Thursday, April 28, 2011

Beyond Walls - Part 1

Beyond Walls: Multidisciplinary Perspectives – 2011 Anguilla Conference Held at the National Bank of Anguilla Conference Room, The Valley, Anguilla on 28 April 2011
New Perspectives in Oppression: The British Foreign and Commonwealth Office and Proposals for Constitutional Reform in the Overseas Territories of Anguilla, Montserrat and the Turks and Caicos Islands
PART 1
Setting the Stage
[1]     The first decade of the twenty-first century was not a positive one for either good governance or constitutional reform in the remaining six British Overseas Territories (BOTs)[1] in the West Indies. The Cayman Islands and the British Virgin Islands stand out as possible exceptions. The Cayman Islands after approval by referendum accepted a new Constitution[2]. The British Virgin Islands after wide consultation and public approval did the same[3]. Bermuda has a form of Associated State Constitution[4]. This gives her full internal self-government. It is not thought that she can ask for much more constitutional advancement short of full independence. The same cannot be said for the Turks and Caicos Islands (TCI), Montserrat and Anguilla. Anguilla is still struggling to work an antiquated 1982 Constitution[5]. The TCI got her new Constitution in 2006[6], but vital parts of it have since been suspended. Montserrat was persuaded to accept a new Constitution in 2010[7].
[2]     The three most recent West Indian BOT Constitutions, viz, those of the BVI, Cayman Islands and Montserrat, were principally designed to update the human rights provisions. The aim of the Foreign and Commonwealth Office (FCO) in encouraging and approving constitutional reform would appear to have been to ensure that Britain was in compliance with her obligations under the European Human Rights Convention. There is a good argument that, with this limited perspective, too little of an effort was made to ensure that mechanisms designed to guarantee good governance were put in place. All three of the new Constitutions suffer from many of the defects that will be discussed below when we come to deal with Anguilla’s situation.
[3]     Five years ago, at the 2006 Overseas Territories Consultative Conference (OTCC), light and hope were much in evidence. The economies of all the Territories, except Montserrat, were booming. The world-wide recession that was to commence in December 2008 had not yet begun, though Montserrat was still devastated by the eruption of the Soufriere Volcano which had made the larger part of the island uninhabitable. At this 2006 OTCC, the FCO circulated a paper on the need, as perceived by it, for good governance in the Overseas Territories.
[4]     The 2006 FCO paper claimed as the provenance of this need for good governance the 1999 White Paper Partnership for Progress and Prosperity. This 1999 FCO policy-paper had set out the policies which allegedly govern the relationship between the British Government and the governments of the Overseas Territories[8]. The 2006 FCO paper reads in part:
“2. Good governance is part of the partnership between the UK and its Overseas Territories set out in the 1999 White Paper, which highlighted the importance of providing governance of a high quality. It is essential that the UK and its Territories subscribe to high standards of human rights, openness and good government. Good governance builds trust amongst citizens of a society in its institutions and assists social cohesion. It encourages domestic investment; promotes higher rates of growth; and enables a society’s development to be shared equitably amongst its citizens. And it also promotes greater confidence amongst potential external investors. Moreover, good governance is a key element in ensuring sustainable development, another important area highlighted by the White Paper. For without good governance, the potential for sustainable development is severely undermined.”
[5]     It might be useful at this point to remind ourselves that good governance in an Overseas Territory does not exist for the benefit of the FCO. ‘Good governance’ is not a mantra designed to make the public servants of the FCO feel comfortable with themselves. It exists purely for the benefit of the citizens of the territory concerned. If there is bad governance in a Territory, it is the people who suffer.
[6]     The 1999 White Paper had recognised the need for more participation, transparency and openness in the BOTs in the future. This White Paper had been the result of extensive negotiation between the existing BOTs and the FCO. Colonialism in its most brutal and elemental form as it existed previously was to be ended. Ever since this 1999 policy statement the FCO has not legislated for Anguilla without our consent and approval. For them to have done so would have been a denial of the 1999 promise of partnership in the future. Even before that year recent Orders in Council such as the 1991 one abolishing the death penalty for murder[9] and the subsequent one legalizing homosexual acts in private[10] had been signed into law only after negotiation and agreement with the Overseas Territories. That is why the manner in which the new Montserrat Constitution was brought into effect in October 2010, and the recent questionable recommendations of November 2010 for TCI constitutional amendment[11], are so worrying. They suggest that all this progress is about to be reversed.
