Submission from the British Virgin Islands
(BVI) Government
1. INTRODUCTION
1.1 The BVI Government understands that
the focus of the Inquiry is the exercise by the Foreign and Commonwealth
Office (FCO) of its responsibilities in relation to the Overseas
Territories and the FCO's achievements against its Strategic Priority
No 10, the security and good governance of the Overseas Territories.
1.2 We agree with the Committee that to
obtain a good understanding of this, it is vital that the views
of the Overseas Territory Governments and their representatives
are taken into account and we welcome the opportunity to give
the BVI perspective.
1.3 To assist the Committee our comments
and recommendations follow the order given in the press release
announcing the Inquiry.
2. ABOUT THE
BVI
2.1 Sixty miles east of Puerto Rico in the
heart of the Caribbean, the British Virgin Islands (BVI) are a
tropical group of Islands. The principal islands of Tortola and
Virgin Gorda are where most of the territory's 25,000 inhabitants
live with the rest scattered around a number of smaller Islands.
Road Town is the administrative and economic capital.
2.2 Politically stable with a great measure
of self-governing the BVI maintains a fully democratic system
based around an elected Premier. The BVI recently adopted a new
Constitution which has allowed for significant constitutional
advancement and, among other developments, clearly defines the
role of the Governor and ensures a role for the BVI Government
in all issues which might directly impact upon the Territory or
its population. This includes the establishment of a National
Security Council to advise on internal security and a degree of
enabling power for the BVI Government to undertake external affairs
on its own behalf. The current Premier is the Hon Ralph T O'Neal
of the Virgin Islands Party. The Leader of the Opposition is Hon
Dr D Orlando Smith of the National Democratic Party. The House
of Assembly has 13 directly elected members and a Speaker. Elections
are constitutionally due every four years. BVI Law is based on
the British Legal System and English Common Law. The court system
is made up of a Magistrates Court, a High Court and a Court of
Appeal of the Eastern Caribbean Supreme Court with final appeal
to the Privy Council in England.
2.3 The BVI has a thriving economy with
low levels of unemployment. This originates from its successful
management of the twin pillars of its economy: tourism and financial
services.
2.4 In both tourism and financial services
the BVI has undertaken pioneering work. In tourism, close attention
has been paid to ensuring that high quality, sustainable tourism
is supported and the infrastructure which has been developed to
support tourism is well maintained. In financial services, the
BVI is widely regarded as operating a robust regulatory regime
a fact recognized by international organizations including the
Financial Action Task Force (FATF) and the IMF. The financial
services sector grew significantly following the 1984 passage
of the International Business Company (IBC) Act. Nevertheless,
since then it has broadened in scope to include insurance, banking,
mutual funds and wider corporate services. Because of traditionally
close links with the US Virgin Islands, the British Virgin Islands
uses the US dollar as its official currency.
3. STANDARDS
OF GOVERNANCE
IN THE
OVERSEAS TERRITORIES
3.1 The UK Government continuously maintains
that it must protect itself against contingent liabilities and
ensure it can discharge its international obligations.
3.2 The BVI Government strongly believes
that the circumstances and eventualities where the UK Government
engages in governance issues must be clearly defined on a constitutional
basis and not bundled in miscellaneous wrappings and general headings.
We will continue to support the principle of good governance and
made this case strongly to the UK team during the recent Constitutional
negotiations.
3.3 Evidence of our belief in and practice
of good governance can be seen in a range of areas including the
constitutional protection of the public service from political
interference and the separation of powers of the Attorney General
and the Director of Public Prosecutions to the robust regulation
of our financial services sector.
3.4 It should be noted that the BVI has
adhered to high levels of governance for a number of years. As
evidence of our progress and good governance, our international
financial services sector remains beyond reproach and various
jurisdictions continue to benchmark their own offering against
ours. Our financial services sector has and continues to meet
all the international standards of prudence and regulation. Our
tourism sector continues to be robust, again because of sound
management. A number of our statutory bodies, employing a major
portion of our public workforce outside the direct constitutional
control of the Governor, have functioned efficiently from their
inception, some of which are now recognized as models for the
region. One example is the Social Security Board.
