4Points of friction in UK/OT relations
57.Many of the issues that elected leaders, representatives and members of the public in the OTs brought to our attention are structural, from the OTs’ struggle to be heard in Whitehall, to the difficulties associated with being understood in Parliament when they are not directly represented in either House, and the challenge of securing long-term funding. The solutions to these problems need to be considered carefully and in good time. There are, however, more immediate problems that must be addressed soon. From the OTs’ perspective, two such problems are: anomalies in the rules around claiming citizenship by descent and access to NHS services in the UK. From the UK perspective, two prominent points of divergence that are causing friction in its relationships with some OTs are: same-sex marriage and belongership.
OT grievances with the UK: citizenship and the NHS
58.The issue of citizenship by descent stems from an anomaly in the British Nationality Act, which means that fathers with British Overseas Territories Citizenship cannot pass it on to children born outside the OTs between 1948 and 2006, if they were not married to the child’s mother at the time of birth.103 In May 2018, the Joint Committee on Human Rights described this anomaly as an unacceptable form of discrimination, while Montserrat’s representative, Janice Panton, said it “has caused a lot of anguish among some parents”.104 Lord Ahmad was not able to indicate when the matter would be resolved. He said that “discussions are ongoing across Government on this”.105
59.In terms of access to NHS services, Blondel Cluff, Anguilla’s representative in the UK, told us that no more than four patients in Anguilla can receive NHS treatment in the UK each year, even though the island’s population has increased 125%, from under 7,000 to 15,000, since the quota began in 1985. As a result, she said, “a British citizen’s life chances are diminished simply by residing in a BOT”.106 In his written submission, former BVI representative in the UK Benito Wheatley described the quota, which also applies to BVI, as “inexplicable”, especially because “the overall number of persons in the OTs who require such attention is miniscule”.107 The Chief Islander of Tristan da Cunha, Ian Lavarello, told us that it is in an even worse position because it is “one of a handful of OTs currently excluded from participation in the scheme that allows referral of complex medical cases to the NHS”.108
60.The Government should urgently address concerns in the OTs about the issue of citizenship by descent and anomalies in the British Nationality Act that have taken too long to resolve. It should also consider options for removing quotas on the number of people in the OTs that can access NHS services in the UK when their own health systems cannot provide the care and treatment they need. This may be difficult from a bureaucratic point of view but it is an important test of the FCO’s ability to fight the OTs’ corner in the UK.
OT divergence from the UK: same-sex marriage and belongership
61.From a UK perspective, a notable point of divergence and friction is same-sex marriage, which has been legalised in all but the five OTs in the Caribbean (Anguilla, BVI, the Cayman Islands, Montserrat, and Turks and Caicos), though this bar is currently being challenged in the courts in the Cayman Islands.109 This means not only that same-sex couples cannot marry, it can also lead to restrictions on the ability of OT citizens to bring their same-sex spouse to live permanently in the territory, even if the couple was legally married outside the territory. The implications of this were outlined to us in a submission from Dr James Reeve, while the NGO Colours Cayman told us in its written submission that this puts OTs like the Cayman Islands in breach of international law.110 Despite this, Dr Peter Clegg told us, opposition to legalising same-sex marriage in the Caribbean OTs is strong:
It is certainly a problematic issue across the Caribbean, including within the Overseas Territories. It is divergent from the UK policy and approach in general. There are heated discussions, but there are certain actors within Overseas Territory societies and the Caribbean more generally, including church groups, who have fought and are fighting very strongly against any change to legislation.111
We asked the elected leaders of Anguilla, Montserrat and TCI if they intended to legalise same-sex marriage. The TCI Premier said: “We consult our people when we make major changes—that is what I will say”. The Montserrat Premier said that it was important for the UK to recognise that “as separate territories, with ethnic diversity from your territory and cultural differences, we ought to be allowed to make decisions on matters such as same-sex marriages”. Anguilla’s Chief Minister said: “This is a cultural issue in our part of the world, and it is necessary to have consultation”.112 We asked the BVI and Cayman Islands governments in writing to tell us if they would legalise same-sex marriage. BVI told us that its constitution defines marriage as between a man and a woman.113 The Cayman government did not respond.
