/131800/domains/speakhumanrights.org/html/includes/framework.php:29) in /nfs/c09/h03/mnt/131800/domains/speakhumanrights.org/html/libraries/joomla/session/session.php on line 664
SPEAK - United Kingdom
Menu

United Kingdom

Application for Judicial Review in United Kingdom

The main objective of this application is to obtain a declaration from the Court that the decision of the United Kingdom to create a Marine Protected Area (“MPA”) around the British Indian Ocean Territory (“BIOT”) is unlawful insofar as the purposed Consultation Exercise conducted prior to the policy being adopted was flawed. Indeed it is submitted that the fact that the United Kingdom failed to admit that it was advised by its own consultants that resettlement of the Chagossian population was feasibility and coupled with the non disclosure of relevant environmental information during the course of the purported consultation exercise renders the creation of the MPA unlawful. A consultation exercise is lawful solely if it satisfied essential prerequisites recognized by law.

It is a well known principle that consultation must be conducted properly and fairly and this entails the ‘application of well established principles to the particular context and particular circumstances’’ before the Courts. The fairness of the consultation process is to be assessed not subjectively by the decision maker but objectively by the Court.

Thus, a public body that has ascribed to itself the responsibility to undertake consultations must adequately inform all the relevant stakeholders in clear terms the different elements of the proposal, its merits and address contentious issues that directly affect the interests of the consultees. The consultee must be given reasonable opportunity to study the proposal, comment and respond to information that has been given by the decision maker. The, consultee must have been thoroughly briefed to ensure that he is capable of making an informed decision. Therefore, the decision maker has a duty to reveal all such relevant information that he is aware of prior to the drafting of the proposal or that which is subsequently available to him. Thus, if the decision maker has obtained additional information, he is under a duty to conduct another consultation exercised. Furthermore, third parties must be given the opportunity to express their views. It must be emphasized that the applicable test is whether the consultation was so unfair that it amounts to being unlawful.

In 2002, drafts of ‘’Phase 2B Feasibility Report’’ was submitted by the consultants to the Foreign Secretary. The officials of BIOT were sent a draft of the ‘Executive Summary’. The BIOT administrator vehemently criticised the draft in a letter dated 23rd of May 2002. A meeting was therefore convened and held between the project leader, the BIOT officials and the unofficial environmental adviser. Subsequently, an Executive Summary containing a ‘General Conclusion’ not present in the original draft was published. The Executive Summary explained that the ‘’report [had] not been tasked with investigating the financial costs and benefits of the resettlement’, the General Conclusion stated as follows :

“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”

Interestingly no minutes were seemingly taken at the meeting during which criticisms were voiced to relevant officials and no copy of the draft of the Phase 2B Feasibility was found despite searches. The above facts were deducted from a letter dated 9th November 2006 written by the BIOT administrator and after further requests for information. The BIOT Constitution Order 2004 and the BIOT Immigration Order 2004 which provided that “no person [had] the right of abode in [BIOT] were passed as a result of the conclusions of the Phase 2B Study on the recommendation of the Secretary of State. The reliance over the General Conclusion of the Phase 2B Feasibility Study was further confirmed by a statement made by the FCO Minister Bill Rammell in the House of Commons on 7th of July 2004 to the effect that the abolition of the right of abode ‘’was not dreamed up by a Foreign Office official or a minister: it was the conclusion of the independent experts”.

The claimants while making further enquiries were in effect informed by the Director of the Consulting Company, Stephen Akester that he respectfully disagreed with the assertion that resettlement was not feasible and neither was it the unanimous conclusion of the Foreign Secretary’s consultant. Stephen Akester then confided to the lawyers of the Claimant that he shared the view that resettlement was feasible and possible. Fundamentally he revealed that he ‘tabled’ 3 options that adequately catered for the resettlement of the Chagossians. Astonishingly and tellingly, he admitted that he was never requested to contribute to the drafting of the Executive Summary and his suggestions were omitted from the official version.

Note: During the Bancoult 2 proceedings, the Foreign Secretary never furnished to the Court the 3 options suggested by MacAlister Elliott and Partners.

