The
Extraordinary Power of the British Government to Legislate for Anguilla. When is it Objectionable?
By Don Mitchell CBE QC, 4 March 2008.
[1] The Imperial British
Government always had the power to over-ride the legislature of a
colony. Even today, long after the
abolition of the British Empire, there remain four different ways that the
British Foreign and Commonwealth Office can legislate for Anguilla. Not that I am suggesting that we in Anguilla
want any such thing to be done to us.
Nor am I suggesting that the FCO has any desire of its own to legislate
for a British Overseas Territory such as Anguilla now is. Life is a lot easier for everybody when a Territory
legislates properly for itself. But, the
question is, when is the use of the extraordinary Imperial power to override
the legislature of a colony such as Anguilla objectionable in the 21st
Century?
[2] From the date of the 1999 White Paper, Partnership for
Progress and Prosperity Report, the UK government has expressed a desire
for more participation, transparency and openness in its government of the
BOTs. Not to forget that, ever since the
1948 Universal Declaration of
Human Rights, we in Anguilla have enjoyed a right to
self-determination. The FCO legislating
for Anguilla without our consent could be, theoretically at least, a denial of
this right of self-determination. It
also diminishes our right to our own internal self-government. Legislation for Anguilla created otherwise
than through the Anguilla House of Assembly is a process generally to be
condemned when it occurs. However, in
our Constitution, there remain several questionable provisions that appear to
enable the FCO to legislate for us, even without our consent and against our
will.
[3] Let us remind ourselves, first, that the general proposition
is that it is for the elected representatives of Anguilla to pass laws for
Anguilla. Section 47 of the Anguilla
Constitution 1982 says,
“Subject to the provisions
of this Constitution, the Governor, with the advice and consent of the
Assembly, may make laws for the peace, order and good government of Anguilla.”
[4] That is the section of the Constitution that empowers the
House of Assembly to pass a law for Anguilla.
Such a law when passed is then signed or “assented” to by the
Governor. In the same way, in the UK,
Parliament passes a law and the Queen then gives her “assent” to it. We may describe this as the “normal” way that
laws are made. However, it is not the
only way. The FCO has reserved four
other ways to make laws for us. They may
be shortly described as, (1) the section 56 power; (2) the section 59 power;
(3) an Act of Parliament; and (4) an Order in Council. Let us look at each of them in turn.
1. The Power
of the Governor to Unilaterally Make Laws for Anguilla.
[5] The first power that enables the FCO to legislate for us is
found in section 56 of the Constitution.
This says that,
“If the Governor considers
that it is expedient in the interests of public order or public faith (which
expressions shall, without prejudice to their generality, include the
responsibility of Anguilla as a territory within the Commonwealth . . . that
any Bill introduced . . . in the Assembly should have effect, then, if the
Assembly fail to pass the Bill . . . the Governor, acting in his discretion,
may, at any time that he thinks fit, . . . declare that the Bill . . shall have
effect as if it had been passed . . . by the Assembly . . .”
[6] This means that the Governor, i.e., the FCO of which he is an
official, may sign into law any provision that the FCO considers is necessary
in the interests of public order in Anguilla.
First, the provision must have been introduced into the Assembly as a
Bill. Of course, the Speaker of the
Assembly has the final say on what is or is not included on the Order
Paper. The Speaker may, on the advice of
the Chief Minister, refuse to allow the introduction by, say, the Deputy
Governor or the Attorney-General, of a politically sensitive or objectionable
Bill into the Assembly. If that were to
happen, the Governor would not be able to impose the proposed law on Anguilla,
as it had not first been introduced into the Assembly. The section 56 power would be
ineffective. Not that it has proven to
be a problem. This section 56 power has
never in the history of Anguilla been used.
