International Financial Law Prof Blog

Editor: William Byrnes
Texas A&M University
School of Law

Saturday, October 27, 2018

Written evidence from the Foreign and Commonwealth Office (OTS0103)

The Foreign Affairs holds evidence session on the future of the UK Overseas Territories.

Witnesses

Tuesday 16 October in the Wilson Room, Portcullis House

At 2.45 pm

  • George Fergusson, former Governor of Bermuda and (non-resident) Governor of Pitcairn
  • Susie Alegre, Director, Island Rights Initiative

At approx. 3.30 pm

  • Dr Peter Clegg, Associate Professor in Politics and International Relations, University of the West of England
  • Eric Bush, Director, Cayman Islands Government Office and Chair, UK Overseas Territories Association

Purpose of the session

The session will consist of two panels. The first will consider the health of the UK’s relationships with the Overseas Territories, the current OT governance model and whether and how it might be reformed. The second panel will focus on the Caribbean OTs and consider the particular set of challenges they are facing and the strains in their relations with the UK. 

Further information

1.       This note sets out the status of, and main issues affecting, the United Kingdom’s Overseas Territories (OTs). The OTs are valued parts of the British family and the UK is proud of its links to each of the fourteen OTs: Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, Cayman Islands, Sovereign Base Areas of

Akrotiri and Dhekelia in Cyprus, Falkland Islands, Gibraltar, Montserrat, Pitcairn

Islands, St Helena, Ascension and Tristan da Cuhna, South Georgia and the South Sandwich Islands, Turks and Caicos Islands, and British Virgin Islands. The OTs are a varied group of territories united in their place as part of the Realm. The UK’s role is to support and defend them, ensuring high standards of governance and helping them meet the challenges and opportunities of the future.  

 

2.      Many of the OTs have vibrant economies, great human and natural resources, flourishing communities, and deep and long-standing links to their regions and beyond.  Each enjoys significant practical, and in some cases financial, support from the UK. We should acknowledge, however, that the committee’s inquiry comes at a time of change for many of the OTs given the UK’s forthcoming departure from the European Union, changes to international financial regulation, the impact of climate change and questions raised in some territories about constitutional change. The Government believes that the future of the OTs is bright and that, working together with the UK, they can meet their challenges and prosper in the future.

 

3.      The current relationship between the UK and the OTs is rooted in a shared history and founded on mutual benefits and responsibilities. The UK Government takes extremely seriously its responsibilities to the OTs in the areas of defence; its role in building an appropriate constitutional relationship to empower resilient societies; and assisting the OTs (where necessary or appropriate) in building successful and resilient economies, improve standards of governance (including through expanding civil and political rights) and protecting vulnerable groups; and providing support to aid protection of the environment. The UK’s commitment to these will not waver. As economies and societies develop, some of the ways in which these commitments are delivered may vary in the future.

 

4.      The UK benefits from the talent and diversity of the people of the Territories, bringing creativity and skills to our universities and businesses. British Nationals from the OTs have a proud history of service in the UK’s armed forces. Many OTs offer unique and attractive tourism and trade opportunities, and the combined global footprint provides the UK with a permanent insight into many diverse regions across the world.

 

5.      The UK’s departure from the EU creates some uncertainty for some of the OTs. The Government is committed to fully involving them as we leave and to ensuring that their interests are properly taken into account in the exit negotiations. We are engaging directly and regularly with all the OT governments in relation to EU exit, including at the Joint Ministerial Councils (JMCs) between Overseas Territory leaders and UK Ministers, to help them prepare for exit day.

 

6.      Through the Global Britain Strategy the UK is committing additional resource, both in the UK and in the OTs, which reflects the value we place on building a successful and prosperous future in each OT.

 

SECURITY

 

7.       One of the UK Government’s most important responsibilities with regards to the OT is their defence. The OTs provide a set of strategic assets for the UK and its allies. The 2015 SDSR reaffirmed the importance of the OTs.  Situated in regions of geo-political importance, the Sovereign Base Areas (SBAs) on Cyprus and the Permanent Joint Operating Base in Gibraltar remain a high priority for the UK’s long-term national security interests. Each provides an adaptable and capable forward mounting base, enabling the positioning of personnel and equipment in support of global air and maritime operations.  Both provide excellent training locations for the Armed Forces. 

 

8.      As made clear in the 2012 White Paper, the MOD has a role to play in supporting our

OTs, particularly following natural disasters, such as in the Caribbean in 2017.  Over

2,100 personnel, strategic and tactical air transport, five support helicopters, HMS Ocean and RFA Mounts Bay deployed to the region to support the relief effort following Hurricanes Irma and Maria, and subsequently have developed detail contingency plans that provide a scalable response to future crises.  

 

9.      British Forces based on the Falkland Islands (BFSAI) deter aggression in the South Atlantic. BFSAI also provide humanitarian support to wider region if required, as recently demonstrated in the 2017 Argentine operation in search of the lost submarine, the ARA San Juan.

 

10.  The joint UK and US military base on the island of Diego Garcia in the British Indian Ocean Territory is a fundamental part of the UK’s defence relationship with the US.  The base is a key part of the US defence footprint and it contributes significantly towards global security, providing logistic support to operational forces forward deployed to the Indian Ocean and Arabian Gulf. The base has supported counternarcotics efforts, anti-human trafficking efforts, and efforts to counter illegal fishing.  Additionally, the base has provided a platform for response to environmental disasters such as the 2004 Indian Ocean earthquake and tsunami, 2011 earthquake and tsunami in Japan, and the 2013 response to the typhoon in the Philippines.  The base also supported the search and rescue missions in support of Malaysian Flight 370.

