Environmental Audit CommitteeFurther written evidence submitted by the UK Overseas Territories Conservation Forum
Introduction
This document supplements the original written submission from the UK Overseas Territories Conservation Forum (UKOTCF) in November 2012, the oral evidence given to the Committee on 17th April 2013, and the supplementary written evidence of June 2013. It updates some earlier material and arises also from points in the written evidence recently made available by the Committee and the oral evidence session on 9th July.
To minimise confusion in cross-referencing, we label the sections by letters following on from those used in our earlier written evidence. The sections in this supplement address:
(Letter Q is omitted to avoid confusion with references to questions and answers in oral evidence.)
R. HMG’s shared responsibility for environmental conservation in UK Overseas Territories Environment Charters.
S. Problems in HMG governance in respect of UK Overseas Territories (continued from Section K)
T. Gibraltar fisheries and marine conservation (continued from Section L)
U Final remarks.
If the Committee requires further clarification, then we would of course be happy to.
R. HMG’s shared responsibility for environmental conservation in UK Overseas Territories
R1. UKOTCF is concerned that the written evidence from some UKOT Governors, which appeared on the Parliament web-site in July, seemed to ignore HMG’s responsibilities for UKOTs in respect of international multilateral environmental agreements (MEAs) and in some aspects of good governance generally. Whilst there is limited recognition of HMG’s shared responsibility in respect of Gibraltar by virtue of the latter’s inclusion in the EU, the shared responsibility for all the UKOTs under various MEAs is omitted. (However, the Gibraltar Governor’s submission implied that, because fisheries came under environmental legislation, they were not the Governor’s responsibility.) Noting that the evidence submitted by most Governors seemed to be based on a common template (from which they varied in different degrees), one presumes that this omission of mention of HMG’s shared responsibilities reflects a view of HMG. This was reinforced by the Committee’s questioning at the oral session on 9th July 2013. At this, Ministers and officials seemed to want to play down HMG’s shared responsibilities in this area but were at a loss as to how to find a justification of this change of position in the face of the points made on the basis of law and HMG’s international commitments.
R2. UKOTCF has previously noted the greater readiness of HMG to engage with the UKOT Governments in respect of its shared responsibilities for financial regulation, by distinct contrast with its shared responsibilities for environmental protection. In particular, UKOTCF noted the clarity with which this came through in the oral session with Ministers, who made clear their lack of engagement with environmental issues, especially compared with financial ones. This is despite both the fine words in the 2012 White Paper, and the conclusions in the detailed analyses by the Bermuda Ombudsman that the Environment Charters signed between HMG and UKOT Governments are of the same standing as the anti-money-laundering agreements. (It is notable also that, whilst the Environment Charters remain easily accessible on UKOTCF’s web-site (www.ukotcf.org), they are not available on HMG’s new minimalist web-site although they can be accessed by the determined on the old, rather better FCO website, archived by the National Archives website.)
R3. We recommend that the Committee reinforce the conclusion that HMG shares with UKOT governments the responsibility for environmental protection in the UKOTs.
R4. UKOTCF presumes that the failure to mention the Environment Charters in the Governors’ evidence (the only exception is where the Bermuda Governor refers to the work of the independent Bermuda Ombudsman) and their playing down by Ministers in the oral section results from a deliberate effort to downplay the importance of the Charters and also the commitments by both HMG and the territories , embodied in paragraph 11 of the Charters, to “Abide by the principles set out in the Rio Declaration on Environment and Development and work towards meeting International Development Targets on the environment”. The authority of the Charters derives from the texts not being determined unilaterally by HMG but being the result of careful negotiations with each of the territories. The format of the Charters thus recognizes the shared but differentiated responsibilities in respect of the environment of both HMG and the governments of the territories. UKOTCF is pleased, however, to note that the Joint Communiqué of the December 2012 Joint Ministerial Council (JMC), to which HMG referred in oral evidence, did reconfirm the commitment to the Environment Charters, and agreed to work together on the priority action “to continue to implement Environment Charters, and to work towards the full implementation of Multilateral Environmental Agreements where these have been extended to the Territories”.
R5. We note that the HMG evidence on 9th July, as well as reiterating the commitment to the Environment Charters, mentioned carrying some matters forward through its “mainstreaming”1 exercise. UKOTCF welcomes progress here. It notes that mainstreaming is effectively provided for in the Charters through the commitment to “Ensure that environmental considerations are integrated within social and economic planning processes.” Furthermore, the cross-sectoral development of strategies to implement the Charters that UKOTCF facilitated in several territories included all the elements of the current mainstreaming and some additional ones. The UKOTCF-facilitated exercises were designed as open processes, and the current “mainstreaming” exercises might benefit from a more transparent approach.
R6. UKOTCF is concerned that the positive commitments and shared responsibilities, under international commitments, for conservation underlined in the Environment Charters, to which Ministers indicated they remain committed and wish to treat as priorities, appear to be undermined by other Ministerial comments within a couple of weeks of giving evidence to the Committee (Written Answers 18 July 2013):
Matthew Offord (Hendon, Conservative): To ask the Secretary of State for Environment, Food and Rural Affairs what steps his Department is taking to ensure that all Overseas Territories entrench the Convention on the Conservation of Migratory Species of Wild Animals into their respective legislation.
Richard Benyon (Parliamentary Under Secretary of State (Natural Environment and Fisheries), Environment, Food and Rural Affairs; Newbury, Conservative): UK practice is that treaties are only extended to Overseas Territories if the territories request extension. Environment is an issue devolved to Territory Governments and it is for each Overseas Territory to decide how to deliver any obligations arising from Multilateral Environmental Agreements that have been extended to it.
If an Overseas Territory considers the Convention on Migratory Species to be of relevance, we will work with that Territory to extend the Convention to it.
Matthew Offord (Hendon, Conservative): To ask the Secretary of State for Environment, Food and Rural Affairs what steps his Department takes if a UK Overseas Territory is in contravention of the Convention on the Conservation of Migratory Species of Wild Animals.
Richard Benyon (Parliamentary Under Secretary of State (Natural Environment and Fisheries), Environment, Food and Rural Affairs; Newbury, Conservative): Environment is an issue devolved to Territory Governments. Where the Convention on the Conservation of Migratory Species of Wild Animals has been extended to a UK Overseas Territory it is the responsibility of that Territory to decide how to deliver any obligations arising from it. If requested we will work with the Territories to which the Convention has been extended to help them meet their obligations.
R7. This seems to be an abnegation of responsibility, in the same ways as were previously criticised by the Environmental Audit Committee and the Foreign Affairs Committee in their 2008 Inquiries, as well as HMG’s international commitments. Indeed, several of the HMG responses to the Committee in the 9th July session seemed to be aimed at separating responsibility for the environment (delegated to UKOT governments) from responsibility for international treaties (HMG). This ignores the fundamental point that environmental responsibilities bear on both HMG and the territories. Indeed, it was to address this reality that HMG developed the Environment Charters. The attempt flies in the face also of British Overseas Territories Law (Hendry & Dickson, 2011), quoted by Dr Offord in the 9th July session—which makes clear that HMG “is responsible for compliance by the Overseas Territories with obligations arising under international law, whether deriving from customary, international law or from applicable treaties.” On 9 July, Mr Benyon accepted that point in respect of CITES, and also in Dr Offord’s example of water pollution; so it is of concern—and puzzling—that he rejected it in respect of the Convention on the Conservation of Migratory Species barely a week later in Parliamentary Answers on 18th July. (The information at paras G1-G5 and oral evidence Q57-Q60 on 17th April are also relevant here.)
R8. Even if HMG accepts its shared responsibility to environmental conservation in the UKOTs (to which UKOTCF believes HMG has committed itself under international agreements and the Environment Charters), the enthusiasm of officials and the extent to which UK government departments are prepared to initiate an active dialogue over how they can help—see all the UK commitments under the Charters—will have a great bearing on how well HMG and the territories can together realise the vision of “the natural environment managed to the highest international standards.” We have already mentioned UKOTCF’s work in facilitating complete sign up by UKOTs and Crown Dependencies to the Ramsar Convention on Wetlands, and HMG’s general support for this. Now, HMG’s approach has clearly moved from proactive to reactive, with DEFRA noting that, if a territory asked, HMG would help. The recent record is that help is given reluctantly. Last year, the Isle of Man finally managed to get itself added to UK’s ratification of the Convention on Biological Diversity, 18 months after it formally requested HMG to do this at a time when the Isle had met all requirements. This was achieved almost totally due to the commitment and persistence of Isle of Man environmental officials, rather than enthusiastic support from HMG (see para B7 of our earlier evidence). No other UKOT or Crown Dependency has managed this since the inclusion of several territories by UK at the time of original ratification some 20 years ago. As we have indicated earlier, UKOTCF recommends that HMG move without delay to add the uninhabited UKOTs to its ratification of the Convention on Biological Diversity, and encourage the remaining inhabited territories to join also.
R9. UKOTCF welcomes the fact that, since the July session and after several years of waiting, the Government of Anguilla has asked HMG to add Anguilla to UK’s ratification of the Convention on International Trade in Endangered Species (CITES). UKOTCF trusts that HMG will progress this speedily. We hope also that the last remaining UKOT not included in CITES, the Turks and Caicos Islands, is also added soon, especially as TCI has much of the domestic legislation in place. Only one UKOT, Anguilla, remains out of the UK’s ratification of the Convention on Migratory Species, and we encourage its joining.
R10. Discussions at the Committee’s session on 9th July included consideration of the UN’s Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, when HMG indicated that this Convention applies only within Europe. The treaty itself (at depository’s web-site:
http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf) makes clear that states within Europe have the right to join but others may join with the approval of a Meeting of the Parties. Some non-European states have already done so. The Meetings of the Parties have indicated that other parties are welcome.
R11. However, a further point has emerged. It is normal, in signing or ratifying a treaty, for a nation-state which has separate territories within its sovereignty to indicate either which territories are included or which are excluded. Indeed, Article 29 of the 1969 Vienna Convention on the Law of Treaties (to which the UK is a Party) provides that “unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.” In a “Memorandum on Application” the FCO, on its web-site (http://webarchive.nationalarchives.gov.uk/20130104161243/http://www.fco.gov.uk/en/publications-and-documents/treaties/uk-overseas-territories/memorandum-application), explains that, the term “entire territory” includes the UK Overseas Territories unless expressly excluded by a declaration upon ratification. HMG has certainly done that for other treaties.
R12. However, UK did not qualify its ratification of the Aarhus Convention (except for a declaration about the meaning of Article 1 and the preamble). No geographical declaration was made at the time of ratification or later (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-13&chapter=27&lang=en#EndDec).
In the case of their ratifications: Denmark excluded Faeroes and Greenland;
Netherlands limited coverage to its European Territory; and
France excluded three of its Territoires Outre-Mer, but not the other TOMs or any Departments Outre-Mer.
The Aarhus Convention does not require explicit extension, and is consequently applicable to all UK Overseas Territories and Crown Dependencies by virtue of its ratification by the UK on 23 February 2005, which made no geographical reservation.
R13. Therefore, the Aarhus Convention applies to all UKOTs and Crown Dependencies. This is also the view of the Depository; the UN considers that the UKOTs are within the Aarhus Convention (see, for example, the map of included areas: http://www.unece.org/fileadmin/DAM/env/pp/AarhusMap.html. This has a category of “Overseas territories excluded by countries’ declarations”, including for example Greenland. In contrast, the UKOTs are included in the Convention, as exemplified by the Falkland Islands, the only one of them physically large enough to show on this small-scale world map. The dates of signing and ratification are confirmed as those of UK.)
R14. This means that the Minister may have inadvertently misled the Committee, and the House when answering Dr Offord’s question (2 July 2013: Column 591W):
Dr Offord: To ask the Secretary of State for Foreign and Commonwealth Affairs which British Overseas Territories have ratified the Aarhus Convention to Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. [162338]
Mark Simmonds: The UK’s ratification of the Convention, which was deposited with the UN on 23 February 2005, does not currently extend to any of the UK Overseas Territories.
R15. It seems that HMG may have overlooked consulting the UKOTs when it, possibly inadvertently, included them in its ratification of the Aarhus Convention.
R16. In this context especially, it is unfortunate that HMG has given no practical support to assist any UKOT to implement freedom of information provisions—as admitted by the Minister, with commendable openness, on 9th July. We welcome the comment by the FCO Director of Overseas Territories that this freedom of information measure could be promoted more actively.
R17. The Committee might like to recommend that HMG take positive steps to encourage and assist UKOTs to implement freedom of information measures—not just because it would minimise the effects of the rather confusing situation that HMG has got itself into with the UN and the UKOTs—but because (as acknowledged by Mr Simmonds) it would be the responsible thing to do in terms of both UK’s international obligations and to meet its commitments under the Environment Charter agreements signed between HMG and the UKOTs. A keen interest in Freedom of Information has been expressed in several territories, notably in the recent Legislative Council Elections in St Helena (see paras S18-S19 below)
R18. UKOTCF finds it difficult to reconcile the priority that the White Paper and HMG’s evidence to your Committee claim to give to environmental conservation with the lack of effective action and the side-lining—or even omission—of UKOTs in their policies. By agreement between Government Departments and in public statements, DEFRA leads for HMG on biodiversity of UKOTs. As repeated by Ministers to the Committee, it is generally accepted that over 90% of the global biodiversity for which UK is responsible is found in (and depends on) the UKOTs, rather than on Great Britain & Northern Ireland. Yet, UKOTs are not mentioned once in DEFRA’s business plan. The Minister noted in evidence that the business plan is an over-arching strategic document. It remains remarkable that such a document should make no mention of any commitment to support 90% of the global biodiversity for which UK is responsible—a key role in terms of UK’s international reputation at the forefront of environmental biological sciences and conservation.
