OTS0037 - Evidence on The future of the UK Overseas Territories

Written evidence from the Turks And Caicos Forum (OTS0037)

Submitted by Alpha Gibbs

The future of the UK Overseas Territories

Honourable Members of the Foreign Affairs Committee:

The Turks and Caicos Forum, is a non-governmental organization which has as its central theme, advocacy for good governance. The mission of TC Forum is “to be vigilant in ensuring that the best interests of the peoples of Turks and Caicos are paramount. TC Forum, presents below and in the ensuing pages some of its observations with respect to your Inquiry: The Future of the UK Overseas Territories.

It is the TC Forum’s overarching view that the guidelines articulated in the Charter of the United Nations, Chapter XI – ‘Declaration regarding Non-Self-Governing Territories’, Article 73, provides a broad framework against which to construct the future of the UK Overseas Territories’.

Concurrently we recognize that the circumstance, in each of the UK Overseas Territories, differ from Territory to Territory and as such we have restricted our observation to the Turks and Caicos Islands. Notwithstanding there are similarities between the Territories and where appropriate cross pollination of ideas and processes should be encouraged.

We also hold that if this Third Decade for the eradication of Colonialism as promulgated by the United Nations and its member States, including the United Kingdom, is expected to experience greater progress toward decolonization, than the past two decades, then the circumstance in the Turks Caicos Islands demands greatly improved performance from its Administering Power, the United Kingdom.

A) OFFICE OF THE GOVERNOR

1) Currently the Governor of the Territory is appointed by the Foreign and Commonwealth Office in London without any input from the locally elected Government of the Turks and Caicos Islands or the people of the Turks and Caicos Islands in any manner.

2) The 2007 Report from the UK’s National Audit Office (NOA) on the Foreign and Commonwealth Office states as follows: ‘currently only 10–15 per cent of Governors, Deputy Governors and desk officers and managers in London had any prior experience with Overseas Territories before they took up post’. In such a scenario one can safely conclude that governors to the Turks and Caicos are functioning entirely as novices at our expense and to the detriment of the citizens of Turks and Caicos.

The full costs of all compensation, housing and fringe benefits for this UK appointed

Governor is borne by the Public Treasury of the Turks and Caicos Islands, while the governor trains himself.

3) The UK appointed Governor is exempted from all oversight and compliance or ethical codes of conduct as promulgated in the Constitution of the Turks and Caicos and as are applicable to appointed and elected officials and civil servants. Thus there is not an avenue of redress for locally prosecuting deficiencies in performance by the appointed governor. In theory and practice the governor operates above the law and above the Constitution of the Turks and Caicos Islands.

4) One of the constitutionally mandated responsibilities of the Governor is police and defense. In this category of responsibility the Governor has proven to be woefully inadequate. This inadequacy is demonstrated weekly with the breaching of any and all border control mechanisms by illegal migrants to the Turks and Caicos, as they enter the Territory at will. Upon the rare occasion when illegal migrants are intercepted the cost of repatriation is borne solely by the Public Treasury of the Turks and Caicos Islands. More often than not the illegal migrants succeed in establishing residency within the Territory.

5) Since the establishment of the Interim Government under interim Governor in 2009 the incidence of serious crimes in the Turks and Caicos has increased dramatically.

6) During the month of August 2018 there have been a total of 4 murders, on the Island of Providenciales alone, in addition to 5 non-fatal shootings. Resulting from these crimes, there has been only one arrest. None of these crimes have been adjudicated or solved as of this writing.

7) Incidents of home invasions and the physical assault on our elderly and vulnerable occupants are escalating across the Territory.

8) The leadership of the police force are not of local origin and it appears that the lack of familiarity with local culture and customs have impaired their ability to lead effectively and deliver police services as expected.

B) RESERVE POWERS OF THE GOVERNOR

1) The extreme powers of veto enshrined in the ‘reserve powers of the governor’ in the Constitution of the Turks and Caicos Islands seems unwarranted and unearned and has revealed itself to be of little use in ensuring good governance. If the ‘reserve powers of the governor’ in and of itself resulted in good governance; then it stands to the arguments that the events leading up to the TCI Commission of Inquiry of 2009 would not have occurred nor for as long as it did and the resulting cost burden to the Turks and Caicos Islands would not have been as high. Further the reserve powers of the governor have not yet resulted in superior policy making than would have been achieved otherwise.

