Submission from BioDiplomacy
INTRODUCTORY NOTE
BioDiplomacy is a diplomatic/environmental consultancy
established by Iain Orr in 2002, after retiring from the UK Diplomatic
Service. His career had a strong China focus, including a secondment
to the Hong Kong Government 1978-81 as deputy political adviser,
when Hong Kong was still a dependent territory. In his final job
in the FCO he worked on environmental issues and was responsible
for implementing parts of the 1999 White Paper on the overseas
territories, including negotiating the 2001 environment charters
between HMG and the overseas territories. His island interests
include being a director of the Global Islands Network, a member
of the International Small Islands Studies Association and serving
as a council member of the UK Overseas Territories Conservation
Forum.
SUMMARY
The submission argues that many other departments
besides the FCO have responsibilities for the overseas territories
and that it is worth considering whether a review is needed of
how the overseas territories are dealt with in Whitehall. Detailed
evidence is provided of deficiencies in the governance of the
territories, especially HMG's failure to protect their globally
important biodiversity. Governance of the territories would also
be improved by greater transparency and accountability, including
appropriate freedom of information legislation.
OVERVIEW
1. Problems over governance of the overseas
territories flow from differences between how those who live in
them see their relationship with the UK and how UK ministers and
officials regard the territories. Broadly, the territories do
not wish to change their status as UK overseas territories. They
expect to run their own affairs themselves—with minimal
interference by HMG—while being able to call on HMG for
support in areas where their status or their limited resources
make that necessary. HMG is more ambivalent. It treats the overseas
territories as being mostly of peripheral interest (rather like
the Crown Dependencies), but recognizes their potential to cause
embarrassment to ministers, and to be the source of unwelcome
contingent liabilities. On issues where there is public interest
in the UK, Whitehall usually likes to have the final say. On local
governance issues that attract no attention from public or parliament
in the UK, the usual inclination in Whitehall is not to get involved.
Generally, ministers and Whitehall officials see the territories
as liabilities, not assets.
2. These perspectives are shaped by the
location and origins of the territories. Most are far from the
metropolitan UK. They came under UK sovereignty as a result of
being captured, ceded or discovered during the centuries of overseas
expansion by England and then the United Kingdom. The origins
of the people vary from territory to territory: descendants of
those present when they came under UK sovereignty, colonisers
from the UK or elsewhere, descendants of imported slaves, or temporary
residents engaged with the economies of the territories, many
of whom later became permanent residents. Up until the 1950s they
were generally governed as colonies, with resident governors and
their staff appointed by the Colonial Office and working with
local representatives. There was also a significant UK military
presence in territories with strategic importance.
3. Then came the era of decolonisation.
Most territories moved to independence. Some were left over, all
with small populations (except for Hong Kong). A 1971 paper on
Micro-States noted: "As far as UK policy on these little
remaining dependent territories is concerned, Sir Colin Crowe
spoke to the General Assembly in October, 1968, in the following
terms: `It is not the intention of the United Kingdom Government
to delay independence for those that want it; nor to impose it
on those who do not want it. Our guiding principle must be the
wishes of the peoples concerned. The choice is theirs . . . If
at any time in the future [those who prefer to retain their links
with the UK] decide to change their views, they are fully entitled
to do so'".1
4. That remained the orthodoxy when HMG's
last White Paper on the territories was presented to the House
of Commons on 17 March 1999: Partnership for Progress and Prosperity—Britain
and the Overseas Territories. When introducing it the then
Secretary of State for Foreign and Commonwealth Affairs (Robin
Cook) said:
"It is a striking measure of the degree
to which the dependent territories value that partnership that
none of their Governments expressed any desire during the review
for independence. They all want to preserve the constitutional
link with the United Kingdom, which has provided all of them with
security, and most of them with a high level of prosperity".
5. These statements give the misleading
impression that the policy of successive UK governments had been
shaped only by respect for the wishes of the inhabitants of the
territories. Historically, that is not so. HMG tried to push several
reluctant overseas territories towards independence or into relationships
with neighbouring states.2 Nor was it in the least striking that
in 1999 none of the remaining territories expressed a desire for
independence. For most this was not a realistic economic option.
6. HMG has still to recognise that colonial
models of governance are no longer appropriate. Why should the
Foreign Secretary appoint governors and other officials? The territories
are not foreign.3 Why in the matter of the Chagossians who were
illegally exiled from their homeland should the FCO be pleading
to the House of Lords that in order to govern the territories
effectively it needs to be able to use Orders in Council subject
to neither parliamentary debate nor judicial review?4
7. The FAC's questions provide a good framework
for examining these issues, subject to one overriding qualification:
the questions need to be asked of HMG as a whole, not just of
the FCO. For that reason, this submission suggests one additional
topic for the FAC to address: standards of governance of the territories
in Whitehall.
