Sunday, May 25, 2008

Constitutional Future of the Colony of Anguilla

Constitutional Future of the Colony of Anguilla

- By Don Mitchell CBE QC

23 May 2008

A colony is traditionally defined as a group of emigrants or their descendants who settle in a distant territory but remain subject to or closely associated with the parent country.  Anguilla is a colony of Great Britain.

Technically, Great Britain considers that she has no more colonies.  She has Overseas Territories instead.  Anguilla is a British Overseas Territory.  We are, as of right, British Overseas Territories Citizens.  Britain has extended British citizenship to persons who have Overseas Territories citizenship.  Most Anguillians have both types of citizenship.  Most Anguillians are British Citizens in addition to being British Overseas Territories Citizens.

As a British Overseas Territory, we are governed by laws that are made far away from us, in the United Kingdom.  The most important of these laws are:

1. The West Indies Act 1967

This Act was passed by the British Parliament back in the year 1967.  That was the year when Britain was setting up the Associated States.  The West Indies Federation had broken up in 1961.  Jamaica, Trinidad, Barbados, Guyana, and the Bahamas had gone into independence.  All of the remaining small islands were encouraged to become Associated States.  This was meant to be a half-way house to independence. 

Under this Act, the Associated States achieved full internal self-government.  Britain retained responsibility only for defence and foreign affairs.  All other aspects of government were handed over to the locally elected or locally appointed bodies.  Britain promised, by writing the provision into the Act, that she would never again legislate for any of the Associated States in the West Indies except with their express permission.  She would never again intervene in our domestic affairs.  In that sense, the Associated States enjoyed full internal self-government. 

Montserrat and the Virgin Islands refused to become Associated States.  Anguilla refused to be a part of the Associated State of St Kitts, Nevis and Anguilla.  The result was the Anguilla Revolution of 1967 and the subsequent British Invasion of 1969.  The invasion was intended to drive us back to St Kitts.  But, the British relented once they got here, and promised us they would never force us to live under a government that we rejected. 

Gradually, all the Associated States became fully independent.  St Kitts-Nevis negotiated for independence in 1980.  They agreed to give up any future claim to the territory of Anguilla.  The British Parliament was, with the permission of the Anguillian government and of the St Kitts-Nevis government, permitted to once again resume legal governance of Anguilla.  That was when Parliament passed the Anguilla Act 1980.

2. The Anguilla Act 1980

This is an Act of the British Parliament.  It was the law under which Britain agreed to take Anguilla back as a Colony, after Anguilla had rejected being a part of the Associated State of St Kitts, Nevis and Anguilla.  We have seen that under the West Indies Act, Britain undertook never again to legislate for any Associated State without its permission.  In 1980, our government gave permission for the Anguilla Act to be passed. 

Our Constitution is called the Anguilla Constitution 1982.  It was made by “the Queen in Council” under powers given to her by the British Parliament in the Anguilla Act 1980.  The Anguilla Constitution is thus called an “Order in Council”.  By the Anguilla Act 1980, the British Government has powers to legislate for Anguilla by way of an Order in Council.  The Queen does not really intervene personally in the government of Anguilla.  She and the Privy Council merely, as a formality, sign any Order in Council put before them by the Foreign Secretary.

3. The Anguilla Constitution 1982

The Anguilla Constitution is a statutory instrument made by the Privy Council in London.  It was negotiated by the Anguilla Government with the legal advisers of the Foreign and Commonwealth Office in London.  It sets out our fundamental rights.  However, it is not our supreme law.  Only in an independent country is the Constitution the supreme law.  Our Constitution is subject to the West Indies Act and the Anguilla Act of the British Parliament.  In theory at least, the British Parliament could at any time either pass a new Act for Anguilla or amend or replace our Constitution.  Our only assurance that this will not be done in an arbitrary way is a promise made by the British Government in its White Paper, “Partnership for Progress”.  They promised to respect our rights and to negotiate future changes to our status with us.

Future Prospects for Anguilla

Anguilla is a Colony of the United Kingdom of Great Britain and Northern Ireland.  That is not a status that we are required to remain in permanently.  We remain a Colony only so long as we wish it.  At any time, we may inform the British Government that we no longer want to be a Colony.  We will then negotiate our way into full Independence.  The British Government have promised us that they will place no obstacle in our way.  That promise is contained in the express provisions of the Anguilla Act and in the Partnership for Progress White Paper.  The British Government does not want to retain colonies.  They are subject to criticism at the United Nations and from their European partners for still having colonies.  They would be happy to see us go.  They would be glad to be free of the responsibility.  We contribute nothing to the British economy or society.

