House of Commons - Sustainability in the UK Overseas Territories

Sustainability in the UK Overseas Territories - Environmental Audit Committee Contents

2 Responsibility

Power

11. All 14 UKOTs exist under UK sovereignty.[10] The most fundamental principle of the relationship between the UKOTs and the United Kingdom is the supremacy of Parliament. Parliament has unlimited power to legislate for the UKOTs as a matter of constitutional law and has the responsibility to ensure good governance in the UKOTs.[11] The FCO Parliamentary Under-Secretary of State, Mark Simmonds MP, acknowledged that point: "In theory, we could impose from the outside environmental legislation on the Overseas Territories but we do not think that that would be constructive."[12] The power to impose legislation on the UKOTs is not, however, purely theoretical. In 2009, for example, the UK Government suspended the constitution in Turks and Caicos Islands following allegations of financial malfeasance and imposed direct rule by introducing an Order in Council in the UK Parliament.[13]

12. Possession of hard power also confers significant soft power. On 16 June 2013, the Prime Minister brokered an agreement with those UKOTs with financial services industries to join a Multilateral Convention on enhanced tax transparency.[14] Interestingly, that agreement, which was hastily negotiated before the G8 Summit 2013, did not include provisions to enhance environmental transparency. For example, companies quoted on the London Stock Exchange are subject to sustainability reporting requirements, but the UK Government did not negotiate the introduction of such requirements in the UKOTs when it brokered the 2013 agreement.[15] The UK Government is prepared to exercise hard and soft power in relation to financial matters in the UKOTs, but it is apparently not prepared to exercise those powers to protect biodiversity and to promote environmental sustainability.

Moral responsibility

13. The 2012 White Paper made a great deal of the shared history of the UK and the UKOTs. The Foreign Secretary pointed out that "no historian can fail to be intrigued by the stories which tell how the United Kingdom's 14 Overseas Territories have been entwined in our national history."[16] The Foreign Secretary's observation is especially true in the case of the environment—eminent British scientists and conservationists such as Darwin, Wallace, Hooker, Banks and Attenborough all studied the UKOTs.[17] That shared history brings with it a moral responsibility.

Legal responsibility

14. Before and during our inquiry, the UK Government consistently sought to downplay the extent and nature of its environmental responsibility in relation to the UKOTs. The 2012 White Paper stated that the UKOTs "contain an estimated 90% of the biodiversity found within the UK and the Territories combined" rather than using a straightforward phrase such as '90% of the biodiversity for which the UK is responsible.'[18] Similarly, the Prime Minister discussed "our stewardship of the extraordinary natural environments we have inherited", and the Foreign Secretary referred to the UK's role as "stewards of these assets".[19] Chambers English Dictionary defines 'steward' as "one who superintends another's affairs."[20] Part 2 of this Report explains how environmental protection in the UKOTs is the UK's affair.

15. Following the line established in the 2012 White Paper, the FCO Minister made his priority clear in his opening statement to the Committee:

The UK Government has constitutionally subcontracted environmental management to the Governments of the inhabited UKOTs, but such constitutional arrangements cannot devolve away the UK's ultimate responsibility under international law. The authoritative text, British Overseas Territories Law, is clear on that point:

We highlighted that responsibility at our evidence session with Defra and FCO Ministers, but they did not acknowledge it.[23]

CONVENTION ON BIOLOGICAL DIVERSITY

16. The UK signed the UN Convention on Biological Diversity (CBD) at the Rio Earth Summit in 1992. The CBD comprised a comprehensive list of actions that parties must take to protect species and ecosystems. CBD signatories are committed to developing strategies for the conservation and sustainable use of biological diversity. The CBD is an evolving process. In 2010, the 10th Conference of Parties to the CBD agreed the Nagoya Protocol, which sets out a transparent legal framework on sharing genetic resources. CBD engagement in the UKOTs would provide an overarching framework under which to address the threats to biodiversity identified in Part 3 of this Report.

17. The UKOTs have no international legal personality or treaty-making capacity. The UK concludes treaties on the UKOTs' behalf and is ultimately responsible if a UKOT violates a treaty obligation.[24] British Overseas Territories Law states:

We asked Defra and FCO Ministers and officials whether, when the UK signed the CBD in 1992, it also signed on behalf of all the UKOTs.[26] We asked that question four times, but we did not receive a clear answer. The FCO later explained how the UK extends international treaties to individual UKOTs at their request by extending ratification under Article 29 of the 1969 Vienna Convention on the Law of Treaties.[27] Ratification is a subsequent and separate process after a treaty is signed. When the UK signed the CBD in 1992, it signed on behalf of all the UKOTs.

18. When the UK ratified the CBD in 1994, ratification was extended to three UKOTs under the Vienna Convention procedure, namely British Virgin Islands, Cayman Islands and St Helena, Ascension and Tristan da Cunha. Five years later, the 1999 Overseas Territories White Paper stated that "the Convention on Biological Diversity has already been extended to the British Virgin Islands, the Cayman Islands, Gibraltar and St Helena (and other Overseas Territories are preparing to join)."[28] In 2013, the then Defra Parliamentary Under-Secretary of State, Richard Benyon MP, told us that "the CBD is extended to four Overseas Territories: the British Virgin Islands, Gibraltar, St Helena and the Cayman Islands."[29] In 14 years, no UKOT completed the necessary preparations to join the CBD. Parties to the CBD include Saint Kitts and Nevis, the Marshall Islands and Vanuatu—small island nations with limited resources which are not unlike many UKOTs.[30]

19. The UK must fulfil its core environmental obligations to the UN under the CBD in order to maintain its international reputation as an environmentally responsible nation state. The FCO must agree a timetable to extend ratification of the CBD with all inhabited UKOTs where this has not yet taken place. That may entail preparations in the UKOTs, which must be clearly timetabled. The FCO must immediately extend ratification of the CBD to all uninhabited UKOTs.

