R v Secretary of State for Foreign and Commonwealth Affairs

Diplomatic archives and official correspondence are generally inviolable under articles 24 and 27(2) of the Vienna Convention on Diplomatic Relations 1961. Inviolability ordinarily prevents their use in the receiving state’s courts. It does not protect a copy which is not under the mission’s control or whose confidentiality has been destroyed by widespread public dissemination.

An improper motive held by a civil servant does not invalidate an independent ministerial decision where the matter was presented properly and the motive neither influenced the minister nor affected the decision-making process. A public consultation remains fair where the subject’s practical consequences are obvious and affected persons have a full opportunity to raise an omitted legal contention.

The appellant challenged the establishment of a Marine Protected Area and no-take fishing zone around the Chagos Islands. He alleged that officials promoted the measure to prevent Chagossian resettlement and that the preceding consultation failed to disclose arguable Mauritian fishing rights.

The Administrative Court rejected both grounds. The Court of Appeal, [2014] EWCA Civ 708, held that a leaked United States diplomatic cable was admissible but that its exclusion below made no material difference. It also upheld the consultation.

The Supreme Court considered the cable’s admissibility under articles 24 and 27(2) of the Vienna Convention on Diplomatic Relations 1961, whether its admission could realistically have changed the findings on improper purpose, and whether the omitted reference to Mauritian fishing rights rendered the consultation unfair.

1. Appeal dismissed by a majority. Lord Mance, with Lord Neuberger, Lord Clarke, Lord Reed and Lord Sumption agreeing, held that the leaked cable was admissible. The Secretary of State’s cross-appeal on admissibility was dismissed. Permission to appeal on Mauritian fishing rights was granted, but that appeal was also dismissed.

2. Articles 24 and 27(2) of the Vienna Convention on Diplomatic Relations 1961 ordinarily prevent the receiving state’s courts from using a mission’s archives, documents or official correspondence without consent. The protection preserves the confidentiality required for diplomatic functions. It can extend to unauthorised copies in third-party hands.

3. The protection applies only while the material forms part of, or remains under the control of, the mission. The Secretary of State had not shown that the cable was extracted from the United States Embassy in London rather than another United States government body. In addition, publication by Wikileaks and newspapers had placed it widely in the public domain. Its confidentiality and consequent inviolability had therefore ended.

4. Although the cable should have been admitted, neither its admission nor further cross-examination could realistically have changed the Administrative Court’s decision. The officials had already been questioned extensively about its important passages. The cable was at least ambiguous as to whether preventing resettlement motivated the proposal.

5. In any event, the Foreign Secretary personally made the decision on proper material and against his officials’ recommendation to delay. Even if an official had held an improper motive, it neither shaped nor influenced the minister’s thinking. The Carltona principle did not attribute that motive to a minister who had independently made the decision.

6. The omission of arguable Mauritian fishing rights did not make the consultation unfair. The possible effect of a no-take zone on inshore fishing was obvious. Mauritius and other affected persons could raise the issue, and several consultees did so. There was also no reason to believe an express reference would have changed the decision.

7. Lord Kerr, with Lady Hale agreeing on the improper-purpose issue, dissented. They considered that admitting the cable and permitting unrestricted cross-examination could have altered the findings. Lord Kerr would have allowed the appeal and remitted that issue to the Divisional Court. He agreed with Lord Mance on fishing rights.

1. United Kingdom Supreme Court: The appeal was dismissed by a majority. The Secretary of State’s cross-appeal on diplomatic inviolability was dismissed. Permission to appeal on Mauritian fishing rights was granted, but that appeal was dismissed.

2. Court of Appeal: In [2014] EWCA Civ 708, reported at [2014] 1 WLR 2921, the court held that the leaked cable was admissible but that its exclusion had made no material difference. It upheld the rejection of both judicial review grounds.

3. Administrative Court: The court excluded reliance on the cable under diplomatic inviolability and rejected the claims based on improper purpose and defective consultation.