[7] Persons addressing the Constitutional and Electoral Reform
Commission during the 2006 constitutional review went so far as to suggest
that the section is a dead letter. The
general view was that it was inconceivable that, in the 21st
Century, the people of Anguilla would willingly accept an enactment made into
law by the Governor using this provision contrary to their wishes. The outrage such a use of the section 56
power would engender would inevitably give rise to civil strife. Every Anguillian who had an opinion on the
subject urged the Commission to recommend that the section be repealed. The Commission did so at paragraph 130
of its 2006 Report in these words,
“The Commission recommends
that the section be repealed in its entirety”.
[8] Most Anguillians would be appalled to discover that there are
persons in authority who do not believe that we are already a fully internally
self-governing country. We are not
dependent on anyone. Full internal
self-government is a state of mind. It
is not something that you beg someone to give you. It is something you take when you are ready
for it. Once we accept that we are
already fully internally self-governing, this section 56 provision can never
again be used without our consent. It is
clearly inappropriate for this constitutional provision to continue in the
Constitution of a fully internally self-governing territory. Even today, whether or not it continues as a
matter of form to be written in the Constitution, Anguillians cannot concieve
of it being used against our wishes. Not
without a great deal of risk to the persons who are so misguided as to do so.
2. The Power
to Disallow an Act Passed by the Assembly.
[9] Let us now look at the second way in which the FCO can, in
effect, legislate for Anguilla. This is
found in section 59 of the Constitution.
The section says that,
“Any law to which the
Governor has given his assent may be disallowed by Her Majesty through a
Secretary of State.”
[10] This is a disallowance section rather than a law-making
section. It is no less objectionable for
all that. It enables the FCO, acting in
Her Majesty's name, to block a law properly passed in our House of
Assembly. We can be quite sure that Her
Majesty has no interest in interfering in the making of Anguillian laws. Of all the Secretaries of State in the UK
government, there is only one who has the slightest dealings with
Anguilla. That is the head of the FCO,
the Secretary of State for Foreign and Commonwealth Affairs.
[11] So, section 59 permits the FCO to intervene after the Assembly
has passed a Bill, after the Governor has signed it into law, and after it has
become an Act. He may “disallow”
it. That is, he may legislate for us by
repealing a properly made Act of our parliament.
[12] Highly objectionable as such a provision is, it is not a new
one. It is a traditional colonial
power. It has existed in British
colonial administration law for hundreds of years. The power of disallowance had its usefulness
in the days of the sailing ship. News
and documents travelled very slowly then.
A colonial Assembly might in good faith pass an Act. When the copy of it arrived in London several
months later, it might be found to be objectionable for some reason. So, it was considered a good precaution to
have the power for the Secretary of State to disallow such Acts. In the old colonial days, the records are
filled with examples of this happening.
However, since we have all entered the electronic age, the need for this
power is unlikely ever to arise again.
It has never in modern times been used.
The FCO now knows of every proposed Bill long before it is passed into
law by the Assembly. It has plenty of
time to send its comments to the A-G's Chambers. Long before the Bill gets to the House of
Assembly, it can recommend amendments to the local draughtsman. There might be legitimate reasons for
this. It might be necessary, for
example, to ensure that the Bill complies with Britain's international obligations.
[13] While it had its use, we might overlook the essentially
anti-democratic nature of this legislating power. The measure has now lost any use at all. The retention of this supervisory provision,
bedded as it is in the days of the sailing ship, is now an anachronism. Every person who addressed the Commission on
the implications of this section during the 2006 constitutional review was of
the view that it should not continue into the future as part of the
Constitution of Anguilla. It was
universally objected to. The Commission,
therefore, recommended at paragraph 133 of its 2006 Report as follows,
“The Commission recommends
that it be removed”.
[14] And, high time too!