Standards of governance in the Overseas Territories
8. There are two immediate aspects: standards
of governance in matters wholly within the competence of locally
elected or appointed governments (in which the governor often
has a key role as chair of the executive and/ or legislative council),
and areas where the UK wishes to provide guidance, often because
of international commitments on the part of the UK. The priority
areas highlighted by Robin Cook in 1999 were: international standards
in financial regulations, human rights, and the environment (where
he proposed to "develop an environment charter between the
United Kingdom and our overseas territories"). Broadly these
are areas where ministers are responsible for upholding internationally
agreed standards and consider themselves answerable to Parliament,
to the international community; and to the inhabitants of the
territories. How the standards HMG wishes to see are achieved
and maintained depends on leadership as well as legislation, and
is best dealt with under the section on the role of Governors.
9. Since 1999 at least one area should be
added—Freedom of Information (FoI). The UK's FoI Act 2000
is fundamental to good governance. Appropriate legislation is
desirable in all the territories. It was disappointing the UK
FoI Act was disapplied to St Helena in 2005, against the wishes
of many Saints. Although local legislation to take its place was
promised, there is still no sign of consultation on the content
or of a timetable for introducing such legislation. It is particularly
needed because of HMG's commitment to the air access project.
That will produce major changes on the island and for Saints elsewhere.
Public engagement in key decisions would be greatly helped by
improving the transparency and accountability with which the project
is implemented. The FAC may wish to look at the introduction or
application of FoI legislation in all the territories. Legislation
in some territories (eg the Cayman Islands) may provide a good
model for others.
Standards of governance of the Overseas Territories
in Whitehall (additional topic)
10. The issues that need to be addressed
here concern how well different parts of government work together;
as well as some specific examples of poor governance. However,
there is an underlying issue—the tendency to see the territories
as burdens (actual or potential) rather than as assets.
11. What assets do the territories provide
for the UK? First, their people. The numbers are small. They live
mostly on remote islands, where size and distance provide social
and economic challenges different from those in the metropolitan
UK. Some face environmental hazards: hurricanes, volcanoes, water
shortages, infertile soils, and the ozone hole. The overwhelming
majority are loyal to the UK; the institutions that govern them
owe much to Britain, modified in ways that reflect local circumstances;
they are part of Britain's heritage, as Britain is part of theirs.5
12. Second is geographical position. The
UK has global interests and some territories have great value
as strategically placed assets. These can be exploited for the
benefit of the UK (taking into account the wishes and needs of
local communities) and shared with allies, such as the Americans.
Their full value is often dormant. Without Ascension and the support
of those living on the island, the Falklands War would probably
not have been fought, far less won. Geographical position underlies
the reports in September 2007 that HMG is thinking of making claims
to extensive continental shelf areas around some of the South
Atlantic territories.6 The UK should already be doing far more
to ensure that the territories' existing and often extensive Exclusive
Economic Zones (see Annex A)[99]
are better managed and their marine resources protected against
illegal, unreported and unregulated (IUU) fishing. This is a serious
problem in several territories. Furthermore, marine science and
technology are in their comparative infancy but growing fast,
partly because of the importance of the oceans for climate change.
As one of the world's leading economies the UK is better placed
than anyone else to give a lead through better understanding and
management of the marine environment of the territories. It is
hard to understand why it is only in British Antarctic Territory
that the UK has funded long-term research with a direct bearing
on climate change.
13. There is a tendency in Whitehall for
overseas territories issues to be treated as a matter for the
FCO as the "lead Department". In fact the Department
for International Development (DfID) has a major statutory responsibility
for the territories under the International Development Act 2002.7
In budgetary terms, DfID is responsible for far more direct expenditure
in the territories than the FCO. As well as current budgetary
support for Montserrat and St Helena there will also be the costs
of the St Helena Air Access project, on which no official estimated
costs for construction and for maintenance of the service have
yet been provided to the public in St Helena or the UK.
14. The environment provides striking examples
of lack of joined-up government. The 1999 White Paper recognised
the importance of the biodiversity of the territories and said
(Chapter 8, paragraph 16) that "the Government will provide
additional assistance through DfID to support poorer Overseas
Territories in addressing global environmental concerns. This
is in part a reflection that such Overseas Territories, unlike
independent developing country states, are not eligible for funding
from the Global Environment Facility." It took until 2003
for even that limited commitment to be honoured. Part of the reason
may be that DfID's central policy commitment is to the reduction
of global poverty and environmental issues are seen (wrongly)
as being peripheral to that concern. But in any case, even though
good governance of the territories has nothing to do with global
poverty it is part of DfID's remit. So, it was even more disappointing
that the Environmental Audit Committee's report in 2006 on Trade
Development and the Environment: the Role of DfID, made no
mention of the territories.