3.5 Recognition of the standard of governance
in the BVI by the UK can further be seen in the 2005 statement
of agreed borrowing procedures jointly signed by the UK and the
BVI. This recognizes that borrowing is a legitimate tool of BVI
Government policy and agrees the principles and processes by which
Government borrowing can be undertaken. Furthermore, the BVI strictly
adheres to the "borrowing guidelines" negotiated with
the UK Government and for many years has consistently generated
surpluses in its annual budget.
3.6 The key point to note is the level of
trust placed by the UK in the BVI Government to use borrowing
as a tool up to certain levels without the need for explicit UK
Government approval.
4. THE ROLE
OF GOVERNORS
AND OTHER
OFFICE-HOLDERS
APPOINTED BY
OR ON
THE RECOMMENDATION
OF THE
UNITED KINGDOM
GOVERNMENT
4.1 Governors have an important role to
play in the Territories as the representatives of Her Majesty's
Government (HMG). There has, however, increasingly been a lack
of clarity between what the democratically elected government
believed to be its responsibility and what the Governor believed
was his right to be involved.
4.2 The new BVI Constitution has attempted
to address this and laid out the role of the Governor and indeed
other senior public office holders more precisely so that the
role and responsibilities of the Governor vis-a"-vis the
Territory's government are more clearly defined.
4.3 It remains to be seen how this will
operate in practice but the new Constitution should ensure more
involvement by the BVI Government in areas traditionally the preserve
of the Governor, such as crime, policing and the civil service.
4.4 The BVI's new Constitution also includes
a requirement for the Government of the BVI to be consulted on
the appointment of a new Governor as it is on the appointment
of all senior officials. The BVI Government is democratically
elected, it represents the Territory all over the world and its
citizens expect the partnership approach advocated by the UK in
the 1999 White Paper: Partnership for Progress and Prosperity:
Britain and the Overseas Territories to be followed. A logical
extension of this partnership would be for the BVI Government
to be consulted not only on the type of person to be appointed
as Governor but the precise individual being considered.
4.5 Recommendation: Overseas Territories
governments should be consulted not only on the general qualities
expected of a Governor but also on the individuals being considered
before the appointment is made.
4.6 Furthermore, there is tendency for the
FCO to use the Governors as an exclusive channel to Overseas Territories
Governments which at times can delay matters and create inefficiencies.
If Ministers or officials wish to get in touch with Overseas Territories
Governments they should be able to do so directly.
4.7 Recommendation: The BVI Government recommends
that direct relationships between the FCO and other UK Government
departments and their equivalents in the BVI be encouraged. The
Governor may be copied in on relevant correspondence but is no
longer the exclusive channel for all communication.
5. THE WORK
OF THE
OVERSEAS TERRITORIES
CONSULTATIVE COUNCIL
(OTCC)
5.1 The OTCC has become an important component
in relations between the FCO and the Overseas Territories. The
annual meetings give Leaders of Overseas Territory Governments
an opportunity to meet their political counterparts and senior
officials in the UK and discuss a range of issues of interest
and concern to the Overseas Territories.
5.2 However, it may be that the time has
come for a change in format. BVI's Constitution is slightly different
to the one adopted by, for example the Turks and Caicos Islands,
and quite different again to that of Gibraltar's. The Territories
also vary in political and economic development and levels of
self governance.
5.3 As a result we do not believe that the
"one size fits all" approach which the FCO tends to
adopt with the Overseas Territories can continue to be taken.
5.4 Of further concern however, is that
the partnership approach advocated by the 1999 White Paper has
not been followed through by the FCO in terms of the OTCC meetings.
