THE SCOPE OF THE REVIEW
(continued)
Nomenclature
33. A number of witnesses
have suggested to us[60]
that a change in the generic nomenclature be considered. It is
undeniable that a number of the Dependent Territories are dependent
upon the United Kingdom in the sense that they receive substantial
development assistance and, in one case, budgetary support. It
is equally undeniable that 'dependency' is, in the current political
climate, considered a pejorative term. This conveys quite the
wrong impression of the relationship which the United Kingdom
has, or ought to have, with its overseas territories. It is noteworthy
that other European states which administer overseas territories[61]
use terminology which is not at all analogous.
34. Baroness Symons recognised
that the Caribbean Dependent Territories in particular considered
the description inappropriate.[62]
The Foreign and Commonwealth Office told us[63]
that there is support for a change of name to British Overseas
Territory. We support this.
Systems of
government
Territorial
constitutions
35. Each individual territory
is a self-contained unit governed under a constitution which is
given effect by an Order in Council.[64]
The territories vary widely in the size of their populations,
their economic bases and the robustness or fragility of their
social fabric. The strategic positioning of some territories
may also influence the nature of their constitutions.
36. Such constitutions are
broadly either ministerial or non-ministerial. In the former
case a Chief Minister is chosen from among the elected members
of the legislature and leads a government comprised of elected
legislators. This government exercises power in internal matters
not reserved to the Governor. In non-ministerial systems the
legislature merely advises the Governor and his officials, and
it is they together who exercise executive power.
37. Baroness Symons told
us that the Foreign and Commonwealth Office does not "have
one [constitutional] formula that we parachute in to all of the
Dependent Territories",[65]
and we recognise that the constitutional status of each territory
must be examined and reviewed separately. For instance, we note
the desire of the Legislative Council of St Helena for a form
of ministerial government, hitherto not granted, in the view of
the St Helena witnesses, because the island was deemed not to
have "evolved sufficiently".[66]
However, we also recognise that the Cayman Islands, which are
among the most prosperous of the territories, do not wish to alter
the present non-ministerial constitution.[67]
Indeed, the Falkland Islands Legislative Council observed that
the introduction of ministerial government to the islands might
"force the pace of constitutional development."[68]
38. A number of territories
mooted options for constitutional development. No territory's
government presently wishes for complete independence. Gibraltar's
Chief Minister seeks integration into the United Kingdom.[69]
St Helena's Citizenship Commission argues the case for the island
to become a Crown Dependency.[70]
While Baroness Symons notes that St Helena is the only territory
to have made a formal proposal to that effect,[71]
others are examining the option of Crown Dependency status, or
a status which would confer similar advantages.[72]
39. In an interim report
such as this we cannot fairly judge the merits or demerits of
detailed constitutional arrangements. We note that some parties
envisage independence for their territories in the long term,[73]
and that others would like a change in their constitutional status
to allow them to benefit from the United Kingdom's membership
of the European Union.[74]
We expect the Review to give full consideration to the revision
of individual territorial constitutions, and to set up a mechanism
whereby a territory's constitution can be regularly reviewed in
line with that territory's development.
Governors
40. At present all inhabited
Territories are administered by a resident Governor, save in the
case of Pitcairn, whose Governor resides at Wellington. The Governor
is the Queen's representative in the territory, and thus the representative
of the British Government. His powers are defined in the territory's
constitution, and he provides the recognised channel of communication
between the elected representatives of the territory and the Foreign
and Commonwealth Office.[75]
As a general rule the Governor is responsible for his territory's
external affairs, defence, internal security and public services.[76]
41. While the powers reserved
to the Governor for the administration of his territory are constitutionally
clearly defined, there is far less clarity about the role the
governor should play in the political or administrative life of
that territory. The Falkland Islands Legislative Council advocates
a "hands off" approach from their Governor,[77]
believing that Falklands civil society is stable and well-managed
and does not require more gubernatorial intervention. In contrast,
Mr Russell, a former Governor of the Cayman Islands, believes
that a territory's governor "has to have the whip hand",[78]
as he alone is responsible for the territory's relationship with
the United Kingdom. The Progressive Labour Party of Bermuda believes
that the role and powers of Bermuda's Governor should not be changed.[79]
An indication of the pivotal role that the Governor may play in
the social life of the territory is provided in the memorandum
from the Chief Minister of the British Virgin Islands, who submitted
that the Governor should have a spouse prepared to share some
of the Governor's social responsibilities and "to behave
as a Governor's wife or first lady".[80]
42. Mr Russell favours the
retention of the current system of gubernatorial appointment direct
from Whitehall, with the Foreign and Commonwealth Office informing
the local Administration of the appointment before its actual
announcement "as a courtesy".[81]
However, the many submissions which raised the issue with us
called for some form of consultation with local elected officials
prior to appointment.[82]
Mr Russell made the point that if such consultation took place
and the Foreign and Commonwealth Office pressed ahead with the
appointment of a Governor which had not been approved locally,
he would arrive in the territory with a black mark against him
and co-operation between him and his Administration would be difficult
from the outset.[83]
It is with these considerations in mind that we expect careful
and sensitive consideration to be given to the mechanism for the
appointment of governors in all Dependent Territories. This should
include formal and proper consultation with the appropriate local
representatives prior to a governor's appointment.
