18
Examination of witnesses
Professor Peter Clegg and Dr Derek O’Brien.
Q1 The Chair: Welcome to this meeting of the House of Lords Constitution Committee. This is the first evidence session of our new short inquiry reviewing the 2023 UK-overseas territories joint declaration. Today we will hear from Professor Peter Clegg, professor in politics and international relations at the University of the West of England, and Dr Derek O’Brien, associate professor in law at Oxford Brookes University. You are both very welcome here; thank you very much for taking the time and the trouble to come. This is a good opportunity to go through the themes we want to know more about. Please make any opening statements; otherwise we will go straight in. What is the constitutional relationship between the UK and the overseas territories and, in particular, the issues to be aware of as we start our inquiry?
Dr Derek O'Brien: My immediate response is that it is complicated. This reflects the sheer diversity of the 14 overseas territories, from the British Antarctic Territory to the Cayman Islands, which is the fifth-largest financial centre in the world.
To avoid getting lost in the weeds, it might be helpful to divide them into three broad categories. In the first are those with no permanent population and no democratic institutions, such as the British Antarctic Territory, the British Indian Ocean Territory—so long as it is an overseas territory—and the South Georgia and South Sandwich Islands. We could also add the sovereign-base areas in Cyprus, which are administered by a commissioner appointed by the FCDO. Cyprus is slightly different: there is an official appointed by the Ministry of Defence.
The second broad category is those with democratic institutions and a ministerial system of government, such as all the Caribbean overseas territories, Gibraltar and the Falkland Islands. An intermediate category would include the Ascencion Islands, St Helena and Tristan da Cunha which are quite complicated, because although they are a single overseas territory, they have three separate Governments. St Helena has a governor and a legislative assembly, while the other two islands have commissioners and island councils. Finally on that list, the Pitcairn Islands has an island council and is governed by the British high commissioner in New Zealand.
The second category garners more attention. Those countries with democratic legislatures and ministerial systems of government are not only the most constitutionally complex but also the most constitutionally controversial. Although they have democratic institutions and a cabinet, they have to function under a system in which the governor usually presides over the cabinet, and they have no say in the appointment of the governor who retains important reserve powers. This is also a system under which the UK Parliament, in which they have no representation, has ultimate legislative authority over them.
Professor Peter Clegg: Overall, I would say that it is about responsibility versus authority. Who is responsible ultimately? The UK Government are. Who has authority? Increasingly, it is the overseas territories. I am talking in a very general sense. There is a tension over whether the UK Government feel that they have enough authority going alongside the responsibility. This is often where tensions exist—between the OTs on the one hand, and the UK on the other. That has been the case over the last 50 to 60 years. There have been constitutional changes and reforms, and the rebalancing of powers between them. But, in essence, responsibility versus authority is the inherent tension and struggle between the UK and the territories.
Lord Beith: I would like to check a factual point about Pitcairn. With its tiny population, it does not fit into any natural category. My understanding is that until recently, the deputy high commissioner to New Zealand was separately appointed to be the governor of Pitcairn. Is that not now the case?
Dr Derek O'Brien: I understood that it was the high commissioner, but it may well have changed to now being the deputy high commissioner who is the governor.
Lord Beith: That was the case a couple of years ago.
Q2 The Chair: You used two words: “tension” and “struggle”. That makes it sound as though these relationships are extremely inharmonious. You are nodding, I think, because you agree with the essence of what I said. What are we dealing with here? Is there a great deal of tension between the FCDO and these individual overseas territories, is there something more strategically wrong in the relationship or does it just need tweaking every now and again to keep things on an even keel, while allowing a real sense of self-determination from these countries?
Professor Peter Clegg: Overall, the relationship is decent and solid, but there are issues of tension and concern. The two main areas relate to legislation from the UK that is implemented—or, arguably, imposed—on the overseas territories.
The Chair: What kind of legislation?
Professor Peter Clegg: Beneficial ownership is one example that came through Parliament in 2018. Social policy is another: the ending of the death penalty and the decriminalisation of gay sex. Those were pieces of legislation completed through Orders in Council which the OTs did not want. That understandably causes significant tension and response from the overseas territories. The second area is when the governor uses his reserve powers and authority to make changes: that could be in relation to legislation, but it could be in relation to smaller aspects. Recently, for example, in the Turks and Caicos islands, the governor has intervened to allow the TCI Islander status of a number of individuals to be awarded, when the local authority had not done that and the governor felt that due process had not been followed. They intervened as a consequence. It is those two areas that really cause tension between the two: legislation and the activism of the governor, from time to time, in the overseas territories.
Dr Derek O'Brien: I have a couple of recent examples to add to what Peter has said.
The Chair: Yes—more flesh on the bones.