For example, it is our view that any changes to the composition
of the meetings should be agreed by the political leaders of the
Overseas Territories before the changes are made. The 2005 decision
by the FCO to invite the Governors to attend without consulting
the Overseas Territories not only showed a lack of respect for
this approach but also created tension.
5.5 The BVI Government believes that the
format of the OTCC be modified.
5.6 Recommendation: The BVI recommends that
the format be changed in the following ways:
— The session between the Leaders of
the Overseas Territory Governments and the responsible FCO Minister
without officials present remains. This then gets the OTCC back
to the reason it was created in the first place—a discussion
between the political leaders of the territories and their political
counterparts in the UK.
— Bi-lateral meetings be arranged with
other Government Departments on specific issues requested by the
BVI.
— No decisions should be taken on attendees
and format, including attendance by Governors, without consultation.
6. TRANSPARENCY
AND ACCOUNTABILITY
IN THE
OVERSEAS TERRITORIES
6.1 This issue is related in many ways to
good governance. The BVI Government is democratically elected
on a four year mandate. Under the terms of the new Constitution
a greater degree of transparency in Government has been built
in, particularly where the relationship between the BVI Government
and the Governor is concerned. Similarly if he disagrees with
a position taken by the newly created National Security Council
he is required to report why at the next meeting of the Council.
6.2 Accountability is divided between the
Governor, who is accountable to the Secretary of State for Foreign
and Commonwealth Affairs, through the FCO and the locally elected
BVI Government who, as in any democracy, is elected on a mandate
laid out in its manifesto and is accountable to their citizens.
In 2003 the NDP won the election while in the recent 2007 election
the VIP won. Both election campaigns and the level of debate clearly
demonstrated the vibrant democracy in the BVI.
7. REGULATION
OF THE
FINANCIAL SECTOR
IN THE
OVERSEAS TERRITORIES
8. PROCEDURES
FOR AMENDMENT
OF THE
CONSTITUTIONS OF
OVERSEAS TERRITORIES
8.1 The two policy papers that dominate
the relationship between the UK and its overseas territories are
the 1997 National Audit Office report: "Contingent Liabilities
in the Dependent Territories" and the 1999 White Paper
on "Partnership for Progress and Prosperity".
The first pointed to the risk to the UK of maintaining its relationship
with the overseas territories while the second proposed an improved
partnership approach and a perceived need to reflect "a
balancing of obligations and expectations". It is the
latter which resulted in the invitation by the UK to each of the
overseas territories to undertake a constitutional review. However,
this was on condition that such reviews take into account that
the UK Government must have sufficient and effective powers to
protect its overall responsibility for ensuring good governance,
compliance with international obligations and minimisation of
contingent liabilities. It was with this background in mind that
the BVI entered into constitutional talks with the UK in 2006.
8.2 While there is currently no demand in
the BVI for independence, British Virgin Islanders have a very
clear sense of self and "nation", which was reflected
in the call for the Constitution to reflect the aspirations of
the BVI people. There was therefore a clear expectation that in
the constitutional talks a number of changes would be made to
the Constitution to remove some of the colonial remnants of former
structures and enhance this sense of self to ensure that the Government
of the BVI is empowered to make the necessary decisions to better
the lives of British Virgin Islanders and protect their rights
as well as strengthening the partnership element of the constitutional
relationship.
8.3 Indeed, in the case of the BVI, history
tells us that on every occasion that more authority was placed
in the hands of the locally-elected government, we have been able
to make meaningful improvements to the quality of life of our
people. Moreover, a strong correlation between constitutional
advancement and economic advancement has always been clearly demonstrated.
Increasing moves toward greater autonomy and self-governance accompanied
by the will to self-determination continues to result in greater
economic self-sufficiency, prosperity and the overall maturity
of the BVI.
8.4 There can be no greater responsibility
placed on a Government than to prepare a new Constitution and
from the start both Government and Opposition were determined
that there be maximum consultation with the people of the BVI.
