Submitted by the FCO
This memorandum is provided in response to an
invitation from the Select Committee on Foreign Affairs to provide
information on the exercise by the Foreign and Commonwealth Office
of its responsibilities in relation to the Overseas Territories
and the FCO's achievements against Strategic Priority No 10, the
security and good governance of the Overseas Territories.
|Introduction and Overview
|Standards of Governance in the Overseas Territories
|The role of Governors||Paragraphs 32-38
|The Overseas Territories Consultative Council
|Transparency and Accountability||Paragraphs 41-44
|Regulation of the Financial Sector||Paragraphs 45-54
|Constitutional Amendment||Paragraphs 55-64
|International Treaties and Conventions
|Human Rights||Paragraphs 69-75
|Parliamentary Relations||Paragraphs 76-80
|The Sovereign Base Areas of Akrotiri and Dhekelia
|Constitutional Review Developments||ANNEX B
|UN Human Rights Conventions: Ratification Table
1. The Terms of Reference given by the Select Committee
on Foreign Affairs (FAC) for their inquiry on the Overseas Territories
are as follows:
Standards of governance in the Overseas Territories
The role of Governors and other office-holders
appointed by or on the recommendation of the United Kingdom Government
The work of the Overseas Territories Consultative
Transparency and accountability in the Overseas
Regulation of the financial sector in the Overseas
Procedures for amendment of the Constitutions
of Overseas Territories
The application of international treaties, conventions
and other agreements to the Overseas Territories
Human rights in the Overseas Territories
Relations between the Overseas Territories and
the United Kingdom Parliament
2. There are 14 UK Overseas Territories (formerly known
as Dependent Territories). They are Anguilla, Bermuda, the British
Antarctic Territory, the British Indian Ocean Territory, the Virgin
Islands (usually referred to as the "British Virgin Islands"),
the Cayman Islands, the Sovereign Base Areas of Akrotiri and Dhekelia
in Cyprus, the Falkland Islands, Gibraltar, Montserrat, Pitcairn,
St Helena and its dependencies (Ascension Island and Tristan da
Cunha), South Georgia and the South Sandwich Islands and the Turks
and Caicos Islands. British Antarctic Territory, British Indian
Ocean Territory and South Georgia and the South Sandwich Islands
(also Ascension Island) have no permanent settled populations.
Facts and figures on each Overseas Territory are available on
the FCO's Country Profiles pages at www.fco.gov.uk.
3. Gibraltar (to which the EC Treaty applies subject
to exceptions provided for in the UK's Act of Accession) and the
Sovereign Base Areas in Cyprus (to which the EC Treaty does not
apply except to the extent necessary to ensure the implementation
of the arrangements set out in the Protocol on the SBAs annexed
to the Act of Accession of the Czech Republic and others to the
EU) are the only Overseas Territories within the European Union
area. Five of the TerritoriesAnguilla, the British Virgin
Islands, the Cayman Islands, Montserrat and the Turks and Caicos
Islandsare located in the Caribbean. Bermuda is situated
in the North Atlantic, off the east coast of the United States
of America on approximately the same latitude as Charleston. The
Falkland Islands, South Georgia and the South Sandwich Islands,
St Helena, Tristan da Cunha and Ascension are all found in the
South Atlantic. Tristan da Cunha is the most remote inhabited
island in the world, some 1700 miles west of Cape Town. Pitcairn
is situated in the South Pacific Ocean, 1,550 miles south-east
of Tahiti. The British Indian Ocean Territory is about 1,100 miles
east of Mahé, the main island of the Seychelles, in the
Indian Ocean. The British Antarctic Territory comprises that sector
of the Antarctic south of latitude 60° south, between longitude
20° and 80° west.
4. The overall population of the Overseas Territories
is approximately 200,000. Bermuda has the largest population,
at approximately 66,000, while Pitcairn currently only has 47
5. Bermuda is the oldest Overseas Territoryit
was acquired by the British in 1612. Five other Territories were
acquired during the seventeenth century (Montserrat, 1632, Anguilla,
1650, Cayman Islands, 1670, British Virgin Islands, 1672 and St
Helena, 1673). Three Territories, Gibraltar, which was captured
in 1704 and acquired in 1713, the Falkland Islands, which was
acquired in 1765, and the Turks and Caicos Islands, which was
acquired in 1766, were acquired in the eighteenth century. The
remaining Territories all came into British possession either
in the nineteenth century (British Indian Ocean Territory, 1814,
Ascension, 1815, Tristan da Cunha, 1816, Pitcairn, 1838) or early
part of the twentieth century (the South Orkneys, the South Shetlands,
South Georgia, the South Sandwich Islands and the territory known
as Graham's Land, situated in the South Atlantic Ocean to the
south of the 50th parallel of south latitude, and lying between
the 20th and 80th degrees of west longitude), which were listed
by a Letters Patent in 1908 and governed collectively as the Falkland
Islands Dependencies. The Falkland Islands Dependencies subsequently
became separate Territoriesthe British Antarctic Terrritory
in 1962 and South Georgia and the South Sandwich Islands in 1985.
UK's Responsibility as an Administering Power
6. Under the UN Charter (Article 73), UN members administering
Territories whose peoples have not yet obtained a full measure
of self-government "recognise the principle that the interests
of the inhabitants of these territories are paramount and accept
as a sacred trust the obligation to promote to the utmost within
the system of international peace and security established by
the present Charter, their well-being". The article sets
out a series of commitments, including ensuring political, economic,
social and educational advancement; just treatment; protection
against abuses; and developing self-government. Nowadays the UK
has a wide range of specific international obligations in respect
of the Overseas Territories, for whose international relations
we are responsible, which sometimes cover areas of policy, eg
environment, which have been delegated to Overseas Territories
UK relationship with the Territories
7. The Overseas Territories are constitutionally not
part of the United Kingdom. All of them have separate Constitutions
made by an Order in Council. All have Governors, except for the
British Indian Ocean Territory, British Antarctic Territory and
South Georgia and the South Sandwich Islands, which have Commissioners
(the Commissioner of the British Indian Ocean Territory and the
British Antarctic Territory is the Head of the Overseas Territories
Directorate in the FCO in London. 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. Each Governor is appointed by and represents Her
Majesty The Queen. The Governor both represents Her Majesty in
the Territory, and represents the Territory's interests to the
8. The degree of self-government enjoyed by a Territory depends
on its stage of constitutional development. Bermuda has almost
full internal self-government, with a Premier presiding over a
Cabinet, whose meetings the Governor does not attend. The situation
is similar in Gibraltar where the Chief Minister heads the Council
of Ministers; the Governor meets regularly with the Chief Minister
but does not attend the meetings of the Council of Ministers.
By contrast Ascension, Tristan da Cunha and Pitcairn have only
advisory Councils, and the Governor is the law-making authority.
More advanced Overseas Territories' constitutions provide for
a Governor, an Executive Council (ExCo) or Cabinet, and usually
a single chamber legislature known as the Legislative Council
or in some Territories the House of Assembly (Bermuda is the only
Overseas Territory which has two chambers). In most Territories,
the Governor has special responsibility for defence, external
affairs, internal security, including the police, the public service,
and the administration of the courts. In Anguilla, Montserrat
and TCI this extends to international financial services and in
St Helena to finance and shipping. In relation to matters within
their special responsibilities, Governors are usually required
to consult the Chief Minister or Premier but are not bound to
accept the advice of ExCo. However even in areas of special responsibility,
the Governor depends on the local government to include financial
provision for such services, eg the police, in the budget; and
on their support to get the relevant appropriation measures through
the local Legislature.
9. Most Overseas Territories' Constitutions also provide
for certain reserve powers to protect the UK Government's overall
responsibility for the good governance of the Overseas Territories.
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. For Bermuda,
however, the UK may only legislate by Act of Parliament, or by
Order in Council under an Act of Parliament. In most Territories,
the Governor also has certain reserved powers. But in most instances,
these cannot be exercised unless he/she has first consulted, or
received instructions from, a Secretary of State. Unless these
powers are exercised, the Governor is usually bound by the advice
of ExCo on matters outside his special responsibilities. In some
Territories the Governor also has reserved legislative powers.