Subordinate Legislatures
[7]     The general proposition must be that, colony or not, the making of domestic laws is in normal circumstances a matter for a country’s elected representatives. Our colonial Constitutions all provide that it is for the local legislatures to pass laws, subject to the Constitution. So, section 71 of the 2010 Montserrat Constitution provides that
“Subject to this Constitution, the Legislature shall have power to make laws for the peace, order and good government of Montserrat.”
We may describe this as the ‘normal’ way that laws are made in a BOT. However it is not the only law-making mechanism in a BOT.
[8]     Under our Constitutions, the FCO has reserved five other ways to make laws for us. They may in short be described as (i) the reserve power of the Queen to make laws by the use of the Royal Prerogative, (ii) the power of the Governor to refuse his assent to a Bill that has passed through the House of Assembly, (iii) the Governor’s reserve legislative power; (iv) the Secretary of State's power of disallowance of an Act that has passed through the House and has been assented to by the Governor; and (v) the power of the British Parliament to make laws for us. Let us look briefly at them and consider whether they are all still appropriate for the encouragement of good governance in a BOT.
[9]     (i) The Queen's power: Section 121 of the 2010 Montserrat Constitution is typical of a BOT Constitution. It provides,
“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 section preserves the traditional colonial power of the FCO to make Orders in Council in the name of Her Majesty. These Orders derive from two sources. They are made either in exercise of the ‘Royal Prerogative’ or under the West Indies Act of 1962. The concept of the Royal Prerogative dates back to the days when the King claimed absolute authority to rule without consulting his subjects. Needless to say, it is seldom if ever used to make law in the UK itself. It is reserved for the colonies. The Act in theory empowers the Monarch (in reality the Secretary of State and the FCO) to legislate for the BOTs by way of Orders in Council. This power has justifiably been described as ‘the nuclear option’[12] held by the British government for control of an unruly BOT.
[10]   An Order in Council, under whatever authority, in my view, may legitimately be made for a colony in the twenty-first century in only two circumstances. One is in a time of emergency when the normal law-making powers have collapsed or are not appropriate for some good reason. The second is when it is made with the consent of the Government and people in question. We regularly see the first in operation when emergency orders are made prohibiting trade by a BOT with a foreign country in breach of United Nations sanctions. We have seen the second in operation in such matters as international security and civil aviation. In such circumstances, it is more convenient for a BOT to adopt legislation by an Order in Council made in London than to waste local resources in drafting and enacting a local law.
[11]   When an Order in Council is made affecting our basic right to self-government, without public information, consultation and consent, a wrong is done, in my opinion, to the people of the BOT[13]. This is the nuclear option at work in its anti-democratic aspect. The Chagos Islands case[14] is the classic example. During the 1960s the British government had, by an Order in Council made under the Royal Prerogative, deported the residents and citizens of the British Indian Ocean Territory to make room for a US naval base on the island of Diego Garcia. It had previously been accepted constitutional dogma that an Order in Council affecting a colony was unimpeachable in one of the Queen's Courts. The English High Court and Court of Appeal in enlightened judgments ruled that was no longer the case, and that all Orders in Council were subject to review by the Courts. Both courts held that a law for the deportation of an entire colonial people could not be said to be a law passed for the “peace, order and good government” of the people in question. The courts ordered that the survivors and descendents of the inhabitants should be returned to the Chagos Islands. The House of Lords, by a narrow majority, overturned the Court of Appeal decision. It held that, while such an Order in Council was 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 Territory. This judgment was a sad day for the people of the BOTs. The House of Lords turned back the clock on decades of constitutional advance in the territories. The islanders have since taken the matter to the European Court of Human Rights, and we await a final decision on whether or not the House of Lords was correct in its ruling.
