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).

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Northern Ireland: how can power-sharing be revived?

Alan Whysall was a panellist in the session on Northern Ireland at the Unit’s State of the Constitution conference on 23 June. This revision of his talk draws on his paper for the Unit on Northern Ireland’s Political Future, and its accompanying blogpost. He argues that stable power-sharing can only return through good faith inclusive negotiation – which is not a part of London’s current approach – and a reinforcement of the foundations of the Belfast/Good Friday Agreement.

It is essential to bring all the Belfast/Good Friday Agreement institutions back as soon as possible: that unlocks the potential for political progress. Without the institutions, polarisation grows; the longer they are away, the harder ultimately the Agreement settlement is to sustain. And there is no alternative as a framework for the stable government of Northern Ireland.

Devolution still has wide popular support and the political class has a strong self-interest in restoring the institutions, if only because paying them not to undertake government is becoming unpopular. But there are big questions about how.

The government’s approach

Can the institutions be stably restored the government’s way? Setting aside for now judgements about the government’s approach, its integrity, or the extraordinary contents (breach of international obligations, vast delegation of powers to ministers) of the Northern Ireland Protocol Bill, this seems to me to be doubtful.

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The role of judges in judicial appointments in Ireland

The Irish government has proposed a bill to reform the method by which the country appoints its judges. Patrick O’Brien discusses the proposals, and argues that several of the criticisms levelled against the bill lack force.

Judicial appointments in Ireland are shortly due to be put on a more formal footing. When the Irish Judicial Appointments Commission Bill 2022 is enacted, it will provide for an appointments commission designed in the image of many similar bodies that have been developed in common law jurisdictions in the last 30 years. The bill has, however, been the subject of recent criticism from the Chief Justice, Donal O’Donnell, who has questioned the composition of the proposed Commission.

Judicial appointments have been something of a saga in Irish politics in the last few years. The current system is widely regarded as inadequate and has been the subject of repeated proposals for reform in the past decade. An independent Judicial Appointments Advisory Board (JAAB), chaired by the Chief Justice, receives and comments on applications for judicial office from outside the judiciary but leaves appointments essentially to the political discretion of the government, which in theory (though all the evidence suggests, not in practice) leaves open the possibility of a more politicised judiciary. Promotions of existing judges are not considered by the JAAB at all. It is generally accepted, therefore, that appointments require reform. The current bill is the second to be put to the Oireachtas (Irish Parliament) since 2017. The 2017 bill was demanded as the price of entering coalition government by Shane Ross, a campaigning journalist and then an independent TD. This bill would have created a rather unwieldy body with 13 members and a lay majority and chair, as well as a number of sub-committees which would be called into being depending on the nature of the appointment. For a small jurisdiction which makes only a handful of judicial appointments each year, the system was significantly over-designed.

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