Select Committee on Foreign Affairs Seventh Report

PART ONE

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2  Constitutional relationship

9.  The Overseas Territories are not constitutionally part of the United Kingdom. They have separate constitutions set out in Orders in Council. All have Governors or Commissioners.[9] Appointed by Her Majesty the Queen, a Governor's role is to represent the Queen in the Overseas Territory,[10] as well as to represent the Territory's interests to the UK Government.[11] The work also brings direct responsibilities for public services. Other key aspects of the job include chairing the Executive Council or Cabinet in most Territories; making a range of public appointments; and explaining HMG's policies to the Territories.[12]

10.  Most Overseas Territories have elected governments. These have varying degrees of responsibility for domestic matters, ranging from Bermuda and Gibraltar which have almost complete internal self-government to Tristan da Cunha and the Pitcairn Islands, where the Governor is the law-making authority and there are only advisory councils. In the majority of Territories the Governor has special responsibility for defence, external affairs and internal security (including the police, the public service, and administration of the courts). In Anguilla, Montserrat and the Turks and Caicos Islands the Governor also has special responsibility for financial services. In St Helena the Governor is responsible for finance and shipping.[13]

11.  The majority of Overseas Territories' constitutions also provide the UK with certain reserve powers. These include the power of Her Majesty acting through a Secretary of State to instruct the Governor in the exercise of his functions; the power to disallow Overseas Territories' legislation; and the power to legislate by Prerogative Order in Council.[14] In most Territories, the Governor also has certain reserve powers, although he must usually first consult or be instructed by a Secretary of State before exercising these powers.[15]

12.  In 1999 the Government published a White Paper, which set out a "new partnership" between Britain and its Overseas Territories, based on four principles:

• self-determination, with Britain willingly granting independence where it is requested and is an option;
• responsibilities on both sides, with Britain pledged to defend the Overseas Territories, to encourage their sustainable development and to look after their interests internationally, and in return expecting the highest standards of probity, law and order, good government and observance of Britain's international commitments;
• the Overseas Territories exercising the greatest possible autonomy; and
• Britain providing continued financial help to the Overseas Territories that need it.[16]

13.  In this Chapter we consider two different aspects of the UK's constitutional relationship with its Overseas Territories. First we consider the constitutions themselves. We look at progress on modernising Territory constitutions, examining the Government's approach to and the extent of parliamentary scrutiny of such reform. We consider the Government's policy towards Overseas Territories that might wish to proceed to independence and we examine the Government's obligations to the Overseas Territories under the United Nations Charter, considering whether Gibraltar's presence on the UN's list of Non-Self-Governing Territories is appropriate given its new constitution. We also discuss two special cases - the British Indian Ocean Territory and Ascension Island - whose future constitutional status remains uncertain. Second, we consider the extent to which Overseas Territories are consulted and represented by the UK on issues that affect them, including consultation on Governor appointments and international agreements, the work of the OTCC, and relations with the European Union and the UK Parliament.

Constitutions

MODERNISATION

Progress on constitutional reforms

14.  The 1999 White Paper noted that many Overseas Territories believed that their constitutions needed to be kept up to date and stated that the UK Government would carefully consider any specific proposals from Territory governments to modernise their constitutions.[17] This marked a major shift in approach. Previously, the Government had driven constitutional reviews and reforms, often through constitutional commissions it had appointed.[18] Overall, the UK Overseas Territories Association (UKOTA) told us that the constitutional reviews were "a huge step". It also added that FCO policy and legal teams had "worked well" with Overseas Territory governments and that there had been "extensive public consultation".[19]

15.  Since 1999, new constitutions have come into force in the British Virgin Islands (June 2007), Gibraltar (January 2007), and the Turks and Caicos Islands (August 2006). In the British Virgin Islands (BVI) a local Constitutional Reform Commission published a report after wide public consultation. This was followed by four rounds of talks between the FCO and BVI to agree a draft constitution. The draft was then published for further public consultation, before being debated and approved by BVI's Legislative Council.[20] The Premier of BVI, told us that although some further amendments might have to be made to the constitution, the majority of people were satisfied with what had been achieved.[21] He welcomed the fact that the responsibility for preparing the new constitution had been given to BVI's government[22] and described the negotiation process as "very good" and "really […] one where people throughout the Territory were consulted", adding that three of the four sessions of talks were held in BVI.[23]

16.  In Gibraltar the constitutional reform process was initiated by a report by a select committee of the then House of Assembly in 2002. There were three rounds of negotiations, which were followed by a referendum.[24] The government of Gibraltar told us that its talks with the UK were "lengthy, but constructive and business like (and most often consensual)".[25] The Chief Minister of Gibraltar described the final constitution as "a win-win-win" for Gibraltar. [26]

17.  In the Turks and Caicos Islands (TCI) a report by a local Constitutional Review Body in 2002 was also followed by three rounds of negotiations. Both TCI's government and its opposition were invited to attend the third round of talks in London, but the opposition decided not to attend.[27] After further public consultation, the Legislative Council debated and approved the new constitution.[28] One individual from TCI told us that "insufficient public input, limited discussion time and opportunity for meaningful contribution" had resulted in "a mediocre document […] wherein the substantive changes were simply changes in official titles and the substitution of the Chief Secretary' position with that of the Deputy Governor."[29] TCI's Premier, told us that the new constitution was "working", but that more autonomy should have been granted to TCI's government, including an end to the practice of the Governor chairing the cabinet and the devolution of regional aspects of external affairs.[30] We consider the extent of self-government that is appropriate for TCI further in Chapter 3.

18.  The process of constitutional modernisation has been slower in other Overseas Territories. In Anguilla a Constitutional and Electoral Reform Committee was appointed in 2002, but did not complete its work. A new Constitutional and Electoral Reform Commission was established in 2005 and published a report in August 2006.[31] A first round of discussions with the FCO was due to take place in July 2007, but this was postponed at the request of the Chief Minister who wanted more time for public consultation.[32] In December 2007, the Chief Minister told us that he hoped that constitutional talks would restart in January in London this year.[33] However, they had not yet commenced by May.[34] The Chief Minister explained to us that one of the things he was calling for was a fifth minister since, he argued, four ministers could no longer "carry the burden" of a Territory "progressing as rapidly as Anguilla."[35] We also received evidence calling for anti-corruption measures to be enshrined in or introduced at same time as the new constitution (see para 201, Chapter 3).[36]

^19.   In the Cayman Islands a local Constitutional Review Commission proposed a draft new constitution in 2002, but talks were put on hold in 2004 pending elections that year. A new constitutional review programme began in March 2007 and the Cayman Islands government published a consultation paper on its proposals for constitutional reform in January 2008. The Leader of Government Business told us that FCO officials had indicated that they were willing to work with the Cayman Islands government at its own pace.[37] Revised proposals were published in May 2008 and a referendum on them is due to be held in July, despite opposition criticisms that this gives insufficient time for public education.[38] If the government receives a mandate in the referendum it will then begin negotiations with the FCO. During our visit to the Cayman Islands a number of interlocutors questioned why previous talks had taken place in London, arguing that this had distanced the local population from the process.

20.  In the Falkland Islands, constitutional review has been led by a select committee of the Falkland Islands Legislative Council. After wide public consultation, the Committee published a report in May 2007 which made a number of recommendations for reform. The Council's memorandum stated that there had been "little controversy in the review, and not a huge amount of public interest."[39] Councillor Mike Summers told us that he hoped the Committee's recommendations would be implemented during 2008 and that the first round of negotiations was taking place in the Falkland Islands.[40] A second round of talks took place in Stanley in February 2008.[41] On 17 June the FCO informed us that it had just agreed a final draft Constitution Order with the Falkland Islands councillors.[42]

21.  In Montserrat, a Constitutional Review Commission produced a report in 2003, after wide consultation both in Montserrat and its expatriate communities. Since then there have been four rounds of talks, without final agreement. In its written submission, sent to us in October 2007, the FCO told us, "A large measure of agreement has been reached, but some difficult issues remain to be resolved."[43] In December 2007, the Chief Minister told us that further progress had been made and that he hoped it would be possible to come to an agreement over remaining differences by summer 2008.[44]

22.  In St Helena, Legislative Councillors made proposals for a new constitution in 2003, on the basis of advice from a barrister funded by the Commonwealth Secretariat. The principles for a new constitution were then agreed with the FCO and a draft new consultation was published. However, the results of a consultative poll on the proposed introduction of ministerial government were negative.[45] Hon Brian Isaac, Member of St Helena's Executive Council, told us that the constitution was likely to be reviewed again and that he expected the issue of reform to rise "very high on the agenda" in St Helena within the next couple of years.[46]

23.  The FCO did not initially notify us of any constitutional developments in the Pitcairn Islands in its evidence to our inquiry.[47] However, the Commissioner of Pitcairn, told us that one of his roles was to take forward restructuring "to devolve operational responsibility" to Pitcairn and said he was consulting "very widely" with the local community as part of that process.[48] We received evidence from a Pitcairn resident, Kari Boye Young, who confirmed that the Commissioner had been consulting on a new charter/constitution for the Islands. Mr Young criticised the fact that the new text had been presented to the Island Council in a closed meeting, adding:

Members of the community consulted overseas constitutional lawyers personally and were told it was "at best a collection of ideas". Our constitution of 1970 was not touched upon at all, the White Paper barely referred to. On the front page was the caption "Or, this may be the last generation", which we perceived as negative and threatening.[49]

Mr Young also told us that Pitcairn had been ignored in previous consultations, such as on the 1999 White Paper, and that the only HMG presence had been during Operation Unique (see Chapter 3, paras 243 and 244).

24.  No progress has been made in modernising constitutions in any of the other Overseas Territories.[50] Bermuda already has a high degree of self-government and we consider prospects for its independence later in this chapter. We also consider the constitutional statuses of the British Indian Ocean Territory and Ascension Island separately below.

Negotiating criteria

25.  Almost all Overseas Territories governments told us that they had sought or were seeking a greater degree of self-government in their negotiations on constitutional reform.[51] For example, the Leader of Government Business in the Cayman Islands argued:

We respect the relationship involved in being an Overseas Territory, but we believe that in many instances the role of the Governor as is needs to be changed a little to allow more of a partnership to exist.[52]

The Chief Minister of Montserrat told us that his government sometimes felt that the system was "undemocratic" and the relationship "humiliating".[53]

26.  We asked Meg Munn and the then Director of the Overseas Territories Directorate, Leigh Turner, what criteria they applied when negotiating with Overseas Territory governments about their proposals for constitutional reform. Neither response suggested that the FCO had publicly available criteria which it applied consistently. The Minister outlined a number of "key issues" that the FCO would take into account including "the size of the Territories themselves, their capacity and what the people of the Territories want to see in terms of their constitution." She also stated that the FCO would not give up responsibilities where it had legal obligations: "international obligations, defence and, broadly, security".[54] Mr Turner told us that the FCO would also consider "specific instances":

There might be a case, such as St. Helena, where the Governor retains responsibility for shipping. There might be a case, such as the Falklands Islands, where we have retained responsibility for permission to develop hydrocarbons.[55]

Parliamentary scrutiny

27.  Most of the Orders in Council setting out Overseas Territory constitutions are made under statutory powers. The relevant statute for the Caribbean Overseas Territories (except Anguilla because of its then association with St Kitts and Nevis) is the West Indies Act 1962, which was enacted to provide a new governing framework for those Territories in the Caribbean which did not want to go for self-rule. For Anguilla it is the Anguilla Act 1980 and for Bermuda it is the Bermuda Constitution Act 1967. The statutory powers to make Orders in Council for Ascension Island, the British Antarctic Territory, the Falkland Islands, Pitcairn, South Georgia and the South Sandwich Islands, and Tristan da Cunha are contained in the British Settlements Acts 1887 and 1945. For St Helena it is the St Helena Act 1833 (formerly entitled Government of India Act 1833) and for the Sovereign Base Areas of Akrotiri and Dhekelia it is the Cyprus Act 1960.