 

11.    UK Defence remains committed to the OTs and to fulfilling its obligations to them. As would be expected   in an uncertain world, the MOD will continue to review its global footprint and adjust as necessary.

 

12.   The UK and the OTs work together to tackle serious organised crime and international terrorism, including partnering with other countries and international agencies to protect the people of the OTs; and we continue to work cooperatively on ensuring OTs meet their international obligations on maritime and aviation security. 

 

ODA ASSISTANCE

 

13.   The Government is and will remain committed to meeting the reasonable assistance needs of OTs where financial self-sufficiency is not possible. DFID provides aid to three OTs eligible for Official Development Assistance (ODA): Montserrat, St Helena, including Tristan da Cunha, and Pitcairn. This ensures their governments can

provide effective public services. These islands face long term financial dependency on the UK due to their remote locations, weak economies, small or ageing populations and skill and labour shortages to fill critical roles. All three OTs are also vulnerable to financial instability and natural disasters.

 

14.   OECD Development Assistance Committee (DAC) members recognised in 2017 the vulnerabilities of countries hit by catastrophic humanitarian crises. The DAC agreed to work to create a new mechanism to allow countries to receive ODA when their income per person falls low enough, for example as a result of a catastrophic natural disaster or other crisis. They also agreed to work on a process which could allow previous aid recipients to receive short-term ODA support in the event of a catastrophic humanitarian crisis, even where their Gross National Income per capita would normally rule them out of receiving ODA.

 

15.   Looking ahead, we plan to review objectively the way in which the UK Government’s commitments to the OTs is most effectively discharged, taking account of the costs and benefits of the current arrangements. 

 

GOVERNANCE AND CONSTITUTIONAL ISSUES

 

16.   The OTs are largely self-governing territories under British sovereignty but are not constitutionally part of the UK. Most people living in the OTs are British nationals. By definition, the OTs are not sovereign so have no international legal personality separate from the UK.

 

17.   Inhabited OTs (except for the SBAs) have elected legislatures and elected leaders responsible for most aspects of government, including making territory laws, managing public finances and providing public services. Each territory has a Governor or similar official, appointed by HM the Queen on the advice of UK Ministers, who is Head of the OT Government. OT constitutions set out the detailed responsibilities of OT Ministers, the legislature and the Governor, and are established by Orders in Council. 

 

18.   The UK, as the sovereign power, has a fundamental interest and responsibility to ensure the security, defence and good governance of the OTs and their peoples. This stems from international law including the UN Charter, from our shared history and our political commitment to the wellbeing of all British nationals.

 

19.   The 2012 White Paper aimed to create the conditions for an ‘enduring partnership’. In the White Paper, the UK set out its vision for the OTs to be economically vibrant communities and to meet standards in good governance to ensure the wellbeing of their peoples. The UK expects high standards of public financial management in the OTs to ensure economic stability; high standards and transparency in public life to ensure freedom from corruption, that officials, whether elected or public officers, can be held to account and that institutions have public confidence; the OTs’ compliance with their international obligations, including in relation to protecting vulnerable groups and ensuring democracy; and that security and justice institutions uphold the rule of law. 

 

20. For most OTs the UK Government relies on elected OT Ministers and legislatures to deliver expected standards of governance in areas devolved to them. They have broad responsibilities including education, health, environment, immigration, economic development, sport and culture, social policy, and transport. The Governor’s powers vary between OTs, but in general include responsibility for external affairs, defence and internal security including the police, and the public service. 

 

21.   With their limited populations and/or geographic remoteness, OTs can face human resources challenges. Where there is a capacity risk that high standards of governance may not be met, the UK government offers support. The UK is spending £14.8m in FY 2018-19 through the Conflict, Stability and Security Fund (CSSF) to support justice, security and governance in the OTs (this figure does not include dedicated hurricane reconstruction funds). Examples of assistance include providing support to strengthen child protection across the OTs and boosting the resources of Anguilla’s Central Electoral Office to administer the 2020 elections.  

 

22.  The Governor and the UK Secretary of State have certain reserved powers in OT constitutions, which vary in accordance with the specific provisions of individual constitutions. The Westminster Parliament is able to make laws for the OTs and has done so in a number of areas, usually with the support of or at the request of OT Ministers. There are also separate powers to make Orders in Council for most of the OTs.  The powers to legislate for them without their consent are generally exercised only in exceptional circumstances. In extreme cases where governance breaks down, the UK Government has intervened to reset the situation, such as in the Turks and Caicos Islands where the Governor led an Interim Administration from 2009-2012. 

 

23.  In the event of an overwhelming natural disaster, the UK Government has crisis response systems in place ready to coordinate and support the response, and will step in with an appropriate scale of assistance for the crisis and recovery at the request, and in support, of the Territory Government. The Rapid Response Mechanism (RRM) enables a rapid cross-government response to crises, including in the

Overseas Territories. It allows up to £40m from the Conflict, Security and Stability

Fund (CSSF) to be quickly released. The RRM was used effectively during the crisis in 2017, with a combined commitment of £72 million to support the immediate needs and early recovery of the OTs affected by hurricanes Irma and Maria. RRM procedures were also reviewed and improved ahead of the current hurricane season. 