10. A review of the relationship between Britain and the
Overseas Territories led to the publication of a White Paper "Partnership
for Progress and Prosperity" in 1999. The White Paper has
been the cornerstone for the FCO's work on the Overseas Territories
since then. A review of the White Paper policy conducted by a
Foreign and Commonwealth Office official in 2003 concluded that
we should maintain the existing policy while increasing our efforts
on good governance.
11. One of the 1999 White Paper's commitments was to
offer British citizenshipand so the right of abode in the
UKto those British Dependent Territories citizens who did
not already enjoy it. Provision for this was included in the British
Overseas Territories Act 2002 which gave British citizenship to
almost all persons who held the status of British Overseas Territories
citizen immediately before 21 May 2002.
This was accomplished on a non-reciprocal basis as far as the
right of abode was concerned. British Dependent Territories citizenship
was renamed British Overseas Territories citizenship by the 2002
12. As noted above, the Governor (or Commissioner) is
responsible in each Territory for its external relations. For
this reason, if any Territory government wants to enter into any
binding international commitment, it is required to seek UK Government
authority known as an entrustment to do so. Apart from Gibraltar
(to which the EC Treaty applies subject to exceptions provided
for in the UK's Act of Accession) and the Sovereign Base Areas
in Cyprus (to which the EC Treaty does not apply except to the
extent necessary to ensure the implementation of the arrangements
set out in the Protocol on the SBAs annexed to the Act of Accession
of the Czech Republic and others to the EU), none of the Territories
is within the EU. With the exception of Gibraltar, Bermuda and
the Sovereign Base Areas of Cyprus, the Overseas Territories'
relationship with the EU is governed by an "Overseas Association"
Council Decision. This is an instrument that is negotiated every
ten years between the Commission and Member States. The Territories
are not involved directly, but are consulted by their "parent"
Member State (ie the UK). Under the most recent 2001 Decision,
some Territories have been allocated varying amounts of European
Development Fund (EDF) finance to support national development
programmes. All Overseas Territories covered by the Decision,
and with settled populations, are eligible for EDF regional development
funding; and 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; and
provides for an annual forum to enable Chief Ministers/Premiers
to meet directly with the EU Development Commissioner and other
senior Commission officials.
13. In the Caribbean, Montserrat is a full member of the
regional organisation, the Caribbean Community (CARICOM). Anguilla,
Bermuda, the British Virgin Islands, the Cayman Islands and the
Turks and Caicos Islands are associate members. Montserrat is
also a full member of the Organisation of Eastern Caribbean States
(OECS), of which Anguilla and the British Virgin Islands are associate
members. The Caribbean Territories are members or associate members
of a number of other regional organisations.
14. Beyond this, the Overseas Territories are included in
British delegations to certain international meetings where they
have an interest, and certain Commonwealth meetings, eg of Commonwealth
Law, Finance, and Education Ministers, Commonwealth Senior Officials
and Commonwealth Health Ministers. Members of the legislatures
of the Overseas Territories have long enjoyed membership of the
Commonwealth Parliamentary Association on an equal footing with
full Commonwealth members.
15. The size of the Territories' economies, and their
level of prosperity, differ significantly. The largest Overseas
TerritoryBermudahas an economy roughly the size
of all the other Overseas Territories put together; and has one
of the world's highest incomes per capitaestimated at over
US$75,000. It also has the largest number of captive insurance
companies in the world (annual premiums: £32 billion); and
the world's largest catastrophe re-insurance capacity (one-third
of all premiums). Three other Territoriesthe Cayman Islands,
the British Virgin Islands and Gibraltarhave GDP per capita
above that of the UK (although because of the narrow economic
base and the questionable data used, GDP figures for the Territories
are sometimes misleading). In contrast, Montserrat, St Helena
and Pitcairn are in receipt of budgetary aid from DFID. Some of
the Overseas Territories are leading global players in specific
offshore financial sectorsBermuda in insurance, the Cayman
Islands in financial services (especially banking and hedge funds);
and the British Virgin Islands in licensing international business
companies (IBCs). Gibraltar is also increasing its share of this
market. There are other important activities in specific Overseas
Territories, eg fishing licences in the Falklands and South Georgia,
shipping, financial services and tourism in Gibraltar, etc.
16. While the economies of many of the Overseas Territories
have improved in recent years they are largely based on the twin
pillars of international finance and tourism, both of which are
excessively vulnerable to external factors. Most Overseas Territories
have searched for a third pillar to guarantee greater stability
but largely without success. In Anguilla, the Cayman Islands,
Pitcairn and the Turks and Caicos Islands, there is no income
tax (Bermuda and BVI have a payroll tax). Customs/import duties
are an important source of revenue for most Territories. In those
with significant financial centres, company fees and licences
play a major role. In the Falklands and South Georgia the majority
of revenue is derived from fishing licence fees.
17. The Overseas Territories do not make any direct contribution
to the British Exchequer, except in some cases a contribution
towards the cost of the Governor and his staff and the operation
of Government House. The level of this contribution varies from
Territory to Territory.
18. Given the UK's responsibilities, there exists a continuing
exposure to potential liabilities resulting from actions of the
Overseas Territories. Some of the UK's contingent liabilities
have a legal basis, eg in the case of treaties applying to the
Overseas Territories such as the European Convention on Human
Rights, which applies to most Overseas Territories. The UK is
also responsible for ensuring that Gibraltar implements any EC
legislation which is applicable to it. In the event that Gibraltar
fails to implement, the UK could be subject to infraction proceedings
by the Commission. But even in the absence of legal liability,
if the resources of the Governments of the Territories' were insufficient,
the UK might find itself politically, or morally, obliged to pick
up the bill for any Overseas Territory that had incurred liabilities
it could not itself meet.
19. Against this background, in the last two decades the
UK has spent sums running into billions of pounds on defending
the Falkland Islands. It has also provided £250m in development
assistance to Montserrat since the volcano crisis in 1995/96,
plus ongoing UK programme funding of £15m per year. A major
problem with a key sector of the local economy (eg tourism, financial
services) could lead to its stagnation or even collapse, and calls
for HMG support. Other liabilities could result from the offshore
financial sector and costs arising from criminal activity. Although
the UK Government is careful to avoid incurring legal liability,
it would face moral pressure in the event that an Overseas Territory
became unable to service its own debt.
20. To mitigate the risk of excessive Overseas Territory
borrowing creating liabilities for the UK, we have introduced
Borrowing Guidelines for those Overseas Territories that wish
to undertake borrowing. The guidelines define three ratios, which
together specify a prudential framework for Overseas Territory
Government and Government-guaranteed borrowing. The ratios impose
maximum limits for the total volume of outstanding debt and the
annual cost of debt-service, and a minimum level for Government
reserves. If all three ratios are not met, further Overseas Territory
borrowing will not ordinarily be approved by the UK Government.
Separate (pre-existing) arrangements apply for Bermuda and Gibraltar.
21. Contingent liabilities in the Overseas Territories were
the subject of a National Audit Office report in 1997. Another
NAO inquiry on contingent liabilities has been undertaken in 2007
and a report will be presented to the Public Accounts Committee
towards the end of the year.
22. Contingent liabilities could also be incurred as
a result of natural and man-made disasters and terrorist incidents.
The Overseas Territories, especially those in the Caribbean, are
particularly prone to the former. The primary threat is from the
annual hurricane season. Cayman, for example, suffered $3.5 billion
of infrastructure damage following Hurricane Ivan in September
2004, which was met largely from Cayman's own financial resources.
But other potential disasters range from earthquakes (eg British
Virgin Islands) to volcanic eruptions (eg Montserrat) and tidal
waves. Insurance could be expected to cover some, but by no means
all, of the losses in the event of such disasters. Global climate
change and the expected rise in sea levels will have an adverse
impact in the British Indian Ocean Territory and the Caribbean.
