QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MRS JUSTICE CARR DBE
| THE QUEEN (on the application of
(1) SOLANGE HOAREAU
(2) LOUIS OLIVIER BANCOULT)
|- and -
SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
Mr Edward Fitzgerald QC, Mr Paul Harris SC and Ms Angela Patrick (instructed by Clifford Chance LLP) for the Second Claimant
Sir James Eadie QC, Mr Steven Kovats QC, Mr Kieron Beal QC, Ms Sarah Wilkinson, Ms Penelope Nevill and Mr John Bethell (instructed by the Government Legal Department) for the Defendant
Hearing dates: 10th – 14th December 2018
Crown Copyright ©
Lord Justice Singh and Mrs Justice Carr:
Structure of judgment
Part I Introduction Part II Background Part III Overview of the Review and the Decision Part IV The KPMG Report Part V The decision-making process Part VI Overview of the Claimants' case Part VII Overview of the Defendant's case Part VIII General principles and observations Part IX Issue 1: the right of abode challenge Part X Issue 2: the Human Rights Act challenge Part XI Issue 3: the public sector equality duty challenge Part XII Issue 4: the irrationality challenge Part XIII Issue 5: the consultation challenge Part XIV Issue 6: the support package challenge Part XV Conclusion
Part I : Introduction
i) Both Claimants challenge the lawfulness of the Resettlement Decision;
ii) Ms Hoareau challenges the lawfulness of the Support Package Decision;
iii) Both Claimants challenge the (implicit) decision by the Defendant not to remove the statutory and constitutional bar on the Chagossians' right of abode in the BIOT ("the Right of Abode Decision").
Part II: Background
Part III: Overview of the Review and the Decision
i) Large-scale resettlement (population 1,500) with economic activities such as public sector employment, employment on the US Naval Support Facility, tourism and fisheries. This would require infrastructure on Diego Garcia and the outer islands;
ii) Medium-scale resettlement (population 500) with livelihood options that could be supported in a number of ways such as public sector employment, engagement on the US Naval Support Facility, artisanal fishing and monitoring the marine protected area ("MPA");
iii) Pilot, small-scale resettlement (population 150) with incremental growth over time, and limited infrastructure on Diego Garcia.
i) Option A: resettlement including Diego Garcia;
ii) Option B: resettlement on the Outer Islands, excluding Diego Garcia;
iii) Option C: no resettlement with a package of additional support.
"On 24 March 2016 the former Parliamentary Under-Secretary for Foreign and Commonwealth Affairs, the hon. Member for Rochford and Southend East (James Duddridge) informed the House that the Government would be carrying out further work on its review of resettlement policy in the British Indian Ocean Territory (BIOT). I would now like to inform Parliament of two decisions which have been made concerning the future of BIOT.
Parliament will be aware of the Government's review and consultation over the resettlement of the Chagossian people to BIOT. The manner in which the Chagossian community was removed from the Territory in the 1960s and 1970s, and the way they were treated, was wrong and we look back with deep regret. We have taken care in coming to our final decision on resettlement, noting the community's emotional ties to BIOT and their desire to go back to their former way of life.
This comprehensive programme of work included an independent feasibility study followed by a full public consultation in the UK, Mauritius and the Seychelles.
I am today announcing that the Government has decided against resettlement of the Chagossian people to the British Indian Ocean Territory on the grounds of feasibility, defence and security interests, and cost to the British taxpayer. In coming to this decision the Government has considered carefully the practicalities of setting up a small remote community on low-lying islands and the challenges that any community would face. These are significant, and include the challenge of effectively establishing modern public services, the limited healthcare and education that it would be possible to provide, and the lack of economic opportunities, particularly job prospects. The Government has also considered the interaction of any potential community with the US Naval Support Facility – a vital part of our defence relationship.
The Government will instead seek to support improvements to the livelihoods of Chagossians in the communities where they now live. I can today announce that we have agreed to fund a package of approximately £40 million over the next ten years to achieve this goal. This money addresses the most pressing needs of the community by improving access to health and social care and to improved education and employment opportunities. Moreover, this fund will support a significantly expanded programme of visits to BIOT for native Chagossians. The Government will work closely with Chagossian communities in the UK and overseas to develop cost-effective programmes which will make the biggest improvement in the life chances of those Chagossians who need it most.
Parliament will also be aware that the agreements underpinning the UK/US defence facility will roll over automatically on 31 December if neither side breaks silence. In an increasingly dangerous world, the defence facility is used by us and our allies to combat some of the most difficult problems of the 21st century including terrorism, international criminality, instability and piracy. I can today confirm that the UK continues to welcome the US presence, and that the agreements will continue as they stand until 30 December 2036."
