Formal Response from the Falkland Islands Government to the Public Administration and Constitutional Affairs Committee’s inquiry into the status of the UK’s Overseas Territories in the 21st Century

Introduction

The constitutional relationship between the UK and the Overseas Territories must be routinely reviewed. It is vital that the relationship remains fit for purpose and reflects the present realities in both the UK and the Overseas Territories.

As the Falkland Islands has developed to become an internally self-governing and economically self- sufficient Overseas Territory, our relationship with the UK has transformed from one of dependence to one that we believe is of mutual benefit to both the Falkland Islands and the UK. The Falkland Islands increasingly see our relationship with the UK as being a partnership, and one that the UK can have increasing confidence in. As that confidence increases, we would like to see more powers devolved to the democratically elected government of the Falkland Islands. We do not, as a result of this inquiry, wish to see a reversal of this.

Including the uninhabited Territories, there are 16 UK Overseas Territories. There are no two Overseas Territories that are the same, we are unique and we each have a very different constitutional relationship with the UK. It is therefore vital that this is respected by the UK Government, civil service, and Parliament.

Are the UK’s current constitutional arrangements as regards the overseas territories satisfactory and appropriate in the 21st Century?

The Falkland Islands have enjoyed a long and mutually beneficial relationship with the UK, are proud to be a member of the UK family, and are grateful for the continued support of the UK across a range of issues and areas. In March 2013, in our internationally observed referendum, 99.8% of voters, on a turnout of 92%, voted in favour of remaining an internally self-governing Overseas Territory of the UK.

The constitutional relationship between the UK Government and its Overseas Territories must be routinely reviewed. It is vital that the relationship remains fit for purposes and reflects the present realities in both the UK and the Overseas Territories. We therefore support efforts to modernise and advance this constitutional relationship so as to reflect the maturing governance, institutional, and fiscal capacity of the Overseas Territories as they develop.

The UK Government has stated that the 2012 White Paper is still the basis for the engagement with the Overseas Territories. We believe that a wide-ranging review of the 2012 White Paper is now necessary, following the UK’s withdrawal from the EU and her new “Global Britain” agenda. We therefore welcome the recently announced Overseas Territories Strategy that is being developed by the Foreign, Commonwealth, and Development Office (FCDO) in consultation with the governments of the Overseas Territories.

The last significant reform of the Falkland Islands Constitution was initiated in 2000 and concluded when our current constitution came into effect on 1 January 2009. Members of the Legislative Assembly and the Falkland Islands Government are currently engaged in a formal review of the

Constitution to ensure that it remains fit for purpose; should we conclude that reforms are required, we will inform the UK Government through the appropriate channels to begin discussions.

Whilst we remain committed to modernising and advancing the constitutional relationship between the UK and our Islands, we believe that there is much that works well with our current relationship with the UK and much to celebrate.

What is the UK Government’s relationship with the overseas territories?

The UK Government has stated that the 2012 White Paper is still the basis for their relationship with the Overseas Territories. This sets out the UK Government’s responsibilities and what they expect from the Overseas Territories, in return. The UK Government has responsibilities towards the people of the Territories and of the UK to ensure the good governance of the Territories. The UK Government expects high quality public financial management and financial services regulation as important contributors to building resilient economies and providing for the wellbeing of Territory communities.

The Governor of the Falkland Islands is His Majesty The King’s representative. Governors are appointed by His Majesty The King on the advice of His Ministers in the UK, and in general have responsibility for external affairs, defence, internal security (including the police) and the appointment, discipline and removal of public officers. The elected governments of the Overseas Territories have a wide range of responsibilities.

In practice each Overseas Territory will have a different relationship with the UK Government depending on whether they are aid dependent or not; whether they have suffered a major natural disaster; or like the Falkland Islands, they have a significant geopolitical challenge to manage on a daily basis.

