The UK and the OTs. Inquiry evidence reveals problems with the one-size-fits-all approach.

There are currently two UK parliamentary inquiries relating to the British overseas territories. One is being carried out under the auspices of the Procedure Committee, and the other is being carried out by the Public Administration and Constitutional Affairs Committee (PACAC). This latest one examines the Constitutional Relationship between the UK and the BOTs. They both follow on from another inquiry the Foreign Affairs Committee (FAC) completed five years ago.

No one would envy the members of the Committee who have to draw some conclusions from the wealth of evidence received from the various Governments, politicians (both in the UK and in the BOTS), campaign groups, academics and concerned citizens. It doesn’t help that many of the opinions offered are contradicted elsewhere in the submissions, and those who say they express views on behalf of the BOTs as a whole clearly do not. Some territories put forward a detailed position and indicate a general consensus around it. Others do not.

From Montserrat, for example, evidence has been submitted by the current Governor, the previous Governor, the current Government, the previous Premier, the opposition leader, a former Speaker of the Legislative Assembly, four private citizens, and two civil society organisations. The level of UK aid dependency, and possibly the FCO/DFID merger, is causing some confusion about roles, with resulting tensions. It isn’t easy to summarise the wide variety of opinions expressed here, but if there is a consensus, it is that the Governor has too much power and insufficient capacity to exercise it. Things get missed, and things don’t happen as a result.

In fact, all the Caribbean BOTs who submitted evidence broadly support this view, and there is a warning from the BVI (Or the VI as they noticeably refer to themselves) that the Committee’s eventual recommendations could add to the constitutional overreach. The VI’s prime concern is how the UK can support it in achieving a “full measure of self-government” as required under the UN charter. They do not believe that the FAC addressed this, and their submission contains a lot about the recommendations made in the final report of that inquiry concerning belonger status, financial transparency and LGBT rights. The UK Government rejected these, which the VI acknowledges, but they see the recommendations as encouraging ongoing agitation, including from within both houses of the UK parliament.

But there may be other reasons for the agitation. The FAC received evidence from people within the OTs on these issues with a contrary position to that of the VI, and no doubt the Committee felt it had to respond. More detailed evidence is being presented this time, including from British overseas territories citizens denied belonger status, who explain how it affects them in practice. However, many OTs are concerned about the prospect of freedom of movement of British passport holders and the damage that could cause. The FAC muddled these two issues, which didn’t help the discussions. FCDO says this is a local issue.

The FAC also recommended the imposition of same-sex marriage, which the FCDO rejected. In the current inquiry, the VI Government’s position on LGBT issues is vehemently opposed in the evidence submitted by the campaign group Colors Cayman, who are also scathing in their criticism of the Judicial Committee of the Privy Council (JCPC) (an appeal court). The Bermuda Courts had ruled that legislation passed in Bermuda in 2018 banning same-sex marriage was illegal. The JCPC, however, ruled earlier this year that it was not if it did not deny other civil rights guaranteed under the constitution. Colors Cayman says the JCPC ruling has endorsed segregation and undermined the Bermuda legal system.

However, the VI say the campaign to overturn the JCPC decision undermines the local legislature. The Committee will likely steer clear of this specific issue, and we are unlikely to see any recommendations relating to the judgments of the JCPC. But we will see. VI is one of four BOTS with no legislation on the rights of same-sex couples, the others being Anguilla, Montserrat and Turks and Caicos. VI will also be unhappy with Dame Margaret Hodge MP. The former Chair of the Public Accounts Committee has submitted evidence that the lack of financial transparency in the BOTs is a national security risk. She says the VI is the second most popular destination for Russian money and has proposed an Order in Council to mandate transparent reporting requirements. There is a danger of rerunning the FAC discussions here despite the very different terms of reference.

Because of its proximity to the UK and its forced withdrawal from the EU, Gibraltar would like representation in both houses of the UK parliament and a unique tailored form of decolonisation that would take them off the UN list of non-self-governing territories. As they have often repeated, the Falkland Islands does not want a designated MP. They say they can contact any MP they need to, so why would they want to be restricted to just one? Both territories are planning constitutional reviews, with Gibraltar planning a referendum on the outcome, which will be used to challenge the UN’s refusal to remove the territory from its decolonisation list.

