The admissibility of the cable

10. I will take this issue first. In order to give some context to articles 24 and 27(2), the whole of articles 24, 25 and 27 of the Vienna Convention on Diplomatic Relations are set out:

11. The submissions on inviolability under these provisions range widely. They cover the nature of the archive, its location, the circumstances in which material originating from the archive may continue inviolable and the reach of the concept of inviolability itself. As to the nature of the archive, Professor Denza concludes in Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations (4th ed) (2016), at p 161, that, instead of trying to list all modern methods of information storage, “it is probably better simply to rely on the clear intention of article 24 to cover all physical items storing information”. Writing jointly in Satow's Diplomatic Practice (7th ed, edited by Sir Ivor Roberts) (2017), at p 238, para 13.31, Professor Denza and Joanne Foakes, former Legal Counsellor to the Foreign and Commonwealth Office, say, after noting that the term “archives” is not defined in the 1961 Vienna Convention:

That can be readily accepted, as can be the proposition that copies taken of documents which are part of the archive must necessarily also be inviolable.

12. As to location, Mr Kovats on behalf of the respondent points to the words “at any time and wherever they may be” in article 24, and to commentaries by Professor Eileen Denza in her work, cited above, pp 158-159, and by Professor Rosalyn Higgins (as she then was) in Problems and Process: International Law and how we use it (OUP) (1995), pp 88-89. Professor Denza observes that the words quoted mean “that archives not on the premises of the mission and not in the custody of a member of the mission are entitled to inviolability”, and that:

Professor Higgins wrote:

Again, so long as the document can be said to constitute part of the archive, a point to which I shall return, these statements appear not only authoritative in their sources, but convincing. As will appear, they also receive support from Shearson Lehman Bros Inc v Maclaine, Watson and Co Ltd; International Tin Council (Intervener) (No 2) [1988] 1 WLR 16. That is the House of Lords judgment in the Tin Council case, to the first instance decision in which Professor Higgins referred. The House in that case on any view accepted that there were some circumstances in which a document which was part of an archive, but for some reason no longer physically within the archive, remains inviolable.

13. This brings me to the circumstances in which material originating from the archive may continue inviolable and the reach of the concept of inviolability itself. The appellant, whose case on this aspect was presented by Professor Robert McCorquodale, submits that the word “inviolable”, read in the context of the Convention, does not embrace inadmissibility. In his submission, the concept is directed at some degree of interference, of a more or less forceful nature, and this limited sense is the only sense which applies in all the places where the concept is deployed. The submission corresponds with the approach taken by the Court of Appeal, which picked up the characteristically trenchant view of Dr F A Mann, that

See “‘Inviolability’ and Other Problems of the Vienna Convention on Diplomatic Relations in Further Studies in International Law, (1990) pp 326-327 and also [1988] 104 LQR, p 178. But Professor McCorquodale's submission does not allow for the fact that a concept may embrace different shades of meaning according to the particular context in which it is deployed.

14. The meaning of inviolability in the context of use of archive material in evidence was in fact the very subject of the House of Lords judgment in the Tin Council case. The issue arose there under article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972, whereby it was provided:

The Tin Council intervened in civil proceedings between private parties, relying on article 7(1) as rendering inadmissible various documents that the parties were proposing to adduce in evidence.

15. The House was in these circumstances asked to address the operation of article 7(1) on various “Agreed Assumptions of Fact” set out in a document so entitled. One such assumption was that a Tin Council document was supplied to a third party by an officer or other staff member of the Tin Council without any authority. Mr Kentridge QC submitted that article 24 of the Vienna Convention and article 7(1) of the 1972 Order only afforded protection against executive or judicial action by the host state, so that, “even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence”. Lord Bridge, giving the sole fully reasoned judgment in the House, rejected this submission, saying (p 27F) that:

16. The House went on to limit this to circumstances in which the third party receiving the document was aware of the absence of any authority to pass it to him (p 29B-C). To a limited extent therefore, the Tin Council succeeded in establishing that its documents would have inviolability, precluding their use in civil proceedings. This was part of the ratio of the House of Lords’ decision, as appears at p 31D-E, even though Lord Bridge went on to add that “In the event the rejection of that [Mr Kentridge's] argument turns out to be of minimal significance in the context of the overall dispute”.

17. The Canadian case of Rex v Rose An Dig 1946, Case No 76, p 161 was cited to the House in the Tin Council case, but not referred to by Lord Bridge in his judgment. Rose was convicted of furnishing secret material to the Soviet Embassy in reliance on documents stolen from the Embassy archive by a defector. Rose's claim that the stolen documents used against him were immune from use was rejected, on the grounds that such a claim

The absence of inviolability in cases where state security is involved has a pedigree going back to the extraordinary Cellamare conspiracy in 1718 by Antonio dei Giudice, Prince of Cellamare and Ambassador of Spain to France, to kidnap and depose Philippe d’Orléans, Regent of France, and replace him as Regent by Philip V of Spain: see Martens, Causes célèbres du droit des gens, I, p 149. Rex v Rose is nonetheless controversial, and, more importantly for present purposes, neither of the grounds on which it rests applies to this case.

18. In his LQR article, cited above, Dr Mann was taking direct issue with the House of Lords’ rejection in the Tin Council case of Mr Kentridge's submission. The Court of Appeal was in my opinion bound to reject Dr Mann's analysis, and I see no reason for adopting it. I also consider that the Court of Appeal was incorrect to identify Dr Mann's analysis as representing the weight of opinion (para 64). Professor Denza says, at p 189, that:

Professor Jean Salmon of The Free University, Brussels, describes F A Mann's view as regards article 27(2), in Further Studies in international law (OUP) (1990), p 226, as “une vue trop restrictive de l’inviolabilité”: Manuel de Droit Diplomatique (1994), p 244. The quotation from Professor Higgins, set out in para 12 above does not fit well with Dr Mann's approach. S E Nahlik, Development of Diplomatic Law, Selected Problems, 222(III) Recueil des Cours (1990), 291-292 and B S Murty, The International Law of Diplomacy: The Diplomatic Instrument and World Order (1989) at p 382 comment critically on Rex v Rose, while J Wouters, S Duquet & K Meuwissen, The Vienna Conventions on Diplomatic and Consular Relations (OUP, 2013) at para 28.4.5.1 state, citing Professor Salmon, that:

19. In Fayed v Al-Tajir [1988] QB 712 the de facto head, later Ambassador, of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. For unclear reasons diplomatic immunity was waived, but the question remained whether the document could be used in court. The Court of Appeal held that the document enjoyed immunity from use, and the dispute was non-justiciable. Kerr LJ noted at p 736C-E that the judge in Rex v Rose had concluded that diplomatic documents generally enjoyed “inviolability”, so anticipating the use of that term in the Vienna Convention, and that he had expressed the concept of “inviolability” at p 646 in wide terms:

Kerr LJ also noted that this conclusion was supported by Denza on Diplomatic Law (1976), p 110. At p 736F-G, he distinguished the actual decision in Rex v Rose as having been reached on the basis that a citizen could not invoke immunity in litigation with his own government and on the basis of the principle said to derive from the Cellamare conspiracy, neither of which bases had any relevance in Fayed v Al-Tajir.

20. In principle, therefore, inviolability of documents which are part of the mission archive under articles 24 and 27(2) extends to make it impermissible to use such documents or copies in a domestic court of the host country, at any event absent extraordinary circumstances such as those of the Cellamare conspiracy or Rex v Rose and absent express waiver of the inviolability by the mission state. But the application of this principle to any particular document is subject to two qualifications. First, the document must constitute or remain part of the mission archive, and, second, its contents must not have become so widely disseminated in the public domain as to destroy any confidentiality or inviolability that could sensibly attach to it. These two qualifications may sometimes, but certainly not always, coincide. Taking the first, in the present case, there is no indication from where the Wikileaks document emanates, but there is no suggestion that it is likely to have emanated from the United States Embassy in London. It was sent both to the State Department in Washington and elsewhere. There is no indication that the United States Embassy in London attached any reservation to or placed any limitation on the use or distribution of the cable by the State Department or any other authority to whom the cable went. The cable was simply classified as Confidential. In these circumstances, once the document reached the State Department or any other addressee, it was, so far as appears and in the form in which it was there held, a document in the custody of the Federal Government of the United States or that other authority, and not part of the London Embassy archive. Bearing in mind the probability that the Wikileaks cable was extracted from the State Department or some other unknown foreign location to which it had been remitted for information and use there, it is not therefore established, even as a matter of probability that the cable remained part of the archive of the London mission, when it was so extracted. On that simple basis, the Wikileaks cable was available for use and admissible as evidence of its contents in the present proceedings. I therefore arrive as the same conclusion on this point as the Court of Appeal, albeit for different reasons.

21. Taking, second, the possibility of loss of inviolability due to a document from the mission archive coming into the public domain, I have come to the conclusion that this must in principle be possible, even in circumstances where the document can be shown to have been wrongly extracted from the mission archive. Whether it has occurred in any particular case will however depend on the context as well as the extent and circumstances of the dissemination. That seems to me to follow by analogy with the reasoning concerning the protection afforded by the law to confidential material (as opposed to that afforded on grounds of privacy and/or human rights) in cases such as Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 and PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] AC 1081, see also Passmore on Privilege, paras 7-039 and 7-042. In the present case, the cable has been put into the public domain by the Wikileaks publication and the newspaper articles which followed, in circumstances for which the appellant has no responsibility. In my opinion, the cable has as a result lost its inviolability, for all purposes including its use in cross-examination or evidence in the present proceedings. On that ground, I would therefore reach the same conclusion as the Court of Appeal expressed in para 64 of its judgment.

The allegation of improper purpose

22. On the above basis, the question arising is whether the Court of Appeal was right to conclude that the Administrative Court's ruling that the cable was not available for use or admissible had no material effect on the proceedings and was not a ground for allowing the appeal. The Court of Appeal, after reviewing all the material available, including the cable, the evidence given and the Administrative Court's findings, concluded (para 93) that

A little earlier in its judgment, in para 89, the Court said that it did “not accept that there is a realistic possibility that the [Administrative Court's] assessment of the evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had been formally admitted as an authentic document”; that in reaching this conclusion, it had “borne in mind the need to exercise caution in denying relief on the ground that the legally correct approach would have made no difference to the outcome”; but that it was “satisfied that the admission of the cable in evidence would have made no difference”.

23. Before the Supreme Court, criticism was directed at the Court of Appeal for formulating its conclusions in terms of what “would”, rather than “could” have made a difference. Reference was made to well-known authorities on the test applicable in cases of breach of natural justice (or unfairness) by public authorities, including Malloch v Aberdeen Corpn [1971] 1 WLR 1578 and R (Cotton) v Chief Constable of the Thames Valley Police [1990] IRLR 344, paras 59-60, per Bingham LJ. Reference was also made to the discussion, without decision, on the test applicable on an application to the Supreme Court to set aside a prior judgment of its own in Bancoult (No 4), cited in para 1 of this judgment. The precise test must depend on the context, including, in particular, how well-placed the court is to judge the effect of any unfairness. In the present case, the complaint is of lack of opportunity for full cross-examination and for the trial court to weigh the evidence it heard in the light of the cable, treating the cable as admissible. In these circumstances, I am prepared for present purposes to accept that the appropriate question is whether the admission of the cable for use in these ways could have made a difference. However, I also consider that this is in substance how the Court of Appeal approached the issue. The conclusion it reached (see para 22 above) was that there was no

Its statement at the end of para 89 that “the admission of the cable in evidence would have made no difference” must be read, in context, as a shorthand resumé of this conclusion. A conclusion that there was no realistic possibility that the assessment would have been affected amounts, in substance, to a conclusion that the admission of the cable could not realistically have made a difference. Nonetheless, it is incumbent upon the Supreme Court to consider for itself whether the Court of Appeal erred in reaching that conclusion.