28.  All of the constitutional Orders in Council made under statutory powers, except those made under the Anguilla Act and the Cyprus Act, must be laid before both Houses of Parliament after being made. The Orders in Council for Gibraltar and the British Indian Ocean Territory are made in exercise of the Royal Prerogative and are therefore not subject to any parliamentary procedure.[56]

29.  In 2002, the FCO agreed to send draft Orders in Council on Overseas Territory Constitutions to our Committee before they were made, preferably not later than 28 sitting days before, except on those occasions which it deemed "inappropriate": "occasions of urgency or where confidentiality is imperative".[57] We received copies of the draft new constitutions for the Turks and Caicos Islands (in June 2006), Gibraltar (on 30 October 2006), and the British Virgin Islands (on 28 April 2007).[58] However, our predecessor Committee was not given an opportunity to comment on draft constitutional Orders for the British Indian Ocean Territory, which were made in 2004, the Government arguing that this was a case where it could not follow the agreed procedure "because the sensitivity of the issue meant that confidentiality was imperative until the measures were taken".[59] We discuss the introduction of these Orders further separately below.

30.  We welcome the Government's approach of encouraging Overseas Territory governments to take the lead in reviewing their constitutions and making proposals for reform. We recommend that the FCO should, as far as possible, hold negotiations and consultations with Territory governments on such proposals within the individual Territory concerned so that the process does not appear distant to the local population. We believe that the modernisation of constitutions could also be made more transparent if the FCO published criteria for deciding the degree of self-government that is appropriate for Overseas Territories and we recommend that it does so. We also recommend that the FCO continues to send us draft constitutional Orders in Council at least 28 sitting days before they are made.

INDEPENDENCE

31.  Since the 1999 White Paper no Overseas Territory government has opted for independence. None of the evidence we received from citizens of Overseas Territories showed a real interest in breaking links with the UK in the short term.[60]

32.  Bermuda is the only Overseas Territory whose government favours independence. A referendum on the issue was last held in 1995, and of the 58% of the electorate who participated (the now ruling Progressive Labour Party (PLP) boycotted the vote), over 73% voted against independence, while only 25% voted in favour. An opinion poll carried out in July 2007 showed 63% opposed to independence, 25% in favour and 12% undecided. In 2004, the then leader of the PLP established the Bermuda Independence Commission to investigate the issue and possible mechanisms for arriving at independence. The Commission's conclusion was neutral on whether the independence could be achieved via a referendum or could result from an election victory, stating that it was "incumbent upon both political parties to share the merits of each method".[61]

33.  Bermuda's opposition has argued that independence should only be via a referendum.[62] An individual Bermudian, Antony Siese, also told us that the Bermuda government's attitude was one of "we know best so you take what we give you". He argued:

I agree, one cannot take every issue to the voting public, however, on major issues the voting public should be able to offer an opinion on the matter in question.[63]

34.  We asked Meg Munn whether an Overseas Territory could ever be granted independence without a referendum in that Territory. She told us that the Government's "preferred route" was a referendum, but that other mechanisms, such as the election by a "clear" majority of a political party with a manifesto commitment to pursue independence, might be acceptable.[64] We probed this further, asking the Minister whether she would consider the election of a party by a tiny majority in low turnout elections to be sufficient. She replied:

No, which is why I was saying that if a territory wanted to go for independence on the basis of something other than a referendum, it would entirely depend on the circumstances. If a political party went into an election saying that it wanted independence and received 90 per cent. of the vote, that would be a different situation from the scenario that you have described.[65]

We welcome this assurance.

DECOLONISATION

35.  Article 73 of the United Nations Charter sets out various binding responsibilities[66] on Territory-administering powers, including the UK. One of these is to develop self-government in the Territories, taking into account the political aspirations of their peoples. In 1960 the UN General Assembly adopted a Declaration on decolonisation[67] which called for steps to be taken to transfer all powers to Territories. A resolution was approved[68] which set out only three legitimate options for complete self-government: free association with an independent state; integration into an independent state; or independence. In 1962 the Assembly established the Special Committee on Decolonisation, known as the Committee of 24, to monitor and make recommendations on the implementation of the Declaration on decolonisation.[69]

36.  Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn, St Helena, and the Turks and Caicos Islands are the UK Overseas Territories on the UN's list of Non-Self-Governing Territories. We did not receive representations about their presence on this list from any Territory government except Gibraltar.

37.  Gibraltar's Chief Minister described Gibraltar's new constitution to us as "maximising our self-government to the greatest possible degree consistent with our desire to retain both our British sovereignty and close constitutional links with the United Kingdom."[70] Therefore, he argued, the UN's delisting/decolonisation criteria needed to be updated "to reflect the realities" of a "modern relationship […] with which both are content, and which […] is not colonial in nature."[71]

38.  The Leader of the Opposition in Gibraltar, argued that the Second Preamble of the new constitution should have included wording to the effect that the constitution was an act of self-determination which provided for the maximum level possible of self-government.[72] (The Preamble states that the constitution gives the people of Gibraltar "that degree of self-government which is compatible with British sovereignty of Gibraltar and with the fact that the UK remains fully responsible for Gibraltar's external relations".) He criticised the UK Government for supporting the December 2007 resolution at the UN General Assembly on Gibraltar, which did not mention decolonisation.[73] He also argued that the UK should have told the UN that it would no longer be sending progress reports on Gibraltar to the UN since the Territory had already exercised its right to self-determination.[74]

39.  However, the government of Gibraltar's submission argued that under the UN Charter and procedures, the UK was obliged to continue submitting progress reports until the UN Assembly voted to remove Gibraltar off the list of Non-Self-Governing Territories. It only asked the UK to make clear when submitting the reports that it was doing so for this reason.[75]

40.  Jim Murphy MP told us that Gibraltar's categorisation as a Non-Self-Governing Territory was a "colonial description" which did "not reflect the modern reality of Gibraltar".[76] We asked the Minister for Europe what the Government was doing to get Gibraltar de-listed. He told us that the Government would continue to argue through the UN for a move away from the UN process. He added that "Spain's voice" was "important" in this.[77] (We examine the UK's sovereignty dispute with Spain over Gibraltar further in Chapter 5.)

41.  We conclude that Gibraltar's presence on the UN list of Non-Self-Governing Territories is an anachronism. We recommend that the Government continues to make representations to the UN about delisting the Territory and that it makes clear that it is only sending the UN progress reports on Gibraltar because it is obliged to do so.

BRITISH INDIAN OCEAN TERRITORY

42.  The British Indian Ocean Territory (BIOT)'s constitutional relationship with the UK is a special case since the most recent Orders in Council relating to the Territory have been successfully challenged in the courts. The case is currently the subject of a final appeal by the Government to the House of Lords.[78]

Recent history and legal challenges

43.  In 1965 Britain bought the archipelago which makes up BIOT from Mauritius for £3 million as part of an agreement which led to the latter's independence in 1968. One of the islands, Diego Garcia, was then secretly leased to the US. Between 1968 and 1973, the British Government cleared the entire archipelago of its inhabitants.[79] Campaigners claim that many Chagossians were seriously intimidated to encourage them to leave and that they were not told that they were leaving permanently.[80] Most ended up in the slums of Mauritius, since, lacking formal education and fluency in the local language, they had little prospect of finding work. Mr Bancoult, leader of the Chagos Refugees Group, told us:

We were all removed and forced to leave everything behind. Arriving in Mauritius was a nightmare for us. No planning had been made. No house, no job: cast aside without any provision.[81]

44.  The removal of the Chagos Islanders was formalised by the enactment of the Immigration Ordinance in 1971 which made it illegal for a person to enter or remain in the BIOT without a permit. In 1998 the Chagos Refugees Group brought a claim for judicial review in the High Court to challenge the legality of this Ordinance.[82] In November 2000 the High Court dismissed Government arguments that the 1971 Ordinance was immune from judicial review because it was made under the royal prerogative and ruled that the removal of the islanders was unlawful. The judgment effectively granted the Islanders the legal right to return to any of the islands, except Diego Garcia, where the Government argued it had to continue to meet its obligations to the US. Following the judgement, the then Foreign Secretary Robin Cook said that the Government would not appeal:

I have decided to accept the Court's ruling and the Government will not be appealing.

The work we are doing on the feasibility of resettling the Ilois now takes on a new importance. We started the feasibility work a year ago and are now well under way with phase 2 of the study.

Furthermore, we will put in place a new Immigration Ordinance which will allow the Ilois to return to the outer island while observing our Treaty obligations.[83]

45.  However, the Government subsequently changed its mind. In 2004 two new Orders in Council were issued to ban the islanders from returning: the British Indian Ocean Territory (Constitution) Order 2004 and the British Indian Ocean Territory (Immigration) Order 2004. The then FCO Minister of State, Bill Rammell MP, explained that one of the Government's main reasons for introducing the 2004 Orders in Council, as well as security considerations, was that:

[…] anything other than short-term resettlement on a purely subsistence basis would be highly precarious and would involve expensive underwriting by the UK Government for an open-ended period - probably permanently.[84]

For many observers, the key change between 2000 and 2004 was that September 11 2001 had made the military base of Diego Garcia a vital launchpad for the wars in Afghanistan and Iraq.[85] (The UK has undertaken to cede BIOT to Mauritius when it is no longer required for defence purposes. We consider Mauritius' sovereignty claim over BIOT in paras 415 to 419, Chapter 5.)[86]

46.  The Chagos Refugees Group launched a legal challenge against the Orders in Council and in May 2006 the Orders were ruled unlawful by the High Court. The FCO decided to appeal the judgement and the appeal began on 5 February 2007. However, on 23 May 2007, the Court of Appeal found in favour of the Islanders. The Government was refused leave to appeal but it decided to petition the House of Lords directly.[87] The Law Lords agreed to hear the case and it was due to be heard shortly after this Report was agreed.

47.  The Government has already spent over £2 million on defending legal challenges from the Chagos Islanders.[88] The cost of the current appeal has been estimated at another £500,000.[89] In a letter to the Public Accounts Committee, David Snoxell, former High Commissioner to Mauritius, questioned "the wisdom of this expenditure" arguing that "posts have inevitably had to be closed to fund it."[90] We asked Meg Munn why the Government had decided to appeal to the Law Lords. She told us that it had three main reasons for doing so:

First, there were the defence obligations to the US in relation to Diego Garcia […] Secondly, there is the legal point that […] the ruling in and of itself would call into question the way in which we make legislation for all the Overseas Territories. Thirdly, the process that we went through some years ago in relation to the Chagossians was to consider whether it would be feasible for them to live on one of the outer islands. The feasibility study suggested that that could not be the case without incurring significant ongoing liabilities for the UK.[91]

48.  We consider each of these reasons in turn below, as well as another issue on which we also received evidence - the environmental impact of a resettlement.

