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Brexit – Shock Waves Offshore

What future for British Overseas Territories, Crown Dependencies and Europe

The results of last week’s UK referendum on membership of the EU have caused shock waves across the UK, to Europe and beyond as people try to grapple with the complex legal, economic and political consequences of the vote.  Discussions have already started about what it might mean for the future of the UK and its constituent nations and London that voted very differently from the majority of England and Wales. It has been reported that Gibraltar - a British overseas territory within the EU with its own parliament and a population who voted almost 96% in favour of staying in the EU – has started discussions with Scotland about ways to stay British and remain in the EU.

Residents in Gibraltar had the opportunity to vote as it is part of the EU.  It’s still very difficult to know how that vote will count in the negotiations to come even though Gibraltarians spoke almost unanimously in favour of staying in the EU, more united in their views than any population in the UK.  But other Crown Dependencies and Overseas Territories whose fates will also be fundamentally changed by whatever happens next did not have a vote in the referendum due to their unique constitutional arrangements with both the UK and Europe.  How they engage with the constitutional, legal and policy negotiations around Brexit in the coming months and years will be crucial to their future place in the world. “Take back control” was the slogan of the leave campaigners, but taking control of the future may mean something very different for those jurisdictions.

Legal and Political Implications for Small Jurisdictions

The UK is responsible for the international obligations of 14 overseas territories and 3 Crown Dependencies.  Each is unique in its historical, geographical, social and cultural make up and this has influenced the different ways each jurisdiction has developed in relation to the UK and Europe.  Some rely on international arrangements to function as financial centres, others rely on UK and European development aid to help keep them sustainable.  Some are geographically European like the Isle of Man, the Channel Islands, Akrotiri and Dehekelia and Gibraltar, others are far from Europe in the Caribbean, Pacific and South Atlantic with complex historical identities and interests.

What this diversity has created is an extremely complex web of constitutional and legal arrangements built up over time between these jurisdictions, the UK and the regional and international organisations that the UK engages with including, crucially, the EU.  The referendum result has called into question the UK’s place in the EU as well as the future of the United Kingdom itself.  At the moment, it seems that almost anything could happen – we are in uncharted territory both legally and politically.  In principle the UK is responsible for the international obligations of its overseas territories and dependencies, but at a time when the UK is in crisis, these jurisdictions are unlikely to be a priority for British negotiators. 

The Future

Against this backdrop, British Overseas Territories and Crown Dependencies need to consider what their interests really are for the future and how, constitutionally and legally, those interests could best be protected.  It will be up to them to make sure their voices are heard and that the new constitutional and legal landscape suits their needs.  This may require careful thought about their current constitutional position and the extent to which it allows them to forge their own relationships with the devolved nations, other countries and regional and international organisations.  The mammoth scale of the task ahead for the UK Civil Service of unravelling EU membership which touches on such a wide range of legal and regulatory fields has been widely reported.  The one thing all these territories have in common is that they are small communities, vulnerable to shocks from the outside world and with limited capacity for international diplomacy.  Tackling the enormity of this challenge will be a struggle.  But this break in the status quo is also an unprecedented opportunity to reset the agenda and decide what place they want in the world in the 21st Century.

As the majority of the overseas territories and crown dependencies have not had the opportunity to vote on membership of the EU, it’s impossible to know what their residents or their governments think about the impact of this decision on them at this stage.  In the wake of the vote, the Isle of Man Tynwald has been recalled to debate the impact of Brexit on the Island.  It is likely that different jurisdictions may have very different takes on the situation.  The UN Charter provides that all peoples have the right to self-determination.  Although these jurisdictions are not currently entirely self-governing, they still have the right to decide their own destiny in the international order.

The concerns of the British public about freedom of movement and open borders don’t apply in the same way in many of the Overseas Territories and Crown Dependencies that manage their own immigration and work permit systems.  But a large proportion of them do rely on Europe to do business and they have implemented a raft of European legislation in a range of sectors from agriculture to finance, equality and data protection to ensure their economic viability.  Their relationship with the EU is set out in a variety of different legal arrangements, but if the UK ultimately decides to follow the vote in the referendum and invoke Article 50 of the Lisbon Treaty, this will all need to be revisited. 

The European Convention on Human Rights

The UK referendum was about the European Union, but that may not be the end of the changes in Britain’s relationship with Europe.  Some senior members of the UK Government have indicated that they also have doubts about whether or not to stay in the European Convention on Human Rights of the Council of Europe.  The UK has now extended the ECHR to all the Overseas Territories and Crown Dependencies (except for the British Indian Ocean Territory) through declarations under Article 56 ECHR. 

Over the past 15 years, many of these jurisdictions have newly incorporated the ECHR into domestic law through constitutional and legal changes following a push by the UK government to ensure consistent implementation of its international obligations.  The human rights issues faced in small communities are likely to be very different to those which the UK government finds challenging.  Some of them have pushed their rights protections beyond those required by the ECHR to include newer rights such as environmental rights and equal marriage and civil partnership which reflect their reality.  Through domestic legislation within the international human rights framework and under the jurisdiction of the European Court of Human Rights, each jurisdiction has worked out what protections for human rights and equality mean for their individual communities.  They will also need to consider what the international legal frameworks mean for them and how to navigate change in the interests of their own communities if the UK does decide to withdraw.

Small Jurisdictions in a Globalised World

The potential changes in the UK’s internal and external relationships as a result of last week’s referendum are seismic.  Many Overseas Territories and Crown Dependencies had already found themselves thrust into the global spotlight through the debates around the Panama Papers.  To prepare for what’s to come, British Overseas Territories and Crown Dependencies need to think quickly about the place they want in the world of the 21st Century and the constitutional, legal, diplomatic and political changes they will each need to make to secure that.


Image: International Adviser


Venue: Doughty Street Chambers, 54 Doughty Street, London WC1N 2LS
Venue: Doughty Street Chambers, 53-54 Doughty Street, London WC1N 2LS