[12]   (ii) The power of the Governor to refuse his assent: This is the second way in which the FCO reserves the right to legislate for us. Until the Governor has written the magic words “I assent” on an Act that has been passed by the Legislature and has signed his name to it, the law is not yet in effect. In an independent country, the Governor's power to refuse his assent is as theoretical as is the Queen's power to refuse her assent to an Act of the British Parliament. It is different in a colony. The older BOT Constitutions, such as Anguilla's is, give an unfettered discretion to the Governor to refuse his assent. In my opinion, that is not an acceptable situation for a BOT in the twenty-first century.
[13]   It is unacceptable because it is undemocratic, redundant and anachronistic. It is undemocratic because the Governor has not been elected to make laws for us. It is redundant because the Governor sits in Cabinet[15] while a proposed Bill is being discussed and can affect the decision arrived at. It is anachronistic because it is a power that found its raison d’êtres in the days of the horse and buggy when colonial people could not be trusted to pass just laws. The Governor, his Deputy Governor and his Attorney-General (A-G), all have an opportunity to influence the wording of a draft Bill. In a smoothly running BOT where the elected leaders cooperate with the Governor, it would be unusual for a Governor, having joined in Cabinet in approving a Bill, to refuse his assent when once it has passed through the Legislature. That this has happened in Anguilla several times during the year 2010 is evidence of a breakdown in the relationship of comity expected between the elected Ministers and the non-elected members of Cabinet. To quote Justice Adrian Saunders in the celebrated High Court freedom of speech case of John Benjamin v Minister of Information[16],
“If this comity does not exist, then the wheels of democracy would not turn smoothly. A jarring and dangerous note will resonate from them.”
[14]   Recent events have shown us the correct way for a Governor to behave when the Legislature passes an unacceptable law. In late 2007 the Government of Montserrat determined to improve the pensions payable to ex-parliamentarians. They approved in Cabinet an amendment to the Legislators' Conditions and Service Act. I am informed[17] that when the amending Bill reached the Committee stage in the Legislature, the Chief Minister of the day proposed an amendment that significantly enlarged the benefits that would be payable. This amendment had not previously been approved by the Cabinet. The amendment was supported by members of the governing party but opposed by the Opposition. The Bill was passed as amended. The Montserrat press and public protested. The Chief Minister backed down. He invited the Governor to correct the error made by the House by amending the Bill “in such a way that he feels he can consent to it”. The Governor refused this invitation to follow such an anti-democratic process. He insisted that the Chief Minister instead take back to the Legislature the necessary amendment to the illegal Bill. He could have done as the Chief Minister requested. Instead, he signed the bad Act into law together with the later amending Act. He did the right thing. He had encouraged the local Legislature to pass its own proper laws.
[15]   Our BOT colonial Constitutions all provide that a Governor may send an enacted piece of legislation back to the Legislature, if he notices some defect in it, so that the Legislature may consider his objection and take such action as they think fit[18]. It goes without saying that if the Legislature chooses to ignore his advice that is their right under the principle of self-determination. We would expect in the future to see in a modern BOT Constitution or in some protocol to it a provision that the Governor will not refuse to assent to an Act that has properly passed through the Legislature except in the most unusual circumstances involving, e.g., Britain's international obligations.
[16]   (iii) The Governor’s reserve legislative powers: The third way in which the FCO can legislate for us without the approval of our legislature is through the Governor's reserve legislative power[19]. The constitutional provision means that whenever a Bill has been introduced into the Anguilla House of Assembly, and has not received the majority support of the members, the Governor, if he considers it expedient in the interests of public order or public faith, may at any time declare the Bill to be a valid law and shall give his assent to it. There used to be a similar unrestrained provision in the BVI, but it has been severely restricted by the new Constitution[20]. The new BVI provision limits the Governor to exercising such legislative power to matters which are urgently necessary “for the purpose of complying with any international obligations applicable to the Virgin Islands”. We can hope that a similarly enlightened approach will be taken in relation to any new Anguilla Constitution.