C) ORDERS IN COUNCIL

1) It appears that since the enactment of the West India Act of 1962, that the Government of the United Kingdom has not made any meaningful adjustments in its approach to the governing of the colonies (now Overseas Territories). The circumstances of the 21st century and the growth and development of the Turks and Caicos Islands and its sister Territories demands a revisit to critical elements of the West India Act of 1962 and its relationship to the governance of the Overseas Territories.

2) The limitations of the approach to the governance of the Turks and Caicos Islands through the office of the governor and the Foreign and Common wealth Office bear a common genesis in the West India Act of 1962.

3) The National Audit Office in its 2007 report states that ‘the FCO recognizes that Overseas Territories work requires specialized administrative skills and knowledge beyond core diplomatic service competencies’. And yet assignments of governors to the Turks and Caicos Islands continue with governors who are ill prepared for the tasks. These inadequately prepared governors are granted reserve powers and provide inadequate analysis and information to higher ups, who in-turn translate the misguided information into Orders In Council and thus rule the Turks and Caicos by edict as opposed to informed legislation in the best interest of the citizens of Turks and Caicos.

D) SIPT COSTS

1) There are very strong arguments that the failures of the Governor’s office and the Foreign and Commonwealth Office contributed to the events precipitating the Special Investigation and Prosecution Team (SIPT) and thus the trial costs should be borne by the United Kingdom and not the Turks and Caicos Islands.

Some such arguments are:

2) The then Governor failed in the execution of oversight for good governance.

3) The Governor’s office facilitated the fraudulent conveyance of crown land to underserving parties under questionable circumstances yet this matter is not the subject of the current SIPT trials.

4) The Foreign and Commonwealth Office failed in its leadership of overall policy and presence in the Turks and Caicos Islands.

5) The Interim Government under the UK appointed governor who served from August 2008 to August of 2011 failed to mitigate the financial fiasco of the Hospital Contract wherein the construction and initial startup cost of the 2 small new hospitals and the ongoing multiyear operational costs are factor of several times the amount of similarly sized hospital facilities in the region.

6) The contributory negligence in administrative oversight of the FCO and the governor’s office acerbated the negative outcomes identified in the Sir Robin Auld Report of 2009.

7) The ongoing SIPT costs are a debilitating financial drain on the public purse of the Turks and Caicos. This debilitating cost experience has been ongoing since March of 2010 and has yet to conclude its operations or result in justice and equity for the people of the Turks and Caicos Islands.

E) FOREIGN AND COMMONWEALTH OFFICE – LACK OF COMPLIANCE WITH ARTICLE 73 OF UNITED NATIONS CHARTER

1) We find it necessary to present that several elements of the Resolution adopted by the United Nations Special Committee at its 1293rd meeting on August 15, 1985 where it resolved as follows:

2) Item #8 Urges the Administering Powers and other member states to ensure that the activities of foreign economic and other interest in colonial Territories do not run counter to the interest of the inhabitants of those Territories and do not impede the implementation of the Declaration;

3) It is well known that foreign firms in the Turks and Caicos systematically exclude locals from the middle and upper management ranks of their enterprises. Certain positions are simply never publicly advertised but simply ‘referred out’, within the foreign network, thus effectively eliminating local participation in the hiring process. Yet there is not any guidance or policy input from the United Kingdom, on curbing this violation of the human rights of citizens of the Territory.

4) Item #13 of the August 15, 1985 Resolution Requests the Administering Powers concerned to adopt the necessary measures to discourage or prevent any systematic influx of immigrants and settlers into Territories under their administration which might disrupt the demographic composition of those Territories and prevent the genuine exercise of the right to self-determination and independence by their peoples, and to avoid any forced displacement, complete or partial, of the population of colonial Territories.

5) Hundreds of illegal migrants arrive into the Turks and Caicos Islands on a weekly basis. Very little interdiction takes place as a result of a lack of resources and abject failure of the Governor’s office and the Administering Power to fulfill their obligations under the United Nations Charter and its various Resolutions and to fulfil their obligation under the Constitution of the Turks and Caicos Islands respectively.

6) Item #12 Re-affirms that all Administering Powers are obliged, under the Charter and in accordance with the Declaration, to create economic, social and other conditions in the Territories under their administration which will enable them to achieve genuine independence and economic self-reliance.

7) We contend that action by the UK House of Commons to endorse the imposition of public ownership registers in the overseas territories is detrimental to the economies of the Overseas Territories and such an imposition should not become law. Further such an act without input from the Overseas Territories is an abuse of the dominant status which the UK has over the Overseas Territories.

