Submission from the Falklands Islands
Legislative Council
This evidence is drafted by Cllr Mike Summers
OBE on behalf of the Legislative Council of the Falkland Islands
Government (FIG), and has been agreed by all Members of the Legislature.
1. STANDARDS
OF GOVERNANCE
IN THE
OVERSEAS TERRITORIES
Standards of Governance in the Falklands are
described by all commentators as high.
The Legislative Council of eight Members is
made up of all independents; the lack of a party system (there
has never been one) makes members responsible only to their electorate
and removes the cloak of protection provided by a party system,
and responsibility to the party's policies. Members therefore
tend to know their electorate very well and are responsive to
public concerns.
We believe that corruption does not exist in
Government, or in any other sector of society, on any significant
scale. Wages for Public Servants and the Police are at least equal
to those in the private sector at most levels. There is an active
FIG internal audit function, but it has not raised any issues
of probity in recent memory. The Tender Board is fully scrutinised
and its activities subject to review by Executive Council where
any doubt exists.
In such a small society where everyone is well
known the public plays an active scrutiny role, and has almost
instant access to Councillors.
Appointments to the public service are in the
control of the Governor, delegated in the main to the Chief Executive
(Head of the Civil Service), who takes advice from Elected Members
on key appointments, but is not bound by it. The dangers of nepotism
and cronyism in Government appointments are clearly understood;
under the current Constitution the Governor provides the scrutinising
function and is ultimately responsible for all appointments.
The Nolan Principles on Standards in Public
Life have been formally adopted into Standing Rules and Orders
of Legislative Council and into the Public Service Management
Code; they also apply to lay members of Government Committees.
There is an open system of declaration of interests that applies
to all Committee meetings and Council meetings. The public is
very intolerant of any suggestion of personal interest influencing
decision making. Formal sanction for breach of standards by public
servants is by way of the Management Code, but there is not as
yet any formal sanction for failure to comply with required standards
by elected members.
Financial management systems are open and robust.
Successive external audits (including an EU audit on public finance)
have found no substantive issues either of control or of use of
public funds.
FIG operates a very open system of government.
The Committees (Access to Information) Ordinance provides for
all Government Committee meetings to be open to the public, unless
there are matters of personal or a commercially confidential nature,
or it is not in the national interest for an issue to be discussed
in public, in which case there is provision for there to be a
close section of the agenda
2. THE ROLE
OF GOVERNORS
(AND OTHER
OFFICE HOLDERS
APPOINTED BY
OR ON
THE RECOMMENDATION
OF THE
UK GOVERNMENT)
Office holders appointed by the UK Government
are restricted to the Governor, the First Secretary, who is also
Deputy Governor and acting Governor in his absence, the judiciary,
and all appointments to HM Forces in the Falkland Islands. Appointments
to the posts of Attorney General, Chief Police Officer and Principal
Auditor are FIG appointments and would normally be referred for
Foreign Office approval, though there is no Constitutional obligation
to do so.
Under the current Constitution (1985 vintage)
the Governor may exercise executive power with few formal restrictions.
Although custom and practice suggests that the Governor would
on all important matters consult Executive Council and accept
their advice (including on important foreign affairs issues),
he is not bound to do so. This is clearly unsatisfactory in the
development of democracy and of internal self government, which
is the declared aim of the 1999 White Paper. The Select Committee
on the Constitution has proposed that this should be reviewed,
and the circumstances in which the Governor may act without the
advice of Council, and the processes to be followed, be clearly
set down.
The current Governor is fully seized of the
importance of democratic development; his immediate predecessor
was not. There appear to be few mechanisms for the Foreign Office
to intervene when personal style and interpretation are inappropriate
for the Territory. Most Governors come from mainstream diplomatic
activity, and have little or no experience of running a country.
It has been suggested to the Foreign Office that longer and more
intense induction would be helpful for incoming Governors; we
are not aware that this has been taken up.
The level of consultation with the Overseas
Territory prior to and during the appointments of Governors is
superficial. Inappropriate appointments might be avoided by more
trust and partnership working in the appointments process.
In the Falklands circumstances the role of the
Governor in foreign affairs and defence is critical, and it is
therefore essential that there is a strong working relationship
between Councillors and the Governor, and between the Governor
and the Commander British Forces (CBF), who sits ex-officio on
Executive and Legislative Councils. There should therefore be
a role for Councillors in reviewing the appointment of the Governor,
and the Governor in reviewing the appointment of the CBF.
