Lords debate UK relationship with OTs
(CNS): Following the acceptance last month by the Bermuda government of four Chinese Muslim Uighurs, who were released from the US detention centre at Guantánamo Bay without the permission or knowledge of the British government, a member of the House of Lords suggested there was a case for a wider review of the position of the UK overseas territories. Noting that the UK has imposed direct rule on the Turks and Caicos Islands and the “problems in relations to” the use of OTs as tax havens, Lord Foulkes of Cumnock asked during a debate in the UK’s upper house of parliament whether it was time that an “overall, comprehensive consideration was given to the role of the overseas territories, their constitution and their future?”
Foreign and Commonwealth Office (FCO) Minister of State Lord Malloch-Brown, however, disagreed but said the actions of the Bermuda government “shows that … really unfortunate slips can occur”.
While the FCO immediately stated its concern over the surprise move by the Bermuda government in June, according to The Royal Gazette, Premier Ewart Brown has since received a letter of thanks from US Secretary of State Hillary Rodham Clinton, who wrote: “I hope that your courageous action will inspire others to step forward and join us in the ongoing effort to close Guantánamo Bay Detention Center. Indeed, Bermuda’s leadership significantly advanced that effort.”
In the House of Lords debate on 13 July, Lord Wallace of Saltaire asked whether negotiations between British Overseas Territories and the US for the acceptance of detainees formerly in United States custody fall within their delegated authority for conducting international negotiations. It did not, said Lord Malloch-Brown, noting that the external affairs of a territory remain part of the special responsibilities of the governor under each territory’s constitution.
“Is it not extraordinary that the Government of Bermuda negotiated directly with the United States Government that senior members of the White House staff would accompany the Uighurs from Washington to Bermuda without informing the British Government?” asked Lord Wallace. “Do the government think that it is possible to sustain the current relationship with our overseas territories in the western Atlantic and the Caribbean, given the extent of their dependence on the United States for American money—legal and illegal—in those territories and the extent to which the American Administration now expect to influence what goes on in those territories, and I have not even mentioned Grenada yet?”
(In 1983, the Reagan administration sent forces to invade Grenada, ostensibly to protect US citizens.)
“My Lords, it is extraordinary,” agreed Lord Malloch-Brown. “Clearly, there was a real breakdown here. The United States has assured us that it understood that the Prime Minister of Bermuda had the right to negotiate in this case because he asserted such to them. It has led us to announce a review of the operation of this entrustment, but it is clear that there was a breakdown.”
Lord Foulkes then asked whether there was a case for a wider review of the position of UK overseas territories, “given that the Turks and Caicos Islands are subject to direct rule from the United Kingdom because of events there? Given the problems in relation to the use of overseas territories as tax havens, as well as the remarkable issue raised by the noble Lord, Lord Wallace, is it not about time that overall, comprehensive consideration was given to the role of the overseas territories, their constitution and their future?”
Lord Malloch-Brown said he thought that the overseas territories, “which have probably lived in the shadows of British foreign policy for a while,” were for a number of reasons becoming more central. “Tax havens and the impact on the economies of a number of these territories as a result of removing tax privileges, the broader impact of the economic crisis combined with the criminal issues with which some have been grappling because of their location and now this issue have put them front and centre again. It is in understanding what we do and do not delegate to them, and ensuring that they understand it, that the solution lies. I am not sure that a wider review is necessary for that commonsense to prevail.”
Asked whether similar issues had arisen following the invasion of Grenada in the 1980s, Lord Malloch-Brown said they did. “I suppose that we had hoped that they had been resolved then and that we had an understanding from future Administrations, particularly one as typically sympathetic as the Obama Administration. But it shows that even in this situation really unfortunate slips can occur.”
Meanwhile, The Royal Gazette notes that three marches were held in protest of Brown’s handling of the Guantánamo Bay affair and the United Bermuda Party led a vote of no confidence, which failed in the Bermuda House of Assembly.
The FCO has still not issued a statement concerning the appointment of Chris Bryant, the openly gay Welsh MP and former Anglican vicar, as Parliamentary Under-Secretary of State with responsibility for Overseas Territories.
Category: Headline News
Given that the "fight" would presumably take place in London between a UK citizen and the Foreign Secretary in resepct of English law it would seem highly doubtful that anyone posting on this board would have anything to do with opposing it.
Because of course no one on this Board is a UK Citizen, qualified to practise English Law, has any rights of audience before the English Courts, or has locus standi to apply for judicial review before an English court.