15. However, a far more worrying indication
of HMG's lack of engagement with good environmental governance
of the territories was shown in the government's response to the
Environmental Audit Committee's 2006 report on the UN Millennium
Ecosystem Assessment. That report did not pull its punches:
"Considering the UKOTs lack of capacity,
both financial and human, we find it distasteful that FCO and
DFID stated that if UKOTs are `sufficiently committed' they should
support environmental positions `from their own resources'. The
continued threat of the extinction of around 240 species in the
UKOTs is shameful. If the Government is to achieve the World Summit
on Sustainable Development 2010 target to significantly reduce
the rate of biodiversity loss within its entire territory, the
Government must act decisively to prevent further loss of biodiversity
in the UKOTs". (Paragraph 32)
16. The government's reply to this point
started with a sentence that was breathtaking in its complacency
and lack of consistency.
"The responsibility for environment management
has been devolved to the Overseas Territories governments".
This, despite the fact that the 1999 White Paper
had highlighted the global importance of the biodiversity of the
territories and indicated that environment charters would be agreed
with them, with commitments not just by the territories but also
by HMG. These charters were negotiated in 2001 and their importance
was highlighted in the FCO's oral evidence given to the EAC on
21 February 2007:
"[Mr Wightman—FCO director for global
and economic issues] . . . as was pointed out in the last FCO
White Paper, responsibility for the Overseas Territories is a
cross-government responsibility so the FCO has a role in this
as well as Defra and DIFD, and the Environmental Charters provide
the basis on which government departments here, individually and
collectively, can work in co-operation with the governments of
Overseas Territories on implementation".
17. Yet when the UK Overseas Territories
Conservation Forum was asked by the FCO to prepare a detailed
assessment of progress under the Environment Charters, it had
to report that the FCO had said that "although it had no
problem in principle with the indicators, HMG did not have the
resources to report on the implementation of its own commitments".
(See http://www.ukotcf.org/charters/progress.htm). That is itself
a telling indicator of how low a priority HMG attaches to good
environmental governance of the territories.
18. Yet, two recent assessments show how
urgently the work is needed. In April 2007 the RSPB commissioned
a report on Costing Biodiversity Priorities in the UK Overseas
Territories. That identified and costed priorities for each
territory in the period 2007-08 to 2011-12 and summarised the
annual costs for this work. The annual total for all the territories
was just over £16 million. That compares with the current
FCO/DfID Overseas Territories Environment Programme (OTEP) of
roughly £1 million per year and the estimate by Defra that
Darwin Initiative projects (which are bid for competitively, with
no priority given to the overseas territories) in the past 15
years have funded some £1.5 million of biodiversity work
in the territories (ie around £100,000 per year for all territories
combined). The OTEP funding has been invaluable; and its modest
level is understandable given that biodiversity is peripheral
to the core responsibilities of FCO and DfID. However, supporting
biodiversity is a major Defra responsibility and it leads on most
international environmental agreements and negotiations, such
as the Convention on Biological Diversity (CBD). Accordingly,
the FAC may wish to ask the Minister for Biodiversity to say how
Defra proposes that ministers and senior Defra officials work
more closely with the territories on environmental governance.
19. A second assessment that carries great
international authority in identifying global biodiversity priorities
is the IUCN Red List of Threatened SpeciesTM. The 2007 Red List,
published in September (see www.iucnredlist.org) helpfully lists
separately for the metropolitan UK and for individual overseas
territories animals and plants at three levels of threat: critically
endangered ("an extremely high risk of extinction in the
wild"), endangered ("very high risk") or vulnerable
("high risk"). The UK on its own comes low down the
IUCN country list with only 51 entries. However the UK has a long
tradition of valuing biodiversity, from before Gilbert White to
young conservationists who are already picking up the baton from
Sir David Attenborough. That is why in Britain the government,
conservation scientists and conservation NGOs have a commendably
high profile in global work to meet the millennium development
goal of slowing the rate of loss of global biodiversity. However,
the IUCN report provides a sharp reminder to the UK of the threatened
biodiversity in its own overseas territories. The 2007 Red List
shows that—added together—there are 322 listings for
threatened species in the territories. That puts the UKOTs at
19th on a global list, just behind South Africa (see Annex B).[100]
And while South Africa has overall more threatened species, the
UKOTs have 78 critically endangered listings, compared with 58
for South Africa. Without better governance by HMG, it is likely
that some of the next species to become extinct will be from St
Helena, or Tristan da Cunha, or the Falklands, or Montserrat,
or Bermuda, or the British Virgin Islands etc. Admittedly, it
is difficult to get to the remotest territories: but it would
be evidence of HMG's intention to take its commitments under the
environment charters seriously if the Minister for Biodiversity
and senior Defra officials were to visit one or two of the territories
in 2008.