Defence obligations to the United States

49.  Diego Garcia was initially leased to the US for a period of 50 years. The FCO informed us that the 1966 Exchange of Notes which established the agreement would "continue in force for a further twenty years beyond 2016" unless it was ended by "either government giving notice of termination, in accordance with its terms".[92]

50.  Regarding the UK's defence obligations to the US, the Chagos Refugees Group argued that the UK's agreement with the US on BIOT had never "required" more than the depopulation of Diego Garcia and that the US had only "desired" complete clearance of the archipelago.[93] (The Chagossian community are divided about pressing for a return to Diego Garcia at present, with the Chagos Refugees Group appearing to accept that it is currently "not politically practicable" and arguing only for a return to BIOT's Outer Islands (see para 65 below),[94] while others told us they would not accept a return to the British Indian Ocean Territory unless it was to Diego Garcia.[95])

51.  In oral evidence to the Public Accounts Committee, Sir Peter Ricketts, Permanent Under-Secretary at the FCO, said that the US had "made clear that resettlement of the islands by the Chagos Islanders would pose security risks to the operation of the base at Diego Garcia".[96] The Chagos Refugees Group pointed out that Diego Garcia is approximately 135 miles distant from BIOT's Outer Islands whereas any vessel can freely pass within three miles of Diego Garcia.[97]

Extraordinary rendition

52.  As the FCO told us, the terms of the US-UK agreement on BIOT require the US to seek prior approval from the UK for "any extraordinary use of the US base or facilities, such as combat operations or any other politically sensitive activity".[98] For a number of years before we announced our inquiry claims had been made that Diego Garcia had been used in the United States' rendition programme. On 20 January 2006, the then Foreign Secretary, Rt Hon Jack Straw MP, responded to allegations about use of the UK's territory or airspace for rendition operations, summarising the results of a search of files stretching back to 1997. The search found just four cases of rendition requests by the US, all in 1998. Two were accepted; two were rejected. He told the House that the Government had found "no evidence of detainees being rendered through the UK or its Overseas Territories" since 1998.[99]

53.  However, allegations continued and in a Report in 2007 we recommended:

that the Government ask the United States administration to confirm whether aircraft used in rendition operations have called at airfields in the United Kingdom or in the Overseas Territories en route to or from a rendition and that it make a clear statement of its policy on this practice.[100]

In response, the Government reiterated the statement made by the then Foreign Secretary Jack Straw and argued that, given US assurances, further clarification from the US administration of its policy was unnecessary.[101] In its response to our Report the Government also stated:

We are clear that the US would not render anyone through UK airspace (including the Overseas Territories) without our permission.[102]

54.  In October 2007 we received evidence from the All Party Parliamentary Group on Extraordinary Rendition and from Reprieve for this inquiry, which claimed that Diego Garcia had been used to land a plane linked to "rendition circuits" and that ships in or near its territorial waters had also been used to hold detainees or otherwise facilitate the United States' renditions programme.[103] Both organisations urged further investigation of these allegations and argued that the UK was wrong to rely on US assurances to the contrary.[104]

55.  On 21 February 2008, the current Foreign Secretary, Rt Hon David Miliband MP, reported to the House that the US had now informed him, contrary to its previous assurances, that on two occasions in 2002 Diego Garcia had been used for renditions flights. In both cases a US plane "with a single detainee refuelled at the US facility" on the island. Neither detainee was a British national or British resident. One was currently in Guantánamo Bay and the other had been released. The Foreign Secretary added:

[…] the detainees did not leave the plane, and the US Government have assured us that no US detainees have ever been held on Diego Garcia. US investigations show no record of any other rendition through Diego Garcia or any other overseas territory, or through the UK itself, since then.

He explained that he had asked FCO officials to compile a list of all the flights where the Government had been alerted to concerns regarding rendition through the UK or the Overseas Territories and said he would be sending this list to the US to seek specific assurances about each flight.[105]

56.  Following the Foreign Secretary's statement, we wrote to ask him a number of questions. One of these was whether the list of allegations being sent to the US would include claims relating to ships serviced from Diego Garcia.[106] In response the Foreign Secretary told us that the Government had "previously received assurances from the US in 2005, 2006 and 2007 that no detainees had been transferred through the territorial waters of Diego Garcia". However, he did not address the allegation of detainees being held on ships serviced from Diego Garcia.[107] In oral evidence Meg Munn was also unclear as to whether the list being sent to the US would include this particular allegation.[108]

57.  We also asked the Foreign Secretary whether the list being sent to the US would include allegations about flights through UK airspace of planes alleged to have been on their way to or from carrying out a rendition, as well as allegations about flights carrying detainees at the time of transit through UK airspace.[109] He told us that his purpose in preparing the list being sent to the US was "to identify whether rendition through UK territory or airspace in fact occurred" and that the Government did "not consider that an empty flight transiting through our territory falls into this category."[110] As part of our Human Rights inquiry we questioned Lord Malloch-Brown about this position. He replied:

I do not think that it is more or less okay, but there is a limit to what we can do effectively to monitor empty planes, whose purposes it is not really reasonable for us to investigate. If an American military flight requests refuelling or access and is empty of any passengers, I am not sure that it is possible for us to demand what it might be doing on its return flight.[111]

58.  Regarding the announcement that Diego Garcia had been used for rendition flights, Lord Malloch-Brown told us:

Obviously, from the Foreign Secretary downwards, and the Prime Minister as well, we were all pretty shocked that those assurances, given in good faith to the Committee and to the House, had proven inaccurate. That is why, in the Foreign Secretary's conversations with Condi Rice, we secured a commitment that we would submit a list of all flights about which there were suspicions-that is, any flights whose details were given to us by Amnesty, Human Rights Watch and others-to the US and would ask them to give us an assurance that there was not any such activity around any of those flights. I think we should wait for the outcome of that. We have made it clear that we would publish both the list of flights we submitted and the responses that we got. We should wait until that is over to see what, if any, steps are necessary after that.[112]

During the evidence session, held on 30 April, the Minister also said the list was "shortly" and "about to be" sent to the US.[113] The FCO later confirmed that it had sent the list to its US counterparts. The FCO also told us that it would lay the list and the US response in both Houses as soon as it had received the response.

59.  We also asked the FCO about the extent of UK supervision of activities on Diego Garcia. It replied:

A wide range of activities are conducted by US personnel on Diego Garcia which are routine in nature and are covered by entries in the Exchange of Notes. These activities are not normally supervised by UK personnel, nor at 42 personnel is there capacity to do so.[114]

60.  We asked the FCO what discussions it had had with the US on extension of the "lease" beyond 2016. In writing the FCO told us that the UK and US "would of course continue to consult closely on their mutual defence needs and expectations well in advance of that time."[115] However, Meg Munn informed us that the UK had not yet had any discussions with the US about the possibility of terminating the lease in 2016. She also told us that she had not discussed changing the terms of the agreement to increase UK oversight if it did continue beyond 2016.[116]

Legislating for the Overseas Territories

61.  John Howell, QC for the Foreign Secretary, expanded on Meg Munn's "legal" reason for the Government's final appeal in the 2007 appeal case, arguing that the High Court judges were wrong because their approach would represent a "revolutionary change" in the constitutional law related to Overseas Territories since it had a) asserted jurisdiction over the royal prerogative to legislate in the territories and b) asserted that Her Majesty could not legislate for an Overseas Territory to promote the interests of the UK, including defence and security.[117] However, Richard Gifford, legal representative of the Chagos Refugees Group, argued:

[…] in so far as they are basing the appeal on the constitutional right of the Crown to legislate for the Overseas Territories without review by the judges or by Parliament either, that is a constitutional matter that barely concerns the Chagossians. They have now had three courts in 10 years; seven senior judges have said unanimously, "You simply can't do this. You cannot remove a population from their homeland." […]

These poor people, who have been sorely treated for 40 years, have been caught up in the wheels of constitutional nicety.[118]

Contingent liabilities

62.  The number of exiled islanders and their descendants living in Mauritius now totals 3700. There are also about 1,000 in the UK and 500 in the Seychelles.[119] In oral evidence, Meg Munn told us that the biggest of the Outer Islands was no larger than Hyde Park, adding:

The islands are small and low-lying, so would be susceptible to storms and so on. Issues that affect many low-lying islands would face the islanders in addition to the problems of establishing the ability to live there in the first place. Obviously, there would also be issues such as employment and sustainability generally.[120]

63.  In June 2002, following acceptance of the court ruling by the then Foreign Secretary, Robin Cook, the FCO completed its "phase 2 feasibility study" into resettlement on the Chagos Islands. This concluded that:

[…] whilst it may be feasible to resettle the islands in the short term, the costs of maintaining long-term inhabitation are likely to be prohibitive. Even in the short term, natural events such as periodic flooding from storms and seismic activity are likely to make life difficult for a resettled population.[121]

Mr Gifford argued that this conclusion stuck "out like a sore thumb" since it did not follow from the body of the research in the report. He explained that he had therefore requested copies of the draft but had been told that they had been destroyed.[122] When we questioned the Minister about whether there had been political interference in the study's conclusions, she told us that she had asked whether the draft report had been altered and had been assured that it had not.[123]

64.  The Chagos Refugees Group also argued that the conclusions of a 2000 preliminary "feasibility study" commissioned by the FCO had been interfered with so that they were heavily qualified in the final report.[124] The Group sent us a copy of the original page from the draft 2000 report, which it had been given by the FCO, which read:

The conclusion of this preliminary study is that there is no obvious physical reason why one or both of the two atolls should not be repopulated, by the sort of numbers (up to or around one thousand) of Ilois who are said to have expressed an interest in re-settlement.

and had the phrase "Qualify - if" handwritten above it.

65.  The Islanders have carried out their own studies. In 2002 they commissioned Jonathan Jenness, a resettlement expert to review the FCO's Phase 2 study. He found that the Chagos islands had a "benign environment, albeit geographically isolated" and argued that it was "fatuous" to imagine that the islands could not be resettled.[125] In April 2008 the Chagos Refugees Group and the UK Chagos Support Association launched a proposal for limited resettlement (150 families) on the Outer Islands[126] funded by a grant from the Joseph Rowntree Reform Trust.[127] The study was carried out without the benefit of site visits or teams of consultants,[128] but it estimated initial capital and technical assistance costs of £25 million for a five year period and argued that within ten years the requirement for such support would "show a sharp downward trend" through the development of tourism and fishing and licensing revenues.[129] Louis Bancoult, the leader of the Chagos Refugees Group, suggested that this should be paid for by the FCO and the Department for International Development (DFID) either from EU or some other funding.[130] Mr Gifford told us that the Chairman of the European Development Fund had confirmed that a resettled Chagossian community would be eligible to apply to the Fund.[131]

66.  Minority Rights Group International told us that arguments about contingent liabilities were in any case insufficient to release the UK Government from its obligations under the International Covenant on Civil and Political Rights and international customary law.[132]

Environmental considerations

67.  The Great Chagos bank is one of the world's largest atolls.[133] It has "the most pristine tropical marine environment surviving on the planet" and is "Britain's greatest area of marine biodiversity".[134] The Chagos Conservation Trust, a Trust dedicated to the conservation of the Chagos Archipelago's environment, argued that the issue of human resettlement needed to take full account of the environmental implications.[135] While it expressed sympathy for the Chagossians,[136] it argued:

[The lack of human habitation] is the main reason why the ecology of the Chagos is nearly pristine and full of diverse life, a rare surviving example of nature as it should be; where human pressures do not conflict with environmental needs and lead to degradation and impoverishment.[137]

Therefore, the Trust recommended:

[…] even as the legal arguments continue it is not too soon for the British Government and other concerned bodies to begin to draw up a long-term framework for sustaining the environmental integrity of the Chagos Archipelago while taking the possibility of human habitation into account.[138]

68.  Mr Gifford told us that consultation was beginning between the Chagos Refugees Group's resettlement team and the Chagos Conservation Trust and that a joint plan was evolving to pursue the Chagos Management Plan and to train Chagossians as "conservation guardians".[139]

69.  We conclude that there is a strong moral case for the UK permitting and supporting a return to the British Indian Ocean Territory for the Chagossians. We note the recent publication of resettlement proposals for the Outer Islands by Chagos Refugees campaigners. The FCO has argued that such a return would be unsustainable, but we find these arguments less than convincing. However, the FCO has also told us that the US has stated that a return would pose security risks to the base on Diego Garcia. We have therefore decided to consider the implications of a resettlement in greater detail.

