Sunday, July 18, 2010


Provisions of the Draft 2010 Constitution of Montserrat Giving the FCO Power to Legislate for Montserrat
Draft Memorandum on the law for the use of Hon Donaldson Romeo
By Don Mitchell CBE QC
18 July 2010
You have asked me for my opinion on the provisions in the draft Montserrat Constitution 2010 particularly as regards the provisions enabling the British Foreign and Commonwealth Office (FCO) to legislate for Montserrat.  I have looked at the draft Constitution in question and have considered various British Overseas Territories’ Constitutions in the West Indies and other texts and documents as I considered relevant in coming to this opinion.  You are free to use this document for any purpose you consider appropriate.
Let us remind ourselves as a general principle that ever since the 1948 Universal Declaration of Human Rights we in the West Indies British Overseas Territories have enjoyed as a matter of international law a right to self-determination.  The FCO legislating for us without our consent would be a denial of this right of self-determination.  It would diminish our right to our own internal self-government.  Legislation for an Overseas Territory created otherwise than through our local House of Assembly is a process generally to be condemned when it occurs.  As a matter of international law, it would be retrograde, colonialist, and undemocratic.
We must not forget the 1999 Partnership for Progress and Prosperity Report.  In this official British government report the UK government expressed a desire for more participation, transparency and openness in its government of the BOTs in the future.  This Report was the result of extensive negotiations between the existing Overseas Territories and the British government.  Colonialism in its most brutal and elemental forms have thus been brought to an end.  We can say that, since 1999, for the FCO to enact legislation for one of our Territories without our consent and approval would be a fundamental denial of such a promise of partnership.  Even before that year, such recent Orders in Council as the Caribbean Territories (Abolition of Death Penalty for Murder) Order 1991 and the subsequent Caribbean Territories (Criminal Law) Order 2000 were passed by the Privy Council only after negotiation and agreement with the Overseas Territories
Let us also remember that the general proposition must be that it is for the elected representatives of an Overseas Territory to enact laws for the Territory.  So, we are not surprised to find section 70 of the draft Montserrat Constitution providing as follows:
Power to make laws
70.   Subject to this Constitution, the Legislature shall have power to make laws for the peace, order and good government of Montserrat.
This is the section of the Constitution that empowers the Legislative Assembly to pass a law for Montserrat.  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 Montserrat.  They may shortly be described as (1) the Order 9 power, (2) the section 73 power, (3) the section 75 power, and (4) an Act of Parliament.
(1) The Order 9 power:  The first way that the FCO can legislate for Montserrat, with or without the consent of Montserratians, is the Order 9 power.  Paragraph 9 of the Montserrat Constitution Order 2010 (the Order in Council to which the Constitution of Montserrat will be a Schedule) provides
Power reserved to Her Majesty
9. Her Majesty reserves to Herself power, with the advice of Her Privy Council, to make laws for the peace, order and good government of Montserrat.
This paragraph of the Order preserves the power of the FCO to make in the name of Her Majesty Orders in Council under the West Indies Act 1962 for Montserrat.  The West Indies Act 1962 is the statute of the British Parliament that sets out the rules under which from the year 1962 Britain will govern the Colonies in the West Indies.  It empowered the Monarch (in reality the Secretary of State and his department, the FCO) to make Orders governing Montserrat and the other remaining Overseas Territories.  These are supranational Orders.  They can override local laws.  They may repeal substantive laws of the Montserrat Legislature and override local legislation even where such is not expressly repealed or amended.  This power to legislate for an Overseas Territory has been justifiably described by a British Minister as “the nuclear option”.  This refers to the possibility of using an Order in Council to impose British government will on a recalcitrant Overseas Territory
A nuclear option is something never to be preferred.  In our case, any form of unwilling imperial legislation, in any except the most extreme of circumstances (as existed recently in the Turks & Caicos Islands when the revocation of the Constitution by Order in Council was the only way to bring a corrupt and self-destructive local regime to an end and to introduce reforms with a view to restoring proper democracy) is to be regretted.  In our case, except in such extreme circumstances, any form of unwilling imperial-type 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 Montserrat would suggest that the UK government had been willing to take a giant step backwards into the most brutal and undemocratic forms of colonialism. 
