Examination of Witnesses (Questions 120-139)
FOREIGN AND
COMMONWEALTH OFFICE
& DEPARTMENT FOR
INTERNATIONAL DEVELOPMENT
10 DECEMBER 2007
Q120 Mr Bacon: Why?
Sir Peter Ricketts: If you look
at the lower item on that table, there are only a very small number
of people in Governors' offices so the pool of people who we are
giving experience to in the overseas territories—
Q121 Mr Bacon: Hang on a minute.
In Governors' offices?
Sir Peter Ricketts: Yes.
Q122 Mr Bacon: Surely the person
has to have some governmental experience in the overseas territories.
They do not have to have sat in a Governor's office in order to
gain experience of government in the Cayman Islands or in the
Falkland Islands or Anguilla or wherever, do they?
Sir Peter Ricketts: For diplomatic
service officers it is either doing that or serving in the Overseas
Territories Directorate of the FCO. We do and have successfully
gone outside government to recruit specialists who have had experience.
The new Governor of St Helena, for example, was former Chief Secretary
in the Falklands, I believe, and where we can use prior experience
of the overseas territories, we will but I would not want to exclude
others because some of the skills of a Governor are skills that
other civil servants, diplomats, or people from other home departments
will have. Leadership, influencing, persuading, judgement on financial
resources issues—these are qualities that others can have
apart from those who have had experience in the overseas territories.
I would be reluctant to narrow our pool to that point but I certainly
do agree that we should be trying to build on expertise that people
have gained when they have been working in or on the overseas
territories earlier in their career when we are appointing Governors.
I certainly agree with that.
Q123 Mr Bacon: I would like to pursue
this point that Mr Mitchell raised about the letter that we had
from the ex-High Commissioner of Mauritius about the situation
of Diego Garcia. Just to be clear, your position is that you are
trying to find out whether Orders in Council are subject to judicial
review. That is the thing you are trying to find out—is
that right? Is that the purpose of the litigation now, from your
point of view?
Sir Peter Ricketts: Whether Orders
in Council made to make laws in the overseas territories are subject
to judicial review in the British courts.
Q124 Mr Bacon: I understand. Are
we really saying we have got to this point without this ever having
been tested in court so that there is no clear position on it?
Sir Peter Ricketts: I believe
that is the case, it yes.
Q125 Mr Bacon: Even though the House
of Lords is for many of these territories the Supreme Court?
Sir Peter Ricketts: Yes.
Q126 Mr Bacon: I have just been sent—and
unfortunately I cannot read out the whole thing because it is
too long—a note which I asked for from the Library about
this, which says—and it is referring to one of the leading
textbooks, Bradley and Ewing's Constitutional Law, 14th
edition—"Some prerogative acts are unlikely to give
rise to the possibility of challenge in the courts. For example,
the conferment of an honour or the dissolution of Parliament,
but where an act purporting to be done under the prerogative"—I
take it that Orders in Council are acts purporting to be done
under the prerogative?
Sir Peter Ricketts: I understand
so, yes.
Q127 Mr Bacon: " ... where an
act purporting to be done under the prerogative directly affects
the rights of an individual, the court may be asked to determine
a number of issues." In other words, it is justiciable, is
it not?
Sir Peter Ricketts: That is the
question we are seeking to establish.
Q128 Mr Bacon: The Foreign Office's
position at law, the position you are contending for in the court
and will when it gets to the House of Lords, is that it is not
even justiciable? I just want to be clear that is the Foreign
Office's position.
Sir Peter Ricketts: I am reluctant
to go too far down this road in a case which is going to shortly
be before the House of Lords.
Q129 Mr Bacon: I do not want you
to go into great detail, I just want to ask what is the Foreign
Office contending for? You are contending for the notion this
is not even justiciable, that is what you are saying?
Sir Peter Ricketts: Not justiciable
in the UK courts, because these are laws which apply in the overseas
territories and they are of course justiciable in the overseas
territories' courts. There is a risk of two jurisdictions coming
to two different conclusions on a point of law if it is justiciable
both in the UK courts and in the courts of the overseas territories.