 

24.  The choice to remain a British OT involves responsibilities and benefits for the OTs. The UK Government believes the current constitutional balance of powers is broadly the right one.  As sovereign power, the UK must retain sufficient powers to enable us to discharge our constitutional and international responsibilities both to OT populations and in international fora. This position is set out in the 2012 White Paper and has been agreed in the communiqué at successive annual JMCs.

 

25.  The 2018 Sanctions and Anti Money Laundering Act (SAMLA) enables the UK to impose and implement sanctions regimes in order to comply with our obligations under the United Nations Charter and to support wider foreign policy and national security goals. Improving transparency of Beneficial Ownership information is a key part of the HMG Anti-Corruption Strategy. The aim of the international beneficial ownership campaign agreed by Ministers in the summer, is to improve transparency and raise international standards and norms. In response to parliamentary debate, it includes a provision requiring the Secretary of State to prepare a draft order in council by the end of 2020 requiring any OT Governments who have not yet done so to introduce public registers of company beneficial ownership. We acknowledge the ill-feeling created in the OTs as a result of this legislation. Many OT Governments felt that Parliament had interfered in an area of their devolved responsibility.

 

26.  Some OTs have put forward proposals for constitutional reform to address this concern. Ministers have asked OT Governments to submit detailed written proposals for consideration, while making clear our position that we believe the current balance of powers is broadly the right one. Our strategy – as set out in the White Paper – is to ensure that the constitutional arrangements work effectively to promote the best interests of the OTs and of the UK. The majority of the OT constitutions were updated between 2006 and 2011. 

 

27.  The UK appreciates the OTs as a valued, long-term part of the British family. The position of successive UK governments over many decades is that any decision to terminate British sovereignty through independence should be on the basis of the clear and constitutionally expressed wish of the people of the relevant OT. Were this to happen, and where independence is a viable option, the UK would help to achieve it.

 

28.  The UK Government is responsible for the external relations of the OTs, but we encourage OT Governments to play an active role in building productive links regionally and with the wider world and in some circumstances to conduct external relations on their own behalf. Many of the OTs are therefore, members or associate members of regional and other organisations e.g. CARICOM and UNESCO and have relationships with the EU. The OTs are part of the Commonwealth through their connection to the UK, but cannot represent themselves in Ministerial fora such as the meeting of Heads of Government. We take, however, steps to ensure that their voices are heard: they can be part of the UK delegation and represent themselves at the Commonwealth Small States meeting and the Commonwealth Games.

 

ECONOMIC STABILITY, SUSTAINABILITY AND DIVERSIFICATION

 

29.  Most Caribbean OTs, Bermuda and Gibraltar have developed successful financial, business and professional services and tourism industries.  The Southern Oceans Territories have generally developed successful fishing industries as well as agricultural activity and export their products around the world.

 

30.  However the OTs face structural challenges in creating sustainable economies due to factors such as their small populations, limited natural resources, high international competition, or (for some) remote geographies. Their economies are largely characterised by a high reliance on one or two industries, proportionately large public sectors, a highly mobile capital base, and a significant reliance on imports for food, raw materials and manufactured goods. This makes them more vulnerable to global economic shifts, changing regulatory standards and natural disasters. In turn, these vulnerabilities have a direct bearing on their fiscal sustainability and their subsequent ability to provide public services or invest in infrastructure.  

 

31.   The UK Government is committed to supporting OT Government-led initiatives to diversify into new markets or industries. Most recently, this has included visits by Lord Ahmad of Wimbledon, Minister of State for the OTs, to Montserrat and Anguilla with private sector representatives to encourage greater private sector participation in supporting these opportunities. Although some OTs are implementing ambitious economic development strategies, most are yet to develop these. EU Exit will also pose economic challenges. 

 

32.  The UK Government works with the OTs to ensure sound management of public finances through, amongst other means, Fiscal Framework arrangements with nonODA Caribbean OTs and the Falklands. These frameworks are embedded in domestic legislation and specify targets for levels of public debt, debt service and fiscal reserves as well as helping to foster best practice and deliver value for money. Implemented correctly, these frameworks help to improve OT Government credit ratings, build investor confidence, and ensure fiscal resilience in the face of crisis.

 

33.  The UK Government will continue to encourage the OTs to develop economic development plans. In the future a greater emphasis could be given to assisting OTs to access new markets by integrating the OTs into the Global Britain strategy, leveraging the UK’s significant diplomatic and trade presence overseas to encourage greater trade and investment and value added activity in the OTs, and assisting OTs to access financing for infrastructure development in order to support new industries. 

 

34.  The Organisation for Economic Cooperation and Development (OECD) and International Monetary Fund (IMF) classify all of the Caribbean OTs, Bermuda and Gibraltar as “Offshore Financial Centres” (OFCs). As largely self-governing jurisdictions, the OTs are largely autonomous in the regulation of business and financial services. They are also responsible for setting their own rates of taxation, and the UK Government respects their right to compete in this area. At the same time, the UK Government expects and encourages OTs to implement and maintain high standards of regulation to tackle any potentially harmful use of their globally significant jurisdictions.

