Tuesday, March 04, 2008

Legislating for the Colony

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.