70.  On Diego Garcia itself, we conclude that it is deplorable that previous US assurances about rendition flights have turned out to be false. The failure of the United States Administration to tell the truth resulted in the UK Government inadvertently misleading our Select Committee and the House of Commons. We intend to examine further the extent of UK supervision of US activities on Diego Garcia, including all flights and ships serviced from Diego Garcia.

Compensation and citizenship rights

71.  In 1973 the British Government transferred £650,000 (£5.5 million at today's prices)[140] to the Mauritian government for the Chagossians. This was intended to be used to resettle them on farm land, but there was so much disagreement and so much desperation for money among the Chagossian community, that in 1978 the money was simply disbursed.[141] In 1982 a further £4 million (£9 million at today's prices)[142] was allotted to the community as a "full and final settlement". In addition the government of Mauritius made land available to the value of a further £1 million. In 2003 the courts established that the UK had no legal obligation to pay any further compensation, a ruling that was upheld in July 2004.[143] Mr Gifford told us that the Chagos Refugees Group did not accept the judgment:

[…] the settlement in 1982 was conducted largely without consultation. In its terms of settlement, it was unfair. In its implementation, the very detailed legal acknowledgement and surrender that the islanders were required to sign was neither explained nor translated. In accepting the last tranche of compensation of about 600 rupees, which was only worth about £20 or £30 in those days—the whole amount was only about £2,500—they were required to thumbprint a very legalistic form that the British Government required the Mauritians to obtain. That, sadly, is held up to be the basis of the finality of the settlement.

Nothing was done to find out from the community what its needs were or whether it wanted training, jobs, housing or repatriation—none of those things was gone into at the time.[144]

72.  In May 2002, as part of the extension of citizenship rights across Overseas Territories, Chagossians were granted British Overseas Territories Citizenship if they were born on or after 26 April 1969 and before 1 January 1983 to a woman who at the time was a citizen of the United Kingdom and Colonies by virtue of her birth in the British Indian Ocean Territory.[145] Subsequently quite a number have come to the UK, with the single largest population based in Crawley, West Sussex. Chagossians who arrive in the UK are currently obliged to pass the Habitual Residence Test before they become entitled to any welfare benefits. The Diego Garcian Society told us that many Chagossians wanted to exert the right of abode in the UK but could not do so do so because the Habitual Residence Test prevented them from getting state benefits to start a new life until they could find a job, and fend for themselves.[146]

73.  Allen Vincatassin, leader of the British Indian Ocean People's Party, has taken legal action on behalf of Chagossians living in the UK to try to establish their immediate entitlement to support. This was rejected by the British High Court in 2006 and the Court of Appeal in November 2007. Mr Bancoult called for a desk to be established in Mauritius to provide detailed guidance to Chagossians wishing to travel to the UK.[147] He argued that Chagossians living in Mauritius should be offered the same support in relation to health issues and training as British citizens.[148]

74.  British passports are very expensive for native Chagossians.[149] The Diego Garcia Society and the Chagos Islands Community Association also highlighted to us that some families were being split up not just because the cost of passports meant only part of the family could afford to come to the UK, but also because most of the third generation born in Mauritius were not entitled to British Citizenship by descent. The Chagos Community Association told us:

This causes a real trauma. It is possible to get long stay visas, but these cost nearly a thousand pounds which Chagossians do not have. Even then, when a family has been temporarily united through a long-term visa, big problems arise. We have a case currently where the father and his children, who came to stay with the mother in Crawley, on a long term visa, has been told that he has failed a Citizenship English test and is liable to be returned because of this to Mauritius with his children unless he is able to purchase a new visa to restart his stay here. There is no other word for this but torture. The family are distraught and fearful about what is to happen to them.[150]

The Diego Garcia Society argued that it was unfair that people were unable to satisfy the criteria that the law requires for British Overseas Territories Citizenship because they were born in Mauritius, when this was "as a consequence of exile rather than their own choice."[151] We agree. We recommend that British Overseas Territories Citizenship should be extended to third generation descendants of exiled Chagossians. We also recommend that the Government should provide more guidance to those Chagossians wishing to resettle in the UK.

ASCENSION ISLAND

75.  Except for purposes of tourism, it is impossible to stay on Ascension Island without a job contract. There are also restrictions on housing and business ownership. Between 2000 and 2005 expectations were raised on the Island that rights of abode and property ownership would be developed, following a decision by the main commercial organisations on the Island that they no longer wanted to be responsible for providing infrastructure and public services (see Part Two). However, in December 2005 the FCO announced that these rights would not be granted. The FCO states that it took this decision because granting such rights would have exposed the UK to an unacceptably high level of contingent liabilities.[152] Meg Munn told us:

It is the Government's view that […] it would not be sensible to establish a permanent base there […] The people who are there work for a limited number of organisations, and if they decided to move for any reason […] sustainability difficulties would arise.[153]

During our stop on Ascension Island we were told that Islanders suspected that the US had also expressed concerns about permanent rights being granted.

76.  In March 2007 six out of the seven Island Councillors resigned in protest. The Governor then decided, in consultation with the FCO, to dissolve the Council and call another general election. When only two people came forward as candidates the Governor obtained ministerial approval to suspend the Island Council for a period of up to 12 months. In this interim period, the Governor has continued taking legislative and policy decisions he believes necessary, assisted by an Advisory Group.[154]

77.  We received a submission from a group of Ascension Island residents, which included members of the Island Council who had resigned. In its evidence the group strongly criticised the FCO's handling of the resignation of the Island Council, calling its suspension a "dictatorship" and arguing that the Advisory Group lacked transparency:

Most of the invited persons are the Senior Managers of the main User companies, a definite hark back to Company Town days. The Advisory Body meets in secret. No minutes are published and no information is released to the public as to the issues discussed or outcomes of the discussions.[155]

The residents' submission also highlighted events which they claimed showed that the Government had changed its mind and had initially planned to grant permanent rights:

• in his Christmas Message of 2000 the Governor of Ascension Island stated "We will also be addressing the democratic deficit to ensure that St Helenians on Ascension Island are given the right of abode there, the opportunity to own businesses and a form of local government which gives the residents choice and a say in the running of their Island";
• in March 2001 the Administrator stated in a press interview that "[…] we know that we are going to need Land Tenure legislation very soon. This will give people the right to either purchase or lease property or land. We will also need legislation to provide for the right of abode on Ascension although we will have to decide how we are going to provide for the unemployed, the elderly etc.";
• the then Overseas Territories minister Bill Rammell had acknowledged a strategic five year plan produced by the Island Council;
• a constitutional advisor invited by the FCO had visited the Island in September 2003 and held public meetings on developing immigration, drafts of which he then sent to Island Council, via the FCO;
• in December 2003 an agreement was signed at Secretary of State level allowing civil aircraft to use Ascension's airfield and Air Safety Support International (see para 375, Chapter 4) were commissioned to advise on necessary upgrades to enable commercial flights to use the airfield;
• the FCO did not object when five infill plots were identified and agreed to be marked and advertised for freehold sale or when the Island Council agreed to purchase two houses;
• during 2004 the FCO granted the Ascension Island government £70,000 (subsequently raised to £106,000) to employ a Legal Adviser whose terms of reference included aiding the Attorney General in drafting land tenure and immigration legislation;
• in December 2004 the FCO hosted meetings between the Ascension Island government Fisheries Officer, an elected Councillor and two companies it had sourced and invited to investigate the feasibility of a commercial fishery on Ascension Island; and
• in January 2005 the Attorney General produced a timetable for land tenure and rights of abode.[156]

78.  This version of events was supported in evidence from a former FCO diplomat, now head of consultancy BioDiplomacy, who told us that FCO officials had initially been asked to promote a "huge move to civil society" on the Island, including "legislation providing for right of abode and a local property register^".[157] We also note that in the 1999 White Paper the Government highlighted Ascension Island as an example where consultation on constitutional change was already under way, stating:

We are planning, for example, to consult the people of St Helena and its Dependencies about how to develop the democratic and civil rights of people living on Ascension Island.[158]

79.  We also received evidence from a former Island Council member, who did not form part of the group which resigned. He told us that the "endless exploitation and manipulation of elected members" had "forced a mass resignation from councillors". He explained that he had agreed to sit on the unelected Advisory Group because "albeit an undemocratic process with many limitations, I believe it allows me to continue questioning and focusing attention on some of the issues that concerns the taxpayers of Ascension." He added:

My prime concern is that the […] Governor […] should set a date for new elections and permit the taxpayers' to have democratically elected representation. Our incomes are taxed, and there is no justification for taxation without representation on Ascension.[159]

80.  In late February 2008 the Governor published a consultation document, which made a number of proposals on the future of the Ascension Island Council, including:

• reducing the number of elected members from seven to five;
• reducing the quorum;
• reducing the term of office for Councillors and the qualifying period for standing for election;
• making the period for canvassing short with no reimbursement of costs;
• holding quarterly Council meetings with the Heads of Employing Organisations.[160]

The document appears to confirm that the Government has no intention of reconsidering granting rights of abode and property ownership to those who live and work on the Island.

81.  During our evidence session with Meg Munn MP we asked her whether the FCO had carried out a U-turn. She replied:

I find it difficult to say, because I was not part of that conversation. The Ascension Islanders told me that that was the understanding that they were given, and I regret that, because it is not the Government's position.[161]

She told us that she had visited the Island to discuss the re-election of an Island Council:

I had a full and frank discussion with a number of people on Ascension Island, and I believe that at the end of it they were clear […] that we wanted to move forward on having an Ascension Island council re-elected, because we believe that people living there and working there, even without permanent rights, should be involved in governance issues—it makes for better governance. Part of that process will be to establish a mechanism by which, without having permanent property rights, it will be possible for businesses to develop in a more sustainable way than is currently the case.[162]

She noted that there had been a lot of anger, explaining:

what they said to me was that while they might disagree about the issue of residence, their biggest issue was being misled, and that if we were moving to a stage where we would be absolutely clear about what could happen and what arrangements could be made, people might well be willing to reconsider standing for council, but in my view, that position would not be achieved before later this year. We are looking at autumn rather than spring.[163]

82.  We conclude that the FCO did raise expectations that rights of property and abode would be granted to those who live and work on Ascension Island. We recommend that the FCO must make greater efforts to restore trust among the residents of the Island. In particular, we recommend that it should try to re-establish the Island Council as soon as possible. We further recommend that the FCO should work with elected representatives to consider the potential contingent liabilities of a permanent base on Ascension Island, and means of reducing these liabilities, with the ultimate aim of granting rights of property and abode to residents.

