Written evidence from the Friends of the British Overseas Territories (SOT38)

Public Administration and Constitutional Affairs Committee

The Status of the UK’s Overseas Territories in the 21st Century inquiry

About Us

The Friends of the British Overseas is a charity whose primary aim is to raise awareness of the territories within the UK. This includes educational work and developing friendships between people in the UK and overseas. The charity raises money for projects within the Overseas territories, such as the eco-play educational facility in Montserrat and the Falklands Museum and has supported other groups that promote citizenship, civil rights and self-determination. We regularly engage with influential people, such as politicians in the UK and the territories, and those working in BOT-related areas, such as the environment. We organise online and physical events on various issues and produce and distribute books and other educational materials.  

Our Position

We are a charity, not a political organisation, and we are friends, not representatives. The overseas territories' profile and their people's interests should always be a consideration in UK policy. In the Brexit debate, for example, there was no informed discussion on the impact on the BOTs, despite them being pulled out of the EU Overseas Countries and Territories Decision, and in one case, the EU itself, without their consent. We celebrate the UK having its global footprint and acknowledge the different and often tragic histories that brought it into what we now call the British Family. But also, fully support the right to self-determination and encourage the UK to recognise that the BOTs and their people are a responsibility. 

What we have tried to do here is pick up issues that fall between the gap between where the FCDO has responsibility and where practical action is expected from the BOTs. This tends to be around biodiversity and human rights issues. The 2012 White Paper, which sets out the relationship between the UK and its BOTs, encourages the adoption of the same standard of human rights as in the UK, but it is unclear what that means in practice or how it would be achieved. We believe, for example, that the essential right, the right to self-determination, applies as much to those forcibly removed from the Chagos Archipelago and their descendants as it does to the Gibraltans. The right to self-determination should not just be about independence or integration but also about establishing an alternative relationship with the UK. 

Foreign Affairs Committee 

The recommendations of the 2019 FAC inquiry report on belonger status and equality under the Law for the LGBT community gained far more publicity in the region than the FCO's opposition to them did and most of the rest of the report's other recommendations. These included increased NHS quotas, more involvement in ceremonial events, and a new development fund, which were all addressed by the UK with no great fanfare. We make this point to inform you how the Committee's recommendations can be perceived. 

However, the BOTs did agree to include in the joint communique following the last JMC their support for the new arrangements for oversight of the BOTs from London, including an assigned Minister in each department responsible for their department's relationship with the Territories, meeting regularly as a group. This was in line with the Foreign Affairs Committee's recommendations but was overshadowed by other issues at the time. 

LGBT rights

There are better places to discuss in detail why there is such opposition to LGBT+ rights within some BOTs, but we raise the issue here to highlight the connection between this issue and the European Convention on Human Rights (ECHR).  

Of significance here is how the Civil Partnerships Law was enacted in the Cayman Islands. Having failed to get a majority in parliament, it was passed by the Governor using his reserve powers. These give him the power to pass legislation about his areas of responsibility, including "external affairs". 

This is the first time we know that a Governor has used his reserve powers concerning "external affairs" to ensure compliance with an international treaty. However, this was only because the Government was directed to implement the Law by the Court of Appeal following a previous legal case. However, the significance of the ECHR to many in the BOTs cannot be underestimated. 

European Convention on Human Rights

The ECHR applies to all inhabited BOTs other than Pitcairn, and the constitutional orders of the territories are designed to ensure compliance with it. Given the patchy coverage of other conventions, we are concerned with MPs repeatedly raising withdrawal from the ECHR as a possibility without considering the impact on the BOTs. This has been the case since before the EU referendum.   

Politicians who equate the ECHR with the EU referendum result are being deliberately disingenuous in our view and doing those campaigning for human rights in the BOTs no favours. If the UK does not wish to comply with the ECHR, why should islands on the other side of the world be expected to? The current debates around asylum seekers also present a dichotomy. Some politicians want to withdraw from the ECHR because of its protections for asylum seekers. However, they argue that asylum seekers should be housed on Ascension Island because, unlike Rwanda, the protection under the ECHR would still be available. Using the BOTs in this way appears cynical, not only to us. 

But clearly, coverage of the ECHR is not just an issue for the LGBT+ community or asylum seekers but for other marginalised groups, too. As the Governor of the Cayman Islands said, "An important principle in our Constitution and Bill of Rights is the protection of minorities. That principle protects all of us, now and in the future. We cannot pick and choose which rights are protected," But is that true? None of the overseas territories are covered by the UN Convention on the Rights of Persons with Disabilities (CRPD), although the non-discrimination clause of the ECHR covers them. Without the ECHR, would the progress on LGBT+ rights have been made? 

