“Politics by other means?” The fifth Chagos Islands decision in the High Court

Between 1966 and 1972, the UK Government relocated all Chagossians living in the Chagos archipelago in the Indian Ocean to Mauritius and the Seychelles to allow the US Government to establish a naval facility on the island of Diego Garcia. By virtue of the British Indian Ocean Territory (“BIOT”) (Constitution) Order 2004, Chagossians were not permitted to return to the islands. On 20 December 2012, the Foreign Secretary, William Hague, stated the government’s regret for the wrongs done to the Chagossian people in the past. Since the 1970s, representatives of the Chagossians have brought a series of proceedings challenging aspects of the UK Government’s ongoing management of the BIOT and asserting their right to return and to resettle the islands.

In a hearing in early December 2018 lasting five days, the Divisional Court (Singh LJ and Carr J) heard the latest judicial review in that litigation. The challenge, which made full use of the public law tool box, was directed against two decisions announced on 16 November 2016: firstly, a decision not to resettle the Chagos Islands, following a feasibility study carried out by KPMG and further cross-Whitehall policy work; and, secondly, a decision to provide a £40 million support package for Chagossian communities in the UK, Mauritius and the Seychelles. Those decisions were made in the National Security Council and the Divisional Court appointed public interest immunity advocates to assist it in the redaction and presentation of the sensitive materials that it was necessary for the Government to disclose in order properly and candidly to defend the claims. The materials before the court were extensive. As the Court recorded, it was provided with 16 open trial bundles, 2 bundles of closed material, 6 bundles of authorities and open and closed skeleton arguments.[1]

Judgment was given on 8 February 2019, dismissing all the claims. The Divisional Court took the opportunity to restate fundamental principles of public law which have increasingly been challenged in the lower courts.

Firstly, it rejected proportionality as a separate ground of challenge. The Court held, ‘insofar as this challenge relates to the substance of the decisions reached by the Government, the test for judicial review is irrationality. The test is not proportionality. Below the level of the Supreme Court it is not possible for courts to change the law in this respect.’[2] The conclusion of Lord Neuberger PSC in R (Keyu and others) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355 at [131]-[133] therefore remains the position in English law. In Keyu, the Supreme Court made it clear that it was not considered appropriate for a five-justice panel of the Supreme Court to adjudicate on the profound constitutional question of whether proportionality has superseded the doctrine of irrationality as a matter of domestic administrative law.[3] The summary of the authorities on proportionality set out in judgment of Coulson LJ in Browne v Parole Board of England and Wales [2018] EWCA Civ 2024 was endorsed.

Secondly, the Court made it clear that it would be very slow to interfere in an area of policy where the decisions were taken at the highest level of Government, including the Prime Minister; where the decisions in part concerned the allocation of financial resources and the defence interests of the UK and its allies and in part the conduct of international relations between the UK and other states, including the US and Mauritius.[4] The Court did not rule out the possibility that cases involving the righting of historical wrongs, security and international interests could be the subject of judicial review, but it emphasised the wide margin of judgment afforded by the law to the executive in that context.[5]

Thirdly, the Court addressed an ambitious argument made by the Claimants that the Human Rights Act 1998 applied to the BIOT, even though the UK had made no declaration under Article 56 (formerly Article 63) of the ECHR extending its application to it. The Claimants invited the Court to find that the decision of the House of Lords in the earlier Chagos case Bancoult 2[6] had been implicitly overruled by the Supreme Court in more recent decisions, in particular Smith v Ministry of Defence [2013] UKSC 41; [2014] AC 52 and Mohammed (Serdar) v Ministry of Defence (No.2) [2017] UKSC 2; [2017] AC 821, both applying the reasoning in Al-Skeini v United Kingdom (2011) 53 EHRR 18.

The Court held that the decision in Bancoult 2 that the HRA 1998 had no application to the BIOT remained good law. None of the subsequent cases relied on by the Claimants were in fact inconsistent with that decision and that the ECtHR had itself considered the impact of Al-Skeini on dependent territories such as BIOT for whose international relations a contracting State was responsible.[7] The position remains, for the time being, therefore, that such cases cannot fall within the jurisdiction of a Contracting State under Article 1 where no declaration has extended the scope of the Convention under Article 56. Nonetheless, the Court was attracted by a hypothetical debate during submissions as to what might arise in future cases in which egregious breaches of the ECHR (e.g. breaches of Article 3) took place in dependent territories without an Article 56 declaration but could not and did not find that there was any parallel with the present facts and expressly held that the Government had made no concessions on the issue during submissions.[8] The Claimants have sought permission from the Court of Appeal on this ground.

The procedural grounds advanced (PSED, consultation) were rejected on the facts. As to the overall question of the alleged irrationality (not disproportionality) of the Government’s decision not to resettle the Chagos Islanders in BIOT, the Court emphatically rejected the Claimant’s submissions, holding that the Resettlement Decision was one based on a consideration of interweaving strands in areas paradigmatically for Government to determine: primarily costs, defence and security interests, the creation of a new remote island community and environmental considerations.

The Chagos Islanders continue to contest the Resettlement Decision, and have also applied for permission to appeal on the basis that the Court was wrong to hold that the Government was under no obligation to review the 2004 Order in Council that had removed their right of abode in BIOT. Review of prerogative powers of this nature involving questions of international relations will always be an uphill struggle for Claimants. Groups such as the Chagossians will not be encouraged by the Court’s final conclusion,

‘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 government decisions on their merits. The wisdom of government policy is not a matter for the courts and, in a democratic society, must be a matter for the elected government alone. We stress these fundamentals in this case because there have been times when sight appears to have been lost of them … Judicial review is not, and should not be regarded as, politics by another means.’

But judicial review may still serve such groups well. It may not be politics by another means, but there is no doubt that those who find political avenues closed to them should continue to consider carefully targeted public law challenges as a legitimate tool in their quest for self-determination. What will not work, however, is a thinly-disguised merits challenge.

The Court of Appeal’s decision on permission, particularly on the Article 56/Al-Skeini issue, could, in theory, provide just such an opportunity for the Claimants.

Sir James Eadie QC, Kieron Beal QC and Sarah Wilkinson appeared for the Secretary of State.

Ben Jaffey QC appeared for the First Claimant.

All Blackstone barristers involved were working in teams with counsel from other chambers.

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[1] At [11].

[2] At [95].

[3] At [99]-[100].

[4] At [105].

[5] At [107].

[6] R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2008] UKHL 61; [2009] 1 AC 453.

[7] At [142].

[8] At [143].