For years, the British Government has been discussing with our leaders in the Overseas Territories possible changes to our status.  They have offered us three options.  The first is full integration into Britain as Guadeloupe is integrated into France.  Their French partners in Europe would find that acceptable.  The second option is that we are entitled to retain the status quo.  That is, if we wish, we may remain a Colony with the British Government and Parliament having a final say in our affairs.  The third option they are prepared to discuss with us is for us to go into full independence.  The United Nations says there should be another option, a permanent form of Associated Status.  But, the British Government have said in their Partnership for Progress White Paper that they are finished with that experiment.  They have not completely turned their back on it.  They will not accept it as a permanent status.  They will only discuss Full Internal Self-Government in the context of a timetable for Independence.  They are ready to discuss full independence with us anytime we want to.

Full Internal Self-Government can be described as a half-way to independence status.  Under this status, Britain gives up any right to intervene in our local affairs unless specifically invited by our government.  We give to the British government responsibility to handle our defence and foreign affairs.  Why have the British Government rejected the United Nations decision that Associated Status is a legitimate permanent status that a colony may aspire to?  Why are the British reluctant to give a Colony such a permanent status?  Why will they discuss full internal self-government only in the context of a timetable for Independence?

The answer is not hard to find in the reports and debates.  Under international law, Britain has legally enforceable obligations for good government and human rights in all her territory, both domestic and overseas.  The British Government have stated that they do not want to take the risk of being sued over something they cannot control.  The head of the Foreign and Commonwealth Office is a Minister.  He is called the Foreign Secretary.  He is, first and foremost, a politician.  From time to time, he has to answer questions asked in the House of Commons.  He does not want to answer questions about some form of mis-government in an Overseas Territory when he has no power to correct the problem.  He would prefer not to fact that embarrassment.  When a few years ago the Chief Minister of Turks and Caicos was caught smuggling Cocaine into Florida, the Foreign Secretary was able to suspend the Constitution and declare a state of emergency.  The UK resumed direct rule of the Turks and Caicos Islands for a few years.  The people of Turks and Caicos made no objection as they were glad for the higher supervision.  When a few months ago the House of Assembly of Montserrat created a scandal in the island by increasing their pensions without having gone through the necessary Cabinet approvals, the Foreign Secretary instructed the Governor to refuse to sign the Act.  The people of Montserrat approved the action.  Nothing like that could happen again once full internal self-government is put in place.  The British Government would have to stand by helplessly wringing its hands.

Are Anguillians ready for full internal self-government at this time?  The majority of persons making representations to the 2006 Constitutional and Electoral Reform Commission answered, Yes, but on condition.  The people want to see full internal self-government backed up by a full range of checks and balances.  They do not want to exchange the arbitrary if largely benevolent rule of a far-away British Government for the potential spite and malice of all-powerful local politicians and civil servants who can do them daily damage, and for which there will be no recourse except by expensive litigation.  The people told the Commission that they want full self-government under a transparent and democratic system, with automatic safeguards guaranteed under the Constitution.  The Commission's Report brought forward the people's recommendations to the British Government and to the Government and House of Assembly of Anguilla.  If those recommendations had been unreservedly accepted, Anguilla would now, like the BVI and the TCI be enjoying a full measure of internal self-government with all the checks and balances for the individual's protection.  We would not call it “full internal self-government”, but that is what it would have been in practice.

What is the difference?  Why would the British Government give us what amounts to full internal self-government so long as we do not go in their face and demand it?  The difference is that if the British promise full internal self-government, and officially write it into law, they will never again be legally entitled to intervene if something seriously wrong with our government.  They will have to shut up and pay up when the court awards damages.  The Minister who is being subjected to questions in the House of Commons over some corruption or mis-government in the overseas territory will have to explain that he is powerless to do anything about it because the territory enjoys full internal self-government.  The British Government will clearly not permit itself to be driven into such a desperate position. 

Given the expressed British position, do I believe that Anguilla should demand full internal self-government?  No, I believe that it is a mistake.  It is going to start up an almighty row.  It will create a local and international crisis.  We do not know what repercussions it will have on our economy and society in the lead-up to the general elections due by mid-2010.  And, it will all have been so unnecessary.