A rise in sea level could also affect adversely the lower reaches
of Gibraltar, particularly the isthmus between the Rock and mainland
Spain, on which the airport is situated.
23. The heavy dependence of many Overseas Territories on
tourism means they are vulnerable to non-natural disasters, such
as on- and offshore fires, explosions, collisions, pollution,
air accidents, ferry or cruise line accidents, oil tanker spills
etc; and generally to potential problems linked to aviation and
maritime safety and security. There is also the potential vulnerability
of tourist targets to terrorist attacks.
24. Although there are some outstanding issues over territorial
and maritime boundaries of some of the Overseas Territories, the
majority is not subject to serious dispute. The chief exceptions
are the two territories of the Falkland Islands and South Georgia
and the South Sandwich Islands, both of which are subject to Argentine
sovereignty claims; and Gibraltar, over which Spain maintains
a sovereignty claim.
25. The UK has no doubt about its sovereignty over both
the Falkland Islands and South Georgia and the South Sandwich
Islands. The UK made the first territorial claim to part of Antarctica
in 1908 by Letters Patent: and has maintained a permanent presence
in the British Antarctic Territory since 1943. But most of British
Antarctic Territory itself is counter-claimed by either Chile
or Argentina. To establish a mechanism that would defuse escalating
disputes over sovereignty (by the 1950s five-sixths of the Antarctic
continent was claimed by seven statesBritain, Argentina,
Australia, Chile, France, New Zealand and Norway), claimant and
non-claimant states negotiated the Antarctic Treaty, which was
adopted in 1959 and entered into force in 1961. Its objectives
are: to keep Antarctica demilitarised; to establish it as a nuclear-free
zone; to ensure that it is used for peaceful purposes only; to
promote international scientific co-operation in Antarctica; and
to set aside disputes over territorial sovereignty.
26. Sovereignty is also an ongoing issue for Gibraltar,
where Spain recognises British sovereignty over the Rock, but
not over the isthmus, waters surrounding the Rock (with the exception
of the port), or adjoining the isthmus, or airspace over the entire
Territory. The UK supports the right or principle of self-determination,
but this must be exercised in accordance with the UN Charter and
with other treaty obligations. In Gibraltar's case this includes
the 1713 Treaty of Utrecht, whereby sovereignty over the Rock
was ceded to Britain, but the Treaty provides that, were the UK
to relinquish sovereignty, the right of first refusal would be
given to Spain. Thus independence would only be an option with
Spanish consent. The UK has repeatedly made it clear, however,
that it will not enter into any arrangements under which the people
of Gibraltar would pass under the sovereignty of another state,
against their freely and democratically agreed wishes. Furthermore
the UK has made it clear it will not enter into a process of sovereignty
negotiations with which Gibraltar is not content.
27. In addition, after the British Indian Ocean Territory
was created in 1965 and set aside for defence use by treaty with
the United States, the UK gave Mauritius an undertaking in 1980
to cede the Chagos Islands to Mauritius when they were no longer
required for defence purposes (subject to the requirements of
international law). However, since 1980, successive Mauritian
governments have asserted a sovereignty claim to the islands,
arguing that they were detached illegally from Mauritius before
that country's independence. The UK has consistently rejected
these claims, but repeated the undertaking to Mauritius given
28. The Overseas Territories are environmentally very
rich and varied:
The British Indian Ocean Territory contains the
Great Chagos bank, one of the world's largest atolls;
There are more than 200 endemic plant species
in the Overseas Territories. Most occur on St Helena (46);
The Overseas Territories in the South Atlantic
provide important breeding grounds for many species of birds,
including albatrosses, frigate birds and penguins;
Henderson Island, in the Pitcairn Group, is the
Pacific's best large raised coral atoll.
The British Antarctic Territory is also highly
significant as a global laboratory. Scientists from the British
Antarctic Survey discovered the ozone hole there in 1985, so triggering
international concerns about the effects of atmospheric pollution.
The Antarctic's pristine environment is a critical barometer of
the world's climate health. Monitoring change in Antarctica allows
us to predict possible changes in global conditions, eg if the
West Antarctic ice sheet melted, the sea level world-wide would
rise six metres, wipe out some countries, including some of the
Overseas Territories, and cause major flooding elsewhere in the
29. Good governance is part of the partnership between
the UK and its Overseas Territories set out in the 1999 White
Paper, which highlighted the importance of providing governance
of a high quality. We continually underline the importance of
30. The UK Government proposed at the 2005 Overseas Territories
Consultative Council (OTCC) that all the territories should endorse
a paper setting out agreed principles. This was discussed again
at the 2006 OTCC where agreement was reached and the document
was published on the FCO's website and in the territories.
31. The extent to which the UK can and should use its
powers effectively to maintain standards of governance in the
Overseas Territories has to be considered against the aim of ensuring
that territory governments themselves should be given the maximum
possible accountability and responsibility for their actions.
This is especially true in areas which have been devolved to the
governments concerned. Auditors General and Ombudsmen are usually
appointed by the Governor and we work to ensure that their independence
is maintained and they are not subject to undue political pressure.
32. Responsibility for the security and good government
of the Overseas Territories falls to the Secretary of State. Responsibility
within the Territory rests with the Governor who is appointed
by HM The Queen on the advice of the Secretary of State. The term
"Governor" is a general term used administratively and
covers the Governors, Commissioners and Administrators described
in paragraph 7 above. The Governor of the Falkland Islands is
also the Commissioner for South Georgia and the South Sandwich
33. Each Governor is responsible to the Secretary of
State and, through him, to The Queen and the UK government, for
the security and proper governance of the Territory (an Administrator's
line of responsibility runs through his/her Governor).
34. Specific duties are laid on the Governor by the Constitution
and legislation of the Territory itself and by the Secretary of
State's instructions. These vary from Territory to Territory,
but those allocated by the Constitution usually include defence,
internal security, foreign affairs, the administration of the
courts, and the public service, andin some Overseas Territoriesinternational
financial services. Security is generally taken to include overall
responsibility for the Police and Prison Services, planning for
natural disasters, and the increasingly important areas of air
and maritime safety and security.
35. Given the Secretary of State's responsibility, the
Governor needs to be actively involved in a range of issues, for
example human rights, the environment, drugs and international
crime, which impact directly on the UK and its obligations, and
with wider issues of good governance, financial integrity in the
public sector, and sustainable economic development.
36. The majority of Overseas Territories have a directly
elected legislature (Legislative Council (LegCo), Legislative
Assembly (LA), House of Assembly, or Parliament) on the lines
of the Westminster Parliament. Executive authority in most Territories
is shared between the Governor and the Executive Council (ExCo)
(known in some Territories as Cabinet). Bermuda and Gibraltar
apart, the Governor chairs ExCo.
37. Although the responsibilities are extensive, the Governor's
powers are constrained by the need for the Territory's Government
to make suitable financial provision, including for those responsibilities
specifically allocated to the Governor under the Constitution.
The Governor therefore has to work very closely with the elected
Government often relying on powers of persuasion rather than any
specific executive authority. The powers to refuse to assent to
(and thus to veto) legislation can in most Territories only be
exercised with the consent of the Secretary of State and can be
used only in the most exceptional circumstances.
38. The role of the Governor has frequently been discussed
at the Overseas Territories Consultative Councils over the years
and Chief Ministers and equivalents have sought to scale down
the already narrow powers vested in the Governor. A document describing
the UK relationship with the Overseas Territories, and in particular
the role of the Governor, was distributed at the 2003 OTCC. An
updated version was circulated to Chief Ministers with a letter
from the FCO Minister for the Overseas Territories in June 2007.