24. The Administrative Court undertook in paras 53 to 77 of its judgment a full and careful review of the genesis and development of and decision to announce the MPA and a no-take zone, which the Court of Appeal accurately summarised as follows:

• “75. … The catalyst for making the MPA was a proposal made in July 2007 by an American environmental group, Pew Environmental Group, to Professor Sheppard, the environmental adviser for the BIOT. On 5 May 2009, Mr Roberts submitted a briefing note to the Secretary of State which explained the benefits of the proposal. These included that, because of the absence of a settled population and the strict environmental regime already in force, the BIOT was one of the few places in which a large scale approach to conservation was possible; and it offered great scope for scientific and climate change research. The Secretary of State's reaction was enthusiastic. His private secretary emailed Mr Roberts to say that the Secretary of State was ‘fired up’ after the meeting and ‘enthusiastic to press ahead’ with the proposal.

• 76. This was followed by a meeting to discuss the proposal with US Embassy officials on 12 May 2009. This is the crucial meeting the gist of which was purportedly summarised in the copy cable dated 15 May 2009. Both Mr Roberts and Ms Yeadon attended the meeting and were cross-examined about it. Mr Roberts denied making any reference to ‘Man Fridays’. He said that he recognised that the declaration of an MPA, if ‘entrenched’, would create a serious obstacle to resettlement. Ms Yeadon also denied that Mr Roberts had used the words ‘Man Fridays’ or that he had said that establishing a marine park would put paid to resettlement claims. The Divisional Court said (para 61) that it found Ms Yeadon to be ‘an impressive and truthful witness’. Having referred to an important note of a meeting held on 25 March 2009, the court said at para 63: ‘as Ms Yeadon understood, at official level, HM Government regarded the resettlement issue as settled by the 2004 Order, subject only to the pending decision of the Strasbourg Court’ (this is a reference to the claimant's application which was eventually dismissed by the ECtHR on 20 December 2012: see para 7 above).

• 77. By a note dated 29 October 2009, Ms Yeadon proposed to Mr Roberts and the Secretary of State that consultation on the proposal to declare an MPA be launched on 10 November. Under the heading ‘Risks’, she noted that the risk of an aggressive reaction from the Chagossians and their supporters was high and said: ‘they may claim that we are establishing a Marine Protected Area in order to ensure that they can never return to BIOT. This is not the case …’ The court said (para 65) that it was ‘satisfied that in this passage Ms Yeadon again stated what she genuinely believed: that the proposal to establish an MPA was not to ensure that the Chagossians could never return.’

• 78. In a note dated 30 March 2010, Ms Yeadon proposed that the Secretary of State should publish the report on consultation and declare his belief that an MPA should be established, but only after further work had been done. There followed a flurry of emails between officials. The Secretary of State did not accept Ms Yeadon's advice. On 1 April, he announced the creation of an MPA in the BIOT which included a ‘no take’ Marine Reserve where commercial fishing would be banned. Mr Roberts duly made the proclamation on 1 April.

• 79. The Divisional Court expressed its conclusion on the improper motive point in these terms:

  • ‘74. This material makes it clear that it was the personal decision of the Foreign Secretary to declare an MPA on 1 April 2010, against the advice of his officials. There is no evidence that, in doing so, he was motivated to any extent by ‘an intention to create an effective long-term way to prevent Chagossians and their descendants from resettling in the BIOT’. His Private Secretary could hardly have written on 7 May 2009, the day after the presentation of the proposal by Professor Sheppard to him, that he was ‘really fired up about this’ if the proposal was presented as a cynical ploy to frustrate Chagossian ambitions. It is obvious that he was responding to a proposal presented by a man, Professor Sheppard, who was keen to see it adopted and put into effect for scientific and conservation purposes only. Later, on 31 March 2010, when the Foreign Secretary made the decision to go ahead immediately, the decision had nothing to do with Chagossian ambitions. The decision to override official advice can best be understood in the political context: Parliament was about to be dissolved. The Foreign Secretary no doubt believed that the decision would redound to the credit of the Government and, perhaps, to his own credit. It would do so the more if a decision with immediate effect was taken. Officials thought that this would create difficulties but it was the Foreign Secretary's prerogative to override their reservations and make the decision which he did. There is simply no ground to suspect, let alone to believe or to find proved, that the Foreign Secretary was motivated by the improper purpose for which the claimant contends.

  • 75. It is significant that the Foreign Secretary's announcement contained the caveat which always accompanied public and private statements by officials: that the decision was subject to the pending judgment of the Strasbourg Court. Unless there was some deep plot to frustrate an adverse judgment, of which there is no evidence at all, this fact alone demonstrates that no sensible official in the FCO could have believed that the establishment of an MPA would fulfil the improper purpose alleged. Nor could it have done. The proclamation made by Mr Roberts on 1 April 2010 stated that:

    ‘The detailed legislation and regulations governing the said Marine Protected Area and the implications for fishing and other activities in the Marine Protected Area and the territory will be addressed in future legislation of the territory.’

    The only step taken since then has been to allow fishing licences current at 1 April 2010 to expire and to issue no more. What prevents the return of Chagossians to the islands is the 2004 Order, not the MPA. If, at some future date, HM Government decided or was constrained by a judgment of a court to permit resettlement or the resumption of fishing by Chagossians, nothing in the measures so far taken would prevent it or even make it more difficult to achieve.

  • 76. For the claimant's case on improper purpose to be right a truly remarkable set of circumstances would have to have existed. Somewhere deep in government a long-term decision would have to have been taken to frustrate Chagossian ambitions by promoting the MPA. Both the administrator of the territory in which it was to be declared, Ms Yeadon, and the person who made the decision, the Foreign Secretary, would have to have been kept in ignorance of the true purpose. Someone - Mr Roberts? - would have been the only relevant official to have known the truth. He, and whoever else was privy to the secret, must then have decided to promote a measure which could not achieve their purpose, for the reasons explained above, while explaining to all concerned that the MPA would have to be reconsidered in the light of an adverse judgment of the Strasbourg Court. Those circumstances would provide an unconvincing plot for a novel. They cannot found a finding for the claimant on this issue.’