43. Consequent upon this
is the relationship which the appointed Governor ought to enjoy
with local elected politicians. We recognise that this relationship
is vital to the good and effective government of a territory,
and that in some cases the relationship appears not to be as good
as it might be. Mr Westmacott stressed the duties of governors
to undertake proper consultation with their territories,[84]
and Baroness Symons indicated that governors consulted conscientiously.
However, the Pitcairn Islanders would like more visits from their
Commissioner,[85]
and the Chief Minister of Montserrat would like more consultation
with his Governor.[86]
The Leader of the Turks and Caicos Opposition is of the opinion
that the Governor and his advisers "act more like emissaries
of the British Government rather than part of an executive team
whose role is the long-term development of the TCI and its people,"
and that an "us and them" approach to the administration
of the Islands' affairs prevails.[87]
The relationship between the Governor and the elected representatives
in a Dependent Territory is a crucial element in the administration
of that territory, and we consider that steps to seek to improve
relationships should be a central element in the Review.
Good Government
44. The Comptroller and Auditor-General
in his Report on contingent liabilities in the Dependent Territories
defines good government as:
- providing
security and political stability;
- ensuring
efficient and honest government delivered locally;
- facilitating
economic and social development.[88]
45. It is the responsibility
of the Secretary of State, through his representative the Governor,
to provide for the good government of each territory. The 1997
Foreign and Commonwealth Office Departmental Report stated that
a long-term aim of the Foreign and Commonwealth Office was "in
all our Dependent Territories to fulfil our obligations to the
inhabitants and to promote the rule of law and good government."[89]
This aim was not specifically referred to in the Foreign and
Commonwealth Office Mission Statement of 12 May 1997, which promised
only to ensure the security of the Dependent Territories.
We urge that the new Administration demonstrate its commitment
to the inhabitants of the Dependent Territories and to the rule
of law and good government in those territories.
46. Dr Lyon points out in
his supplementary memorandum[90]
that certain security concerns in relation to small states are
equally applicable to dependencies, especially in the Caribbean.
He points out that steps have already been taken to increase
the Caribbean Dependent Territories' capacity to monitor potentially
destabilising forces in respect of the drugs trade and associated
unwelcome developments in the financial services industry. We
believe there may be a case for the Dependent Territories' Regional
Criminal Intelligence Service in Miami to consolidate and expand
its operations as far as they assist the promotion of good government.
This will involve developing, where appropriate, Anglo-American
co-operation in the development and implementation of preventative
measures. Prompt and efficient reporting of actual or potential
problems to the Foreign and Commonwealth Office will continue
to be essential.
47. The Governor's role
derives from his responsibility as the representative of the Secretary
of State. He is therefore the agent of the Secretary of State
in the discharge of the United Kingdom's obligations - including
international treaty obligations - towards the territory. Difficulties
can arise where United Kingdom values and local values do not
coincide,[91]
and in implementing the United Kingdom's international obligations
the Governor may appear to be riding roughshod over local wishes,[92]
cultural traditions or strongly held religious views.[93]
Ensuring conformity of local legislation with relevant United
Kingdom law and international obligations can be particularly
burdensome.[94]
Consideration should be given to assisting local Administrations
in fulfilling these obligations. There can also be problems where
the local Administration proposes a course of action which is
either contrary to United Kingdom policy, or which might reflect
adversely on the United Kingdom's international reputation. Clearly
safeguards in these respects are essential, but it ought to be
an objective of United Kingdom policy, within such limits, to
allow the maximum degree of local legislative autonomy to reflect
the particular social values of the society.