39. The Overseas Territories Consultative Council was
established in 1999 as a forum for discussion of key policy issues
with heads of territory governments. The Council meets once a
year in London. The meeting is chaired by the FCO Minister who
has specific responsibilities for Overseas Territory issues, with
other UK Government Ministers and senior officials participating
during relevant sessions on the agenda. The 2006 OTCC (the eighth)
included sessions on aviation and maritime security, good governance
and ethics, human rights, a criminal justice strategy, climate
change and combating international corruption.
40. Governors of the Overseas Territories attended the
2003 and 2006 OTCCs but their participation was not welcomed by
all the Chief Ministers, who wanted the Council to be kept as
a political forum for elected representatives. Lord Triesman wrote
to Chief Ministers in April 2007 suggesting that the 2007 OTCC
should include one day for political talks and one day for discussions
on operational issues to which Governors would be invited. Given
the Governors' responsibilities, outlined above, a meeting on
operational issues without the active participation of both Chief
Ministers and Governors would not be effective.
41. The Foreign and Commonwealth Office is responsible
for promoting good governance in the Overseas Territories which
includes ensuring the transparency of decisions by the executive
and legislature in line with rules and regulations, and the accountability
of government to the public and the legislature. It is relevant
in all areas of government eg provision of services, award of
contracts, allocation of benefits; and in the financial sector
42. As noted above in the section on the role of the
Governor, most Territories have a directly elected legislature
and the Governor has some clearly defined executive responsibilities.
Most Territories' Constitutions also include a form of parliamentary
scrutiny, including a key role of a Committee of Public Accounts.
However, formal scrutiny is generally infrequent and in most Overseas
Territories, significantly less comprehensive or effective than
in the UK. The main limiting factors are that:
Most legislatures are too small to provide enough
"back-bench" members to staff scrutiny committees, besides
the essential Ministerial posts.
Members of Committees drawn from governing parties
can be concerned not to appear disloyal to their government, which
can prevent the achievement of Committee quora and the production
of agreed reports. Politicisation of Committee proceedings is
often perceived where Public Accounts Committees are chaired by
Leaders of the Opposition, or where politically sensitive topics
are chosen, and where the distinction between ministerial policy
and administration by officials is blurred or not well understood.
Expertise and awareness of how to conduct Scrutiny
Committee proceedings can be low.
Not all Territories have a Committee of Public
Accounts or similar scrutiny body, and some that do meet only
There is little investigative journalism in most
Overseas Territories and the local media can be reluctant to expose
Government weaknesses for fear of retribution.
43. The Governor and the public service in the Overseas
Territories therefore have an important role to play in ensuring
that appropriate checks and balances are maintained. The Good
Governance principle agreed at the 2006 OTCC includes acknowledgement
that decisions by both the executive and legislature should be
taken (and be seen to be taken) and implemented in line with defined
rules and regulations. It also means that (subject to limited
exceptions) information must be freely available and directly
accessible to those who will be affected by such decisions and
their implementation. The principle also requires the provision
of an appropriate level of information, in an easily understandable
form, by government and the public service to the public, and
44. The FCO works to ensure that Government institutions
and the legislature in the Overseas Territories, as well as the
private sector and civil society organisations, are accountable
to the public and, where appropriate, to their institutional stakeholders.
Governors have a role to play to encourage accountability and
to bolster the wider civil society.
45. The UK Government remains committed to promoting
greater transparency and co-operation in global regulation and
expects the Overseas Territories to fully comply with international
norms on the exchange of information. All financial centres, whether
onshore or offshore, should match up to the highest standards
of financial regulation and provide effective co-operation with
international counterparts; this promotes greater confidence in
the jurisdiction and will ensure the long-term viability of the
Overseas Territories' finance sector.
46. It is critical that, in the current global financial
climate, Overseas Territories deal decisively with impediments
to international co-operation, poor implementation of standards
and have effective safeguards against the threats of money laundering
and terrorist financing.
47. The 2000 KPMG reviews (see paragraph52) (which were
part-funded by the Overseas Territories) showed considerable leadership
by Overseas Territories on financial issues. Since then, all the
Overseas Territories have been subject to independent international
evaluations and have played a major role in regional anti-money
laundering bodies. Good progress has been made on financial regulation
in some Overseas Territories, but in others a lot more is needed
to deliver the standards that the Overseas Territories all say
they agree to, particularly relating to the effective implementation
and enforcement of laws. Overseas Territories have shown their
commitment to high standards but the limited availability of expensive
resources is a factor which explains why some Overseas Territories
may struggle to keep legislation and the application of regulations
up to the latest international standards.
48. Good regulation supports the aspirations of the Overseas
Territories to provide quality financial services in an international
market place, provided international standards are maintained.
This is in the best interests of Overseas Territories, because
good regulation is good for business.
49. The UK Government supports this agenda and we work
with key stakeholders to bring practical support and technical
assistance when opportunities arise. But we will always seek to
ensure that the great opportunities of global financial markets
are not abused or undermined. The UK looks to Overseas Territories
to respond proactively and quickly to outstanding recommendations
on financial regulationjust as we do for all other financial
BackgroundUK interests in Overseas Territories' financial
50. All the Caribbean Overseas Territories, Bermuda and
Gibraltar have established offshore financial centres to varying
degrees. Bermuda commands one third of the world's reinsurance
business; Cayman is the worlds fifth biggest banking centre and
hosts 80% of the global hedge fund market and BVI dominates the
global market for international business companies.
51. UK Government interest in this business stem from
its objectives of:
Maintaining financial stabilityThe more
significant offshore financial centres may act as a link through
which shocks to the financial system are transmitted internationally.
Supporting international standardsThe UK
has a leading role in a number of international institutions (eg
the Financial Action Task Forcethe international standard
setter on money laundering) aimed at enhancing the quality of
global financial standards.
Managing the reputational risk, and the risk of
contingent liabilities to the UK. All Overseas Territories' economies
are significantly reliant upon revenue from financial services
business and a substantial downturn in this sector, for whatever
reason, could result in pressure on the British Government to
provide direct economic aid.
52. The 1999 White Paper stated that Overseas Territories
should match current international standards, and identified a
number of broad improvements where progress was needed. In order
to determine the precise requirements for each Overseas Territory,
a formal review ('the KPMG review') was launched to assess each
jurisdiction in turn. Since the KPMG review, the IMF has introduced
a surveillance programme covering all offshore financial centres
which has echoed the KPMG recommendations and has made some additional
ones of its own. There is also significant international pressure
for poorly regulated offshore financial centres to be the subject
of international countermeasures.
53. Our goal is for all Overseas Territories to fully implement
international standards of regulation and supervision. Standards
and regulatory capacity in some Overseas Territories in some areas
are as good as anywhere else in the world. But in some areas we
have continued concerns; and we are working closely with the Governments
of the Territories to improve them. Because international regulation
and best practice is continually evolving, even the better performing
(and richer) Overseas Territories, have a number of international
recommendations awaiting action.
54. We need to recognise that there is significant international
pressure to limit the role of the Overseas Territories in providing
international financial services. The Overseas Territories are
often expected to apply higher standards of regulation than some
OECD countries. If the pressure were to succeed to the point where
the economies of the main Overseas Territories providing these
services were to be adversely affected, there are few options
for replacing lost Government revenue in other sectors. The UK
Government's position is to require, as far as possible, that
Overseas Territories meet the highest levels of regulation while
supporting the Territories in the area of international finance.
Legal and parliamentary background
55. The Constitution of each Overseas Territory is set
out in an Order in Council made under statutory powers or in exercise
of the Royal Prerogative. The Orders in Council contain the current
Constitutions of the Overseas Territories. The relevant statutory
powers, and the Territories to which they relate, are the following
British Settlements Acts 1887 and 1945: Ascension
Island; British Antarctic Territory; Falkland Islands; Pitcairn;
South Georgia and South Sandwich Islands; Tristan da Cunha
West Indies Act 1962, sections 5 and 7: Cayman
Islands; Montserrat; Turks and Caicos Islands; Virgin Islands
Bermuda Constitution Act 1967, section 1: Bermuda
Anguilla Act 1980, section 1(2): Anguilla
St Helena Act 1833 (formerly entitled Government
of India Act 1833), section 112: St Helena
Cyprus Act 1960, section 2(1): Sovereign Base
Areas of Akrotiri and Dhekelia
Royal Prerogative: British Indian Ocean Territory;
56. Except for the Anguilla Act and the Cyprus Act, the
required parliamentary procedure under each of the statutes listed
above is that the Order in Council must be laid before both Houses
of Parliament after being made. Orders in Council made in exercise
of the Royal Prerogative are not subject to any parliamentary
procedure. Nor are Orders in Council made under section 1(2) of
the Anguilla Act 1980 and section 2(1) of the Cyprus Act 1960.