3. THE WORK
OF THE
OVERSEAS TERRITORIES
CONSULTATIVE COUNCIL
The OTCC has, from our perspective, operated
in a largely satisfactory manner, dealing with issues of common
interest to the OT's. In practice many of the concerns in the
Caribbean are not concerns in the Falklands and vice versa. The
temptation to try to find common solutions to disparate problems
and issues nevertheless remains a holy grail for bureaucrats,
and the OTCC helps to remind some people that we are all different.
Follow up from the OTCC is noticeably weak;
there have been few real outcomes over the years, the decision
last year on university fees being the notable exception (largely
because the OT's Minister moved to the relevant education portfolio
!).
The role of Governors in the OTCC has become
an issue for some, but is not currently of concern to the Falkland
Islands. 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.
4. TRANSPARENCY
AND ACCOUNTABILITY
IN THE
OVERSEAS TERRITORIES
The Falkland Islands Committees (Access to Information)
Ordinance provides for largely transparent Government, with all
major Committees (including the Standing Finance Committee but
excluding Executive Council) held principally in public. For an
item of business to be in the closed section of a meeting the
case has to be made and stated on the agenda; all items of business
are assumed to be public unless otherwise determined. The Chief
Executive is the responsible officer for the determination of
procedure.
The Select Committee on the Constitution is
of the view that some parts of Executive Council could also be
held in public. This proposal will be taken forward in due course.
All minutes from Committee meetings are made
public, as are the papers for those meetings unless the matter
is exempt (was heard in closed session). Executive Council papers
are made public unless they contain items of a personal or corporately
confidential nature, or if they are work in progress whose publication
would not provide clarity on Governments intentions.
All Councillors hold a public meeting once a
month prior to Council meetings. These alternate between themed
and open agendas, and are moderately well attended.
In an effort to further increase accountability
the Select Committee on the Constitution has developed a new system
of portfolio responsibility for Councillors. This is also designed
to increase scrutiny of decisions made in Committees and in Executive
Council. A full explanation can be found in Annex I of the Final
Report of the Select Committee on the Constitution and will be
implemented in November 2007.
Nevertheless there remain concerns in some quarters
that too many decisions are taken in caucus (in the General Purposes
Committee (GPC) consisting of all elected Members) which is not
open to the public, causing reduced public debate in Legislative
Council; the Select Committee on the Constitution concurred with
this view. To address this there is a regular briefing of the
press on the GPC agenda and discussions, and Executive Councillors
are not bound by any recommendations or views from GPC. A revised
system of portfolio responsibility has been devised (see Annexes
to Report on the Constitution) which is designed to create a division
between Committee level decision making and Executive Council,
to increase scrutiny and accountability. This will come into operation
in November 2007.
5. REGULATION
OF THE
FINANCIAL SECTOR
IN THE
OVERSEAS TERRITORIES
There is no Financial Services industry in the
Falklands.
6. PROCEDURES
FOR AMENDMENT
OF THE
CONSTITUTIONS OF
OVERSEAS TERRITORIES
The Overseas Territories have been left to determine
their own procedures for review of the Constitution.
The Falkland Islands chose to form a Select
Committee consisting of all elected members of Council. Evidence
has been solicited from members of the public and officers of
the Government; a number of early meetings were held in public
and members of the public were invited to address to Committee
on any matters they wished. There have been three reports from
the Committee, each made widely available. Councillors held a
series of public meetings on both main islands following the publication
of the second report, following which the final report was produced
and published.
There has been little controversy in the review,
and not a huge amount of public interest. Arrangements are in
place for initial negotiations with the Foreign Office in December
2007. A full copy of the Final Report is annexed to this evidence.[5]
7. THE APPLICATION
OF INTERNATIONAL
TREATIES, CONVENTIONS
AND OTHER
AGREEMENTS TO
THE OVERSEAS
TERRITORIES
This is an area that causes us regular difficulty
in two respects.
The first is where international agreements
have been negotiated by UK Government departments (with the intention
that they should be applied to the OT's on signature) who have
little or no knowledge of the OT's, and very probably take no
account in their negotiations of the possible effects that these
agreements might have on OT's. Subsequent application after negotiations
are completed can be onerous. Consultation with the Foreign Office
as a matter of course might avoid some potentially serious and
embarrassing outcomes. Recent examples in this area include a
series of ILO conventions (111, 138, 182), the UN Convention against
Transnational Crime, and the SOLAS Convention and ISPS Code.
The second difficulty come in other areas where
the Falkland Islands have no difficulty with the principle of
application of the agreement, but to do so would use up a disproportionate
amount of officers time in researching the law, implementing protocols
of no practical effect or writing voluminous reports to international
bodies of no practical significance. Examples here in addition
to the above are the European convention on the Suppression of
Terrorism, the UN Convention on the Rights of the Child and the
UN Convention against Transnational Organised Crime.