Dr Derek O'Brien: On the issue of same-sex marriage, the introduction of something that falls short of same-sex marriage—civil partnerships—was bitterly opposed in the Cayman Islands. The case ended up being taken all the way to the Privy Council. More recently, in BVI and Bermuda, the issue of the decriminalisation of cannabis, and the establishment of a medicinal cannabis industry were both points of tension.
The Chair: The UK Government have not insisted on the decriminalisation of cannabis.
Dr Derek O'Brien: No, it was proposed by the BVI and Bermudan Governments. Their legislatures passed legislation approving it, and it was only at that point that the governor refused to assent to the legislation.
Baroness Andrews: I just want to make sure that I understand that. In Bermuda, decriminalisation was a big issue that had financial implications as well. Did that legislation go through in Bermuda or is it still in abeyance?
Dr Derek O'Brien: It went through in Bermuda, but the governor refused to assent to the legislation, so it has not been implemented.
Baroness Andrews: Is it in a state of limbo, then?
Dr Derek O'Brien: Yes.
Baroness Andrews: How will that be resolved? Whose initiative would be required to do that? Would it have to be the FCDO saying, “Okay, fine, whatever—you get what you want”?
Dr Derek O'Brien: There are two issues. The issue of decriminalisation is separate from having a medicinal cannabis industry. Decriminalisation is not something to which the FCDO is ever going to assent, due to their commitments under at least two conventions regulating narcotics and other prescribed drugs. The UK says that if we permit the decriminalisation of cannabis, we will be breaching international law. I do not think that will change. It is setting up a regulator for the cannabis industry and transferring responsibility from the Home Office to Bermuda.
Lord Murphy of Torfaen: Can I ask about the Cayman Islands and the same-sex marriage issue? In this Parliament, it is an issue of conscience. There is never a government-sponsored Bill, or if there were then it would still be an issue of conscience; it would not be a whipped Bill, if I can put it that way. Why is it felt that, having already got civil partnerships, by not moving to same-sex marriage the Cayman Islands is out of order?
Dr Derek O'Brien: The view of the LGBT community in the Cayman Islands would be that it means they are second-class citizens who do not enjoy the same rights as heterosexual couples. The other difficulty with it is that the UK Government always defend their position on the basis that the European Convention on Human Rights does not demand that states make provision for same-sex marriage, but that is based on a judgment from 2011-12 and it is not clear that the European Court of Human Rights would not decide the issue differently now. However, even if there is no obligation under the ECHR, I guess the argument from the LGBT community is, “We are one global British family. Why should we not have rights that British citizens on the mainland enjoy?”
Lord Murphy of Torfaen: Is that the case in the other overseas territories?
Dr Derek O'Brien: In all the Caribbean overseas territories, it is exactly the same.
Baroness Andrews: I am awfully sorry; I should have asked this as part of my original question: is the death penalty still active in Jamaica?
Professor Peter Clegg: Yes, and in some of the other independent territories.
Baroness Andrews: Is that a matter for the Home Office or the Foreign Office? If we wanted to put pressure on countries to think again, who would be responsible for trying to make that happen?
Professor Peter Clegg: It is a much more distant kind of relationship and conversation. I imagine that the FCDO would have that conversation and make those representations, but it is quite a different situation and scenario in the overseas territories.
Lord Murphy of Torfaen: Well, they are independent, are they not?
Baroness Andrews: Precisely.
Lord Murphy of Torfaen: So there is no death penalty in any of the overseas territories.
Professor Peter Clegg: No. There was disquiet that this decision was imposed by the UK, but it has been a settled issue for the last 20 or 30 years.
Q3 Lord Burnett of Maldon: I should declare an interest: I chaired a constitutional tribunal set up by the Governor of Bermuda, which concluded its work in April this year. My question is to follow up on the sort of division that you have identified, which includes the responsibility of the UK towards the overseas territories, and to explore one of those responsibilities. There have been instances in the relatively recent past where the constitution of an overseas territory was suspended because of corruption concerns. Very recently, of course, there was a substantial judicial inquiry in the BVI that led to recommendations and which the UK Government essentially sorted out with the BVI. So how does that work? In other words, what needs to happen on the ground before the UK Government, through the Foreign Office, intervene in quite a stark way to sort out what are perceived to be profound local problems?
Professor Peter Clegg: This is often called the nuclear option, which the UK Government do not take at all lightly. There is an interesting difference, which you have identified, between the Turks and Caicos Islands about 15 years ago and what has happened in the British Virgin Islands more recently, where direct rule through the governor was not imposed but the country was encouraged through the local political class to make those changes. There was an interesting discussion in the BVI Commission of Inquiry report in 2022 about the role of the governor: should the governor have intervened earlier and, more significantly, tried to pre-empt, in essence, a significant collapse of the local political system? The commission’s report said, “Actually, no”. The governor tried to suggest areas of improvement, but it is the responsibility of the local Administration to deal with issues—until, of course, they come to such a significant extent that the UK has to intervene.