 

35.  OTs with OFCs have made commitments to implement global tax and financial transparency. They are members of Financial Action Task Force-style regional bodies where they have committed to implementing measures for Anti-Money Laundering and Combatting the Financing of Terrorism. A number of OTs are also engaged with the EU’s Code of Conduct Group (Business Taxation) to address harmful tax competition and have made commitments to amend domestic legislation. Separately, the UK Government concluded Exchanges of Notes with OTs with financial centres to collect and exchange information with UK law enforcement agencies on beneficial ownership for companies incorporated in those jurisdictions.

 

36.  Whilst OTs have made commitments to implementing global standards, they are at varying stages of progress, due to a lack of political prioritisation by some, and a lack of technical and financial resources to implement technical protocols. Combined these have the potential to cause the OTs to fall below global standards or be considered candidates for blacklisting. 

 

37.  The UK Government has worked with OT Governments to ensure that, where technical and financial resources are not available, we provide assistance. The UK Government is looking to expand its resourcing to help OT Governments speed up progress through assistance with legislative drafting and implementation of global standards. 

 

 

 

CIVIL AND POLITICAL RIGHTS 

 

38.  The UK and the OTs share a common agenda in promoting and protecting human rights and tackling discrimination. The UK Government expects the OTs to abide by the same basic standards of human rights as the UK, and is responsible in international law for ensuring that the OTs fulfil their obligations arising from relevant international human rights Conventions. OT Governments have a duty to ensure local law complies with the relevant Conventions and court judgements, and is non-discriminatory and we expect OTs to take action, including legislating where necessary, in any areas of disparity to reach full compliance.

 

39.  Almost all populated OTs have had the following Conventions extended to them: the

International Covenant on Civil and Political Rights; the International Covenant on

Economic, Social and Cultural Rights; the International Convention on the Elimination of all forms of Racial Discrimination; the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment; the Convention on the Elimination of all Forms of Discrimination against Women; and the Convention on the Rights of the Child.

 

40. We have been working with the Government of Anguilla to have the Conventions on Civil and Political Rights and on Economic, Social and Cultural Rights extended to it and with Gibraltar to have the Convention on the Rights of the Child extended.  We continue to encourage all the OTs to plug the remaining gaps on Conventions.

 

41.   Each OT has its own legal system with its own local laws. In most the legislature consists predominantly of members elected by the territory’s voters. The UK Government has encouraged and funded observers to monitor elections as an important way to promote internationally accepted standards. The UK Commonwealth Parliamentary Association works with OT Parliamentarians and elections officials to improve understanding of electoral systems and build capacity.  

 

42.  The UK and OT leaders have reaffirmed the importance of promoting the right of self-determination of the peoples of the OTs. We are committed to helping Overseas Territories to maintain international support in countering hostile sovereignty claims. For those OTs with permanent populations who wish it, the UK will continue to support requests for the removal of the territory from the United Nations list of non-self-governing territories. 

 

43.  Immigration is a matter which is regulated by the legislatures of the OTs and each OT has its own immigration legislation. Most OTs have established a local status commonly known as ‘belonger status’ or ‘belongership’, which is held by persons on whom it is conferred by the Constitution or local legislation.  This is separate from nationality and in practice the main feature of “belonger” status is a right of abode in the territory. The Overseas Territory Act 2002 granted British citizenship to everyone who was a British overseas territories citizen (BOTC) on 21 May 2002 (except for BOTC of the Sovereign Base Areas). It also amended the British Nationality 1981 to prescribe how a BOTC can acquire British citizenship by registration and how a person can acquire British citizenship by virtue of a connection with a British overseas territory after this date.

 

44.  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.

 

45.  Since same sex marriage legislation came into force in the UK in 2014, the British Antarctic Territory, the British Indian Ocean Territory, the Falklands Islands,

Gibraltar, the Pitcairn Islands, Saint Helena, Ascension, Tristan da Cunha, and South Georgia and the South Sandwich Islands have all recognised and enabled same sex marriage. Change in the Caribbean Territories is notably slower and rights to same sex marriage are being contested in the Bermuda and Cayman courts.   

 

46.  The UK 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. 

 

CHILD SAFEGUARDING

 

47.  Responsibility for safeguarding children is devolved to OT Governments, where systems vary. Challenges include insufficient resources allocated in some OTs; the need to update child protection and criminal justice legislation; the need to build capacity in police and social work practice and to establish more effective multiagency working; and the need for the establishment and effective operation of overseeing bodies such as Safeguarding Children Boards.

 

48.  The Wass Inquiry into Allegations Surrounding Child Safeguarding on St Helena and Ascension Island reported in 2015. It concluded that while there was no evidence of cover up or widespread abuse there were systemic failings which needed to be addressed.  The recommendations of the Wass Inquiry have been implemented and those which have wider application have been recommended by the FCO to other OTs. 

 

49.  The fifth Pitcairn Child Safety Review was carried out by independent experts and finalised in May 2018. It found that the needs of the children on island were being met and that there was an atmosphere of collaboration and cooperation amongst the community and a commitment to moving forward from the abuses of the past into a more positive future. The Pitcairn and UK Governments remain committed to maintaining the high standards of child safeguarding on island.