R19. In addressing this point and Dr Offord’s question as to where to find DEFRA’s objectives for the UKOTs, Mr Benyon referred to the Natural Environment White Paper (June 2011). However, this includes only one mention of the UKOTs. The paragraph, in its entirety, says:
5.11 We will also continue to give priority to the UK Overseas Territories (OTs) Biodiversity Strategy, through a co-ordinated approach across government that is led by the National Security Council. The Government will continue its engagement with the OTs in their efforts to conserve their biodiversity through programmes such as the Flagship Species Fund and one-off initiatives such as the £200,000 contribution towards a project to eradicate rodents on Henderson Island in the Pitcairn Group. Moreover, the Darwin Initiative is also making a significant difference to wildlife in our OTs. An additional £1.5 million has already been invested in Darwin projects in the three years from 2010, and this sum will increase further as a result of the new Darwin funding referred to above.
At the time, UKOTCF wrote to the Secretary of State at DEFRA to seek clarity as to the respective roles in relation to UKOTs biodiversity of the National Security Council, DEFRA, FCO and other departments. The response by Mr Benyon suggested that we had “misunderstood” the wording “led by” with the reference to the National Security Council. This was a little odd, as our letter had asked the question about this, rather than made a statement about it
R20. In the same letter, the Minister responded to our query regarding the National Ecosystems Assessment (2011) raised in this DEFRA White Paper but which did not appear to address the UKOTs and about which we sought clarification and offered possible collaboration. Furthermore, none of the many distinguished participants listed as involved in producing this (expert panel members, user group, client group) include UKOT bodies or those with direct experience of UKOTs. We were referred to a 2007 document produced by JNCC (Valuing the Environment in Small Islands—An Environmental Economics Toolkit (2007) van Beukering, P., Brander, L., Tompkins, E. and McKenzie, E.) which, although of some relevance, did not relate to the new initiative.
R21. Similarly indicative of the de facto low priority HMG assigns to this area is the fact that the one DEFRA post which has UKOTs as about one-third of its responsibilities has only just been filled, after half a year vacant. UKOTCF looks would be delighted to work with that officer, but notes that she faces a formidable challenge working in the context of such a lack of enthusiasm and continuity. We note that when the EAC decided to learn something on the ground about the UKOTs, it felt constrained to make a visit to only one territory and by just two members of the committee. That means, however, that the committee has more recent experience of the UKOTs than do DEFRA ministers or officials. There are good stories to be told about biodiversity in the UKOTs, many with part-funding from HMG. However, when the then DEFRA Secretary of State spoke at a meeting of the CBD of HMG’s support for the rat eradication programme on Henderson Island, she identified the island only as being in “the Pacific”, with no mention that the Henderson Island World Heritage Site is part of the Pitcairn Islands, a UKOT. It is as if ministers are afraid of acknowledging internationally that that there are Overseas Territories that are happy to be British.
R22. NGOs in Britain and the UKOTs, and others in the UKOTs, find it surprising that there is not at least one full-time post in DEFRA dedicated to UKOTs biodiversity (over 90% of the global biodiversity for which HMG is responsible)—and other NGOs have called for more. DEFRA’s suggestion, during the 9 July session, that the occupant of a post in DEFRA dedicated to lead on the UKOTs might have not enough to do (“be left twiddling their thumbs”) has no basis in past experience. UKOTCF is concerned that DEFRA senior management responsible for this area could so badly underestimate the capacity needed, and the essential nature of a lead person at an appropriately senior level. Even the previous holder of the part-time UKOT post in DEFRA repeatedly noted that he did not have the time to meet all requests, and the notorious one-stop shop for UKOT environmental enquiries to HMG set up by DEFRA in 2009 never actually functioned (see also Q69 in oral evidence 17th April). The confusion over lines of communication on environmental matters between UKOT governments and HMG was evident from the HMG’s evidence on 9th July. UKOTCF does concur with Mr Simmonds’ stressing of the importance of UKOTs exchanging expertise between each other and co-operating on initiatives. This is a cost-effective approach that UKOTCF pioneered and developed, with some FCO support—which has unfortunately been discontinued.
R23. For comparison in relation to personnel levels, UKOTCF itself (a small charity, rather than a fully resourced government department) has working on UKOT environment issues: one half-time paid person, two full-time unpaid volunteers (including one who, when he left UK Government service some years ago, was at about the current grade of a current DEFRA Deputy Director) and at least another 2.5 full-time equivalent unpaid skilled volunteers. This total of 5 FT-equivalents does not include the personnel employed by UKOTCF’s member and associate organisations in Britain (which would probably about double the number of FT-equivalents to at least 10), nor those in our member and associates organisations in the territories. Our colleagues in RSPB have already indicated that that they have 3 dedicated UKOT staff, and can call on the time of others. Even with all these personnel resources, the NGOs also cannot cope with all the reasonable requests from UKOT NGOs and government departments on environmental matters centred on biodiversity. If the reason for the lack of a full-time UKOT post in DEFRA is really the risk of the incumbent twiddling their thumbs, we invite DEFRA to grant UKOTCF the equivalent funds to two-thirds of a Principal-level post; we guarantee that our personnel funded by that grant will be kept busy and will achieve real conservation progress.
R24. The real reason for DEFRA’s failure in this area appears to be lack of interest, of focus and of willingness to work with relevant partners. (Q71–72 of oral evidence 17th April also refer.) UKOTCF has met the current DEFRA Deputy Director, International Biodiversity, Ecosystems and Evidence only once, on 10 September 2012, shortly after he took up post. UKOTCF had been invited by a DEFRA officer to a meeting to discuss a specific issue, and this was later combined with an introduction to the new Deputy Director. Unfortunately, DEFRA had forgotten both that they had called the meeting and its purpose. This became apparent only when the Deputy Director started the meeting by asking what UKOTCF had called the meeting for. This was despite the fact that, when UKOTCF had noted a few days before that DEFRA had invited also FCO to attend (even though the original subject was purely a DEFRA matter), UKOTCF had enquired whether there had been a change to the agenda, DEFRA had replied in the negative. As a consequence of this confusion, the meeting did not go well. Recognising that all sorts of problems could have resulted in DEFRA’s error, UKOTCF’s Chairman wrote in friendly style to the Deputy Director on 11 September 2012, suggesting that it might be helpful to start again. No reply has yet been received, 11 months later.
R25. On a point of detail, one point of DEFRA’s evidence on 9th July, noted that two members of JNCC staff were on secondment to UKOTs. We understand that the arrangement is that one JNCC staff member is on secondment to St Helena for two years, and that the consequent gap in JNCC’s staffing is being partly filled by a secondment of nine months from Bermuda to JNCC (as correctly noted by Mr Benyon). In relation to Mr Benyon’s comment that JNCC does not develop policy, it is difficult to reconcile this with the fact that junior staff at JNCC prepared the DEFRA/FCO/DFID document United Kingdom Overseas Territories Biodiversity Strategy. Furthermore, it would seem that DEFRA has instructed JNCC to review and revise that document, with both NGOs and UKOT governments expressing concern during the one consultative meeting (in March 2013) at JNCC’s failure to involve them and at the lack of transparency of the process.
R26. UKOTCF notes that a substantive answer to Dr Offord’s question “in regard to Defra what assessment of environmental sustainability has the Department made of the Overseas Territories?” was not provided (unless DEFRA has since written to the Committee on that point). (Paras E6 onward of our earlier evidence are also relevant.)
R27. UKOTCF notes that, in his comments following this question, the Minister referred to the new Darwin Plus initiative. UKOTCF has noted previously (paras C12-C17; N1-N3; oral evidence 17th April Q77) its major concern at all HMG grant support for UKOTs being pulled together under the Darwin Initiative. Whilst the Darwin Initiative has provided some excellent approaches for grants for work in foreign countries (where HMG has no responsibility other than as a good world player), it is not an appropriate model for UKOTs, where HMG has a shared responsibility. The Darwin Initiative decisions are not linked to strategy and are reactive, rather than living in a framework of shared priorities. UKOTCF has attempted to raise these points with HMG on several occasions but Departments have not been prepared to engage. Our concern is that Whitehall departments appear to regard devolving to an independent scientific committee such funding as they are prepared to provide for projects in the territories as the primary way in which they need to support good management of the natural environment in the territories. As the list of UK commitments in the Environment Charters show, that is far from being the case. Many of the issues we have highlighted in our earlier submission and in Section S (below) show that the obstacles to good environmental governance often have to do with defects in formulating or implementing policies. These need to be addressed in ways that cannot fit within the Darwin Plus straitjacket.
R28. The Committee might like to recommend changes in policy, practice and attitudes and a restructuring of resources and staffing, so that protecting the overseas 90% of the UK’s global biodiversity can addressed effectively by DEFRA, DFID, FCO and other government departments, as well as by support via NGOs.
S. Problems in HMG governance in respect of UK Overseas Territories (continued from Section K)
S1. In its session on 9th July 2013, Committee members noted that the Cayman Governor’s concerns over some aspects of the locally elected chief minister had been reported to FCO for some years before action was taken. UKOTCF is aware of a similar situation in the Turks & Caicos Islands, where the then Governor expressed similar concerns from shortly after his appointment in 2005 and for about two years, before the House of Commons Foreign Affairs Committee itself came across the problems in 2007–8. In evidence before that Committee in 2008, FCO indicated that there was not enough evidence for an investigation. It is difficult to understand how such a fundamental breakdown in communications at a senior level in FCO could have happened, and UKOTCF hopes that no similar situation would occur under the present or any future Director.
S2. The Committee may want to recommend that better monitoring be undertaken by HMG of the performance of UKOT Governments, so that gentle and light assistance can be arranged, rather than the late, crisis interventions of the past. However, it is difficult to see how this can be achieved within a system where many Governors are career members of the Diplomatic service and in carrying out their duties are often acting on instructions from departments in London; and have their own careers to protect by not causing waves. Perhaps the Committee will conclude from the fact that, in addition to their Inquiries important findings relating to environment, so many issues unearthed are not purely to do with environmental or sustainability issues that they need to recommend that the Foreign Affairs Committee conducts a wider-ranging Inquiry into the Overseas Territories and the Crown Dependencies, but one which also takes evidence from all government departments and agencies that have any significant engagement with the UKOTs and CDs. That should include several which have not been called on to give evidence to this inquiry, notably Treasury, Justice, MOD, Department of Transport, DCMS, the National Audit Office (NAO) and the Independent Commission for Aid Impact (ICAI)
TURKS AND CAICOS ISLANDS
S3. UKOTCF notes that the written evidence to this Inquiry from the Governor of the Turks & Caicos Islands indicates that “the environment is not one of the reserved areas for the Governor; it is the responsibility of the Turks and Caicos Islands Government (TCIG). My role, therefore, is to work to ensure that the Constitution, law and proper process are followed. As Chair of the Cabinet I would also be part of any collective Cabinet discussions on issues of the environment and development. It is the Governor’s responsibility to approve development agreements on the advice of the Cabinet.” Whilst this was correct (subject to the general point about HMG’s shared responsibility for environmental matters, as noted at paragraphs R1-R8 above) at the moment it was written in April 2013, it is somewhat misleading. In fact, it had been correct for only about five months. For the preceding year of his appointment (and all of his predecessor’s term), this was not the case, as under that period of direct HMG rule, the Governor was the Government of TCI.
S4. The Governor’s own evidence quotes the joint response of the Ministry of the Environment and Home Affairs and the Department of the Environment and Maritime Affairs in citing the direct HMG rule administration as setting a bad example:
“ “In the recent election, candidates did not set the environment as a priority. This may be as a result of the situation during the period of the Interim Administration [where the focus was on solving financial and political emergencies rather than the environment.] However, within the relevant departments in TCIG (DEMA, Department of Agriculture, Environmental Health) I believe there is high priority and even passionate consideration for the environment and sustainable development. However, the political will at the moment is focused on economic considerations. Unfortunately, this current attitude fails to recognize that the entire TCI economy is based on the maintaining a baseline of environmental integrity.” “
S5. The TCI Governor goes on to report that:
“There are no examples of where developments or projects proceeded which would have damaged the environment under the Interim Administration, and none so far under the elected Government. The Interim Administration worked to ensure that environmental issues were fully taken into account.” In view of the evidence already submitted by UKOTCF (paras B8; G6-G7; K12-K47; and below at S7-S12), we are surprised at this comment, not least because it was the Governor who unilaterally cancelled the Conservation Fund, raised from a tax on tourists. Unlike the establishment of the fund, this was done without consultation with the Governor’s environmental officials or the public and was not widely announced. Several of the commercial enterprises responsible for collecting the tax were unaware, even as recently as June 2013, of its cancellation (and of the funds being put directly into the general budget). This action by the Governor removed what HMG had previously insisted that TCI initiate (in return for grants on related matters) and had considered would be the major funding source for TCI environmental work. We note the parallels with the point made by Dr Offord in relation to Cayman’s environmental tax. In the case of TCI, actions by the Governor during the period of his direct rule have removed a long-term sustainable form of funding for environmental conservation. UKOTCF notes also that the Governor agrees that long-awaited environmental legislation has been delayed during this period.
S6. On a point of detail, we should note that Mr Simmonds’ statement (in response to Dr Offord’s point noted above) about the French model needs amendment. He was actually referring to the model of the departments outré-mer, rather than the territoires outré-mer; the status of the latter is closer to (but not identical with) those of UKOTs.