57. By exchanges of letters dated 18 June 2002 and 12
July 2002, and 23 October 2002 and 14 November 2002, between the
then Chairman of the Foreign Affairs Committee, Donald Anderson
MP, and the then Secretary of State for Foreign and Commonwealth
Affairs, Jack Straw MP, it was agreed that constitutional Orders
in Council relating to the Overseas Territories would be sent
in draft to the Committee, if possible no later than 28 days before
being submitted to Her Majesty in Council, subject to the qualifications
set out in those letters.
Constitutional changes short of independence
58. Changes to the Constitution of an Overseas Territory
short of independence are effected by Order in Council in exercise
of the powers described in paragraph 55 above. These can take
the form either of amendments to the existing Constitution or
the revocation of the existing Constitution and its replacement
by a new Constitution.
59. The 1999 White Paper, "Partnership for Progress
and Prosperity, Britain and the Overseas Territories", stated
at paragraph 2.7: "The Overseas Territories believe that
their constitutions need to be kept up to date and where necessary
modernised. Each Overseas Territory is unique and needs a constitutional
framework to suit its own circumstances. Suggestions from Overseas
Territory governments for specific proposals for constitutional
change will be considered carefully." This marked a major
shift from previous practice where the process of constitutional
review and change had been driven by the UK Government, often
through a constitutional commission appointed by it.
60. In several Territories, a local constitutional review
commission has carried out a process of public education and consultation
leading to the publication of a report with recommendations for
change. In Gibraltar and the Falkland Islands, this task was carried
out by a committee of the local legislature. These reports have
then been debated locally, and have led to discussions between
the Territory concerned and the FCO. New Constitutions have been
agreed for Gibraltar, the Turks and Caicos Islands, and the British
Virgin Islands. The process is less advanced in other Territories.
ANNEX B describes developments in those Territories where constitutional
review is or has been active.
61. Paragraph 2.1 of the 1999 White Paper states: "Britain's
policy towards the Overseas Territories rests on the basis that
it is the citizens of each territory who determine whether they
wish to stay linked to Britain or not. We have no intention of
imposing independence against the will of the peoples concerned.
But the established policy of successive British governments has
been to give every help and encouragement to those territories
which wished to proceed to independence, where it is an option."
62. Since the White Paper no Overseas Territory has opted
for independence. FCO Ministers have indicated that their presumption
is that the route to independence would be by referendum, but
a final decision in any Territory would be taken on a case-by-case
basis in the light of the circumstances at the time.
63. With the exception of Anguilla, an Act of Parliament
would be required to grant independence to an Overseas Territory.
In the case of Anguilla, an Order in Council under section 1(3)
of the Anguilla Act 1980 would suffice. Such an Order in Council
would require to be approved in draft by resolution of each House
64. In accordance with past practice, the independence arrangements
for an Overseas Territory, including its Constitution upon independence,
would be discussed and agreed with the UK Government at a constitutional
conference. A period of between one and two years from the decision
to move to independence has usually been required to make the
necessary preparations and arrangements, including the necessary
65. Unless expressly authorised to do so by HMG in the
UK (see paragraph 67), Overseas Territories do not have the authority
to become party to treaties in their own right, therefore the
UK must extend treaties to the Overseas Territories. This is normally
done at the time of the UK's ratification, or at some later date.
Whitehall Departments have standing instructions that they should
consider whether a treaty should be extended to the Overseas Territories
at an early stage in the Department's deliberations and it is
important that the Territories are fully consulted. The Overseas
Territories must then be allowed a proper length of time to consider
the implications of having any treaty extended to them. Guidelines
on the consultation process were circulated to Whitehall Departments
in May 2006. The guidance is available at www.fco.gov.uk/treaty.
66. Consultation with the Overseas Territories regarding
extension of a Treaty is a matter of good policy and administration.
Where applicable, the views of Overseas Territories may also be
required to formulate the UK negotiating position on a Treaty.
The UK is responsible under international law for the due performance
of treaty obligations undertaken in respect of the Overseas Territories.
The UK must make sure not only that an Overseas Territory is willing
to accept particular treaty obligations, but also that those obligations
can be fulfilled by the Overseas Territory. If they cannot, the
UK bears ultimate responsibility.
67. Territories will sometimes want to negotiate and conclude
an agreement with a sovereign state or an international organisation
where there is no existing UK treaty or similar instrument. In
the UK treaty making is part of the Royal Prerogative in matters
of foreign affairs. The Crown's representative in an Overseas
Territory is the Governor. It is, accordingly, for the Crown to
confer upon the Governor the necessary capacity to conclude a
treaty. In practice this means that, on the authority of the Secretary
of State for Foreign and Commonwealth Affairs, the Governor is
formally entrusted with the power to conclude the treaty in question
for his Territory. This is generally known as giving the Governor
an "entrustment". Nowadays however entrustments are
sometimes given directly to the Government of a Territory to negotiate
and conclude a Treaty. It is possible for an entrustment to be
general, covering all treaties within certain categories. But
it is more usual for an entrustment to relate to a particular
treaty. An entrustment should be sought by an Overseas Territory
prior to commencing the negotiation of an international agreement.
68. Bermuda and BVI have a "standing entrustment"
which allows them to negotiate agreements in specified areas.
Bermuda, Gibraltar and the Caribbean Overseas Territories have
standing entrustments to negotiate tax information exchange agreements.
The principles behind "standing entrustments" are the
same as those for the much more common treaty-specific entrustments.
Where a standing entrustment exists the Territories must keep
the UK Government informed of negotiations in individual agreements
and the UK has the right to refuse to allow an Overseas Territory
to sign an agreement to which the UK objects.
69. Although the promotion of human rights in the Overseas
Territories is principally a matter of domestic policy, and "local
ownership", it also falls within the Governor's overall responsibility
for promoting good governance. Furthermore, the UK Government
has responsibility for ensuring that the Overseas Territories
fulfil their obligations arising from international human rights
Conventions which have been extended to them (see table at Annex
C). If the Overseas
Territories are not fulfilling their obligations under these conventions,
it is the UK, as the State Party, which will ultimately be found
to be in breach of them. It is an FCO objective to extend all
the key human rights Conventions to all the populated territories.
A few core international human rights conventions have still to
be extended to some of the Overseas Territories.
70. The establishment and maintenance of high standards
of observance of human rights is a key 1999 White Paper objective.
The aim is that the Territories should abide by the same basic
standards of human rights, openness and good government that people
in the United Kingdom expect of their Government. Where a Territory
has accepted the right of individual petition under the European
Convention on Human Rights, people in the Territory are able to
bring a case to Strasbourg, having exhausted their domestic remedies
where they think that their rights are being violated.
71. Different cultural traditions in the Territories have
led to conflict with London in the past. For example, the refusal
by the Caribbean Territories to decriminalise homosexual acts
between consenting adults in private, contrary to the European
Convention on Human Rights, forced the UK to legislate by Order
in Council in December 2000. The death penalty for murder was
abolished by Order in Council in the Caribbean Territories in
1991, also because the Territories refused to legislate themselves.
72. Governors, where necessary, remind Overseas Territory
Governments of the need to address any areas of human rights where
deficiencies have been identified. Human rights have been on the
agenda for discussion at recent Overseas Territories Consultative
Councils. The FCO and DFID are working together in particular
areas of concern, including protection of children, to improve
the situation where problems occur. DFID will run a Human Rights
programme in the Overseas Territories over a 3-4 year period beginning
in 2007/8. It will have a budget of about £1 million.