20. Two further points show how irresponsible
it is for HMG to talk glibly about management of the environment
being devolved to the governments of the territories. First, the
biodiversity of two territories is of such importance that many
responsible scientists believe they should be managed as if they
were World Heritage sites: British Indian Ocean Territory (BIOT)
and South Georgia and the South Sandwich Islands (SGSSI).8 Neither
has at present a settled resident population, so they are governed
directly by HMG. The RSPB's report estimates the annual conservation
needs of these two territories as £7.6 million, or 45% of
the priority conservation needs in all the territories. This high
proportion reflects the expense of work in such remote areas with
no local community. However, HMG needs to accept that exercising
sovereignty over such strategically important areas (in one case,
ennabling the UK to provide extremely valuable defence facilities
to the USA) carries with it responsibilities for the good governance
of their environment. In these two territories there is no one
to whom that can be devolved.
21. Secondly, consider the five territories
with the smallest populations (figures from the FCO website):
Pitcairn (47), Tristan (275), Ascension (1,000), Falklands (2,913),
St Helena (4,000). The RSPB estimates their combined annual conservation
needs at £2.5 million (16% of the total). How can that responsibility
be devolved to territories with a land area of 12,606 sq kms,
EEZs totalling 2.9 million sq kms and a total population of 8,235?—ie
slightly more than Cromer (7,749) and slightly less than Skye
(9,232). These territories alone have 123 threatened listings
in the 2007 Red List (more than Ethiopia—108 or Cambodia—113).
Tackling these threats often means preparing and implementing
species and habitat biodiversity action plans, as a matter of
urgency. The FAC might ask the Chancellor of the Exchequer how
much funding he has provided to Defra and the devolved administrations
to support biodiversity action plans in the UK. For the UKOTs
there are overlaps between departmental responsibilities. Therefore,
in the interests of joined-up government, a panel of ministers
(Treasury, Defra, MOD, DfID and DCMS; as well as the FCO) might
be asked three simple questions:
(a) What work should be undertaken in the
next five years to make sure that loss of biodiversity in the
UKOTs does not undermine the UK's international commitments on
global biodiversity?
(b) How should responsibilities (and costs)
be shared between HMG and the governments of the territories,
especially those on grant-in-aid?
(c) How should HMG's responsibilities (and
costs) be shared between different departments in the UK?
These questions needs to be addressed to all
these ministers collectively. Even then, be prepared to see Whitehall
officials forming a circle for the classic "Yes, Minister"
game of pass-the-parcel: each player's aim being not to be left
holding the can of worms labelled "overseas territories"
when the music stops.
The role of governors and other office-holders
appointed by or on the recommendation of the United Kingdom Government
22. Governors (and administrators) of overseas
territories have a role that cannot easily be defined, since the
circumstances and constitutions of each territory differ; as do
the contentious issues—in each territory and for HMG in
its relationships with each territory. Whether resident or not
(eg the Governor of Pitcairn and the Governor of St Helena and
Dependencies in respect of the Dependencies of Ascension and Tristan
da Cunha) key aspects of the job are:
— First, in most territories (but not
Bermuda) the governor's most important regular role is to chair
the executive council or cabinet (as well as many formal and informal
meetings of other key groups involving the governor's reserved
powers). In cabinet, where the governor is normally constitutionally
required to accept the advice of others around the table, a key
objective, where necessary, is to persuade.
— Second, one of the governor's most
important functions is to make a wide range of public appointments,
often first chairing relevant selection boards.
— Third, the governor has a vital role
in representing the territory's interests to HMG, and as necessary
defending them. That is a far wider function than the traditional
diplomatic one of an ambassador explaining the policies and actions
of the government of a foreign country. The territories are not
foreign countries. Governors often have to advise officials and
ministers that while they have legal powers (exercised through
the governor) and levers (eg DfID budgets) that they do not have
over foreign countries, those in London are often inclined to
apply templates about "how territories ought to function"
that fail to take into account the social and political realities
of that specific territory.
— Fourth, the governor has to explain
HMG's policies to the elected politicians, local officials and
the public of the territory.
— Fifth, the governor has the important
non-political role of providing the local equivalent of Head of
State (as the representative of The Queen, not of the party in
power at Westminster). That is high profile (and sometimes sensitive,
given the high profile that local chief ministers also need to
maintain), time-consuming and works best when governors (and their
spouses) have a genuine commitment to local causes of which they
are often ex-officio patrons.
— Sixth (and hardest), governors have
to remain sane and healthy in a society with which they may be
unfamiliar and where support from day-to-day friendships may be
lacking or compromised by their official position.
