An Open Letter to a Minister of the Crown

Dr. Klearchos A. Kyriakides Professor in Law at UCLan University

For the immediate attention of The Rt. Hon. Sir Alan Duncan MP, Minister for Europe, Foreign and Commonwealth Office, Whitehall, London

By email to: fcocorrespondence@fco.gov.uk
11 January 2017
Dear Sir Alan
Re: The Republic of Cyprus, the ‘talks’ in Geneva, the role of Parliament in Westminster & other related matters
I have written this open letter in connection with the above matters. I have done so in my capacity as a citizen of the United Kingdom and as a citizen of the European Union who is now living and working as a legal academic in the Republic of Cyprus.
Cy logo 1a Klearchos 27 12 2016In common with the United Kingdom, the Republic of Cyprus is a Member State of the Commonwealth, the Council of Europe, the European Union and the United Nations.
The Republic of Cyprus is also subject to a unique multi-dimensional relationship with the United Kingdom. This is partly as a result of the Cyprus Act 1960, as well as the Treaty of Establishment of 1960 and the Treaty of Guarantee of 1960.
I am writing this open letter to you in the light of your message of 9 January 2017, reproduced below, which was posted on your Twitter page:
‘The UK fully supports resumed #CyprusTalks @UNGeneva. I look forward to joining talks later in the week.’
(Source: https://twitter.com/AlanDuncanMP last accessed on 11 January 2017.)
I presume that the ‘talks’ referred to above are those due to begin in Geneva on 12 January 2017 with regard to various issues arising from the establishment of the Republic of Cyprus on 16 August 1960 and from subsequent developments. These include the Turkish invasion, occupation and ethnic cleansing of 37 per cent of the territory and 57 per cent of the coastline of the Republic of Cyprus. As you may know, the first phase of this invasion commenced on 20 July 1974 and the second phase commenced on 14 August 1974. As a consequence of both phases of the Turkish invasion, the Republic of Cyprus became the subject of a Turkish-enforced de facto partition and a Turkish-enforced de facto segregation along crude ethnic and religious lines.
As you may be aware, the Republic of Cyprus has been rife with seemingly informed speculation that the ‘talks’ in Geneva may result in an ‘agreement’ or ‘settlement’ which will not only purport to legalize the unethical and unlawful consequences of the Turkish invasion, but will also give rise to new domestic constitutional and legal instruments, plus one or more new treaties or amendments to existing treaties, including treaties to which the United Kingdom is a party.
It has even been suggested that any ‘agreement’ may pave the way towards the dissolution of the Republic of Cyprus and its replacement by a proposed new sovereign state which is to be a ‘bi-communal, bi-zonal federation’. In this context, it is suggested that any such outcome may arise as a result of ‘a virgin birth’. As helpfully explained by Alper Ali Riza QC in a critique of this idea, any proposed ‘virgin birth’ would appear to envisage ‘the creation of an entirely new state in Cyprus borne of the union of two constituent states …’ (Source: Alper Ali Riza QC, ‘The birth of federal Cyprus’, Cyprus Mail (online), 21 February 2016: http://cyprus-mail.com/2016/02/21/the-birth-of-federal-cyprus/ last accessed on 11 January 2017.)
In view of the secrecy which has enveloped what the United Nations has described as the ‘leader-led process’ based in Nicosia, coupled with the ostensible absence of any freedom of information act or freedom of information culture in the Republic of Cyprus, it is difficult to ascertain what has been going on behind closed doors, which constitutional and legal texts are being drafted and what may be on the horizon.
In my submission, this secretive state of affairs is procedurally unfair and otherwise contrary to the rule of law.
Accordingly, in the interests of procedural fairness, transparency, accountability and the rule of law, I would be grateful if you could provide me (and, by extension, others including all citizens of the United Kingdom living in the Republic of Cyprus) as much information as possible regarding the following:
(i) the views of Her Majesty’s Government as to the secrecy mentioned above, as well as the procedural fairness, or otherwise, of (a) the process which has been followed prior to and during the ‘talks’ in Geneva and (b) the process to be followed after the conclusion of the ‘talks’;
(ii) the views of Her Majesty’s Government as to the procedural fairness, or otherwise, of what appears to be a forthcoming process of drafting ‘settlement’-related constitutional and legal instruments in secret, in the absence of any consultation exercises and, as suggested by Mr Mustafa Akinci, one of the ‘two leaders’ involved in the ‘leader-led process’, within the space of ‘a couple of months’ (source: http://pio.mfa.gov.ct.tr/en/akinci-we-head-off-to-geneva-unwavering-and-determined-with-the-goal-of-establishing-a-new-federal-cyprus-where-cypriots-can-live-equally-in-freedom-and-security/ last accessed on 11 January 2017);
(iii) the agenda of the forthcoming ‘talks’ in Geneva; and
(iv) the substantive objectives of these ‘talks’.