The Falkland Islands’ relationship with the UK Government is primarily through the FCDO. We also have a close relationship with the Ministry of Defence (MoD). In addition to this we engage with other UK Government departments on a routine basis. As an example, our recent relationship with the Department for the Environment, Food, and Rural Affairs (DEFRA) has been highly productive and tailored to the needs of the Falkland Islands, highlighting the benefits of partnership working between UK and Falkland Islands civil servants. Two visits this year, the most recent organised around the Falkland Islands annual Farmer’s Week, have helped advance scientific work to understand the carbon emissions from peatland habitats and provided valuable training to stakeholders on managing wildfires, especially in remote locations. The relationships that have developed over the course of this recent cooperation have laid the groundwork for future activities and information exchanges. We are also grateful for the donation of equipment that will help support the Falkland Islands Fire and Rescue Service capacity to respond to wildfires.

Our relationship with the FCDO is overwhelmingly positive. Within the FCDO in London there is the Overseas Territories and Polar Directorate. This 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 key issue in the relationship between the Falkland Islands and the UK is support for our right to self-determination. At a UK, regional, and global level, the UK does an excellent job in not just defending our right to self-determination, but also promoting it. Whether this is at an official or a ministerial level.

This support is not solely confined to the FCDO. Falkland Islanders continue to be profoundly grateful for the strong support and commitment of the UK in protecting our sovereignty and choice to remain a UK Overseas Territory, and particularly the UK’s military intervention to repel the Argentine invasion of 1982 and continued deterrence through its presence here today.

The strong presence of British Forces South Atlantic Islands (BFSAI), from its base in the Falklands, is an essential and highly appreciated commitment by the UK to the protection of the sovereignty of the Falkland Islands. In addition, by providing the UK with a base in the South Atlantic, the Falkland Islands offers the UK Armed Forces (and her allies) a unique training environment and the ability to project its force more widely.

As a government, we are proud to support the continued presence of BFSAI in a number of important and tangible ways, and are conscious of the strategic geopolitical importance of our location at the Gateway to the Antarctic.

In a number of areas, the Falkland Islands Government and BFSAI enjoy a mutually supportive relationship, with each organisation providing services and support in important ways. For example, the Falkland Islands Government foregoes collection of personal income taxes from civilians employed in support services at Mount Pleasant, which helps MoD contractors to attract and retain a sufficient workforce and to contain their contract costs. BFSAI provides important support to Falkland Islanders as well, including operation of the international airport at Mount Pleasant and emergency medical evacuation as required.

In recent years, we have worked with BFSAI to identify opportunities for shared infrastructure and procurement in order to reduce duplication and achieve efficiencies. Areas of immediate focus include shared infrastructure for waste management, joint housing procurement, and development of improved air terminal facilities and airport operations. Our ultimate objective is to achieve a “one economy” approach that supports greater participation by the local private sector and achieves cost effective operations. Future projects could include a joint approach to the management of energy infrastructure and port operations.

We welcome the UK’s commitment to increase the defence budget above inflation. We know only too well how any reduction of the UK’s presence in the Falkland Islands is interpreted by the Argentine Government and how they respond to any perceived sign of weakness.

Engagement between the UK and the Overseas Territories, in relation to COVID-19, was an excellent example of the UK’s ability to provide critical support when it was urgently needed. Looking specifically at our own experience; in addition to our pre-existing local capacity, the MoD deployed a team of six medical staff from 16 medical Regiment, to be drawn on to supplement our own medical team as required. This additional capacity was under the direction of the Falkland Islands Chief Medical Officer. The UK Armed Forces also delivered equipment to the Islands that enabled oxygen generation; supplementing the existing capabilities at our hospital. A significant amount of PPE was delivered from the UK and critically, the UK ensured that a number of deliveries of the COVID-19 vaccines were made to the Islands in a prompt and timely manner. From their base in the Falklands, the UK was able to ensure the delivery of vaccines to some of the more remote Overseas Territories, such as Tristan da Cunha.

In addition to the delivery of vaccines, medical personnel and equipment, Ministerial and official level communication were excellent, throughout the entire period. We believe this provides a good example of how the UK and the Overseas Territories can work together to tackle a complex issue, and whilst we would not wish to endure an issue like COVID-19 again, we believe that the lessons learnt should be applied to other areas, where perhaps, historically, engagement with the Overseas Territories has not been as good.

