Arrests, constitutional tensions and the UK government’s relations with Overseas Territories

Overseas Territories flags (CC BY 2.0) by Foreign, Commonwealth & Development Office.

The arrest of the Premier of the British Virgin Islands in April and a Commission of Inquiry’s finding of ‘parlous failings in governance’ have raised questions about the British government’s relations with and stewardship of its Overseas Territories. These issues are raised in moments of crisis, following natural disasters, acute periods in the several sovereignty disputes linked to the Territories, or headline-grabbing scandals. George Fergusson argues that they merit more regular review.

The decision on 8 June of a British official to reject the principal and firm recommendation of a Commission of Inquiry by a former Court of Appeal judge has produced little political or media stir. This is largely explained by the decision being one concerning a British Overseas Territory, in this case, the British Virgin Islands (BVI).

The recommendation was that a period of direct rule was needed to implement a series of urgent and radical reforms identified by Gary Hickinbottom’s damning report on corruption and ‘parlous failings in governance.’ As Hickinbottom wrote: ‘Such a suspension is not only warranted but essential, if the abuses which I have identified are to be tackled and brought to an end.’

The report’s publication was accelerated by several weeks after the dramatic arrest on 28 April of Andrew Fahie, the BVI’s premier, at Miami International Airport, together with the managing director of the BVI Port Authority, with all the classic movie trappings of a sting by the United States Drug Enforcement Agency.

Fahie’s arrest, unlike the decision on direct rule, was sensationally published across the British media. While the decision was formally made by the BVI’s Governor, John Rankin, this will have been in close consultation with Foreign Secretary Liz Truss and Amanda Milling, the minister responsible for Overseas Territories within the Foreign, Commonwealth & Development Office (FCDO).

The UK’s relationship with its Overseas Territories

The contrast between the profiles of the two events encapsulates much about Britain’s links and responsibilities with its 16 Overseas Territories. The 13 with settled communities have a combined population of 270,000. They are not part of the United Kingdom (UK) but have British-appointed governors, under constitutions which are Orders in Council of the Westminster Parliament.

In practice, most have a high degree of devolution, though their political arrangements vary widely. Bermuda (population 65,000) has a parliament dating from 1620 (before the formation of the United Kingdom). Its constitution was adopted in 1968 in preparation for, and in the expectation of, a transfer to independence which has not yet happened, having failed to pass in a referendum in 1995. Its governor is responsible for national security (including the police and the Royal Bermuda Regiment), external relations and a range of senior appointments, but the elected government has a level of devolution well beyond anything contemplated for devolved areas of the UK.

At the other extreme, Pitcairn, with a population of around 50, has a locally elected council and Mayor, but the governor, based in Wellington, New Zealand, is both the island’s executive and its legislature. Most other Territories are nearer the Bermuda end of the spectrum. Most governors, though not Bermuda’s, chair Cabinet meetings and have powers to approve, or not, annual budgets.

The recent events in the BVI, especially Fahie’s arrest, fall within a familiar pattern in relation to Britain’s relationship with the Territories. Occasional dramas – devastating hurricanes, major sovereignty disputes or spectacular financial or criminal scandals – generate headlines and, sometimes, brief periods of wondering what should be done about it.

For instance, the terrible damage done by Hurricane Irma in the BVI, Anguilla and the Turks and Caicos Islands (TCI) in 2017 stimulated an inquiry by the House of Commons Foreign Affairs Committee on how the UK government managed its responsibilities for the Overseas Territories. Its recommendations were largely rejected by Whitehall.

The sovereignty claims, relating to Gibraltar (by Spain), the Falkland Islands (by Argentina) and the British Indian Ocean Territory (BIOT) (by Mauritius), have the capacity to become catastrophically serious: this month marks the fortieth anniversary of the Falklands War, which cost over 900 lives and changed the political fortunes (in different ways) of both the British and Argentine governments. Even short of war, like most sovereignty matters, they can generate, or be used to generate, strong passions.

More frequently many Territories’ (and also Crown Dependencies’) roles as offshore financial centres cause political and media concern. London’s efforts to tighten controls (sometimes against partly justified complaints by some territories that they have in place controls not yet present in the UK) have, whatever their merits, highlighted questions of power.

When should the UK government interfere?

While legally the UK government can legislate for Territories even in areas of transferred power, is it politically acceptable? This question has arisen recently in respect of Westminster’s Sanctions and Anti-Money Laundering Act 2018, containing deferred powers to introduce reforms on financial regulation if the relevant Territories have not done so themselves by a London-imposed deadline. It has been demanded, and contemplated, in respect of same-sex marriage, which remains illegal in Anguilla, Bermuda, Montserrat, the Cayman Islands and the Turks and Caicos Islands.

This has some overlap in British politics with the current pressures on the Sewel Convention concerning the application of Westminster legislation on devolved jurisdictions without consent by devolved legislatures. Same-sex marriage was legislated for Northern Ireland by Westminster, despite being a devolved matter, while its Assembly was suspended for other reasons. But devolution is played out against the background of almost all the Territories being regarded formally by the United Nations as ‘Non-Self-Governing Territories’ and a sometimes critical international audience ready to see assertions of UK authority in the Territories as a reversion to imperialism. This view can also be shared in the Territories themselves, particularly by the political players whose powers and, on occasion, personal interests are being challenged. But beyond this, a wide range of opinion in Overseas Territories, including those who do not favour independence, is doubtful of anything which binds them more closely with London.