This is a difficult area. Do you leave things for so long that then you have no choice but to do a significant root-and-branch reform of the local political class? The role of the governor is constrained. They can engage, negotiate and persuade, but there is not much in the middle strand of authority to engage, and then there is the nuclear option. That has been a challenge over the last 40 years or so in several cases because of the idea of neo-colonialism—that, if you engage too significantly in overseas territories, you are showing your colonial influence—and the Caribbean Community is very hot on that and makes strong representations in relation to it. This a difficult issue, and one that has reoccurred. You give the local Government the benefit of the doubt but, on occasion, they go too far.
Dr Derek O'Brien: To add to what Peter said, there might be a fundamental tension between the idea that the UK Government are responsible for good governance in the overseas territories and the principle of autonomy, which has been highlighted recently. Peter mentioned the role of the governor but there is the role of the FCDO as well. Prior to coming today, I was looking again at Lord Justice Auld’s report on the Turks and Caicos, whose constitution was suspended. He mentioned that when the Foreign Affairs Committee looked into what was happening in the Turks and Caicos at the time, it was highly critical of the FCO, saying that it had allowed corruption to fester and its response had been, at best, effete. Then there was another problem that it mentioned, which was that the FCO was putting the burden of justifying intervening in the affairs of the TCI on local citizens, despite concerns about intimidation and whether they could speak in confidence and get protection. So, as well as the governor, the FCDO has a role in this.
Professor Peter Clegg: That is where the Foreign Affairs Committee, when it undertook its investigation, was key: it allowed those people in the TCI to speak openly but in confidence.
Lord Beith: We are trying to sort out two different situations. What you just described is what happens when you are worried about the state of governance, which the governor is supposed to deal with, but which depends on all kinds of subtle intervention with the political class in the territory concerned. Where the territory is moving off legislatively in a direction not approved of by the UK Government, then presumably the crunch point is the governor’s unwillingness to sign off on the legislation at the appropriate time and the threat he makes that, if the legislation goes through in a certain form, he is not going to be able to sign it. So you have a clear point where the dispute is crystallised.
Professor Peter Clegg: Absolutely. The power of giving assent or not is common across the overseas territories. As happened in Bermuda, as we have discussed, that can be quite a powerful tool. Legislatively, the governor has a more direct and obvious way of preventing that divergence.
Lord Beith: But that is not much help to you in the governance situation, where your worry is potential corruption or just mismanagement. Do you find that there is a tendency to use one issue to deal with the other—that is to say, “I’m not going to sign off this legislation until you sort out the other problems”?
Professor Peter Clegg: In my experience, that has not happened. They are considered quite differently. As you say, the nature of governance and risks around corruption, and a lack of transparency and accountability, are much more deep-seated and profound than maybe just a single piece of legislation.
Dr Derek O'Brien: As I understand it, the governor can refuse assent to legislation only where it touches on reserved matters but not where it concerns the domestic affairs of the OT. I do not know whether the governor could actually use the option of not assenting to legislation if he was concerned that it was affecting the quality of governance of the OT.
The Chair: Lord Griffiths has a question about the joint declaration, which is at the heart of the inquiry that we want to do.
Q4 Lord Griffiths of Burry Port: Thank you both for coming. I look to you for enlightenment. I am new to this area of foreign policy and relationships. Consequently—although, as I mentioned outside, I know a fair bit about the Turks and Caicos, lying so close to Haiti, where the predominating question that I have been involved in is migration and the number of Haitians who live in Turks and Caicos, and it is the same in the South Bahamas—I had no kind of real relationship apart from that to any of these other territories. Their diversity, which you pointed to, is the thing that struck me at once. You helpfully gave us the three different groupings but the disparities within some of those groupings are enormous; for example, that the Cayman Islands and Turks and Caicos are in the same group is very odd.
On the agreement, I am accustomed to reading the personal statements that young people make in their attempts to go to university, where they try to persuade the university of their choice that, if it does not take him or her, it will be losing the best person in the universe. The declaration bears all the qualities of that kind of statement, to be honest. From looking at some of the case studies that came with our papers, it is obvious to me that there is a fair bit of falling away from the high idealistic statements and good will encapsulated within this document, and it is different kinds of falling away, too: people have promised to do things and then have not delivered them; deadlines have been set and some have observed them and others have not, and so on. Then there is this wretched business of a 2012 thing that is clearly out of date and what happens with the fact that circumstances have changed in the meantime. I do not mind confessing to you that I am totally bewildered, and I look to you as the two wise men in this season—later we will have three—to help me to understand why this approach has been chosen.
I know the Caribbean reasonably well and those countries cannot organise themselves as a region on the grounds of economics and politics, let alone this sort of thing. The Caribbean is now so divided into the oil-rich south and the tourist-centred north that any kind of unity and high-minded stuff like this is at odds with reality. So—I have come to my question—does the declaration serve any real purpose at all? Would it only be in Utopia that we could hope to see all these details fleshed out across the territories? Why does this preoccupy us when bilateral relationships mean that circumstances that obtain in each of the territories are foremost in the consideration and can be taken into account? Why are we going in this direction? Is it useful? Has it achieved anything? Those are my questions.