I would also be grateful if you could comment on the compatibility or otherwise of the substantive objectives of the ‘leader-led process’, the proposed ‘bi-communal, bi-zonal federation’ and its ostensibly segregationist philosophy with (i) Public International Law, (ii) International Humanitarian Law, (iii) International Human Rights Law, (iv) European Union Law (v) the fundamental values of the Commonwealth, the Council of Europe, the European Union and the United Nations; (vi) the principles of liberal democracy, such as the principles of equality, diversity and non-discrimination; and (vii) the free market.
For your information, I have addressed some of the above issues in a series of three articles published by Agora Dialogue on 27 December 2016, 2 January 2017 and 9 January 2017. These three articles are freely available via the hyperlinks below.
The Lennox-Boyd statement of 19 December 1956 and the origins of the proposed ‘bi-communal, bi-zonal federation’ in Cyprus
The Fourth Geneva Convention of 1949 and its relevance to the ‘Conference on Cyprus’ in Geneva on 12 January 2017
The ‘Intellectual Partition’ of Cyprus, the ‘Macmillan Doctrine’ and the talks held in Geneva in August 1974 and January 2017
I now turn to the role of Parliament in Westminster in relation to any ‘agreement’ or ‘settlement’ reached in Geneva or thereafter. Please note the inter-linked matters set out below and kindly let me have your response.
The Republic of Cyprus was established on 16 August 1960 in accordance with an Act of Parliament, namely the Cyprus Act 1960, which received the Royal Assent on 29 July 1960; the Republic of Cyprus was also established under the Treaty of Establishment of 1960, to which the United Kingdom is a party. Under section 1 of the Cyprus Act 1960: ‘Her Majesty may by Order in Council (to be laid before Parliament after being made) declare that the constitution designated in the Order as the Constitution of the Republic of Cyprus shall come into force on such day as may be specified in the Order; and on that day there shall be established in the Island of Cyprus an independent sovereign Republic of Cyprus, and Her Majesty shall have no sovereignty or jurisdiction over the Republic of Cyprus.’
As events were to unfold after 29 July 1960, the Cyprus Act 1960 came into force on 16 August 1960 via Order in Council SI 1368/1960. On 16 August 1960, in accordance with the wishes of Parliament, as expressed in the Cyprus Act 1960, the citizens and other lawful residents of the Republic of Cyprus were endowed with the constitutional rights set out in the Constitution of the Republic of Cyprus. A copy of the Constitution excluding Annexes is available here: www.presidency.gov.cy/presidency/presidency.nsf/all/1003AEDD83EED9C7C225756F0023C6AD/$file/CY_Constitution.pdf(last accessed on 11 January 2017). As you can see from paragraph 1 above, the Constitution of the Republic of Cyprus is an instrument expressly mentioned in section 1 of the Cyprus Act 1960.
In so far as I am aware, section 1 of the Cyprus Act 1960 remains in force. See www.legislation.gov.uk/ukpga/Eliz2/8-9/52/section/1(last accessed on 11 January 2017).
Accordingly, for the reasons outlined in this open letter, I submit that it remains the intention of Parliament that the citizens and lawful residents of the Republic of Cyprus must be endowed with the constitutional rights conferred on them under the Constitution of the Republic of Cyprus which came into existence in accordance with section 1 of the Cyprus Act 1960. This parliamentary intention must surely remain in existence pending any new Act of Parliament which repeals or amends the Cyprus Act 1960. Today, the beneficiaries of the constitutional rights created in 1960 include citizens of the United Kingdom and other Member States of the European Union who live or work (or both) in the Republic of Cyprus. As declared in the introduction of this open letter, I am one of those citizens.