On the 10th of November 2009, a consultation document entitled, “Consultation on whether to establish a Marine Protected Area in the British Indian Ocean Territory’’ was published after pressure from Pew Environment Group. The duration of the consultation period was from 10th November 2009 to 12th February 2010. Essentially, the proposal of the United Kingdom was premised upon the quasi absence and ongoing prohibition of the Chagossian people from BIOT. Indeed, the House of Lords concluded fallaciously that ):

“Under these current circumstances, the creation of an MPA would have no direct immediate impact on the Chagossian Community. However, we recognise that these circumstances might change following any ruling (by) the European Court of Human Rights”

Counsels for the claimant have submitted in light of the above statement that ‘ It is denied that this is factually accurate since certain Chagossians have continued to exercise their traditional fishing rights in BIOT, even from their exile in Mauritius, by means of part-owning or crewing fishing vessels which are licensed to fish in the waters around BIOT.’ Ironically, the impact assessment concluded that: “[it] may be necessary to consider the exclusion of Diego Garcia and its 3-mile territorial waters from any MPA”

On the 23rd of December 2009, representatives of the claimants sent a letter and made a request for further information and also emphasized on the fact that the traditional fishing rights of the Chagossians are preserved under numerous provisions of international law and the right of abode had been accepted as being fundamental by all British Domestic Courts including the House of Lords. Additionally the need to respect the “aspirations of the inhabitants’’ in any decision making process is an obligation imposed upon an EU member state as provided under s198 of the Treaty of the Functioning of the European Union. The letter highlighted that:

“in the formulation of policy and in the conduct of [the] consultation, no meaningful decision can be made, and the people most affected cannot respond, unless there is first produced a true copy of the draft Phase 2B Report dated May 2002 which is admitted to remain with the Government’s own consultants following the meeting called for in the letter of 23 May 2002

Formal request for further information in accordance with both the Environmental Information Regulations 2004 (SI 2004 No 3391), and the Freedom of Information Act 2000 were made. A respond to the 23rd December 2009 letter was obtained on the 12th of February 2010. Insofar as the reply is concerned the request for further information was not attended to and hence the claimants.

On 4th of March 2010, the claimant accompanied by his legal advisors participated at a videoconference in Mauritius with an independent facilitator from the FCO named Rosemary Stevenson. It was expressly mentioned during the exchange that the interests of the Chagossians were being ignored. Fundamentally, it highlighted on the fact that the ongoing prohibition on the right to return is founded on feasibility studies which do not reflect the opinions of the experts as they have been tampered according to the whims and fancies of the officials. The facilitator published her report on the 1st of April 2010 and fails to mention the fact that the Foreign Secretary was duly informed contrary to what is being claimed, that resettlement was feasible. The facilitator omits addressing the non disclosure of the uncensored advice of the consultants to the Court as well as to the public in the Consultation Document. On the 1st of April 2010, the Foreign Secretary stated that the BIOT Commissioner shall enact Option 1 of the MPA i.e. the “no-take” marine reserve option which established a complete ban on commercial fishing.

The failure to disclose material documents has to all intents and purposes severely impedes the consultation process. Indeed, Professor Bellamy an eminent Environmental expert has confessed in a letter dated the 12th of May 2010 that had he known that resettlement was feasible, he would not have supported the full “no-take” marine reserve option. He stated that:

“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.”

The unilateral declaration of BIOT as MPA spurred lively Parliamentary Debates during the session held on the 6th of April 2010 as many members expressed their oppositions because firstly it bypasses the legitimate interests of the Chagossians and secondly the absolute prohibition on commercial fishing in principle jeopardizes the resettlement of the people in the likelihood that the ECHctR rules in favour of the right to return. Yet on the same day Ste. Rita, a fishing vessel used and partly owned by the Chagossians was denied a fishing licence in light of the fact that the MPA was in force. No additional licences will be issued by BIOT irrespective of the fact that the MPA has not been enacted under BIOT law.