Professor Peter Clegg: I think the joint declaration is useful to incorporate all the territories together, and there are some key underlying principles that pervade them all. The issue of self-determination is important, as are the issues of the quality of democracy and elections and the importance of fundamental rights and non-discrimination, while environmental concerns are also quite common. So as an initial high-level document of intent—although follow-through is another question—I think it serves its purpose, as do the communiqués through the Joint Ministerial Council, for example, one of which was held last week.
Part of the problem with the declaration is that it was slightly interrupted by the general election in the United Kingdom. Progress may have been quicker in relation to a new strategy, for example, if the election had not come at that time. Still, there are positives as a consequence of the declaration, bearing in mind that there has been a change of Government who are looking at things in a different way.
However, you are right. The declaration and indeed the Joint Ministerial Council communiqués do not set deadlines for specific actions. The declaration does not say what the consequences are if the deadlines are not met or whether there is co-ordination across the entire UK Government. All the main government departments come together in the Joint Ministerial Council, for example, but what follow-through is there between Joint Ministerial Councils? There was an idea to have strategy documents for each department in relation to the overseas territories, but I do not think that is in place. The role of the Foreign, Commonwealth and Development Office is to try to be a facilitator across government. The Ministry of Justice does that quite well in relation to the Crown dependencies, which are smaller and closer to home, but that level of engagement across Whitehall is not necessarily as it should be, which goes to your concerns about what happens after these declarations and communiqués are put in place.
Lord Griffiths of Burry Port: You have put a very nice gloss on it.
Q5 Baroness Andrews: In 2022 there was supposed to be a JMC that was cancelled at short notice, and there was clearly some bad feeling about that. Do you think the declaration itself was, in a way, a response to injured feelings? Who actually initiated it? Did the initiative come from the collective around the OTs? Having met them informally, though, it is clear to me that they do not meet very often, they acknowledge their huge differences and they are concerned that they are bundled together in some ways. So who would have initiated it? What was the real motivation? Was it anything to do with these injured feelings? Since then, we have not seen much action to follow it up. For example, Ministers were meant to meet regularly in a group with Ministers from the OTs but, as far as we know, that has not happened. So my questions are on motivation, timing, injured feelings and lack of response.
Professor Peter Clegg: You are probably right on all those respects. The late cancellation of the JMC was unfortunate and did not reflect well on the UK Government at that time, and afterwards I think there was a recognition that more needed to be done to rebuild the relationship. The declaration was a mutually agreed way of trying to re-establish and reformulate the relationship and put it on a slightly firmer foundation, although the follow-up may not have been that significant. That is the issue.
Regarding the points of contact between the UK and the overseas territories, you have it at ministerial level; you have it within the context of the Civil Service; there is the governor, of course; and then you have the United Kingdom Overseas Territories Association and its representatives here. There is also an attempt to try to build up capacity more generally. You are right that there is some attempt for the OTs to meet independently; they meet before the JMC, for example, to try to organise a common approach, which is good. There have also been attempts to bring in UK local government to provide support and advice to the overseas territories and the Crown dependencies. So there are multiple avenues of potential engagement and support, but it is about trying to co-ordinate those in an effective way and having a strong focus across two years.
We have not yet talked about funding. The Joint Ministerial Council statement last week talked about the funding that was lost through the European Union, for example. That is more of a historic discussion now, but the EU funding was over four or five years and was allocated to individual territories for particular projects. That kind of funding is not in place at the moment in the context of the overseas territories; it is generally yearly and on a competitive basis. So when it comes to longevity and longer-term thinking, there is perhaps an issue there for discussion within Whitehall and with the territories about how best to provide that kind of resource—not just budgetary aid, which only a small number of OTs have, but longer-term support in terms of the environment, infrastructure and things like that.
Baroness Andrews: That is all very important. One final question: if the declaration is more performative than a useful policy or co-ordination tool, who has the most to lose if it does not actually mean anything?
Professor Peter Clegg: Both have quite a lot to lose in terms of the practical support that the OTs may or may not receive from the UK—that is really important. For the UK, it is important to have that level of involvement and engagement in a collaborative way. Sometimes this is not the case, and it does lead to decisions being taken by the UK that do not go down well in the territories. There is a mutual benefit, because there are a lot of issues—whether in the governor’s reserve powers, or on devolved responsibilities—but actually there is a collaborative interest to deal with those issues as effectively as possible.
Baroness Andrews: Within the OTA itself, who is likely to go on nagging the FCDO or the Government about getting on with this? You can see, for example, that Gibraltar would not have as much of a stake as some other countries. Where is the pressure to come from to make this a reality?
