The Reverse Carltona: R (Bancoult) v Foreign and Commonwealth Secretary (No 3) [2018] UKSC 3

R (Bancoult) v Foreign and Commonwealth Secretary (No 3) [2018] UKSC 3 is the latest episode in a saga — tragedy, really — involving the Chagossians, an island-dwelling group of people forcibly removed in the 1970s by the British government from the Chagos Islands, a British territory in the Indian Ocean, evidently to serve Britain’s national security and foreign affairs interests, given the proximity to the Islands of the American military base on Diego Garcia. In a previous round of litigation, the House of Lords held that an Order in Council preventing visits to the Islands was lawful.

In this round, the Chagossians challenged the legality of the establishment of a Marine Protected Area around the Islands, based in part on a diplomatic communication published by Wikileaks. In a briefing to American officials, a civil servant was recorded as having said: “establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents” (see para. 30). The allegation, therefore, was that the Secretary of State, David Miliband (who has since moved on to other things) had established the Marine Protected Area for an improper purpose, namely preventing the resettlement of the Islands. This depended on the Wikileaks publication being admissible in evidence (it was: paras. 20-21; 64-78; 123-128) and there was also some wrangling about the extent to which the civil servant responsible for the comments (and his colleague) should have been subject to cross-examination (it didn’t make any difference to the outcome (para. 42) but see Lord Kerr’s dissent at paras. 113-121).

The improper purposes claim failed, however, essentially for the reasons given by the Divisional Court at first instance. It was “the personal decision of the Foreign Secretary to declare an MPA on 1 April 2010, against the advice of his officials“, a decision best understood “in the political context”, where “Parliament was about to be dissolved”: “The Foreign Secretary no doubt believed that the decision would redound to the credit of the Government and, perhaps, to his own credit”, all the more so it it were “a decision with immediate effect” ([2013] EWHC 1502 (Admin), at para. 74, emphasis added). As Lord Mance put it, “There is no basis whatever for impugning Mr Miliband’s motivation” (at para. 44).

The Chagossians sought to circumvent this difficulty by imputing, by way of the Carltona principle, the civil servant’s allegedly improper motives to the minister. Ordinarily, government lawyers are the ones invoking the Carltona principle, to argue that decisions taken by civil servants are, as a matter of law, decisions taken by the Minister, a familiar and convenient fiction given the operations of modern government departments. Here, the Chagossians proposed a ‘Reverse Carltona‘: just as a civil servant’s decision becomes, in law, the Minister’s, a civil servant’s improper purpose should become the Minister’s.

Interestingly enough, Lord Mance accepted the premise: “it may readily be accepted that, if a Minister were simply to rely on a civil servant, in effect to take a decision in the Minister’s name, then it would be the knowledge, motives and considerations held by and influencing the civil servant that would be relevant” (at para. 47).

But he held that the ‘Reverse Carltona‘ manoeuvre could not be effected in this case:

In the present case, far from the relevant decision being taken by an official on behalf of the minister or being a collective decision, it is clear that the minister, Mr Miliband, took his own decision on the relevant matters. His civil servants put the matter up to him in terms to which no objection is taken as such, he formed his own strong views on the basis of the material put before him and he made the relevant decision. In these circumstances it is his state of mind that is critical, not that of his civil servants (at para. 47).

So this really was a claim that simply failed on the facts (see also para. 40 on the oral evidence casting the Wikileaks publication in a different light). Another branch of the Chagossians’ case, based on fishing rights, also failed on the facts (paras. 50-62).

This must be a difficult defeat for the Chagossians to stomach. It is very difficult in judicial review cases to uncover evidence of improper purposes but here the claimants had, by chance, what they must have thought looked like an obvious smoking gun. To learn that even this was insufficient to make out a successful judicial review claim must have come as an unfortunate surprise.

This content has been updated on May 6, 2018 at 07:35.