Under section 2(1) of the Cyprus Act 1960: ‘The Republic of Cyprus shall comprise the entirety of the Island of Cyprus with the exception of the two areas defined as mentioned in the following subsection [i.e. section 2(2) of the Cyprus Act 1960].’In so far as I am aware, section 2 of the Cyprus Act 1960 remains in force. See: www.legislation.gov.uk/ukpga/Eliz2/8-9/52/section/2
Accordingly, I also submit that it remains the intention of Parliament that the ‘boundaries’ of the ‘two areas’ mentioned in section 2(1) and section2(2) of the Cyprus Act 1960, known as the Sovereign Base Areas of Akrotiri and Dhekelia, and, thus, the ‘boundaries’ of the Republic of Cyprus, must remain as defined in accordance with the Cyprus Act 1960 and any delegated legislation made thereunder. This parliamentary intention must surely remain in existence pending any new Act of Parliament which repeals or amends the Cyprus Act 1960. Be that as it may, Baroness Goldie, a Lord in Waiting in HM Household and a Whip in the Government of the United Kingdom, informed Parliament on 27 October 2016 that ‘We have reiterated our offer, originally made in 2004, to cede almost half the land of the UK sovereign base areas to a reunited Cyprus. … [T]he sovereign base areas … will remain, although, as I indicated earlier, we have offered to cede almost half the territory of our sovereign base areas to a united Cyprus if an acceptable agreement can be reached by the two communities.’ (Source: Hansard, House of Lords Debates, 27 October 2016, Columns 419 & 420: https://hansard.parliament.uk/lords/2016-10-27/debates/F2597FBF-15AC-4308-9E3E-A85B291EAF75/Cyprus last accessed on 11 January 2017.) Any such cession of British sovereign territory would inevitably affect the rights of the citizens who reside or work in the Sovereign Base Areas. For these and other reasons set out below, it is my submission that any such cession and any change to the ‘boundaries’ of the Sovereign Base Areas and the Republic of Cyprus can only lawfully arise by means of a new Act of Parliament which repeals or amends the Cyprus Act 1960.
It follows that neither the Prime Minister of the United Kingdom nor any other Minister of the Crown is lawfully empowered to exercise prerogative powers in Geneva in January 2017, or anywhere else or at any other time, with the aim of committing the United Kingdom to any agreement, settlement, treaty or other binding or enforceable engagement which has the effect of: (i) bringing about the dissolution of the Republic of Cyprus; (ii) altering in any way the status of the Republic of Cyprus as established by the Cyprus Act 1960; (iii) taking away, replacing, undermining or otherwise affecting the constitutional rights guaranteed by the Constitution of the Republic of Cyprus, which was created by section 1 of the Cyprus Act 1960; (iv) altering or otherwise affecting the existing ‘boundaries’ of the ‘two areas’ mentioned in section 2 of the Cyprus Act 1960, i.e. the two Sovereign Base Areas, or the existing ‘boundaries’ of the Republic of Cyprus; or (v) triggering any process or procedure which relates to points (i) to (iv).
I make the above submissions mindful of the landmark judgment of the Lord Chief Justice of England and Wales, the Master of the Rolls of England and Wales and Lord Justice Sales in the High Court in the case of R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). That judgment was handed down on 3 November 2016. See: www.bailii.org/ew/cases/EWHC/Admin/2016/2768.htmlwww.bailii.org/ew/cases/EWHC/Admin/2016/2768.html(last accessed on 11 January 2017).
I appreciate that the judgment of the High Court in Milleris subject to an appeal to the Supreme Court of the United Kingdom. However, until the Supreme Court hands down its judgment within the next few days or weeks, the judgment of the High Court and the principles it has identified must be regarded as reflecting the law of the land.
In Miller, the High Court reached the following conclusion (at paragraph 111 of its judgment): ‘For the reasons we have set out, we hold that the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU [i.e. the Treaty on European Union] for the United Kingdom to withdraw from the European Union.’ What is of relevance to this open letter are some of the reasons given by the High Court in support of this conclusion.
For instance, in Miller, the High Court observed (at paragraph 32 of its judgment) that: ‘By making and unmaking treaties the Crown creates legal effects on the plane of international law, but in doing so it does not and cannot change domestic law. It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights.’ [Emphasis has been added by the author of this letter.]