• 80. In order to test Mr Pleming's submission that the effect of the Divisional Court's ruling was to deprive him of the opportunity of properly testing the evidence of the witnesses, it is necessary to see what cross-examination he was able to undertake. During day 1 and day 2 of the hearing, Mr Pleming cross-examined Mr Roberts extensively about the meeting of 12 May 2009 by reference to various documents, including the cable. Although Mr Roberts was not prepared to answer questions as to whether the contents of the cable were accurate (because of the NCND policy), nevertheless he answered questions as to what he might or might not have said at the meeting: see day 1 pp 155 to 169 and day 2 at pp 9 to 41. Mr Pleming confirmed to the court that his general purpose in cross-examining on the cable, paragraph by paragraph, was to establish its general accuracy by reference to relatively uncontroversial passages in it.

• 81. Despite his repeated reliance on the NCND policy, Mr Roberts gave extensive evidence of what was discussed at the meeting on 12 May. For example, in relation to one passage from the cable, he said: ‘I can confirm that the general content and sense of the issues that you have just read out is consistent with the discussion we were having with the United States at the time’. In relation to another passage, he said: ‘I don’t recall what language I would have used at the time but it would have been consistent with the general position that we were trying to set out to the United States’.

• 82. At p 36 on day 2, Mr Roberts accepted that he did say to the US officials that the establishment of an MPA would in effect put paid to the resettlement claims. He said that this was ‘a recognition of a reality’ that, if the MPA was ‘entrenched’ (ie a law which would be impossible or difficult to repeal), this would be a ‘serious obstacle to resettlement’. He denied that he had said anything about ‘footprints’ or ‘Man Fridays’: ‘that was not the nature of the conversation’. Mr Pleming sought to persuade the court to give a ruling as to whether Mr Roberts should be required to answer questions about the accuracy of the contents of the cable. Mitting J asked whether it was necessary to have this debate, since Mr Roberts had accepted that a consequence of establishing an MPA would be that the hopes of the Chagossians to return would be thwarted. Richards LJ was not sure how much more Mr Roberts could say. He had indicated why he declined to answer the ‘ultimate’ question; but he had answered all the ‘intermediate’ questions.

• 83. The court did not make any final ruling at this stage and Mr Pleming continued with his cross-examination of Mr Roberts by reference to the cable: see day 2 pp 78 to 80. He put it to Mr Roberts that his purpose was to use the MPA to prevent or kill off the claims for resettlement; and that this policy ‘shines out of the record of that meeting and is not a policy you would want to put in written form so that it could ever be seen by the Chagossians or in any litigation’. Mr Roberts replied: ‘No, I reject that suggestion entirely. I do not believe it is possible to keep a policy of that significance quiet.’”

25. It is worth underlining some points about the history which arise from this account. First, the whole idea of an MPA and a no-take zone was generated by independent environmental activity. An American environmental group, Pew, made the initial proposal to Professor Charles Sheppard, BIOT's independent environmental adviser, in July 2007. This led on 22 April 2008 to discussions between Pew and Ms Yeadon about the creation of an MPA, in which there would be a no-take zone. On the same day, the Chagos Conservation Network, whose founders included Pew and Professor Sheppard, held its inaugural meeting at the Linnean Society, and expressed the view that there should be a no-take zone within BIOT waters. On February 2009, The Independent reported in an article that the Chagos Conservation Trust, the RSPB, the Zoological Society of London and Pew were launching a plan for an MPA, which would be compatible with defence interests and would offer a possibility that some Chagossians might return as environmental wardens; a marine biologist from York University was reported as describing the attitude of the British government towards the Chagos Islands up to that time as “one of benign neglect”; and the British government itself was reported as saying it would “work with the international environmental and scientific community to develop further the preservation of the unique environment”. (The Mauritian government's response to this article was that the Chagos Islands were under its sovereignty, so that its consent would be required.)

26. Second, it is clear that, from the outset, the relevant decision-maker was to be the Secretary of State for Foreign and Commonwealth Affairs, Mr David Miliband, in person, not the civil servants who were directly or indirectly reporting to or advising him. Mr Miliband was first briefed on the idea of an MPA by a six and a half page note from Mr Roberts dated 5 May 2009. This was in terms to which no objection is or could be taken, and was followed up by a meeting with Mr Roberts and Professor Sheppard. The note identified and examined the “numerous benefits” and “wide range of potential beneficiaries” of an MPA. The benefits fell under the heads of conservation, climate change, scientific [research], development, reputational/political and security (the last being explained by Mr Roberts in a witness statement dated 1 May 2012 as relating to control of illegal, unregulated and unreported fishing). The note went on to examine risks. In that connection, it identified Mauritian sovereignty claims and “a side deal done at the time of excision which gave Mauritius the right to apply for fishing licences free of charge”, the Chagossian movements and the US military. The US military were not thought likely to oppose, and the note expressed confidence that reassurances could be given that they would not experience any rise in the security risk, impediment to freedom of manoeuvres or significant increase in environmental regulation.

27. In relation to the Chagossian movements, the note said:

28. It is not suggested that this note was other than an objective assessment of the proposal, or that it contains or suggests any improper motivation. As the Administrative Court stated (para 77), the only “collateral” factor relating to Chagossian ambitions which it shows is that the proposal might, in various ways, permit the Government to “calm down the resettlement debate” and attract support for the Government's position from the environmental lobby. The Administrative Court went on:

That remains the position before the Supreme Court.

29. The note was followed up by a meeting between the Secretary of State, Mr Roberts and Professor Sheppard, which was on the evidence principally devoted to a slide show by Professor Sheppard showing the environmental benefits of an MPA. As a result of the note and meeting, Mr Miliband was “fired up” by the proposal and “enthusiastic to press ahead”.