73. It is UK Government's policy to encourage the inclusion
in the Constitution of the Territory of comprehensive fundamental
(human) rights provisions. The FCO has provided a model human
rights chapter to assist all the Territories with this for the
purpose of their constitutional reviews. The British Virgin Islands
have for the first time a fundamental rights chapter in their
Constitution, which means individuals now have the possibility
to bring a case to the local courts if they think that their human
rights are being violated.
74. The Cayman Islands has set up a human rights Commission
which is very active and has encouraged the Government to take
human rights issues seriously, for example they are considering
the human rights implications of the removal of prisoners, deportations,
mandatory life sentences etc. The Turks & Caicos Islands is
setting up a human rights commission to hear issues from the public,
and it will consider the implementation of the various human rights
75. Under the core UN human rights Conventions, State Parties
are required to submit periodic reports to the UN review bodies
which monitor compliance with these Conventions. These reports
cover the Territories to which the instruments apply and the UK.
76. The 1999 Overseas Territories White Paper considered
the Territories' constitutional relationship with the UK. The
White Paper detailed a new, modern relationship between Britain
and the Overseas Territories based on four fundamental principles:
self determination; mutual obligations and responsibilities; freedom
for the Territories to run their own affairs to the greatest degree
possible; and a firm commitment from the UK to help the territories
develop economically and assist them in emergencies. Some UK Overseas
Territories would like greater UK Parliamentary interest in, and
support for, the Overseas Territories. But they want to retain
their own Constitutions and decision-making powers. The interests
of Overseas Territories' voters are quite different to those of
British voters, and are more appropriately served by their own
territory legislatures in accordance with their respective constitutions.
77. The Wakeham Commission (on Lords Reform) looked at the
question of giving peerages to two or three people who would represent
the interests of the Overseas Territories. The Commission did
this partly at the behest of the Government, who were responding
to a recommendation from the HoC FAC that Gibraltar should be
represented in the reformed second chamber. Wakeham concluded
"We see no case at present for any of the Overseas Territories
to be formally represented or given a voice in the second chamber."
They did then go on to say that individuals from the Territories
might be offered membership on a personal basis "in the light
of the closer ties that may develop". But such membership
would be on the basis of the contribution they might make to the
House of Lords, not because they would be asked to represent a
78. The UK has already put in place processes to enable Territories
to make their voices heard in Westminster. To improve links between
the UK and the Territories, the White Paper led to the appointment,
for the first time, of a Minister with specific responsibility
for the Overseas Territories. It also set up the Overseas Territories
Consultative Council, which meets annually, and provides a forum
for structured political discussion between Overseas Territory
governments and the UK government.
79. The All Party Parliamentary Groups for the Overseas Territories
and the Commonwealth Parliamentary Association also provide mechanisms
for direct contact between Members of Parliament and elected members
of the legislatures of the Overseas Territories. The CPA meetings
occasionally take place in the Overseas Territories themselves.
80. Anguilla, British Virgin Islands, Cayman Islands, Falklands,
Gibraltar, Montserrat, St Helena and Turks & Caicos Islands
maintain offices or representatives in the UK, one of whose functions
is to develop links to Members of Parliament. A number of these
Overseas Territories have helped to organise formal Committees
of MPs to take an interest in their affairs.
1. The Sovereign Base Areas (SBAs) of Akrotiri and Dhekelia
have an area of 98 square miles (3%) within the Island of Cyprus.
The remainder of the island is the territory of the Republic of
Cyprus (RoC) although since the Turkish intervention in 1974,
the northern part of the island has been controlled by the Turkish
Cypriots and Turkey. Cyprus is divided by a UN Patrolled Buffer
Zone known as the Green Line. The Western Sovereign Base Area
(WSBA), which includes the garrison of Episkopi and RAF Akrotiri,
is geographically separate from the Eastern Sovereign Base Area
(ESBA), which includes the garrison of Dhekelia. The northern
boundary of the ESBA also forms a boundary with the north and
is effectively an external boundary of the EU, which the Sovereign
Base Area Administration (SBAA) must protect.
2. The SBAs comprise those parts of the former British
colony of Cyprus retained by the United Kingdom on creation of
the independent Republic of Cyprus. The Island as a whole had
formerly been under British Administration since 1878 and a British
Crown Colony since 1925. The SBAs were retained solely for military
3. Cyprus acceded to the European Union in 2004; attempts
to unite the island prior to EU accession had not been successful
therefore Cyprus entered the EU as a divided Island with the EU
acquis suspended in the north. UK Ministers decided that upon
Cyprus's accession to the EU, the SBAs should remain outside the
4. SBAs have the status of a British Overseas Territory,
Her Majesty's sovereignty and jurisdiction over the Areas having
been retained under section 2 Cyprus Act 1960.
5. The Sovereign Base Areas of Akrotiri and Dhekelia
Order in Council 1960
(made under section 2 Cyprus Act 1960), as amended by The Sovereign
Base Areas of Akrotiri and Dhekelia (Amendment) Order in Council
1966 provides for
the office of Administrator who is empowered to make laws for
the peace, order and good government of the Areas, together with
powers, in Her Majesty's name, and on Her behalf, to constitute
offices for the SBAs. The Administrator is required to discharge
his functions in accordance with such Instructions as may from
time to time be given to him by Her Majesty through the Secretary
of State for Defence. Such Instructions were issued as The Sovereign
Base Areas of Akrotiri and Dhekelia Royal Instructions 1960,
which provided rules for the enactment of laws, and the creation
of the Administrator's Advisory Board.
6. The Administrator, as the head of the SBAA and as
Her Majesty's representative, enjoys the legislative and executive
powers broadly equivalent to those exercisable by a Governor.
As the SBAs are retained for military purposes the Administrator
reports to, and receives instructions from, Her Majesty through
the Secretary of State for Defence. The Foreign and Commonwealth
Office, with its responsibility for bilateral relations with the
Government of Cyprus, works very closely with the MOD on issues
likely to have an impact on those relations.
7. The UK Government made a declaration regarding the
administration of the SBAs in an Exchange of Notes at the time
of the creation of the SBA and the RoC (commonly known as "Appendix
O"). Although not legally binding the declaration sets out
the main policy and objectives of the UK government in the administration
of the SBAs. The SBAA continues to be guided by this declaration.
8. The SBAs are administered in a manner that requires
maximum co-operation with the authorities and people of the RoC.
The guiding principle is that the administration of the SBAs should
follow as far as possible the laws, practices, procedures and
style of government of the RoC without conceding sovereignty so
that Cypriots living within the SBAs are not disadvantaged in
comparison with their compatriots in the RoC. The Administration
exercises only those functions of State which are necessary for
maintaining Sovereigntysuch as legislation and the maintenance
of the judiciary, police and customs. Other functions are routinely
delegated to, and performed by, officials of the RoC for example
in areas such as agriculture, social services, education and the
administration of antiquities. Over 10,000 RoC citizens live within
9. The Administrator is required by the Secretary of State
for Defence to seek advice from the Administrator's Advisory Board
on major policy or legal matters, particularly those affecting
the RoC. The composition of this board is set in accordance with
standing instructions from the Secretary of State for Defence.
The board also meets in an augmented mode to serve as the Police
Authority for the SBAs. Her Majesty's Inspectorate of Constabulary
(HMIC) attend this Board. The SBA Police are inspected on a regular
basis by HMIC to give assurance to the Administrator on the role,
structure and effectiveness of the SBA Police.
10. A Protocol governing the obligations of the UK to apply
certain provisions of EU law to the Areas was attached to the
RoC Treaty of Accession. These provisions relate to customs, aspects
of common commercial policy, taxation, agriculture and fisheries.