Therefore, it has been submitted in the application for the judicial review that the Consultation exercise was unlawful because the whole procedure was flawed. The utter lack of information despite requests being made under Environmental Information Regulations, the non disclosure to the consultee and the public of the true view of the environmental consultants necessarily imply that the consultee was denied his fundamental right to respond effectively. Furthermore, it is conspicuous that in deciding whether to endorse the “full no-take marine reserve” option or not, the purported infeasibility of the resettlement of the Chagossian people must have necessarily been instrumental.

Leaked diplomatic cables later revealed that the purpose of that action was to render it even more difficult for the Islanders to return to their islands.

The injustice of the United Kingdom’s decision to declare the area as uninhabitable by human populations is underscored by the fact that the international human rights instruments, as well as most of the conventions pertaining to the environment, have not been extended to the BIOT. Moreover, the UK Government has failed in its duty to carry out a proper consultation process before ascribing the zone as an MPA. In fact, the UK government commissioned a self-serving feasibility study reporting the island as “uninhabitable”. Despite centuries of peaceful habitation by Chagossian people, the feasibility study concluded that without excessive financial support, a civil society could not flourish on the islands. For these reasons, and several other fictions, the UK rejected the Chagossians right to return to their birthplace.

The sudden interests of the United Kingdom to preserve the natural reserves of the archipelago are specious and dubious. As demonstrated by recently leaked US-UK diplomatic cables classifying the zone as a MPA is a facade with the aim of preventing the Chagossians from returning to their homeland. The cables sent between the US and UK refer to the former inhabitants in racist terms and involves illegal strategies. While, both the US and UK governments remain exceedingly deferential to the presence of the military base on Diego Garcia, the fundamental rights of the Chagossians have been marginalized and disregarded.

SPEAK in collaboration with Clifford Chance LLP and Nigel Pleming QC, have, filed an application of Judicial Review at the High Court in the United Kingdom. Essentially, the main argument is based on the fact that the consultation process regarding the MPA was flawed as, firstly, it was not revealed that the resettlement of the Chagossians on the Outer Islands was feasible and, secondly, that information relating to the environment was not fully disclosed during the exercise.

On the 20th of March 2012, leave for judicial review of the decision to unilaterally declare the Chagos Archipelago a Marine Protected Area (MPA) was granted. On the 4th of July 2012, a hearing was held in London in the High Court of Justice, following another application made by Olivier Bancoult the Chairman of the Chagos Refugees Group on 26 June 2012, requesting the permission to cross examine Colin Roberts, H.M Commissioner for the British Indian Ocean Territory (BIOT) and Joanne Yeadon, a civil servant in the FCO during the substantive hearing pertaining to the illegality of the MPA.

The claim, while focusing on the illegality of the MPA, must be seen in light of the wider historical background that involved the unceremonious deportation of the Chagossians between 1965-1973 by the Her Majesty’s Government (HMG).

The ambiguity pertains to the meeting that was held on the 12th of May 2009, which became the subject matter of a cable sent by the US Embassy in London to the State Department. The notes of meeting were not disclosed to the Court. The documents relied upon by the Secretary of State, while not initially submitted, was subsequently provided to the Court. Following leave given by the Court to serve further witness statements, Mr. Roberts stated that no notes were taken regarding the meeting of 12May 2009 and thus he unfortunately does not ‘recall the 12 May meeting in sufficient detain to be sure of any particular word or phrase was or was not used so, if so, by whom.’

According to a cable of 15 May 2009 on 12 May 2009, Mr. Roberts, ‘...asserted that establishing a marine park would, in effect, put paid to resettlement of claims of the archipelago’s former residents...’. The statement was made in the presence of Joanne Yeadon.

The Secretary of State refutes the allegations that the MPA was created to hinder the right to return of the Chagos Islanders. All grounds put forward by the claimant to support his contention that the MPA is unlawful have been repudiated by the Secretary of State.

Fundamentally, according to Mr. Roberts, the main purpose of the meeting was to ensure that the US do not oppose the MPA and that the ‘primary US concern was military security, and it was in this context that they raised the question of whether the MPA would prevent resettlement, that is both legal and illegal resettlement.’