Consultation and representation

CONSULTATION ON GOVERNOR APPOINTMENTS

83.  We asked Overseas Territories about their relationships with Governors. Views were mixed. The Premier of the Turks and Caicos Islands, the Chief Minister of Montserrat, and a Member of St Helena's Executive Council reported good personal relations.[164] Both the Chief Minister and the Leader of the Opposition in Gibraltar also spoke very positively about the present and past Governors of Gibraltar.[165] However, the Falkland Islands' Legislative Council's memorandum to the Committee suggested some areas of tension between the Council and the previous Governor:

The current Governor is fully seized of the importance of democratic development; his immediate predecessor was not.[166]

The Chief Islander of Tristan da Cunha's evidence also suggested past difficulties with Administrators of the Island.[167] The Premier of the British Virgin Islands told us that he had not yet quarrelled with the Governor since he had been elected, but that this was inevitable since "there is always a rift between the Governor and those who are governed".[168]

84.  In 1998 the Government rejected our predecessor Committee's recommendation that local governments should be formally consulted on the appointment of Governors,[169] arguing that it carried "the risk that a Governor's position might be untenable if his or her appointment had not had local support at the selection stage".[170] Presently the FCO consults Overseas Territory governments before recruitment begins on the characteristics and experience that a Governor should have, but will not accept representations about particular candidates.[171]

85.  A number of Overseas Territory leaders called for the opportunity to express their opinions on individual candidates. The Leader of Government Business in the Cayman Islands told us:

Although we certainly do not expect to be on the committee that appoints the Governor and to be involved in the interviews and so on, we believe that it is only fair that we have wind of who is being considered and see some type of biography, so that we can have a look and perhaps pass on our opinions.[172]

The Premier of the British Virgin Islands agreed:

[…] when it comes to appointing somebody and sending him without even telling us who he is, where he is from and what is his background, how do they know that he is going to fit in with the community? The elected representatives should be the persons to judge that. We have had experience of Governors who just did not fit into the community[173]

The Falkland Islands Legislative Council told us that "inappropriate appointments might be avoided by more trust and partnership working in the appointments process".[174]

86.  A number of recently agreed constitutions have made changes so that Deputy Governors are locally appointed.[175] The current Deputy Governor of Anguilla is also an Anguillan, the first to hold that position. We asked the Chief Minister of Anguilla whether this had marked an improvement in relations between the Governor and local government. In response the Chief Minister told us that his government had been "very pleased" with the appointment.[176] However, Meg Munn told us that local appointments to Deputy Governor did not always improve relations between Territory governments and the UK:

Sometimes it can be the other way around, because […e]ven the larger overseas territories are still […] relatively small communities, and there can sometimes be friction due to the long personal or political histories of people who are appointed as Deputy Governor. On another occasion, they can be somebody who is perfectly acceptable to, and enjoys the respect of, a range of people, so there is no clear correlation from appointing somebody who is local.[177]

87.  We recommend that Territory governments should be given an opportunity to pass on their opinions of the candidates for Governor before appointments are made. We welcome the appointment of local individuals as Deputy Governors in some Overseas Territories, but urge the FCO to ensure those appointed are not seen to be politically partisan individuals.

OVERSEAS TERRITORIES CONSULTATIVE COUNCIL

88.  The Overseas Territories Consultative Council (OTCC) was established in 1999 following a proposal in the White Paper. The FCO's evidence described it as "an annual forum for heads of Territory governments chaired by the FCO Minister with responsibility for Overseas Territory issues".[178]

89.  In our December 2007 evidence session we questioned Territory government representatives about the usefulness of the OTCC. All were positive about the fact that the OTCC existed.[179] The Chief Ministers of Anguilla and Montserrat spoke of the value of face to face meetings between UK ministers and Overseas Territory government leaders;[180] the Premier of the British Virgin Islands highlighted the fact that the reduction in tuition fees for Overseas Territories students had come out of discussions at the OTCC (but see also para 94 below);[181] Pitcairn's Commissioner told us that the OTCC was very valuable for "networking, support and learning" for an island as small and isolated as Pitcairn;[182] and the Falkland Islands Legislative Council argued that the OTCC was a useful way of reminding the FCO and Ministers that the Overseas Territories were not a homogeneous group.[183]

90.  However, we also received a number of suggestions for improvement of the forum. The Leader of Government Business in the Cayman Islands, Councillor Summers of the Falkland Islands Legislative Council, and the Premier of the Turks and Caicos Islands called for better follow-up of action points agreed at the OTCC.[184] Other suggested improvements included: greater contact time with ministers and other relevant individuals across Government departments;[185] more consultation with attendee governments on agendas and format;[186] greater decision-making;[187] and a final round up meeting.[188] The Cayman Islands government also recommended that the OTCC should try to clarify the definition of its associate membership in international organisations.[189]

91.  The FCO's evidence to our inquiry noted that its decision to allow Governors to participate in the 2003 and 2006 OTCCs had caused concern in Overseas Territories. The UK Overseas Territories Association (UKOTA) told us that "the lack of consultation on this proposal not only flew in the face of the partnership approach, which had been successful to then, but created a lot of unnecessary tension."[190] The FCO explained that before this year's OTCC Lord Triesman had written to Territory governments suggesting that there should be one day of political talks and one day of operational talks, with Governors invited to the latter.[191] It argued that "given the Governors' responsibilities, […] a meeting on operational issues without the active participation of both Chief Ministers and Governors would not be effective".[192]

92.  A number of Territory governments expressed concern about the presence of Governors. The Premier of the Turks and Caicos Islands argued that the attendance of Governors was "not necessary" since they had annual meetings with the FCO.[193] The Premier of the British Virgin Islands agreed, arguing that sessions without Governors returned "the OTCC back to the reason it was created in the first place - a discussion between the political leaders of the territories and their political counterparts in the UK."[194] The Falklands Legislative Council was alone in saying that it was not currently concerned by the presence of Governors at the OTCC, explaining:

Those Territories with a poor relationship with their Governor appear to object more strongly than those with a good relationship. The validity and effectiveness of the appointments process may mitigate some of these concerns.[195]

93.  We also received evidence that the work of the OTCC needed to be more widely publicised in the Territories. Following each OTCC, the UK and the Territories represented agree a communiqué which is announced by the FCO in a press release. However, the record of proceedings of the OTCC, which takes place under Chatham House rules, is not made public. BioDiplomacy, a consultancy led by a former FCO diplomat, argued that "as afar as possible, papers that are tabled for discussion should be made available on websites".[196] Kari Boye Young, a Pitcairn resident who sent evidence to our inquiry, said he did not know who would be representing Pitcairn at the OTCC.[197]

94.  A number of Territory governments highlighted the fact that follow-up of action points was particularly slow when other Government departments were involved.[198] During our visit to the Falkland Islands it was suggested to us that the change in UK policy on tuition fees only occurred because the then Overseas Territories minister happened to move to the then Department for Education and Skills.

95.  UKOTA told us that while day to day relations with the FCO were "good", it was "sometimes surprised at the attitude of other Government departments" which had "a lack of understanding about the status of the Overseas Territories". It raised two particular issues: the uprating of pensions of UK pensioners living in Overseas Territories; and access to NHS treatment. It also recommended that the FCO should investigate the feasibility of students from the Overseas Territories becoming eligible for student loans.[199]

96.  During our visit the Bermuda government also expressed concern that OFCOM had not represented its interests properly in relation to the impact of the development of a satellite orbital slot by the Isle of Man on the slot allocated to Bermuda.

97.  The Overseas Directorate in the FCO is responsible for liaising with the rest of Whitehall on the Overseas Territories.[200] We asked the FCO what steps it was taking to ensure other Departments engaged in issues raised in the OTCC by Territory governments. It told us that it informed other departments of OTCC agenda items relevant to them and invited them to send a representative to lead the discussion. The FCO also stated that it had followed up action points agreed at the last OTCC relevant to other departments through correspondence and meetings at official and ministerial level. However, the FCO agreed that there was "scope for greater engagement". It explained that in December 2007 the FCO and DFID Permanent Under-Secretaries had written to their opposite numbers in Whitehall "reminding them that the Territories are a shared Whitehall responsibility and asking each of them to set out their arrangements for dealing with the Territories". The FCO said that there had been "a limited response so far" and that it intended "to follow this up at Ministerial level to get commitments from UK Departments to work more closely on the Overseas Territories."[201]

98.  We conclude that the annual Overseas Territories Consultative Council (OTCC) is a valuable event. However, since it is intended as a forum for Territory governments, they should be given more of a say about the way in which the OTCC is run. We recommend that the FCO consults Territory governments on the improvements they would like made to the OTCC and implements their suggestions. We also recommend that the FCO should consider ways of raising awareness of the OTCC within Overseas Territories, including, as far as possible, making papers tabled for the forum publicly available. We note that Overseas Territories' representatives reported that those issues raised in the OTCC which involved other Whitehall departments were least likely to be followed up and we recommend that the FCO continues to press other departments to take their responsibilities with regard to the Overseas Territories seriously.

OVERSEAS TERRITORIES GOVERNMENT REPRESENTATIVES IN THE UK

99.  Anguilla, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, St Helena and the Turks and Caicos Islands all have official government representatives in the UK.[202] As parliamentarians we have had the opportunity to observe that the level of activity of official representatives varies. Awareness of the Gibraltar and Falkland Islands offices within Parliament is high, but that of other Territories' offices, for instance that of the Cayman Islands, is less so.

100.  The government of Gibraltar has recently purchased new property to house its office at a cost of £3.4 million.[203] The Chief Islander on Tristan da Cunha argued that the Island should have its own UK representative as the St Helena representative focused on representing St Helena's interests, leading to "a continuation of the age-old fact that the majority of resources go to St Helena, leaving Tristan with the leftovers".[204] Our predecessor Committee argued that the FCO should consider providing financial help to those Overseas Territories unable to afford permanent representatives in the UK.[205] The FCO responded that it was "questionable" whether those without offices would have sufficient business to justify this "very great expense" and that the proper channel for communication had to be Governors.[206]

101.  In a personal submission Albert Poggio, the government of Gibraltar's representative in the UK, argued that that the work of UK official representatives of Overseas Territories would be facilitated if they were issued with parliamentary passes:

One issue which hinders the work of the UK representatives of the Overseas Territories is the lack of automatic access to the Palace of Westminster. We recognise that passes are limited for security reasons. However, […] the representatives are appointed by their governments and very limited in number […] Given that Westminster is the Sovereign Parliament for the Overseas Territories and members of both Houses have responsibility for speaking on Overseas Territories matters […] UKOTA Representatives should be treated in the same way as a UK Government Department and given automatic access to enable them to speak to Members of Parliament.[207]

Mr Poggio also argued that the status of Overseas Territories' representatives in the UK would be improved if their title was changed to Commissioner^.[208]

102.  The Chief Minister of Gibraltar supported Mr Poggio's call for a parliamentary pass, arguing that it would save representatives having to seek Members' assistance for access to Parliament and be "a good formal link" between the UK Parliament and the Overseas Territories" (see paras 119 to 125 below for discussion of the Overseas Territories' relations with the UK Parliament).[209]

103.  However, we note that authorities of the two Houses are trying to reduce the numbers of parliamentary passes issued for security reasons. UK Members of the European Parliament, for example, can only be issued with passes which permit limited access.

104.  UKOTA and the British Virgin Islands government told us that there was "a tendency for the FCO to use the Governors as an exclusive channel to Overseas Territories' governments" when using representatives as well as Governors might be more efficient.[210] UKOTA also recommended that all office-holders appointed by or on the recommendation of the UK Government should be briefed by the appropriate representative before leaving to begin their post.[211]

105.  We recommend that the FCO urges Overseas Territory governments whose offices in the UK are less active to consider ways of raising their profile. The FCO should also encourage this by, when appropriate, making more use of official Territory government representatives, as well as Governors, to liaise with Territory governments. We recommend that the Government also ensures that all new officeholders in Overseas Territories appointed by or on the Government's recommendation are briefed by official Territory government representatives in the UK before they take up their posts.