[17]   (iv) The power of disallowance: This is the fourth legislative mechanism by which the FCO can overturn a locally enacted law. All of the older BOT Constitutions[21] contain a provision that the Secretary of State is to have an unfettered power to disallow a law that had been passed through the Legislature and been assented to by the Governor. In the eighteenth century this power was operative only for a limited period after the law had been enacted. During the twentieth century it became an unfettered power, but it has been seldom invoked.
[18]   The old colonial records are replete with examples of this actually happening. For example, in relation to the Slavery Amelioration Act and the Slavery Abolition Act the colonial legislatures of that day, supported by compliant lieutenant governors, frequently attempted to pass local legislation that was in conflict with the Act of Parliament. The Secretary of State, acting on the advice of the legal advisers to the Colonial Office, would disallow the offending colonial Act.
[19]   The retention of this supervisory provision in modern BOT Constitutions is, in my view, now an anachronism. Modern communications ensure that the BOT A-G's Chambers, which are charged to draft laws for the local legislature, will be instantaneously advised of any changes that are required to be made to the drafting long before the provision goes before the Legislature. If the A-G's Chambers fails to keep in close touch with the latest thinking on proposed new legislation, he can be instructed to introduce the necessary amending legislation and to pilot it through the Legislature.
[20]   In Montserrat[22] and the BVI[23] the provision has been softened by providing that the Secretary of State must first give the Legislature an opportunity to consider the defect and to correct it themselves. In my opinion, this is a half-way-house measure designed to make the provision more acceptable. We would hope that, if the power is not entirely repealed, this provision would be repeated in the new Anguilla and TCI Constitutions.
[21]   (v) An Act of the British Parliament: This is the fifth and final way in which the British Government can legislate for us in the colonies. The procedure is not referred to in our Constitutions. We should not expect it to. It exists as a matter of general constitutional law.
[22]   It is incontrovertible that the UK Parliament has the constitutional authority to pass an Act for any of the BOTs. Our legislatures are described in the constitutional literature as “subordinate legislatures”, the British Parliament as the “supreme legislature”. So it was that in 1962 Parliament passed the West Indies Act and in 1982 the Anguilla Act. When a British Colony achieves independence the British Parliament expressly relinquishes the power to legislate for the now sovereign nation. So long as we remain BOTs, it is inappropriate for us to expect that the British Parliament will relinquish the power to legislate for us.
[23]   However, in my opinion, it is appropriate for the BOTs to demand that the British Parliament will never again legislate for us except in two circumstances. The first is if we request it. The second is where some vital British security interest is concerned and it is necessary to protect that interest by legislating for the BOT. In my opinion, it would be wrong in principle for the British Parliament to pass a law for us without first consulting us through our elected representatives and Cabinets.
The Problem
[24]   The 2006 FCO paper previously referred to sets out what, in the view of the FCO, amounts to good governance. The paper lists the five key elements as being (i) the rule of law; (ii) transparency; (iii) accountability; (iv) the responsiveness of institutions; and (v) effectiveness and efficiency. These five elements may, for our purposes, conveniently be summarised under the three headings of (a) integrity, (b) accountability and (c) transparency.
[25]   In my opinion, our system of government in the BOTs has generally failed in all of the above three prerequisites for good governance. We have been running our own internal affairs for decades. We have done so with such incompetence, venality and hubris among our leadership that observers generally hold our Ministers in quiet contempt. The FCO now appears genuinely to want to do something to help us to correct our failings. The issue for us is what can they do to assist us to correct these failings, and are they going about it in the right way.
[26]   One of the basic requirements for good governance in any country is the existence of a system of law and custom that is designed to promote that aim. Without law and a strong tradition of integrity in public service it would be naïve to leave it to the good intentions of any political leader to show exemplary standards of public behaviour. The highest form of law is the written Constitution we all enjoy. The greatest protection that good governance institutions can enjoy is for them to be established by the Constitution.
[27]   In each of the BOTs, our constitutional system is based on the Westminster Model. That is, our Constitutions attempt to copy the law and conventions that obtained in Britain at the time they were written. If, as I contend, the structure of our Constitutions is misshapen and unworkable in providing good governance, part of the explanation may be that our twentieth century fundamental rights and freedoms unevenly overlie the skeleton of an eighteenth century colonial structure of administration, now reduced to writing. What we have is the British parliamentary model with none of the institutions or structures that exist outside of the law in Britain to ensure that the whole works smoothly and evenly.