 

50.  The FCO’s Child Safeguarding Unit coordinates UK Government support to OT authorities to strengthen systems, build capacity and to help them deliver on their international obligations and politicalcommitments.  These include commitments given at Joint Ministerial Council meetings by OT leaders to ensuring the highest possible standards of protection, and to a zero tolerance approach to abuse.  It provides a bespoke programme of support for OTs using CSSF funds, delivered utilising the expertise of UK partners, NGOs, and private sector legislative drafters. 

 

51.   Outputs from the programme include strengthened police and social work response and increased capability to deal with allegations of abuse and to protect children in those OTs where training, mentoring and support has taken place; the training of over 800 educators to recognise and respond abuse; and, draft legislation to strengthen the criminal and civil justice system response for children in need of protection. This assistance will continue, though we anticipate that a strengthened OT response and the reduction of vulnerabilities in child safeguarding systems will become the norm across the OTs in the future such that this enhanced support is no longer needed. 

 

THE ENVIRONMENT

 

52.  The natural environment of the OTs is globally significant and contains 94% of the UK’s biodiversity, supporting unique ecosystems and a large number of rare and threatened species, many of which are found nowhere else in the world. Ensuring environmental stability and conserving biodiversity is crucial in underpinning sustainable development.

 

53.  Primary responsibility for biodiversity conservation and wider environmental management rests with OT Governments who are responsible for developing appropriate and affordable environmental policies, legislation and standards.

 

54.  Extension of Multilateral Environment Agreements (MEAs) to the OTs demonstrate to the international community the value of OT environments and biodiversity and can help to boost sustainable tourism. The UK Government represents the needs and concerns of the OTs at multilateral meetings, and provides advice and support to help meet the requirements of multilateral agreements, such as the Convention on Biological Diversity and the International Maritime Organisation’s (IMO) Safety of Life at Sea (SOLAS) and International Convention for the Prevention of Pollution from Ships (MARPOL). 

 

55.  The key long-term threat faced by the OTs is climate change, with the impacts of this already being felt. The Intergovernmental Panel on Climate Change has identified that some of the OTs are amongst the “most vulnerable” and “virtually certain to experience the most severe impacts” of climate change. These impacts include sea level rise; changes in weather patterns including higher intensity of extreme weather events; coral bleaching; ocean acidification; and sea temperature changes. Other immediate threats include land use change; waste management; invasive species; threats to habitats from unsustainable development and maritime accidents. To help address these challenges the UK has increased support to the OTs on climate change collaboration and waste management and continues to provide support on energyrelated issues including renewable energy technologies. 

 

56.  Consistent with domestic priorities, the UK supports the OTs where necessary or appropriate in the development of economic activity, managed in a way that is consistent with the long-term sustainable use of the natural environment, avoiding over-exploitation and ensuring a renewable contribution to economic growth; protection and management of vulnerable or sensitive natural environments which are underpinned by scientific research; and ensuring the natural environment is understood and integrated within long-term economic prosperity policies and decision-making.

 

57.   The funding required to protect and conserve biodiversity ranges from small projects with a cost of a few thousand pounds to major programmes of work with a cost of several million pounds, due to the scale of the work required and the remoteness of some of the locations (e.g. eradication of non-native species from islands). Studies predict that the total cost of meeting high priority biodiversity conservation projects across the OTs will be between £16 and £48 million. 

 

58.  The “Darwin Plus Fund” was set up in 2012 to provide a single UK Government source of funding to support projects that deliver long-term strategic outcomes for the natural environment in the OTs, jointly funded by the Foreign & Commonwealth Office, the Department for Environment, Food and Rural Affairs and the Department for International Development.  From 2016, the total fund was increased from £2m to £3m per annum.  To date, UK Government has approved 83 Darwin Plus projects, with a total value of £13.6 million. 

 

59.  Other projects are funded through the CSSF. These aim to protect vast maritime areas of the OTs, ensure safety of communities, provide tools to make policy decisions on the long-term management of the OTs and quantify the natural capital resources within the OTs whilst improving the safety and sustainability of seaborne trade. These projects include: the Blue Belt of marine protection around the UK and OTs that will provide large-scale protective measures across 4 million square kilometres of ocean by 2020, supported by up to £20m; assisting OTs to ensure that they have in place effective maritime legislative frameworks; the Maritime and Coastguard Agency Search and Rescue Capability Review; the OTs Seabed Mapping

Programme; increased involvement with Regional Fisheries Management Organisations; and, increasing the biosecurity capacity of OTs so they are better placed in tackling the threats posed by invasive non-native species.

 

60. The BEST (Biodiversity and Ecosystem Services in Territories of European overseas territories) funding programme is the primary source of environment EU funding for OTs. The UK Government recognises that our departure from the EU will have an impact on OTs’ ability to access BEST therefore we are considering how environmental funding for OTs can best be provided following our departure.

 

THE UNINHABITED TERRITORIES

 

61.   South Georgia & the South Sandwich Islands (SGSSI), the British Antarctic Territory (BAT) and the British Indian Ocean Territory (BIOT) have no permanent inhabitants.

Their constitutional arrangements are established through Orders in Council.  The

FCO Director of the Overseas Territories is Commissioner of BIOT and BAT; and the Governor of the Falkland Islands is Commissioner of SGSSI.  The Commissioners are appointed by the Secretary of State and are able to make laws and establish courts, although powers to make laws for the peace, order and good government of the OTs are reserved to Her Majesty.