CONSULTATION ON INTERNATIONAL AGREEMENTS

106.  Overseas Territories do not have the authority to become parties to treaties in their own right, so the UK must extend treaties to them.[212] This is usually done either when the UK ratifies a treaty or at some later date.[213] The FCO's evidence to us explained that Whitehall departments were supposed to consider whether a treaty should be extended to the Overseas Territories at an early stage in their deliberations on a treaty and ensure that Territories were "fully consulted" and given a "proper length of time" to consider the implications of having any treaty extended to them. Guidelines on the consultation process had been circulated across Whitehall in May 2006.[214] Susan Dickson, Legal Counsellor at the FCO, told us that Overseas Territories were always consulted before the extension of international agreements and that if a Territory said no to the extension of an agreement because it did not have the necessary "infrastructure or facilities in place" to have it applied, the relevant treaty would not be extended to it.[215] She added:

Sometimes, the problem is that the territories lose sight of what applies to them. But we have lists in our treaties section. They can ask, and we can give them the information.[216]

107.  We asked Overseas Territory governments about their experiences of consultation on international agreements. Some told us that there had been problems in the past, but that levels of consultation had now improved. The Leader of Government Business in the Cayman Islands told us that his government had raised "holy hell" about the lack of consultation of Overseas Territories on the EU Savings Directive[217] and that this had spurred recent improvements in consultation.[218] Pitcairn's Commissioner also reported:

There were some treaties to which we had signed up that we were not advised of, but that was a while ago. There is now a consultation process and very good communication between the Pitcairn Islands and the FCO.[219]

108.  However, others suggested problems were ongoing. The Premier of the British Virgin Islands told us:

[…] we just have to make sure that we follow the regulations, keep in step with what is happening and provide the necessary human resources to ensure that those things are carried out. However, we are also aware that next year they will come up with something else, and the year after that. It will be a continuum, but we will try our best to fight against this disease.[220]

The Falklands Legislative Council explained that international agreements caused it difficulties in two respects. The first was when UK Government departments negotiating international agreements failed to take into account their possible effects on Territories, which had led to "potentially serious and embarrassing outcomes" and "onerous" applications after negotiations had been completed. The second was in cases when the Falkland Islands had "no difficulty" with the principle of applying an agreement, but to do so "would use up a disproportionate amount of officers time" for no practical effect.[221]

109.  UKOTA and BioDiplomacy told us that often Overseas Territories were only alerted to the effect of agreements on them at a very late stage in the process of negotiations.[222] UKOTA and the Premier of the British Virgin Islands called for the FCO to create a system whereby Overseas Territory government representatives would be alerted early to prospective new international agreements.[223] UKOTA also urged the FCO to take into account the "limited resources" of Overseas Territories when it considered what it expected of Overseas Territories in terms of transposition and recommended that each transposition be taken on "case by case basis" with the FCO always providing assistance with drafting if requested.[224]

110.  BioDiplomacy also argued that including Overseas Territory government representatives in UK delegations to negotiations might also bring advantages for both the UK and the Territories in terms of "good news stories". It suggested that the Department of Justice might be asked to co-ordinate consultation on agreements for all sub-national levels of government.[225]

111.  We conclude that the FCO's guidelines on treaties applying to Overseas Territories do not yet appear to be being followed by all of Whitehall and recommend that the FCO writes to remind other Government departments of their existence. We also recommend that the FCO should provide more drafting assistance to Overseas Territories for transposition of international agreements into local legislation.

RELATIONS WITH THE EUROPEAN UNION

112.  With the exception of Gibraltar, Bermuda,[226] and the Sovereign Base Areas of Cyprus[227], the Overseas Territories' relationship with the EU is governed by the European Council Decision on the association of the overseas countries and territories with the European Community ("Overseas Association Decision"). This is an instrument that is negotiated every ten years between the Commission and Member States. Territories are not involved directly, but are consulted by their "parent" Member State. All Overseas Territories covered by the Decision, and with settled populations, are eligible for European Development Fund (EDF) funding. They also have access to a range of community development budget lines and regional funding schemes. The Decision also contains a number of trade, customs and loan financing provisions. It also established an annual forum for Overseas Territories leaders to meet the EU Development Commissioner and other senior Commission officials.[228]

113.  Between March 2001 and 31 December 2007 the UK Overseas Territories received €41 million in national allocations, as well as €13 million from the regional EDF pot. However, during our visit to the Cayman Islands, local government ministers told us that they had applied for EU funding after Hurricane Ivan[229] without success and said that they thought UK support for their application would have made a difference.

114.  One of the proposals in the 1999 White Paper was that a First Secretary in the office of the UK Permanent Representative to the EU should be designated as a point of contact for the Overseas Territories covered by the Overseas Association Decision.[230] We did not hear any evidence about how this role had developed in our inquiry. However, the Leader of Government Business in the Cayman Islands did tell us that the FCO's agreement to the EU Savings Directive on the Taxation of Savings Income (which created responsibilities for passing on information about the investments of individual EU taxpayers) without consulting the Cayman Islands had caused a lot of resentment (see para 107 above).[231]

115.  Gibraltar is within the European Community by virtue of the EC Treaty, although it is excluded from four areas of Community policy under the UK's Act of Accession.[232] The UK is ultimately responsible for the implementation of European law in Gibraltar. Progress has been made by the government of Gibraltar and the UK in reducing a backlog of directives from 180-200 in 1997 to about 18 in March 2007. The National Audit Office reported that legislative capacity had been increased both in the Gibraltar government and the Governor's office; that there were now six monthly meetings of a joint Whitehall/Gibraltar Tracking Group for EU compliance; that centralized liaison points had been established in most UK departments for those dealing with EU legislation; and that an improved tracking system had been in place in the FCO since December 2006.[233] However, the Leader of the Opposition in Gibraltar claimed that a significant proportion of the reduction was due to the EU accepting that the Territory did not have to implement certain law under the terms of its agreement and to Gibraltar increasingly using the "Italian" model for legislation:

we virtually repeat the text of the legislation, and quite a lot of it is meaningless […For example] we have got a law to make sure that our non-existent chemical plants do not pollute the non-existent oyster beds in [our…] non-existent rivers.[234]

116.  The franchise for European elections was extended to the Gibraltar electorate in 2003. However, Gibraltar was not directly represented during the Inter-Governmental Conference (IGC) as it is not itself a Member State. Hon Peter Caruana QC told us that Gibraltar was not given the opportunity to influence the negotiations. He explained that in 2004 and in 2007 he had presented the FCO with memoranda expressing concerns about specific areas of text of the draft Constitutional and Lisbon treaties, but had on both occasions been told they were "fait accompli" and could not be renegotiated.[235]

117.  We asked the Minister for Europe about this in oral evidence. He argued that Gibraltar's status had not been changed by the Lisbon Treaty.[236] He told us that the Chief Minister's first memorandum had only been of relevance to the first constitution[237] and that the second memorandum had arrived after the IGC mandate had been negotiated, adding, "we did not want to reopen the mandate, for well rehearsed reasons, and [because] we felt that there was no requirement to do so because Gibraltar's position was unaffected."[238]

118.  We conclude that it is disappointing that the UK did not properly engage with the government of Gibraltar about its concerns regarding the text of the Lisbon Treaty. We recommend that the FCO must ensure it takes Overseas Territories' interests into account in its relations with the EU. We further recommend that in its response to our Report the FCO sets out the mechanisms it has in place to ensure the Overseas Territories covered by the Overseas Association Decision are informed and consulted about EU legislation that affects them.

RELATIONS WITH THE UNITED KINGDOM PARLIAMENT

Formal representation?

119.  In 1998 our predecessor Committee urged the FCO to look at what it described as a "democratic deficit" in relation to the Overseas Territories: the lack of a direct way for elected Territory representatives to make representations to Parliament and for Parliament to assess the performance of the Governor or local administration.[239] In its response, the FCO rejected this notion, arguing that Members could ask questions about the performance of Governors or local administrations and that select committees could summon these key officials and visit Overseas Territories. Regarding Overseas Territories' representation in Parliament, the FCO wrote that that a representative for each Territory would not be "practical or equitable in democratic terms", but that the Territories would have difficulties selecting a single representative. It further argued that Overseas Territory representatives in the UK had made it clear that they preferred the existing arrangements and that times of crisis, such as in Montserrat, had shown that the Overseas Territories did not lack champions in Westminster and beyond.[240]

120.  In 1999 our predecessor Committee also recommended that the Royal Commission considering the future of the House of Lords should examine the possible representation of Gibraltar in a reformed second chamber.[241] The Wakeham Commission did consider the issue and concluded that since all the Overseas Territories had their own governments, there was "no case at present for any of the Overseas Territories to be formally represented or given a voice in the second chamber."[242] However, the Commission also noted that in light of the Government's proposal to offer British citizenship to citizens of Overseas Territories (enacted in 2002) there might "be a case for individuals from the Territories to be offered membership" on "a personal basis".[243]

121.  In its evidence to our inquiry the FCO argued that the interests of Overseas Territories' voters were "quite different to those of British voters, and […] more appropriately served by their own territory legislatures". It also argued that the setting up of the OTCC and the creation of a Minister with responsibility for the Overseas Territories had already strengthened Overseas Territories' voice at Westminster.[244]

122.  Territory government leaders had mixed views on whether formal representation was necessary. Councillor Summers said that the Falkland Islands Legislative Council was satisfied with the Falkland Islands All Party Parliamentary Group as its link with Parliament.[245] During our visit to the Cayman Islands, the Territory's Leader of Government Business told us that, on balance, he did not want to see formal representation introduced since it could bring Territories into lot of debates in which they did not need to be involved. The Premier of the British Virgin Islands said that his government had given careful consideration to this issue, but had also decided it preferred the status quo as "this way we have the right of access to all Parliamentarians not just the one or two who 'should' have an interest". Instead he made a couple of related suggestions, including that Parliament should fund annual visits to BVI under the auspices of the All Party BVI Group and that UK representatives of Overseas Territories governments should be given parliamentary passes (see paras 101 to 103 above).[246]

123.  However, the Premier of the Turks and Caicos Islands (TCI) was in favour of formal representation.[247] He argued:

If we are to have a long-term marriage, the time has come for consideration of the Overseas Territories having direct representation in the House of Commons.

He also pointed out that the French and Dutch Territories had representation in their respective national parliaments.[248] Formal representation was also supported by a Belonger in TCI who argued that it would "provide visibility to the issues which affect the lives of the citizens within the Territory as well as a training mechanism in the 'Westminster' two party system of government".[249] (See following Chapter for concerns about governance in TCI).

124.  The Chief Minister of Gibraltar told us that he would "love to have some sort of representation for Gibraltar in Parliament" but that this would have to be done "in a way that did not undermine Gibraltar's ability to be economically and jurisdictionally separate and distinct from the UK in the EU legal framework".[250] The Leader of the Opposition in Gibraltar also argued that "a way should be found whereby" Overseas Territories "are involved in Parliament".[251]

125.  Meg Munn told us that the UK had a very different relationship to its Territories to that of France, for example, and argued that she did not therefore think it was appropriate for the UK to have representatives of its Territories in the House of Lords. However, she did not dismiss outright the possibility of membership on a personal basis in the second Chamber.[252]

126.  We recommend that the Foreign and Commonwealth Secretary should consider with the Leader of the House and with representatives of the Opposition parties whether improvements can be made in the ways in which the views of those resident in the Overseas Territories can be made known in the UK Parliament.

Application of parliamentary privilege

127.  At the start of our inquiry, it became clear to us that a number of witnesses, the majority from the Turks and Caicos Islands (see Chapter 3 below), feared some kind of negative consequence as a result of having sent us their submissions. Many therefore requested that their evidence be confidential or published anonymously.

128.  "Threatening" a person giving evidence to a select committee or in an way "punishing, damnifying or injuring" them or attempting to do so is an offence under the Witnesses (Public Inquiries) Protection Act 1892.[253] However, the offence can only be committed by persons who commit the prohibited act within the United Kingdom. Both Houses of Parliament also treat the bringing of legal proceedings within the UK against any person on account of any evidence they have given before a Committee of the House as a contempt[254] and UK courts have refused to entertain such actions.[255] While there are historical precedents for the House condemning action against a witness outside the UK but in UK territory,[256] we were uncertain about the extent to which a resolution of the House of Commons could afford actual protection to witnesses in the Overseas Territories. We therefore sought advice from the House authorities.