Professor Peter Clegg: The pressure will come from the elected local governments through their UK representatives. There is also the topic of capacity. This is sometimes a frustration, maybe more on the UK side than the OT side. Perhaps one positive thing that has come out of the joint declaration is the new biodiversity strategy, launched last week, where there is specific focus on individual OTs. This is not always the case, and so this was really positive. It is about the capacity of small territories to be able to undertake the things that are asked of them, and therefore what role the UK would have in that context. I think it is so intertwined at that day-to-day policy level. We can talk about legislation and wide-scale corruption, but the essence of the relationship—where it really matters, and where it is effective—is in getting those day-to-day mechanisms and engagements correct on both sides, for the benefit of both.
Q6 Lord Foulkes of Cumnock: This is to ask about the publicly available register of beneficial interests, which the UK Government asked the overseas territories to introduce. Four territories have still not introduced it: the BVI, Bermuda, Anguilla, and the Turks and Caicos islands. The Government seem to be holding back on this, and yet it is a very important issue. We seem to be letting them get away with it. What is happening there?
Dr Derek O'Brien: There have been a lot of promises, and the deadline keeps being extended. My understanding is that the position of the overseas territories that you mention—and that of the Cayman Islands, to an extent—is that they are prepared to have legitimate interest overseas business registers, but will limit access to those registers. This was not the intention when Parliament passed the 2018 Act, and had a draft Order in Council. Certainly, the steps that the overseas territories have taken have not been nearly sufficient to satisfy organisations like Transparency International.
I do not know whether we will come back to this, but one of the questions was about times when engagement between the overseas territories and the UK Government has been poor. SAMLA would be an example of that. It is also a clear example of times when the UK’s interest and those overseas territories’ interests do not coincide, when they do not align. The overseas territories say that it will damage the right to privacy under the constitution or damage their financial competitiveness. Partly it is to do with how the issue is framed. When it was being debated in Parliament, it was framed as an issue of national security, but that is the national security of the UK; it was not obvious that it affected the national security of the overseas territories or why the UK’s national security trumped their concerns about financial competitiveness. The UK’s national security does not even fall within one of the reserve matters for which the UK is responsible.
Lord Foulkes of Cumnock: It reflects very badly on the United Kingdom when Russian oligarchs escape to the BVI, or when others set up companies there and we do not know who owns them. This happens in the Turks and Caicos islands as well. There was going to be an Order in Council, and I understand Stephen Doughty has now said, “Okay, we’ll forget about that”. Surely they should take further, stronger action to deal with this.
Dr Derek O'Brien: I would tend to agree with that but, from looking at the more recent Joint Ministerial Council communiqués, it looks as though the UK Government are tolerably satisfied with the actions of those overseas territories even though they clearly do not satisfy the original intention behind SAMLA.
Lord Foulkes of Cumnock: I am certainly not satisfied with it. Maybe it is a question that we can ask Stephen Doughty when he gives his evidence. Do you not think it reflects badly on the United Kingdom when these territories are home to tax dodgers and Russian oligarchs?
Dr Derek O'Brien: I do, but again it runs up against the principle of autonomy. You want to maximise the autonomy of the OTs as much as possible, but impose legislation upon those territories. You also run into the problem that the UK overseas territories do not have any representation in Parliament, so they have no say about it.
The Chair: We have probably done that side of it, Lord Foulkes.
Q7 Lord Waldegrave of North Hill: I want to explore a happier outcome. The inhabitants of Gibraltar posed a lovely political examination question for the system, namely by voting almost unanimously to stay within the European Union, when the rest of the nation took a different view, but a border deal has now been sorted out. However, and I wondered whether—observing this from a distance—there was anything in the process that seems to have been rather successful and that we could learn, perhaps in relation to some of the issues that Lord Foulkes has just raised.
Professor Peter Clegg: I think that you are right. When it comes to consultation, the Gibraltarians were centrally involved from the outset of that process, so it was in essence a three-way not a two-way negotiation. As your Lordships might be aware, there are other examples where the Gibraltarian voice was not included. This caused significant disquiet in 2002, for example, around the joint sovereignty arrangements. Those failures, and the strong Gibraltarian response under those circumstances, meant that, when this very challenging situation was faced, the Government of Gibraltar were centrally involved.
That is true for all the overseas territories, probably, and it might link also to the issue of beneficial ownership. If you are presented with something without your knowledge, you are going to respond in a particular way. If you are brought in from the very start of those conversations, there can be compromise. Ultimately, you might not exactly like the deal, but at least you have been involved in that process and have had a voice. It represents an excellent case study for when there are difficult conversations on bringing all parties together from the earliest possible moment.
Q8 Baroness Laing of Elderslie: Can I ask a very simple question? Under paragraph xxiii of Part VI, the joint declaration says that “The UK will set out how it will deliver on its commitments through a published strategy”. Am I right in thinking that that has not happened?
Professor Peter Clegg: Not yet.
