Horeau & Ors, R (On the Application Of) v Secretary of State for Foreign And Commonwealth Affairs [2016] EWHC 2102 (Admin)

[2016] EWHC 2102 (Admin)Case No CO/1738/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 August 2016
Before
The Honourable Mrs Justice Andrews DBE
Between
THE QUEEN (on the application ofClaimantSOLANGE HOREAU and others)ClaimantSECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRSDefendant
Ben Emmerson QC and Toby Fisher (instructed by Leigh Day) for ClaimantsPenelope Nevill and Adam Boukraa (instructed by The Government Legal Department) for DefendantHearing Hearing dates: 11 August 2016
Judgment Approved
[1]This is a renewed application for permission to bring judicial review of a consultation exercise carried out by the Foreign & Commonwealth Office as part of its British Indian Ocean Territory (BIOT) policy review (“the Review”). The oral argument was very ably presented before me by counsel on the afternoon of 11 August 2016, but through no one’s fault, submissions did not conclude until after 4:30pm, and I then indicated that I would wish to consider the arguments carefully overnight before giving my decision.[2]It was agreed, after discussing the matter with counsel for both parties, that instead of delivering my judgment orally on the morning of 12th August, I would state my decision and give my reasons for it in writing, which would avoid the necessity for counsel to attend. This would also provide the Claimants, some of whom I understand have travelled a very long distance to attend the hearing, with a document that they could read and consider straight away, instead of having to wait for a transcript. Taking this course has meant that I have been unable to afford counsel the normal opportunity to see a draft of my judgment and to correct any typing errors beforehand. I have already indicated that any matters arising may be addressed in writing, and I would hope that any such corrections could be made as part of the same process.[3]The Claimants are representatives of those former inhabitants of the Chagos Islands who were forcibly exiled from their homeland on the Chagos Archipelago some 45 years ago to make way for the building of a US naval support facility, and who now live in the Seychelles. Many of them are living in conditions of considerable hardship. There has been a long line of cases seeking redress for this historic wrong, in the course of which it has been established(i) that the Chagossians have no legal right to resettle the islands in consequence of the British Indian Ocean Territory (Constitution) Order, made by prerogative order in Council in 2004, and(ii) that they have no right to compensation for their exile.[4]Following the final decision on the latter topic by the European Court of Human Rights, in December 2012 the Foreign Secretary announced that the Government intended to take stock of the question of resettlement of the Islands. To that end, in March 2014 an independent feasibility study was commissioned by the BIOT administration. KPMG, which carried out that study, produced its report on 31 January 2015. It found that there was no clear indication of the likely demand for resettlement, and that the costs and liabilities to the UK taxpayer were uncertain and potentially significant. On 24 March 2015 the Parliamentary Under-Secretary informed the House of Commons that Ministers had now agreed that further work should proceed to address those fundamental uncertainties to a point that a decision on the way ahead was possible.[5]As part of that further work, the Government decided to run a consultation exercise between August and October 2015 to seek views from Chagossians and other interested parties on certain areas. Paragraph 3 of the Consultation document made it clear that the document was not a statement of UK Government policy and that no decisions in respect of resettlement have yet been made, but for the purposes of better gauging demand, the UK Government had sought to present the most realistic ways in which such a settlement would hypothetically take place. Four different options for resettlement were contained in the body of the document, ranging from a pilot option on a 1-2 year temporary basis for between 50 and 150 people to settle on the island of Diego Garcia, (option 1) through two medium options for settling 500 people either on Diego Garcia (option 2) or on the outer islands (option 3), to a large option in which 1500 people would settle on Diego Garcia and on the outer islands (option 4).[6]Based on those potential ways in which resettlement would take place, the consultation document invited views on: i) how many Chagossians want to resettle in BIOT? ii) The UK Government’s latest assessment of the likely costs and liabilities to the UK taxpayer. iii) Alternative options not involving resettlement that could respond to Chagossians’ aspirations.[7]The consultation document indicated, amongst other things, that because it would be necessary to evacuate anyone requiring serious medical treatment from the islands to the nearest suitable treatment centre, those persons requiring specialist health advice and treatment or dedicated medical care would not be eligible for resettlement. It also indicated that for those who resettled, appropriate allowances and support specifically designed for BIOT would be provided by the Government, based on need in exceptional circumstances e.g. if an individual loses their job unexpectedly or becomes ill and is unable to work temporarily. Child allowances could also potentially be provided, but this was unlikely to be made available in a pilot option. The UK Government would not provide UK pensions to those currently ineligible. There was no suggestion that any other form of pension would be paid.