Horeau & Ors, R (On the Application Of) v Secretary of State for Foreign And Commonwealth Affairs

A public authority is not generally required to consult on a policy decision that it does not propose to make. A consultation concerning resettlement and alternatives to resettlement does not necessarily extend to direct financial payments for persons who remain outside the proposed settlement area, particularly where the authority has made its position on compensation clear. The rationality of excluding such payments does not depend on the number of persons who might ultimately resettle or on whether others remain voluntarily or because they are ineligible. An equality duty challenge may be premature where the substantive resettlement decision has not yet been made.

The claimants, representatives of former inhabitants of the Chagos Islands living in the Seychelles, sought renewed permission to bring judicial review proceedings concerning a Foreign and Commonwealth Office consultation on the future of the British Indian Ocean Territory. The consultation considered possible resettlement options and alternatives intended to support Chagossians in their existing communities.

The claimants argued that the consultation was procedurally unfair, that the Government’s exclusion of direct financial support for those who did not resettle was irrational, and that the decision breached the public sector equality duty under section 149 of the Equality Act 2010. Permission had previously been refused on the papers by Ouseley J.

1. Permission refused on all three grounds. The renewed application did not disclose a realistic prospect of success.
2. The claimants’ rationality argument depended on the possibility that a large-scale resettlement option might benefit returners through exceptional allowances while elderly or disabled persons left behind received no comparable support. That did not make the decision to exclude direct financial support irrational. The Government was entitled to treat support for persons who resettled as part of the possible resettlement package, including housing, utilities and short-term safety-net assistance.
3. The lawfulness of excluding payments to persons who did not resettle was not a flexible concept dependent on the number of people who might resettle, or on whether those left behind were unable or unwilling to resettle. These were matters within the range of reasonable policy choices.
4. The consultation was directed to resettlement and alternatives serving the purpose of maintaining Chagossians’ links with their heritage. The Government was under no duty to consult on a decision it did not intend to make. The consultation document, read as a whole and against the Government’s stated position on compensation, did not require consultation on ad hoc payments to persons who remained outside BIOT.
5. The public sector equality duty challenge was premature. No decision had yet been taken on which, if any, resettlement option would be implemented. Any equality duty issue could be considered before a substantive implementation decision was made, and the alleged issue might never arise.

The renewed application for permission to bring judicial review was therefore refused on Grounds 1, 2 and 3.

Ouseley J refused permission to bring judicial review on the papers. The claimants renewed the application before the Administrative Court, which refused permission on all three grounds.