Q130 Mr Bacon: Since the Supreme
Court is the same in both cases, it seems quite unlikely they
would not know what they had done.
Sir Peter Ricketts: I think I
have gone as far as I can as a layman in explaining the position.
Q131 Mr Bacon: When are you expecting
this to appear before the House of Lords?
Sir Peter Ricketts: I think not
until well into next year.
Q132 Mr Bacon: Could you send us
a note setting out as far as you can the Government's position?
Sir Peter Ricketts: Of course.[11]
Q133 Mr Bacon: That would be very helpful.
I would like to ask you about pension liabilities. You mentioned
them much earlier and I think you said that something had been
settled in relation to pension liabilities. Plainly if there were
any pension deficits presumably the ultimate liability would fall
on the United Kingdom, would it not?
Sir Peter Ricketts: Yes, my reference
to that point was to the pensions agreement in respect of Gibraltar,
the so-called Cordoba Agreement, which drew a line under a long-standing
dispute over pensions in Gibraltar.
Q134 Mr Bacon: Does that make for
a precedent in other territories, or are there similar disputes
elsewhere?
Sir Peter Ricketts: I think this
case was unique to Gibraltar.
Mr Bacon: Thank you very much.
Chairman: Mr Mitchell and Mr Davidson
have one or two final supplementaries.
Q135 Mr Mitchell: It is a point which
springs from my affection for Pitcairn because I have in my possession
a tortoise carved by Mr Christian, which was carved especially
for me when he sold it, so I have always taken an interest. We
have just recently had this complicated and extensive prosecution
of islanders, British police were sent out and I think a policewoman
was resident there for some time, there was a trial and now five
people are in prison for various forms of sexual abuse, which
seems to be a way of life on Pitcairn; five out of a population
of 45 on the island are now in prison. Who pays for all that?
Sir Peter Ricketts: Who pays for
the—?
Q136 Mr Mitchell: For the police
going out, the trial, the prosecutors, moving people around, putting
them in prison, who pays for all that? It must be a major part
of the budget.
Sir Peter Ricketts: Yes, and I
believe this led to a position where the financial resources of
the territory were exhausted. The FCO has paid for these costs
because there was no other source of funding for them.
Q137 Mr Mitchell: Is there now going
to be a continuing police presence; are we assuming they are still
at it?
Sir Peter Ricketts: I am not informed
enough. There is a continuing cost for the imprisonment of these
people on the island, I am not aware there is a continuing police
cost. It was a very traumatic case for the whole community given
the scale of it, as you say.
Q138 Mr Davidson: Can I come back
to the question of governors and I want to ask about the efficacy
of police forces. Do we have a responsibility for ensuring that
police forces in the various overseas territories are fit for
purpose?
Sir Peter Ricketts: We have oversight
responsibility for them, yes, because the governors are responsible
for law and order in their territories.
Q139 Mr Davidson: Can I ask then
about the inspection thereof? How do you ensure that the various
police forces have got the capability and the levels of personnel
and equipment to meet the obligations which are placed upon them?
Sir Peter Ricketts: There are
possibilities, for example, for HM Inspector of Constabulary to
visit and to examine the state of police forces.
11 Note by witness: As well as striking down
part of the 2004 Orders in Council which prevent the resettlement
of the outer islands by Chagossians, the Court of Appeal judgment
raises issues of constitutional law of general public importance
that, in HMG's view, would adversely affect the effective governance
of all British Overseas Territories. This would include confusion
in the legal system to be applied in those Overseas Territories,
and potential conflicts between local and English courts. For
these reasons, in addition to the two grounds given above, the
former Foreign Secretary concluded that it would be in the public
interest that the Court of Appeal's judgment should be appealed
to the House of Lords. We hope that the appeal in respect of this
constitutional issue will restore clarity and certainty to the
way legislation is enacted-and subject to legal challenge-in the
Territories. Back
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