            Imperial-type legislation, by way of an Order in Council, may legitimately be used in the twenty-first century in only two conceivable circumstances:  (a) in time of national emergency when the normal law-making powers have collapsed; and (b) with the consent of the government and people of the Overseas Territory.  Generally, such consent would be expected to be conveyed through the instrumentality of the government of the day.  One can readily see such measures being taken in matters of international security, international aviation, international piracy, or trading with foreign countries in contravention of UN resolutions.  In such circumstances, it might well be more convenient for an Overseas Territory to signify its willingness for the UK government to pass the appropriate Order in Council rather than wasting local resources drafting and enacting a local law.  These matters do not directly impose on our liberties.  No one in Montserrat could have any objection to the government of Montserrat consenting to the FCO legislating for us in such matters by way of an Order in Council.  No objection has been raised in the past when it was in fact done.  That is the positive side of the Order in Council. 
            There is also negative side.  That occurs when an Order in Council affecting our basic rights is passed without general information, consultation, and resulting consent.  It used many years ago to be thought that no court in the West Indies or in England could intervene even when a patently unjust Order in Council had been made.  Such Imperial legislation was considered by lawyers to be unimpeachable and unquestionable.  That was the nuclear option at work in its worst, anti-democratic aspect. 
Times have changed.  We will recall the recent Chagos Islands Case.  The decision in the English Court of Appeal was to the effect that an Order in Council made under the Royal prerogative for a colony was no longer unimpeachable, but was subject to judicial review by the courts.  That decision was, unfortunately, reversed by the House of Lords, which held by a majority that while such an Order in Council is reviewable by the courts, it was not for the courts to substitute their judgment for that of the Secretary of State as to what was conducive to the peace, order and good government of the British Indian Overseas Territory.  In effect, the House of Lords’ decision validated the Order in Council, and confirmed the banishment of the Chagos Islanders.  The Islanders have taken the matter to the European Court of Human Rights.  We await a final decision of that court which, in effect, has the power to reverse a decision of the House of Lords on a human rights issue.
I would submit that none of us in the Overseas Territories would have a problem with an Order in Council that was subject to judicial review.  Nor would any one of us have a problem with an Order in Council that had been made for us with our express consent.  The House of Lords decision in the Chagos Islands case has confirmed the opinion of the lower courts that Orders in Council made under the Royal prerogative are challengeable as to their validity.  There is no reason why such a conclusion should not apply to an Order in Council made under a statute such as the West Indies Act.
            When it comes to the liberties and freedoms of Montserratians it can be stated as a general proposition of Constitutional law that no Order in Council affecting those liberties and freedoms ought to be consented to by any government of Montserrat without the agreement of the people of Montserrat signified either through mechanisms for arriving at a consensus or by a referendum under a law providing the rules governing referendums. 
We can similarly state as a general proposition that no government of Montserrat can validly consent to the FCO legislating for Montserrat by Order in Council to amend the Constitution without the prior knowledge and approval of the people.  Only the people can give this consent. 
That the FCO recognizes these principles is clear.  The FCO has repeatedly promised that no amendment of the Montserrat Constitution will be made unless it is satisfied that such proposed amendment has the consent and approval of the people of Montserrat.  It is for that reason that the draft Constitution has noted at its head the following words:
[Draft of 12 May 2010. This text incorporates agreements reached between Montserrat and UK delegations during discussions on 4, 5 and 6 May 2010.]
            The proper use of an Order in Council is unobjectionable.  It exists for the use and benefit of the Overseas Territories, as well as for permitting the British government to ensure that good government prevails.  The Order in Council can be 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.  There is no point our duplicating the work of the international experts.  We permit the Order in Council to be passed to save us the waste of such duplication.  That is one of the legitimate uses of an Order in Council.  Recommendation:  The Montserrat delegation should insist that there be incorporated in either the Constitution or some other form of agreement an undertaking by the British government that the Order in Council will not be used in the future to affect the fundamental rights and freedoms of Montserrat except with the consent of Montserrat or in case of emergency when it is impractical to obtain such consent.
            (2) The Section 73 power:  This is the second mechanism whereby the British government can legislate for Montserrat.  It is the section of the draft Constitution that provides that a Bill does not become law until the Governor has assented to it.  We will be aware that the Governor sits in the Executive Council, or Cabinet as it will be called.  The Governor participates in Cabinet in the debate on every Bill.  It would normally be inconceivable that the Governor would then refuse to assent to the Bill when it has been approved by the Executive Council and then gone through the necessary three readings in the Assembly, and comes up to him for his assent.  But, indeed, we have known that to happen in the recent past in Montserrat
            In late 2007, the government of Montserrat determined to pass a law enlarging the emoluments of legislators.  The Act in question was an amendment to the Legislators’ Conditions and Service Act.  The Bill had been agreed in Executive Council in the presence of the Governor.  When the Bill reached the Committee stage, the Chief Minister proposed an amendment enlarging the benefits payable beyond those agreed by the Executive Council.  The amendment was supported by government members of the Assembly, but passionately opposed by the Opposition.  The government majority prevailed, and the Bill was passed.  A howl of protest went up in the press and among the public of Montserrat.  The press accused the politicians of taking care of their emoluments in a manner that was unacceptable.  The Governor considered that what had been passed did not accord with what the Executive Council had approved.  He refused to assent to the Bill.  The Bill was returned to the Legislative Assembly, amended in accordance with the terms approved by the Executive Council, and duly thereafter assented to by the Governor.  All worked out well in the end.