8.5 The BVI Government established a Constitutional
Commission. Comprised of people with many years of current or
past public service, the Commission took written evidence from
people across the BVI and organised a number of public meetings
across the territory. Following this process the Commission produced
a report which outlined the detailed thought process and presented
a series of recommendations for constitutional change.
8.6 The Government accepted the recommendations
of the Commission and established a Constitutional Negotiating
Team to engage in discussions with the FCO. It comprised two members
of the Constitutional Commission and Members of the Legislative
Council from both Government and Opposition.
8.7 Negotiations with the UK Government
took just over a year and months and included four rounds of face
to face talks, three in the BVI and a final round in London, with
the Minister Lord Triesman.
8.8 The BVI prepared intensively for the
negotiations. In addition to a substantial human rights chapter,
the resulting Constitution also defines much more clearly the
role of the Governor and other officials and clearly states that
unless it is a role specifically assigned to the Governor, administration
of the BVI is the responsibility of the locally elected BVI Government.
9. THE APPLICATION
OF INTERNATIONAL
TREATIES, CONVENTIONS
AND OTHER
AGREEMENTS TO
THE OVERSEAS
TERRITORIES
9.1 Some international treaties, conventions
and other international agreements which the UK ratifies also
apply to the Overseas Territories.
9.2 While the BVI Government understands
that part of being an Overseas Territory means that this must
be the case, it would ask that the FCO do more to alert Overseas
Territories Governments about such matters well before they are
ratified so that representation, if necessary, can be made in
a timely fashion. Unfortunately, there is often a delay which
can lead to tension between the Territories and the UK. It is
also important that other UK Government departments have a clear
understanding of what can be applied to the territories and what
cannot and the FCO must communicate this adequately to them.
9.3 We recognise that the Governor is the
formal link between the territories and the UK Government. However,
this does not have to be an exclusive channel and where such important
matters are concerned, other links such as the UK Representative,
in the BVI's case, should be utilised to speed up the process
and maximise the time the BVI Government has for consideration.
9.4 Recommendation: The BVI Government recommends
that the FCO institute a system whereby the UK Representative
is included in the information loop when prospective new international
treaties, conventions and other agreements are being considered
to ensure that Overseas Territory Governments are informed of
such developments on a timely basis.
10. HUMAN RIGHTS
IN THE
OVERSEAS TERRITORIES
10.1 A human rights chapter is the first
and substantial section of the new BVI Constitution. It means
that for the first time these rights are enshrined in BVI Constitutional
law. In addition to the full Constitution, the BVI also prepared
a summary document which was widely circulated throughout the
Territory to ensure that the citizens were made fully aware of
these rights.
11. RELATIONS
BETWEEN THE
OVERSEAS TERRITORIES
AND THE
UNITED KINGDOM
PARLIAMENT
11.1 Relations between the BVI and the UK
Parliament are good. Like many territories we work with an active
All Party Group, chaired by Lindsay Hoyle MP and we hosted a visit
by the Group and other MPs to the BVI in 2006 and 2007. There
is also the All Party Overseas Territories Group, which acts as
an umbrella group for all the territories. We have carefully considered
whether we believe there should be more formal representation
in Parliament. However, in conclusion we prefer the status quo
as this way we have the right of access to all Parliamentarians
not just the one or two who "should" have an interest.
11.2 The BVI Government believes that we
should have greater access to the UK Parliament to ensure that
we maximise our representation given the fact that the UK Parliament
can pass laws which can directly impact upon us. In addition,
to truly understand and have a proper feel for the BVI and its
people we think it important that as many MPs as possible have
the opportunity to visit. This is obviously an expensive undertaking
for the BVI Government to fund on an annual basis; therefore we
propose that consideration be given to some Parliamentary funding.
11.3 Recommendation: The BVI Government
recommends that the UK Representative of the BVI have a right
to a Parliamentary pass in the same way as the CPA Secretariat
does. Additionally, we recommend that Parliament consider funding
at least one visit to the BVI on an annual basis under the auspices
of the All Party BVI Group.
30 October 2007
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