 

62.  SGSSI and BAT were discovered by British expeditions, and subsequently claimed by the UK.  Neither has ever had a resident population.  Both fall within the areas covered by the Antarctic Treaty and its Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR). Under the Antarctic Treaty, territorial claims to

Antarctica are held in abeyance, and the Treaty, its Protocol on Environmental

Protection and CCAMLR are implemented through the UK’s Antarctic Acts 1994 and 2013, which cover all British nationals and activities south of 60 degrees South. BAT and SGSSI were administered as Falkland Island Dependencies until 1962 in the case of BAT and 1985 in the case of SGSSI. Both Territories support abundant marine wildlife and provide for globally significant scientific study.  The British Antarctic Survey provides the continuous British presence and the main activities are tourism and world leading sustainable fisheries.

 

63.  Discovered by the Portuguese in the sixteenth century, the Chagos Archipelago was ceded to the UK by France in 1814. The UK administered it as a Dependency of the colony of Mauritius until 1965 when it was detached to become BIOT. In 1966, the UK and US agreed by Exchange of Notes (EoN) to make the islands available for defence purposes and the plantation workers, known as Chagossians, were removed from the islands between 1967 and 1973. A joint UK/US military facility was established on Diego Garcia, which continues to contribute significantly to global security. In December 2016, the EoN was rolled over for a further 20 years, extending the US presence until 30 December 2036. The UK strongly refutes Mauritius’ claim to sovereignty over BIOT, but has undertaken to cede it to Mauritius when no longer needed for defence purposes. Between 3-6 September 2018, the International Court of Justice heard oral statements from the UK, Mauritius and others on the UNGA request for an advisory opinion regarding the lawfulness of the UK’s detachment of the Chagos Archipelago. The opinion is expected in Spring 2019. Successive UK Governments have expressed profound regret about the way Chagossians were removed from the islands. Following a comprehensive review, the UK Government announced in November 2016 its decision not to support Chagossian resettlement on BIOT, and announced a new support package for Chagossians in the UK, Mauritius and Seychelles.

 

64.  Established in 2010, the BIOT Marine Protected Area is considered a global leader for marine conservation in a heavily overfished ocean. Following a 2015 United Nations Convention on the Law of the Sea (UNCLOS) Arbitral Tribunal ruling, the UK is committed to bilateral talks regarding Mauritius’ interests in matters of marine conservation.

 

October 27, 2018 in Financial Centers | Permalink | Comments (0)

Wednesday, May 23, 2018

Guernsey Alarmed by UK Dispensing with Constitutional Procedures for Disclosing Beneficial Owners of Corporations and Trusts

Guernsey’s status as a mature jurisdiction and its strong record and clear position on the transparency of beneficial ownership has been set out by its Chief Minister.  

Deputy Gavin St Pier used his address to Guernsey’s parliament to confirm that Guernsey’s constitutional relationship with the UK would remain unchanged by Brexit, and state the determination to defend the island’s political independence. He also set out how Guernsey meets all international standards on fighting financial crime and its commitment to protecting privacy for individuals’ legitimate personal interests.

In his speech, he said: “Guernsey is a well-regulated, co-operative jurisdiction playing an important role in international capital markets. Our legitimate current policy stance on the register of beneficial ownership meets the agreed international standards and maintains an effective balance between transparency and privacy.”

Guernsey, alongside other Crown Dependencies the Isle of Man and Jersey, worked with UK Government to clarify its constitutional position following a number of proposed amendments to the UK’s Sanctions and Anti-Money Laundering Bill, passing through the House of Commons earlier this month. These amendments sought to impose the UK’s domestic policy on the islands – an approach that is incompatible with the long-standing constitutional relationship.

Deputy St Pier restated the “long-standing constitutional principle that Westminster does not legislate for us without our consent on purely domestic matters”.

Guernsey is not an independent state in international law but has competence over its domestic affairs and is economically self-sufficient, paying no taxes to the UK or EU, and receiving no contribution from UK or EU revenues. Guernsey’s link to the UK is through the Crown – and not through the UK government.

“The history is important because it sets Guernsey and the Crown Dependencies firmly apart from the constitutional position of the Overseas Territories,” Deputy St Pier added.

He said he was concerned that a number of UK MPs had “seemed prepared to dispense with established constitutional conventions” in seeking to impose UK policy in what he called a move which “gave serious consideration to riding roughshod over centuries of constitutional convention, our ancient rights and our democratic process”.

Deputy St Pier said Guernsey should be proud of its role in the international financial system and on regulatory standards.

“Our standards and record are exemplary, and we can hold our head high in any international forum on the topic,” he said. “There is much that other jurisdictions could learn from us. We have no intention of being passive or defensive. On the contrary, we will be proactive and proud when it is appropriate to be so.”

Deputy St Pier stated that the Bailiwick’s register provided the required policy outcome for the UK authorities when it comes to fighting financial crime a fact that was supported by the UK government through a Home Office review.

Information was shared promptly with authorities with a legitimate need to know and the information was up to date, accurate, and verified, unlike the UK’s register, he said.

“We will move to a public register of beneficial ownership if that becomes an international standard,” said Deputy St Pier. “It must be a standard agreed by all jurisdictions – there must be a level playing field.”