Core Human Rights 

Under international Law, the UK Government represents its overseas territories on international institutions, such as the UN and ILO. They are, therefore, bound by international Law through the UK. In the UK, legal cases relating to the ECHR are addressed first under the UK's Human Rights Act, but this does not apply to the BOTs. Cases, therefore, need to be taken to the High Court in the first instance. There doesn't appear to be any route to the ECtHR. 

In its 2022 Core Human Rights Document, the UK Government says the ECHR applies to all ten inhabited BOTs aside from Pitcairn. In 2010, the UK Government also said that since 1999, every new constitution, at a minimum, reflects the rights set out in the EHCR. The UK's MOJ Justice Assistance Engagement Plan states, "All of the Overseas Territories work to the principles of the European Convention on Human Rights. Residents of the Territories have a right of appeal to the ECHR, and the Governments of the BOTs are bound to follow the requirements of the Convention." Assuming this means the Court, not simply the Convention, raises the issue of how this is done. We are unaware of a case going to the ECtHR from the BOTs, and the Bermuda appeal against the legislation prohibiting same-sex marriage was settled in the Privy Council. The FCDO is responsible for ensuring that the ECHR is complied with, and as the Court of Appeal case in the Cayman Islands has demonstrated, under the Constitution, this means the Governor. 

Disability 

The most comprehensive disability law among the BOTs is the Solomon Webster Law in the Cayman Islands, which was enacted following the development of a 30-year rights-based disability strategy designed to comply with the ECHR. However, the British Overseas Territories are the only territories in the Caribbean that the CRPD does not cover. While most have anti-discrimination clauses in their labour laws, they do not all have a dedicated disability law. In 2017, the UN Disability Committee called for the UN CRPD to be extended to all British Overseas Territories, but the UK responded by saying it was a local matter. 

The problem is that St Helena and Montserrat are aid-dependent and could only make progress with FCDO support, and progress needs to be better across the BOTs. The situation in Montserrat, particularly, is that a significant infrastructure programme is in place, and whether the new developments are accessible is hit-and-miss. Some are, for example, the new Financial Services Commission Building, but some aren't, for example, the new beach toilets. There is no process for ensuring developers can be held accountable because the developer is the UK Government. 

Under international Law, the UK parliament has absolute power to legislate for the British Overseas Territories, although the UK Government is reluctant to use these powers. The practicalities of the UK's relationship with the BOTs are set out in a White Paper published in 2012 called Overseas Territories Security, Success and Sustainability. This does not reflect the current rights-based approach to disability, which the FCDO has incorporated into the 2022 disability strategy covering its aid programme. The paper states that the UK will only accept responsibility for violations of the CRPD if the territory can legally comply with it. It must demonstrate this, and the UK has to have agreed to extend its ratification to the territory. No territory has yet met this standard. 

2012 White Paper 

The disability issue shows, more than anything, why the 2012 White Paper is already out of date. UN CRPD was adopted by the UK six years before the White Paper was adopted and reflects a contrary approach to disability rights. The UN Convention incorporates a human rights approach, missing from the White Paper but now the basis of the new FCO Disability Strategy. The strategy says, "FCDO takes a human rights-based approach to disability inclusion, underpinned by the United Nations Convention on the Rights of Persons with Disabilities." This means that human rights issues related to disability are addressed in UK Government aid unless the recipient is a British Overseas Territory. 

The White Paper allocates the UK disability lead for the BOTs to the DWP and quotes the then Minister for Employment saying that the DWP will "continue to provide advice and support where needed" on all employment matters, including compliance with ILO conventions. But what does this mean in practice? There is also a gap between aspiration and reality here. Most of the ILO's ten core conventions have not been extended to the BOTs, although in the ILO's Declaration on Fundamental Principles and Rights at Work adopted in 1998, ILO Member States are called upon to respect the declaration's core principles that even if they have not ratified the specific ILO Conventions in which they are expressed. Does that include the BOTs? The UK is represented on the ILO through the DWP.   

General Orders and Colonial Regulations

A relevant report on human rights issues was produced by Social Development Direct, twenty years ago, on behalf of the FCDO and DFID. The "report sets out a summary of the findings of the consultation phase of the joint FCO and DFID' Realisation of Human Rights in the UK Overseas Territories' (UKOT) project". The report, which predates the CRPD, highlights progress made and points out several issues that must be addressed. These include children's rights, juvenile justice, and the rights of marginalised groups. But it also refers to the General Orders of the BOTs. In particular, "the constraining effect of unnecessarily restrictive General Orders on large parts of the population who work as civil servants" and "a 'culture of fear' in several territories where people are not prepared to speak out because of a fear of reprisals." 

We are not in a position to comment on how much progress there has been in the last twenty years, but the General Orders, which have their origins in a single set of colonial regulations governing the British Empire as a whole, 200 years ago, remain largely intact. Many of the clauses are incompatible with more modern laws and international conventions. Restrictions preventing all public servants from standing for public office breach the International Covenant on Civil and Political Rights. In a small territory, such a breach can affect a large proportion of the electorate. 