129.  The advice we received was that so far as the Overseas Territories were concerned, it would be necessary to establish what (if anything) was said about parliamentary privilege (rights of immunity) in the Territory's constitutions. In the case of the Turks and Caicos Islands (TCI), nothing in TCI's constitution protected the privileges of the UK Parliament. Section 84 of the Territory's new constitution empowered the Governor to prevent "disciplinary action" but it would be uncertain whether the Governor would prevent action against a witness in the Territory or whether the FCO would consider it proper to interfere in his discretion in the matter, particular if such action were well founded within the laws of TCI. It was also uncertain whether the Attorney General of the Territory would be willing to institute proceedings on the basis of evidence given by a witness to the House of Commons or to act to discontinue such proceedings if they were not instituted by him. There was a right of appeal to the Privy Council but in the absence of any directly relevant judgement of the Judicial Committee, the House authorities told us, there was no reliable basis on which they could assess what view the Privy Council might take of the privileges of someone giving evidence to a Committee of the House of Commons.

130.  On the basis of this advice, we concluded that the extent to which the House can in practice extend protection to witnesses from Overseas Territories appearing before a select committee is not certain. We therefore decided that we should not publish any evidence where the witness had expressed concerns about the consequences of our so doing. We further decided that publishing evidence anonymously would not offer sufficient protection since we could not guarantee that authors would not be identified from the contents of their submissions. We therefore had to treat a significant part of the evidence we received in this inquiry as being submitted in confidence. We have taken full account of this evidence, but its confidential status has unavoidably imposed constraints on our ability to refer to it in this Report.

131.  We are concerned that witnesses from Overseas Territories cannot at present be guaranteed protection against legal action or even intimidation or other abuse arising as a consequence of their giving evidence to select committee inquiries in the UK. We recommend that the Government should introduce legislation to extend the Witnesses (Public Inquiries) Protection Act 1892 to Overseas Territories, or as an alternative, that it should urgently require Overseas Territories to introduce equivalent legislation as a matter of good governance.

INTERNATIONAL OLYMPIC COMMITTEE

132.  In 1996 the International Olympic Committee (IOC) amended the Olympic Charter so that Dependencies or Territories of Sovereign States would no longer be allowed IOC recognition unless they became independent. Bermuda, the Cayman Islands, and the British Virgin Island, (also Hong Kong, United States Virgin Islands, Guam, American Samoa and Netherlands Antilles) were permitted to continue to be part of the Olympic movement, but membership was barred for any aspiring new entrants from Dependencies or Overseas Territories.[257]

133.  In 2001 the Turks and Caicos Islands' Sports Commission decided to establish a Turks and Caicos Islands Olympic (Steering) Committee (TCIOC) to investigate IOC recognition. However, TCIOC told us, all its attempts to be heard by the IOC, the British Olympic Association and the FCO had been "unproductive".[258] TCIOC pointed out that the lack of IOC recognition prevented its youth from accessing the significant financial support given to National Olympic Committees by the IOC.[259] It criticised the FCO's approach to the issue as "lackadaisical and unprofessional".[260]

134.  Gibraltar's National Olympic Committee is currently suing the IOC through Swiss courts for IOC recognition.[261] Ray Carberry, President of the TCIOC, told us that the FCO had said it should wait until the outcome of Gibraltar's case. However, he felt that this approach was wrong since he believed TCI's case had "nothing in common" with Gibraltar's legal arguments.[262]

135.  The Premier of the Turks and Caicos Islands told us that the lack of Olympic recognition for the Territory was an "injustice" which needed to be addressed. He added:

Despite the fact that we have a constitutional relationship with the United Kingdom, all of our various Territories have their own distinct identities. The people have their own aspirations and national pride. Nothing in the world can instil national […] identity more than sport. [263]

136.  We conclude that it is wrong for some Overseas Territories to have access to the benefits of International Olympic Committee (IOC) recognition while others do not. We recommend that the FCO should make representations to the IOC about recognition for all the UK Overseas Territories.

WREATH-LAYING AT THE CENOTAPH

137.  Currently the Foreign Secretary lays a wreath at the Cenotaph on behalf of all the Overseas Territories at the Remembrance Sunday service. In a personal submission to our inquiry, Albert Poggio, the government of Gibraltar's representative in the UK, argued that Gibraltar should be able to lay a wreath on its own behalf:

The people of Gibraltar made many sacrifices during the war and they believe strongly that there should be the opportunity for Gibraltar to place a wreath at the Cenotaph in the same way that many organisations in the UK do. We appreciate that the Foreign Secretary has undertaken this task on our behalf since the war, but believe that the powers in our new Constitution, which gives almost full autonomy to the Government of Gibraltar in the area of external affairs, should be reflected in our undertaking this important and symbolic task on our own behalf. [264]

138.  We asked the Chief Minister of Gibraltar for his view. He told us that the government of Gibraltar was "very proud" of its contribution in the second world war in particular and that it would be "honoured and privileged" to lay its own wreath.[265]

139.  UKOTA argued that it seemed "strange and anachronistic" for Overseas Territory representatives to be excluded from laying a wreath. It argued that many Overseas Territories citizens had "fallen in defence of Britain" and all now had democratically elected governments which sent representatives to many international events.[266] We note that in the past the High Commissioner for the Federation of Rhodesia and Nyasaland and, later, Southern Rhodesia, laid a wreath at the Cenotaph and that those Federations had a similar level of self-government to Gibraltar.

140.  However, in an oral answer on 20 November 2007, the Minister for Europe said the Government had no plans to change the current arrangements for Remembrance Sunday.[267] The Chief Minister of Gibraltar suggested to us that this reluctance to change practice was because the Foreign Secretary's exclusive function in the ceremony is to represent the Overseas Territories.[268]

141.  We recommend that Overseas Territory government representatives from Bermuda, Gibraltar, the Falkland Islands and any other Territory wishing to do so should be permitted to lay a wreath at the Cenotaph on Remembrance Sunday. The Foreign Secretary should continue to lay a wreath on behalf of other Territories.

COMMONWEALTH HEADS OF GOVERNMENT MEETING

142.  The government of Gibraltar's representative in the UK also argued that the UK should support the attendance of Overseas Territories' political leaders at CHOGM:

The Overseas Territories play an active role in the Commonwealth and attend many international and regional meetings. It therefore seems a strange anachronism that they are represented at CHOGM by the Secretary of State for Foreign Affairs. We recognise that it is the responsibility of the Commonwealth Heads of Government to issue such invitations. However, we believe that support from the UK would lend us great weight in making our case. Many of the new Constitutions that many of the Territories have or are in discussions on give greater autonomy to locally elected Governments. It would seem to be appropriate timing to make the case for the UK to support the attendance of Overseas Territories' political leaders at CHOGM.[269]

143.  During our visit to Bermuda, ministers called for Bermuda to be given the opportunity to speak at Commonwealth financial conferences, rather than always having to sit behind the UK representative.

144.  We recommend that the Government should give consideration to whether it would be appropriate to support wider participation of Overseas Territories in Commonwealth meetings and conferences, including the Commonwealth Heads of Government Meeting.

---

9   The British Indian Ocean Territory, the British Antarctic Territory and South Georgia and the South Sandwich Islands have Commissioners rather than Governors. The Commissioner of the British Indian Ocean Territory and the British Antarctic Territory is the Director of the Overseas Territories Directorate in the FCO. The Falklands Islands Governor is the Commissioner for South Georgia and the South Sandwich Islands. The Governor of St Helena is also Governor of its Dependencies (Ascension and Tristan da Cunha), although each has a resident Administrator.  Back

10   Ev 296 Back

11   Ev 144 Back

12   Ev 171 Back

13   Ev 144 Back

14   Except Bermuda for which the UK may only legislate by Act of Parliament, or by Order in Council under an Act of Parliament. Back

15   Ev 144 Back

16   Foreign and Commonwealth Office, Partnership for Peace and Prosperity: Britain and the Overseas Territories, Cm 4264, March 1999, p 4 Back

17   Foreign and Commonwealth Office, Partnership for Peace and Prosperity: Britain and the Overseas Territories, Cm 4264, March 1999, para 2.7 Back

18   Ev 144 Back

19   Ev 88 Back

20   Ev 144 Back

21   Q 10 Back

22   Ev 220 Back

23   Q 10 Back

24   Ev 144 Back

25   Ev 296 Back

26   Q 226 Back

27   "Turks and Caicos Islands Conclude Successful Constitutional Modernization Talks", Foreign and Commonwealth Office press release, 10 April 2005 Back

28   Ev 144 Back

29   Ev 168 Back

30   Q 77 Back

31   Ev 247 Back

32   Ev 144 Back

33   Q 85 Back

34   HC Deb, 9 May 2008, col 1245W Back

35   Q 68 Back

36   Ev 274 Back

37   Q 9 Back

38   "Referendum in July", Caymanian Compass, 22 May 2008 Back

39   Ev 85 Back

40   Q 50 Back

41   HC Deb, 29 February 2008, cols 2023-2024W Back

42   Ev 373 Back

43   Ev 144 Back

44   Qq 83-84 Back

45   Ev 144; A resident of St Helena also told us that the constitutional proposals were unsuccessful because the draft constitution's human rights chapter did not include a right to nationality (Ev 311). Back

46   Qq 41-42 Back

47   Ev 144 Back

48   Q 31 Back

49   Ev 133 Back

50   Except Bermuda, whose government established a Constituency Boundaries Commission in 2001. This led to amendments to the constitution in 2003 which replaced the previous system of dual-member constituencies with single-member constituencies. Back

51   Q 3 and 6 [Hon Kurt Tibbetts], Q 31 [Mr Leslie Jaques], Qq 41 - 42 [Hon Brian Isaac], Q 68 [Hon Osbourne Fleming], Q 70 and 71 [Dr Hon Lowell Lewis], Q 71 and 77 [Dr Hon Michael Misick], Ev 85 [Falklands Legislative Council], and Q 226 [Hon Peter Caruana QC]. BVI was the only Overseas Territory which did not do so. Back

52   Q 3 Back

53   Q 70 Back

54   Q 261 Back

55   Q 262 Back

56   Ev 144 Back

57   Foreign Affairs Committee, Twelfth Report of Session 2001-02, Foreign and Commonwealth Annual Report 2002, HC 826, Ev 112 and Ev 144 Back

58   We also received an amendment to the draft constitution for the British Virgin Islands in June 2007 (Ev 68). Back

59   Foreign Affairs Committee, Overseas Territories: Written Evidence, HC (2004-05) 115, Ev 3 Back

60   The only such submission, from the Free Montserrat United Movement, called for independence as an "ultimate" goal (Ev 267). Back

61   Bermuda Independence Commission, Report of the Bermuda Independence Commission, August 2005, p 6 Back

62   Ev 270 Back

63   Ev 292 Back

64   Q 270 Back

65   Q 272 Back

66   Above all, the principle that the interests of Territory inhabitants are paramount.  Back

67   The Declaration on the Granting of Independence to Colonial Countries and Peoples Back

68   Resolution 1541 (XV) Back

69   www.un.org Back

70   Q 226 Back

71   Ev 296 Back

72   Ev 233 Back

73   "The General Assembly, recalling its decision 61/522 of 14 December 2006 and the statements agreed to by the Governments of Spain and the United Kingdom of Great Britain and Northern Ireland in Brussels on 27 November 1984, and in Madrid on 27 October 2004, and noting the establishment, pursuant to the latter, of the tripartite Forum of Dialogue on Gibraltar, separate from the Brussels Process, under the statement made jointly by the Governments of Spain, the United Kingdom and Gibraltar on 16 December 2004: (a) Urges both Governments, while listening to the interests and aspirations of Gibraltar, to reach, in the spirit of the 27 November 1984 statement, a definitive solution to the question of Gibraltar, in the light of relevant resolutions of the General Assembly and applicable principles, and in the spirit of the Charter of the United Nations; (b) Welcomes the successful outcome of the first package of measures concluded at the tripartite Forum of Dialogue on Gibraltar." (62/523) Back