This leaves a dilemma for British governments and legislators. Non-interference – even in areas like disaster preparedness – can run up against Territory administrations’ resentment at London’s, or a governor’s, involvement within an elected government’s areas of responsibility. But it can expose British governments to allegations at home and in the Territories of incompetence, or not caring, if disasters are not properly prepared for.

Financial and governance scandals are even more sensitive. They can call into question to some extent the authority of the locally elected governments. In almost all cases, not surprisingly, the Territory government concerned will deny, or play down, the allegations and accuse the governor, or UK government, of exceeding its powers and showing colonial reflexes. But leaving things alone may cause damage, ranging from a failure to protect the rights and economic wellbeing of citizens – most of whom are British nationals – in the places concerned, to serious reputational, and possible national security, risks for Britain in leaving financial and regulatory abuses unaddressed.

Within this acceptance, however, recent British administrations have shown different emphases. During the Labour administrations of 1997-2010, the policy was broadly ‘Stay if you want, leave if you want. Meanwhile we’ll value you and try to do as well by you as we can.’ For a brief period, particularly while Lord (David) Triesman was the minister responsible for Overseas Territories from 2005 to 2007, the policy was similar but tilted to something nearer ‘We won’t push you out, but it probably makes sense where possible for you to leave, with our help.’ Since 2010, the coalition government and successive Conservative administrations, while still accepting the right of self-determination, have shown more direct enthusiasm for keeping the connections – closer to ‘We respect your right to leave if you must, but we would much prefer you to stay.’

In keeping with this, the current government’s Integrated Review of Security, Defence, Development and Foreign Policy of 2021 said that the bond between Territories and the UK gave Britain ‘an advantage in an increasingly competitive global environment and a distinctive and influential voice in the world’, security benefits arising from almost all the Territories, and cited benefits and responsibilities in the areas of sustainable economic growth, marine protection and biodiversity conservation. This places the Territories in the context of the government’s concept of ‘Global Britain’. Nonetheless, it is not clear that any of these subtly different shades of self-determination have led, or will lead to, real differences in practice. All are defensible.

Meanwhile relationships are almost bound to be difficult. There is little bandwidth in Whitehall (or what used to be Fleet Street) to pay much attention to the Territories, between crises. Territories might be given more rights to call relevant ministers to account or to raise their concerns, by having some representation in parliament (as the Dutch and French do with their overseas territories; American territories have non-voting elected delegates with speaking rights in Congress). But, with the possible exception of Gibraltar, and maybe the Falkland Islands, the other Territories would resist this creation of a closer bond with the UK.              

Where to now?

The House of Commons Foreign Affairs Committee recommended in 2019 that consideration be given to revising Whitehall’s management of its relations with the Overseas Territories. It suggested handling these, alongside relations with the devolved governments and the Crown Dependencies, should be the responsibility of the Cabinet Office rather than the Foreign Office. This was rejected. However, an incidental effect of the creation of the Foreign, Commonwealth and Development Department should be that at least coordinating the political and development relationship with Overseas Territories should become easier.

Against this background, the result of the decision not to impose direct rule on the BVI will be interesting. Many thought it would be inevitable, given the appalling picture of misgovernment, across parties, uncovered by the Commission and Hickinbottom’s extremely clear recommendations. The premier’s arrest, on charges related to alleged drug smuggling and unconnected with the Commission’s revelations, seemed likely to tip any balance. Direct rule had been successfully introduced in the TCI in 2009 in similar circumstances and in the teeth of fierce opposition from virtually all local politicians and in the wider region. Widespread reforms were introduced, which have been broadly accepted, even welcomed, in retrospect. A new constitution was promulgated in 2012 and a newly elected government resumed power later that year.

The immediate political response in the BVI was different, perhaps influenced by the premier’s high-profile arrest. Following the early publication of the Commission’s report, almost all members of the legislature publicly recognised the criticisms and need for radical reform (the one exception had been particularly strongly criticised in the report). A National Unity Government was formed, publicly committed to reform and implementation of the report’s recommendations. It appealed to be allowed to carry out reforms itself, undertaking to work closely with the Governor. But it asked firmly that it stayed in post in order to do it.

After nearly six weeks, the governor, John Rankin, announced that this proposition had been accepted. Direct rule remained as an option if need be, rigorous milestones would be set out, and progress would be marked transparently against them. At the moment, a period of remarkable partnership seems to have been embarked upon.

If this approach works, it may ease wider tensions between the UK government and Territory governments and set a model for whatever reforms may be needed elsewhere. But the wider British public, and most politicians, are unlikely to hear much about this, or any other issue involving Overseas Territories, until another crisis, disaster or scandal.

About the author

George Fergusson is a former civil servant who served in the Northern Ireland Office, FCO and Cabinet Office. He was Governor of Bermuda between 2012 and 2016 and High Commissioner to New Zealand (and Governor of Pitcairn) from 2006 to 2010).