[8]The document also said that the UK Government would provide housing, utilities and telecommunications where possible to standards similar to those currently available in Diego Garcia (not the UK). Resettled Chagossians would be required to pay for the same services as other occupants, e.g. Internet provision and consumables. It was likely that as resettlement developed with increased numbers of people, utility charges would become payable by Chagossians, as well as local BIOT taxes.[9]Paragraph 16 of the consultation document considered options not involving resettlement, which it was said were being developed to enable the UK Government to consider “the full range of options that could respond to Chagossians’ aspirations”. It was explained that the principle behind these ideas was to provide support for Chagossians to flourish in their current communities and build their lives there, while allowing a degree of access to BIOT that recognises their historic connection to it without returning on a long-term basis.[10]To that end, Paragraph 17 set out a list of potential measures which was said not to be mutually exclusive or an exhaustive list of options. The Government said that it would also be interested to hear ideas for other sustainable measures of benefit to the Chagossian communities. The express examples of such measures listed in the consultation document did not include any reference to any form of direct financial support by means of ad hoc payments to any Chagossians who did not resettle on the islands. They included training and educational support for jobs, increased opportunities for Chagossians to visit BIOT, and their increased participation in conservation enforcement and science work in BIOT, or key roles in new limited tourism in the outer islands.[11]The Claimants responded in 2 letters dated 28 September 2015 and 27 October 2015 written by Mr Pierre Prosper, the Chairman of the Chagossian Committee Seychelles. In the earlier letter Mr Prosper said, among other things, that Chagossians were getting older and dying, and that some are still living in poverty. He asked the Government to consider in the meantime support structures for communities in general, in the Seychelles, the UK and in Mauritius. He said this “we ask for a fair compensation to be considered, pension for all Chagossians wherever one may reside, financial support for families and for those in need, a scholarship programme for the younger upcoming generations.” He then went on to ask the Government to reconsider its position on the payment of compensation.[12]In a debate in Parliament on 28 October 2015 the Parliamentary Under Secretary of State for Foreign & Commonwealth Affairs said this:
“it is important that we consult as widely as possible. While we know that many Chagossians do want to go back, it is important to recognise – as shown in the independent feasibility study and more recently – that some Chagossians are more interested in securing other forms of support in the places where they live. We should assess what we can do for everyone, not just those who are returning.”
[13]The relevant part of the response from the BIOT review team to Mr Prosper’s letters, which was not sent until 18 January 2016, although it bears the date 10 December 2015, stated that eligibility for UK pensions and social benefits, and access to UK healthcare would remain unchanged. No further compensation was being considered within the scope of the Review, which was limited to a potential resettlement of the islands. It said that Mr Prosper’s other points had been formally noted within the consultation exercise, and that the Government would reflect on these in coming to a decision in due course. Correspondence between solicitors prior to the commencement of these proceedings clarified that “compensation” was an expression that embraced all forms of direct financial support including of the type that the Government contemplated making available in connection with resettlement.[14]The Claimants characterise the belated response to Mr Prosper’s letters in the letter dated 10 December 2015 as a Direct Financial Support Decision (“the DFS decision”) in which they allege the Defendant confirmed that it had made an unpublished policy decision, contrary to the broad terms of the consultation paper, that the Review had excluded the possibility of providing ad hoc financial support to Chagossians in their current communities. The Defendant contends this is a mischaracterisation of the letter. There was no “DFS decision” communicating the adoption of some fresh policy, but rather, it was reiterating its long-standing policy not to pay compensation to the Chagossians who had resettled in the Seychelles.[15]The claim for judicial review is based on 3 grounds: i) Ground 1 alleges that the consultation itself was legally flawed because it was carried out in breach of the Coughlan principles (see R v N North East and Devon HA ex parte Coughlan [2001] QB 212 at [108]), or in breach of the common law duties of procedural fairness. It was said that whilst the consultation paper purported to consult on the “full range” of options to provide support to Chagossians to flourish in their current communities, this was a misrepresentation of the true position, because the Defendant was not prepared to pay direct financial support to those Chagossians who were not resettling. ii) Ground 2 is that the DFS decision was irrational, because the Defendant was prepared to pay certain types of direct financial support to those who resettled, but not to those who remained behind. It is argued that the latter may have a much stronger need for such payments; that the making of financial support payments to those who remain would be far more cost-effective than paying those who resettle; and that without including the option of some form of financial support for those who remain behind, which might have an impact on a person’s enthusiasm for resettlement, it would be impossible for the Defendant to carry out a proper comparative exercise assessing the costs benefits and desirability of resettlement options as compared to alternatives. iii) Ground 3 is that the DFS decision was taken in breach of the Defendant’s duty under section 149 of the Equality Act 2010 (known as the PSED). It is contended that there is no evidence that the Defendant had regard to the PSED before taking that decision. In the event that resettlement is permitted, the elderly and those who are disabled are likely to be disproportionately represented amongst those who are not allowed to resettle, and they would not be entitled to any of the types of financial support that would be available to those who do resettle.