"What have the Government actually decided here? They say they will not facilitate resettlement, but do they accept or not that the Chagossians have a right of return or a right of abode? If I won the lottery and decided to spend my winnings on building a paradise retreat for myself on one of the Chagos Islands, would that kind of development be permitted?"
Sir Alan Duncan, Minister of State for the FCO, replied:
"It would potentially be illegal. In my view, it is quite clear that our decision is that there should not be resettlement or repopulation on these islands."
Part IV: The KPMG Report
i) The likely cost to the UK Government of establishing and maintaining a settlement;
ii) Whether such a settlement could be self-sustaining;
iii) The associated risks, environmental implications and full costs of mitigation of any resettlement.
i) Option 1: Large-scale resettlement (population 1500). This sort of development would require infrastructure on Diego Garcia and the Outer Islands, such as the Ile du Coin or Boddam;
ii) Option 2: Medium-scale resettlement (population 500). This option would also involve building on Diego Garcia;
iii) Option 3: Pilot, small-scale resettlement (population 150), with incremental growth and limited infrastructure on Diego Garcia.
Part V: The decision-making process
"The new proposal under study, which will consider resettlement not only on the outer islands but also potentially on Diego Garcia itself, will potentially raise greater security concerns. A resettlement study that includes Diego Garcia as a potential location must also examine infrastructure capacity constraints on the island and the lack of compatibility of that infrastructure's military mission with the provision of life support for permanent civilian residents."
"..My memory of the NSC is more positive – we decided, historically, to commission the study to see what could be done….Try and reach some feasible conclusions before the election."
(The reference to the NSC must in fact be a reference to the meeting on 5 March 2013.) The Prime Minister approved the use of a write-round approach. The NSA faithfully passed the Prime Minister's views on to the FCO on 17 November 2014.
"…The United States has serious concerns about the implementation plan for the potential resettlement of Diego Garcia. On many occasions Diego Garcia served as a critical staging area for military operations and plays a vital support role in our joint national security activities on a daily basis. Maintaining the security of the facility and security of US and UK personnel is paramount…
The United States considers the roll-over of the Exchange of Notes governing our presence on Diego Garcia a matter of national security. We will oppose any action that would put the roll-over of Exchange of Notes in jeopardy….the United States does not believe that resettlement automatically requires cancellation and renegotiation of the Exchange of Notes. However, maintaining the Exchange of Notes may present practical limitations on the scale of resettlement. Our strong preference would be for an outcome that allows for roll-over of the Exchange of Notes.
The United States also takes issue with some of the KPMG resettlement report's assumptions. …
One of our most significant concerns with the KPMG report is the proposed development of certain industries on Diego Garcia. As a result of security concerns, the United States strongly opposes the development of any form of tourism on Diego Garcia. Additionally, our government will not permit the US military airfield on Diego Garcia to transport tourists. The travel of tourists to Diego Garcia represents an unacceptable threat to safe and secure functioning of our military operations on the island, ... We do not object to outer island tourism that is not dependent on transport through Diego Garcia.
The United States will also not participate in any indirect payments supporting resettlement or direct payments to the Chagossians …"
"As for my advice, this really does come down to the balance between righting what was unquestionably a serious historic wrong, and the on-going costs and liabilities….Where I do think there are significant problems, however, is around costs. It is easy to imagine the whole thing escalating and our getting involved in building runways and harbours accommodation blocks, while struggling to attract hotels and tourism, and finding ourselves committed to indefinite social security support because of lack of job opportunities. In short, it can be done, but it would almost certainly turn out a great deal more expensive than even the highest estimates in the feasibility study.
So, if you want to push a resettlement option through, I think you will have some opposition to overcome – you will need strong support from the DPM and the Leader of the House. ..."