S7. Paras K18-K28 of UKOTCF’s earlier evidence related to the caves near Providenciales Airport which hold important wildlife, including an animal species which has been found nowhere else in the world. UKOTCF personnel visiting TCI in June 2013 obtained further information. At the end of March, a team of experienced volunteer cave divers further explored the caves near the airport, in close collaboration with well qualified personnel from the TCI Department of Environment and Maritime Affairs, DEMA (see para K20). The dive team reported a passage leading off the main chamber of the cave, and leading in a general southerly direction. The dive team followed the passage for a short distance, but were able to ascertain that it reached at least a depth of 45 feet below sea level and was located generally underneath the existing airport and runway. On the basis of this and in particular the depth below surface, DEMA noted that the proposed extension of the airport could take place without endangering the existing cave structure. DEMA recommended that, in order to prevent potential noise impacts to bat populations, the Airport Authority provide DEMA with a schedule of works, in order to facilitate DEMA’s monitoring of construction activities. If at any time indicators of stress to bat populations, such as observation of daytime exiting of the cave, works should be halted and alternative methods of construction implemented. They recommended further that funds be secured to have the wildlife populations quantitatively surveyed by expert consultants. If deemed significant, TCIG should attempt to secure the parcel of land, currently in private hands, by compulsory purchase, to preserve an ecological asset of incomparable value. Those conducting the survey thought it likely that the cavity into which earlier airport works had broken (para K21) was probably part of this system (contrary to the comments by the TCI Airport Authority’s consultant, para K27). UKOTCF noted also that, contrary to the comments by the TCIAA consultant (para K27), the car-park cliff face would be staying as existing, part of this had been cut into to make a new road-ramp. However, it seems that fortuitously no break-through occurred here, even though a further visit by the expert divers in late May 2013 revealed much sediment in the water, possibly the result of vibration by the heavy equipment working overhead to create the new car-park; it is hoped that this will eventually settle without causing serious damage. Conservation (and the reputations of UK and TCI Government) have been lucky in this case. However, this underlines the importance of undertaking proper environmental impact assessments. The Committee might like to recommend that UKOT Governments (whether locally elected or run by HMG) should not exempt themselves from the need for environmental impact assessments and that these should be conducted to exemplary international best-practice standards, as commitments in the Environment Charters require.
S8. UKOTCF paragraphs K29-K32 reported that, for reasons which are not readily understood, late during the period of direct rule, TCI fisheries law was amended to allow the keeping of marine mammals in captivity, thereby enabling the establishment of dolphinaria. We expressed our surprise at this change to the previously existing law which made the keeping of marine mammals illegal, rather than leaving this to an elected Government—and without consultation, in breach of the Environment Charter. UKOTCF has now learnt that, not only was this a personal initiative by the Governor but also he failed to consult DEMA, the only TCI Government Department with responsibility and competence for the fishery laws. The Committee may like to recommend that UKOT Governors (and Ministers) simply keep to the Environment Charters’ Guiding Principles and Commitments in terms of seeking expert advice and consulting openly beforehand on decisions affecting the environment.
S9. As noted above, in his evidence to the Committee, The TCI Governor indicated that his role “is to work to ensure that the Constitution, law and proper process are followed.”
S10. In paragraphs K33-K35, UKOTCF noted the earlier illegal deep dredging in a National Park and adjacent to a Nature Reserve, which caused severe damage to the coral reefs and a commercial conch farm, and severe erosion and destruction of a popular nature trail on a nearby island nature reserve, and that consideration was being given to further deep dredging, despite the partial recovery from the earlier devastation and the fact that dredging is prohibited in a National Park. Several legal and procedural flaws were noted. FCO had responded (para K34) that there had been no encouragement for the dredging application by the Interim Administration or the UK Government; indeed neither has been involved in it in any way.
S11. In common with many responsible persons in TCI, UKOTCF has now learnt that Governor Todd personally asked how to get around the legislation to allow dredging at Leeward, this being within a protected area where such activity is not allowed by law. He also raised the possibility of removing some areas from the protected area or changing the protected area law. Given that these actions were by the Governor personally, there would seem to have been some breakdown in communications between the Governor and FCO. The Committee may wish to recommend that Governors be instructed neither to seek to subvert laws nor to pressure others to collude in doing so, or to reinforce any such instructions already in existence.
S12. UKOTCF is concerned also that the unfortunate example set during the period of direct HMG rule has been followed by the relatively newly elected TCI Government, which in August 2013 announced that it is seeking to promote this and other built developments in statutorily protected areas, by changing the law to allow dredging through protected areas, and by excluding areas from the National Parks. (The announcement indicated also a review of protected areas, a rather surprising use of resources, as there have been several such reviews commissioned by TCI Government in recent years, which appear to have been overlooked.) The National Parks Ordinance has survived intact for 20 years and throughout the administration that preceded direct UK rule—and judged as “likely to be corrupt” by the judicial enquiry. The protected areas themselves have also been maintained throughout this period, except for some well publicised examples of illegal damage such as the initial dredging that it is now proposed to repeat and extend. It is shocking that the current threats to these well established laws and protected areas have their roots in decisions taken in disregard of competent technical advice during the period of direct rule by HMG.
ST HELENA
S13. With regard to St Helena, DFID’s evidence on 9th July seems remarkably untroubled that the essential environment mitigation plan had not even started to be put into operation 18 months after the construction of the airport was under way, including changes in design, some with obvious impacts on biodiversity. Best practice is to have such a process in place before construction work commences. (See also our previous evidence at paras K3-K11, and the written evidence of Buglife, which UKOTCF strongly endorses.)
S14. A major problem running through the St Helena Airport exercise seems to have been a serious under-estimate of the novelty and complexity of the operation within a fragile desert, home to uniquely adapted and rare animals and plants. St Helena has never before seen a construction project of this scale or nature. We are not convinced that there are no notable environmental consequences, considering the fact that a major component of the Airport Environmental Management Plan (a legal requirement of the development permission) has not moved forward alongside the evolution of the detailed design and planning stage, as we would have expected. We expect that highest possible standards of environmental management would be required in such an ecologically sensitive and internationally important site. Some questions have been raised as to whether attempts to limit expenditure may have led to an approach giving undue priority to cost-savings, rather than to quality of the work and to avoiding environmental damage. In this context, it is notable that the declared cost of the construction contact, at about £200 million, is significantly less than the £300 million figure used by DFID in its consultation document of 2009. There is no independent inspection/audit outside of the project management or contractor’s teams, and there is the potential for conflict of interest in view of the contractual process put in place by SHG and DFID. Halcrow is appointed as the Engineers for the project which includes the Environmental Monitor. However, they are responsible to their employers whom they advise. They cannot be considered independent. In this situation, it was inevitable that St Helena would look to DFID for guidance, but DFID’s own experience in this type of project appears to be limited. In this context, it is worth noting that DFID’s performance in its previous major programme in a UK Overseas Territories (Montserrat) has recently been subject to serious criticism by the Independent Commission for Aid Impact (ICAI), the independent body established by the present Government to be responsible for scrutinising UK aid. Both DFID and the Committee may well feel that it would be appropriate for this body to study this project also.
S15. It is important to bear in mind that the airport is being built on an area of such global biodiversity importance that the loss of any small area is a major impact. This was why DFID and other parties agreed that the airport’s physical footprint would be as small as possible when conservation bodies responsibly agreed not to oppose the project. Careful planning and timely initiation of construction works, alongside appropriate signage to avoid unnecessary damage to ecologically sensitive sites are all actions required to ensure that the minimum possible footprint is achieved. Unfortunately, corporate memories of governmental bodies seem to have forgotten this. It is not unsurprising that the project has necessitated the introduction of people, within SHG, Halcrow & contractors Basil Read who, at the start of the project, had limited experience of St Helena and the management of its environment. Despite this, there has been a reluctance to involve others who could have contributed more constructively, particularly in the light of the delay in the Landscape & Ecology Mitigation Plan (LEMP) and the fast pace in which the airport project took off from signing to physical works, with design and build working simultaneously. This has clearly had consequences on the quality of the environmental management. Alongside this, the overriding requirements to keep within budget and complete on time may have resulted in acceptance of lower standards of management, leading to the loss of more natural areas and their unique invertebrate species. For example, the initial airport approach road was designed in a way that breached international safety and security rules and had to be re-aligned. However, for no apparent reason, the contractor had already bull-dozed the original route, so that it seems that more important habitat was lost than necessary. Why was it necessary to strip the land area for the initial approach road when the existing road has continued to be used for six months and no further construction works on the road has taken place? Changes to the design to meet the new requirements have required a further re-design of the approach road necessitating more land-take. Has this resulted in more land-take then would have been necessitated with the second design? Were more sensitive alternatives considered and what additional efforts of mitigation were carried out? Despite the on island presence of specialists who could have given assistance, they were not invited to help. Top-soil has been collected and stored and is visually monitored as is the adjacent land, and there were plans to initiate studies on soil substrate for the mole spider, but there was possibly more that could have been achieved had advice been sought. Was it the speed of the works that prevented adequate environmental response, or was it that the resources were inadequate to respond/cope, or was it a lack of environmental priority?
S16. The facts that the Landscape and Ecology Mitigation Plan was not started before the airport construction started, and it is still not in place about half-way through the planned construction process do indicate a lack of priority attached by DFID to this aspect. We are well aware that DFID blames EU tendering procedures for this, but the steps taken as each problem arose appear to have been delayed by lack of resources applied. Whatever the cause, this lack of environmental capacity has had several consequences:
There is limited base-line information against which to measure impact;
There is limited base-line against which to assess the impact of mitigation measures;
The few pre-project trial mitigation exercises have not been followed up, so that these are unassessed also (notably the Wirebird Mitigation Project has had no post-project long-term Wirebird monitoring programme put in place to support the maintenance of the long term benefits of the investment);
There is no capacity for independent environmental assessment of the frequent changes of airport construction design; and
The attempts that the contractors are making to manage their environmental impact, although well-intentioned, would have benefited from the early engagement of local knowledge and experience. Approaching established environmental NGOs to identify where additional assistance could be found would seem a sensible start. In initiating a project in a new country in a novel environment, it seems extraordinary that local knowledgeable people have not been more openly engaged or sought for their experience, even in an informal manner. The approach taken seems to have assumed that all the necessary skills and experience to deliver this project are available in-house or within the Project Management Unit team. When so little is known of the ecology of Prosperous Bay Plain, this is an odd assumption.
It is too late to solve some of these failings but the consequences are that the costs of mitigation for those aspects that can still be mitigated are likely to be higher than would otherwise have been the case. The Committee may wish to recommend that the funding for ecological work and mitigation be ring-fenced despite the late start to this work.
S17. UKOTCF worked with local Governmental and NGO partners in St Helena on the strategy to implement the Environment Charter in 2004–5. At that time, there was good collaborative working between St Helena Government and the St Helena National Trust, together with the latter’s constituent organisations. We are disturbed to discover that DFID, the St Helena Government and the contractors have not sought to involve the Trust and its skilled personnel in designing or implementing environmental work—except in a few cases at the Trust’s instigation when problems have arisen. (There have been occasional exceptions, but these have not been effective. For example, the Airport Project Director did share the Environmental Assessment for an open drain with the Director of the Trust and the RSPB but only within two days of it going before the Governor in Council, thereby necessitating a speedy and limited response without time for adequate research and consultation.) This seems perverse, especially when the project itself lacks the required level of environmental capacity. Such involvement would help address some of the bullet-pointed problems in paragraph S16 above. The Committee may wish to recommend that DFID, St Helena Government and the contractors openly engage St Helena National Trust and its partners at as early a stage as possible in consultations on construction and operational design and in all environmental aspects, and consider resourcing the Trust for the major impact this will have on their work.
S18. The Air Access project, with all its associated impacts on the well-being of Saints in the island and overseas, is far more likely to be successful if the public are trusted with information by departments of both the St Helena and UK Governments. One encouraging move under Governor Andrew Gurr was that ExCo meetings were open to the public (with the right to go into closed session when appropriate); and reports of that day’s Executive Council (ExCo) meetings were read by the Governor on the radio that same evening and then published in the weekly local newspapers. It is a pity that this practice has been discontinued, on the grounds that the public showed little interest in attending. There is, however, encouraging evidence of renewed openness, with many of the newly-elected councillors having made clear in their messages to the electorate that they favoured effective and properly-resourced Freedom of Information legislation. This is shown in a report about a controversial decision (on re-siting the local jail): “As we had said before the election that we would strive for openness and transparency so this part of the ExCo meeting was held in public. About a dozen people attended. Once we had made the decision we then held a public meeting the next evening and around 20 people came.” (Source: http://sthelenademocracy.blogspot.co.uk/ )
S19. There is a wider point, relevant to all territories with a locally elected government. That is that decisions taken on public policy should be recorded in a form that makes clear, rather than obscures, the reasoning behind them. What are sometimes called “Minutes” in a number of territories seldom meet the criteria set out in the following guidelines: “It is essential to record the decision made and where applicable the person who has responsibility for carrying out that decision. The minutes ideally should record the discussion in such a way that a reader can understand the reasoning behind the decision made by that committee and, where alternatives were suggested, why these were regarded as unsuitable by the members. Your recorded notes should focus on points made for and against a proposal or idea and the reasons to support these points. Minutes should be written so that they are complete, and in sufficient detail to enable a person who was not present at the meeting to fully understand what business was transacted.”
(Source: Guidelines on Recording Minutes, South Eastern Education and Library Board; http://www.seelb.org.uk/data_protection/PDFs/Guidance_on_minute_taking.pdf). This is relevant also to paragraphs R10-R17.