Whilst ministerial churn is a reality of politics and outside of the control of the FCDO or any other individual department, it is a real issue. Since this government was elected in 2010, there have been at least nine ministers with responsibility for the Overseas Territories/Falkland Islands. Over this time, it has become very apparent that too much of the relationship between the Overseas Territories and the UK is dependent on the personality of the Minister and how engaged they are in the Overseas Territories, especially when the Minister will also be responsible for a significant number of other geographic areas. Progress made under one minister can be reversed under another. A Joint Ministerial Council chaired by one minister can be totally different in every aspect to one chaired by another. We are therefore delighted that the FCDO has acknowledged this as an issue. We hope that the new Overseas Territories Strategy, whilst not being able to remove this as a reality of political life, will bring some stability to the relationship so that changes in minister do not result in changes to the overall approach.

There are times when the UK fails to understand that we are a small territory, with an even smaller government, and that that the Falkland Islands Government is both a local and a national government. The UK civil service employs roughly 478,090 people, 130 times the size of the total population of the Falkland Islands (3,600). As an example, we very often come under pressure to have international agreements, signed up to by the UK, extended to the Overseas Territories without any serious discussion of what that would mean in practice for a place without a dedicated team (or even individual) to lead implementation/reporting. Work that may seem routine in a larger government such as planning the logistics of and participating in visits/meetings, short-notice requests for information or end of financial year funding opportunities impact on our day-to-day work much more than is appreciated.

We would therefore like to see the UK Government try and formalise how the UK engages with the Overseas Territories in areas like this. As an example, we would like to see departments instructed that they should engage with the Overseas Territories far earlier than they currently do; ideally before negotiations on a Free Trade Agreement or environmental treaty begin. From there we should be kept updated throughout the negotiating process. This meaningful engagement would allow us to feed in our key asks, reservations, redlines, and requests for derogations. W hilst we do not expect to secure all of these items on every occasion, it would be a significant improvement on the current approach where we are presented with something, often the first time we have been made aware of it, and asked if we would like to have it extended to us.

This is symptomatic of wider issue that at times the Overseas Territories are at best an afterthought or at worst, not considered at all. An example of this would be Brexit.

The Falkland Islands Government respects the decision taken in the 2016 referendum to withdraw from the EU. Once the decision was taken, we always believed it was in the wider interests of the Falkland Islands for the UK to make a success of life outside of the EU. With this in mind we were pleased that the UK was able to reach a deal with the EU. The deal however makes no provision for the Falkland Islands and no other agreement was concluded regarding our trading relationship with the EU. As a consequence, goods imported into the EU from the Falkland Islands are now subject to the EU’s Common External Tariff. This means tariffs of between six and 18 per cent for our fisheries exports to the EU and an average tariff of 42 per cent for our meat exports to the EU. The Falkland Islands is now placed in a very challenging position, given that our fishing sector, alone, accounts for more than 50 per cent of our GDP and 60 per cent of the Falkland Islands Government’s revenue. In 2022 our fishing industry had to pay roughly £15 million in tariffs to the EU.

This situation arose because the UK Government did not seek permission, as part of the mandate for the negotiations with the EU, to discuss the Overseas Territories. Consequently, when officials did raise our issues, the EU made clear that this was an issue that could not be discussed.

We are incredibly grateful to all those within the FCDO and the then Department for Exiting the EU, who worked tirelessly to try and secure our continued tariff and quota free trading relationship with the EU. However, because no one thought to raise the Overseas Territories when the negotiation mandate was being agreed it was always going to be a challenge, if not an impossibility.

If a situation like this is to be avoided in the future, some formal mechanism needs to be put in place to ensure that the Overseas Territories are always taken into consideration and cannot be forgotten.

Measures already exist to consider the increasingly devolved nature of the UK. Perhaps the Overseas Territories could be included in something similar so that ministers and officials know that they have to go through a process to review the potential impact of a piece of legislation or a treaty negotiation on the Overseas Territories. Any such measure would need to be meaningful and not just a tick box exercise.

At present, too many of our engagements with the UK are undertaken with the FCDO acting as gatekeeper. Having to go through the FCDO can work and be incredibly useful, but more often than not, it slows down the engagement and complicates matters. A key example of this is our engagement in the UN Climate Change Conference. When it came to COP27, everything we did had to go through the FCDO, even though they were not the lead department. As a direct result, despite constant asking, we received very little information and it was only on the eve of our delegates departing for COP that we got to meet the key official (based in another department). He made it clear that he would have happily met with us earlier had he known. As internally self-governing Territories, we should be able to establish and develop our own relationships with UK departments without the FCDO acting as the go between.

