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In 2003, the Commonwealth adopted the Latimer House principles (PDF), which set out good practice on relations between the three branches of government (executive, judicial and legislative).

The separation of powers is judged important for maintaining accountability and ensuring checks and balances between those who make, and those that enforce, the law. Maintaining a separation is also a means to ensure different interests and democratic principles are represented in policymaking, including notions of majority-rule, the rule of law, and the protection of minorities.  

This briefing describes the separation of powers between the three branches of government in each of the UK’s 14 Overseas Territories (OTs).

What are the Overseas Territories?

There are 14 UK OTs across the globe, but only 10 are permanently inhabited by British nationals, who number around 260,000 inhabitants.

The Territories all have historic links to the UK and with the UK and Crown Dependencies like Jersey form one undivided realm, where King Charles III is sovereign. This means they have no separate representation internationally.

How are Territory constitutions structured?

Each OT has its own constitution, which is established by the UK Government (often following consultation with the Territory). These constitutions are amendable by the UK Government through the UK Privy Council or an Act of Parliament and cannot be amended by local assemblies, judges, or governments. They guarantee the existence of assemblies, courts, executive offices, and in some cases audit and public account commissions.

The executive and their powers

All Territories have a UK-appointed Governor (called a Commissioner in the uninhabited OTs), who in most cases retains responsibility for external affairs, defence, and internal security (such as the police and judiciary). They can usually exercise these powers without reference to local ministers and assemblies and can be instructed to take certain steps by the UK.

In those Territories with larger populations, the Governor shares some executive power with the local Premier/Chief Minister and their Cabinet. Their responsibility varies from Territory to Territory.

Particularly in Territories with smaller populations, the Governor may also make law without reference to the legislature.

The role of the Governor and the exercise of their powers is set out in the Commons Library briefing The UK OTs and their Governors.

The legislative branch

All inhabited Territories have a parliament, assembly, or council. Generally, legislatures in smaller Territories have more limited law-making powers. Instead, the Governor retains more substantial law-making and executive power.

The Commonwealth Parliamentary Association (CPA) has conducted formal assessments of three OT legislatures: Anguilla (PDF), Monserrat, and St Helena (PDF). It concluded that none were sufficiently free of executive influence and control. All Territory legislatures other than Gibraltar and Bermuda, for example, contain members of the executive. Notably, in 2020 the Cayman Islands passed legislation (PDF) that gave its Assembly more power over its staff, administration, finance and security.  

In its three reports, the CPA recommended several benchmarks to increase the independence of OT legislatures, including a separate parliamentary commission to manage the legislature and its staff, access to independent legal advice, and effective public account commissions to audit Territory finances.

The judicial branch

For all OTs, the judicial committee of the UK Privy Council is their final point of legal appeal. For the inhabited Territories, their constitutions create two lower courts, generally termed a Supreme Court and Court of Appeal. The exceptions are three Caribbean OTs (Antigua, Montserrat, and the British Virgin Islands (BVI)), who act under the Eastern Caribbean Supreme Court.

In six of the 10 inhabited Territories, judges are appointed by the Governor following the advice of a judicial appointment commission. The commissions are required to act independently but do include some political appointees. For the remainder, the Governor appoints judges following consultation with political leaders or following instructions issued from the UK Government. Judges in the highest courts have security of office through life tenure in most OTs.

The courts of each Territory (and ultimately the Privy Council) have jurisdiction to review legislation passed by local legislatures (as well as that made by the Governor or any other polity), and the exercise of the Governor’s functions detailed in their constitution.

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