The UK also gave undertakings about the handling of social security
and external border controls. The Protocol is supported by a Memorandum
of Understanding with the RoC on the responsibility for implementing
11. The Administrator is responsible for the good administration
and government of the SBAs. The 1960 Order in Council stipulates
that the Administrator shall be a serving officer of Her Majesty's
Forces. The appointment is held by the Officer Commanding British
Forces Cyprus, (BFC). The common principal objective of the Administrator
of the SBAs and Commander BFC is "to maintain a stable environment
in the SBAs in order to allow the strategic assets and Forward
Mounting Base to operate unimpeded".
12. The SBAA provides civil administration in the SBAs
covering similar interests to any civil government, but many of
its functions, particularly for the 10,000 plus Cypriot inhabitants
of the SBA, are carried out by Republican officials, on behalf
of the Administration, under delegated powers.
13. The Administrator delegates day to day responsibility
for the Administration to the Chief Officer of the SBAs, who is
a Ministry of Defence Senior Civil Servant. The Administration
is supported by the Attorney General and Legal Advisor, a legally
qualified member of the Senior Civil Service, the Chief Constable
of the SBA Police and the Fiscal Officer.
14. The essentially military nature of the SBA is illustrated
by the absence of a directly elected legislature and the vesting
in the office of Administrator of all legislative and executive
functions. There are no committees to undertake formal scrutiny
of legislative or executive functions by the Administrator. The
Administrator and other office holders within the SBA play an
important role in ensuring that appropriate checks and balances
15. The Administrator is empowered to "make laws
for the peace, order and good government of the SBAs"
and is mindful of the declaration made under Appendix O that the
laws applicable to the Cypriot population of the SBAs will be
as far as possible the same as the laws of the RoC. It applies
to legislation which the RoC has enacted, including those arising
from membership of the EU and as a result of being signatory to
the European Convention on Human Rights.
16. The Administrator is required by the Secretary of
State for Defence to forward draft Ordinances of any major character,
particularly those with political implications to the Ministry
of Defence prior to issue (and to the British High Commissioner
in the RoC).
17. All Ordinances and Public Instruments enacted by
the Administrator are published in the SBA Gazette, which is copied
to the Ministry of Defence so as to provide an opportunity for
the power of disallowance to be exercised.
18. SBA Ordinances and Public Instruments enacted since 2004
are publicly available on the SBA website at www.sbaa.mod.uk.
and arrangements are in hand for legislation which pre-dates 2004
(hitherto only available in deteriorating hard copy form) to become
available via the Internet.
19. The SBA has its own legal system, including a two-tier
court system (with limited rights of appeal to the Judicial Committee
of the Privy Council). The actions of the Administration are amenable
to challenge through the courts.
20. The Human Rights Ordinance 2004 which was brought into
force on 1st May 2005, makes it unlawful for a public authority
(including therefore the SBA Administration) to act in a way which
is incompatible with a Convention right. It also requires that,
so far as possible, legislation of the SBAs must be read and given
effect in a way, which is compatible with the Convention rights.
It enables any individual who claims that their rights under the
Convention have been violated to bring proceedings in the SBA
Court and to seek redress.
21. The remedy of judicial review is available to those aggrieved
by the actions of the Administration, broadly in accordance with
the principles applied in relation to judicial review in England
22. The Administrator is required by the Secretary of
State for Defence to consult with him before undertaking any activity
that would deviate from the basic principles in the declaration
made under Appendix O.
23. The population of the SBAs includes approximately
7,800 Service personnel, civil servants and dependants living
mainly in the Garrison and Station areas and over 10,000 Cypriots.
The Cypriots living in the Areas are recognised residents of the
SBAs but are EU and RoC citizens. They vote in the respective
RoC and EU elections. There are a number of communities that extend
into both the SBAs and the RoC; Cypriots who reside in the SBA
part of the community are treated in accordance with the Communities
Law of the RoC.
24. As military bases, the SBAs do not have external
relations in the normal sense, but formal discussion with the
Government of Cyprus over the SBAs is conducted as bilateral business
between the UK and Cyprus, through the British High Commission
in Nicosia and the Cypriot Ministry of Foreign Affairs. Day-to-day
matters are dealt with directly between the Cypriot and SBA authorities.
25. The SBAs use the currency and financial control mechanisms
of the RoC and will use the Euro as local currency when Cyprus
adopts the Euro on 1st Jan 2008.
26. Although legally a separate Government entity, the
SBAA is funded by the Ministry of Defence. The Annual Operating
Budget is approximately £11.5M. The SBAA generate revenue
of approximately £300K. In addition to this the SBAA collect
monies on behalf of the RoC, which are returned every quarter.
It would be impossible to give an accurate figure of the monies
returned to the RoC as this comprises of the income tax on earnings
of dependants and Sutlers
and taxes and imports paid by Cypriots living and working in the
27. The SBAs use the currency and financial control mechanisms
of the RoC. Appendix O delegates a number of administrative functions
to the RoC. Regulation of the Financial sector falls into this
28. The Government of the RoC acknowledges the UK's sovereignty
over the SBAs, although it believes that the UK's sovereignty
is "limited" because the Areas were retained solely
for military purposes. The UK position is that the SBAs have all
the attributes of fully sovereign territory. This difference of
opinion does not prevent good day-to-day co-operation with the
RoC over the operation of the SBAs.
29. The SBAs are environmentally rich. The SBAA strives
to manage the environment in accordance with international environmental
conventions. The following have been extended to the SBAs:
Bern Convention on the Conservation of European
Wildlife and Natural Habitats,
Ramsar Convention on Wetlands of International
Bonn Convention on the Conservation of Migratory
Species of Wild Animals,
Paris Convention of UNESCO on the Protection of
the World Cultural and Natural Heritage, and
London Convention on the Prevention of Marine
Pollution by Dumping of Wastes and other Matter.
30. Though not formally subject to EU environmental directives,
the SBAA also manages the environment in accordance with the precepts
following EU Directives:
Council Directive 92/43/EEC on the Conservation
of Natural Habitats and of Wild Fauna and Flora
Council Directive 79/409/EEC on the Conservation
of Wild Birds
31. With effect from 1st May 2004 the Government of the
United Kingdom declared the extension of the European Convention
on Human Rights to the SBAs. It further declared that it accepted
the competence of the European Court of Human Rights to receive
petitions from individuals as set out in Article 34 to the Convention.
The Convention was given further domestic effect in the SBAs through
the enactment of the Human Rights Ordinance 2004. This law was
brought into force on 1st May 2005.
32. The main body of the ECHR was extended in its entirety.
The First Protocol was not extended to the SBAs because it includes
an undertaking to hold free elections. The Administrator of the
SBAs is appointed by the Secretary of State for Defence, there
are no elections for the post of Administrator of the SBAs and
nor can there be. It would only have been possible to extend the
First Protocol if it were permitted to make a reservation in respect
of Article 3. Article 57(1) of the convention states that reservations
of a general character shall not be permitted. The Protection
of Property Ordinance 2004 and the Right to Education Ordinance
2005 were enacted in order to provide domestic equivalents to
the Convention rights set out in Articles 1 and 2 to the First
33. The UK has not acceded to Protocols Four, Seven or
Twelve so these Protocols cannot be extended to the SBAs.
15 October 2007
Constitutional Review Developments
A Constitutional and Electoral Reform Committee was appointed
in 2002, but failed to complete its work. A new Constitutional
and Electoral Reform Commission was established in 2005 under
the chairmanship of retired judge Mr Don Mitchell CBE QC, and
it published a comprehensive report in August 2006. The report
has since been under consideration by members of the Anguilla
House of Assembly and by the public in Anguilla. A first round
of discussion with the FCO was due to take place in July 2007,
but this was postponed at the request of the Chief Minister of
Anguilla to allow for further public consultation.
No constitutional review commission has been appointed in
Bermuda. But at the request of the Government of Bermuda a cross-party
Constituency Boundaries Commission was established in 2001 to
make recommendations on the number and boundaries of single-member
constituencies to replace the previous system of dual-member constituencies.