Baroness Laing of Elderslie: Yes, not yet. That is just a factual question, and I appreciate that you have no responsibility there, but I got that impression. Thank you. I think that some of this has come out in the discussion that we have just had, but I follow up with a question to Professor Clegg. You mentioned a “common approach” in one of your answers a few moments ago; I wonder how valuable it is to have a single policy statement that sets out the terms of engagement for all the overseas territories, as opposed to having a bilateral approach.
Professor Peter Clegg: In the 2023 document, there is a mention of having bilateral compacts between the UK and individual overseas territories. To my knowledge, at least, those have not been initiated. They remain within that statement, and that is something that I think is a good idea. In some of the examples we have talked about, around beneficial ownership, having the Falkland Islands involved in that same legislation perhaps does not have the same resonance as for the BVI or the Cayman Islands.
Sometimes, when urgent decisions are made, elements of the UK Government might perhaps forget the nuances that exist. Having those compacts would be very useful, not only in relation to specific policies but to the general principles underlying those bilateral relationships. It goes back also to what we were discussing earlier about Whitehall understanding the differences across the overseas territories.
Lord Griffiths of Burry Port: But what needs to happen for that to happen?
Professor Peter Clegg: The Foreign, Commonwealth and Development Office, as the main link between the UK Government and the overseas territories, needs to be very sure about it. It means lobbying, engaging and developing that sort of culture within Whitehall. It needs to be a culture that is clear that the overseas territories are important and should not be last on the list such that, when policy is discussed, they are always remembered.
Lord Griffiths of Burry Port: Whose door do we knock on?
Professor Peter Clegg: I imagine that would be the Minister’s door in the first instance.
Lord Griffiths of Burry Port: Then let us resolve to knock on it.
Baroness Laing of Elderslie: Thank you; that was a very helpful explanation. Would it be reasonable to conclude that there have been a lot of good intentions but not much action?
Professor Peter Clegg: I would say that there have been good intentions and some action, but not necessarily enough or over the longer term.
The Chair: Lord Beith, do you have a supplementary question?
Q9 Lord Beith: It is a different question really. In the past, it appeared that the Foreign Office was perhaps more preoccupied with defending its position with the colonialism committee at the United Nations than with what would be an appropriate structure for relationships with these very diverse territories. Do you think there is some truth in that? And has that approach now gone, in favour of a more realistic recognition that, while there are certain issues that need to be resolved, territories will generally have different needs when it comes to how much self-government they carry out?
Professor Peter Clegg: I think that there is a recognition, based on the size of the population, the nature of the economies and where they are located, of that diversity of opinion. Of course, the expectations at the United Nations are quite different; you have those three or four models of self-determination. The nature of the UK system derives, of course, from the nature of colonial rule and empire, and, of course, you still have the role of the governor within that context. That makes it very difficult to remove any of the territories from that list at the United Nations.
Conversations are ongoing between the territories and the UK Government about how we can better redesign our relationships and how we can get greater self-determination. But in the UK’s view, there are always those red lines. It is about the governor’s reserve powers, the independence of the judiciary in the territories and the impartiality of the Civil Service.
Those red lines are very difficult to overcome if you are still focused on responsibility and on the element of authority that we have in the overseas territories. There are some territories, such as the Cook Islands in relation to Australia, that are freely associated. They have complete autonomy except in relation to foreign affairs and defence. Of course, they are not on the UN list.
The questions are: is there any freedom of movement going forward, where there has already been quite a lot of constitutional change and greater autonomy awarded? How much flexibility is there in the current arrangements to allow greater self-government to be awarded? We are getting to the point where it is very difficult now to do anything significantly different, because the level of autonomy awarded up to now hits those red lines quite significantly.
Lord Beith: What is the basis of these red lines? The most obvious one is that there are important values, which are part of our own structure and which we think should be reflected in the territories. Perhaps equally important is what I call brand protection. The presence of our flag on the flagpole is an indication to others that this is a safe territory to do business in; this is a good territory to have relations with. Is that what you are talking about?
Professor Peter Clegg: I think so. We have what are called the “contingent liabilities”, which the United Kingdom has if things go wrong in the territories. Under both Conservative and Labour Governments, the UK Government’s view has been that we must have the tools to be able to intervene if things go badly wrong. Free association, for example, does not give that opportunity.
One of the phrases in relation to Bermuda is that you have American money and English law. That is quite a good set-up to have. There is a recognition that, under the UK umbrella, there are certain safeguards and protections that support investors and others. I think that is an important point.
Q10 Lord Burnett of Maldon: I am quite keen to come back to the declaration and one or two other things that have preceded it. It may be a fair observation that when, particularly in international relations, parties enter into agreements that suggest they are going to do lots of things and then not much happens, it is because everybody is reasonably content with the status quo. So my first question is: do you think that is what is happening?
