Bancoult, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

A consultation is lawful where it gives consultees sufficient information to respond intelligently to the proposal actually under consideration. It need not reopen an established policy which the consultation does not seek to reconsider, or disclose material directed only to that separate policy. A national court should not determine the international-law rights of a foreign state which is not a party, particularly where the issue is pending before an international tribunal. A decision by the European Commission to close an infringement complaint is not a binding determination that a Member State has complied with EU law. The obligation of sincere cooperation may be directly effective, but a discrete environmental measure does not breach it merely because it restricts economic activity if it does not jeopardise the objectives of association.

The claimant challenged the Foreign Secretary’s decision of 1 April 2010 to establish a full no-take Marine Protected Area in the British Indian Ocean Territory. He alleged improper purpose, unfair consultation, failure to disclose environmental and feasibility information, failure to disclose alleged Mauritian and Chagossian fishing rights, and breach of Articles 4(3) TEU and 198 TFEU.

The claim arose against the background of the Government’s existing no-resettlement policy and the pending international dispute concerning Mauritius’s status and rights in the Chagos Archipelago. The central issues were whether the consultation was legally sufficient, whether the court should determine alleged international-law fishing rights, and whether the MPA was incompatible with EU obligations.

1. Improper purpose. The court found no evidence that the Foreign Secretary acted to prevent the future resettlement of Chagossians. The MPA was a discrete environmental measure, and the decision was taken for environmental, scientific and political reasons. The first ground failed.
2. Consultation. The consultation was concerned with conservation against the background of an established no-resettlement policy. Whether resettlement was feasible, whether that policy was justified, and environmental information relevant only to resettlement were outside its scope. The consultation document provided sufficient information about the proposed conservation measures, including links to more detailed material. The requirements stated in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 were satisfied. Grounds 2 and 3 failed.
3. Fishing rights. The court declined to determine whether Mauritius enjoyed fishing rights under international law. Mauritius was not a party, and the issue was appropriate for determination in the UNCLOS arbitration. The claimant had also obtained permission to raise the issue on the basis that enforceable international-law rights would not be determined. The alleged rights of Chagossians as such had not survived their removal and loss of the right of abode. The omission of express reference to Mauritian fishing rights did not make the consultation unfair or unlawful.
4. EU law. The Commission’s closure of the infringement complaint was not binding on the national court. Article 4(3) TEU was sufficiently clear, precise and unconditional to be capable of direct effect in conjunction with the relevant Treaty objectives. Nevertheless, the MPA did not prevent resettlement, was not entrenched, and merely prohibited fishing while it remained in force. It therefore did not deprive Article 198 TFEU of its effet utile or jeopardise the objectives of association.
5. Disposition. The claim was dismissed.

This was a first-instance judicial review claim. The judgment records that permission to amend the claim was granted by the Divisional Court on 21 November 2012, but gives no citation for that decision.