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

Diplomatic inviolability protects a mission and its documents from interference or compulsion by the receiving state. It does not generally exclude a document already in the worldwide public domain after disclosure by a third party, where the litigant was uninvolved and no compulsion is exercised against the mission.

A consultation remains fair where the proposal’s impact is clearly explained and consultees can raise detailed rights or arguments, even if the paper does not identify each claim. Treaty obligations concerning overseas-territory development address the macro-economic position; minor effects on individuals did not jeopardise those objectives. The court also indicated, obiter, that those objectives were unlikely to be directly effective.

The appellant challenged the Secretary of State’s decision to establish a marine protected area in the British Indian Ocean Territory. The Divisional Court rejected five grounds of challenge in [2013] EWHC 1502 (Admin). This appeal concerned three issues: alleged improper motive, the adequacy of consultation about Chagossian and Mauritian fishing interests, and compliance with obligations under the Treaty on European Union and the Treaty on the Functioning of the European Union.

The appeal also raised the admissibility of a leaked diplomatic cable, the direct effect and scope of the treaty obligations, and the significance of a European Commission decision closing a related complaint.

Appeal dismissed. The court allowed the appeal on the narrow evidential issue concerning the diplomatic cable, but held that the error could not have affected the result.

1. Diplomatic documents. Inviolability under articles 24 and 27.2 of the Vienna Convention on Diplomatic Relations is protection against interference or compulsion by the receiving state. It is not a general rule excluding documents from evidence. A document sent from the mission with the consent of the sending state, later disclosed worldwide by a third party, and used without compulsion against the mission was prima facie admissible. The separate passage in Shearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No 2) [1988] 1 WLR 16 was not part of that decision’s ratio and was in any event distinguishable.
2. Improper purpose. The Divisional Court had made a careful assessment of the evidence and was entitled to find that the Secretary of State’s decision was not actuated by an intention to prevent resettlement. The appellant had been able to cross-examine the principal witnesses extensively by reference to the cable. There was no realistic possibility that formal admission of the cable would have altered the findings. The court applied the caution identified in R (on the application of Cotton) v Chief Constable of the Thames Valley Police [1990] IRLR 344.
3. Consultation. The consultation paper clearly addressed the possible impact of the proposed marine protected area on fishing. It gave consultees a sufficient opportunity to raise alleged traditional fishing rights, historic links, Mauritian claims and effects on Chagossian fishermen employed on licensed vessels. The omission of more detailed formulations did not make the consultation unfair or invalidate the decision.
4. European Union law. Articles 4(3) of the Treaty on European Union and 198 and 199 of the Treaty on the Functioning of the European Union concerned the macro-economic development and prosperity of the overseas territory. The effects of the marine protected area on a small number of individuals and on local fishing knowledge did not jeopardise those objectives. There was also no evidence of relevant trade or investment activity engaging article 199.
5. Further European Union points. The court expressed the view, although it was unnecessary to the result, that the objectives in articles 198 and 199 were unlikely to be sufficiently clear, precise and unconditional to have direct effect. A Commission decision closing a complaint was not binding, but its reasoning was a relevant consideration. Had the national court reached an opposing conclusion on a non-acte-clair issue, a reference to the CJEU might have been appropriate.

The appeal was dismissed. The appellant was ordered to pay 50% of the respondent’s appeal costs, subject to the statutory costs provisions, with detailed assessment of the publicly funded costs. Permission to appeal was refused.

• High Court of Justice, Queen’s Bench Division, Administrative Court: The Divisional Court rejected all five grounds of challenge in [2013] EWHC 1502 (Admin).
• Court of Appeal (Civil Division): The appeal on three grounds was dismissed.