30. Thirdly, the meeting a week later between Mr Roberts, Ms Yeadon and representatives of the United States Embassy was aimed at briefing a United States counsellor (Mr Richard Mills) interested in knowing more about the Chagos Islands position, no doubt as it related to the United States concerns identified in the note dated 5 May 2009. In his initial summary in para 1 of the cable, its author recorded Mr Roberts as saying that

The ensuing paragraphs included the following:

The final paragraph of comment included this:

31. Accepting the Wikileaks memorandum as a genuine record of the meeting, it must be seen in that context. What would have concerned the United States were the consequences of an MPA, not the motivation. Further, the opening and the final two paragraphs are evidently comment or attempted summary by Mr Mills, while it is the intermediate paragraphs that purport to record the actual course of the discussion. In the case of The Guardian report of the cable, the intermediate paragraphs have interposed what are evidently journalistic captions. I note at this point Lord Kerr's suggestion (paras 84 and 86) that US military needs provided no reason for Mr Roberts and Ms Yeadon to assure the Americans, or ask them to confirm their requirement, that no resettlement would occur elsewhere in the BIOT. The “obvious question” which Lord Kerr considers to arise in this regard was not raised before the Supreme Court. But the answer is clear. The original exchange of notes between the United States and United Kingdom in 1966 provided that all of the BIOT be “set aside for defence purposes” and that any significant change of the BIOT's status that could impact the BIOT's strategic use would require US consent. Hence also, Mr Roberts’ statement in this connection in his note dated 5 May 2009 that

Lord Kerr himself says in para 88 that the theme that “… the MPA would prevent any resettlement of the islands … certainly preoccupied the Americans” in May 2009.

32. In November 2009 a consultation was launched in respect of the proposal. The motivation for the proposal was explained as being environmental and scientific, and various options were presented for public consideration. The consultation process ended in early March. The proposal then returned to the political arena, where the same picture of independent decision-making by the Secretary of State emerges as nearly a year before. This concluded with Mr Miliband instructing Mr Roberts as Commissioner for BIOT to issue Proclamation No 1 of 2010 (para 2 above), and with an FCO statement dated 1 April 2010 to the effect that “This will include a ‘no-take’ marine reserve where commercial fishing will be banned”.

33. More specifically, the events leading to this decision were as follows. A submission dated 30 March 2010 from Ms Yeadon had discussed how best to progress the proposal. In it, Ms Yeadon pointed to likely opposition and possible international moves by the Mauritian government and advised that, rather than any immediate decision, more time should be taken to work through the various issues and a positive, but not definitive, announcement should be made. However, at 18.06 on the same day, Mr Miliband's office informed Ms Yeadon that Mr Miliband's “inclination [was] to be bolder” and actually to decide to go ahead.

34. At 8.30 next morning, Mr John Murton, at that time, it appears, the British High Commissioner in Mauritius, commented that he had no idea whether Mr Miliband would follow the recommendations of the day before, but that, if he went for the MPA immediately, they would face problems. Shortly before 11.47 next day, Mr Miliband's office informed Ms Yeadon by telephone that Mr Miliband was minded to ask Mr Roberts to declare an MPA and a full no-take zone, that no final decision has yet been taken, and that he would like to find some way of mitigating the Mauritian reaction. An internal email reaction by Mr Roberts at 12.07 proposed to give Mr Miliband “a clearer steer”. This led to an immediate rejection by another civil servant, Mr Andrew Allen, who at 12.31 stated his view that “this approach risks deciding (and being seen to decide) policy on the hoof for political time-tabling reasons rather than on the basis of expert advice and public consultation” and was a very different approach to the one recommended the day before, which Mr Miliband was still considering. The reference to political time-tabling is a clear reference to the general election due not later than five years after 5 May 2005, and in fact announced on 6 April 2010 for 6 May 2010. Mr Allen's view was endorsed by Mr John Murton at 12.45, with the additional comment that - while “Obviously the Foreign Secretary is free to make whatever decision he chooses” - “to declare the MPA today could have very significant negative consequences for the bilateral relationship” with Mauritius, where an announcement of general elections was also expected, that same day, where ministers were uncontactable as a result and where the prime minister “would greatly resent our timing”. Mr Murton thought that “there might be a market for a proposal to work with Mauritius as a privileged partner on management issues etc prior to a final decision on an MPA”. These exchanges led to the preparation of a further note from Ms Yeadon addressed to Mr Roberts, and, when finalised, evidently also forwarded to the Secretary of State. The note reported the views expressed and repeated the previous day's recommendation against any rapid decision.

35. Mr Miliband did not accept the advice tendered on 30 and 31 March 2010. He said he had carefully considered it and given serious thought to the different possible options. But his decision was to instruct Mr Roberts to declare the full MPA on 1 April 2010.

36. In these circumstances, the present issue can be approached, as the courts below have done, at two different levels. The first involves considering whether there is any real likelihood or risk that the Administrative Court's assessment of Mr Roberts’ and/or Ms Yeadon's motivation would have been different if the Administrative Court had permitted further cross-examination on the Wikileaks memorandum and had accepted that memorandum as evidence of what its contents purport to record. The second is whether there is any real likelihood or risk that any improper motivation on the part of Mr Roberts and/or Ms Yeadon affected the ultimate decision-maker (Mr Miliband) or his decision.

37. As to the first level, the Administrative Court heard both Mr Roberts and Ms Yeadon being cross-examined on the most important passages of the cable, particularly the summary in the first and last paragraphs and the purported recital of actual discussion in para 7. Mr Roberts accepted that he said words to the effect that it was governmental policy that there should be no human footprint on the Chagos Islands (other of course than Diego Garcia), embracing within that term absence of scientific or wardens’ offices, temporary workers as well as resettlement. He accepted that he had said that establishing an MPA would in effect put paid to resettlement claims, but explained that this was recognition of a reality that the Chagossians themselves had originally raised and that it only related to an MPA “entrenched” by law. He said that entrenchment was in the event never pursued, and that the proposal for an MPA was at the time always subject to the outcome of the proceedings in Strasbourg. Ms Yeadon on the other hand denied that Mr Roberts had said that establishing an MPA would in effect put paid to resettlement claims. Resettlement was, in her view, already precluded by the 2004 Order (subject only to the pending decision of the Strasbourg Court), a point on which the Administrative Court accepted her evidence, finding it to be supported in a note of a meeting of 25 March 2009 between Mr Roberts, Ms Yeadon and a Chagossian delegation including the appellant and their solicitor, Mr Gifford. Both Mr Roberts and Ms Yeadon were adamant that Mr Roberts had not used, and would never have used, the highly emotive words Man (or Men) Fridays.