"…This option was effectively discounted as too risky in the independent KPMG study. Two settlements of up to 500 people in total would cost about £326m (non ODA-eligible) over 10 years. The outlying islands are very remote – 240km from Diego Garcia and 840km from the Maldives. They are low lying and very small, with no existing infrastructure, and therefore vulnerable to rising sea levels. Niche tourism could be introduced to provide modest employment, but it would be risky and potentially non-viable, with HMG needing to underwrite any private investment. Provision of western standards of education, healthcare and governance would be impossible to guarantee, and DfID are convinced that there would be a high risk of social problems …"
"You will want to test these options at the meeting. But, in my view, the two resettlement options are not viable on practical grounds and pursuing them would carry a serious risk of failure/ructions with the US. I therefore recommend that you use this meeting to decide against the resettlement options;…You could then make a final push to: a) Produce the strongest possible non-resettlement package; and work up a robust communications strategy to underpin it; …"
"The largest was the size of Hyde Park, which ruled out building a landing strip, and the highest point was only 6 feet above sea level. This would be an even more challenging location for resettlement than Option A. Option C would involve a package of ODA-eligible development assistance designed to improve the lives of Chagossians in Mauritius and the Seychelles, and an enhanced programme of heritage visits to the islands. These visits were valued by the Chagossian diaspora, who retained an attachment to the islands. Although only 9% had responded to the latest consultation, 97% of those responding had expressed a desire to resettle, though the consultation had found this was based on an unrealistic view of the conditions they would face."
"8. The proposed joint FCO-DFID development package, which is based on DFID and FCO's current best assessment of Chagossians' needs, would include:
a) Improved access to healthcare, education and employment for Chagossians on Mauritius and the Seychelles, by providing new primary healthcare facilities, 2000 private tuition places, up to 500 vocational training places, and funding for degree courses for around 50 young Chagossians in the first five years, doubling up to 100 in the second (totalling £21m over ten years).
b) Heritage visits to BIOT for around 100 Chagossians per year for ten years (total £5.5m), the restoration of cultural sites (total £4.2m) and scientific conservation projects, including the opportunity for Chagossians to volunteer in each project (total £4m).
c) A training package in literacy, numeracy and environmental issues for around 70 Chagossians in the UK per year over ten years (total £4.6m).
9. The activities in a) would be funded by DFID and would be ODA-eligible; the rest would be funded by a combination of the FCO and the Conflict, Stabilisation and Security Fund and would be non-ODA. This is a smaller overall figure than that agreed at the NSC (£55m over the period), but is based on a better understanding of the likely costs and demands. We expect that uptake would be high; the educational status and health of Chagossians on Mauritius is lower than average, and the heritage visits and training package would build on programmes that have been popular in the past.
10. There are nonetheless some risks to delivery of this package, the main one being that the programme in Mauritius could only be delivered through the Mauritian government and would therefore require their consent and co-operation, which might not be forthcoming while the sovereignty dispute continues. Given that elements of the package will likely need to be tailored to enhance education and health support in areas where there are high densities of Chagossians, their support will be critical, though it would also deliver broader benefits to Mauritius."
Part VI: Overview of the Claimants' case and grounds of challenge
i) Issue 1: the Right of Abode Decision was unlawful, being irrational when set against the background of compulsory exclusion of the Chagossians from their homeland and the fundamental constitutional nature of the right denied. The Defendant erred in law in failing to give separate consideration to the merits of the lifting of the constitutional ban imposed by the 2004 Orders;
ii) Issue 2: the Defendant acted incompatibly with the Claimants' Convention rights, in that the Decision represented a disproportionate interference with the Claimants' rights under Article 8 and Article 1 of the First Protocol to the Convention, contrary to section 6 of the Human Rights Act 1998 ("the HRA");
iii) Issue 3: the Defendant failed to comply with the PSED in section 149 of the Equality Act 2010 ("the Equality Act");
iv) Issue 4: the Resettlement Decision was unlawful, being irrational and flawed by specific errors of fact and misrepresentations to Ministers. Particular weight is placed on the decision to rule out resettlement of the Outer Islands and an alleged failure to take into account (or misrepresentation of) evidence contained in the Whitebridge report. Other material misrepresentations are also said to have been made to Ministers. Mr Bancoult also alleges that Ministers were materially misled about the viability of the non-resettlement package in respect of its deliverability in Mauritius for the benefit of Mauritian Chagossians;
v) Issue 5: the Defendant failed conscientiously to take into account the product of the 2015 Consultation which was misrepresented to Ministers and failed to re-consult once the USG indicated that it would not object to re-settlement on the Outer Islands;
vi) Issue 6 (Ms Hoareau only): the Defendant acted irrationally in failing to undertake any assessment of the needs to which the support package was directed and decision makers were materially misled on the basis for the £40m figure identified for the support package. There was a breach of legitimate expectation of consultation in relation to the standalone exercise to investigate the scope and value of the support package ground.