            It is to be noted that the embarrassed Chief Minister had first invited the Governor to unilaterally amend the Bill “in such a way that he feels he can consent to it”.  The Governor showed himself too enlightened to accept the exercise of such a barbaric misuse of the Governor’s power.  He insisted on the more democratic and proper method for getting an irresponsible or corrupted law changed:  passage of the necessary amendment by the Legislative Assembly itself. 
            It is inconceivable in the twenty-first century that a Governor, sitting in Executive Council, participating in the approval of a draft Bill for submission to the Legislative Assembly, having presumably received the green light from both the local Attorney-General’s Chambers and the FCO legal advisers, would then refuse to assent to such a Bill.  If he did, it would involve enormous political risk for the Governor and the FCO.  There are proper democratic methods for getting an irresponsible or corrupt law changed.  It has to do with public education, public involvement, and public protest.  As a matter of principle, if the public of Montserrat, after having been alerted to some impropriety on the part of the Legislative Assembly, do not demand that the law in question be changed by their own representatives sitting in the Legislative Assembly, then it is not for a Governor to intervene and to make alterations to improve an enacted law. 
There is nothing wrong in principle with a Governor sending an enacted law back to the Legislative Assembly, if he notices some defect in it, for the Assembly to consider his objection and to take such action as they consider fit. 
So long as fundamental British interests are not at risk, it is inconceivable that the FCO would direct a Governor not to assent to a Bill that has received the approval of the Executive Council and the Legislative Assembly.  The more proper procedure would be to persuade the Executive Council and the Legislative Assembly to pass the appropriate amending legislation, as was done in this case. 
The FCO appears already to be sensitive to what is constitutionally appropriate.  At the end of the day with the pension case in Montserrat, it was the FCO that behaved with impeccable propriety. They did not use the powers reserved to them in the Constitution. They did not accept the invitation of the Chief Minister to revert to an outdated form of colonial legislative procedure that had been suggested by the Chief Minister. Instead, they did the right thing. They put pressure on the local authorities to correct their own mistake.
Recommendation:  There should be an appropriate provision in either the Constitution or in some written protocol that the Governor will never, except in the most unusual circumstances involving, eg, Britain’s international obligations, refuse to assent to a Bill that has passed normally through the Executive Council and the Legislative Assembly.
(c) The Section 75 power:  This is often referred to as the power of disallowance.  Section 75 provides:
75.-(1) Any law assented to by the Governor may be disallowed by Her Majesty through a Secretary of State; but no law shall be disallowed until the expiration of a period notified by a Secretary of State to the Governor, who shall advise the Speaker of that period, in order to give the Legislative Assembly an opportunity to reconsider the law in question.
This section enables the FCO, acting in Her Majesty’s name, to block a law properly passed in our Legislative Assembly.  The section permits the FCO to intervene after the Assembly has passed a Bill, after the Governor has signed it into law, and it has become an Act.  In saying the Secretary of State may “disallow” it, we are really saying that he may legislate for us by repealing a properly made Act of our Assembly. 
Highly objectionable as such a provision is, it is not a new one.  It is a traditional colonial power.  It has existed in colonial constitutions for hundreds of years.  The power of disallowance had its usefulness in the days of the sailing ship.  At that time, it was conceived that a colonial Assembly might in good faith pass an Act which, when the copy of it arrived in London several months later, might be found to be objectionable for some reason that could not have been discovered earlier.  Perhaps a war had come to an end and some new Treaty had been entered into that the colonial law conflicted with.  It was considered a good precaution to hold in reserve this power for the Secretary of State to be able to disallow such Acts.  In the old colonial days the records are replete with examples of just this occurring. 
However, we are all aware that we have entered the electronic age.  The need for this reserve power is unlikely ever to arise again.  It has never in modern times been used in any Overseas Territory.  There is good reason for this:  Acts that the Governor has assented to no longer go by sailing ship to England.  The FCO knows of every proposed Bill long before it is passed into law by the Assembly.  The FCO has plenty of time to send its comments to the A-G’s Chambers.  Long before the Bill gets before the Legislative Assembly, the FCO can recommend amendments to the local draftsman that will bring the Bill in compliance with Britain’s international obligations.