— Seventh, governors have to balance
their personal interests (career, retirement options, hobbies)
against their responsibilities.
23. Against that background, consider one
recent dilemma. In 2001-02 the Governor of St Helena and Dependencies
and the resident Administrator of Ascension were required by HMG
to promote to residents of Ascension a huge move to normal civil
society, involving, inter alia, the introduction of income
tax, an elected Island Council, and legislation providing for
right of abode and a local property register. In late 2005 these
same officials, appointed by the FCO, were required to explain
that London had changed its mind; and to say that unspecified,
undiscussed and uncosted contingent liabilities (had they not
been considered before?) made it impossible for HMG to proceed
with either a right of abode or a local property register. In
pursuance of this U-turn the administrator was also expected to
apply an interpretation of local residential arrangements that
prevented members of the same family from living in the same house.
24. What does that do for the credibility
of the Governor and Administrator (or, for that matter, of HMG)?
In this case the record of both officials and ministers is of
lack of consultation, lack of transparency, lack of accountability.
That led to the resignation in disgust at their treatment by HMG
of the majority of the elected island councillors.
25. There is an interesting parallel with
the Crown Dependencies, whose Lieutenant-Governors fill many (not
all) of the roles of Governors in the overseas territories. However,
their background is usually different, often recently retired
from senior military positions. A case can be made for career
diplomats being best placed to govern overseas territories. But
questions should also be asked:
— What role should the territory have
in approving an appointment?
— Is a diplomat with a career (or size
of pension) dependent on appraisals by line managers in the FCO
during the posting best placed to defend the interests of the
territory with departments in London (not just the FCO)?
— Is someone seen as an emissary of
the FCO best placed to persuade local politicians over sensitive
local issues where HMG cannot (or prefers not to) rely on Orders
in Council that do not have the support of the territory's elected
government?
— What background will best equip a
Governor to tackle (if they arise) corruption or incompetence
in locally elected governments in areas not directly controlled
by HMG (and thus tricky for involvement by HMG ministers)?
26. Such questions open up issues that are
perhaps beyond the immediate remit of this inquiry. One is this.
Governance issues concerning the overseas territories have a considerable
overlap with those for the Crown Dependencies and the devolved
administrations. The UK has eclectic constitutional arrangements:
residents of the overseas territories and of the Crown Dependencies
do not pay taxes to HMG nor have they representatives in Parliament;
residents of the devolved administrations have much of their lives
controlled by their locally elected politicians—but with
funding that comes from the Treasury; on international agreements
of any sort the overseas territories, the Crown Dependencies and
the devolved administrations all depend on Westminster ministers
and their departments to represent their interests (and to consult
them). Should these three areas be brought together? (Further
comments on this are in paragraphs 30-34 below on international
agreements).
The work of the Overseas Territories Consultative
Council
27. The work of the Overseas Territories
Consultative Council (OTCC) deserves to be more widely publicised
in the territories and in the UK. As far as possible, papers that
are tabled for discussion should be made available on websites.
More effort should be made to enable members of the OTCC to meet
politicians, officials, organizations and individuals with a close
involvement with the territories, especially as there are relatively
limited opportunities for such direct contact with elected representatives
of the territories.
Transparency and accountability in the Overseas
Territories
28. As indicated above, freedom of information
legislation is essential institutional underpinning for transparency
and accountability. This needs to be matched by greater transparency
and accountability in how Whitehall departments deal with the
territories. Several other select committees and the National
Audit Office have important roles in monitoring this area of good
governance.
Regulation of the financial sector in the Overseas
Territories
29. Others are better equipped to provide
evidence on this topic.
The application of international treaties, conventions
and other agreements to the Overseas Territories
30. It used to be the practice that international
treaties signed by the UK were automatically applied to all UK
territories to which they appeared applicable. With greater national
accountability about meeting international commitments and with
quite onerous reporting obligations under many agreements, the
general practice now is that each territory is consulted about
whether the UK's ratification of a treaty should be extended to
cover that territory. There are, however, some practical problems
that Whitehall often does not manage to address effectively.
31. First, on complex international agreements
it is often easy for the lead department in London to forget about
the territories. Sometimes, indeed, there may be nothing that
affects any of them significantly. However even the process of
consulting territories (with small and over-stretched departments
and lack of specialists) can be burdensome to them. Often officials
in London rely on the FCO to be their link to the territories
but do this either once the text has been negotiated or late in
the negotiating process. That makes it far harder for the UK negotiators
to take on board the interests and wishes of the territories.