In Miller, the High Court cited the principle articulated by Lawton LJ in Laker Airways Ltd v Department of Trade[1977] QB 643 (CA). As the High Court explained in Miller (at paragraphs 100 and 101 of its judgment) : ‘In that case [i.e. Laker Airways Ltd] the Court of Appeal found that the Crown’s prerogative powers in relation to the making of treaties had been impliedly abrogated by a statutory scheme for the licensing of air carriers. … Lawton LJ [in Laker Airways Ltd] discussed the Secretary of State’s submission that there was nothing in the legislation which curbed the Crown’s prerogative powers in the sphere of international relations, and that indeed the legislation recognised that the Crown had such powers. Lawton LJ said: “This is so: but the Secretary of State cannot use the Crown’s powers in this sphere in such a way as to take away the rights of citizens: see Walker v Baird [1892] AC 491.” …’. [Emphasis has been added by the author of this letter.]
In view of the above, I submit that the prerogative powers of the Crown in relation to the Republic of Cyprus and the Sovereign Base Areas are subject to the provisions in the Cyprus Act 1960 and the intention of Parliament as reflected in that Act. If I am correct, no minister in Her Majesty’s Government is lawfully entitled to by-pass Parliament and to use prerogative powers to take any action in relation to the Republic of Cyprus or the Sovereign Base Areas which has the effect of: (i) bringing about the dissolution of the Republic of Cyprus; (ii) altering in any way the status of the Republic of Cyprus as established by the Cyprus Act 1960; (iii) taking away, replacing, undermining or otherwise affecting the constitutional rights guaranteed by the Constitution of the Republic of Cyprus, which was created by section 1 of the Cyprus Act 1960; (iv) altering or otherwise affecting the ‘boundaries’ of the ‘two areas’ mentioned in section 2 of the Cyprus Act 1960, i.e. the two Sovereign Base Areas, or the ‘boundaries’ of the Republic of Cyprus; or (v) triggering any process or procedure which relates to points (i) to (iv).
It is pertinent for me to add that, since 1 May 2004, the citizens and lawful residents of the Republic of Cyprus (including citizens of the United Kingdom living in the Republic of Cyprus) have been endowed with additional rights under European Union Law; these are in addition to their rights under European Human Rights Law. Accordingly, if any Minister in Her Majesty’s Government purported to exercise prerogative powers to bring about the outcomes specified at points (i) to (v) in paragraphs 7 and 13 above, Her Majesty’s Government may affect these additional rights as well, with potentially adverse consequences for such citizens and lawful residents.
In view of the above and as a matter of urgency, I will be grateful if you or the Prime Minister could provide an undertaking that Her Majesty’s Government will not exercise any prerogative powers which have the effect of committing the United Kingdom to any agreement, treaty or other binding or enforceable engagement which has the effect of: (i) bringing about the dissolution of the Republic of Cyprus; (ii) altering in any way the status of the Republic of Cyprus as established by the Cyprus Act 1960; (iii) taking away, replacing, undermining or otherwise affecting the constitutional rights guaranteed by the Constitution of the Republic of Cyprus, which was created by section 1 of the Cyprus Act 1960; (iv) altering or otherwise affecting the ‘boundaries’ of the ‘two areas’ mentioned in section 2 of the Cyprus Act 1960, i.e. the two Sovereign Base Areas, or the ‘boundaries’ of the Republic of Cyprus; or (v) triggering any process or procedure which relates to points (i) to (iv).
I will also be grateful if you or the Prime Minister could provide an undertaking that should Her Majesty’s Government ever deem it appropriate to bring about any of the outcomes specified in points (i) to (v) of the previous paragraph: firstly, Her Majesty’s Government and the Administrator of the Sovereign Base Areas will launch fair and otherwise lawful consultation exercises on all relevant matters; and, subject thereto, secondly, Her Majesty’s Government will seek the consent of Parliament and HM The Queen, via the introduction of a bill envisaging the enactment of primary legislation in the form of an Act of Parliament which repeals or amends the Cyprus Act 1960 and any relevant delegated legislation made thereunder.
In relation to another not entirely unrelated matter, I refer to page 19 of the List of Ministerial Interests published by the Cabinet Office in December 2016 at:
www.gov.uk/government/uploads/system/uploads/attachment_data/file/579769/List_of_Ministerial_Interests_December_2016.pdf (last accessed on 11 January 2017).