Following the Commission's report, the Constitution of Bermuda
was amended in 2003 to provide for 40 single member constituencies
for elections to the Bermuda House of Assembly.
In 2004 a new Constitution was provided by the British Indian
Ocean Territory (Constitution) Order 2004. The reasons for this
were explained to the House of Commons by Mr Bill Rammell MP,
then FCO Minister of State, as follows (Hansard 15 June 2004 Columns
33WS and 34WS):
" . . . 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
periodprobably permanently. Accordingly, the Government
consider that there would be no purpose in commissioning any further
study into the feasibility of resettlement; and that it would
be impossible for the Government to promote or even permit resettlement
to take place. After long and careful consideration, we have therefore
decided to legislate to prevent it.
"Equally, restoration of full immigration control over
the entire territory is necessary to ensure and maintain the availability
and effective use of the territory for defence purposes, for which
it was in fact constituted and set aside in accordance with the
UK's treaty obligations entered into almost 40 years ago. Especially
in the light of recent developments in the international security
climate since the November 2000 judgement, this is a factor to
which due weight has had to be given.
"It was for these reasons that on 10 June 2004 Her Majesty
made two Orders in Council, the combined effect of which is to
restore full immigration control over all the islands of the British
Indian Ocean Territory. These controls extend to all persons,
including members of the Chagossian community.
"The first of these two orders replaces the existing
constitution of the territory and makes clear, as a principle
of the constitution, that no person has the right of abode in
the territory or has unrestricted access to any part of it. The
second order replaces the existing immigration ordinance of the
territory and contains the detailed provisions giving effect to
that principle and setting out the necessary immigration controls
. . . "
The validity of certain provisions of this Order has been
successfully challenged in the English courts. The Government
is currently awaiting the result of its application to the House
of Lords seeking leave to appeal.
A local Constitutional Reform Commission (CRC), chaired by
Mr Gerry Farara QC, presented a comprehensive report in April
2005 after wide public consultation.
Three rounds of negotiations were held between FCO and BVI
delegations from March 2006, taking as its basis for work the
116 recommendations of the CRC. In February 2007 the fourth round
of talks was successfully concluded in London, under the chairmanship
of Lord Triesman. A new Constitution was agreed in draft, and
after further public consultation it was debated and approved
by the BVI Legislative Council.
The draft Constitution was sent to the Foreign Affairs Committee
on 28 April 2007.
The new Constitution came into force on 15 June 2007.
A local Constitutional Review Commission, chaired by Mr Benson
Ebanks OBE JP, reported in March 2002, including a draft new Constitution.
Principles for a new Constitution were agreed at talks in December
2002 between FCO and Cayman Islands representatives. In February
2003 a draft Constitution based on this agreement was sent to
the Cayman Islands and published there. The draft Constitution
includes a chapter on human rights, agreed with the Caymanian
representatives. One of the changes proposed at the Caymanians'
request was to move from multi-member constituencies electing
15 members to 17 single member constituencies. An Electoral Boundary
Commission was established by Order in Council and reported in
In late 2003, the then CIG proposed a series of changes to
the position it had agreed at the December 2002 discussions. Talks
were due to take place in February 2004 to try to resolve the
new issues raised by the CIG, including their decision to propose
postponing to 2008 the move to single-member constituencies in
all the multi-member electoral districts except George Town. But
the CIG cancelled the talks saying it had more important issues
to deal with in the run up to the November 2004 general election.
Following Hurricane Ivan, the general election was postponed until
May 2005, at which there was a change of government. Informal
talks were held between the new CIG and the FCO in March 2006
with a view to restarting the constitutional review process. The
CIG is still reviewing its position and preparing for further
local public consultation.
After wide public consultation, a Select Committee of the
Falkland Islands Legislative Council published a report in May
2007 making a number of recommendations for constitutional change.
A Select Committee of the Gibraltar House of Assembly published
a report, which included a draft new Constitution, in January
2002. Following three rounds of discussion between Gibraltar and
FCO delegations, a new Constitution was agreed in draft in March
2006. The draft new Constitution was then published in Gibraltar,
and was approved by a referendum in Gibraltar in November 2006.
The draft Constitution was sent to the Foreign Affairs Committee
on 30 October 2006.
The new Constitution came into force on 2 January 2007.
Montserrat's Constitutional Review Commission, under the
chairmanship of the former Speaker, Professor Sir Howard Fergus,
produced its report in March 2003 after widespread consultation
in Montserrat and amongst the Montserratian community overseas.
After informal talks with FCO officials in October 2003,
the first round of formal negotiations eventually took place in
September 2005, following which a first draft of a new Constitution
was prepared and formed the basis of work for the second round
in March 2006. After Legislative Council elections in the summer
of 2006 a third round was held in October 2006 with the new team
of Councillors, followed by a fourth round in May 2007. A large
measure of agreement has been reached, but some difficult issues
remain to be resolved.
In early 2003, advised by Mrs Alison Quentin-Baxter QSO,
a New Zealand barrister and constitutional adviser funded by the
Commonwealth Secretariat, the elected Legislative Councillors
of St Helena made proposals for a new Constitution that would
introduce a ministerial system of government in St Helena. These
proposals were discussed with the FCO in April 2003, and the principles
for a new Constitution were in due course agreed. Consultations
were also held with the Island Council on Ascension. A new Constitution
was drafted and was published in St Helena, with a view to wide
public consultation. In May 2005 a consultative poll was held
in St Helena in which voters were asked whether they approved
the introduction of ministerial government. The result of the
poll was negative. The draft Constitution has therefore not been
proceeded with. Consideration is being given to the desirability
of constitutional changes that would not involve ministerial government.
A local Constitutional Review Body, chaired by Mr Daniel
Malcolm, presented its report in September 2002.
Three rounds of negotiations were held between FCO and TCI
delegations in June and December 2004 and October 2005. Agreement
was reached at the final round on the principles for a new Constitution,
which was then drafted and published in the Islands. Following
further public consultation in the Islands the Legislative Council
then debated and approved the new Constitution.
The draft Constitution was sent to the Foreign Affairs Committee
on 5 June 2006.
The new Constitution came into force on 9 August 2006.
Annex A provides information on the exercise by the Ministry of
Defence of its responsibilities in relation to the Sovereign Base
Areas of Akrotiri and Dhekelia in Cyprus. Back
Page 154. Back
Page 158. Back
Page 161. Back
When the British Overseas Territories Act 2002 came into force,
any existing citizens of the Overseas Territories except those
whose British Overseas Territories citizen status derived solely
from a connection with the Cyprus Sovereign Base Areas (CSBA),
automatically became British citizens. The 2002 Act additionally
amended the British Nationality Act 1981 so that, for persons
born or adopted on and after 21 May 2002, a connection with the
Overseas Territories by birth, adoption or ancestry equates to
such a connection with the United Kingdom for the purpose of acquiring
British citizenship. Anyone acquiring British overseas territories
citizenship through registration or naturalisation on and after
that date can apply to be registered as a British citizen at the
Secretary of State's discretion. Back
Ev 162. Back
The Sovereign Bases Areas of Akrotiri and Dhekelia Order in Council
1960 (SI 1369/1960) Back
The Sovereign Base Areas of Akrotiri and Dhekelia (Amendment)
Order in Council 1966 (SI 1415/1966) Back
Published in the Appendix to SI 1960, Part III at pp4213-4214 Back
Article 4 of the Sovereign Base Areas of Akrotiri and Dhekelia
Order in Council 1960 Back
The definition of Sutlers in the Treaty of Establishment is: persons,
not being nationals of the RoC nor ordinarily resident therein
who are licensed by the UK authorities to accompany their land,
sea and air armed services in the Island of Cyprus in order to
perform services for members of those services. Back
The SBA Protection and Management of Nature and Wildlife Ordinance
is in draft and will mirror the RoC implementation of this Directive. Back
The SBA Protection and Management of Game and Wild Birds Ordinance
mirrors ROC implementation of the Directive. Back