On some issues, the interests of the territories may be far from
identical with those of HMG. That was the case for trade negotiations
when Hong Kong was still a dependent territory; and to a considerable
extent remains so now that Hong Kong is a Special Administrative
Region of the People's Republic of China. Several overseas territories
approach matters concerning international financial regulations
from a different perspective from HMG because different interests
are at stake.
32. Second, in some international negotiations
and conferences of the parties there are good news stories to
be celebrated about the territories and participation in the UK
delegation can thus have advantages for the UK and for the territory.
This does happen, but not as often as it might.
33. Third, even when the UK's ratification
of an international treaty has not yet been extended to any or
all of the territories, the UK is often answerable politically
to parliament and to the international community for how the matters
addressed by the treaty are handled in the territories. To take
an example that reflects the comments above about the importance
of biodiversity in the overseas territories, the CBD has not yet
been extended to nine of the territories. Often there are valid
reasons: the territory wishes first to have in place adequate
legislation so that it can fully meet the commitments involved
in the convention being extended to it. But that surely does not
mean that HMG should be less willing to support biodiversity work
in the Falklands, or South Georgia or Bermuda, or Pitcairn (to
which the CBD has not yet been extended) than in St Helena or
the Cayman Islands (where it has)? For an extinction in any of
the territories, it will be no defence for HMG to say "Ah,
but the CBD had not been extended to cover the territory where
that bird used to exist".
34. The question of advance consultations
and participation in international negotiations on subjects requiring
local implementation of international commitments undertaken by
HMG is not just one for the overseas territories. It applies also
to the devolved administrations and the Crown Dependencies. Perhaps
more consideration should be given to ways in which central government
departments in the UK can be encouraged to consult and provide
appropriate guidance for all these sub-national levels of government.
Might the Department of Justice have a co-ordinating role?
Human rights in the Overseas Territories
35. There are three issues (apart from freedom
of information) that the committee should address. On all of them
documentation is readily available elsewhere so the treatment
here is cursory.
36. First, the case of the Chagossians,
exiled from British Indian Ocean Territory. Quite apart from the
current legal issues, the FAC might consider drawing lessons about
the 2000 High Court judgement, which was accepted by the government,
about the readiness of the FCO to place a low priority on the
human rights of powerless islanders who get in its way. The FCO's
later arguments to the Appeal Court had considerable impact in
other territories. Comments were made as far away as St Helena
and the Cayman Islands that it was disturbing to learn that there
were those in London who believed they had the power to exile
the entire population of a territory simply by citing the royal
prerogative. There are villages in many of the territories where
a framed picture of The Queen is proudly displayed in every parlour.
37. Second, Ascension and the government's
wish to deny those on the island the possibility of moving to
a normal civil society. The FAC may well need to probe hard to
find the true reasons (and whether they stand up to scrutiny)
for such a change of direction. It is as if HMG, having failed
to convince the courts that it was unjust to ignore the human
rights of the Chagossians, decided that Ascension was another
potential Diego Garcia. The reward for the loyalty of the islanders
during the Falklands war is to be turned back into a company store
and treated as expendable migrant workers. That is not a model
of good governance for the 21st century.
38. Third, more attention needs to be paid
to the human rights of migrant labour in the UKOTs. The economies
of several territories seem to be relying increasingly on construction
projects. For low income tax economies, the duties paid on imported
materials provide a welcome source of government revenue. One
issue is environmental: will poorly controlled development damage
the natural ecosystems essential the long-term health of the territories?
However, when such development relies heavily on cheap imported
labour there are also dangers of human rights abuses.
CONCLUSION
39. There are three recommendations that
the committee might consider making: to colleagues in other select
committees, to the government and to all bodies in the UK and
in the overseas territories who value the many links—personal
and organizational as well as constitutional—between the
territories and the UK:
(1) To remind them that the territories are
not foreign (nor owned by the FCO); and to invite them to consider
whether there might be more suitable departmental arrangements
for handling issues concerning the territories and the appointment
of governors and other officials whose appointments are not the
sole responsibility of the elected governments of the territories.
(2) To suggest that HMG considers, together
with the governments of all the territories, what steps should
be taken to improve freedom of information legislation and its
effective implementation, in the territories and in the UK.
(3) To ask HMG as a matter of urgency to
prepare an interdepartmental strategy (in consultation with the
governments of the territories) on how work relating to the territories
can help HMG better meet its international environmental commitments.
Iain Orr
REFERENCES
1 Sir Leslie Glass Micro-States 26pp typed
and bound paper of 19 March 1971 in FCO Library Ref LRL 2/4 (1971).
Sir Leslie was Deputy UK Permanent Representative to the United
Nations 1967-71. He spoke at the conference on Micro-States "unofficially
in a personal capacity rather than as the representative of my
government".
2 Examples include the Cayman Islands, Anguilla,
the Falklands, Gibraltar—and probably more—as well
as the Seychelles and several of the smaller Caribbean island
colonies.