The same applies to communications from the UK to the Territories. Too often these are done through the governor’s offices and then it is left to the Governor to communicate locally. This is an approach, which in the past, in the case of the Falkland Islands, has resulted in important communications not being shared with either the relevant officials or the members of the Falkland Islands Legislative Assembly. In the past the elected representatives of the Overseas Territories have made it very clear that such communications should come through our appointed representatives in London. They know the Territories best and will also be well placed to ensure it is shared with the correct people and that actions are followed up on within the required time frame. This will also ensure that elected politicians are also kept aware of what is being communicated rather than just the relevant officer. We are not saying that governor’s offices should not be copied in, but they should not be the main conduit for communications from the UK.

We value our relationship with the UK and consequently there is clearly an important role for the Governor to play. However, we are concerned that governors now have a role in events and meetings where previously that was not the case. The Joint Ministerial Council is an example of this. It is our understanding that governors did not used to routinely attend these meetings and it is felt that, in some cases, the presence of governors, even as observers, acts as a restraint on some Overseas Territory elected representatives being as open as they would like. Bilateral meetings with UK Ministers are another example, where the presence of a governor can prevent a full and frank exchange of views from taking place, particularly when a governor seeks to speak in the meeting and could contradict what a democratically elected representative of an Overseas Territory is saying.

It is routinely said that the Overseas Territories are part of the UK family. Despite this there are occasions when it does not feel like this. This is particularly true on those occasions when third country nationals actually receive preferential treatment compared to the people living in the Overseas Territories. The issue of student visas, which impacts some of our young people, is a good example of this. In addition to this, some students from the Falkland Islands are asked to undertake English tests to access colleges in the UK, even though English is the native langue in the Islands and these students have passed GCSE English.

What is the UK Parliament’s relationship with the overseas territories?

As this inquiry demonstrates, the various select committees of both Houses of Parliament take an interest in the Overseas Territories. Primarily when it comes to ensuring the UK Government is fulfilling its obligation to the Territories, but also on specific topics such as the impact of Brexit etc.

Individual MPs and Peers can and do take an interest in specific Territories or the Overseas Territories as a whole. This is reflected in the fact that most Overseas Territories have their own active All-Party Parliamentary Group. These members table questions on behalf of the Overseas Territories and generally raise the concerns of the Territories in Parliament. In addition to this, the current Speaker of the House of Commons takes a particular and welcome interest in the Overseas Territories. He has visited several, including the Falkland Islands, and uses his office, where appropriate, to champion the Territories.

In general, all of this is positive and welcome. However, detailed knowledge of the Overseas Territories is poor amongst members as a whole. This includes a lack of knowledge about the structures of our governments and legislatures and how they have developed to suit the individual requirements of each territory. This lack of knowledge can lead many to assume that we are all the same. That we have the same issues and concerns. This can result in unintended consequences. For example, when Parliament sought to compel Territories to implement publicly accessible registers of beneficial ownership, it was never really the intention to impact those Territories that do not have a financial centre. However, in practice, all Territories were compelled, under threat of an Order in Council, to implement them. This leads onto another issue. Territory governments are rightly proud that they are internally self-governing and see virtually all attempts from the UK Parliament to legislate directly for the Overseas Territories as “overreach” and an approach more suited to the days of Empire when the Overseas Territories truly were colonies to be governed by the UK. In the 21st Century, when the UK’s relationship is based on the principle of self-determination, how can it be right that the UK Parliament still has “unlimited power to legislate for the Territories.”

Many of the positive aspects of the relationship between the UK Parliament and the Overseas Territories are informal and personality driven. This can result in dramatic changes in the relationship. For example, as already mentioned, the current Speaker of the House of Commons is incredibly supportive of and interested in the Territories. As a result, a number of things have emerged, including a Commons and Overseas Territories Speakers Conference. A change in speaker could result in all these things being cancelled. It would therefore be beneficial to consider how some of these things can be established on a more sustainable and long-lasting basis.

A small number of Members of Parliament routinely raise this issue of whether or not there should be a dedicated Member of Parliament for the Falkland Islands (and the other Overseas Territories), our answer would be no. The Falkland Islands are an internally self-governing Overseas Territory. With the exclusion of defence and foreign relations we manage our own affairs through our Legislative Assembly and Executive Council.