TRISTAN DA CUNHA
S20. The 75,300-tonne bulk carrier MS Oliva ran aground and was wrecked on 16th March 2011 at Spinners Point, the far north-west promontory of the uninhabited Nightingale Island, Tristan da Cunha. This and neighbouring islands are amongst the globally most important areas in British territory. The spilling of its fuel and cargo of soya bean resulted in severe damage to wildlife and devastation of the fishery which is the main economic activity at Tristan. The ship was registered in Malta. This was only a few years after a drilling rig under tow had broken loose from its tug, and wrecked on the shore of Tristan da Cunha, with consequent impacts by invasive marine species which it carried.
Questions have repeatedly been asked by many about:
1.
2.
3.
4.
5.
Why did the incident occur?
S21. A Malta Marine Safety Investigation Report (https://mitc.gov.mt/mediacenter/PDFs/1_MV%20OLIVA_Final%20Safety%20Investigation%20Report_Publication%20Copy.pdf) makes clear that the shipwreck disaster was caused by poor procedures, inadequate planning and charting and ignoring of radar signals. The ship’s officers knew they would pass close to some islands on their voyage from South America to Singapore, but not when. They failed to follow their route properly on charts, relying mainly on a satellite navigation system. Just after four in the morning, the ship passed only 3.25 nautical miles from Inaccessible Island—a World Heritage Site that was later polluted by escaped oil. The second mate saw its radar echo but “assumed it was either rain clouds or an iceberg.” Soon after 0500, the chief mate “noticed a large echo on the radar screen, very close ahead. He assumed it was a heavy storm cloud and thereafter, he felt the vessel’s impact of running aground. “The vibration of the vessel running aground and the change in the main engine noise woke up most of the crew, including the master.” The investigation report says the chief mate had been unable to sleep until five hours before he was due on night watch, because of a cold, and had taken medicine. “He required two wake-up calls before he arrived on the bridge to take over his watch. The combination of the cold, medication, lack of sleep, the time of the day and reaction to the ship’s grounding suggested that the chief mate was probably not fit to stand a navigational watch.” The report also says that bridge management systems were not followed. Charts were not marked with a “no go” area around the islands, and a plotting error meant that the ship’s projected route took it straight over the mile-wide Nightingale Island. The ship slid on the sea bottom as conditions worsened and at about 0300 the next day, a rock pierced one of the holds. The engine room flooded and an oil slick appeared. The unnamed Greek captain and the Filippino crew were taken off by a fishing vessel and boats from a cruise ship—and the captains and crews of these have been rightly commended. Nearly 48 hours after the collision, Oliva broke in two in heavy swells, spilling 1,500 tonnes of oil into the sea, and most of its cargo of soya beans.
S22. People on Tristan spent weeks trying to save the lives of rockhopper penguins that were plucked from rocks after the cargo ship broke up in heavy swell. Months after the incident, scientists found rotting soya beans had killed sea creatures and caused severe damage to the lobster fishery that provides islanders with most of their income. Seventeen months after the incident, the Nightingale fishery remained closed and the quota at Inaccessible Island had been halved. In September 2012, the ship’s owners agreed to pay compensation to the islanders.
S23. The Malta Marine Safety Investigation Report’s conclusions and its report of safety actions now taken by the shipping company are:
3. Conclusions
Findings and safety factors are not listed in any order of priority.
3.1 Immediate Safety Factors
3.1.1 Oliva ran aground because the planned course the vessel was following on the plotting sheet was found to have taken the vessel directly over Nightingale Island.
3.1.2 Although the bridge team was aware that the vessel would be passing close to some islands, it was not aware as to when that event would take place.
3.1.3 Although the vessel did not have BA (British Admiralty) Chart 1769, other appropriate available charts covering the area had not been used.
3.1.4 Both the second mate and chief mate were not aware that the vessel was heading towards Nightingale Island. This was because there was no indication on the plotting chart to alert them of the dangers ahead.
3.1.5 Both the second mate and chief mate saw some echoes on the radar screen, but did not investigate them and dismissed them as rain clouds.
3.1.6 There was no suitable mark placed across the ship’s track to indicate the need to change to a hydrographic chart.
3.1.7 Neither officer had consulted BA Chart 4022. Although this chart was of an unsatisfactory scale, it could have prompted them to adopt a precautionary approach when radar echoes were sighted on the radar.
3.1.8 The combination of the cold, the medication, lack of sleep, the time of the day and reaction to the vessel’s grounding suggests that the chief mate was probably not fit to stand a navigational watch.
3.1.9 Although the company had provided comprehensive guidance and procedures in its SMS (Safety Management System) to prevent this accident, these were not followed on board.
3.2 Latent Conditions and other Safety Factors
3.2.1 The passage plan did not comply with the company’s instructions of clearing distances when a vessel was in open waters.
3.2.2 The master made no reference to the passing of Islands in his night orders. Reference to the Islands, could have alerted the second mate and chief mate to the significance of radar echoes.
3.2.3 The handing over checklist required the chief mate to establish the proximity of any hazards to the vessel. This appears not to have happened and he relied on the brief hand-over he received from the second mate.
3.2.4 The chief officer did not check the position which the AB (Able Bodied Seaman) plotted on the chart.
3.3 Other Findings
3.3.1 The company had adopted the concept of bridge team management to address performance variability. However, in this case it appears that the crew members’ interaction was not effective and they did not identify and eliminate the factors that resulted in the grounding.
3.3.2 The lifeboat was lowered soon after daylight as a precautionary measure, but was lost when the painters parted. Had the fishing vessel not been in the near vicinity, given the remoteness of the area, the crew of Oliva would have found themselves in a difficult position without a lifeboat.
3.3.3 Although the master had saved the VDR (Voyage Data Recorder) data, he was unable to retrieve it as he abandoned the vessel.
4. Safety Actions Taken
4.1 Safety actions taken during the course of the safety investigation
TMS Bulkers Ltd has carried out its own internal investigation, which has resulted in a review of its procedures. These include:
instructions on the use of plotting sheets during ocean navigation;
requiring all officers on board to complete computer based training in voyage planning and bridge team management.
TMS Bulkers Ltd. also intends to increase the frequency of internal navigational audits so as to identify any potential problems of a similar nature within its fleet.
What are the prospects for recovery of the fishery?
S24. The Tristan Administrator reported that, by December 2012, there were signs that a limited fishery of lobsters around Nightingale and Inaccessible Islands could resume and that the fish catch was free from contamination and taint. However, it may be some years before the long-term effects on the juvenile lobsters could be assessed. It was concluded that there are still many uncertainties but things do look more positive than in 2011. Tristan will continue to adopt a precautionary approach to the management of the fishery.
Why did so many birds die despite the valiant efforts of the Tristan Islanders?
S25. It took a week for salvage crews to make the 1,700-mile voyage across the South Atlantic to the wreck, while the captain and crew were sheltered in homes. The fishing vessel Edinburgh transported 3,718 penguins to Tristan da Cunha, where 80 islanders worked for three months to clean and feed the birds. Conservation workers arrived from South Africa to help, bringing medicines. A works shed was transformed into a penguin hospital, and recovering birds took over the island’s swimming pool. However, only 12% of those taken to the main island survived to be released into the sea, and the survival of those released is unknown. Dr Ross Wanless of Birdlife South Africa, who called the outcome “an unmitigated disaster”, criticised insurers for delay in sending bird experts to join the clean-up. Cape Town in South Africa, the nearest port to Tristan, is the world’s leading centre for cleaning oiled penguins and has achieved high rates of survival. However, timing is crucial. An expert has commented that the unnecessary deaths of thousands of penguins seems to have been caused by the inability of the SANCCOB (Southern African Foundation for the Conservation of Coastal Birds) team and their equipment to get to the islands, which seems in turn to have been caused by a lack of oil-spill planning by the FCO, a lack of cooperation by the insurer and a failure of leadership by FCO personnel. Another expert commented that FCO chose to shift the blame on the distance between Cape Town and Tristan. However, there has been little change in this distance in recent years, so that should not have affected planning.
Who was responsible?
S26. Although there were many statements by FCO extolling the excellent and caring work of the islanders (with which UKOTCF and all we have heard from agree) and the wonderful cooperation provided by the insurer, remarkably little has been forthcoming about the ship’s officers and owners—and no indications of any legal action despite the incident occurring in UK territory. Enquiries were unanswered, apparently because such information would somehow endanger the delicate legal negotiations. In contrast, there have been extensive and highly detailed revelations about the oiling incident in the Gulf of Mexico and of the wreck of the Costa Concordia in Italy and the conduct of its captain. One correspondent commented that, as far as he could see, this had only helped the claimants in that matter. How is the Oliva incident different? It is difficult to believe that such secrecy could have happened if this wreck had been in Europe. It is difficult to understand the approach of the UK Government. Still, today, we do not know the terms and conditions of the settlement with the insurer. Would this endanger the settlement, which has already been signed and finalised? Do the islanders themselves know what has been negotiated on their behalf?
What lessons have been learnt?
S27. Tristan da Cunha is one of the globally most important parts of UK territory in terms of world biodiversity. It has many endemic species, including 10 unique bird species. Two of its four islands (including one of those impacted by pollutants from the wreck) are World Heritage Sites and Wetlands of International Importance, while the other impacted is proposed for the latter status. In the past few years, Tristan has suffered two major wrecks, an oil-rig which had broken its tow having struck the main island a few years earlier. The risk of damage to this uniquely important area—and to the fragile economy of the territory—from pollution and the introduction of alien invasive species are immense. However, each incident seems to have to generate an improvised response. The responses of the Tristan Islanders and of the fishing and tourist vessels were superb, but where was the infrastructure? Had this been in place, the superb efforts of the Islanders in respect of the penguins might have been rewarded with more success—and other threats could have been addressed promptly.
S28. In the Foreword to the 2012 White Paper the Secretary of State for Foreign and Commonwealth Affairs, said: “ The Coalition Government has a vision for the Territories: of flourishing communities, ... of natural environments protected and managed to the highest international standards. ... the Territories are more vulnerable than the UK. We have a broad responsibility to support them and to ensure their security and good governance. ...We have not in the past devoted enough attention to the vast and pristine environments in the lands and seas of our Territories. We are stewards of these assets for future generations. ... And it doesn’t stop with Government. The strategy aims to support coalitions and partnerships across and between the private sector, professional bodies and civil society in the UK and in the Territories. I particularly welcome the growing partnerships between the Territories and local authorities and with the NGO community on environmental and other issues. ...The White Paper ... focuses on the security of the Territories, their economic development and their natural environment. It looks at how we can foster high standards of governance and build strong communities. It promotes the development of wider partnerships for the Territories. ... We will report regularly on progress and welcome scrutiny from the public and parliaments.” It is difficult to see these commitments in play in this case. Maybe there have been lessons learnt. If so, why has the Government declined to answer the enquiries about them? Is there now a contingency plan and, if so, what is it?
S29. The final subsection of Section S would logically relate to Gibraltar. However, for easier handling of this large text, we separate this as Section T.
T. Gibraltar fisheries and marine conservation (continued from Section L)
Summary
T1. It is all but impossible to consider the issue of illegal fishing without taking account of the political situation. A number of key issues are raised including enforcement of the Nature Protection Act 1991, including: the role of the Royal Gibraltar Police and the Royal Navy; perceptions of the UK Government failing to protect the interests of Gibraltar in order to mollify the Government of Spain; the roles of UK government departments and agencies and their activities both between Departments and within the FCO; considering whether the policies outlined in recent UK Government White Papers are being applied properly with respect to Gibraltar; the situation within the EU, especially with the European Commission, in respect of the Habitats Directive and the Marine Strategy Framework Directive; reflections on Gibraltar’s politico-legal status within the Mediterranean and its absence from environmental mainstream processes; and, related to this, its relationship to UN environmental processes. Some recommendations are made regarding working practises within the UK Government and enhancing external relations within the Mediterranean.
Issues of concern
T2. A number of questions became evident and these are outlined below followed by a discussion around the issues.
1.
(a)
(b)
(c)
(d)
2.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
3.
(a)
(b)
P 14: “Defence and Security: the UK is committed to defend the Territories.”
“International Support: the UK is responsible for the external relations of the Territories and uses its diplomatic resources and influence to promote their interests.”
P 22: “We will continue to maintain an independent ability to defend the Territories—including their territorial waters and airspace—from any external security threats they may face.”
“We will also ensure that the Territories are able to trade, to exploit their natural resources… free from undue external interference.”
“The Royal Navy is tasked with... upholding the sovereignty of British Gibraltar Territorial Waters.”
P 48: “economic activity, including tourism and fisheries is managed in a way that is consistent with the long term sustainable use of the natural environment, including over-exploitation.”
P 88: “Conclusion … We are defending robustly Territories which face external threats.”
(c)
(d)
4.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
5.
(a)
(b)
(c)
(d)
(e)
(f)
6.
(a)
(b)
(c)
(d)
7.
(a)
(b)
THE FISHING DISPUTE
T3. It is apparent that the dispute with Spanish fishermen is at least as much about territorial waters and sovereignty, as it is about fishing. That is notwithstanding the genuine difficulties of local Spanish artisanal fishermen, but that is a socio-economic issue for the Spanish authorities, not those of Gibraltar. Predicated on the existence of BGTW under UNCLOS, and the recognition by the EU of Southern Waters SAC, it is quite clear that the Government of Gibraltar were, and are, entirely within their rights in enforcing the 1991 Nature Protection Act which the previous government had effectively by-passed with the so-called “Joint Understanding”. Indeed, had they not done so, it would have made the law effectively useless and undermined the rule of law and potentially created an ongoing issue with law enforcement in Gibraltar. Indeed citizens of Gibraltar fishing in Gibraltar waters have asked why they have been stopped and arrested under the same legislation when Spanish boats have not. Legislation brings with it consequences for both the legislators and those affected by the legislation; if those are ignored by either, this brings the law into disrepute. There is clearly backing for breaking the law from the Spanish capital as has become ever more apparent from recent statements by Spanish Ministers and actions in recent days concerning the new artificial reef.