Either Anguilla is fully internally self-governing or it is not, and it
is a mere colony. Most Anguillians would
be shocked to learn that there are some people who still believe that we are a
“dependent territory”. A whole
generation of Anguillians has grown up with the understanding that we are not
dependent on Britain or anyone else. We
take care of our own affairs. That
includes making our own laws. With that
in mind, we rely on our Attorney-General to keep in close touch with the latest
thinking on the draughting issues that arise in his Chambers. It is his duty to ensure that he puts the
very best version of any proposed new law before the House of Assembly. If he fails, it is not a matter for the
Secretary of State to try to correct the error by blocking a badly draughted
law. He has one of his juniors point out
the error to our drafughtsman, and, if appropriate, and after discussion at
Cabinet level, an amending Bill is introduced into the House of Assembly at the
earliest opportunity. That is the proper
way to deal with bad laws. It is up to
the legislature of Anguilla to legislate for Anguilla, and nobody else.
3. An Act of the British Parliament
[15] The third way that the British government can legislate for us
is by the passage of a substantive law by the Parliament of the United Kingdom
that is expressly applied to Anguilla.
From the earliest days of colonialism, the UK Parliament had the power
to legislate for the colonies. A modern
example of this mechanism at work is the Anguilla Act 1980. This is the law under which Britain took
responsibility for administering the government of Anguilla. In that year, the Associated State of St
Kitts, Nevis and Anguilla came to an end.
The Associated State had existed since 1967. In that year, Anguilla had rebelled and
unilaterally seceded. With the ending of
the Associated State, St Kitts and Nevis went into independence as a Federation
of the two islands. Anguilla, which had
been invaded by the British army in 1969, became Britain's newest, fully
fledged Colony. This Act of the British
Parliament was passed with the approval of all Anguillians. No one is suggesting that there is any
objection that can be made to it.
[16] It is trite to say that Parliament is made up of
politicians. All politicians are
sensitive to issues that are politically advantageous and to those that are
politically damaging. The general
feeling among those persons who made suggestions or contributions to the 2006
Commission was that there was no way that the British Parliament would
countenance passing into law today any statute for the administration of an
Overseas Territory such as Anguilla without the assurance that the statute was
approved and willed by the people of the Overseas Territory. No British politician would want to be
stigmatised today as being a “neo-colonialist” by passing offensive legislation
for a reluctant Overseas Territory.
[17] The existence of the power is innocuous. It does no harm, once it is not used
offensively. It may remain on the books,
until Anguilla goes into full political independence. Until then, we have no say in the power of
Parliament to make laws for Overseas Territories. When a previous British Colony achieves
independence, the British Parliament expressly relinquishes the power to
legislate for the now independent and sovereign nation. That relinquishment is one of the signposts
of independence. So long as Anguilla
remains a British Overseas Territory, it is inappropriate that we should
request that the British Parliament similarly relinquish power to legislate for
us. Not that we have no say in how the
power is used.
[18] It is not inappropriate for us to demand that the British
Parliament should never again legislate for us except in two
circumstances. The first is if we
request it. If, for some presently
inconceivable reason, we are not able to pass our own law on a particular
subject, we could, conceivably, request the British Parliament to do it for
us. The second is where we do not first
request that an Act be passed for us. It
is conceivable that, in some presently unimaginable future circumstance, it may
be necessary for Britain to make a law for our collective well-being without us
having asked. If the bona fides of such
a law were to be clearly established, a court would undoubtedly uphold the
validity of such legislation by the Parliament of the “administering power” for
the benefit of the Overseas Territory.
That, after all, is part of what it means to be an “overseas
territory”.
[19] While we have no representation in the Parliament of the United
Kingdom, we place reliance on the good sense and political sensitivity of
British parliamentarians not to abuse their power to legislate for us except in
exceptional circumstances. Until we have
reason to believe otherwise.
[20] We also recognised that we have no business telling the British
Parliament what it can and cannot do.
Any rule on the passing of an Act by the British Parliament has no place
in the Anguilla Constitution. That is a
matter for the British, not for us. When
we are ready for independence, we can inform the British that they are not
permitted any longer to pass an Act relating to us. If they choose, as they frequently have in
the past, they may then enact a law that expressly limits their power to
legislate for the newly independent country.