20. The UK submitted its Fourth National Report to the United Nations Convention on Biological Diversity in May 2009.[31] This 136-page report addressed biodiversity in the UKOTs in four-and-a-half pages, despite the UKOTs containing 90% of the biodiversity for which the UK is responsible.[32] Under the heading 'Statements from UK Crown Dependencies and Overseas Territories', the report covered St Helena and Bermuda. The entry covering St Helena referred to neither Ascension nor Tristan da Cunha, to which the CBD has been extended. The report on Bermuda was puzzling, because CBD ratification has not been extended to Bermuda.

21. The four UKOTs to which the CBD has been extended have not been effectively included in UK biodiversity reporting. Compliance with the stipulations of the CBD is ultimately a UK responsibility. The UK Fifth National Report to the CBD, which must be submitted by 31 May 2014, must include comprehensive entries on biodiversity protection in those UKOTs to which the CBD has been extended—British Virgin Islands, Cayman Islands, Gibraltar and St Helena, Ascension and Tristan da Cunha.

AARHUS CONVENTION

22. The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is commonly known as the Aarhus Convention.[33] It grants the public the right to access information on governmental decision-making in relation to the environment. The FCO Minister stated:

The extension of the Aarhus Convention would address some of the weaknesses that we identified in planning and development control in the UKOTs (see paragraph 35).

23. We discussed the application of the Aarhus Convention to the UKOTs with Defra officials, who told us:

They were wrong. Any state may ratify the convention regardless of its geographical location, which several non-European states have done.[36] The FCO tried a different tack in a subsequent written submission to our inquiry:

24. We heard that the FCO may have inadvertently extended ratification of the Aarhus Convention to all the UKOTs by failing to list the UKOTs to which the Aarhus Convention would not apply in its instrument of ratification.[38] The UNECE website states that ratification of the Aarhus Convention was extended to, for example, Cayman Islands on 23 February 2005, the date when the Aarhus Convention was ratified by the UK.[39] The UNECE website also indicates that, for example, Denmark did not extend ratification of the Aarhus Convention to Greenland, because it explicitly excluded Greenland from the provisions of the Aarhus Convention in its instrument of ratification. The FCO told us:

It is our view that the [UNECE] electronic map does not clearly indicate that the UK's OTs are excluded from the UK's ratification of the Aarhus Convention. This is an issue that we will raise with the UN publisher responsible.

In light of the analysis of the ratification procedure submitted by the UK Overseas Territories Conservation Forum, it seems unlikely that that was a publishing error.

25. The FCO must immediately contact the UNECE to ascertain whether the UNECE believes that the UK has extended ratification of the Aarhus Convention to all the UKOTs. We recommend that the FCO reviews its standard procedure for excluding the UKOTs from the stipulations of international treaties under Article 29 of the Vienna Convention and consider introducing a more transparent procedure.[40] In light of the FCO Minister's commitment to enhanced transparency and the inadequacy of the planning regimes in many UKOTs (see paragraph 16), the FCO must agree with UKOTs Governments a timetable to extend ratification of the Aarhus Convention.

Environment Charters

26. Environment Charters were a key development following the 1999 White Paper. They consisted of a high-level agreement between individual UKOTs Governments and the UK Government setting out their shared environmental responsibilities.[41] The current UK Government has distanced itself from Environment Charters.[42] In 2012, for example, the Bermuda Ombudsman stated that the requirement to conduct environmental impact assessments in Bermuda's Environment Charter was binding. Having clarified the situation with the UK Government, the Bermuda Minister of the Environment, Planning and Infrastructure subsequently stated:

The 2012 White Paper claimed to build on the achievements of the 1999 White Paper, but it contained no references to Environment Charters.[44]

27. Environment Charters were a useful development from the 1999 White Paper. A clear statement of the nature and extent of shared environmental responsibilities between the UK Government and each UKOTs Government would clarify many of the issues around CBD engagement and compliance (see paragraph 16). In addition, compliance with the terms of an Environment Charter could be linked to environmental funding, which would provide the UK Government with a mechanism to drive environmental protection in the UKOTs. Defra must restate its commitment to Environment Charters and use them to deliver its CBD commitments in the UKOTs. Darwin Plus funding (see paragraph 39) should be linked to compliance with the terms of Environment Charters.

10 British Nationality Act 1981, schedule 6 Back

11 Ian Hendry and Susan Dickson, British Overseas Territories Law, 2011, p 12 Back

12 Q 124 Back

13 The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (SI 2009/701) Back

14 "G8 2013: Concrete action agreed on tax transparency", HM Treasury news story, 17 June 2013 Back

15 Sustainability reporting involves organisations publishing information about their impact on the environment and society. The Companies Act 2006 requires quoted companies to report annually on "environmental matters (including the impact of the company's business on the environment)". The Companies Act 2006 (Strategic Report and Directors' Report) Regulations 2013 make reporting on greenhouse gas emissions mandatory for all companies listed on the main market of the London Stock Exchange. Back

16 Foreign and Commonwealth Office, The Overseas Territories: Security, Success and Sustainability, CM 8374, June 2012, p 7 Back

17 BioDiplomacy (OTS 40) para 9 Back

18 Foreign and Commonwealth Office, The Overseas Territories: Security, Success and Sustainability, CM 8374, June 2012, p 8 Back

19 Ibid., pp 6-7 Back

20 W & R Chambers, Chambers English Dictionary, 7th edition (London 1992), p 1442 Back

21 Q 93 Back