48. The Governor of a territory
has the difficult task of balancing the autonomy of the local
elected Administration with the requirements regarding efficient
and honest government. In some cases, the Governor will be able
to adopt a non-interventionist stance; in others there will be
a clear need for the Governor to intervene in the political process
to a greater extent than the local elected Administration would
like. This must be done with sensitivity. We are concerned at
the disquiet expressed at the recent meeting of Chief Ministers
of Dependent Territories in the Americas at what they perceived
as the increasing tendency of the Government to impose decisions
on the Dependent Territories in the Caribbean without consultation
or, in some cases, agreement.[95]
Relations
with London
49. Submissions to the Committee
have indicated a degree of tension between territories and the
Foreign and Commonwealth Office. We had previously had specific
evidence of this in the case of Gibraltar in the course of our
inquiry into the Treaty of Amsterdam.[96]
In many cases it would appear that the territories do not necessarily
enjoy a direct line of communication to London via which they
can express their concerns, and there appear to be haphazard arrangements
regarding the consultation of various territories on measures
which directly affect them. In some cases this is no doubt occasioned
by difficulties of communication. We are particularly concerned
by the indication, or implication, in a number of memoranda[97]
that in its formulation of policy the Foreign and Commonwealth
Office may be taking the views of territorial representatives
for granted, and that the formal channels of consultation with
representatives have not always been used.
50. The Dependent Territories
Association has called for a thorough examination of existing
methods of communication between Chief Ministers and Governors
and between British officials and elected representatives in Dependent
Territories.[98]
We support this call.
51. The International Development
Committee drew attention to the difficulties occasioned in responding
to events in Montserrat by the fact that there was no one on the
island with "full and untrammelled executive control."[99]
It argued that "in the current review of the Dependent Territories,
the Constitution of Montserrat must be thought through from first
principles, with adequate provision for decision-making in emergencies
of this kind". In essence, as Baroness Symons recognised
in evidence to the International Development Committee,[100]
there is an inherent conflict between maximum devolution to local
elected politicians and the concept of somebody - in practice
the United Kingdom government - being able to take full control.
We nonetheless suggest that in the context of the Review,
the Government should examine and, if necessary, amend the constitutions
of Dependent Territories to ensure that they provide an appropriate
basis for a response to emergencies, particularly natural disasters.
60 See, for example, Appendix 3, p. 50, Appendix 4, p. 50, Appendix 7, p. 58 and Appendix 14, p. 75. Back
61 France, the Netherlands, Portugal and Spain. Back
62 Q 106. Back
63 Ev. p. 27. See also Q28. Back
64 Though the Anguilla Act 1980 provided for the constitution of Anguilla after its separation from St Kitts-Nevis. Back
65 Q150, 181. Back
66 Q97-102. Back
67 Appendix 11, p. 68. Back
68 Appendix 12, p. 70. Back
69 Appendix 8, p. 59. Back
70 Ev. pp. 18-21. Back
71 Q154. Back
72 Appendix 10, p. 66 and Appendix 14, p. 75. Back
73 Appendix 5, p. 55. Back
74 Appendix 14, p. 73. Back
75 It is also open to Chief Ministers and others to write direct to Foreign and Commonwealth Office Ministers. See also Q 124. Back
76 Ev. p. 1. Back
77 Appendix 12, p. 70. Back
78 Q41. Back
79 Appendix 5, p. 55. Back
80 Appendix 7, p. 57. Back
81 Q53. Back
82 See, for example, Q4, 21. Back
83 Q52. See also the comments by the Chief Minister of the Government of the British Virgin Islands, Appendix 7, p. 57. Back
84 Q133-137. Back
85 Appendix 6, p. 56. Back
86 Appendix 23, p. 75. Back
87 Appendix 10, p. 66. Back
88 HC 13 (1997-98), para. 1.4. Back
89 Foreign and Commonwealth Office, 1997 Departmental Report (Cm 3603), p. 1. Back
90 Appendix 17, p. 79. See also Sir John Kerr's evidence to the Public Accounts Committee on 15 December 1997, HC 435-i (1997-98). Back
91 Q64. Back
92 Q63. Back
93 Q64. Back
94 Q14. Back
95 Appendix 19, p. 81. Back
96 First Report from the Foreign Affairs Committee, Session 1997-98, HC 305, Q111-187 and Appendix 1, p. 53. See also, for example, Appendix 19 to the Minutes of Evidence. Back
97 See, for example, Appendix 7, p. 57, Appendix 12, p. 69 and Appendix 19, p. 81. See also Q83. Back
98 Ev. p. 10. Back
99 First Report from the International Development Committee, Session 1997-98, HC 267 (1997-98) (henceforth referred to as HC 267 (1997-98)), paras. 102-103. Back
100 HC 267 (1997-98), Q132-134. Back
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