Although local amendments have created deviations between territories, there is still much to do. In the BVI, for example (and not uniquely in the BVI), the General Orders, first introduced in 1971 and last updated in 1982, state that "a married female officer whose domestic responsibilities interfere with the discharge of her official duties may be called upon to resign." That clause can be traced back to previous versions of General Orders going back for many years. Labour laws across the BOTs include anti-discrimination clauses and require reasonable accommodations for persons with disabilities, but the General Orders do not. General Orders say the opposite. Some exist only in their original form from the 70's and 80's, typed on a manual typewriter and now scanned.

UN C24 Committee

There appears to be no end to the annual reporting process to the UN C24 Committee on progress with decolonisation. Of the remaining non-self-governing territories within the Committee's remit, most are British, and there is no demand from any of them for a model of self-governance that would meet the UN's definition. Each year, reports are written, and resolutions are passed, with the only press coverage in the UK being Argentina's claim over the Falklands. As long as the UK parliament retains the power to legislate for the BOT, then their existence will be seen as a breach of the UN charter.

There is a point at which an alternative model of decolonisation will need to be considered, and the ultimate model for each island may differ. The UK appears to refrain from engaging with the Committee, and the annual reports that the UK is required to submit appear half-hearted. New initiatives will be included one year and quietly disappear the next. One BOT, Montserrat, received a visit from a mission from the Committee in 2019, but no response to its report was ever published by the Montserrat or UK Governments.  

Biodiversity

The remarkable biodiversity of the BOTs is valuable in its own right and, in many cases, because it underpins the lives and livelihoods of BOT citizens and communities. However, Much of the BOTs' biodiversity faces pertinent threats, including habitat destruction, invasive species, and climate change. With this in mind, it should be emphasised that the UK and the BOTs share responsibility for conserving the biodiversity of the respective BOTs. The responsibility borne by the UK stems from the international treaties into which the UK has entered on behalf of itself and the BOTs (e.g., CBD, CITES, CMS, and Ramsar apply to many of the BOTs). Much of this responsibility is enshrined by the still relevant environmental charters. In all, this means that the vast majority of the biodiversity for which the UK is responsible, around 90%, lies in the BOTs and that the UK is obliged to contribute sufficiently towards biodiversity conservation in the BOTs. 

In terms of what's happening in practice, the current UK-OT constitutional relationships mean that the BOTs are ineligible for the vast majority of grants for biodiversity conservation and are, therefore, highly reliant on UK support for such work. As such, the funding via the FCDO and its preceding bodies for the Blue Belt Programme and via DEFRA through Darwin Plus has been very much appreciated, especially following the recent bump in the latter. Engagement with BOT bodies as part of the development of the UK's upcoming UK Overseas Territories Biodiversity Strategy was also warmly welcomed. Yet, this said, the resources available for biodiversity conservation in the BOTs remain noticeably insufficient. This hampers conservation efforts and is therefore concerning for both the biodiversity itself and for the BOT citizens that depend on it. 

There have been many suggestions for how UK-OT relations could be amended to improve biodiversity conservation in the BOTs. In particular, BOT representatives have made many valuable suggestions at the various meetings of the Council of Environment Ministers of UK Overseas Territories and Crown Dependencies. They can be found via the following link: https://www.ukotcf.org.uk/environment-ministers-council/. Given the importance of the biodiversity of the BOTs and that of the UK living up to its responsibility and providing sufficient support in the long term, there is an onus on the UK to give such suggestions due consideration. 

Conclusions

Working towards universal human rights is a more realistic and desirable goal than aiming for a constitutional settlement that meets the definitions of decolonisation used by the UN. Are the Dutch and French Caribbean islands any more decolonised than the Falklands and Gibraltar? We would encourage more focus in reporting to the UN rather than just going through the motions, as appears to be the current approach. We also believe the definition of "external affairs" used in the Cayman Islands Civil Partnerships decision needs exploring further and certainly clarifying. UN Conventions not extended to the BOTs are not incompatible with the ECHR. Extend and then ensure compliance is an approach that has been used with some UN Conventions, before the policy changed.

In the 2023 JMC Joint Communique, the UK and the BOTs said they "reiterate our joint commitment to deepening our unique and modern partnership." And that they all endorse "the principle of equal rights and self-determination." But this does need to be more than words. The UK was an enthusiastic signatory to the Sustainable Development Goals, but these cannot be achieved without complying with the principle of decent work enshrined in the ILO Conventions and the Convention on the Rights of Persons with Disability. The Solomon Webster Law in the Cayman Islands is an excellent example of disability inclusion done well. The beach toilets in Montserrat stand as monuments to the belief that where there is no accountability, and no remedy, it doesn’t matter if you mess up.

August 2023