[16]In rejecting the application for permission on the papers, Ouseley J identified the real obstacle in the way of the claim as being that, at the heart of the claim and its purpose, is the contention that the Defendant was obliged to consult on the possibility of making direct financial payments to Seychelles Chagossians, whether because none were made earlier or because of their continuing plight, and whether truly called compensation or not; no rational consultation process could ignore that. That is Ground 2. He said that the Government was entitled to decide that it would not make such payments. That decision has been made, and it cannot be said to be irrational. To hold that irrational would be to hold that there was a duty to make the payments, which is untenable. Even if there was some arguable uncertainty over the intended scope of the consultation process, and it had been narrowed down by the Government contrary to what it had said the consultation process would be about, and even if the consultation process were held unlawful on that account, it is impossible to see that the Claimants would obtain relief, since the Government has made it plain that it is not interested in such responses and it did not intend to consult about that point.[17]He also concluded that even if a new consultation process had to be undertaken, the Government would plainly exclude direct financial support from its scope, so that in the absence of evidence that the responses would have been different, there would be no point in granting relief on Ground 1 even if it were successful. That is an analysis with which I respectfully agree; indeed it is difficult to reach any other conclusion on the basis of the material before the court.[18]Mr Emmerson QC, on behalf of the Claimants realistically conceded that he would be unable to succeed in the claim for judicial review on Ground 1 alone, for the reasons stated by Ouseley J. He would therefore need to persuade me that there was a real prospect of successfully arguing that it would be irrational of the Government to expressly exclude direct financial support for those who did not resettle from the scope of a new consultation process. For that reason, his submissions focused on Ground 2, although it was integrally bound up with Ground 1.[19]Mr Emmerson refined the point by submitting that a decision at this stage of the decision-making process to exclude the possibility of any financial support for any Chagossians in their current communities would be irrational. He stressed the words “at this stage of the decision-making process” because all 4 of the options set out in the consultation paper were still live options which it must be assumed the Government is genuinely considering. In the event of large-scale resettlement (option 4) a significant number of people would receive (or become eligible to receive in certain circumstances) certain types of direct financial assistance from the Government, whereas those who remain behind would not. This would mean that the elderly and disabled who were unable to resettle even if they wanted to, would receive no ad hoc financial support, whereas the fit and healthy returnees would. He realistically accepted that the argument would be a difficult one, if not impossible to run, in relation to the other 3 options.[20]Mr Emmerson stressed that the Claimants are not arguing that there is any duty on the Government in the abstract to provide financial support to Chagossians in their current communities in the Seychelles. The claim is more focused: it is that it is irrational at this stage of the process to rule out the possibility of ever providing any form of financial support to such Chagossians, including to those who through no fault of their own and purely as a consequence of age, disability or medical need are unable or ineligible to resettle (but would have otherwise wanted to). The decision to rule out financial support would be irrational, he submitted, if unfairness resulted in consequence of large-scale resettlement. Mr Emmerson made it clear that the argument did not relate to anyone who simply chose not to resettle.[21]I am not persuaded that there is any realistic prospect of that argument, even in its refined version, succeeding if this matter proceeded to a full hearing. No decision on any of the options has yet been taken. If options 1, 2 or 3 were eventually chosen, there would be nothing wrong with the “DFS decision”. It follows, as a matter of logic from Mr Emmerson’s argument, that if option 4 were removed, the Claimants would have no ground for complaint about the decision to rule out of consideration any form of ad hoc payment to those who remain. The decision would be perfectly rational. Therefore, the rationality of the decision not to make any payment to those remaining behind is said to be inexorably linked with the number of people who it is currently contemplated might resettle. That is a concept which I find quite difficult to grasp. Why should the lawfulness of the decision to rule out payment to any Chagossians who cannot resettle be a flexible concept depending upon how many do resettle? Moreover, why should the lawfulness of that decision depend on whether the Chagossians who remain behind do so voluntarily or because they are ineligible for resettlement? Put another way, the argument appears to be that the Government would have no choice but to grant financial support to those remaining behind (or at least to those who wished to resettle but were too old or infirm to do so) if it decided to go for option 4. I do not consider that argument even gets off the ground.