The Court held on the 25 July 2012 that despite WikiLeaks documents having been unlawfully obtained, these have been widely reproduced and made public. It highlighted that no claim was made that these documents ought to be disregarded on the ground of public interest immunity.

Indeed, the Court acknowledged the fact that numerous articles were published in The Telegraph, The Guardian Newspapers revealing the content of sensitive and confidential memoranda sent from the US Embassy in London to the State Department in Washington.

Mr Pleming QC, acting for the claimant, agreed that cross-examination is not the norm in judicial review. Yet he emphasized on the fact that the Secretary of State did not deny the authenticity of the contents of the documents revealed. He submitted, in light of the dispute regarding statements made during the meeting on 12 May 2009 that revelations made by the WikiLeaks are proof of an improper motive.

Counsel for the Secretary of State, Mr Kovats QC, submitted that cross examination based on documents unlawfully obtained, should not be permissible. He further asserted that while cross-examination is exceptional in judicial review proceedings, it is unwarranted in the present case because disclosure of all relevant documents has been made.

Lord Justice Stanley Burnton ruled that the Court always has a discretion whether to allow cross examination and ‘it should do so if cross examination is necessary if the claim is to be determined and is seen to be determined, fairly and justly.’

While accepting that these documents, ‘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’, the Court ultimately concluded that the present claim cannot be ‘fairly or justly determined without resolving the allegations made by the Claimant, based on the WikiLeaks documents as to what transpired at the meeting of 12 May 2009 and more widely whether at least one of the motives for the creation of the MPA was the desire to prevent resettlement.’

He concluded that, ‘Given the conflicting evidence in my judgment, in order to resolve the dispute, oral evidence will be necessary, including cross-examination of Mr. Roberts and Ms Yeadon.’

The legal team intends to mount a full-scale attack on the Feasibility Study, and argue that a formal undertaking to Mauritian Ministers in 1965 protected Chagossian fishing rights. On November 13, the judges (Richards LJ and Ouseley J) gave a summary of the order. All the amendments sought by our legal team were allowed, save only the expert report. The reason for disallowing the report seems to be that we cannot challenge the decision by reference to subsequent evidence.

Similarly, it is arguable that EU law makes the MPA unlawful. There was in fact rather little reasoned resistance from Stephen Kovats QC (Counsel for the defendant). He argued that the point should have been taken in Bancoult(2) but Richards LJ saw off that point swiftly, by pointing out that this was a different case, and whether it could have been taken before was not an objection to relying on it in this one.

The High Court of the United Kingdom (QBD) on the 11th of June 2013 ruled against the stance taken by the Chagossians who were contesting the legality of the Marine Protected Area “MPA”. It would be recalled that on the 1st April 2010, Foreign Secretary David Miliband announced the creation of a Marine Protected Area (MPA) in the British Indian Ocean Territory (“BIOT”). This includes a “no-take” marine reserve where commercial fishing will be banned. It was based upon the continued prohibition on the population returning to its homeland, around which the MPA would be designed.

Essentially the legality of the “MPA” was challenged on five grounds. Firstly, an improper motive, namely an intention to create an effective long-term way to prevent Chagossians and their descendants from resettling in BIOT; secondly 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; thirdly, the failure to disclose relevant environmental information in the course of the consultation; fourthly, 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 and lastly the 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.

A close analysis of the judgment reveals that there are two main issues that significantly contributed to this unfavourable ruling. Firstly the inadmissibility of the wiki leaks as evidence and secondly the fact that the judges were convinced that the feasibility of resettlement and the measures of conservation to be adopted within the Chagos Archipelago were two segregated policies. However, these two issues undeniably overlap.

The claimant contended 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”. Indeed, it was argued that questions pertaining to the feasibility study coupled the presence of evidence in favour resettlement at the time the study was being commissioned. Thus in essence it was advanced that the failure of the MPA to consider resettlement prevented the consultees to make informed comments on the proposal.  The argument was rejected as the Court endorsed the view that, ‘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’ and thus concluded that the consultation process was neither unfair nor unlawful.