62.In its submission, the FCO notes that progress towards same-sex marriage is “notably slower” in the Caribbean OTs than elsewhere and that “rights to same sex marriage are being contested”. It adds that the Government “has been clear that the OTs must fulfil their international obligations on the issue of LGBT equality. Encouraging legislative change continues to be a priority”.114
63.It is time for all OTs to legalise same-sex marriage and for the UK Government to do more than simply support it in principle. It must be prepared to step in, as it did in 2001 when an Order in Council decriminalised homosexuality in OTs that had refused to do so. The Government should set a date by which it expects all OTs to have legalised same-sex marriage. If that deadline is not met, the Government should intervene through legislation or an Order in Council.
64.The other point of divergence between the UK and many OTs is belongership. This status, or some variant of it, is enshrined in the constitutions of Anguilla, Bermuda, BVI, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat and Turks and Caicos. The term used to describe it varies; in the Falkland Islands, it is called Falkland Islands status, and Gibraltar and TCI have equivalents. In general, those who do not have belonger status, or the equivalent, cannot vote or hold elected office, even if they are permanently resident British Overseas Territories or UK citizens. In the case of the Turks and Caicos Islands, for example, its government says a belonger is “an individual who is free from immigration restrictions in relation to the amount of time they may remain in the islands”. According to the TCI government, “only belongers have all the rights normally associated with citizenship, such as voting”.115
65.We asked some OT leaders and representatives about belongership when they appeared before us. The Anguillan, Falkland and TCI leaders and representatives said it was possible to obtain but they did not say that they planned to repeal it. Teslyn Barkman from the Falkland Islands said: “There is a certain importance in enshrining what it is to be a Falkland Islander, so we have to put these gates up somewhere in terms of voting or being able to buy land or sell it on”.116 We asked the Bermuda, BVI and Cayman governments the same in writing. Bermuda said it was a devolved matter; the BVI government said that its constitution “recognizes the distinctive character and culture of the BVI and seeks to ensure its protection”.117 Cayman did not respond.
66.In its written submission, the FCO points to its 2012 OTs White Paper, which expressed the hope that the OTs would extend the franchise to non-belongers:
In some OTs, the size of the electorate is small compared with the overall population, with ‘belongership’ a constitutional prerequisite to qualify as an elector and to stand for election. The 2012 White Paper stated the UK Government’s belief that people who have made their permanent home in the OTs should be able to vote, but recognises the desire of island communities to maintain their cohesion and hence the need for a reasonable qualifying process. We hope for progress on this point in the future.118
Lord Ahmad told us that “The principle of the White Paper remains the case” but that the OTs “feel very strongly about the issue” and that it is “an issue that they should be ruling on”. He added that he did not intend to intervene.119
67.Belongership and its equivalents are wrong. While we recognise that the OTs are small communities with unique cultural identities, we do not accept that there is any justification to deny legally-resident British Overseas Territory and UK citizens the right to vote and to hold elected office. This elevates one group of British people over another and risks undermining the ties that bind the UK and the OTs together in one global British family. The UK Government should initiate a consultation with the elected governments of the OTs and work with them to agree a plan to ensure that there is a pathway for all resident UK and British Overseas Territory citizens to be able to vote and hold elected office in territory. In its response to this report the FCO should lay out a timetable for this consultation process and set a deadline for phasing out discriminatory elements of belongership, or its territory-specific equivalents.
104 Q87; Joint Committee on Human Rights, Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018, 23 May 2018, para 79
109 Pink News, ‘The UK has neglected LGBT+ people in British Overseas Territories in their hour of need’, (12 February 2018)
115 Turks and Caicos’ government: Essential dimensions of immigration [accessed 21/01/2019]. For individual perspectives see: Russell David (OTS0006); Mr Christopher Marshall (OTS0034)
Published: 21 February 2019