THE ROLE OF THE UK GOVERNMENT
T4. During discussions with those representing the UK Government, it has been apparent that—even if not stated overtly—their first thought was not protecting the interests of the citizens of Gibraltar (at least as they saw the issue) but in not upsetting the Spanish Government. Until late in 2012, when statements were made by the UK Prime Minister and Foreign Secretary in support of Gibraltar and the summoning of the Spanish Ambassador following an incursion by a Spanish navy craft, little had been placed in the public domain in defence of Gibraltar by HMG. More robust statements have been made subsequently, following the delays at the border but predicated on not disturbing the good diplomatic relationship with Spain. This does seem to be mostly a one-way relationship, with Spain seemingly having little regard for such a relationship. The UK idea of diplomacy appears to be to back off in any near-conflict situation despite immense provocation both at the border and through the actions of the Guardia Civil.
T5. During the preparation for the marine resources management report, less than thinly veiled hints were received from several quarters that it really would be in the best interests of all concerned if the recommendations in the Report would allow for some sort of fishing by Spanish fishermen. This ranged from “surely a few boats won’t make much difference” to “what about the Spanish boats undertaking some of the monitoring”. The former would have been entirely presumptuous and would have required a prediction on the outcomes of the analysis that, aside from a very preliminary report already provided at very short notice, was far from complete. It would also have been political in nature and would have exceeded the remit. The second “preferred option” would require (a) a knowledge of the monitoring regime which we did not have; (b) a scientific licence to allow any boats to catch fish with nets (otherwise illegal in BGTW under the 1991 Nature Protection Act); and (c) a means of verifying the location and type of any catches which would require monitoring in Spanish ports (most unlikely to be effective) or almost certainly require landings being made and checked in Gibraltar, also more than somewhat problematic. Apparently the FCO, who have made no comment on the Report, either privately or publicly, find it acceptable as it leaves the door open (albeit very narrowly) for some Spanish fishing and (in HMG’s view) for the GoG to back down gracefully.
THE NATURE PROTECTION ACT AND ENFORCEMENT ISSUES
T6. Even if no change to the NPA 1991 was to be the outcome of the recommendations of the final Report following detailed analysis (ie the 1991 Act stays as is), then there would still be a major issue with enforcement. The 1999 so-called “Joint Understanding” was not, and never could be, a formal agreement as (a) it was actually allowing ongoing severe breaches of the legislation specifically put in place to deal with fisheries practices; and was a fudge provided by the then Government of Gibraltar to avoid dealing with a difficult political situation and basically giving into external threats; and (b) since the Spanish government does not recognise the GoG, it could not make any formal agreement with it. This postponement of, rather than tackling, the fisheries issue at the time has probably exacerbated the situation by allowing illegal activities to continue for so long and to be seen to be the norm. Any suggestion of returning to the so-called 1999 “Joint Understanding” would render parts of the 1991 Act (passed it should be noted nem con) null and void and would make the law look ridiculous both in Gibraltar and outside. It should also be noted that the present GoG was given a firm mandate to deal with this issue at the last election—it being a clear manifesto commitment.
T7. Given that the 1991 Act (unless weakened by repeal—which is unlikely given the GoG manifesto commitment and current policy position) there remains a major issue over enforcement. Under the 1999 “Joint Understanding” a “blind eye” was turned on Spanish fishing incursions, and the present situation was brought about by a change in this. Nonetheless, despite a still very gentle touch by the Gibraltar Marine Police, the problems escalated very quickly. This has included, in particular, the Spanish fishing boats undertaking the incursions being accompanied by armed Guardia Civil boats, with the encouragement and backing of both the regional and federal governments in Spain. Discussions with representatives of Her Majesty’s Forces in Gibraltar have indicated that the Royal Navy has, as its formal position, no remit for fisheries protection in BGTW, their only role being protection of territorial integrity. This also provides a fudge of sorts since it is quite clear that Spanish boats fishing and Guardia Civil boats in their company, clearly in a protection role, are not using the BGTW for navigation purposes. They are therefore breaching the territorial integrity of BGTW but, for both political and practical purposes, are regarded as fisheries and therefore not the remit of the Royal Navy. This line appears to have been reinforced somewhat by the written evidence provided by the Governor of Gibraltar to the EAC in this enquiry that, as fisheries come under environmental legislation, they are not within his purview in dealing with defence, security and foreign affairs (see para R1). There is also now an increased emphasis on problems relating to incursions by “state vessels”, again apparently trying to avoid dealing with fishing boats which HMG does not seem to regard as state vessels. As such, this would appear to be an attempt to further distance HMG from the need to defend the interests of Gibraltar and its citizens. Overall, there is apparently a reluctance to upset the Spanish for fear of escalation in the dispute—something that has happened anyway.
T8. There is also reluctance on the part of the Gibraltar Marine Police to intercede, for two reasons it would appear. These are: first, as with the Royal Navy, the fears over causing an escalation in the dispute; and second, and more importantly, the very real and justifiable concern over sending unarmed and vulnerable officers in small craft against, not just fishing boats, but armed paramilitary Guardia Civil in larger boats. This makes for an unacceptable risk and puts an onus on the Gibraltar Police. It also puts a considerable and unacceptable burden on the Commissioner of Police, whose duty it is alone to take decisions on operational matters of which this is one. Under the Constitution, the Commissioner reports neither to the Governor (as used to be the case) nor the GoG. The Police Authority can provide guidance and advice and deal with non-operational matters, such as recruitment, but have no role in operational decisions. It is understood that there will be some operational changes in that a police post will be operated from the east side thus improving observation and cutting down response times and also the acquisition of a new dedicated fisheries protection vessel.
T9. Discussions with the Captain of the Port provided information to the effect that he could reassign a boat from the Port to fisheries inspection duties once it had been reflagged as such but this too could be used only for monitoring and inspection purposes using trained inspectors, of which there are none currently. The boat would be unarmed and, if approached by armed Guardia Civil boats, would not engage and would break off any engagement with fishing boats. It is likely that the GoG will create a monitoring and inspection team; this would be welcome but will not enhance the enforcement capacity and capability—indeed it might make matters worse by increasing the number of defaulters identified. There are staffing implications here and the need for training programmes. The role of the newly created Coastguard and its powers are unclear, and will need to be investigated in this context.
RELATIONS WITH SPAIN
T10. The concerns of HMG, in particular the FCO, seem to revolve around two issues. First, an apparent desire to protect, in some way, the citizens of Gibraltar inter alia from the imposition of stronger border controls causing even more disruption to their lives with the possibility, as HMG sees it, of the border being closed completely once more. There is a perception that Gibraltar needs Spain more than vice versa. In terms of the local economy (indeed, given that the problems in both regional and national economies in Spain, this may go wider), this would appear to be a false premise, but there may be unknown wider political issues directly applicable to Gibraltar and Spain. At the local level, other threats that seem to be under consideration as potential retaliation are the Guardia Civil using bigger boats than the Gibraltar boats as they increase in size, but nonetheless a larger dedicated boat is due shortly. Spanish Navy boats are being posted to Algeciras to deal with any operations by the Royal Navy, ie tit for tat following escalation. It is noted that a Spanish navy boat did enter BGTW in November 2012 (and another more recently) and a formal protest was issued to the Spanish government via its Ambassador in London. A further potential threat was noted as anchoring a large (Spanish Navy) boat across the flight path to the airport, thus hindering landings of aircraft and more recently once again closing Spanish airspace to aircraft. In discussions with HMG officials, any suggestions that the Royal Navy be utilised in fisheries protection were greeted with complete horror and leading to the suggestion that this would lead to starting a war.
PREVIOUS INVESTIGATIONS—THE UK PARLIAMENT FOREIGN AFFAIRS SELECT COMMITTEE
T11. In the course of preparing the main report, considerable efforts were made to investigate any relevant documentation or other sources of information or opinion relevant to the issue. One of these sources was a report of the UK Parliament Select Committee on Foreign Affairs dealing with “The British Government’s response to the current problems facing Gibraltar.” This dealt specifically inter alia with the dispute over fisheries pertaining at the time. It is extraordinary to read in that report how many of the issues remain unchanged from 13 years ago—and that their recommendations are still pertinent.
Lack of robustness by HMG
T12. In light of the very real perceptions of Gibraltarians generally that not enough is being done by the British Government, perhaps the most pertinent recommendation arising from that report is “We conclude that there have been occasions in the past when the British defence of Gibraltarian interests has not been as robust as it should have been. Of all our overseas territories, Gibraltar is in the unique position of having to conform to almost all EU regulations and directives. This means that the British Government have a special duty of care towards Gibraltar in the European Union, and places extra responsibilities upon United Kingdom Ministers to uphold the interests of Gibraltar. We urge Her Majesty’s Government both to recognise and to act in full accordance with these responsibilities.”
T13. It is apparent that this lack of robustness from HMG is still a common perception and attitude among the populace in Gibraltar. The Committee noted in its report that they were left in no doubt “that the people of Gibraltar will not capitulate under pressure. All such pressure does is to harden attitudes against Spain.” The report further notes “Lowering the temperature of the debate is not synonymous with lack of firmness, though it can be mistaken as such in Gibraltar where there is a feeling that successive British Governments have not supported Gibraltar as actively as they might have done.” Some 13 years on from that drafting, the situation appears to be much the same, with the priority apparently being mollifying Spain ahead of defending the interests of the citizens of Gibraltar. Various reasons are put forward to explain this. HMG suggests that they are concerned about retaliatory action by Spain especially at the border or other transport arrangements to do with shipping or aircraft. Those less generous have suggested that it is more to do with arrangements in the EU, particularly voting in Council, or that there are a considerable number of UK citizens domiciled in Spain who might be disadvantaged by some sort of action against them. Further insight into this was provided by the Minister responsible for UKOTs at the Foreign Affairs Select Committee in December 2012 (see below). Having been engaged for technical expertise rather than in foreign affairs and diplomacy, it is difficult to comment further other than to see that there seems to be a lack of regular oversight coupled with something of an “ostrich-head-in-the-sand mentality” among UK officials. The Foreign Affairs Select Committee report also deals with this and notes, “We are also aware that Gibraltar figures much more highly on the Spanish foreign policy agenda than it does on the British. This is widely acknowledged in Gibraltar itself, and is perceived as causing difficulties. For example, Mr Christopher J Pitaluga told us that “the real difficulty posed by the Gibraltar problem is that it is of insufficient magnitude to warrant anything other than drift, muddle, fudge and obfuscation on the part of British civil servants whose concern lies with wider issues.” Instead of this alleged appeasement, Gibraltarian witnesses called for tough action. “
T14. There seems to be a perception at present in HMG that Gibraltar needs Spain more than vice versa. However, given the number of Spanish citizens who work in Gibraltar, the importance of Gibraltar to the local economy in the region, and the general financial malaise in Spain, this would seem to be a misreading of the situation.
Governance issues
T15. The report further noted “We are equally sure that neither this nor any other British Government will allow the sovereignty of Gibraltar to pass to Spain unless the people of Gibraltar want that outcome.” During the previous UK administration, this was by no means certain, with Ministers looking for a dual governance solution quite clearly against the wishes of the people of Gibraltar. It is possible that there is an overhang of those times in the current relationship between HMG and the GoG, although the 2011 FCO White Paper makes it clear that this is not an option. It is also noteworthy, therefore, that in 2012 there have been several fairly (deliberately so?) low key statements from the UK Foreign Secretary and the Prime Minister to that end, but these statements very carefully avoid mention or consideration of matters relating to territorial waters. The most recent incursion by a Spanish navy boat followed on from some forceful statements from HMG, which then proceeded to do nothing—at least overtly. There seems to be a little of “huff and puff” but little in the way of substance to follow this. There does come a time when actions have to follow words. The exact mechanism of deciding when that should be is somewhat obscure.
T16. It is possible that representatives of HMG were awaiting the production of the report relating to sustainable use of marine living resources, sometimes shortened to the report on fishing, but the consultants have long ago advised them that it is going to be far from a magic bullet. It does, however, provide a much better (although still incomplete) scientific basis for management decisions from which an analysis of local political imperatives and legislative outcomes can be derived. The consultants can only provide recommendations—it is up to those in authority to decide to act on them, or not, and in what way. However it must also be stated that the research on fisheries is effectively an optional extra—the NPA 1991 was clearly put in place as an environmental protection measure, which proscribed various fishing practices. There should be no need to defend that with analysis of fisheries showing (as best as possible with existing incomplete data) illegal, unsustainable and damaging practices.
T17. Among its conclusions the Foreign Affairs Select Committee said “We recommend that the new process [NB now defunct] of dialogue should put issues of sovereignty on hold, and concentrate on exploring areas of co-operation.” It is impossible to know the extent to which the UK Government has attempted to follow this suggestion, if at all. There is some evidence that those in authority in Gibraltar have done so but with very limited success. There have been attempts by inter alia the Maritime Authority, the Royal Gibraltar Police and the Port Authority, and of course the Chief Minister with the fisheries MoU to engage with local interests, all of which have failed because of interference at regional or national level within Spain. There is clearly willingness on the part of Gibraltar to seek to cooperate locally and some evidence of reciprocity locally but all fail at a national level. Thus the Foreign Affairs Select Committee’s Report went on to say, “Negativity, whether in Gibraltar, Madrid or London, serves no-one. Constructive engagement, with give and take on both sides, and a practical approach to cross-border co-operation is a solution which the Committee believes can be embraced by people of goodwill in Spain, the United Kingdom and Gibraltar. Support for such a solution should be the British Government’s principal response to the current problems facing Gibraltar,” While a positive response has been noted from Gibraltar the same cannot be said for either Spain or UK.