Most BOTs want more devolved powers and the right to represent themselves in international fora. The VI, just like the Falklands, emphasises that it has repeatedly said that it does not want to be “represented in the UK Parliament or any other parliamentary body.” Monserrat, however, says it does and that “the territories must have representation at the Privy Council.” This is the monthly meeting where the King assents to Statutory Orders “in Council” with members of the UK Cabinet. Orders relating to the BOTs are very rare, and since the 2012 White Paper was published, there has only been one. This was in 2019 and was designed to create a co-ordinated approach to sanctions against Russia. Dame Margaret’s Order, which the UK Government has been resisting for some time, would be the second.

Anguilla is also proposing involvement in the UK parliament, but through a new select committee, in which the BOTs would participate either in person or remotely. This goes beyond the recent decision by the Foreign Affairs Committee to set up a BOT sub-committee. Anguilla wants to go beyond the inquiry process to input into decision-making directly. Anguilla is concerned about decisions the UK parliament has taken that did not consider how they would impact the Overseas Territories. The big one is Brexit, which Anguilla covers in great detail in its evidence.

Brexit has caused significant problems for some territories, particularly those with a substantial economic connection to the EU. The loss of tariff-free access to the single market is one problem, and the Falklands now pays ￡15m per year in tariffs to the EU. Anguilla says Brexit has cost it access to funding and a route to international influence. It is now more dependent on its relationship with the UK, which is also a step backwards and can be complex. The Falklands say having to go through the FCDO all the time, for example, about its delegation to COP27, was immensely time-consuming and unproductive.

The evidence repeatedly raises the European Convention on Human Rights (ECHR). All the inhabited BOTs are covered by it except Pitcairn. However, there is a concern from academics and human rights groups that the legal application of the ECHR is in name only, and the Constitutions need to reflect it more appropriately. There is no affordable route to bring cases under it. It is a pertinent issue at the moment because of an intense campaign from some in the UK Conservative Party to withdraw the UK from it. I’m surprised that those who oppose universal human rights in the Caribbean don’t make more of this hypocrisy.

The evidence (72 submissions so far, with the portal still open for more) contains a variety of conflicting views, and it isn’t easy to see how any consensus can be reached. Certainly not one that everyone will agree with. What comes across most is how differently each territory views its relationship with the UK and how confident they feel about challenging it. This is in part related to the degree of self-sufficiency and dependency, but also the amount of attention the FCDO gives. The most striking contrast is between the evidence submitted from the Falkland Islands and Montserrat.

The Falkland Islands say, “The FCDO in London…is staffed with officials who deal with the Overseas Territories on a daily basis. There is a specific Falklands Desk, which has four fulltime members of staff. This, combined with the Governor’s office in Stanley and the wider UK diplomatic footprint, is a tremendous resource at our disposal.” The former Governor of Montserrat, however, has a different tale. “In my time, the (Governor’s) office had been allowed to shrink to only 1-2 UK-based officers of middle rank and a small, local, corporate and secretarial service team. I received no response to my requests for reinforcement…Either the constitutional load on the British Governor needs to be reduced radically, or the Governor’s Office needs major reinforcement”.

It is no wonder that Montserrat’s submission includes requests for the Governor to be removed from the Cabinet, and reparations for historical injustices, even if these issues are outside the Committee’s remit. Montserrat is recovering slowly from a natural disaster. The Falkland Islands has been invaded. Should there be such a disparity in the UK’s approach? There are cultural differences between the North and South Atlantic, too. Falklands says it ensures compliance with the ECHR, but Montserrat euphemistically refers to requirements that conflict with its “culture, religious beliefs and wellbeing”.

The Falklands say, “There is much that works well with our current relationship with the UK and much to celebrate.” Montserrat says: “The UKOTS seemingly live under the threat of a Commission of Enquiry and suspended constitution if they do not align with certain expectations.” Montserrat also says, “It is imperative that the United Kingdom lends its support to constitutional reform efforts,” whereas the Falklands is more cocky: “Should we conclude that reforms are required, we will inform the UK Government through the appropriate channels.” This difference in attitude is one of the stand-out issues in the evidence submitted. The people of the Overseas Territories do not all think alike. The constitutional settlement cannot be the same for all of them. The 2012 White Paper which currently governs the constitutional relationship, is already looking dated.

But an ongoing difficulty remains. If the UK Government, through the FCDO, is making decisions on behalf of the territories, how should it be held to account? What would a “full measure of self-government” really mean for each territory? The Gibraltar and Montserrat proposals would not get much support from the others if there was an attempt to universally apply them, and although the Anguilla proposal might get some, the Falklands government has already said it is sceptical of the idea, and the VI has rejected it. The Committee is due to report in 2025.