Part VII: Overview of the Defendant's case
Part VIII: General principles and observations
"… These authorities spell out the simple proposition that, for now at any rate, the common law test for judicial review is based on the underlying principle of rationality. Whilst there is some support for adopting a proportionality test in particular cases concerned with fundamental rights (see for example Kennedy), there is a recognition that a more widespread change would require a major review by the Supreme Court and the necessary overruling of Brind and Smith."
"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."
i) They were taken at the highest level of Government, including the Prime Minister;
ii) They concern in part decisions about the allocation of financial resources;
iii) They concern in part decisions about the defence interests of the United Kingdom and its allies;
iv) They concern in part the conduct of international relations between the United Kingdom and other states, including the United States and Mauritius.
"The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations."
Part IX: Issue 1: the right of abode challenge
"The application is unnecessary and, in any event, academic. There is currently underway an independent study into the resettlement of the Islands. It is that study, not the 2002 feasibility study, which will inform the Government's decision as to the future. The resettlement of BIOT depends not only on the feasibility of resettlement; the United Kingdom's strategic interests are also highly relevant to any future decision. If the current study were to show that resettlement was not feasible it is of no practical benefit to the applicant to set aside the House of Lords' decision … If resettlement were to be currently feasible the House's decision would not preclude it. The point of law decided by the majority [in Bancoult (No. 2)] was that the BIOT constitution and Immigration Ordinance were lawful even though they stated there was no right of abode. That question of law is untouched by the factual question of whether resettlement is feasible."
"There is one other factor, which would have been both relevant and in my opinion decisive, had I reached a conclusion that the threshold test for setting aside was or might otherwise have been satisfied. The applicant submits that nothing other than a reversal of the House of Lords decision (insofar as it proceeded on the basis that the stage 2B report could be relied on) will overturn the constitutional bar on their return to the Chagos. But there has been a new 2014-2015 feasibility study, published by KPMG in March 2015, which assesses the risks differently from the prior report and finds that, at some cost and taking into account (for the first time) the possibility of resettlement on Diego Garcia itself, there would be scope for supported resettlement. In practical terms, the background has shifted, and logically the constitutional ban needs to be revisited. As Mr Steven Kovats QC expressly accepted during oral submissions, it is open to any Chagossian now or in the future to challenge the failure to abrogate the 2004 Orders in the light of all the information now available. That is in my opinion a factor militating strongly against the setting aside of the House of Lords' judgment …"
"One of the factors which has led me to that conclusion is that, as I see it, that is not the end of the road. I agree with Lord Mance JSC's conclusion in para 72 that there is a critical factor which is in any event conclusive. The background to much of the debate between the parties had been the feasibility of the Chagossians returning to the Chagos Islands. The 2014–2015 feasibility study considers, among other things, the possibility of resettlement on Diego Garcia. Given that new factor, the study concludes that there would be scope for supported resettlement. As Lord Mance JSC puts it, the background has now shifted and logically the constitutional ban needs to be revisited. …"
"In the light of the results of the study the Government will no doubt consider whether it is … appropriate to permit and support resettlement. It was expressly accepted on behalf of the Government that it will be open to any Chagossian to challenge the failure to abrogate the 2004 Orders in the light of all the information which is now available or becomes available in the light of the ongoing study. For example, it will, at any rate in principle, be open to Mr Bancoult to institute judicial review proceedings to challenge any future refusal of the Government to permit or support resettlement as, in Lord Mance JSC's words 'irrational, unreasonable or disproportionate'."
Part X: Issue 2: The Human Rights Act challenge
"(1) Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the … Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible.
(4) Any State which has made a declaration in accordance with paragraph 1 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, Non-Governmental Organisations or groups of individuals as provided by Article 34 of the Convention."
"… In 1953 the United Kingdom made a declaration under Article 56 [then Article 63] of the European Convention on Human Rights extending the application of the Convention to Mauritius as one of the 'territories for whose international relations it is responsible'. That declaration lapsed when Mauritius became independent. No such declaration has ever been made in respect of BIOT. It is true that the territory of BIOT was, until the creation of the colony in 1965, part of Mauritius. But a declaration, as appears from the words 'for whose international relations it is responsible' applies to a political entity and no to the land which is from time to time comprised in its territory. BIOT has since 1965 been a new political entity to which the Convention has never been extended."
"If the Convention has no application in BIOT, then the action of the Crown in BIOT cannot infringe the provisions of the Human Rights Act 1998: see R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs  1 AC 529. The applicant points out that section 3 of the BIOT Courts Ordinance 1983 provides that the law of England as enforced from time to time shall apply to the territory. So, they say, the Human Rights Act, when enacted, became part of the law of the territory. So be it. But the Act defines Convention rights (in section 21(1)) as rights under the Convention 'as it has effect for the time being in relation to the United Kingdom'. BIOT is not part of the United Kingdom and the Human Rights Act, though it may be part of the law of England, has no more relevance in BIOT than a local government statute for Birmingham."