The retention of this supervisory provision, bedded as it is in the days of the sailing ship, is now an anachronism.  The power of disallowance is objectionable in principle for the reasons that have been set out above.  It should not continue into the future as a part of the Constitution of Montserrat. 
Either Montserrat is to be fully internally self-governing or it is not.  Most Montserratians would be shocked to learn that their own Constitution will provide for others to legislate for them.  Montserratians are expected to take care of their own affairs.  This includes making their own laws.  With that in mind BOT citizens rely on their A-G’s Chambers to keep in close touch with the latest thinking on the drafting of any proposed new law to be placed before the Legislative Assembly.  If he fails to do so, it is not a matter for the Secretary of State to try to correct the error.  He need only have one of his juniors point out the error to the BOT legal draftsman, and if appropriate, and after discussion at the Montserrat Cabinet level, an amending Bill can be introduced into the Montserrat Legislative Assembly at the earliest opportunity.  That is the proper way to deal with errors that creep into legislative drafting.  As a matter of principle, it is generally for the legislature of Montserrat, and nobody else, to legislate for Montserrat.
(4) An Act of Parliament:  And, so, we come to the fourth and final way in which the British government can legislate for Montserrat:  by passing a law through the British Parliament.  This mechanism is not mentioned in the draft or any other Constitution, but exists as a matter of constitutional law. 
It is incontrovertible that the UK Parliament has the constitutional authority to pass an Act for Montserrat, a British Overseas Territory.  The Montserrat Legislative Assembly is a subordinate legislature, while the British Parliament is supreme.  So, in the year 1980, the British Parliament passed the Anguilla Act 1980.  This is the law under which Britain took responsibility for administering the government and territory of Anguilla.  The relevant Act for Montserrat is the West Indies Act 1962.  Short of requesting an amendment of the British Constitution, there is little that any Overseas Territory can do to control or limit this legislative power. 
That is not to say that all is lost.  It would be trite to say that Parliament is made up of politicians.  We can reasonably expect that all politicians are sensitive to issues that are either politically advantageous or that are dangerous.  We may well be satisfied that there is no way that a British Parliament would countenance passing into law today any statute for the administration of any Overseas Territory such as Montserrat without the assurance that the proposed statute was for the benefit of and approved and willed by the people of Montserrat.  When a British Colony, in days gone by, achieved independence, the British Parliament expressly relinquished the power to legislate for the now independent and sovereign nation.  That relinquishment is one of the signposts of independence.  So long as Montserrat remains a British Overseas Territory, it is inappropriate that we should request that the British Parliament similarly relinquishes power to legislate for us.  I, therefore, have no recommendation for making any proposal to limit this law making power.
However, it is not inappropriate for us in the BOTs in the West Indies 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, just conceivably, request the British Parliament to do it for us. The second is where some vital British international interest is concerned.  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 previously having asked to pass the law ourselves.  If the bona fides of such a law were to be proved, 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”.
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.  It would clearly be wrong for the British Parliament to pass an Act applicable to Montserrat without first consulting the Montserratians.  It is simply not conceivable that they would attempt to do so at this time.
We also recognise that we in the BOTs in the West Indies have no business telling the British Parliament what it can and cannot do.  So long as we remain an Overseas Territory it is not conceivable that we should strive to place any restriction on the passing of an Act by the British Parliament.  That is a matter for the British Constitution, not for ours.  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.  In the meantime, we may legitimately say that the power of the UK Parliament to pass an Act for Montserrat is a valid Montserratian legislative procedure.  It occurs when we or our representatives agree to it and when we find it more convenient or effective to have one of our laws passed by the UK Parliament, or when it is vital for the protection of British international interests, and not otherwise.  Anything else would be undemocratic, and a denial of the promised partnership.
To summarise, there are four methods that the Foreign and Commonwealth Office retains for imposing their legislative wishes on Montserrat.  One is outside of Montserrat’s Constitution, and that is (1) the British Parliament passing a law for Montserrat.  The second is mentioned in the Constitution but is governed by the West Indies Act of the British Parliament, and that is (2) the Order in Council.  The use of the Order in Council cannot be limited or restricted by a Montserrat law, but is amenable to regulation by agreement and consent between the government of Britain and the government of Montserrat.  The other two are (3) the power to withhold the assent to a Bill and (4) the power to disallow an Act.  These two ancient colonial powers are, in my view, both obsolete and offensive and should have no place in a modern Montserrat Constitution.