74   Q 192 Back

75   Ev 296 Back

76   Q 247 Back

77   Qq 247 and 248 Back

78   The issue is not sub judice for the purposes of parliamentary debate since it is a ministerial decision that is in question. See Resolution of the House governing matters sub judice, 15 November 2001. Back

79   Q 115 [Mr Gifford] Back

80   www.chagossupport.org.uk Back

81   Q 112 Back

82   Ev 105 Back

83   Ev 105 Back

84   HC Deb, 15 June 2004, cols 33-34WS Back

85   "Islanders who wait in vain for justice and a paradise lost", The Times, 9 November 2007 Back

86   Ev 144 Back

87   Ev 105 Back

88   Public Accounts Committee, Seventeenth Report of Session 2007-08, Foreign and Commonwealth Office: Managing Risk in the Overseas Territories, HC 176, Q 17 Back

89   "Islanders who wait in vain for justice and a paradise lost", The Times, 9 November 2007 Back

90   Public Accounts Committee, Seventeenth Report of Session 2007-08, Foreign and Commonwealth Office: Managing Risk in the Overseas Territories, HC 176, Ev 16 Back

91   Q 309 Back

92   Ev 312 Back

93   Ev 105 Back

94   Q 132 Back

95   Ev 294 Back

96   Public Accounts Committee, Seventeenth Report of Session 2007-08, Foreign and Commonwealth Office: Managing Risk in the Overseas Territories, HC 176, Q 20 Back

97   Ev 105 Back

98   Ev 345 Back

99   HC Deb, 20 January 2006, col 38WS Back

100   Foreign Affairs Committee, Third Report of Session 2006-07, Human Rights Annual Report 2006, HC 269, para 80 Back

101   Foreign and Commonwealth Office, Response of the Secretary of State for Foreign and Commonwealth Affairs to the Third Report from the Foreign Affairs Committee Session 2006-07, Cm 7127, June 2007, paras 43 - 46 Back

102   Ibid., para 44 Back

103   Reprieve also made claims about stopovers of rendition planes in the Turks and Caicos Islands.  Back

104   Ev 182 and 203 Back

105   HC Deb, 21 February 2008, col 547-8 Back

106   Ev 310 Back

107   Ev 343 Back

108   Qq 304-306 Back

109   Ev 310 Back

110   Ev 345 Back

111   Oral evidence taken before the Foreign Affairs Committee on 7 May 2008, HC (2007-08) 533-ii, Q 59 Back

112   Ibid., Q 60 Back

113   Ibid., Q 61 Back

114   Ev 345 Back

115   Ev 312 Back

116   Qq 307-308 Back

117   "Court to decide on families' right to return to Diego Garcia", Independent, 7 February 2007  Back

118   Q 121 Back

119   Q 112 [Mr Bancoult] Back

120   Q 311 Back

121   Ev 105 Back

122   Q 142 Back

123   Qq 310, and 312 - 313 Back

124   Ev 105 Back

125   Ev 105 Back

126   The proposal left open the possibility of pursuit of wider resettlement rights in the future and in oral evidence Richard Gifford, the Chagos Refugees Group's legal representative, stated clearly that resettlement of Diego Garcia was also considered practically feasible (Q 132). Back

127   Chagos Refugees Group/ UK Chagos Support Association, Returning Home: A Proposal for the Resettlement of the Chagos Islands, March 2008  Back

128   Ibid., p 10 Back

129   Ibid., p 8 Back

130   Q 112 Back

131   Q 145 Back

132   Ev 115 Back

133   Ev 144 Back

134   Ev 95 Back

135   Ev 95 Back

136   Ev 95 Back

137   Ev 95 Back

138   Ev 95 Back

139   Q 175 Back

140   HL Deb, 22 May 2006, col 81WA Back

141   www.chagossupport.org.uk Back

142   HL Deb, 22 May 2006, col 81WA Back

143   HL Deb, 22 May 2006, col 81WA Back

144   Q 156 Back

145   British Overseas Territories Act 2002, section 6 Back

146   Ev 300 Back

147   Q 160 Back

148   Q 161 Back

149   Q 159 [Bancoult] Back

150   Ev 294 Back

151   Ev 300 Back

152   Report by the Comptroller and Auditor General, Foreign and Commonwealth Office: Managing risk in the Overseas Territories, HC (2007-08) 4, p 56 Back

153   Q 315 Back

154   www.fco.gov.uk Back

155   Ev 125 Back

156   Ev 125 Back

157   Ev 171 Back

158   Foreign and Commonwealth Office, Partnership for Peace and Prosperity: Britain and the Overseas Territories, Cm 4264, March 1999, para 2.9 Back

159   Ev 219 Back

160   Consultation Document on the Future of Ascension Island Council Back

161   Q 316 Back

162   Q 315 Back

163   Q 318 Back

164   Q 28 [Hon Brian Isaac], Q 70 [Dr Hon Lowell Lewis] and Q 71 [Dr Hon Michael Misick] Back

165   Q 193 [Hon Joe Bossano] and Q 234 [Hon Peter Caruana QC] Back

166   Ev 85 Back

167   Ev 224 Back

168   Q 2 Back

169   Foreign Affairs Committee, Second Report of Session 1997-1998, Dependent Territories Review: Interim Report, HC 347, para 42 Back

170   Foreign Affairs Committee, Third Special Report of Session 1997-1998, Dependent Territories Review: Interim Report Government Response to the Second Report from the Foreign Affairs Committee, HC 1192, para 10 Back

171   Q 234 [Hon Peter Caruana QC] and Q 273 [Meg Munn MP] Back

172   Q 4 Back

173   Q 4 Back

174   Ev 85 Back

175   Q 21 [ Mr Turner] Back

176   Q 69 Back

177   Q 274 Back

178   Ev 144 Back

179   Q 13 [Hon Kurt Tibbetts], Q 32 [Councillor Summers], Q 32 [Hon Brian Isaac] and Q 74 [Dr Hon Michael Misick] Back

180   Q 72 [Hon Osbourne Fleming] and Q 73 [Dr Hon Lowell Lewis] Back

181   Q 11 Back

182   Q 29 Back

183   Ev 85 Back

184   Q 13 [Hon Kurt Tibbetts], Q 32 [Councillor Summers] and Qq 75-76 [Dr Hon Michael Misick] Back

185   Ev 88, 171, 186, 220 and 252 Back

186   Ev 88, 186 and 220 Back

187   Ev 326 Back

188   Ev 88 Back

189   Ev 186 Back

190   Ev 88 Back

191   Ev 144 Back

192   Ev 144 Back

193   Q 74 Back

194   Ev 220 Back

195   Ev 85 Back

196   Ev 171 Back

197   Ev 133 Back

198   Q 13 [Hon Kurt Tibbetts] and Q 32 [Councillor Summers] Back

199   Ev 88 Back

200   Q 335; except Gibraltar and the Sovereign Base Areas of Cyprus. Back

201   Ev 357 Back

202   www.ukota.org Back

203   "New London Office", Government of Gibraltar press release 279/2007, 19 December 2007 Back

204   Ev 224 Back

205   Foreign Affairs Committee, Second Report of Session 1997-1998, Dependent Territories Review: Interim Report, HC 347, para 63 Back

206   Foreign Affairs Committee, Third Special Report of Session 1997-98, Dependent Territories Review: Interim Report Government Response to the Second Report from the Foreign Affairs Committee, Session 1997-98, HC 1192, para 20 Back

207   Ev 132 Back

208   Ev 132 Back

209   Q 237 Back

210   Ev 88 and 220 Back

211   Ev 88 Back

212   If Territories want to negotiate an agreement with a sovereign state or international organisation where there is no existing UK treaty or similar instrument, the Crown can formally "entrust" the Governor with the power to conclude the agreement. Entrustments are now also sometimes given to Territory governments for a specific treaty and, more rarely, for treaties within general categories. Bermuda, Gibraltar and the Caribbean Overseas Territories have standing entrustments to negotiate tax information exchange agreements. Bermuda and BVI also have standing entrustments in other specified areas. (Ev 144) Back

213   Ev 144 Back

214   Ev 144 Back

215   Q 324 Back

216   Q 325 Back

217   See also para 114. Back

218   Q 16; The British Virgin Islands' Financial Services Commission also highlighted the fact that the UK had committed the Overseas Territories to the Directive without prior consultation and argued that the Directive had given Bermuda, which was left out, a competitive advantage over other Territories. (Ev 226) Back

219   Q 40 Back

220   Q 18 Back

221   Ev 85 Back

222   Ev 88 and 171 Back

223   Ev 88 and 220 Back

224   Ev 88 Back

225   Ev 171 Back

226   Bermuda is not included at its own request. Back

227   The EC Treaty applies to the Sovereign Base Areas of Cyprus only to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas annexed to the Act of Accession of the Czech Republic and others to the EU. (Ev 144) Back

228   Ev 144 Back

229   See Chapter 4 for discussion of the Cayman Islands' government's management of this disaster. Back

230   Foreign and Commonwealth Office, Partnership for Peace and Prosperity: Britain and the Overseas Territories, Cm 4264, March 1999, para 2.16 Back

231   Q 16 Back

232   The Community Customs Territory and Common Commercial Policy (and thus Community rules on the free movement of goods do not apply); the Common Agricultural Policy; the Common Fisheries Policy; and the requirement to levy VAT. Back

233   Report by the Comptroller and Auditor General, Foreign and Commonwealth Office: Managing risk in the Overseas Territories, HC (2007-08) 4, 16 November 2007, p 51 Back

234   Q 200 Back

235   Qq 230-233 Back

236   Q 249 Back

237   Q 251 Back

238   Q 250 Back

239   Foreign Affairs Committee, Second Report of Session 1997-1998, Dependent Territories Review: Interim Report, HC 347, para 62 Back

240   Foreign Affairs Committee, Third Special Report of Session 1997-98, Dependent Territories Review: Interim Report Government Response to the Second Report from the Foreign Affairs Committee, Session 1997-98, HC 1192, para 19 Back

241   Foreign Affairs Committee, Fourth Report of Session 1998-99, Gibraltar, HC 366, para 104 Back

242   Royal Commission on the Reform of the House of Lords, A House for the Future, Cm 4534, January 2000, para 6.29 Back

243   Royal Commission on the Reform of the House of Lords, para 6.30 Back

244   Ev 144 Back

245   Q 66 Back

246   Ev 220 Back

247   Q 110 Back

248   Qq 110-111 Back

249   Ev 168 Back

250   Q 239 Back

251   Q 201 Back

252   Q 337 Back

253   Section 2 Back

254   Resolution of the House 26 May 1818 Back

255   Erskine May, 23rd edition (London, 2004), p 152 Back

256   "On the 10^th May, 1733, complaint was made that Jeremiah Dunbar, Esq., had been censured by the House of Representatives of Massachusetts Bay, for evidence given by him before a committee on a bill, upon which the house resolved, nem. con., 'That the presuming to call any person to account, or to pass a censure upon him, for evidence given by such person before this house, or any committee thereof , is an audacious proceeding and a high violation of the privileges of this House.' " (Erskine May 13th edition (London, 1924), p 131) Back

257   Ev 72 Back

258   Ev 72 Back

259   Ev 242 Back

260   Ev 72 Back

261   "Gibraltar seeks recognition from governing bodies", Reuters, 16 December 2006 Back

262   Ev 242 Back

263   Q 106 Back

264   Ev 132 Back

265   Q 241 Back

266   Ev 88 Back

267   HC Deb, 20 November 2007, col 1087W Back

268   Q 240 Back

269   Ev 132 Back

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Prepared 6 July 2008