British Overseas Territories Law

Abstract

The United Kingdom Government is committed to the good governance of its remaining overseas territories, as is seen for example by its careful handling of the Pitcairn sexual offences trial in 2004, and the temporary suspension of ministerial Government and the elected House of Assembly in the Turks and Caicos Islands in 2009. Bancoult (No. 2) v Foreign Secretary 2007 and R (on the application of Quark Fishing Ltd) (Respondents) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) are but two of the most recent cases, both of which reached the House of Lords. The standard areas of constitutional interest are dealt with in turn: the constitutional relationship between the territories and the United Kingdom; the Governor; legislative, executive and judicial authority; the Law Officers; the sources of the law of the territories; human rights; defence, public order and security, and emergency powers; nationality and belonger status; public finance; and termination of British sovereignty. (The international arbitration proceedings instituted by Mauritius against the United Kingdom in December 2010, concerning the BIOT Marine Protected Area, came too late to be mentioned.) Chapter 15 on 'The Territories and the European Union' is a most helpful introduction to a little-known area of EU law.

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This authoritative work fills an important gap in the literature on the constitutional and other law and practice of the 14 remaining British overseas territories. These are Anguilla; Bermuda; British Antarctic Territory (BAT); British Indian Ocean Territory (BIOT); Cayman Islands; Falkland Islands; Gibraltar; Montserrat; Pitcairn, Henderson, Ducie and Oeno Islands; St Helena, Ascension and Tristan da Cunha; South Georgia and the South Sandwich Islands (SGSSI); Sovereign Base Areas of Akrotiri and Dhekelia (in the Island of Cyprus); Turks and Caicos Islands; (British) Virgin Islands. The book does not deal with the Crown Dependencies (Channel Islands and Isle of Man).

The last comprehensive book covering the subject dates from 1966, Sir Kenneth Roberts-Wray's Commonwealth and Colonial Law. Since then, there have been important developments in both practice and case-law. Much has happened in terms of decolonization and the changing relationship between Britain and her remaining overseas territories: see, on the latter aspect, the 1999 White Paper Partnership for Progress and Prosperity: Britain and the Overseas Territories.

Like Roberts-Wray, the two authors have considerable practical experience of their subject. Ian Hendry is currently a Constitutional Adviser to the Foreign and Commonwealth Office (FCO). For many years before he was the chief FCO legal adviser dealing, among other things, with overseas territories law. Susan Dickson is an FCO Legal Counsellor, also with a good deal of hands-on experience of the law in this field. The law of the overseas territories is an important part of the work of FCO Legal Advisers. The FCO is fortunate to have enthusiastic and able lawyers working in this field. They are worthy successors to the lawyers of an earlier generation, and of predecessor Departments of State, who dealt with colonial and Commonwealth matters.

In the words of the authors, the aim of British Overseas Territories Law 'is to describe succinctly the law and practice relating to the British overseas territories'. Not all matters are covered, or covered in depth; this is deliberate in a work intended to be accessible and practical. Unlike Roberts-Wray, it does not cover in any detail the Commonwealth as such, or its independent Members, though it has an illuminating chapter on the termination of British sovereignty. It is not intended as the long-awaited 'second edition' of Roberts-Wray. Some (including this reviewer) may regret that. What we have instead is an up-to-date and self-contained vade mecum for all those currently involved in the affairs of the remaining overseas territories. The two books are complementary. Hendry and Dickson does not replace, though it does update, Roberts-Wray, which will continue to be necessary for the wider Commonwealth setting. For most non-specialists and non-lawyers, working in and with the overseas territories, and for most purposes, Hendry and Dickson will surely suffice. For those engaged in deeper study of the past, not least where litigation is involved, as increasingly seems to be the case, both may be essential reading.

Many of the remaining British territories are of great interest to the lawyer, including the international lawyer: BIOT, otherwise known as the Chagos Archipelago, which includes the American military base on Diego Garcia; the Falkland Islands, contested by Argentina; Gibraltar; and the Sovereign Base Areas in Cyprus--to name but four. And while three of the territories are not substantially populated (BAT, BIOT, SGSSI), the others do have resident populations, and some engage in important economic activities.

The United Kingdom Government is committed to the good governance of its remaining overseas territories, as is seen for example by its careful handling of the Pitcairn sexual offences trial in 2004, and the temporary suspension of ministerial Government and the elected House of Assembly in the Turks and Caicos Islands in 2009. This book should itself contribute to good governance, by ensuring that all concerned have an accessible source of reliable information on the fundamentals of the legal position of the territories.