3 Nor are they independent members of the Commonwealth,
though many of their institutions do have valuable links with
Commonwealth institutions such as the Commonwealth Parliamentary
Association.
4 The FCO has indicated that the reason for petitioning
the House of Lords to review the Appeal Court's judgement of 23
May 2007 was because the judgment raised issues of constitutional
law of general public importance that would adversely affect the
effective governance of all British Overseas Territories. That
appears to mean is that the FCO considers that Orders in Council
used to create legislation in any UK overseas territory should
not be open to judicial review. As the Appeal Court said (Mr Justice
Sedley, paragraph 36 of the judgement):
"This case, correspondingly, concerns not
a sovereign act of the Crown but a potentially justiciable act
of executive government. Were we to hold otherwise we would be
creating an area of ministerial action free both of Parliamentary
control and of judicial oversight, defined moreover not by subject-matter
but simply by the mode of enactment. The implications of such
a situation for both democracy and the rule of law do not need
to be spelt out". (Underlining added)
The conclusion of his judgement made even
clearer that this example of poor governance by HMG concerning
an overseas territory stemmed from reliance by the FCO on approaches
to law and governance that remain deeply colonial.
"The unannounced withdrawal of the Chagossians'
right of return by the two Orders in Council in 2004 has been
defended in court not on the ground of an ineluctable change of
circumstance and policy but on the ground that, by using Orders
in Council, ministers could do with impunity something which was
known to be unlawful when done by Ordinance . . . Notwithstanding
the great latitude which the prerogative power of colonial governance
enjoys, I consider the material Orders to have been unlawfully
made, because both their content and the circumstances of their
enactment constitute an abuse of power on the part of executive
government".
Appeal Court Judgement of 23 May 2007, paragraph
78 (Lord Justice Sedley)
For those attending the Appeal Court hearings,
it was an extraordinary to hear how much legal importance the
FCO attached to its ability to use antiquated colonial powers,
despite the political lip-service to a non-colonial relationship
in the 1999 White Paper.
5 Some examples of the shared heritage that is
less well known in the UK than it should be, partly because Ministers
and officials fail to understand their importance and generally
give little support (eg by encouraging funds like the National
Lottery to support projects in the territories):
The role of the overseas territories as part
of the slave trade and then as part of suppressing it. It is disappointing
that a government which is basing the success of the air access
project on St Helena on increased tourism made so little effort
to explain the role of St Helena in suppressing the West African
slave trade during the 2007 events in the UK (and in the overseas
territories, especially in the Caribbean and Bermuda).
Three world heritage sites:
Henderson Island—the raised coral atoll
that is part of the Pitcairn group.
Gough and Inaccessible Islands—treasures
of biodiversity that are part of the Tristan group.
The Historic Town of St George in Bermuda—the
site of the first parliament in the New World.
The marine heritage, especially of historic wrecks,
throughout the territories.
The Georgian Heritage of Jamestown, the capital
of St Helena.
6 Owen Bowcott The new British empire? UK
plans to annex south Atlantic, Guardian 22 September 2007.
7 The second of the four clauses defining DFID's
statutory responsibilities (International Development Act, 2002)
is:
(2) British Overseas Territories
The Secretary of State may also provide any person
or body with development assistance in a case where the requirement
of section 1(1) is not met, if the assistance is provided in relation
to one or more of the territories for the time being mentioned
in Schedule 6 to the British Nationality Act 1981 (c. 61) (British
overseas territories).
[Note: This clause has the effect of removing
poverty as a criterion for providing assistance to the UKOTs (as
does the third defining clause, which enables DFID to provide
disaster relief without regard to a country's poverty). DFID thus
has the right to provide support for the welfare of the UKOTs
and to promote their sustainable development, defined as "any
development that is, in the opinion of the Secretary of State,
prudent having regard to the likelihood of its generating lasting
benefits for the population of the country or countries in relation
to which it is provided". This also means that DFID rather
than FCO has the budget to support these policy objectives.]
8 So far HMG has not been ready to propose them
for the UK's tentative list of new sites or to discuss them within
UNESCO's World Heritage Committee because of anticipated objections
from Mauritius and Argentina.