In the background to this, of course, is the 2012 White Paper. I had understood that there had been a long-standing commitment in the UK Government to update that. Again, at least as far as I am aware, nothing has happened; it is not even that nothing much has happened. I am not sure that any work is being done on this at all in the Foreign Office.
So the second part of my question is: could you both spend a minute or two setting the scene with the 2012 White Paper, which seems to me to be an important background document, and say why you think it has not been updated?
Dr Derek O'Brien: I just want to mention the joint declaration and the point that you made regarding everybody being reasonably content with it. I think that is true, and that some of the items on the declaration—for example, giving greater autonomy to the overseas territories and helping the overseas territories to review their constitutions—were already happening before the joint declaration. So it is simply restating the existing position.
For example, the Turks and Caicos Islands had a constitutional review, and the BVI is currently undergoing a constitutional review, which was supported by the UK Government.
Professor Peter Clegg: On the first question, I agree. Is there a better option? Probably, at the moment, there is not.
On the second question, yes, the White Paper from 2012 was significant. It was probably the most important document since the 1999 White Paper under new Labour. My understanding is that, under Rishi Sunak, the Government were preparing a new White Paper but, of course, the election got in the way.
I would imagine that, over the next 12 to 18 months, a new strategy will be created and written by the present Government. Again, it goes back to some of the issues that we were talking about earlier. As a set of general principles and commitments—and highlighting the key issues of collective importance for the UK and the OTs—it is good to have a document.
Of course, the world has changed, and some of the international pressures and demands have changed. Any new White Paper has to acknowledge that but, as seems to be a bit of a theme to this discussion so far, what happens underneath is always important. So I think a White Paper is needed to update things, but what happens underneath is arguably more important.
Q11 Lord Murphy of Torfaen: In response to Lord Beith’s question I was interested, and the committee would be as well, in knowing whether there is any appetite in the territories for either independence or free association, like the Cook Islands, or even something like the Crown dependencies. In response, is there any sort of dialogue between the Crown dependencies and the overseas territories in that regard?
Dr Derek O'Brien: Let me speak to the dialogue between the Crown dependencies and the territories. I am sure Peter will confirm that, from time to time, the overseas territories make noises about independence, particularly when they are unhappy about the way in which they are being treated by the UK Government. For example, in response to the refusal of assent to the licensing of cannabis in Bermuda, some politicians were saying, “Now is the time that we become independent and truly a sovereign nation”. There were also talks about it when there was the inquiry into corruption in the Turks and Caicos. I remember, at one point, the Prime Minister suggested that he would join a federation with Canada, but Canada was not keen on having the TCI as part of it. Generally speaking, as has already been said, overseas territories, particularly those with strong financial sectors, benefit from their relationship with the UK.
Q12 Baroness Andrews: Under the radar—well, over the radar—is the JMC and there is some sense that the OTs would like the JMC to meet more often. Is this on the cards? Who sets the agenda for the JMC? Is it always a fixed or are they able to include items of specific individual interest? They all have a collective interest now in climate change, for example; they do not all have a collective interest in self-determination proceeding at the same pace or in the same way. Can the role of the JMC be improved in the way in which you suggest?
Also, you said the Foreign Office would love Whitehall—a bit like the devolution debate—to be better informed about devolution in the UK. Clearly, there are issues that would be more appropriately picked up and driven by the Home Office, whether it is on same-sex issues or whatever, or the Treasury rather than the Foreign Office. How might they make that happen? Is that a counsel of perfection?
My third question is: what is the role of the OTA representative in London? Do they get under the radar? How seriously are they taken and can they genuinely be representative of such diversity, anyway?
Professor Peter Clegg: You might have to remind me of one or two of those questions as we go on.
Baroness Andrews: I should remind myself of them, actually. I started off with the JMC; how much scope is there to make the JMC more effective as a policy driver or whatever?
Professor Peter Clegg: There are co-chairs. This time around, it was the UK Minister and the premier from the BVI. They co-create the agenda with input from the other territories. The problem, however, in terms of whether it should meet more often, is that it takes a lot for ministerial representatives from the OTs to come here. In some cases, it takes over a week to travel—from the Falklands, for example—to here. And it is at quite a high level. There is frustration that the focus is high level and that we are not really getting into the nitty-gritty of bilateral relations. I would not say that a second JMC during a calendar year would be particularly positive. What was your second question?
Baroness Andrews: My second question was: how does the Foreign Office engage with Whitehall? There is some irritation that it is always the Foreign Office that has to deal with these things, and it might be better and quicker if the territories could go straight to the effective department to administer it, whether it was the Treasury or the Home Office or whatever.
Professor Peter Clegg: That happens and should be encouraged more. For example, around the Russian sanctions issue, where all the OTs are obliged to follow those sanctions, the UK Treasury is playing a key role in providing technical support. To facilitate that and for the OTs to have confidence that it will be well received in different departments would be really encouraging.
Baroness Andrews: Would new messages have to be sent? Do they understand that they can do that or would they need the Minister to say, “Look, it is perfectly all right if you want to go straight to whoever. I quite understand; sort it out yourselves”?