[21] During the 2006 constitutional review process, no one in
Anguilla had any comment or suggestion to make adverse to the proper use of an
Act of Parliament by the British to affect the laws of Anguilla. The Commission, therefore, made no
recommendation concerning the passing of an Act for Anguilla by the British
Parliament. None is appropriate.
4. The Order in Council
[22] The fourth way in which the FCO can legislate for Anguilla is
by the Order in Council. Orders
in Council are very old. They were
originally thought of as a residue of the “royal prerogative” power. In the struggles between the British
Parliament and the Monarchy, some monarchs claimed a right to rule by royal
prerogative. Parliament opposed that
view. There was a Civil War. A King's head was cut off. Gradually, this power to rule by the royal
prerogative has been reduced and restricted in Britain. It still remains, to a limited extent, in use
in the Colonies. It is now mainly
regulated by statute.
[23] The Order in Council is expressly provided for in those Acts of
Parliament that enable the British administration of overseas territories. The Anguilla Act 1980 is an example of
this type of legislation. This Act
permits the Secretary of State, acting in the name of the Queen, to make
subsidiary legislation for Anguilla by way of an Order in Council. Section 1(2) of the Act provides,
“Her Majesty may by Order in
Council make such provision as appears to Her expedient for and in connection
with the government of Anguilla.”
[24] The Order in Council has been described as Britain's “nuclear
option” when it comes to legislating for a British Overseas Territory. The term “nuclear option” derives from
nuclear warfare, and refers to the option of a country using nuclear weapons to
defend itself. This is a drastic solution
to any conflict. In military terms, it
has never arisen since the Second World War.
Since that time, it has been recognised as involving the possibility of
mutual annihilation. In US
constitutional dialectic, the term was first used by Senator Trent Lott to
refer to the attempt by the presiding officer of the Senate to end a filibuster
by majority vote. In the British
Overseas Territories, it refers to the use by the FCO of an Order in Council to
impose British government will on an Overseas Territory by what we used to call
in the bad old days “imperial legislation”.
A nuclear option is something never to be preferred. In our case, any form of unwilling imperial
legislation would be a denial of our right to self-government. For an Order in Council ever to be passed
without the consent of the people of Anguilla, the UK government would have to
be willing to take a giant step backwards.
[25] Imperial legislation, by way of an Order in Council, may
legitimately be used with the consent of the people. Generally speaking, such consent would be
conveyed through the instrumentality of the government of the day. For example, in matters of international
security, international aviation, international piracy, or trade with Serbia or
Iraq in contravention of UN resolutions, it would be appropriate for a BOT
government to signify consent to the UK government to pass the appropriate
Order in Council. These matters do not
directly impose on our liberties. No one
in Anguilla would have any objection to the government of Anguilla consenting
to the FCO legislating for us on such matters by way of an Order in
Council. No objection was raised when it
was in fact done. That is the positive
side of the Order in Council. Let us now
consider the negative side.
[26] It is arguable that the nuclear option, in an anti-democratic
sense, no longer exists. It has now
largely been destroyed by the Court of Appeal in the Chagos
Islands Case. An Order in Council
made under the Royal Prerogative is now, since that judgement,
subject to judicial review. No one in
Anguilla would have any problem with an Order in Council that was made with our
express consent. Nor would we have any
problem with an Order in Council made for us that complied with the
restrictions found in the judgement of the Court of Appeal.
[27] The British government has appealed the Chagos Islands
judgement to the House of Lords. The
appeal will be heard later this year. No
thinking person has any doubt that the House of Lords will dismiss the
appeal. Arbitrary and unjust use of the
Royal Prerogative can now be considered to be a dead letter in the British
Overseas Territories as much as it is in Britain itself. It is fair to say that, from the date of this
judgement, an Order in Council that were to be made without our consent, and
against our wishes, and not evidently in our best interests, would be held by
our court to be an abuse of power, illegal and unconstitutional.