When we need to raise our concerns in Westminster on a specific subject, we can approach any of the 650 members of the House of Commons and each of them is free, if they wish, to take up issues on our behalf. Having our own Member of Parliament, far from enhancing our influence would actually diminish it, reducing our representation in Westminster from as many as 650, to one! There are also more fundamental issues about the role of such an MP and whether or not it would actually increase the UK’s involvement in the day-to-day internal governance of the Falkland Islands.

How is legislation made in the overseas territories and what role does the UK Government and UK Parliament have in these processes?

As the Overseas Territories form an undivided realm with the UK, the UK Parliament may legislate for the Territories. The 2012 White Paper states: “As a matter of constitutional law, the UK Parliament has unlimited power to legislate for the Territories.” However, in practice, the Overseas Territories enjoy a significant amount of autonomy, more perhaps than a local authority of devolved administration in the UK, with virtually all matters of internal governance decided by the democratically elected governments of the Territories. Therefore, examples of the UK Parliament legislating for the Overseas Territories are rare and are very often Territory specific. The last example where the UK Parliament legislated on behalf of all the Overseas Territories was on the subject of public registers of beneficial ownership. This was highly controversial at the time and remains a sore point for many Territory governments.

Territory governments are rightly proud that they are internally self-governing and see virtually all attempts from the UK Parliament to legislate directly for the Overseas Territories as “overreach” and an approach more suited to the days of Empire when the Overseas Territories truly were colonies to be governed by the UK.

The Falkland Islands Government has a clearly defined process for making legislation:

1. Policy formulation (including initial stakeholder/public consultation)

2. Policy approval by Executive Council (Cabinet) and agreement of legislative drafting priority

3. Relevant Directorate produces legislative drafting instructions

4. Legislation is drafted (usually involving multiple drafts)

5. Relevant Directorate agrees draft legislation

6. Executive Council considers draft legislation and refers Bill to the Legislative Assembly

7. Bill published in Gazette (at least 10 days before Legislative Assembly meets)

8. Legislative Assembly considers Bill (may refer to Select Committee)

9. Legislative Assembly approves final legislation

10. Legislation signed off by Governor, on behalf of HM The King, and published (including regs)

11. Legislation brought into force

12. Legislation implemented (public awareness, forms, guidance etc)

13. Ongoing administration

14. Regular review of effectiveness of legislation

Are effective mechanisms in place for the interests of the Overseas Territories to be represented internationally?

The threat to the Falkland Islands posed by Argentina’s sovereignty claim is still real and poses a significant impediment in a number of critical areas, including economic growth and the protection of biodiversity. This necessitates a level of international representation, with the exception of Gibraltar, quite unlike the other Overseas Territories. We are a small territory, with an even smaller government, and that government is both a local and a national government. The UK civil service employs roughly 478,090 people, 130 times the size of the total population of the Falkland Islands (3,600). Therefore, our ability to adequately respond to the challenges of Argentina’s sovereignty claim are limited. At the same time, it is important to make the point that foreign affairs are a competence reserved by the UK Government.

At the same time, Argentina’s sovereignty claim is not just an issue for the Falkland Islands. It is also one for the UK whose sovereignty over the Islands, the Argentine Government questions.

It is important to stress that the UK Government’s interpretation of the UK’s sovereignty over the Falkland Islands has developed over the years from one that was overtly colonial, to one based on the principle of self-determination. The Falkland Islands are British not because Britain imposes this, but because the people of the Falkland Islands desire it.

As the Falkland Islands have developed to become an internally self-governing and economically self- sufficient Overseas Territory of the UK, our relationship with the UK has transformed from one of dependence to one that we believe is of mutual benefit to both the Falkland Islands and the UK. In practice, the Falkland Islands Government and the UK Government work closely to ensure that the interests of the Falkland Islands are represented internationally.

On a routine basis we see this through the work of UK Embassies across Latin America and the support provided around our attendance at the UN C24 in New York. Here we also see the FCDO network in our region ensuring that Islanders and Island life are promoted throughout the year. There is then sustained year-round support for C24 and related meetings to try and build more support for the Islands. This includes significant official level support when members of the Falkland Islands Legislative Assembly attend the C24, both from King Charles Street and from the Embassy/High Commissions on the ground in the US and Canada.

