R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs

An ultimate appellate court has inherent jurisdiction to reopen its own final decision, or that of its predecessor, where a party was subjected through no fault of its own to an unfair procedure. The jurisdiction is exceptional. It does not permit reopening merely because the earlier decision is considered wrong.

Material non-disclosure by a public authority may constitute procedural unfairness. Reopening nevertheless depends on whether the undisclosed material probably, or at least may well, have affected the outcome, although the precise threshold was left open. The seriousness of the breach, its consequences and the availability of an effective alternative remedy are relevant. Fresh evidence cannot be used merely to reassess the original decision using information obtained later.

The applicant sought to set aside the House of Lords’ decision in [2008] UKHL 61, which had upheld section 9 of the British Indian Ocean Territory (Constitution) Order 2004 by a majority of three to two. The Divisional Court, [2006] EWHC 1038 (Admin), and the Court of Appeal, [2008] QB 365, had previously held section 9 invalid.

The application arose after documents concerning the preparation of the stage 2B feasibility report on resettlement of the Chagos Islands were disclosed in separate proceedings. The Secretary of State accepted that those documents should have been disclosed in the original judicial review, although their non-disclosure was neither intentional nor in bad faith.

The principal issues were whether the non-disclosure justified reopening the final appeal and whether newly produced material independently demonstrated that the earlier result should be set aside.

1. By a majority of three to two, the application was dismissed. Lord Mance delivered the leading judgment, with which Lord Neuberger and Lord Clarke agreed. Lord Kerr and Lady Hale dissented.

2. The Supreme Court possessed inherent jurisdiction to correct injustice caused by an earlier judgment of the Court or the House of Lords. That jurisdiction could apply where non-disclosure had subjected a party to an unfair procedure. It could not be exercised merely because the earlier decision was thought legally wrong: R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119.

3. Lord Mance accepted that reopening involved both evaluative and discretionary considerations. The authorities referred to a significant injustice probably having occurred and the absence of an alternative effective remedy. He left open whether probability, or the powerful-probability standard associated with fresh evidence, was invariably required. An egregious procedural breach or difficulty assessing its consequences might justify asking whether the breach may well have affected the outcome. The application failed even on that potentially lower standard.

4. The Secretary of State’s failure to locate and disclose the Rashid documents was culpable and highly regrettable. The documents should have been disclosed under the public authority’s duty of candour. The failure was not deliberate and did not involve bad faith.

5. The undisclosed material did not undermine the rationality of reliance on the stage 2B report. Its General Conclusions and the preceding section on vulnerability were unchanged between the draft and final versions. The exchanges between officials, advisers and consultants disclosed a professionally oriented and independent process. There was no probability, likelihood, prospect or real possibility that the material would have caused a court to find reliance on those conclusions irrational or otherwise unjustified.

6. The additional material did not justify reopening. Evidence obtained later could not be used merely to reconsider whether the feasibility report remained scientifically sustainable. The relevant question was whether the Secretary of State acted rationally on the material available, or properly attributable to the executive, when section 9 was made.

7. A new feasibility study and the possibility of a fresh judicial review of any refusal to revoke the constitutional prohibition were, for the majority, powerful discretionary reasons against reopening factually superseded litigation.

8. Lord Kerr, with whom Lady Hale agreed, would have reopened the appeal. He considered a distinct possibility of a different outcome sufficient and concluded that the undisclosed documents might have materially weakened the feasibility report’s authority. He rejected the later feasibility study as an adequate reason to deny retrospective procedural justice.

1. United Kingdom Supreme Court: By a majority of three to two, dismissed the application to set aside the House of Lords’ judgment and direct a rehearing: [2016] UKSC 35 .
2. House of Lords: By a majority of three to two, allowed the Secretary of State’s appeal and upheld section 9 of the British Indian Ocean Territory (Constitution) Order 2004: [2008] UKHL 61 ; [2009] AC 453 .
3. Court of Appeal: Affirmed the Divisional Court’s decision that section 9 was invalid, although on partly different grounds: [2008] QB 365 .
4. Divisional Court: Held section 9 invalid because the rationality of the measure had to be assessed by reference to the interests of the territory’s inhabitants: [2006] EWHC 1038 (Admin) .