38. The first tier question in these circumstances is whether further cross-examination might have led to more material favourable to the appellant's case of improper motivation on the part of Mr Roberts and/or Ms Yeadon and whether admission of the cable in evidence to counterbalance the evidence of Mr Roberts and Ms Yeadon might have led the Administrative Court to accept that either or both was, when advancing the proposal for an MPA, improperly motivated by the desire to prevent resettlement.

39. As to this question, the “extensive” evidence given by Mr Roberts about the meeting on 12 May and Ms Yeadon's own evidence give a picture which is generally and substantially consistent with that presented by the cable. In my opinion, Lord Kerr's references to an account or statements “inconsistent with”, or “directly contrary to” or “flatly contradict[ing]” or “in obvious conflict” (paras 91, 92, 94 and 107) are not borne out by comparison of the evidence and the cable. That too was how the Court of Appeal evidently saw the position: see its paras 80 to 82 quoted in para 24 above; and see also para 37 above.

40. When it came to considering whether the Foreign Office representatives had some ulterior motive in their proposal for an MPA, the Administrative Court was also impressed by the evidence of Mr Roberts and Ms Yeadon. It is true that it did not directly address the contradiction between their evidence on the question whether Mr Roberts had said that an MPA would put paid to resettlement. But it accepted that a wish to preclude resettlement was not part of Ms Yeadon's motivation, because she regarded resettlement as off the table anyway as a result of the 2004 Order, and it must also have accepted Mr Roberts’ evidence that what he was explaining to the United States counsellor was the practical consequences of an MPA, which is what would have been of interest to Mr Mills, rather than its motivation. It is difficult to see what further cross-examination by reference to Mr Mills’ memorandum could have achieved. It is also difficult to think that admission of the memorandum, without more, would have outweighed the impression which the Court obtained from the oral evidence it heard. The memorandum is at the very lowest ambiguous as to whether the references to resettlement were uttered in circumstances indicating that they had a role in motivating the proposal for an MPA. On the face of it, it seems very unlikely that a British civil servant would have disclosed an improper motivation of this nature, rather than have been outlining the practical consequences of an MPA which is what would have concerned the Americans.

41. It is equally difficult to think that the Administrative Court could have concluded, by reference either to further cross-examination or to the cable itself, that Mr Roberts in fact used the phrase “Man Fridays”, which he and Ms Yeadon adamantly denied that he would ever have used. The phrase had already had considerable currency, including in court judgments, and was well-known known in British circles as infamous. Lord Kerr in para 97 notes the Court of Appeal's reference in para 82 of its judgment to the fact that Mr Pleming QC was not permitted to put to Mr Roberts the “ultimate question”. This the Court of Appeal identified as being whether the cable was accurate, before continuing “but Mr Roberts had answered all the ‘intermediate’ questions”. Lord Kerr treats the ultimate question as being “whether [Mr Roberts] had an explanation for the fact that he was recorded as having made certain statements which he denied having uttered”. However, as to this, Mr Roberts was not party to the cable, and had, by his answers to the “intermediate” questions, given the only explanation that he could be expected to give about any differences, namely that the cable was wrong. Even more importantly in this connection, it is difficult to see that the Administrative Court could have been assisted in its task on the central issue, even if it had concluded that the phrase “Man Fridays” was used.

42. In these circumstances, I do not consider that it has been shown that the Court of Appeal erred in concluding that neither further cross-examination on the cable nor the cable itself, if admitted as evidence, would have led to any different outcome before the Administrative Court. Assuming that the test should be whether this could realistically have led to any different outcome, the answer would still, in my opinion, be negative.

43. Let me assume however that this is wrong, and that Mr Roberts and/or Ms Yeadon did have and voice to the United States Embassy officials an illegitimate motive for the proposal for an MPA. The second level question then arises whether there is or can be any conceivable basis for thinking that this affected the ultimate decision-maker, Mr Miliband, or his decision. In my opinion, the answer to this is even more clearly in the negative. The Administrative Court's conclusion in para 74, summarised in para 91 of the Court of Appeal's judgment was that it was clear that

and that this

44. The documentation and exchanges available all show that the proposal was put up by civil servants to the Secretary of State. Bearing in mind its nature and context, this was bound to occur. It was put up in appropriate terms without any suggestion of any improper motive, both initially in May 2009 and ultimately in March 2010. The documentation and exchanges also show that he made his decision of 31 March 2010 on that basis, against his civil servants’ recommendation to give the proposal further thought and attention. Any suggestion that further cross-examination of Mr Roberts and/or Ms Yeadon or the admission of the cable as evidence of its contents might have led the Administrative Court to conclude that Mr Miliband was motivated in his enthusiasm, not by his assessment of the merits of the proposal as such, but by extraneous considerations relating to a desire to make return difficult for the Chagossians, finds no basis in the documentation or exchanges and has to my mind no plausibility at all. There is no basis whatever for impugning Mr Miliband's motivation. There is in particular no basis for suggesting that he may have connived at or joined with Mr Roberts and/or Ms Yeadon in a collusive exercise of documenting an objective-decision making process, while at the same time pursuing and concealing an illicit agenda.

45. The final matter for consideration on this basis is whether any relevance could attach to improper motivation on the part of one or more civil servants, when there is no indication whatever that it shaped or in any way influenced ministerial thinking. The answer must in my opinion be negative. If the Secretary of State as the ultimate decision-maker, the actual decision-making process and the decision were unaffected by an improper motive held by a civil servant, on a proposal bound because of its significance to be put up to the Secretary of State, the decision can and should stand by itself. That would on all the evidence be the present position, even if one assumes that the cable discloses, or would if deployed have led to a conclusion, that there was, some improper motivation on the part of Mr Roberts and/or Ms Yeadon in (or after) May 2009.

46. Mr Pleming QC submits that an opposite conclusion flows from a form of reconfiguration of the principle in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, and that the Secretary of State can be “fixed with the knowledge, motives and considerations of … civil servants when relying on them unless he proves otherwise”. The problem with that submission is that, even if one or more civil servants had improper motives or considerations in mind, Mr Miliband did not rely on any decision or conduct of those civil servants to which such motives and considerations had any relevance. The relevant civil servants were, as stated, bound to put the matter before the Secretary of State. They did so in proper terms, ultimately counselling against any immediate decision to declare an MPA and no-take zone. The Secretary of State rejected their recommendation, and made his own decision.