This level of engagement and support is also reflected in the way the UK responds to standalone issues such as the recent conclusions to the meeting between the EU and the leaders of countries from Latin America (CELAC), where the Argentine Government was able to secure the inclusion of the following text: “Regarding the question of sovereignty over the Islas Malvinas/Falkland Islands, the European Union took note of CELAC’s historical position based on the importance of dialogue and respect for international law in the peaceful solution of disputes.” In this instance there was a prompt and robust response from the UK at a Prime Ministerial, Ministerial, and official level. In addition, there was an equally robust response from His Majesty’s Opposition, demonstrating the cross-party support that exists in the UK for Falkland Islanders’ right to self-determination.

With the exception of the UN C24 Committee. The UK also represents the Islands in a variety of other international fora, whether at an official or a ministerial level. In all of this work, the UK Government engages closely with members of the Falkland Islands Legislative Assembly and the Falkland Islands Government.

In other areas, such as the UN Climate Change Conference (COP), the UK Government has historically represented the interests of the Overseas Territories. However, in more recent years the UK Government made it possible for politicians and officials from the Overseas Territories to attend COP in person. Whilst the UK Government still negotiates on our behalf, this in an improvement which we expect to build upon. Specifically, when our representatives attend COP, that attendance should be meaningful. They should have a full programme of engagements and critically they should be involved in the negotiations, as the outcomes of COP directly impact the people and governments of the Territories. To date this has not been the case.

We would therefore like to see meaningful engagement, from the UK Government negotiation team, in advance of a COP. It is critical that they understand and are briefed on our asks at as early a stage as possible. When it comes to the actual negotiations, we understand that all our representatives attending cannot participate, but it would be important for one representative, chosen by their colleagues, to be a member of the UK negotiating team.

The one area where we feel that the Falkland Islands is not adequately represented, and where we would like a more formal role, is the Commonwealth. Whilst we participate in the Commonwealth Games and are very active within the Commonwealth Parliamentary Association; we have no formal role within the Commonwealth itself. Given that other members of the Commonwealth also have their own overseas territories, we believe it would be beneficial to create a representative body within the Commonwealth for the Overseas Territories. Such a body would raise the profile or these territories and dependencies within the Commonwealth. It would provide an opportunity for them to work together, share best practice, and to discuss issues of mutual concern. It would also allow the territories and dependencies a seat at the table when the real discussions are taking place and decisions made.

In addition to the Commonwealth, we would welcome the opportunity to join other international groupings such as the Alliance of Small Island States, where membership would support our trade and development.

Are the rights and interests of British overseas citizens effectively protected by the current constitutional arrangements?

The current Falkland Islands Constitution, which came into effect in 2009, contains a number of protections for Falkland Islanders. These are set out in chapter one, and include:

Protection of right to life
Protection from inhuman treatment
Protection from slavery and forced labour
Protection of right to personal liberty
Provisions to secure protection of law
Protection of rights of prisoners to humane treatment
Protection of freedom of movement
Protection for private and family life and for privacy of home and other property
Protection of right to marry and found a family
Protection of freedom of conscience
Protection of right to education
Protection of freedom of expression
Protection of freedom of assembly and association
Protection from deprivation of property
Protection from discrimination

In addition, the European Convention on Human Rights has been extended to apply to the Falkland Islands and we ensure that we meet our obligations under the convention.

The Falkland Islands Government has been progressive in adopting measures to respect changes in society, respecting individual rights and freedoms. In 2015 legislation supporting civil partnerships and same-sex marriage was brought into law. We updated our laws in relation to the Safeguarding of Children and, in 2014, drawing heavily on current UK legislation, established a Safeguarding Children Board. In addition to this we have also introduced legislation to establish a Safeguarding Adult Board.

The Falkland Islands Government took a lead in the development of the Memorandum of Understanding concerning the closer co-operation between the governments of the UK, the UK Overseas Territories, and the Crown Dependencies to facilitate the sharing of information for the purposes of more effective safeguarding of children. We have recently agreed in principle to the extension to the Falkland Islands of the Lanzarote Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

September 2023