As the Guardian reports this morning:
The government has come under cross-party pressure to explain why it gave permission for Bermuda to repeal same-sex marriage rights, after the British territory became the first place in the world to make such a move.
The legislation, decided by the island's elected government, was signed into law on Wednesday by its governor, the British diplomat John Rankin. It replaces the right of same-sex couples to marry, introduced after a supreme court ruling last year along with domestic partnerships, available for all couples.
I would hope most readers would presume that I am appalled by this decision, having said which I hope I will be forgiven for considering its non-LGBQT consequences.
As the Guardian also notes:
Labour MP Chris Bryant secured an urgent question in the House of Commons to ask why the foreign secretary, Boris Johnson, approved the move.
Harriet Baldwin, the junior foreign office minister sent to deal with the question, said the government was “obviously disappointed” with the repeal of the law but felt it had no choice.
She said: “After full and careful consideration in regard to Bermuda's constitutional and international obligations, the secretary of state decided that in these circumstances it would not be appropriate to use this power to block legislation, which can only be used where there is a legal or constitutional basis for doing so, and even only in exceptional circumstances.”
Perhaps as importantly they noted that the minister added:
The new civil partnership law met European human rights standards, Baldwin said, telling MPs that ministers had limited powers over Britishoverseas territories, which were “separate, self-governing jurisdictions with their own democratically elected representatives that have the right to self-government”.
Unpacking that reveals a number of very obvious and sometimes contradictory statements.
The first is that these places are independent but their law requires U.K. approval.
The second is that we do not legislate for them unless we think we should, which is when we consider the situation exceptional.
Third, non-compliance with EU standards would be considered exceptional.
I think that a fair summary. The basic rule is self government subject to the U.K. having the right to intervene if good order, the break down of good governance or issues of foreign affairs requires it.
I would argue that in the matter being considered good order required intervention, but that is not my main point, which is that the EU has now either black listed, or is threatening to black list, many of these jurisdictions for failing to comply with its tax requirements, which failure does in every case relate to international tax, and so foreign affairs. The EU Parliament is now going to investigate the matter. And what the minister's comments make abundantly clear is that the U.K. has the right to intervene in such situations. Indeed, it appears duty bound to do so.
In which case it has to be asked why the U.K. is not intervening to require a change in the tax law of these places, whether voluntarily or by imposition.
The EU may wish to ask U.K. ministers to explain themselves.
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The fact that we allowed this to happen at all is deeply troubling in my view. In fact it is embarrassing.
I see it as indicative perhaps that our current Government is in such disarray that some out there think that they can get away with anything. It also looks as though some conscious decoupling with Europe is all ready taking place within Government which is also deeply troubling.
The Barclay Brothers initially managed to challenge the UK government rules on Sark in the UK courts because they had been approved by the Privy Council – a political organ of the UK government.
That is of course my simplistic view of events but it showed that the UK government cannot walk away from a responsibility for the small British places if it takes part in their government by rubber stamping their laws.
The interpretation did not extend to the enforcement of the ECHR because it was deemed that the decision to ratify that had been taken by Guernsey although it fell to the UK Government as “high contracting party” to actually do so.
I don’t claim to understand the subtleties of these cases but of course it is the UK Government that defends the small British places if such laws and practices are challenged at the Court of Human Rights etc.
The wall that the UK Government has erected to shield its participation is not so total or complete as might appear.
“these places are independent but their law requires U.K. approval.” Do you mean, the Governor of Bermuda gives approval to legislation passed by the Parliament of Bermuda, on behalf of the Queen, in much the same way as Royal Assent is required to legislation passed by the Parliament in Westminster? Or do you mean something else? Direct rule by Order in Council perhaps?
If Whitehall instructed the Governor to refuse to give consent, or Westminster legislated over the heads of the local legislature, it would create a constitutional crisis of the sort seen in Australia in 1975, if not worse.
I think the decision in Bermuda to end same-sex marriage is a mistake, but it is a mistake they are entitled to make for themselves through their own democratic processes. It would be a greater mistake for ministers in London to tell people in Bermuda what to do, as if they were children who cannot be trusted to make decisions for themselves.
Royal assent is required
That is granted by the Pricy Council
That is, of course, UK ministers
But the Justice Department has also to agree in practice
And their constitutions (which are UK statutory instruments) permit the UK to legislate in the ways noted
There can then be no constitutional crisis: we would be exercising a legal right
They can declare independence to avoid this
They know that would be rather unwise so they stay
I think the whole of Brexit is predicated on GB/EU and our overseas territories as tax havens. As in; we’d rather shaft the plebs than the rich people who use such havens.
I have always doubted that
But it certainly helps the abusers
Wriggle room is just how they like it. Some politicians in the Crown Dependencies despise both the UK and Europe , yet their unique relationship provides many benefits from which many on these Islands live very privileged lives. Independence in its true sense would be disastrous for them.
I’d be interested to know whether the Crown Dependencies contribute towards the cost of our UK border controls posts, and if not now, will they be required to once we have left Europe. This is just one issue but I get the feeling that the benefits the Islands get from the relationship is seen as being well worth it as far as the City is concerned. It really is time the UK cleaned up its act and ended this perverse relationship with all these secrecy jurisdictions. As you rightly say Richard, it can do so if it really wanted to. And, our calls for this are getting louder and louder which in no small part is down to your efforts. However, I do fear the City has too much power over Govt, both here, and in these outposts.
Ps – I don’t often contribute but read the blog everyday. Never ever thought I’d be so interested in economics as I am now. That is down to you and all the regular contributers to this blog. Thank you all.
Their contributions are miniscule and supposedly for defence
Thanks for the comment
In a post-brexit Britain will the EU have the ability to get tough on UK tax havens whether mainland or overseas?
Yes
Sanctions can be imposed
The biggest is withholding tax before payments are made to these places
Richard
I’m intrigued why you would think that such a sanction would worry the Crown Dependencies or Overseas Territories.
The economic impact would be minimal. The islands barely trade with the EU (excluding the UK), and any dividends, royalties and interest paid from EU countries typically already suffer a 25% or 30% withholding tax at source because of the absence of double taxation treaties. As a result of that withholding tax, International clients simply don’t structure their inward EU investments via the British territories – they invest via Luxembourg or Holland or Malta instead. It is a sanction which would have minimal impact on the islands.
The sanctions will be on the UK
We are responsible for their foreign policy
I assure you they will be notcied