F) ADMINISTRATION OF JUSTICE

1) It is noteworthy to mention that following the removal from office of all parliamentarians in the Turks and Caicos on August 14, 2009 and the subsequent installation of an interim government led by the British appointed Governor followed by the subsequent return to general elections of 2012, the Turks and Caicos has continued to experience the process and costs of the Special Investigation and Prosecution Team (SIPT). One has to be mindful here of the adage that justice delayed is justice denied. The SIPT process started in March of 2010 and continues at great cost to the Turks and Caicos.

2) At this advanced date in the 21st century the bench of sitting judges is devoid of the presence of any jurist who has a family heritage within the Turks and Caicos. The development of judicial talent of local origin should be seen as a critical element in the pathway toward growth and development.

3) The performance of a number of the sitting judges can be considered to be less than professionally competent. One must begin to consider that the matter of judicial competency has arisen to alarming proportions when it has become necessary for a practicing member of the legal profession to file suit against the chief justice in the Turks and Caicos Islands in matters related to processing of pleadings and complaints.

G) NATURAL DISASTER PREPAREDNESS

1) It was noted in the National Audit office (NOA) Report of 2007 Managing risk in the Overseas Territories that ‘there are still areas of weaknesses under scrutiny by a rolling Foreign and Commonwealth office and DIFID capability review programme’. These areas of weaknesses though noted in the NOA Report of 2007 are yet to be addressed. The existence of the identified weaknesses and the failure to develop suitable responses are fully evident in the impact and resulting disaster and lack of recovery efforts following hurricanes Irma and Maria of 2017.

2) As a result of an inadequate disaster recovery plan which should include ‘all elements of the disaster management cycle of preparedness, mitigation, response and recovery’ students are still housed in ill-suited temporary facilities.

3) Full telecommunications capability within the Territory has not yet been restored. Telephone calls to Government offices often go unanswered as a result of lack of connectivity.

4) Very little to no aid has been provided to residents whose dwellings were uninsured and suffered damage.

H) REPRESENTATION IN THE UK PARLIAMENT

1) Elsewhere in this submission we have cited excerpts from the 2007 NOA Report which indicated the insufficiency of the preparation of governors for service in the Overseas Territories as well as the inadequacy of managers and other personnel in the London office of the FCO. Coupled with the inadequacy of the FCO personnel the Overseas Territories are subjected to edicts by the House of Commons all in the absence of any voice in the UK Parliament; this status of affairs cannot possibly result in good governance.

I) REVENUE GENERATED FROM NAVIGATIONAL AIDS AND OVERFLIGHT PERMITS

1) It is publicly known that there are navigational aids located within the Turks and Caicos Islands which are serviced periodically by technicians from abroad, what is not known, however, is what amounts are generated from such navigational aids and what revenue sharing arrangements exists and who are the parties to any such arrangement. Full accountability for public assets is an element of good governance and in pursuit of good governance full disclosure should be made.

J) RECOMMENDATIONS

1) The role of the Governor in chairing the local Cabinet must be discontinued, recent developments has revealed that the currently appointed governor has violated the protocols of the Cabinet.

2) Restrict the power of the Governor in relation to dissolving the legislature.

3) The appointment of governors should be executed in consultation with the citizenry of Turks and Caicos.

4) Governors should be provided greater and specific training related to administration in the Overseas Territories.

5) Allow governors to be subjected to the ethics guidelines and regulations of the Integrity Commission.

6) Restrict the reserve powers of the governor in consultation with the citizenry.

7) Limit the power of the UK government to legislate by Order In Council as it often is at variance with the best interests of the citizens of the Turks and Caicos.

8) The Foreign and Commonwealth Office should reimburse the Government of the Turks and Caicos Islands for all costs and outlays related to the SIPT costs.

9) The Foreign and Commonwealth Office should make the Turks and Caicos Government whole for the expenditures funded by the 260 million loan guarantee.

10) Execute a process to assure compliance with the Article 73 of the United Nations Charter.

11) Reform the judicial appointment process and improve the Judicial and Legal Services Commissions.

12) Implement the findings of the NOA with regards to Natural Disaster Preparedness.

13) Allocate a seat in the UK Parliament to the Turks and Caicos Islands, so that adequate representation may be made in the interest of the people of the Turks and Caicos Islands.

14) Disclose the revenue sharing arrangements related to the aviation navigation aids in the Turks and Caicos.

We thank the Foreign Affairs Committee for the opportunity to present our views on the Future of the UK Overseas Territories particular emphasis on the Turks and Caicos Islands.

September 2018