[28] During the 2006 Constitutional review process, no person made
any recommendation to the Constitutional and Electoral Reform Commission
proposing any restriction by the FCO on the future use of the Order in
Council. The Commission made no
recommendations concerning the use of the Order in Council. The legitimate use of an Order in Council
remains unobjectionable. More than that,
it can be considered as now existing only for our use and benefit, as happened
a few years ago with the abolition of homosexual offences and the death
penalty. That story is not without some
element of amusement.
[29] Back in 1990, the FCO wanted the issues of homosexuality and
the death penalty dealt with in the local Assembly. It was obvious to the FCO that this was the
preferred method for updating and amending a local law. The problem that the FCO faced at the time,
and that it was attempting to correct, was that it had been advised by its
lawyers that the continuance of the offence of “buggery” on our statute book
exposed the British people to contingent liability. The offence, they were advised, was contrary
to the European Convention on Human Rights. The FCO was concerned that there was a risk
that some injured homosexual, with this particular propensity, might sue them
if he was prosecuted under local laws outlawing the practice. It was necessary for the FCO to be able to
prove to Britain's European partners that there were no laws in Anguilla
discriminating against anyone on the basis of their sexual preference. So, they put pressure on the local government
to introduce a law in the Assembly, and to debate the issue, and to repeal the
old buggery offence. Not on your
life! There was no way that any Anguilla
government was going to permit the topic of homosexuality even to be introduced
into the Assembly. They downright
refused to allow it. The solution was
simple. They told the British, in
effect, “You go ahead and abolish it for us.
We will not object. We would
prefer you did it for us. We do not want
to be embarrassed by appearing in front of our people to be in support of
homosexual practices. That will be the
consequence of us advocating the abolition of the offence. It will be bad for us politically. But, you can go ahead and do it for us.” And, so was passed the Order in Council that
did away with the offence of buggery.
The same with the death penalty.
[30] But, when it comes to the liberties and freedoms of
Anguillians, it can be stated as a general proposition of constitutional law
that no Order in Council affecting those liberties and freedoms may be
consented to by any government of Anguilla without the agreement of the people
of Anguilla. No government of Anguilla,
for example, can validly consent to the FCO legislating for Anguilla by Order
in Council to amend our Constitution without our prior knowledge and approval. Only the people can give this consent. That the FCO recognises this principle is
clear. The FCO has repeatedly promised
that no amendment to the Anguilla Constitution will be made unless it is
satisfied that such proposed amendment has the consent and approval of the
people of Anguilla. That is as it should
be.
[31] In conclusion, the proper use of the Order in Council to
legislate for a colony is unobjectionable.
It exists for our use and benefit.
It is a great saver of time and energy when it comes to passing into
law, for example, provisions that are highly technical and related to our
international obligations that have been worked out by the international
experts. There is no point in us
duplicating all that work. We permit the
Order in Council to be passed to save us the waste of duplication. That is its legitimate use.
[32] In expressing my opinion on the four extraordinary methods
retained by the FCO to legislate for us, and in repeatedly declaring that
Anguilla is already fully internally self-governing, I may have stretched the
strict constitutional boundaries. The
matter is one for negotiation with the FCO.
It is not up to us alone. An
understanding has to be reached about its implementation. Nor is full internal self-government
something that the FCO gives us. It is
something that we do. It involves the
way we think about ourselves and our rights and powers. The point that I am trying to make is that
“full internal self-government” is a state of mind, a readiness for action,
rather than a statement in a document.
Regardless of what the document says, if our leaders can look a UK
diplomat in the eye and say, “No, you are not going to pass that enactment for
Anguilla until Anguillians have been informed, and have expressed their
consent”, then we will have achieved “full internal self-government”. Not one word in the present Constitution
needs to be changed for us to achieve full internal self-government. You can change all the words that empower,
and if we are not ready, we will have achieved nothing.