47. Carltona does not have any bearing on this situation. It stands for the proposition that ministerial powers are commonly delegable and that, where this is the case and delegation occurs, the decision of an authorised official falls to be treated as the decision of the minister. Here, therefore, it may readily be accepted that, if a Minister were simply to rely on a civil servant, in effect to take a decision in the Minister's name, then it would be the knowledge, motives and considerations held by and influencing the civil servant that would be relevant. A ministerial decision may also be vulnerable to challenge if taken in ignorance of or on the basis of some mistake as to some material factor. Similarly, if a ministerial decision is arrived at by a collective decision-making process involving a minister and his departmental civil servants, it may well be impossible to separate the ultimate ministerial decision from the knowledge and motives of civil servants involved in its preparation: see eg Bushell v Secretary of State for the Environment [1981] AC 75, 95-96, per Lord Diplock. But these are situations very far from the present case. In the present case, far from the relevant decision being taken by an official on behalf of the minister or being a collective decision, it is clear that the minister, Mr Miliband, took his own decision on the relevant matters. His civil servants put the matter up to him in terms to which no objection is taken as such, he formed his own strong views on the basis of the material put before him and he made the relevant decision. In these circumstances it is his state of mind that is critical, not that of his civil servants.

48. I note here Lord Kerr's suggestion that the Secretary of State's decision could be regarded as having been reached without regard to material factors or considerations if taken “in ignorance of a concealed reason for the recommendation on which he acted” (para 117) and/or without awareness of “the view of the civil servants that the MPA would” eliminate the chances of resettlement of the Chagos Islands, contrary to the advice on which he in fact acted (para 118). Neither of these points was part of the applicant's case before the Supreme Court, which focused on the existence of an allegedly improper motive on the part of Mr Roberts and/or Ms Yeadon. Reliance on their suggested views as material information which should have been made available to the Secretary of State is a quite different matter. If this were sufficient to undermine a ministerial decision, then logically any irrelevant misconception possessed by any civil servant at any level in the civil service hierarchy in relation to any proposal ultimately reaching Cabinet level could undermine a Cabinet decision. There is in any event no basis for regarding any such views as material, since the appeal has been conducted on the basis that the creation of the MPA “could not have the effect of creating an effective long-term way to prevent resettlement”: see para 28 above. The only suggested reason why an MPA or no-take zone might preclude resettlement was that it would deprive Chagossians of an important source of food and livelihood. But this is not an objection deriving from the establishment of an MPA, but from a policy, reversible at any time, of refusing fishing licences.

49. For these reasons, I would hold that no basis exists on which the Supreme Court would be justified in reaching a different conclusion to that reached in the Court of Appeal, upholding the Administrative Court, though for different reasons, on the point.

Fishing rights

50. The position in respect of this adjourned application for permission to appeal is unusual. I say at the outset that I consider that permission to appeal should be given. But permission to raise the issue of Mauritian fishing rights at all was only given by the Administrative Court on the limited basis that the appellant

The appellant's case, as explained by Mr Pleming before the Administrative Court, was

The Administrative Court held the appellant to that position, and Mr Pleming has not sought to resile from it before the Court of Appeal or Supreme Court. Further, he made clear that before the Supreme Court the only fishing rights relied on are Mauritian fishing rights. That means (and it is unnecessary to attempt any precise definition) fishing rights enjoyed by Mauritian registered and, quite probably, owned vessels, on which in practice Chagossians are often also found as crew.

51. Yet, since the Court of Appeal's judgment in May 2014, an arbitration between the Republic of Mauritius and the United Kingdom under Annex VII of the United Nations Convention on the Law of the Sea (“UNCLOS”) has concluded in an award dated 18 March 2015, finding, inter alia:

During the course of the hearing before the Supreme Court, the Government put before the Court a statement that:

52. It therefore appears that, at the international level, the fishing rights, the arguable existence of which the appellant claims should have been recognised in the consultation paper, have not only been held to exist, but are rights, to which so far as they have been held to exist, the United Kingdom is committed to giving effect. In these circumstances, it is possible to wonder what further purpose these proceedings might have, since it is on these rights that the appellant's objections to the MPA and/or no-take zone centre. Ostensibly, the appellant's case is that, if there was improper motivation and/or a failure properly to consult about arguable fishing rights, the MPA and no-take zone should be declared to have been invalidly declared. But Mr Pleming indicated at the outset of the hearing before the Supreme Court that, at any rate in relation to the latter failure if accepted, it would be possible for a court to limit any invalidity to the extent of the arguable fishing rights. A later draft declaration which Mr Pleming submitted showed that, if it were feasible to contemplate a declaration of limited invalidity, the identification of what was involved in Mauritian fishing rights could still be controversial. That is however, as already indicated, another matter.

53. I would accept that, if there was a failure properly to consult about arguable fishing rights, that could lead to a declaration of limited validity. In parenthesis, I add that the case based on improper motivation can also be related to fishing rights, since the reason why it is suggested that an MPA or no-take zone might preclude resettlement is that it would deprive Chagossians of an important source of food and livelihood. I would therefore also have been attracted by (but do not, in the light of my conclusion in para 49 above, need to consider further) the suggestion that improper motivation might also have led to a limited declaration. Further, in either case, I would be minded to accept the Secretary of State's case that any declaration could be related and limited to the no-take zone, rather than the MPA. Mr Pleming objected that this was a new point, only raised by the Secretary of State after the hearing. But it is a pure point of law and the Administrative Court itself pointed out in para 75 of its judgment that the restrictions on fishing did not derive from the MPA itself. On the contrary, the MPA stated that the implications for fishing would be addressed in future legislation, and the only actual step taken regarding fishing was to allow existing fishing licences to expire and to withhold further fishing licences. The appellant's real complaint can therefore be identified as being to the current policy, in so far as it has been to refuse fishing licences giving effect to the Mauritian fishing rights now recognised by the UNCLOS tribunal's award. That is essentially a limited complaint, which could, it seems to me, appropriately be addressed by a limited declaration as to the invalidity of such a policy of refusal.