You are an ignorant clown.
A declaration of incompatibilty, a damages claim and and an active special interest group should be enough to ensure a change to the Constitution of an Overseas Territory,
"A declaration of incompatibilty, a damages claim and and an active special interest group should be enough to ensure a change to the Constitution of an Overseas Territory"
Looks like you’re spoiling for a fight. You will get one!
It is only in the last few years that it has been confirmed that the UK’s actions outside the United Kingdom itself are amenable to a challenge under the Human Rights Act and that Orders in Council are subject to review.
Since the Constitution failed to incorporate expressly the terms of the ECHR into Cayman law directly, the chance of inadequate transposition in the new Constitution leading to a rights challenge in the UK must be very high, especially since the directness of remedy and the scope of the available rights will be wider in London than George Town.
If the High Court orders that the Consitution is incompatible with the ECHR the UK would be obliged to introduce changes to the Constitution to make it compatible through Orders In Council. That will not need a referendum.
"It is only in the last few years that it has been confirmed that… Orders in Council are subject to review"
Since the House of Lords decision in Council of Civil Service Unions v. Minister for the Civil Service, 1985 it has been known that Orders in Council are judicially reviewable.
"Since the Constitution failed to incorporate expressly the terms of the ECHR into Cayman law directly, the chance of inadequate transposition in the new Constitution leading to a rights challenge in the UK must be very high"
That is clearly overstating your case. There is no reason to be believe such a risk, while it exists, is "very high". The Cayman Bill of Rights covers the same ground as the ECHR and there is room for derogations. I do not see that there is much substance to the contention that it is not compatible with the ECHR.
If the High Court orders that the Consitution is incompatible with the ECHR the UK would be obliged to introduce changes to the Constitution to make it compatible through Orders In Council. That will not need a referendum".
"Obliged" would be misleading if it is intended to suggest that a declaration of incompatibility is legally binding, and I know that you are scrupulous about such things.
Pursuant to section 4(6) of the HRA, a declaration of incompatibility (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.
I think there is not much between us really except for the likelihood of UK-imposed intervention. If the Constitution was found by a UK Court to be a breach of the UK’s obligations or if the UK wishes to has a strong wider interest to intervene (gay rights would seem a prime candidate), then I think the prospects of intervention are higher than you do. That imposed reform would be practically unchallengeable when Bancoult is analysed in detail.
But your initial statement on Monday that there would need to be a referendum in Cayman to change the Constitution is misleading to those who think this is a legal fetter on the UK. Such a statement as a proposition of law is wrong, rather it is an expression of real-politik.
Let us review. I was responding to suggestion that there is no fetter on the UK’s power to arbitrarily change our Constitution by Order in Council. That is incorrect as a matter of law because Orders in Council are subject to judicial review. The requirements of fairness etc. are in effect legal fetters.
Again, as a practical matter a referendum of Caymanians would be required for change of our constitution to be a Crown Dependency. There is simply no prospect of it happening otherwise.
But I see you have now taken a different tack: that the new Constitution might somehow be in breach of the UK’s human rights obligations, rather than suggesting that the UK could just change the form of constitution to one of Crown Dependency. I have to say that it is extraordinary that this issue should not have arisen for the past 37 years when we clearly had (and have) a constitution which does not give effect to the UK’s international human rights obligations, but is suddenly seen as a major issue in respect of our new constitution which in all likelihood does.
Read Bancoult rather than the headnote. The House of Lords confirmed that while OiCs are subject to judicial review, the UK government is entitled to act in the wider interests of the UK rather than the inhabitants of any OT when exercising its powers. If changing the Cayman constitution is in the UK’s interests it can be changed unilaterally without any input from Cayman. Conventions are general practice not binding law. Of course the UK Government is unlikely to exercise its power so fervently, but it has the power. Bancoult also opens the way to challenge the inadequate provision for Human Rights in the new Constitution to be subject to legal challenge in the UK under the Human Rights Act directly.
To: Oh 13:12 (not verified) on Tue, 07/21/2009 – 07:54
I have of course read Bancoult and my point remains valid. The UK is to entitled to disregard our interests (although if it conflicts with its own interests, the UK interests may override). You need to read my posts properly. It clearly states what a constitutional convention means as a practical matter to the exercise of such powers, and not that it is legally binding. I see that you have now conceded that what you have been suggesting, i.e. the UK govt. could just decide one day to change Cayman’s constitution so that it became a Crown Dependency without any input from the people ofCayman is "unlikely". It is also unrealistic. That is the real point.