“Public registers are not the agreed policy of the G20 countries – we are not the only well-respected jurisdiction to have this policy position. Whatever our detractors say, we are not a 'secrecy jurisdiction' – but we do recognise the legitimate right to personal privacy.”

Deputy St Pier advised that Guernsey would volunteer evidence to a new inquiry into tax avoidance and evasion by the House of Commons Treasury Select Sub-Committee in order to reinforce this point to the UK Parliament.

May 23, 2018 in Financial Centers | Permalink | Comments (0)

Wednesday, June 28, 2017

BVI Companies Create 2 million jobs around world? Read the Capital Economics Report

Capital Economics has been commissioned by BVI Finance Limited to research and report upon the contribution made by the BVIBritish Virgin Islands to the global economy.
 
This report combines new analysis of existing information, statistics and research with the results from a major quantitative and qualitative research exercise among a large and representative sample of financial and professional services firms operating in the territory.
There are five key findings.
  • Despite its relatively small size, the BVI is a real, balanced and sustainable economy.
  • The BVI is home to a unique cluster of financial and professional services firms that form an ‘international business and finance centre’.
  • The ‘BVI Business Company’ is a widely used and dependable vehicle to facilitate cross-border trade, investment and business.
  • The BVI is a sound and reliable centre which has worked harder than many bigger nations to meet international standards, and not some supposed tax haven.
  • Through its direct employment, trade and, most importantly, facilitation of cross-border business, the BVI supports jobs, prosperity and government revenues worldwide.

 The BVI’s international business and finance centre mediates over US$1.5 trillion of investment globally – UK (US$169bn)
 BVI-mediated investment contributes over US$15 billion in tax annually to governments around the world (London) The British Virgin Islands (BVI) enables global investment and trade which supports more than two million jobs worldwide – 150,000 of which are in the UK – according to a detailed report published today.

The report, Creating Value: BVI’s Global Contribution, undertaken by Capital Economics, an independent economics consultancy, analyzed the significant global economic contribution of the BVI. It finds that the BVI mediates over US$1.5trn of cross-border investment flows, the
equivalent to 2% of global GDP.

The report – the first of its kind – also finds that over US$15bn of tax revenues are generated annually for governments around the world, via investment mediated by the BVI and the resulting economic activity. The UK (US$3.9bn), the EU excluding UK (US$4.2bn) and China
and Hong Kong (US$2.1bn) are the largest beneficiaries of this tax generation.

Coupled with the jobs it supports, the tax generation marks the BVI as a substantial net benefit to governments worldwide.

Commenting, Lorna Smith, OBE, Interim Executive Director of BVI Finance said:

“The results of this study clearly demonstrate the significant contribution the BVI makes to the global economy. “Not only does the BVI enable cross-border trade and investment, it both supports millions of jobs globally and generates substantial tax receipts for governments worldwide. This brings
tangible benefits to the lives of employees, voters, families, and businesspeople around the world.

“The report is unequivocal: contrary to some accusations, the BVI is a sound and reliable centre which has worked harder than many bigger nations to meet international standards, and it is not a tax haven. “This independent and authoritative report is equally clear in stating that the BVI is not a centre for corporate profit shifting. This helps clarify once and for all some of the inaccuracies and misunderstanding about what the BVI is and the valuable role it plays in the global economy.”

Commenting, Mark Pragnell, Head of Commissioned Projects at Capital Economics and the report’s author said:

“The BVI provides the legal structures that allow companies, institutions, and individuals to safely and efficiently carry out their business and make investments across international orders. “The ‘BVI Business Company’ is a widely used and dependable vehicle to facilitate cross-border
trade, investment, and business. Over 140 major businesses listed on the London, New York or Hong Kong main stock exchanges use BVI vehicles to support their international investment activities. Similarly, major international development banks, such as the World Bank’s International Finance Corporation, use BVI Business Companies to help fund vital projects.

“Our report shows that the BVI is a global powerhouse for cross-border investment equating to a conservatively estimated $1.5 trillion across its 417,000 active BVI Business Companies.”

Of the 417,000 BVI Business Companies, roughly two-fifths originate from beneficial owners in Asia. Another fifth (18%) have ultimate beneficial owners in Latin America and the Caribbean, while the remainder are primarily in Europe and North America.

A summary of the report’s key findings can be found here 

The full report can be downloaded here

The report website can be viewed at www.bviglobalimpact.com

June 28, 2017 in Economics, Financial Centers, Financial Services | Permalink | Comments (0)

Tuesday, December 1, 2015

Tax Justice Network's Focus on Whistleblowers - download here

This edition of our newsletter Tax Justice Focus, with a special focus on whistleblowers, is available for download here.

William Byrnes was invited by the Tax Justice Network to contribute a feature for its November released Report on TJN-square-logo-NOV-2013Whistleblowing.  William Byrnes introduces us to three of the highest profile whistleblowers from the financial sector, and explores the relationship between whistleblowing and tax compliance and highlights the much anticipated legislation of several offshore jurisdictions who are looking to introduce statutory laws to protect whistleblowers who report tax crimes.

 

Download The Whistleblower Edition here, and feel free to circulate it to colleagues and friends.

December 1, 2015 in Financial Centers, Financial Regulation, Financial Services | Permalink | Comments (0)

Friday, November 13, 2015

Why Are the U.S., Hong Kong and Singapore Financial Centers Growing but London Shrinking?