Consideration of fisheries
T18. In this context, the specific issue of fisheries was dealt with in the Report. It notes “Mr Caruana told us of the contacts he had developed with the local authorities at the level of town, provincial deputation and region. What he has done to secure an agreement with local Spanish fishing interests demonstrates how progress can be made. Gibraltarian witnesses argued that leaving Madrid out of the equation might help this process. For example, the Gibraltar Council of the European Movement wrote that the “present campaign of harassment” will “only achieve the souring of relationships between Gibraltar and the neighbouring towns.” The Gibraltar Labour Party believed that “interregional co-operation without Madrid/London interference could be the way ahead.” The devolved governmental structure in Spain makes possible a substantial level of development of policy on economic development and co-operation at regional level in Andalucia, but ultimately the foreign policy is determined in Madrid. The agreement referred to in this paragraph is the so-called “Joint Understanding” which was clearly derived under duress and promoted breaching the laws of Gibraltar. The progress referred to was made entirely in favour of Spanish fishermen while the only gain from Gibraltar’s point of view was a cessation in the level of harassment. Sadly, this was the cause of some congratulation from the then UK Foreign Minister, Joyce Quin. The FCO issued a press release to the effect that the agreement was “very welcome” and that it had the “strong support of the British Government and of the Governor.” Note use of the word “agreement” rather than “understanding” even though there was dispute over the exact wording in English vs. Spanish versions. As well as the written “Joint Understanding” there was a prior verbal “agreement” between the then Foreign Secretary with the Spanish Foreign Minister without representation from Gibraltar.
Enforcement issues
T19. A very significant issue revolved around enforcement. The Committee stated, “There is one important constitutional point to be made in the context of the fishing dispute. The Commissioner of the RGP has operational responsibility for the RGP and “exercises normal policing discretion when taking decisions on operational matters, on the same lines as Chief Constables in the United Kingdom.” Whatever agreement there may be between the British and Spanish Governments, or between Mr Caruana and the fishermen, it is for the Commissioner to decide how to enforce the law. It is wrong to place a Chief Officer in a position where he is asked to enforce the law in a way which is politically expedient. Ms Quin told the House that the Government hoped that the agreement would be “backed up by legislation in the Gibraltar Assembly.” We agree. We understand Mr Caruana’s concern that amending the law might appear to be capitulation to Spanish pressure, but we do not believe that this is the case.” Perhaps the most worrying observation (although not framed as a conclusion or recommendation was “We hope that the Government of Gibraltar will seek to amend the Nature Protection Ordinance so that the informal understanding about the extent to which it is not to be enforced is given proper legal effect.” Clearly (and fortunately) this did not happen and the mandate provided to the present Government of Gibraltar works in the opposite direction.
T20. Very much related to the above, the FASC noted,”We were surprised to learn that the Royal Navy based in Gibraltar is not tasked to support the RGP on fisheries protection or drugs interdiction, though the Royal Navy had trained the RGP in methods of intercepting and boarding vessels. The Royal Navy did, however, have the job of maintaining the integrity of Gibraltarian territorial waters. Spanish official vessels (for example, of the Guardia Civil) could be intercepted and asked to leave, though they had the right of innocent passage under international law. When requested in the House to arrange for the dispatch of a fisheries protection vessel to Gibraltar at the height of the fishing dispute, Ms Quin did not give any specific response. We can understand that to have acceded to this request might have been deemed to have been inflammatory at the time. However, the FCO confirmed to us that HM Forces in Gibraltar are responsible for “providing aid as appropriate to the civil authorities”, and earlier in the dispute the Government had said that the deployment of a fisheries protection vessel “to aid in calming the situation” was one of the options they were considering. Mr Caruana made it clear that he would expect the Royal Navy to be used if the situation required, and we understand that the Governor would not hesitate to ask the Government to deploy the Royal Navy in aid of the RGP if a strong case was made to him by the Commissioner. We recommend that the Royal Navy should be tasked to support the Royal Gibraltar Police in their duties of fisheries protection and the interdiction of smuggling. The unacceptable and unfair arrangements with respect to the Commissioner of the RGP pertain. There is a considerable burden on the Commissioner to implement what is effectively a political process and with insufficient resources. It is very rare for the Royal Navy to intercede in any fisheries (or indeed other) incursions, contrary to the recommendation of the Committee and in contrast to what appears to be a practical solution adopted elsewhere in UK waters, for that is what they are.
European Union matters
T21. To return to the European Union “The Committee has made it plain that it believes that the British Government must robustly defend Gibraltar’s rights in the European Union, both through action at the European Commission and through bilateral diplomacy with other EU Member States. This has not been done with sufficient vigour in the past. It must also continue to make clear and high-level representations to Spain, at ministerial and ambassadorial level, whenever improper pressure is put on Gibraltar, making it plain that the British Government is prepared to take reciprocal action against Spanish interests if Spain takes unreasonable action against Gibraltar.” It further noted, “Spanish membership of the EU has given Spain an important arena in which it is able both to make accusations against Gibraltar, and to manoeuvre against the interests of the territory”. Spain has not been slow to take advantage of this. And the “special duty of care” mentioned in the Committee report with respect to EU membership does not appear to have been followed.
T22. Leaving aside the most glaring error by HMG of allowing the European Commission to agree to the Spanish government annexing BGTW as part of its SAC after it had been agreed to be a UK SAC, the same appears to be happening with the Marine Strategy Framework Directive. The government of Spain has already produced a management plan incorporating BGTW. What steps is the UK taking to ensure that the EC does not repeat this error?
UK GOVERNMENT WHITE PAPERS
T22. “The Natural Choice: securing the value of nature”
There are two White Papers that have been issued by the current coalition government of consequence here. The first “The Natural Choice: securing the value of nature” was issued by DEFRA in 2011. Initially, the consultation paper leading to this suggested that DEFRA’s responsibilities extended only to England following devolution but, following that consultation, inserted a section on DEFRA’s international responsibilities which had been missing previously. Included among these was their interest in UK Overseas Territories and this was dealt with in one single paragraph, 5.11: “We will also continue to give priority to the UK Overseas Territories (OTs) Biodiversity Strategy, through a co-ordinated approach across government that is led by the National Security Council. The Government will continue its engagement with the OTs in their efforts to conserve their biodiversity through programmes such as the Flagship Species Fund and one-off initiatives such as the £200,000 contribution towards a project to eradicate rodents on Henderson Island in the Pitcairn Group. Moreover, the Darwin Initiative is also making a significant difference to wildlife in our OTs. An additional £1.5 million has already been invested in Darwin projects in the three years from 2010, and this sum will increase further as a result of the new Darwin funding referred to above.” As far as Gibraltar was concerned the latter part of that paragraph is fairly immaterial as funding from the then Darwin Fund3 was extremely unlikely. Matters relating to the EU, also covered in the international section of the White Paper, did not also encompass Gibraltar.
T23. However, the paragraph did raise one interesting issue and that was the reference to the National Security Council leading on matters related to Overseas Territories. What is this coordinated approach and how will it be achieved? Questions to the Minister to that effect produced obfuscatory answers. Reference to the National Security Strategy (A Strong Britain in an Age of Uncertainty produced in 2010) provides little in the way of answers. Strangely, although much could be read into the text that implicitly may deal with the Overseas Territories, there is very little that explicitly deals with them. There are only two specific mentions and they are in the breakdown of priorities, the first is in Tier two: “An attack on the UK or its Overseas Territories by another state or proxy using chemical, biological, radiological or nuclear (CBRN) weapons”; and the second in Tier three: “An attack on a UK overseas territory as the result of a sovereignty dispute or a wider regional conflict.” Given some predictions of war by UK officials if the fishing dispute escalates, it is possible that the latter could relate to Gibraltar but, other than that, it is still very unclear what responsibilities the NSC has in respect of leading on UKOTs. So the question still requires clarification. There is, however, one useful sentence and one useful section in the National Security Strategy with respect to wider issues. In a section called “National Security and British values” it is noted that “The UK has a proud tradition of protecting its citizens, promoting civil liberties and upholding the rule of law.” This is clearly something with which the Government of Gibraltar would agree, certainly in respect of fishing infractions. The section relates to strategy production. The Strategy notes, “A national security strategy, like any strategy, must be a combination of ends (what we are seeking to achieve), ways (the ways by which we seek to achieve those ends) and means (the resources we can devote to achieving the ends). A strategy must reflect the context in which it is developed, the particular strengths and skills that we can bring to bear (our areas of comparative advantage) be clear, but also flexible, to take account of uncertainty and change. It must also take account of the activities of others: the positive contributions of allies and partners and of the private sector; and the negative effect of adversaries seeking to thwart our objectives. Therefore a strategy must also be based on creative insight into how best to achieve our own objectives and prevent adversaries from achieving theirs. It must balance the ends, ways and means. The ways and means by which we seek to achieve our objectives must be appropriate and sufficient and the objectives must also be realistic in light of the means available”. It is interesting, particularly in the light of HMG’s “UK Overseas Territories Biodiversity Strategy” which is deficient in most respects with regard to these principles and upon which much apparently rests in terms of implementing government policy.
T24. “The Overseas Territories Security, Success and Sustainability”
The second and most recent output on generic policy with respect to the UK Overseas’ Territories as a whole is the White Paper “The Overseas Territories Security, Success and Sustainability” issued in June 2012. Unfortunately it fails to recognize properly the Gibraltar situation especially with regard to EU membership, unlike the situation with other UKOTs. The 2012 White Paper sets out quite clearly what Britain’s responsibilities are in this situation:
P 14:
“International Support: the UK is responsible for the external relations of the Territories and uses its diplomatic resources and influence to promote their interests.”
P 22:
“We will also ensure that the Territories are able to trade, to exploit their natural resources… free from undue external interference.”
“The Royal Navy is tasked with... upholding the sovereignty of British Gibraltar Territorial Waters.”
P 48:
P 88:
It would be entirely possible to put “except Gibraltar” in brackets after each of these commitments given the situation in practice rather than in theory.
RESPONSIBILITIES WITHIN HMG
Further information from the UK Parliament Foreign Affairs Select Committee in December 2012
T25. Gibraltar is not the responsibility of the Overseas Territories Directorate in the FCO but, as part of a member state of the EU, falls under the Western Europe Directorate. There appears, until very recently, to have been little cooperation between the two sections. The Foreign Affairs Select Committee has decided thus far not to hold an enquiry on the UKOTs White Paper as the EAC is currently holding this one. However, on 11th December 2012, it held an evidence session on the White Paper with Mark Simmonds MP, Parliamentary Under-Secretary of State; Peter Hayes, the newly appointed Director for Overseas Territories, and Tim Colley, Deputy Director for Overseas Territories, Foreign and Commonwealth Office. Note that neither the Minister responsible for Europe nor the Western European section was represented. This was despite, it is believed, the Committee advising that significant questioning would relate to Gibraltar and the Falklands, neither of which are the attending Minister’s responsibility.
T26. An examination of the record of that meeting shows that matters relating to this undertaking on Gibraltar were considered following a couple of questions by Committee members. The answers were given with the obvious caveat that the Minister answering was not the one responsible but would provide such information as he could. It is clear that those present representing the FCO had been given a briefing, but that is not quite the same as having those with direct responsibility present. Some interesting responses were elicited by the Committee. In response to a question about the dispute over territorial waters, the Minister made observations on the following points:
on the fisheries dispute, he wrongly referred to the 1999 document as being an agreement rather than an understanding;
the territorial limit was referred to wrongly as being 3km and it being an “exclusion zone”, but noted under UNCLOS it could go to 12km;
although the fisheries dispute was a serious issue, incursions by the Guardia Civil were more serious;
it was noted that “Gibraltar “forces” meet them and encourage them to leave” [note interesting choice of the word “forces”] and that dealing with the GC was “challenging” as they have right of navigation provided it is by the shortest route possible and that is difficult to show, so have to monitor them [this seems utterly disingenuous when GC boats are clearly circling Spanish boats to protect them and not undertaking any sort of passage].
as to why the UK government does not do more to protect our waters, there was a fairly generic response to the effect that, in almost every other context of international relations, the UK and Spain have very positive relationships—eg EU, UN, parts of Africa on conflict resolution and counter-terrorism.
further, the UK Government wishes to be firm and determined but is not convinced that ratcheting up the rhetoric or moving to “a more aggressive gunboat diplomacy” would be a positive and responsible response.
it was accepted that some in the Gibraltar Government would like more action; however HMG monitors the situation constantly and keeps it under review but reiterated that at the moment does not feel it would be beneficial to ratchet up the rhetoric or the action.
T27. John Stanley MP asked about the Special Area of Conservation and the ECJ result, which had been the subject of a written answer by the Foreign Secretary the day before and was told that the case had been lost on “technical grounds”. The Minister would not go into those but offered to provide written feedback to the Committee. John Stanley MP further asked whether this loss was in any way due to incompetence by UK official(s) but was referred back to the written note to be provided. The Minister said that, despite the legal outcome, impact on the ground would be negligible—the British government does not recognise the Spanish position on the SAC. (What about the EU position?; how will this be dealt with by the Commission?)