[22]The Consultation does contemplate that in exceptional circumstances those who resettle and find themselves in need may receive some form of allowance designed for the BIOT, such as a type of short-term sickness benefit or unemployment benefit, and that some form of child allowance might also be paid. Nothing in the Consultation promises a pension or any right to social security payments across the board. The fact that such payments are contemplated amounts to no more than a recognition by the Government that those who may otherwise wish to resettle might be put off the idea if there is no form of safety-net to cater for such eventualities. Mr Emmerson contended that there was no justification for looking at the payments purely as incentives, or as being linked to relocation, but in my judgment they are plainly intended to be part and parcel of the possible support on offer for those who resettle, in the same way as the provision of housing and the payment for utilities, at least in the short term.[23]There is a logical fallacy in the argument that because the Government is willing to offer certain types of benefit to someone who is ready, willing and able to resettle, it is outside the range of reasonable decisions open to it to refuse to contemplate providing the same or any other type of benefit for someone who does not meet the criteria for resettlement. On the contrary, these are matters well within the ambit of reasonable policy decisions. I cannot see how such a decision would become irrational even if it were possible that option 4, if chosen, might create unfairness because a significant number of those who resettle would be better off in terms of access to financial support than the elderly and infirm who would be left behind. Ground 3 raises wholly discrete issues; at present I am only concerned with the rationality challenge.[24]I agree with Miss Nevill’s submission that the Government was under no duty to consult on a decision that it was not intending to make. This consultation was clearly about resettlement, and the alternatives that were being explored in paragraphs 16 and 17 were being looked at within the confines of that purpose, with a view to considering what might be done, short of resettlement, to help the Chagossians to remain in touch with their heritage. Whilst paragraph 17 does not expressly rule out financial help, it seems plain to me that it was not what the Government had in mind, and that should have been apparent to anyone reading the document as a whole and against the background that the Government had made it clear that it was not going to pay compensation (whether or not properly so-called).[25]It is obvious that it was never the Government’s subjective intention to consult on the making of ad hoc financial payments to Chagossians who did not resettle, whether that was done out of choice or by reason of necessity or ineligibility. It is difficult to interpret the consultation document as inviting submissions on that matter. Logically it could not be inferred from the fact that it was contemplated that certain payments might be made to those who resettled, in exceptional circumstances, that it was also contemplated that similar payments might be made to those who remained, in any circumstances. Even if the language of the consultation document, and paragraphs 16 and 17 in particular, were wide enough to be capable of that interpretation, I do not accept that the Consultation can be castigated as legally flawed merely because it was open to an objective interpretation that was never subjectively intended. Nor can the Defendant be criticised for pointing out that error, as it did in the 10 December 2015 letter and subsequent clarification.[26]For those reasons, and in agreement with those expressed by Ouseley J, I refuse permission on Grounds 1 and 2.[27]As to Ground 3, Ouseley J said:
“it may be that an arguable PSED challenge could be mounted to a decision that has been reached on what is to happen to resettlement and support for returners without due regard to that duty. That is the point at which age differentials might mean that the resettlement decision and arrangements, without considering support for those left behind, had breached the PSED. But a specific context within which that decision-making is proceeding, far more cohate than now, is required for an arguable challenge.”
[28]Mr Emmerson contended that the challenge was not premature because the Government had essentially closed its mind to making any form of payment to those left behind even if option 4 were chosen. Thus, the relevant decision that will in the event of resettlement necessarily have a negative and unequal impact on the elderly as compared to the young, and the disabled as compared to the able-bodied, has already been taken, without regard to the PSED. I am not persuaded by this argument, nor by the argument that it would be impossible to cure any deficiency in that regard by considering the PSED and taking it into account before any substantive decision on which (if any) of the options is to be implemented is made.[29]Once again I find myself in complete agreement with Ouseley J for the reasons that he has given. Ground 3 does not meet the threshold for permission at this stage, and may never arise. I refuse permission on this Ground also.[30]It follows that despite the eloquence with which Mr Emmerson sought to persuade me that the arguments on all three grounds stood reasonable prospects of success, and that Ouseley J was wrong to conclude that ground 1, even if successful, would get the Claimants nowhere in terms of substantive relief, this renewed application for permission to bring judicial review is refused on all three grounds.

Cited in 2 later judgments