A new BBA report “Winning the Global Race” today outlines key threats to the competitiveness of the UK as a center for wholesale banking. Produced in conjunction with consultancy London.bankofengland.arpOliver Wyman, the research shows that urgent action is needed if the UK is to remain an attractive location for foreign banks and provide a competitive business environment for UK wholesale banks to challenge overseas.  Download Winning-the-Global-Race-Web-Version-Final

It highlights a number of worrying trends:

  • There has been an eight percent fall in employment in the UK banking sector since 2011.
  • There has been a 12 percent reduction in assets in the UK banking sector since 2011. Meanwhile banking assets have grown in the US (+12%), Hong Kong (+34%) and Singapore (+24%).
  • Return on equity for the wholesale industry has dropped from an average 18 percent per annum in 2000-06, to ten per cent between 2011-14, and is estimated to fall a further 3.5 percent by 2017.
  • In activities linked to capital formation like cross-border lending and initial public offerings of equity, the market share of the UK is static or falling.

The report also underlines the significant contribution that the industry makes to the UK:

  • Financial services as a whole remains the biggest export industry and the largest contributor to the UK’s balance of payments, accounting for 45 percent of total surplus in services. The UK exports £62bn of financial services annually, making it one of the world’s biggest net exporters of financial services.
  • The banking sector contributes almost five per cent of the UK’s Gross Value Added (GVA), employs more than 405,000 people and contributed £31bn in tax in 2014
  • The UK banking sector is the third largest globally, with £4.5tn of international banking assets in total as of 2014.
  • International banks are responsible for more than 50 percent of the industry’s UK GVA contribution, more than 30 per cent of its employees and over 50 percent of UK banking tax receipts are from international banks.

Download Winning-the-Global-Race-Web-Version-Final

November 13, 2015 in Financial Centers | Permalink | Comments (0)

Friday, October 16, 2015

EU Commission Updates Black Listed Countries by Member States

The EU Commission has carried out a technical update of the consolidated version of Member EU CommissionStates' lists of third countries for tax purposes, as referenced in the Action Plan for Fair and Effective Taxation (IP/15/5188).

The update reflects changes in Member States' assessments of third countries' tax good governance standards, corrections to national lists and Estonia's decision to withdraw all countries from its national list.

The consolidated list is part of the EU's external agenda against corporate tax avoidance and aims to introduce more transparency into national listing processes across the EU, while also encouraging third countries to engage with Member States on tax good governance matters.

The steps taken by the EU contribute to enhancing the dialogue between the jurisdictions and the Member States that list them, and encourage Member States to re-examine their national listings to ensure that they are correct and up-to-date.

The ultimate goal is to develop a common EU approach, giving Member States collective strength in addressing risks to their tax bases and provide greater legal certainty for businesses and international partners.

The Commission has already started discussions with Member States to this end and intends to present a wider strategy against external risks of tax avoidance in 2016. More details can be found here(For more information: Vanessa Mock – Tel.: +32 229 56194; Patrick McCullough – Tel.: +32 229 87183)

October 16, 2015 in Financial Centers | Permalink | Comments (0)

Friday, August 21, 2015

Is EU Commission backtracking or turning up the heat on international financial centers?

The EU Commission has confirmed its continued endorsement of Guernsey as a cooperative jurisdiction following a meeting between officials in Brussels.

This news was welcomed in Guernsey, which has a strong record in meeting international standards Comision_Europea_logo.svg as a cooperative and highly transparent jurisdiction - including as an 'early adopter' of the Common Reporting Standards ahead of some European countries.

Responding to the news, Guernsey's Chief Minister, Jonathan Le Tocq, has written to European Tax Commissioner Pierre Moscovici, stating: "Guernsey welcomes the Commission's confirmation at the meeting that it considers Guernsey to be a cooperative jurisdiction. This recognises not only Guernsey's adherence to the OECD and Global Forum international standards on transparency and information exchange, but also that our corporate tax regime has been assessed as compliant with the EU's Code of Conduct on Corporate Taxation, and hence not containing harmful measures."

The endorsement from the EU comes soon after the Commission included Guernsey on a list that some commentators had misperceived as a 'black list' of un-cooperative jurisdictions. The list, published on 17 June, was widely criticised, including by the OECD, for a lack of transparent and consistent methodology and has subsequently had its name changed for clarity. 

Dominic Wheatley, Chief Executive of Guernsey Finance - the promotional agency for the Island's finance industry internationally, said: "We welcome the EU's endorsement of Guernsey as a cooperative jurisdiction which is fully consistent with the findings of its Code of Conduct Group on Corporate Taxation in 2012. This clarification should give full confidence to all those looking to do business in Guernsey and enjoy the high quality of the financial business environment here."

"While the confirmation of the Commission's view is positive for Guernsey, the contribution that Guernsey makes to the European economy should not be overlooked. Research published by KPMG earlier this year showed that Guernsey funds have a total population of £155.4 billion assets under administration and that almost half of that is invested into continental (non-UK) Europe, demonstrating Guernsey is also an important business partner for the EU."

"It has also been welcome to have confirmation from organisations such as the European Investment Fund that not only do they also recognise that Guernsey was not in any way 'black listed', but also that they are aware of the positive recognition of Guernsey's track record by the OECD."

Guernsey Press Release

EU Blacklists

August 21, 2015 in Financial Centers | Permalink | Comments (0)