As a matter of UK consitutional law, nothing in the Cayman Constitution can restrict the UK’s ability to alter or amend the Cayman Constitution.
"As a matter of UK consitutional law, nothing in the Cayman Constitution can restrict the UK’s ability to alter or amend the Cayman Constitution".
Wrong again. The UK is not entitled to act arbitrarily and without regard to the interests of the parties affected by its Orders in Council. Orders in Council can be judicially reviewed in the UK courts upon our application.
See the House of Lords decision here: http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-1.htm
9:41 – you are wrong. An Order in Council cannot fetter the powers of Parliament or the Crown. As a matter of UK law any purported fetter on the UK’s ability to change the Cayman Islands’ Constitution such as to require Cayman approval for those changes is, at most, aspirational. Google "AV Dicey" and follow the links. Subordinate legislation, which includes anything passed by the LA, cannot affect the supremacy of parliament.
"9:41 – you are wrong. An Order in Council cannot fetter the powers of Parliament or the Crown".
There was no reference to Parliament in the post to which I was responding. No need to google Dicey. It is trite constitutional law that can be gained from any SWOT text that Parliament is supreme and its powers are not strictly speaking fettered. (It could also, without reference to the Welsh people, legislate that Wales is no longer a part of the United Kingdom but in practical terms that is not the way it works). The power is circumscribed by the convention that the UK will not alter the constitutional status of territories without their consent.
Bermuda – a country whose government cannot account for £800,000,000 of public money? The head of the government remains an unquestioned suspect in a criminal investigation? A government that attempted to silence the release of a confidential police report but the Courts ruled against them. Was accepting Guantanamo prisoners to appease the US in the hope the Bermuda Premier’s son will be treated leniently for the sex-related charges he is currently facing?
It appears Bermuda is independent; making up their own rules as they go along
11.59 changes to the Constitutions to allow OT to be treated as Crown Dependencies would not be too cumbersome as it could all be handled by Orders in Council in London – there would be no need for the OT’s themselves to be involved.
"11.59 changes to the Constitutions to allow OT to be treated as Crown Dependencies would not be too cumbersome as it could all be handled by Orders in Council in London – there would be no need for the OT’s themselves to be involved".
Wrong. This would require a referendum of the electorate in Cayman under the new Constitution.
There is a reason that the Crown Dependencies are always treated differently from the OTs. They had right of abode in the UK long before we did. Gordon Brown wants them to put "clear water" between themselves who are cast as respectable financial centres and the OTs who are depicted as rogues. Brits see them as "one of us" because of their common ethnicity. On the other hand we are the red-headed step-child.
It has been argued before that the UK government is in breach of its rights obligations under UK law to UK citizens resident in Cayman by denying them their right to vote.
Those of you who have followed the various Westminster Hall debates on the OTs will know that there are several parlimentarians that are of the opinion that the OTs should not be under the purview of the FCO, as Territories such as the Cayman Islands are neither ‘foreign’ nor ‘commonwealth’. Some have even gone as far as to suggest direct Westminister representation for the OTs. Now that would be an interesting turn of events…
It would indeed, Knal. In an interesting turn of phrase, the UK electorate may say "no representation without taxation"!
It would mean that the OTs would fall under the Home Office like the Crown Dependencies do. Not a far fetched idea and very possible Dompie (but under a different government) but that would mean some significant shifts in the present constitutions of the OTs.
Before this descends into the usual rhetoric, consider this.
Would the Cayman Islands be the beautiful INDEPENDENT country it is today without the UK? An independent Cayman would quickly (months) degenerate into an island ghetto, without any control. It is the influence of the UK, and the security that it brings to the few dedicated locals who are actually fighting for your country, that prevents the desent into anarchy.
Throw your accusations at me all you will, call me misguided, small minded, arrogant, patronising, whatever you want, but I think even the Bible says, ‘cast the spot from your own eye before you tell someone else to do so’ or words to that effect….
I should very much like to ask the Noble Lord, Foulkes of Cumnockand for that matter Lord Malloch-Brown why the supposedly ‘British’ Overseas Territories have traditionally fallen under the Foreign & Commonwealth Office (FCO)?
Is there a statement here that we were never fully British, but merly possesions? And are we now becoming an embarrassment that they would rather be rid of? Was SPITthe beginning of the process?
Please force independence on us.
That way we won’t have to deal with a bunch of cut throats in the UK selling us out, but calling themselves the ‘mother country’