The law relating to British overseas territories, past and present, comes up not infrequently in the English courts. Bancoult (No. 2) v Foreign Secretary 2007 and R (on the application of Quark Fishing Ltd) (Respondents) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) are but two of the most recent cases, both of which reached the House of Lords. They and other cases are analysed in this book, within the overall constitutional context. In addition, the book will contribute to a proper understanding of former overseas territories ('dependent territories', 'colonies'). It may happen that the courts are faced with 'historical' cases raising legal issues concerning former colonies that have long been independent. In April 2011, this book was cited in the High Court in London, within a month of publication, in Ndiku Mutua and others v Foreign and Commonwealth Office, an action in tort by five individuals arising out of the Mau Mau Emergency.

The law of the overseas territories often sheds light on the British constitution itself. Perhaps surprisingly for a country without a written constitution, Britain has contributed handsomely to the writing of constitutions for others, starting with its overseas territories. Long before the Human Rights Act 1998, the FCO was drafting fundamental rights chapters for certain of the territories, and this proceeds apace. The chapter on 'Human Rights in the Territories' is a valuable introduction to this matter.

The work is eminently readable, succinct and clear. The authors state at the outset that their 'deliberate objective is to state what the position is, as we understand it, not what we think it ought to be or whether it is justified.' They go on to say that they are 'legal practitioners, and academic analysis or criticism is better done by others....' As Jonathan Crow QC notes in the foreword, 'many of the legal principles which underlay the development of colonial law, and even the legal vocabulary in which it is expressed, are now so rarely encountered by practitioners that the case-law can seem impenetrable.' The authors render comprehensible even the most esoteric--not to say metaphysical--principles, such as the undivided Realm and divisibility of the Crown, and that most obscure of 19th Century legislative provisions, the Colonial Laws Validity Act 1865.

The work is divided into reasonably short chapters, each providing a rigorous, reliable and up-to-date account of a discrete area. The standard areas of constitutional interest are dealt with in turn: the constitutional relationship between the territories and the United Kingdom; the Governor; legislative, executive and judicial authority; the Law Officers; the sources of the law of the territories; human rights; defence, public order and security, and emergency powers; nationality and belonger status; public finance; and termination of British sovereignty.

The history, constitution and other legal aspects of each of the 14 remaining British overseas territories are helpfully set out in an annex. A small number of documents that are not readily accessible are reproduced. These include the (prerogative) British Indian Ocean Territory (Constitution) Order 2004.

Three chapters will be of particular interest to the international lawyer. They deal respectively with external affairs, international law, and the European Union. Chapter 13 on 'External Relations' explains that even in the field of external affairs 'times have changed'. Some questions relating to external relations are now dealt with in the modern constitutions, especially in the Caribbean. Entrustments in the field of foreign affairs are explained in detail, and those issued to the Chief Minister of the Virgin Islands and the Governor of Bermuda set out in full. A short passage explains the territories' external representation.

Chapter 14 considers 'the position of the British overseas territories and their peoples under international law, and the international responsibility of the United Kingdom for them.' The authors note that the territories do not have their own international legal personality. The chapter begins with a useful account of the relevant law and practice under the Charter of the United Nations, including article 73 (Declaration Regarding Non-Self-Governing Territories), the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, and the 'Committee of 24'. It then considers the emergence of the right of self-determination, and its significance for British overseas territories; the authors conclude that it is the 'other political status' freely determined by the people of the territory (referred to in the 1970 Friendly Relations Declaration) which the United Kingdom 'considers has been reached by all the substantially populated territories in the exercise of their peoples' right to self-determination.' The chapter contains sections on a number of practical issues, including the application of treaties to the overseas territories, and entrustments in the treaty field. It concludes with a short section on United Kingdom practice in response to sovereignty claims. (The international arbitration proceedings instituted by Mauritius against the United Kingdom in December 2010, concerning the BIOT Marine Protected Area, came too late to be mentioned.)

Chapter 15 on 'The Territories and the European Union' is a most helpful introduction to a little-known area of EU law. It describes the position following the entry into force of the Treaty of Lisbon on 1 December 2009, and examines in some detail the complexities of Gibraltar and the Sovereign Base Areas. The authors explain that 'the United Kingdom Government has always regarded the Treaty provisions on CFSP [common foreign and security policy] as a framework which, in itself, is not susceptible to territorial application. CFSP action, and measures adopted by the Union to implement the CFSP, have been regarded as forming part of a single United Kingdom foreign policy for all territories under United Kingdom sovereignty.'

This book is timely, coming towards the end of the period of review and modernisation of the constitutional relations, agreed between the United Kingdom and the peoples of its overseas territories, following the 1999 White Paper. It will be essential reading, and a work of reference, for all who deal with the law of the overseas territories, and for those interested in the British constitution and human rights. It has much to offer international and EU lawyers. It is highly recommended.