"Nor can the Court agree with the applicants' contention that any possible basis of jurisdiction under Article 1 such as that set in the Al-Skeini judgment must take precedence over Article 56 on the ground that it should be set aside as an objectionable colonial relic and to prevent a vacuum in protection offered by the Convention. Anachronistic as colonial remnants may be, the meaning of Article 56 is plain on its face and it cannot be ignored merely because of a perceived need to right an injustice. Article 56 remains a provision of the Convention which is in force and cannot be abrogated at will by the Court in order to reach a purportedly desirable result."
"… The Court finds that the 2004 Ordinance cannot be said to have amounted to an interference with the applicants' right to respect for their homes. Indeed, it is apparent from the judgments given [in Bancoult (No. 2)] that whatever the outcome of those proceedings that the applicants continued to have no legal, or practical, prospect of being able to enter or settle on the islands."
"The Court is therefore not persuaded that recent events disclose any developments relevant to the applicants' victim status. The heart of the applicants' claims under the Convention is the callous and shameful treatment which they or their antecedence suffered from 1967-1973, when being expelled from, or barred from return to, their homes on the islands and the hardships which immediately flowed from that. These claims were raised in the domestic courts and settled, definitively. The applicants' attempts to pursue matters further in more recent years must be regarded, as held by the House of Lords, to be part of an overall campaign to bring pressure to bear on Government policy rather than disclosing any new situation giving rise to fresh claims under the Convention. …"
Part XI: Issue 3: The public sector equality duty challenge
"(1) A public authority must, in exercise of its functions, have due regard to the need to –
(a) Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) Foster good relations between persons who share a relative protected characteristic and persons who do not share it.
(1) In relation to the exercise of immigration and nationality functions, section 149 has effect as if subsection (1)(b) did not apply to the protected characteristics of age or religion or belief; but for that purpose 'race' means race so far as relating to–
(a) nationality, or
(b) ethnic or national origins.
(2) 'Immigration and nationality functions' means functions exercisable by virtue of–
(a) the Immigration Acts (excluding sections 28A to 28K of the Immigration Act 1971 so far as they relate to criminal offences),
(b) the British Nationality Act 1981,
(c) the British Nationality (Falkland Islands) Act 1983,
(d) the British Nationality (Hong Kong) Act 1990,
(e) the Hong Kong (War Wives and Widows) Act 1996,
(f) the British Nationality (Hong Kong) Act 1997,
(g) the Special Immigration Appeals Commission Act 1997, or
(h) a provision made under section 2(2) of the European Communities Act 1972, or of [EU law], which relates to the subject matter of an enactment within paragraphs (a) to (g)."
"The scheme of section 149 is to apply the PSED by reference to the functions of the relevant body. In the formulation of policy it does not matter, in my view, that the policy may have an impact wholly or partly outside Great Britain. The territorial limitations implicit in section 149(1)(a) follow the application of the substantive parts of the Act but otherwise there are no territorial limitations. …"
"It follows that, in the formulation of the Afghan Policy, the defendants should have had due regard to the matters identified in section 149(1)(b) and (c) of the 2010 Act. …"
"It is therefore appropriate to emphasise that the equality duty, in the context of an exercise such as a section 202 [Housing Act] review, does require the reviewing officer to focus very sharply on (i) whether the applicant is under a disability (or has another protected characteristic, (ii) the extent of such disability, (iii) the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is as a result 'vulnerable'."
"For the avoidance of doubt, the SSFCA does not accept that the Chagossians should be characterised as a distinct racial group for the purposes of section 9 of the EA 2010, although they were treated as such for the purposes of Ministers considering their obligations under the PSED. However, as was stated at the hearing before the Court in July 2018, for the purposes of this litigation only, the SSFCA is prepared to proceed on the assumption that the Chagossians do constitute a distinct racial group for the purposes of the present claim brought on the basis of the EA 2010. That concession was predicated on the fact that the SSFCA's consideration of the issue proceeded on the assumption that the PSED was engaged in this case."
Reference is made in footnote 66 to, for example, the NSC Annex covering the PSED at page 2482 (to which we will make reference later).