54. I must however revert to the case as it stands, however artificially, before the Supreme Court, on the basis that the appellant's only complaint is that there was, at the time of the consultation, credible evidence that the United Kingdom had given an undertaking to the Government of Mauritius to permit Mauritian fishing in the territorial waters of the Chagos Islands (free of charge), that these arguable rights should have been mentioned, that the consultation process was defective accordingly and that the MPA, or (for reasons I have indicated) at least the no-take zone, was invalid, at least to the extent that it excluded Mauritian fishing.

55. The UNCLOS tribunal in its award found that the United Kingdom was in breach of its obligations under UNCLOS article 2(3) (“sovereignty over the territorial sea is exercised subject to the Convention and to other rules of international law”) and article 56(2), which reads, less ambiguously:

The breaches so found concerned the relationship between the United Kingdom and Mauritius. It was the tribunal's view that, after a second meeting between United Kingdom and Mauritian representatives on 21 July 2009, there remained outstanding a number of unanswered issues, as well as information that the United Kingdom promised to provide to Mauritius, but that, despite this, the United Kingdom had in March 2010 elected to press ahead with the final approval and proclamation of the MPA without providing any convincing explanation for the urgency with which it did this on 31 March and 1 April 2010.

56. The issues of both law and fact before the tribunal were, therefore, very different from that now before the Supreme Court, which is narrowly focused on the adequacy of the public consultation. It is unnecessary to go back in detail over all the issues which were considered in the courts below. I can summarise the position as it emerges, in my opinion, from the evidence and documents as follows. First, the actual extent of inshore fishing by Mauritian vessels in territorial waters, after the Chagossians left and until the no-take zone affected licensing, was always limited, but it was significant for those involved, including the owners and Chagossian crew members. The principal vessels involved were those of the Talbot brothers.

57. Secondly, there was credible evidence in the United Kingdom Government's possession (though not all of it necessarily available to Mr Roberts or Ms Yeadon) as to the existence of Mauritian fishing rights dating back to undertakings given in 1965. However, thirdly, extensive legal advice (for which privilege has not been waived) was taken on this subject during the period January to November 2009, and, on the basis of that advice, both Mr Roberts and Ms Yeadon understood that Mauritius “did not have legal rights to fish in BIOT territorial waters, which prevented the United Kingdom Government from establishing an MPA, including a complete no-take zone”. Fourthly, for that reason, “after considering the position and receiving legal advice” Mr Roberts and Ms Yeadon “did not believe that Mauritius or the Chagossians had, or might have had, any such rights”, and Ms Yeadon in particular saw the 1965 undertaking as being “of a political, not legal, nature”; and, as a result, no reference was made in the consultation document to any such rights.

58. Fifthly, despite the appellant's reliance on a paper prepared by Professor Brownlie for and read at a United Kingdom-Mauritius meeting in January 2009, containing at most only a fleeting suggestion of such rights, Mauritius never really advanced such rights with any clarity at any time throughout 2009 to March 2010, referring instead constantly to its sovereignty claim and refusing on that basis to engage with any consultation. In particular, it made no suggestion of any such rights in the second United Kingdom-Mauritius meeting in July 2009 or in a submission to the House of Lords in February 2010. The Administrative Court correctly so concluded (para 158).

59. Sixthly, Mauritius had the opportunity of responding to the consultation and making the point that it had fishing rights, but did not avail itself of this. Chagossians and others also had the opportunity of responding, and some did:

1. (i) Mr Gifford and Chagossians resident in Crawley made representations against any no-take ban in the territorial waters, on a basis summarised as follows:

   “Very limited fishing anyway, so limited environmental benefit from a ban.

   Could have significant consequences for the Chagossians. What effect on the Chagossian community?

   Should not be possible to use MPA as a way of entrenching no right of abode.

   Inconsistent, as far as concerns fishing, with the law of the sea (UNCLOS).”

2. (ii) The Diego Garcian Society also representing Chagossians wrote in favour of:

   “4th option, a no-take marine reserve for the whole of the territorial waters and EPPZ/FCMZ with exceptions for certain types of pelagic fishery (eg tuna) and artisanal fishing by Diego Garcians and other Chagossian fishing projects only.”

3. (iii) The members of the Chagos Refugees Group, led by the appellant and joined by Mr Gifford as their lawyer submitted that the consultation process was “premature (and flawed)” as “putting the cart before the horse”, inter alia, because it needed to be with the consent of the Chagossians, rather than pushed ahead unilaterally, because the sovereignty of Mauritius was also involved and because:

   “[There] Are fishing rights which they need in their sea.”

   and

   “Need human rights first - wrong to come before ECHR judgment.”

60. The Divisional Court observed (para 160):

The Court of Appeal rejected the appeal on this ground, largely for the same reasons given by the Divisional Court (para 108), and specifically agreed with the last two sentences quoted above (para 111).

61. The case open to the appellant is that there was credible evidence of Mauritian fishing rights, deriving from an undertaking given by the United Kingdom Government to the Government of Mauritius and subsequently evidenced by preferential treatment given to Mauritius registered or owned vessels. Approaching this case in the light of the matters which I have mentioned, I have no hesitation in agreeing with the assessment of both courts below that the absence of any mention of such evidence or of the arguable fishing rights to which it related does not undermine the consultation, make it unfair or justify setting it or any decision consequent upon it aside. It was obvious, as the Court of Appeal also said (para 112), that at least one of the options would affect inshore fishing, and threaten the livelihood of vessels which had previously been licensed to fish in territorial waters.

62. It was open to Mauritius or anyone affected to raise this objection in response to the consultation. Mauritius notably did not respond at all. Others made various points about the option of a no-take ban in territorial waters and/or the loss of alleged fishing rights. It would be wholly inappropriate to treat the consultation process as invalid, when the party to whom the alleged rights belonged (the Republic of Mauritius) had full opportunity of asserting them in response to the consultation, and when others indirectly involved actually took advantage of the opportunity of raising them. Finally, there is also no reason to believe that the ultimate decision would or could have been any different, if the consultation had specifically drawn attention to the possible existence of such fishing rights.

Improper motive

Fishing rights

122. I agree with Lord Mance on the issue of fishing rights.