The third ground put forward by the claimant was in essence that, ‘the MPA decision was flawed by “the failure to disclose relevant environmental information in the course of the consultation”. The Court cursorily dismissed the latter argument on the ground that the disclosure pertained to information relevant to the feasibility of resettlement and not to conservation measures and thus in light of their reasoning that these are two fundamentally different issues. The Court reiterated the fact that the policy under review is the conservation measures and not feasibility of resettlement and consequently adopted the same line of reasoning as the previous ground.

Additionally, the legality of the MPA was further challenged on the “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 Chagossians asserted that prior to their removal from the Chagos Islands, they used to traditional fish and the existence of their traditional rights did not subside when the island became uninhabited. Furthermore, it was contended that as Mauritius enjoys fishing rights in BIOT waters, the Chagossians being also Mauritians citizens are indirect beneficiaries of those rights. Pertinently, many Chagossians are crew members of Mauritian-flagged vessels operating in BIOT until the MPA brought such activity to an end.

The Court erroneously concluded that the Chagossians do not enjoy traditional fishing rights but these were ‘lost with the loss of the right of abode and their removal’. They therefore shifted the focus onto the rights enjoyed by the Chagossians by virtue of the position of Mauritius.The Court concluded that the issue as to whether Mauritius enjoys fishing rights in BIOT waters as matter of international was not within the purview of these proceedings. The Court therefore circumscribed its assessment as 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 and concluded that a “wholly disproportionate significance” was attached to that issue. The omission to include these issues within the consultation document did not affect the fairness of the consultation process and thus the validity of the MPA.

The MPA was also challenged on the ground that the decision violated 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. It was submitted that there is an incumbent duty imposed upon the United Kingdom to promote the economic and social development of BIOT as well as the interests of the inhabitants. Consequently the advent of the MPA renders Article 198 completely obsolete. The Court concluded that Article 4(3) TEU imposes a negative duty on the United Kingdom that is it should refrain from taking any such measures which could ‘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’. The Court highlighted that the issue to be determined is the lawfulness of the MPA decision and not that of the removal or the policy on resettlement.

Flagrantly the Court stated that they must address the issue based on the fact that he 2004 Orders were lawful as well as to the policy that they gave rise to. The Court then concluded that the only impact that the MPA has is to prevent fishing in the Chagos waters and thus insofar as Article 198 TFEU there has been 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” and thus opined that the MPA is compatible with the EU law.

Undeniably, the most important issue addressed in the case was the admissibility of the wiki leaks as evidence. Unlike what has been widely reported, the ‘No Confirmation No Denial’ “NCND” policy was not a legal impediment to the Chagossians’ case. The real legal predicament was the fact that the defendant had recourse to Articles 24 and 27 of the 1961 Vienna Convention which protects the inviolability of all forms of diplomatic communications. Article 24 in effect stipulates that, “The archives and documents of the mission shall be inviolable at any time and wherever they may be” whereas article 27(2) provides that, “the official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.”

The judges concluded that, ‘Nothing [...] 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.” The ruling against the admissibility of the wiki leaks in effect radically transformed the whole landscape of the case of the Chagossians. A close scrutiny of the judgement as demonstrated above reveals the determination of the judges to separate the feasibility of the resettlement and the conservation measures within the Chagos waters. Yet had these cables been declared admissible, the Court would have found that it is absolutely impossible to dissociate these two issues. Indeed, according to a Wiki Leaks cable of 15 May 2009 sent by the US Embassy in London to the State Department, on 12 May 2009, Mr. Roberts, ‘...asserted that establishing a marine park would, in effect, put paid to resettlement of claims of the archipelago’s former residents...’. Conspicuously had counsels for the claimants been allowed to rely on these cables evidentially, the Court would not have segregated both issues. Indeed the cables attest to the fact that these two issues are intrinsically linked.