"As for the Resettlement Decision, the rights and interests of the Chagossians were at the forefront of Ministers' considerations. As a racial group, their interests were explicitly considered at every stage of the decision-making process. In circumstances where the raison d'étre of the Policy Review and the Resettlement Decision which followed was to consider the position of the Chagossians and take a decision on resettlement and non-resettlement options in relation to Chagossians, it is wrong to suggest that the SSFCA did not have 'due regard' to Chagossians as distinct from non-Chagossians."
"From the beginning of colonisation, the inhabitants of the Islands were only present because they were employed by owners or lessees of the land or were family members of such employees. The inhabitants did not own any land or houses and the owners/lessees had legal rights to remove and to refuse the return of those people."
"The Islands were uninhabited until the late 18th century. The French established coconut plantations using slave labour in 1793. After emancipation, many slaves became contract employees and remained on the Islands. They were then referred to as Ilois but are now usually known as Chagossians."
"… The last of the contract workers and their children left the Territory in 1972/73."
Successive British Governments have expressed regrets about the way resettlement was carried out.
"The Prime Minister directed that Government fully investigates the feasibility and implications of responding to Chagossian aspirations. Chagossians expressed their motivations for seeking resettlement in the recent public consultation as (re) connecting to a place they consider their 'homeland' …"
"In your consideration of the policy options, you have a duty under the Equality Act 2010 to have due regard to the need to advance equality of opportunity, and to foster good relations between different groups (on the basis of sex, age, race, disability and so on). You will need to take the detail of PSED annex into account, and consider further after a decision when we are at the stage of detailed policy formulation and implementation."
"… The Chagossians tend to present their views and wishes on a fairly united basis (within a few separate personal/political groupings), and officials are not aware of particular tensions or poor relations between persons with protected characteristics and those without."
"If a decision were taken in favour of resettlement, at the stage of detailed policy formulation and implementation there would be an opportunity for more detailed consideration of how these options could advance equality of opportunity and foster good relations between persons who share a protected characteristic and those who do not."
"At this stage of in principle consideration of the options, consideration has been given to the need to promote equality of opportunity for those with protected characteristics who have been historically disadvantaged in their local societies. This includes the elderly, women, and the disabled. One of the goals of the proposed development programmes is to improve life chances.
If a decision were taken in favour of non-resettlement options, at the stage of detailed policy formulation and implementation there would be an opportunity for more detailed consideration of how these options could advance equality of opportunity between persons who share a protected characteristic and those who do not.
Consideration could also be given to the need to foster good relations between those Chagossians who have been historically disadvantaged in local societies, and other Mauritians, and between Chagossians and non-Chagossians in other countries too."
i) He complained that the word "could" suggested there was some discretion rather than a duty to comply with section 149;
ii) The passage only referred to the duty to "foster good relations", in other words para. (c) and not para. (b) of section 149(2);
iii) It applied only to non-resettlement options.
Part XII: Issue 4: irrationality of the Resettlement Decision
Irrationality in the wider sense: the Claimants' case
Irrationality in the wider sense: analysis
Specific challenges to the decision not to resettle on the Outer Islands on the basis of incorrect information
"…a minister who reserves a decision to himself…must know or be told enough to ensure that nothing that it is necessary, because legally relevant, for him to know is left out of account. That is not the same as a requirement that he must know everything that is relevant….in CREEDNZ Inc v Governor General  1 NZLR 172 Cooke P drew the distinction…between things which are so relevant that they must be taken into account and things which are not irrelevant and so may legitimately be taken into account. It is axiomatically only a failure to take into account something in the former class that will vitiate a public law decision…."
"Implicit in this statement is the further proposition that the minister must not be given information which is misleading in one or more respects which are critical to his decision. It was always possible for the minister to put in evidence that he was not misled and took the decision on a proper factual basis; but in the absence of such evidence, the reasonable and sufficient inference will be drawn that the decision was made on a basis that was materially erroneous…"
"…That approach was, in my view, entirely appropriate for a supplementary piece of evidence of this kind, where officials did not consider that its content materially changed the options that were to be presented to Ministers. Its content was fed into the decision-making process, but our role as officials is to reduce a mass of evidence and data to an easily comprehensible but yet comprehensive format…"
"As important as cost is exposure of HMG to ongoing open-ended financial, social and legal liabilities from any resettlement. Even in the most favourable circumstances, it would not be possible to remove HMG responsibility for a new settlement….For the outer islands, there is some prospect of tourism, but it would require new infrastructure, governance and security on remote and low-lying islands…."
