Levelling the playing field

This month’s meeting in London between leaders of Britain’s Overseas Territories, Crown Dependencies, and their UK counterparts could set the stage for the future relationship especially for the Caribbean territories.

In fact, given the tension surrounding the constitutional implications over the ‘beneficial ownership’ issue, it should.

The pre-JMC (Joint Ministerial Committee) meeting is the precursor to the annual year-end summit.

The thorny issue of public registries of beneficial ownership which has caused a rift between the administered and the administering power is more than likely to dominate the agenda.

A swing through some of the Caribbean territories by the Minister for Overseas Territories,Lord Tariq Ahmad, coinciding with the start of this year’s hurricane season, would have no doubt sought to smooth very ruffled feathers on the beneficial ownership registry issue, especially in the Cayman Islands.

The extent to which that worked is still to be determined.

Several territories are still insisting that they will push through with their challenge to the legislation whether diplomatically, through the courts or other means of protest.

More successful and welcome would have been the offers of support for this year’s hurricane season preparedness, and recovery from the almost crippling impact of last year’s rampage through the islands by deadly hurricanes Irma and Maria causing millions of dollars in damage.

Anguilla and the British Virgin Islands bore the full brunt of storm damage, the Turks and Caicos Islands less so. Montserrat, the Cayman Islands and Bermuda were spared. Although Montserrat did sustain only minor damage, its very fragile volcano-impacted infrastructure makes it more susceptible storm damage than its sister OCTs.

Lord Ahmad only visited Montserrat, Anguilla and the Cayman Islands.

While the affected territories are struggling to regain their financial footing in the aftermath of the hurricanes, the anticipated loss of revenue from the beneficial ownership is seen as a further setback.

The way forward out of the maelstrom caused by the decision to pass and the constitutional threat of imposing the public beneficial ownership registry law in both houses of the UK parliament is going to require a level of diplomatic dexterity not demonstrated in recent times.

Whilst there is an inherent carrot and stick approach, it’s necessary to point out that who gets teased with the metaphorical carrot and who is prodded with the metaphorical stick. It’s hardly a matter of choice or even favouritism.

Despite reassurances from London, the aspect of being dictated to by the ‘mother country’ is a particularly sore point for the OTs, made worse by the differences in treatment compared to their partner Crown Dependencies.

The Overseas Territories (for the UK let’s omit the term ‘countries’, as they are not) and the Crown Dependencies are separate and different constitutional entities of the UK.

The Crown Dependencies of Jersey, Guernsey, the Isle of Man and the Republic of Ireland fall under the UK Department of Justice responsible to the Minister of Justice/Justice Secretary. But the Overseas Territories (OTs) - many former slave colonies - are placed with the Foreign and Commonwealth Office and are the responsibility of the Foreign Minister/Foreign Secretary.

Unlike the OTs, the CDs, which are prime offshore financial centres, were constitutionally able to demand that the British government remove them from the public access registry legislation. UK MPs are now making diplomatic overtures to them to reconsider.

The OTs including those in the Caribbean do not have that constitutional luxury or authority. If they do not impose the required legislative changes locally it will be imposed imperially and remotely by Royal Decree.

While both have been been advised (in the case of the CDs) and cautioned (in the case of the OTs) that they face thee threat of the legislation been forced on them, that is more of a certainty for the OTs.

The resulting fall out has set off a tornado of reaction, especially in and among the OTs.

While the threat of imposition by Royal Decree hangs over their heads, some have even gone as far as raising the prospect of independence, to the more practical legal challenges being considered, and lobbying. The latter could embrace a wide remit.

But just as the OTs, scattered across many oceans and seas, are figuratively caught between ‘the devil and the deep blue sea’ on this issue, so too is the sitting British government, which for its part is caught between the proverbial rock and a hard place.

Many of the UK government’s own MPs voted in favour of the overarching law called the Sanctions and Anti-Money Laundering Act and its beneficial ownership public registry component.

So too did a number of opposition Labour Party MPs.

The House of Lords even reversed its previous vote against (which favoured the OTs) to voting in favour of passing the law.

It’s as much a delicate balancing act for the Brexit-preoccupied government of Prime Minister Theresa May as it is for the OTs, but perhaps less so for the CDs.

It might very well be time to take a long hard look at the current relationship which constitutionally renders some partners in this tri-partite relationship seemingly more equal than others.