John Stanley MP then asked about Spanish restrictions on UK planes and Royal Navy boats despite both governments being NATO members. The Minister agreed that these were regrettable but this was blamed on the Spanish having withdrawn from the former tripartite discussions. The Minister was unable to say much about the detail but the UK was trying to get communications going again in structured way; again he could not go into details but there are continuing very high-level contacts with Spain to address both fisheries/territorial waters and NATO issues.
T28. The Chairman said that the Committee wished to express continuing concerns but felt that the government were probably right in their current degree of (in)action but also there will come a time when we can no longer continue and see UK citizens harassed in this way. (This rather begs the questions—how will it be decided when enough is enough? Who will take that decision and on what basis? What process is in place and is the NSC involved?)
Liaison within HMG
T29. Given the above, it seems likely that it is Gibraltar’s misfortune to fall between the slats. It is a UKOT but not dealt with by the relevant FCO Directorate for UKOTs and, as it is part of the EU, coming under Western Europe within the FCO, which has a whole range of other priorities, especially related to the EU. The situation within the EU and the consequences for Gibraltar appear to be poorly understood by officials, not just within the FCO but within DEFRA and, most importantly, its statutory advisors JNCC, on which DEFRA appear unfortunately over-reliant. The latter, at a meeting in December 2011, appeared to be unaware that, as far as the European Commission is concerned, BGTW are UK waters as far as implementation of directives are concerned and require Gibraltar input alongside that from UK. It was also disturbing to learn—especially after persistent protestations from DEFRA, in the context of the UKOTs Biodiversity Strategy, that nothing can be imposed on UKOTs—that JNCC altered documentation to the European Commission on the Gibraltar SAC without reference to the Gibraltar Government.
The Ministry of Defence
T30. In the context of coordination, it is also worthwhile mentioning the Ministry of Defence. There seems to be a good relationship between Gibraltar and the MoD Advisor on environment, who is apparently a regular visitor to Gibraltar. Discussions were also held by the marine consultant with the then Head of the Armed Forces in Gibraltar, ostensibly about enforcement and sovereignty issues but strayed on to issues of biodiversity conservation. There was (then about to be revised) a guidance note for the armed forces on their use and management of protected areas under UK and EU legislation dealing with both habitats and species. The Head of the Armed Forces stated that he was unaware of any such guidance while the advisor stated that, if he was not aware, he should have been. One of the outcomes is that the habitat of two Habitats Directive Annex IV species suffered significant damage and a number of animals were lost as a result of MoD operations. Any such operations should have been cleared with the relevant authority—in this case the Gibraltar Department of the Environment—before proceeding but they MoD failed to do so. A formal letter was subsequently sent from the Minister to the MoD. Other examples were provided, in relation for example to erosion management, where cooperation and coordination have not been good. There is also the use by the Armed Forces of the Southern Waters SAC for training purposes and ensuring avoidance of sensitive areas, as well as the use for ordnance disposal, although the latter may have ceased.
GIBRALTAR’S STATUS WITHIN THE MEDITERRANEAN
UN System
T31. It is apparent that the UK Government does not see itself as having a Mediterranean entity, even though it has responsibility for Gibraltar within the EU. There is also some confusion in the EU and in Mediterranean initiatives as to the status of Gibraltar—indeed, to some, it does not seem to exist. In some documents it is regarded as a Mediterranean entity/country; in some it is noted but with a statement that it is subject of a dispute with Spain and then no longer considered in the context of the document; or it is ignored completely. These processes also link into UN procedures. There are, of course, issues relating to the status of Gibraltar with respect to self-determination. However, Gibraltar is clearly recognised as an entity within the UN system, and that issue is not dealt with here. On most occasions, the UN in its publications speaks of 21 riparian states within the Mediterranean; on very few occasions there is mention of 22 riparian countries and territories, which one assumes is referring to Gibraltar but is not explicit. The Strategic Action Programme for the Conservation of Biological Diversity (SAP BIO) in the Mediterranean Region drafted by the United Nations Environment Programme Regional Activity Centre For Specially Protected Areas does not acknowledge Gibraltar and, for example, fails to mention inter alia Gibraltar’s importance for Patella ferruginea in its annex dealing with areas important for certain species. Gibraltar is also missing from the Strategic Partnership for the Mediterranean LME (Large Marine Ecosystem) drafted by UNEP/MAP and one of the analytical tools used in its production the Transboundary Diagnostic Analysis (TDA) for the Mediterranean Sea. More relevant to the EU, but once again diagnostic is the Communication from the Commission of 5 September 2006 entitled: “Establishing an environment strategy for the Mediterranean” [COM(2006) 475 final. All of these publications rely on the country in question being a party to the Barcelona Convention—which UK/Gibraltar is not. Cooperation around the relatively new ICZM (Integrated Coastal Zone Management) Protocol falls into the same category. In the very latest UN publication concerning the Mediterranean UNEP/MAP: State of the Mediterranean Marine and Coastal Environment, UNEP/MAP—Barcelona Convention, Athens, 2012, there is again no mention of Gibraltar, as once again it relies entirely on the Barcelona Convention for its framework.
T32. A good example of the first category where Gibraltar is disadvantaged is the Agreement on the Conservation of Cetaceans in the Black Sea Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS, an agreement under a UN treaty, the Bonn Convention on Migratory Species—CMS). Here, UK/Gibraltar is listed as a Mediterranean country and has the status of a non-party, ie it could be a full party if it wished. By contrast, Gibraltar is covered by EUROBATS, an equivalent agreement under CMS, as an uncontroversial component part of the UK ratification, although the reports from Gibraltar are rather short and somewhat hidden away in the UK report. Arguably, ACCOBAMS is far more important in a biodiversity context to Gibraltar than EUROBATS. Apparently, the UK Government did consider joining ACCOBAMS in 2002 and 2004. It attended a couple of its meetings as observers and has provided funding to it on a voluntary basis but, as of 2010, it was still considering becoming a party to the Agreement. Is the fear of upsetting Spain behind the reason so far not to become a Party to this agreement?
European Union
T33. An example of a second category is the range of activities/initiatives on the Alboran Sea (these are part-EU, part-IUCN, part governments of Spain, Algeria and Morocco). The strategy for the Alboran Sea was initiated by IUCN in 2007. When dealing with “the Legal and International situation”, this fails even to mention Gibraltar. A document “The potential of Maritime Spatial Planning in the Mediterranean Sea Case study report: The Alboran Sea”, prepared for the European Commission, mentions Gibraltar almost as an aside at the outset, and then largely ignores it for operational purposes in the rest of the document. For a third category, there are numerous examples where Gibraltar is missed off the list of Mediterranean riparian states. These examples include the Barcelona Convention, UNEP Regional Seas and many EU documents, despite the UK/Gibraltar being part of the EU. It is telling that a search on Eurostat (where statistics for the EU are collated) for any documents with Gibraltar included provides a nil return. EU documents usually describe 7 member states of the EU in the Mediterranean—Spain, France, Italy, Greece, Cyprus, Slovenia and Malta. Gibraltar is not listed among the remaining 14 riparian states either. Gibraltar is missed off the UNEP Mediterranean Action Plan that “has been extended to involve all 21 countries that border the Mediterranean Sea”.
Other regional initiatives
T34. There is a fourth category where Gibraltar has been deliberately excluded from involvement in some form of regional initiative. A good example of that is the Strait Biosphere Reserve, falling under UNESCO.
T35. Thus different parts of the UN under their MEA arrangements deal with Gibraltar in completely different ways. The responsibility for managing arrangements with such treaties lays with the UK Government, not the Gibraltar Government. The example of ACCOBAMS is particularly puzzling, given the strategic importance of both Strait and Bay of Gibraltar to cetaceans and that in this case Gibraltar/UK is actually recognised as a potential partner in the Agreement. For some of these agreements, eg the Barcelona Convention, the EU is a contracting party but it is unclear what role—if any—the UK Government plays, or can play, in the arrangement.
The role of IUCN
T36. At a slightly lower level internationally is the organisation IUCN (International Union for the Conservation of Nature). Although officially an observer at the UN, it is part-government and part-non-government. As such, it often tries to run with the hare but also hunt with the hounds. IUCN also tends to ignore Gibraltar’s existence. In its review of implementation of the Biodiversity Convention by UKOTs, in 2010 it stated that Gibraltar was not a party to the CBD, which is incorrect, and thus failed to consider it. IUCN is responsible for managing implementation of the Alboran Sea strategy, which also misses out Gibraltar. It should be noted that IUCN operates a Mediterranean office in Malaga with considerable financial support from within Spain. Confirmation has now been received from a former senior employee of IUCN in the Malaga office that any mention of Gibraltar in documents is vetoed, with the threat of withdrawal of funds. Several attempts were made to engage with the IUCN officer responsible for marine issues within that office but without success. The UK has been an active member of IUCN, both at government and non-government levels, but of late the UK Government has decided that IUCN is no longer a priority. However, it does need to address the relationship with IUCN with respect to Gibraltar as IUCN is tasked by the European Commission with much of the liaison and policy implementation within the Mediterranean.
T37. It is apparent that Gibraltar is marginalised in a Mediterranean context by the absence of representation in the many relevant pan-Mediterranean processes, including for example the high level ones such as the Euro-Mediterranean Partnership as well as those specific to environmental matters. It is not clear whether this is deliberate on the part of HMG—as any involvement would have to be through the UK Government as responsible for foreign affairs for Gibraltar—or an oversight or through diplomatic difficulties caused by the ongoing dispute with Spain. The full extent of the problem can be seen in a Blue Plan Note (No 22 June 2012) “20 years of sustainable development in the Mediterranean: review and outlook” which outlines the founding acts of sustainable development co-operation in the Mediterranean region, the main processes over the past 20 years and the region’s major sustainable development trends.
CONCLUSIONS
T38. It seems apparent that there is still a perception within Gibraltar, both in government circles and among the general populace that the UK Government does insufficient to protect the interests of the citizens of Gibraltar in respect of the relationship with the government of Spain. Perceptions within the UK are much more difficult to gauge since little of this reaches the public domain inside the UK, by contrast to the situation in Spain. This apparent relationship is all the more difficult to comprehend given that there should be shared interests and many common legal instruments (especially related to border controls and customs matters but also environmental issues) within the EU; common membership of NATO; and, according to the Minister responsible for Overseas Territories (but not Gibraltar) when responding to the Foreign Affairs Select Committee in the House of Commons in December 2012, close cooperation between UK and Spain in the UN and on conflict resolution and counter-terrorism. The perception is that this is very much biased in favour of Spain with everything being done not to upset the Spanish government at the expense of Gibraltar’s interests.
T39. Within the EU (and also internationally in general), Gibraltar finds itself at a significant disadvantage, since any formal discussions or negotiations are undertaken by the UK Government, as foreign affairs and defence are reserved powers. This is further exacerbated by much of the EU policy related to environmental issues in the Mediterranean being implemented through the Barcelona Convention, to which Gibraltar is not a Party. It cannot be so without the UK Government ratifying on its behalf. To further complicate matters, some initiatives such as the Alboran Sea initiative encompass BGTW but fail to relate to Gibraltar at all. This is typical of the approach of IUCN, which unfortunately is often tasked with implementing initiatives in the Mediterranean, but does not seem to recognise the existence of Gibraltar.
T40. The fishing dispute is also complicated by the fact that Gibraltar is not subject to the EU Common Fisheries Policy, as technically it has no commercial fishing interests. For fisheries in the Mediterranean, there is a separate regime under the CFP closely allied to the work of the General Fisheries Council for the Mediterranean (GFCM). Again, Gibraltar is not a Party to this organisation and would require the UK Government to accede on its behalf. This is not to suggest that Gibraltar should either become part of the CFP or that it should manage a commercial fishing fleet in BGTW. There are other good reasons to be part of the GFCM, for example for recreational fishing.
T41. A more fundamental reason, which applies even more so in the context of the Barcelona Convention, is that Gibraltar is almost completely marginalised on environmental issues within the Mediterranean because it is not associated with mainstream environmental processes, including those operated within the EU. It is difficult to gauge whether this is due to previous governments in Gibraltar wishing to remain outside these processes or possibly a deliberate decision on the part of HMG not to risk possibly further exacerbating the situation with the Government of Spain, or possibly an oversight on the part of a succession of those in the UK Government with responsibility for Gibraltar. The latter is quite possible, given that there appears to be no joined up strategy for dealing with Gibraltar as it cuts across two sections within the FCO (Overseas Territories Directorate and Western Europe Directorate); has strong MoD involvement (especially given its still strong strategic importance as a military resource and as a landholder); is considered as a UKOT by DEFRA but seemingly not really taking into account its links to the EU (unique among UKOTs); and JNCC, which treats it as part of its international programme and seemingly fails to deal with it as part of the EU, with BGTW being UK territorial waters in an EU context. Much is made in UK Government circles of the UK Government’s so-called “UKOTs Biodiversity Strategy” but this fails to address the situation of Gibraltar as part of the EU (as well as its many other failings noted previously). Furthermore, the European Union and the Commission have not helped, in particular failing to deal with the dispute over territorial waters openly and transparently. The test for them will surely be how the management plans for the Marine Strategy Framework Directive (MSFD) are dealt with and to what extent the UK Government takes action to defend the interests of Gibraltar in this respect. One particular element raised in the operationalisation of the MSFD is a strong component of cooperation with neighbouring countries both within the EU and with non-EU countries. The relationship with Spain is sure to be tested in this respect. Given the need for strengthening links with North African countries after the Arab Spring and recent problems in the region, it is a great pity that Gibraltar has been excluded from both the Strait Biosphere Reserve and the Alboran Sea Initiative, although there are some good links between Gibraltar and Morocco especially after an INTERREG-funded project. (INTERREG is an initiative that aims to stimulate cooperation between regions in the European Union.)