8. HUMAN RIGHTS
IN THE
OVERSEAS TERRITORIES
The 1985 Constitution already has a well developed
Chapter I dealing with fundamental rights and freedoms, and there
is extensive subsidiary legislation dealing with discrimination,
legal processes, and the right to education. Some legislation
has been amended to take account of the ECHR, and other Ordinances
would be so amended where necessary when legislation is updated.
A revised Chapter I is proposed for the new Constitution which
will take full account of ECHR and other international obligations
(Right to Family Life, Rights of the Child, etc).
There is a free press in operation. The local
newspaper "The Penguin News" (PN) and the Falkland
Islands Radio Station (FIRS) both operate under the Media Trust,
an independent Trust set up by Ordinance originally to oversee
the PN. All the trustees are private citizens. At Governments'
insistence the radio station was transferred to the Media Trust
three years ago to deal with the perception, if not the reality,
that Government could influence editorial content. Government
still owns the broadcasting assets and provides a subsidy to the
Media Trust in respect of broadcasting.
Considerable work has taken place in recent
years on improving legislation and training of police and social
workers in the protection of children from abuse. Levels of abuse
are not considered abnormal but are sometimes hard to detect;
other family related violence is at normal levels, and again resources
have been put into creating the necessary protection mechanisms.
The community contains a mix of white and coloured
people (mainly migrants from St Helena and Chile). There is no
evidence of racial human rights violations.
The Falkland Islands is a prosperous and egalitarian
society—there is no poverty and full employment. We have
not considered it necessary therefore to introduce minimum wage
legislation. There is some evidence that migrant workers employed
by MoD contractors at the Mount Pleasant military base are forced
to work very long hours and are deprived of basic employment rights.
We believe the MoD shirks its responsibility to ensure that its
contractors are good employers. FIG is reluctant to introduce
new legislation to deal with issues that are effectively UK Government
responsibility, but will do so if necessary to protect our reputation.
The Falkland Islands Government nevertheless
recognises that we can always improve in important areas of protection.
The Immigration Ordinance provides protection against unsuitable
living conditions, and we continue to review any reported cases
of low pay. We are in the process of constructing a new prison
to improve prison conditions; a specialist group is reviewing
the provisions of the Mental Health Ordinance; we have updated
criminal evidence legislation to provide for increased protection
for children and the victims of domestic violence (and have further
draft legislation in train). There are working groups in place
to report on child protection issues and working conditions on
some foreign fishing vessels.
9. RELATIONS
BETWEEN THE
OVERSEAS TERRITORIES
AND THE
UNITED KINGDOM
PARLIAMENT
The Falkland Islands Government and its elected
members enjoy excellent relations with the UK Parliament, and
are generally afforded good access to Ministers and MP's when
requested. This is principally effected through our office in
London established after the war in 1982, whose principal purpose
is to keep Parliament and the UK media appraised of current developments
in the Islands.
There is strong cross party membership of the
FI All Party Group.
10. FALKLANDS
SPECIFIC ISSUES
Each of the Overseas Territories is unique in
its own way, and the Falklands are no different in that respect.
However its combination of remoteness, the Argentine claim to
sovereignty of the Falklands and South Georgia, and the economic
success and potential of the Islands (fishing and hydrocarbons
especially) makes for special circumstances.
We have no requirement for a working relationship
with DIFID, but a strong requirement for good working relationships
with both the FCO and MoD.
Airbridge
The UK/FI airbridge has been successfully operated
by the MoD, on behalf of HMG, to serve both the civil and military
communities, and the Ascension and St Helena communities, for
many years. In view of current and foreseeable non-cooperation
from Argentina in developing east-west air links through Chile,
there is a clear strategic need to develop this service to support
further economic development in the Falkland Islands, particularly
tourism and a new hydrocarbons drilling round. Joint FCO/MoD/FIG
discussions have commenced but have been slow to yield results;
political confirmation of the UK national interest in a joint
service may be required in due course.
Fishing
The fishing industry is well established and
stable, and provides the majority of economic return to the Falklands
(around 55% of GDP). The need for a Regional Fisheries Management
Organisation for the SW Atlantic remains a key priority, but we
have not to date been able to secure any cooperation from Argentina.
The role of the EU in initiating discussions may be crucial.
Hydrocarbons
A second drilling round is planned to take place
in 2008/9 following the successful farm-in of Australian minerals
giant BHP. Companies in both northern and southern regions remain
highly optimistic of commercial finds. Recent publicity has highlighted
plans for UK continental shelf extension proposals through UNCLOS
(to include OT's); it is important for the protection of the UK's
sovereignty over the Falklands that this proposal is submitted
in good time, though it has no short/medium term exploration implications.
8 October 2007
5 Not printed. Back
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