"Resettlement excluding DG: Not ODA eligible. Capital costs of £176m (500 people). Running costs of £14m/yr. US does not cite concerns, though airfield could only be used by HMG chartered flights for Chagossians, not tourists. Possibility of offsetting some costs through tourism. Pitcairn experience shows us inherent social risks in such fragile remote communities; new infrastructure means environmental damage likely."
"This option was effectively discounted as too risky in the independent KPMG study. Two settlements of up to 500 people in total would cost about £326m (non ODA-eligible) over 10 years. The outlying islands are very remote – 240km from Diego Garcia and 840km from the Maldives. They are low lying and very small, with existing infrastructure, and therefore vulnerable to rising sea levels. Niche tourism could be introduced to provide modest employment, but it would be risky and potentially non-viable, with HMG needing to underwrite any private investment. Provision of western standards of education, healthcare and governance would be impossible to guarantee, and DfID are convinced that there would be a high risk of social problems (as in eg Pitcairn)."
"Option B was resettlement on the Outer Islands excluding Diego Garcia. These islands were a five-hour boat trip from the US airbase. The largest was the size of Hyde Park which ruled out building a landing strip and the highest point was only 6 feet above sea level."
"Possible Runway Options
- The maps overleaf plot the approximate lengths..of a selected number of islands within Peros Banhos and Salomon Islands, such islands perhaps offering sufficient length and appropriate topography for a landing strip that could be serviced by either longer range jets or short haul propeller aircraft.
- The table below provides a quick summary of our high level assessment of the various options.
- Clearly all of the lengths and assessments summarised below would need to be verified by appropriately skilled and technically competent specialists in the aviation sector."
Failure to take into account alleged non-deliverability of the support package in Mauritius
"Just a reminder to all that any package here would need to be administered by the Mauritian Government, given the proposals we have considered in the past. In the current circumstances, [redacted] and an acceptance by the Mauritian govt that resettlement is impossible, I cannot see how we could get the Mauritian govt to do this. So it is not feasible as things stand to separate this potential package from any agreement with the Mauritian govt on the wider sovereignty dispute."
"10. There are nonetheless some risks to delivery of this package, the main one being that the programme in Mauritius could only be delivered through the Mauritian government and would therefore require their consent and co-operation, which might not be forthcoming while the sovereignty dispute continues. Given that elements of the package will likely need to be tailored to enhance education and health support in areas where there are high densities of Chagossians, their support will be critical, though it would also deliver broader benefits to Mauritius."
"The NSC provisionally agreed therefore on the third option of no resettlement with a support package which – following further policy work – is now suggested to amount to around £40million. This will support Chagossian communities in Mauritius, the Seychelles and the UK over the next 10 years….Officials will liaise with Chagossian Communities in the UK and overseas and work closely with the Governments involved to develop cost-effective programmes that make the biggest improvement in the life chances of Chagossians most in need. DfID will deliver the development aspects of this support package."
"It is important to note that we will require the cooperation of the governments of the Seychelles and [redacted] Mauritius to deliver this package in those locations. The FCO's announcement will make this clear…"
Part XIII: Issue 5: the consultation challenge
i) First, the extent of support for resettlement was diminished for Ministers as a result of the emphasis placed on the fact that only 25% of Chagossians favoured resettlement on the basis of realistic options and on an alleged neglect of the 67% who were in favour of resettlement but "not clear if content with realistic scenarios";
ii) Secondly and so Mr Fitzgerald submitted "more fundamentally", the basis of the claim that only 25% were in favour of realistic scenarios was flawed because the scenarios adopted were unrealistic and this was not explained to the decision makers;
iii) Thirdly, it was also represented that a further 63% were undecided on alternatives to resettlement, an assertion unsupported by any objective analysis of the consultation responses received.
The consultation process and presentation
"4. The primary objective of this consultation is to understand the demand for resettlement from Chagossians which will then lead to a clearer assessment of the likely costs and ongoing liabilities to the UK Government. Whilst no policy decisions have been taken on any aspects of resettlement, we wish to make it clear from the outset that a resettlement which is open to all may not be viable, depending on the cost of providing adequate social support, including health and education, for those living on such remote islands.
5. A resettlement could be based on conditions that require resettled Chagossians of working age to have a job; security clearances and that all resettlers are sufficiently resilient to be able to cope with the limited healthcare facilities and lifestyle realistically available in BIOT. Although yet to be determined, permission to reside could be revoked for individuals who are unable to meet these or other requirements following resettlement."