T42. On the basis of the above it is recommended that:
(A)
(B)
(C)
(D)
MR LIDINGTON’S LETTER
T43. UKOTCF is aware that David Lidington MP, the FCO Minister responsible for Gibraltar matters, was unhappy at some of the evidence provided by the Forum to the EAC as part of this enquiry and which led to a number of Parliamentary Questions. Mr Lidington has subsequently written to the Chair of the Committee.
T44. Many of the issues about which there is some dispute are covered in the additional supplementary evidence above, and so UKOTCF does not wish to dwell too much on the content of the letter but there are a few matters with which we wish to deal directly.
T45. It is well understood that the Government of Gibraltar is responsible for environmental matters under its Constitution and that HMG is responsible for foreign affairs, defence and security. However, we doubt that many will follow the line now being produced by HMG that, as fisheries come under the environmental legislation of Gibraltar, HMG has no role to play in enforcement when it is perfectly plain that:
(a)
(b)
(c)
(d)
(e)
(f)
T46. UKOTCF did not suggest—indeed it never has suggested—that the present Coalition Government should wish to abolish the Nature Protection Act 1991. Dr Tydeman, in his Report to the Government of Gibraltar, also has not suggested this. UKOTCF did point out that Mrs Joyce Quin, the then Minister responsible in the FCO, had suggested (apparently as the previous government’s policy) to the Foreign Affairs Select Committee during the aforementioned 1999 enquiry that the Nature Protection Act 1991 should be repealed so as to make the so-called “agreement/understanding” the legal position, ie that fishing with nets would no longer be illegal. UKOTCF expressed a view to the Committee that they hoped that this was not the position of the present government—which Mr Lidington has now done in a somewhat roundabout fashion in his letter.
T47. UKOTCF cannot comment on the suggestion that HMG has supported HMGoG’s efforts to reach a solution to the dispute with Spanish fishermen since we have not been party to any such discussions. However, Dr Tydeman when compiling information on his Report, found little evidence of that and certainly perceptions in Gibraltar are that such encouragement was sorely lacking. Dr Tydeman did hold several meetings with local Spanish fishing interests on the basis of the Memorandum of Understanding (MoU) drawn up by the Chief Minister of Gibraltar and local fishermen but these proved fruitless as the fishermen reneged on the MoU. There is no doubt that local fishermen, especially from La Linea, are having difficulties—but that is not of Gibraltar’s making, nor should it be of their solution. It is clear from statements arising from within both Andalusia and the Government of Spain that, despite the problems for fishermen, the dispute is being used as a proxy for the wider issue. The Government of Gibraltar is not in a position to deal with that since, as the Minister himself pointed out, it is HMG that is responsible for foreign affairs. Local solutions are suggested for a number of issues and seem to find a practical outcome until such time as they have to be formalised and they are then blocked at a national level by Spain. Suggesting that a local solution is possible now would only seem to be practical if there is a reversion to the 1999 “understanding” or similar which allows for Spanish fishing in BGTW in breach of the laws of Gibraltar. No formal agreement is possible between Gibraltar and Spain, as Spain does not recognise the right of Gibraltar to make such. This leaves the matter firmly with HMG.
T48. The Minister once again has confirmed that the Royal Navy is there to safeguard sovereignty and territorial integrity in BGTW and not for fisheries protection, and once again makes the distinction between fishing vessels as private vessels and other “state” vessels. This line of argument seems rather akin to the old question of how many angels can dance on the head of a pin. Spanish boats are Spanish boats and the fishing boats are registered as Spanish, leaving aside the issue of the fishing boats being “accompanied” by boats from the Guardia Civil. Elsewhere in British waters the Royal Navy deals with both territorial integrity and illegal fishing. The Minister also continues with the line that all incursions are closely monitored and then issue appropriate (to whom?) warnings. Given the scale of the incursions, this seems rather a pitiful response—monitoring merely provides information on how many boats, where and when—and the warnings are almost completely ignored.
T49. The reference by Mr Lidington to “suggestions” by UKOTCF was deliberately unspecific since it referred in fact to the words of his colleague, Mr Simmonds, when speaking to the Foreign Affairs Select Committee in December 2012.
T50. There is a clear perception, both within Gibraltar and amongst the general public in the UK, that Spain adopts bullying tactics against Gibraltar. As this relates to much wider matters than the fishing dispute (even if one accepts the rather frail argument that fisheries enforcement falls under environment legislation), it clearly falls within the remit of HMG and it is impossible for the HMGoG to deal with. The argument that action will lead to escalation has now become merely a theoretical argument, as there is already a state of escalation. The UK Government may be clear that “unlawful incursions by vessels of the Spanish State are an unacceptable violation of British sovereignty and contrary to international law, specifically the provisions of UNCLOS.” The maintenance of diplomatic pressure, as described by Mr Lidington, would appear to have no positive consequence at all—the Spanish government merely ignores it and carries on as before. The UK Government’s idea of diplomacy seems to be to back off from tackling the issues and taking any practical steps. While it is possible to accept the argument that the UK Government does not wish to put at risk good diplomatic relations with the Government of Spain, there seems to be a distinct lack of reciprocity.
T51. If bullies are allowed to carry on without any practical attempt to tackle that behaviour, then bullies will continue to do so. Unfortunately, the consequences fall on Gibraltar while the solutions lie mostly within the UK Government. We are certain that the people of Gibraltar would be much happier to see the sort of robust response to the issues raised by UKOTCF focused on the Government of Spain, rather than try to finesse reasons for not taking action and raising unfounded criticisms against a small UK NGO fulfilling its remit. UKOTCF would, of course, be very happy to discuss the issues concerning fisheries and Gibraltar with Mr Lidington.
U. Final remarks
U1. In evidence to the Committee, Ministers complained that the Committee was focussing on the negative and ignoring the achievements. The Committee Chair rightly pointed out that, to improve matters, one needs to look at what needs improving.
U2. There are some excellent examples of positive achievements of conservation in UKOTs and Crown Dependencies. Some outstanding examples are:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
U3. However, set against this have to be, for example:
(j)
(k)
(l)
(m)
U4. Even if we restrict ourselves to the successful examples at paragraph U2, several points emerge:
(1)
(2)
U5. Similarly striking lessons can be learnt from the partial successes. HMG, in consultation with the UKOTs and NGOs, initiated the Environment Charter process in 2001, as an output from the 1999 White Paper. The Charters were—and are—valued by governmental and NGO conservationists in the UKOTs. HMG supported UKOTCF and others to facilitate UKOT stake-holders to develop strategies for implementation (essentially a “mainstreaming” process) in several territories and, at HMG’s request, UKOTCF collated information on progress in implementation. However, a few years later, HMG lost interest in the exercise, leaving it to UKOTs and NGOs, without even its continued encouragement. Within the last couple of years, HMG has now felt the need to reinstate a similar process under a different name, ignoring the earlier material. This wastes public money, sets back conservation, and demoralises local officials as well as the civil society organizations and volunteers that HMG says it wishes to work with.
U6. This lack of staying power and continuity by HMG is evident, as well, in ways which would have potentially saved the UK taxpayer some future expenditure. HMG, about a decade ago, insisted on the TCI Government introducing a Conservation Fund, by an increase in the tax on accommodation and meals, mainly of tourists. This was achieved, after wide consultation and public approval. In 2012, the direct UK Government of TCI cancelled this fund with no consultation (see paras K42-K44). A similar Environmental Fund in the Cayman Islands still exists, although it is not being used in the manner originally announced (see eg oral evidence Q124 on 9 July 2013). It is to be hoped that the faults in this are cured before HM Treasury finds a way to cancel this too.
U7. There are some excellent concepts in the 2012 White Paper, and we would love to believe the Prime Minister’s words when he says of the Overseas Territories: “We see an important opportunity to set world standards in our stewardship of the extraordinary natural environments we have inherited.” The opportunity is there, but it will be realised only with actions that match the words.
U8. There is not yet, however, convincing evidence of actions to match these words. Even after the publication of the White Paper, HMG (in direct control of TCI) has continued to act against the advice on sustainable development that it had encouraged UKOT Governments to follow for well over a decade. Examples are given above and in earlier evidence (paras K12-K47, S3-S12). HMG seems to have lived in a world of “do as I say, not as I do.” Not surprisingly, some UKOT governments seem to be copying HMG’s flawed approach.
U9. We welcome the continued interest in the natural environment of the territories shown by the DEFRA Minister, Mr Benyon, but this has not yet been reflected in the depth of engagement with the territories by his officials. When the FCO reduced its staff resources dealing with environmental issues in the UKOTs in 2005, it indicated that DEFRA would take over that work. At one level this made good sense. The richness of the territories in endemic species and diverse ecosystems meant that the UK’s commitments under the Convention on Biological Diversity (CBD) and other Multilateral Environmental Agreements (MEAs) were particularly important in terms of its overseas territories; and DEFRA was the lead department on these MEAs.
U10. However, this move to apparently more logical “joined-up government” had risks, which we foresaw at the time. The two most obvious risks were, first, that many of the problems in good environmental governance in the territories relate to planning processes, and easy and timely access to information about development projects and changes in the use of land and marine resources, over which DEFRA has little direct experience and no responsibility. The governance conundrums here are really for FCO and DFID with their far more detailed and nuanced engagement with the territories.
U11. Second, without strengthening its policy capabilities and its knowledge on the ground of issues and personalities in the territories, there is no way for DEFRA to have the confidence to say to FCO, DFID, MOD (in respect of the Falklands, BIOT, Gibraltar, Ascension, the Sovereign Base Areas in Cyprus), DCMS and elected governments in the territories: “You need to be aware that what you/your “partners in prosperity” are doing will make a mockery of the UK’s commitment to slow the rate of loss of global biodiversity.”
U12. A toothless DEFRA is a poor substitute for an FCO and a DFID which treat environmental sustainability as a serious criterion of good policy (rather than as a definition that automatically attaches to “whatever we do”). However, there has been no sign of strengthening of DEFRA’s capability to lead over environmental issues in the territories. Whitehall’s policy architecture is not helpful: “Follow the money”—does the Treasury accept that it matters a jot whether there is loss of biodiversity or environmental degradation in any of the overseas territories—despite the Prime Minister’s words?
U13. There was some boost in DEFRA attention to the UKOTs after the Committee’s 2008 Inquiry, but this was only to a low level, and soon declined again (see paras E20-E29). However, we are pleased that the long vacancy has now been filled in the one DEFRA post for work on the overseas territories (together with demanding tasks on wider conservation matters). We await with interest to see what the new appointee to the long-vacant part-post looking after this area will achieve, but she will clearly be working in a difficult environment, given the approach of her senior colleagues.
U14. DFID, despite its statutory duty that “The reasonable assistance needs of the Territories are a first call on the UK’s international development budget” (see 2012 White Paper, p 13), seems to be “downsizing” its engagement with the environment in the UKOTs. We hope that, as with DEFRA, the delayed filling of the vacant DFID post addressing environmental matters will improve the situation. However, that will require support from senior levels of management, which still seems to be lacking. It was discouraging that, despite the massive environmental impact of the St Helena Air Access project on St Helena, the Committee’s 9 July session did not hear evidence from any DFID minister; and the one official who gave evidence was shortly due to retire, thus having no continuing responsibilities for the subject covered by the Inquiry. We are, furthermore, concerned at DFID’s long-term decrease in support of biodiversity conservation, shifting funds towards direct poverty alleviation (apparently not seeing the linkages between the two), as reported by Dilys Roe in “Has biodiversity fallen off the development agenda? A case study of the UK Department for International Development” (2013, Oryx 47: 113–121).
U15. Some of the problems across Whitehall seem to arise from the FCO (which leads overall on the overseas territories) reducing its direct engagement with environmental issues without having managed to persuade other departments to increase their own capabilities in this area. There is also a distinct loss if desk officers in FCO, who have far more opportunities than others in Whitehall to visit the territories, feel that environmental issues are for someone else. For many UK officials, whether Governors, their staff, or desk officers in London, supporting the social and natural heritage of the overseas territories is a major element in their job satisfaction. We need a conception of “joined-up government” which is not “That’s your job (and down to your budget and contingent liabilities)”—words with which officials terrorize their ministers, The FCO’s role will remain crucial. It is in daily contact with Governors; and its ministers and officials have the legal authority to use Orders in Council and other means to instruct Governors on what they are to do or not to do. There are encouraging signs from the FCO under Mr Simmonds and the new Director of Overseas Territories. However, there is a long way to go to overcome the effects of the latter’s two predecessors, even to re-establish the state of a decade ago, before making improvements beyond that. We wish them well. We also encourage them to put in the considerable effort needed to make the Whitehall policy and resource architecture work better in relation to the overseas territories. We hope that your committee’s report will result in more constructive responses from Government than was the case with your and the FAC’s earlier reports on the overseas territories.
19 August 2013
1 Note that, in an attempt to improve the quality of drafting in Whitehall, a DFID Minister, in a widely reported minute of June 2012, included “mainstreaming” as one of the terms not to be used.
2 Options here include Commissioners for: Environment; Maritime Affairs and Fisheries; Justice, Fundamental Rights and Citizenship; Inter-institutional Relations and Administration; Internal Market and Services; Taxation, Customs, Statistics, Audit and Anti-Fraud.
3 Changes to the Darwin Initiative were announced following the publication of the FCO White Paper on UK Overseas Territories but the consequences for Gibraltar are as yet unclear