Annexes
A—UK OVERSEAS
TERRITORIES (UKOTS):
EXCLUSIVE ECONOMIC
ZONES (EEZS)
BY KMS2
| Anguilla | 91,053
| |
| Ascension | 443,844 |
|
| Bermuda | 449,300 |
|
| British Antarctic Territory (BAT) |
| Not applicable |
| British Indian Ocean Territory (BIOT) | 636,600
| |
| British Virgin Islands (BVI) | 80,701
| |
| Cayman Islands | 123,469 |
|
| Falkland Islands | 453,245 |
|
| Gibraltar | | Not applicable
|
| Montserrat | 8,247 |
|
| Pitcairn Islands | 837,221 |
|
| St Helena | 446,616 |
|
| South Georgia and South Sandwich Islands (SGSSI)
| 1,408,127 | |
| Tristan da Cunha | 749,612 |
|
| Turks and Caicos Islands (TCI) | 148,930
| |
SUB-TOTAL for UK OTs | 5,875,965
| |
Channel Islands | 6,517
| |
| Isle of Man | | Not applicable
|
| UNITED KINGDOM | 764,071 |
|
TOTAL: UK + OTs + Channels Islands |
6,646,553 | |
| | |
The source for the EEZ figures is the Sea Around Us Project
(website www.seaaroundus.org). On the Home Page click on "COUNTRIES'
EEZ". The new page now has a drop down menu from which the
name of each country or territory can be selected. Note that in
some cases the digitised map of the area covered by the EEZ indicates
by colouring if the EEZ is disputed/undemarcated. The authority
for the size of each EEZ is not given; however, the overall figures
seem broadly right, given the amount of open ocean around many
UKOTs. (If anyone has more accurate EEZ figures, please let me
know.) The overall figures are a reminder that in any discussions
concerning the roles of EEZs globally, the EEZ areas in the OTs
are over seven times greater than the UK's home EEZ.
In a speech of 21 March 2001 FCO Minister of State, John
Battle MP, used the figure of 8 million km2 for the area of the
combined EEZs of the UKOTs. It is not clear how his or the Sea
Around Us calculations were made. However, the main point is the
order of magnitude. With its territories, the UK has huge assets
(and duties) in the oceanic 7/10ths of the planet. Evidence is
mounting fast that largely anthropogenic processes, including
melting polar icecaps, rising sea levels, pollution, the spread
by ballast water of marine alien invasives and the damage by deep-sea
trawlers to marine ecosystems (including the rich biodiversity
around seamounts) are degrading oceanic ecosystems and the ecosystem
services they provide.
B—THREATENED SPECIES
IN THE
OVERSEAS TERRITORIES
It is often said that Europe is responsible for only a small
part of the world's biodiversity. IUCN's 2007 Red List of threatened
animals and plants tells a different story . . . hidden in the
fine print. The national listings do not include all the threatened
species in the scattered biodiversity hotspots from St Helena
to New Caledonia for which the UK and France remain responsible.
It makes good geographical sense for IUCN to list these sub-national
territories separately, but the sovereign responsibility for the
good governance of all their territories—metropolitan or
overseas—lies with the UK and France. They are the states
that have undertaken the commitments to protect global biodiversity
under the CBD and many other environmental treaties.
Now, recalculate the totals to reflect their national responsibilities
by adding the listings for France's overseas departments and territories
(619) and for the UK's overseas territories (322) and their true
rankings emerge: France at 7 (just ahead of Brazil), the UK at
19 (just below South Africa). Indeed, combine French and UK listings
to see just how much clout the EU's two permanent members of the
UN Security Council exercise on global biodiversity: third (1116),
just behind the USA.
THREATENED SPECIES 2007: TOP 20 COUNTRIES
| Total Rank | Country
| (CR + EN + VU) | Critically Endangered
|
| 1 | Ecuador | 2178
| 320 |
| 2 | USA | 1179
| 293 |
| 3 | Malaysia | 911
| 223 |
| 4 | Indonesia | 850
| 159 |
| 5 | Mexico | 840
| 181 |
| 6 | China | 797
| 121 |
| 7 | FRANCE | 743
| 142 |
| 8 | Brazil | 725
| 106 |
| 9 | Australia | 623
| 65 |
| 10 | Colombia | 604
| 105 |
| 11 | India | 560
| 89 |
| 12 | Madagascar | 542
| 99 |
| 13 | Tanzania | 539
| 54 |
| 14= | Cameroon | 512
| 94 |
| 14= | Peru | 512
| 44 |
| 16 | Philippines | 466
| 92 |
| 17 | Sri Lanka | 457
| 137 |
| 18 | South Africa | 396
| 58 |
| 19 | UNITED KINGDOM | 373
| 87 |
| 20 | Panama | 315
| 45 |
Statistical note. While IUCN's listings by country or territory
are of individual species, if different countries or territories
are grouped together (Caribbean island states, West Africa, UK
Overseas Territories), the total is of listings, not of species.
Unless endemic—as many species are in UK and French island
territories—the same critically endangered species may be
present in more than one country or territory. However, the good
management of a globally threatened species usually requires conservation
measures by governments and others in each separate territory
where it is found. This is especially important for migratory
species.
15 October 2007
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