"13. The UK Government is continuing to analyse KPMG's three resettlement options of a pilot, medium and large resettlement as well as another medium size option on the Outer Islands only. The following table clarifies how, hypothetically, these resettlement options could work and the type of living conditions and jobs most likely to be available. It is important to note that these do not constitute any form of commitment by the UK Government to resettlement taking place, or in the forms below, but present our assessment of the most realistic scenario for the purposes of clearly assessing demand from Chagossians…."
i) "Are you interested in resettling in BIOT under the conditions in Table 1.0?" with possible answers "Yes/No/Undecided (please delete as appropriate)" ("the resettlement question");
ii) "Are there alternative options to resettlement that interest you?" with possible answers "Yes/No/Undecided (please delete as appropriate)" ("the alternative options question").
i) The UK Chagos Support Association;
ii) Chagos Conservation Trust;
iii) The Linnean Society;
iv) The Zoological Society of London;
v) M. Jean Lefade from France;
vi) Mr Jon Slayer;
vii) Chagos Island Community Association;
viii) Crawley British Chagossian Community;
ix) Dr Michael Woolf.
"Though the vast majority of Chagossians were in favour of resettlement in principle, there were more nuanced views about the scenarios that were presented in the consultation document as the most realistic description of how it might work."
"Responses from Chagossians indicated a degree of uncertainty about alternatives to resettlement while around a third were clear they would not wish to participate in such options."
…..Chagossians expressed their motivations for seeking resettlement in the recent public consultation as (re)connecting to a place they consider their "homeland", and to seek a better life that they perceive to exist there. It demonstrated high demand from the 832 who responded, though this was only 9% of the 9,000 global Diaspora. Expectations include access to jobs and services in a developed economy, and freedom of travel and visits. Demand drops to just 25% (204 of those responding) when faced with conditions considered realistic to BIOT."
"6. The FCO background paper and slides provide a good summary of the issues. In particular, Slide 1 summarises last year's public consultation. From the global diaspora of 9,000 Chagossians, there were only 832 responses (less than 10%). 77% of these were from Mauritius and the Seychelles, only 21% from the UK. Although 98% of the respondents expressed a desire to resettle, 60% are second generation Chagossians with no direct experience of life there, and only 25% expressed themselves content with the likely conditions of life in BIOT if they were to resettle."
"….Most Chagossians wishing to resettle have never been to the Islands, and only 25% appear to favour resettlement under what we would describe as realistic conditions, so it is possible that if resettled, many would subsequently leave."
"Any solution which is a substitute for resettlement will probably not be seen positively by Chagossians, or reduce the risk of litigation in the short term since only 8% of respondents to the consultation expressed positive interest in such options while a further 63% were undecided…"
"The public consultation on the resettlement of the Chagossians has concluded and the FCO have published the results. The results (from 844 people, roughly 10%) show that 67% are in favour of resettlement on BIOT in principle. A small number (8%) are interested in alternatives to resettlement, while 29% said they would not be interested, and the balance (63%) was undecided. It is clear that there is a divergence between the FCO proposed package and what the Chagossians want. Overall, the Chagossians displayed a mixed response to the consultation. Some were irritated having been asked again for their views, most believe that HMG is close to a decision, and the majority think that HMG is obliged to agree to resettlement because they have requested it."
The Claimants' challenges
"I very much wish to resettle in my Homeland for which purpose the reasonable conditions of life must be available, such as security of home and land, job/pension, reasonable and adequate social services, and the freedom to travel and be visited."
This did not reflect any of the assumptions set out in Table 1.0. Table 1.0, for example, had expressly stated that there would be no private ownership of land or pension provision by the Government.
"… seemed to us the best way to deal with the large number of ambiguous responses while still highlighting to Ministers the level of interest in resettlement. It sought to avoid any possibility that the level of interest might be understated."
"I assume others who know more about human rights issues will comment on the Options which have 18 year olds being forced to leave their home if they don't have employment but from a DfID point of view the reputational risks for HMG would be substantial."
i) 56% explicitly rejected the option;
ii) 24% were undecided;
iii) 10% expressed an interest.
Part XIV: Issue 6: the support package challenge
Evolution of the support package
Ms Hoareau's challenges
"DFID officials continue to expect Seychelles to graduate from ODA eligibility in 2017, effectively preventing DFID from any support for the 1000 Chagossians living there. FCO have been made aware of this and the probable need for them to bid to the CSSF [the Conflict, Stability and Security Fund] for the non-ODA required for any support to Chagossians in Seychelles. Which Whitehall Department should manage this part of the overall support package is still to be agreed."
Part XV: Conclusion