The possibility of free association for Britain’s Overseas Territories was mentioned in a recent academic report, with the authors noting that talk of constitutional reform is now more of a focus in some jurisdictions in the wake of Brexit.

They did note that any changes would take time and steered clear of making recommendations about any specific territory.

Published at the end of last month, Global Britain, Contested Spaces and the UK Overseas Territorieswas based on an earlier workshop held at the Institute of Commonwealth Studies in London.

A summary said the paper would consider two key questions: “First, what are the central aspects of the relationship between the UK and its territories and how can they be enhanced?

“Second, how can the territories support and enrich Global Britain?”

The report said that “as required, individual territories and the UK Government should pursue bilateral reviews and renegotiations” of constitutions to better manage expectations around what changes are achievable.

Authors Peter Clegg and Kate Matheson, both of the University of the West of England, and Maria Mut Bosque, of Universitat Internacional de Catalunya, said there was not the opportunity in their paper to carry out a detailed analysis of possible reforms.

They wrote that key areas for future discussions could include whether reserved powers of governors should be devolved to territories and whether a governor’s role in appointing judges should be amended.

The paper said a “step change” was needed in two key respects.

It explained: “First, the UK Government, through the Overseas Territories and Polar Directorate of the Foreign, Commonwealth and Development Office, should undertake some further research into the advantages and disadvantages of more fundamental constitutional reform, and whether greater progress towards ‘free association’ is possible.

“The United Nations’ definition of free association, which it considers to be an appropriate form of full decolonisation, is that it ‘ … should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes … The associated territory should have the right to determine its internal constitution without outside interference …’.”

The report added: “Free association might not be viable immediately, but the options for reform may be more generous than before.

“Second, for more significant constitutional reform to be enacted, there needs to be a greater level of trust between the UK and some of the territories in relation to how local government is conducted, and probably a commitment on the part of the territories to take more of the liabilities that the UK presently holds [as a guarantor of last resort].”

It said there was “sometimes friction between the UK/governor and the territories, with accusations of ‘constitutional overreach’ from the latter about the former”.

The report explained: “One example was the UK Parliament’s decision to extend to the territories the Sanctions and Anti-Money Laundering Act 2018, and more particularly the requirement for them to have publicly accessible registers of company beneficial ownership.

“Several territory governments criticised the decision, and their concerns have been heightened by the fact that similar legislation in the EU has been recently struck down by the European Court of Justice because of concerns that it breached the right to privacy.”

Another example cited was from last year when, the paper said “the Governor of Bermuda ‘received an instruction’ issued on ‘Her Majesty’s behalf, not to assent to the bill as drafted’ that would have decriminalised the recreational use of cannabis”.

It added: “The UK argued such a change would have clashed with its obligations under international drug control treaties.

“The Bermudian Government felt this infringed its powers.”

Authors said that the decision was regarded as “ignoring the nuances behind the policy”.

The report added: “Whilst concerns around the legalisation of cannabis are less pressing to other territories, of more concern was the precedent the decision set.”

Its conclusion said: “More generally, because of Brexit and the notion of Global Britain, there is an increasing amount of chatter, at least in some territories, about what opportunities there might be for constitutional reform.

“The report argues that an open and wide-ranging approach should be taken, including a discussion of whether free association might be ultimately possible in certain cases.

“However, confidence-building measures are needed, chiefly in some of the Caribbean territories, to reassure the UK that further autonomy would not be an error.

“In addition, the territories might have to take on more of the liabilities that the UK presently holds.”

The report added: “A small number of industries sustain the territories, and those with sizeable financial services sectors often receive vocal criticism.

“However, if those industries did not exist, what would take their place?

“The obvious answer is more ODA [Official Development Assistance], but it is unlikely that the UK taxpayer would accept that.

“So, more should be done to explore options for diversification, particularly in relation to climate change and environmental protection.”

A report by international adviser on governance Carlyle Corbin, commissioned by the Bermuda Government, was published last year.

It said that the island was “poised to take the next logical step of political evolution to remove the remaining anachronistic unilateral authority, to be replaced with a genuinely modernised political relationship with the UK, and with the rest of the international community, based on the sovereign equality of states”.

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Global Britain, contested spaces, and the UK Overseas Territories

• To read the report, see “Related Media”