Brexit and the British Overseas Territories – Time for a constitutional review?

This week, Ministers from across the British Overseas Territories will meet in London for a Joint Ministerial Council (JMC) on Brexit. Now that the dust is settling following the General Election in the UK and negotiations on Brexit are actually under way, this JMC will be an opportunity to assess how far Overseas Territories will be able to influence and protect their interests in a process they didn’t choose but that will have potentially wide-ranging impact on their people and their economies.

Most Overseas Territories (OTs) and the Crown Dependencies (CDs) (collectively CDOTs) are not in the EU so their populations weren’t given a vote in the referendum. Gibraltar, the only OT that is also a member of the EU and has a border with an EU Member State voted over 96% remain. The political and practical impact of Brexit on Gibraltar is both acute and complex and is being dealt with separately to the other OTs. But despite their distance from the UK and Europe, the implications for other OTs and their citizens could be significant.

EU Citizenship

While they are not technically in the EU, the majority of citizens[1] of OTs and CDs are EU citizens by virtue of their British citizenship. EU citizenship confers rights on individuals which allow freedom of movement to work, live and do business as well as the opportunity to study across the EU with preferential fees that are often significantly lower than the fees in UK universities. Opportunities for citizens to develop themselves personally and professionally away from home are crucial for the well-being of individuals and communities alike – the diaspora and people returning after study or work away are often drivers for positive change and development in small island communities. Brexit will severely limit opportunities for citizens of CDOTs who will lose their EU citizenship without a say.

The issue of citizens’ rights is the first agenda item in the Brexit negotiations. The EU negotiating position is relatively generous in terms of the rights of British citizens who are or have in the past exercised free movement rights as it aims to maintain the status quo. But the British negotiating position does nothing to help British citizens, including those from the Overseas Territories to keep their acquired rights in the future if they are not currently resident in the EU. The JMC should provide an opportunity for OT Ministers to get clarification from the British Government about how the rights of their citizens are being addressed in the UK negotiating position on citizens’ rights.

Environmental Protection

Climate change and environmental protections are key issues for many CDOTs. Withdrawal from the EU will be complex and will result in the removal of key governance and accountability structures to ensure effective protection of environmental standards in the UK. This could affect issues like clean water and air for CDs as well as resources and commitments on climate change which could have a wider impact on vulnerable OTs. CDOT Environment Ministers expressed concern earlier this year about Brexit distracting the UK Government from key environmental measures and threatening funding. But the bigger question is – what will replace the EU frameworks and institutions for protecting the environment and what role, if any, should CDOTs have in those? How can the CDOTs ensure that UK is held to account over its environmental commitments and that standards do not slip following Brexit?

Human Rights

The UK Government is responsible for the international commitments of CDOTs and represents their interests on the international stage in a variety of settings. In relation to human rights, it has given valuable support to CDOTs in domesticating the European Convention on Human Rights (ECHR). It has also stepped in on occasion when the rule of law has broken down. It provides a route of appeal to the Privy Council and ultimately to Strasbourg for most territories to bring human rights challenges. But in some cases, unilateral decisions are taken, driven by political expediency and with little concern for the rights of those affected in CDOTs whose ability to mitigate is limited by the restrictions on their engagement in the international sphere and their inability to sign treaties in their own right. Continuing UK Government rhetoric on human rights and threats to limit the application of or withdraw from the ECHR should be of concern to communities in CDOTs. After Brexit, is the ECHR next in line? What would that mean for them?

Constitutional Questions

Brexit marks a fundamental shift in the UK position in the international order with significant consequences for CDOT economies and communities but the decision to withdraw from the EU was taken with almost no input from the CDOTs. The impact of Brexit goes beyond the direct consequences of UK withdrawal from the EU – withdrawal of funding, change of citizenship status, freedom of movement etc. It also brings into focus the need for clearer constitutional arrangements that allow CDOTs to have a real say in their destiny in the international order and the power to defend the rights of their citizens.

The JMC on Brexit is an opportunity to ask broader questions about the relationship between the OTs and the UK and the way that operates in the wider world. Is there a need for a constitutional rethink to ensure that CDOTs have a real say in UK decisions that will have existential impacts on them? Do they need new, clearer legal and political structures to allow CDOTs (and devolved governments) to effectively challenge central government actions that affect them? How would a new constitutional framework look? How can they effectively distinguish themselves from the UK internationally to protect their interests when they diverge from the UK national interest? Do CDOTs need greater powers to sign treaties on their own behalf in international and regional contexts? Or are they happy with the status quo?

We are now over three months into the two-year window for the UK to negotiate the terms of Brexit. While the details of the potential impact of Brexit on different CDOTs will become clear gradually, the fundamental questions that Brexit raises about representation and accountability need to be dealt with immediately to provide a foundation for CDOT engagement with the process.

Susie Alegre

Director – Island Rights Initiative

(Blog based on a presentation at the Seminar “Small States and the Law” jointly organised with the Centre for Small States and Doughty Street Chambers, London, 15 June 2017)

[1] With some exceptions such as those people with “Channel Islander” or “Manxman” status defined in Article 6, Protocol 3 to the UK’s EU Accession Treaty.