The above List of Ministerial Interests reveals that the Rt Hon Boris Johnson MP, the Foreign and Commonwealth Secretary, is the President of the Anglo-Turkish Society.
By occupying a dual role as President of the Anglo-Turkish Society and as Foreign and Commonwealth Secretary, does Mr Johnsonappear to have a conflict of interest, particularly as regards any dealings which he may have with Turkey, the Republic of Cyprus and the two communities established under the Constitution of the latter, namely the Greek Community and the Turkish Community? I will be grateful if you or the Prime Minister could clarify.
In the meantime, I refer you to paragraph 1.2.f on page 1 of the Ministerial Code: ‘Ministers must ensure that no conflict arises, or appears to arise, between their public duties and their private interests;’. In consequence, please clarify whether the Foreign and Commonwealth Secretary has hitherto recused himself from any meetings or decisions, including decisions taken collectively by the Cabinet or any Cabinet Committees, which impinge directly or indirectly on Turkey or the Republic of Cyprus or any of its two communities. At the same time, please confirm whether the Foreign and Commonwealth Secretary will recuse himself from attending the forthcoming ‘talks’ in Geneva and that he will play no role in any decision-making processes relating to those ‘talks’ and any subsequent developments.
In view of the above, I will be grateful if you could refer this matter to the Prime Minister and the Cabinet Secretary kindly draw their attention to paragraph 1.3 of the Ministerial Code. Under paragraph 1.3: ‘It is not the role of the Cabinet Secretary or other officials to enforce the Code. If there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary feels that it warrants further investigation, he will refer the matter to the independent adviser on Ministers’ interests.’ (Source: The Ministerial Code, as updated and published by the Cabinet Office in December 2016 at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/579752/ministerial_code_december_2016.pdf last accessed on 11 January 2017.)
It may be pertinent for me to add that on 5 January 2017, I sent an email to the Foreign and Commonwealth Secretary with a request that he should kindly provide replies by email to various questions before the start of the forthcoming ‘talks’ in Geneva on 12 January 2017. These include the questions numbered 1 to 12 set out in the latter part of the second of my three articles listed a little earlier in this open letter.
At 14:34 on 5 January 2016, I received from the Foreign and Commonwealth Office an automatic reply by email. To quote the opening words: ‘Thank you for your email. If your email is about travel advice, please resend it to traveladvicepublicenquiries@fco.gov.uk Your email has not been forwarded. If you have contacted the FCO as a member of the public about another issue, your email will be forwarded to the relevant part of the FCO for reply. …’.
Notwithstanding the above, I have not yet received any substantive replies to my questions from the Foreign and Commonwealth Secretary. Accordingly, I will be grateful if you could please arrange for me to have by email substantive written replies to my questions as set out in the second of my three articles referred to above and as reproduced in my email to the Foreign and Commonwealth Secretary of 5 January 2017.
I look forward to hearing from you in reply to the above as a matter of urgency.
Please be aware that in line with my duties as an academic and as a means of promoting liberal democracy, the rule of law, transparency and the public interest, I intend to publish any replies which I receive to this open letter in my forthcoming publications.
Finally, I should point out that the contents of this open letter and my three articles mentioned above reflect my personal views. Accordingly, the contents should not be interpreted as those of any organization which I have, or have had, a relationship.
Yours sincerely
Klearchos A. Kyriakides
The above reproduces the contents of the main body of an Open Letter sent by email on 11 January 2017 by Klearchos A. Kyriakides to the Rt Hon Sir Alan Duncan MP, the Minister of State in the Foreign and Commonwealth Office of the United Kingdom.
Published by Agora Dialogue on 11 January 2017
Dr Klearchos A. Kyriakidesis an Assistant Professor of Law at the Cyprus Campus of the University of Lancashire and the Co-ordinator of its programme dedicated to the Rule of Law and the Lessons of History.
The author declares an interest as a British citizen with roots in Lysi and Petra, two ethnically-cleansed villages in the Turkish-occupied areas of the Republic of Cyprus; on a voluntary unpaid basis, he is also an independent academic consultant of Lobby for Cyprus, a non-party-political NGO based in London which campaigns on behalf of displaced persons from the Turkish-occupied areas.
Any views expressed are personal.
© Klearchos A. Kyriakides, Larnaca, January 2017