Thus the inadmissibility of the wiki leaks as evidence not only resulted in an inability to prove the improper purpose behind the creation of the MPA but also prevented the Court from adjudicating upon the issue from a different perspective and that is the fact that the feasibility of resettlement should have been a fundamental and intrinsic component of the consultation process and its abstraction cannot be condoned. Furthermore, the failure to disclose information pertaining to resettlement would have been severely condemned. Lastly, the prevention of the Chagossians to exercise their traditional fishing rights and their rights to social and economic developments in accordance with the EU provisions would have been assessed from a different angle.

The ruling was succinctly and accurately described by the Mauritian Attorney of the Chagos Islanders and Founder of SPEAK Human Rights and Environmental Initiative “SPEAK” who stated that, “The judgment bears testimony to procedural hurdles that the Chagossians have been facing since they first launched their legal proceedings in 1998. Nobody, no court has disputed the fact that the Chagossians have been victims of gross political manipulations and have suffered inhuman and degrading treatment. Virtually all courts despite unfavourable rulings have sympathized with the plight of the Chagossians. The Chagossians always lose on technicalities or on issues of admissibility. Once more, had the wiki leaks been declared admissible, the outcome would have been very different.’

The inadmissibility of the diplomatic cables as evidence has not only prevented the Chagossians from arguing its case successfully but has regrettably prevented the Court from determining the issue in light of all available information! Pertinently, the removal of the Chagossians and the fact the island is presently uninhabited were arguments put forward by Counsel for the defendant to counter the five grounds contended by the Chagossians. One does wonder whether this is a case when one ‘benefits from a wrong’!

First Tier Tribunal

On the 4th of September, the UK First-Tier Tribunal delivered its judgment regarding the Information Appeal, in which the Chagos Refugees Group in Mauritius and the Chagos Social Committee (Seychelles) were seeking the Draft of the Phase 2B feasibility study and exchanges between the FCO and consultants in order to examine whether officials had influenced and/or manipulated the largely negative conclusions. The feasibility study was indeed the principal reason given by the FCO for abolishing Chagossians' Right of Abode in the Chagos Islands.

While many requests have been made to obtain the file, its existence has always been denied. Interestingly, after a formal request was made and after the Judicial Review of the MPA proceeded, in May 2012 we received copies of this file which the FCO found in the document storage of the treasury solicitor. There is therefore very little mention of this in the judgment.

The hearing that took place on the 10th and 11th of July was concerned with limited issues. Firstly, there were some further documents held by the consultants Royal Haskoning, which they refused to release without further instructions from the FCO. Secondly, there were two additional documents that were shown to the tribunal, but not to us, which the FCO claimed they did not have to disclose to Chagossians for various reasons. The judgment however suggests that they may be helpful to Chagossians.

Fundamentally, paragraph 98 of the judgment is proof of the fact that the Tribunal considered that, ‘the Phase 2B Feasibility Study played an important role in the government’s decision to rule out the possibility of the return of the Chagossians to some of the islands.’ The tribunal also unequivocally stated that, ‘[G]iven the nature of the history of events, which we have related above and the importance of the matter to the Chagossians, it does not seem to us unreasonable that they should raise concerns and seek to investigate them’. Additionally, the tribunal further stated that, ‘[G]iven the very unusual, and in some respects extreme, nature of the history which we have set out above, we consider that the general public interests in transparency of environmental information, in accountability of Government for policy decisions made concerning matters affecting the environment, and in public understanding of such policy decisions, are very weighty in the context of the case.’ Last but certainly, not the least, the tribunal boldly concluded that, ‘[H]aving had the benefit of Mr Roberts’ oral evidence, we consider that the Commissioner was mistaken in thinking that there was an active decision-making process in progress at the time when the FCO concluded its internal review. Moreover, while the Commissioner referred to the ‘international and diplomatic dimension of this decision making process’, the evidence before us (whether open or closed) did not in our view establish that disclosure of the Hamilton/Amos note would be of material significance in an international or diplomatic context.

The judgment made the following orders:

  1. Consultants did not hold information on behalf of the FCO
  2. The "November Note" must be disclosed
  3. The Hamilton/Amos note must be disclosed