Professor Peter Clegg: Those reaffirmations would do no harm at all but, on the other side, the departments should be receptive, open and knowledgeable in order to engage with the territories in an effective way.
Baroness Andrews: So it is a two-way process.
Professor Peter Clegg: Absolutely, yes.
Baroness Andrews: My third question was about the representative in London and their role. Can that role be beefed up? Would it be helpful if it could?
Professor Peter Clegg: It is for the OTs to make that decision. Some are more effective than others. That is partly about the size of the office and the individuals who are representing individual overseas territories, at any one time. But it is definitely an effective conduit into government, into Whitehall, by attending party conferences and things like that. It is quite a dynamic, flexible way in which to engage with government and politicians. Again, it could be enhanced and improved, but that would be down to the overseas territories.
Baroness Andrews: Do they each have their own OTA in London or do they share provision?
Professor Peter Clegg: Each of them with a permanent population has one.
Baroness Andrews: So do we have 14 reps in London?
Professor Peter Clegg: There are about 10.
Baroness Andrews: So they act as a sort of informal secretariat.
Professor Peter Clegg: In some ways, they do; they meet regularly, co-operate and collaborate, including sometimes with the Crown dependencies as well.
Baroness Andrews: Is that what you mean by under the radar or partly under the radar?
Professor Peter Clegg: Yes—there is informal, regular communication. It is not the big statements or documents; it is lower scale.
The Chair: I turn now to Lady Hamwee who had her hand up, but it seems to have gone. I think the question has been answered.
Baroness Hamwee: I think the moment has passed, Lord Chairman.
The Chair: In which case, I turn to Lord Foulkes, who has some questions on engagement and so on.
Q13 Lord Foulkes of Cumnock: I want to ask what we can learn from other countries, particularly France and its territories. I mean the territoires d’outre-mer, not the départements, which are part of metropolitan France. Is there anything we can learn from there?
Professor Peter Clegg: There is a range of territories, which are largely incorporated and integral parts of France. There are, of course, the Cook Islands, which we have talked about briefly. There is also the Dutch Caribbean with the Kingdom of the Netherlands, as well as the smaller Dutch territories being municipalities of the Netherlands. There is also the Commonwealth of Puerto Rico as well. So there is quite a range of options there or arrangements. I would say that the UK OTs probably sit somewhere in the middle of that range.
The French départements are quite a different set-up. It is difficult to see how aspects of that relationship could be easily moved across to the UK context, but there are some options. One issue is the level of communication and representation between parliamentarians here and those elsewhere. There is no formal grouping whereby parliamentarians get together to talk about some of the key issues of concern to them. That is the case within the Dutch Caribbean, for example.
There is also, within the context of Puerto Rico, the opportunity for particular task forces to bring together a wide range of interested stakeholders across government to look at particular issues. Again, that could be used within the context of the UK. It is a sort of mix-and-match approach in terms of what could be used. It difficult to see what would be there from the French case but, in looking at the Dutch Caribbean or the US Caribbean, there may be things that could be drawn upon that might be useful to enhance the relationship more generally.
Dr Derek O'Brien: There might also be lessons drawn about representation in Parliament and whether the overseas territories should be represented either individually or collectively in Parliament. Peter has written about this in terms of Iceland and Greenland, and the problems associated there, because it is an issue that comes up from time to time.
Lord Foulkes of Cumnock: It has been suggested that they, and the Crown dependencies, ought to have a representative, each or collectively, in Parliament. Does that work well in France?
Professor Peter Clegg: It does but it is about their voice in a much larger political system. That is a concern on the part of many overseas territories. At the moment, they have many different routes into government. The risk is that if you have a single individual and everything is directed through them, it might limit their levels of engagement more generally. There is no consensus across the territories in relation to parliamentary representation.
Lord Burnett of Maldon: Are any of them pressing for it a little?
Dr Derek O’Brien: Some are and some are not. There is no consensus about the issue at all. I was going to say that the pressure has come, if anywhere, from MPs in the UK Parliament. A number of Conservative MPs said that they should be represented.
Lord Griffiths of Burry Port: I began by saying that I was a parvenu and I am. But the one thing we all know is that certain members of our population have stashes of money in the Cayman Islands. I, as an ordinary citizen, would like to know a lot more about that with a bit more transparency. The word “transparency” does not enter into this debate unless it can be focused on an issue like that.
The Chair: I am not sure that that is what our inquiry is going to be about but it is a perfectly fair question.
Lord Griffiths of Burry Port: It was what Wordsworth called a “spontaneous overflow of powerful feelings”.
The Chair: We have reached the end of our agenda and the questions that we wanted to ask. You have been kind and helpful in developing our themes, thoughts and ideas about what this inquiry should be about. I thank you both very much indeed for taking the time and the trouble, and we will now end our public session.