[28]   The conventions that in Britain promote good governance, e.g., the expectation that a Minister will resign his post once he must defend himself against a serious criminal charge, so as not to bring the Government into contempt, do not prevail here. The reason is cultural and historical. The British have enjoyed centuries of parliamentary democracy, even without a written Constitution. This has given them the time and space to develop conventions that ensure the smooth working of their system. We in the West Indies, with no more than half a century of universal franchise, are still in many ways frontier societies. We have fancy written Constitutions with amateurish politicians who sometimes behave like cowboys, and we have no mechanisms in place to rein them in.
[29]   One of the distinguishing features of a typical West Indian BOT Constitution is an almost complete lack of any mechanism to investigate and to prevent abuses of power. The typical Constitution, lacking either written-in checks and balances or universally honoured conventions to supplement the written rules, is intrinsically corrupting. Its lack of checks and balances and watchdog institutions almost seems designed to promote bad governance in our territories.
[30]   To give a few examples, typically Tenders Boards are not established by our Constitutions. In many territories they are not even governed by legislation, but are ad hoc committees appointed by a Minister or the Governor. Public contracts are routinely awarded on the basis of family and friendly relationships. Statutory Boards and government committees are staffed with unsuitable political supporters on the basis of “the winner takes all” after every general election. Land Development Planning Committees and Building Boards have their policy-based decisions subject to reversal by politicians. Immigration Department orders and Work Permit decisions are made by politicians on the basis of unpublished and unknown policies. In some cases in Anguilla, the local statute[24] specifically permits political interference in the administration of government policy. The result is that, with a Minister on your side, you can safely ignore every regulation that had originally been put in place presumably for the public good.
[31]   Other than the opportunity afforded the citizen every five years to change the faces of our representatives through general elections, there is no publicly enforceable restraint on the abuse of power. There are no provisions for the recall of an errant politician. There is no procedure for impeaching a Minister caught with his hands in the cookie jar. When major decisions or changes in the law have to be made, there is no question of a referendum or other mechanism for ensuring that the wishes of the people are made known and followed. In most of our territories there is nothing to ensure that the spending of public funds will be questioned in a forum that can impose accountability. Despite the media being technically free of censorship, the small sizes of our communities, and the need of our newspaper proprietors to rely on government advertising revenue, ensure that there is a minimum of critical reporting and commentary. Self-censorship prevails.
[32]   In a democratic, transparent, and accountable system of government, it is for the politicians to lay down the national policy. Then, they must leave it up to an independent, professional public service to carry out their policy. It is the duty of the public officer to apply government's policies fairly and impartially. In appropriate cases there will be the power of appeal to an independent tribunal, but never to a politician. To have it otherwise means that the law and policies of our countries are not applied evenly and fairly to all citizens. There is no integrity in a system such as we have in Anguilla that permits a personal appeal to a Minister to overrule the decision of a Board or public officer carrying out the national policy. Victimisation and discrimination are the inevitable result. And, indeed, that is the system of government that most of us labour under, supervised by the Governor and the FCO.
The Solution
[33]   We, the citizens of the BOTs, do not accept that our islands are too small for high standards, similar to those that are expected in the outside world, to survive and work here. No matter how small our territories are, we are entitled to expect that our governments will be of laws and not of men. The solution is to establish in our Constitutions the necessary checks and balances, pass the necessary enabling laws, and then to educate the public and the leadership in the principles of good governance.
[34]   It is arguable that, despite the high-sounding sentiments expressed both in the 1999 White Paper and at the 2006 OTCC, little that the FCO has done in the West Indian BOTs during the first decade of the twenty-first century has contributed to good governance in any of them. The new Constitutions of the Cayman Islands, the BVI, and Montserrat, that update the human rights clauses to take on board the latest concerns of the Europeans on human rights, while at the same time increasing the deficit of democracy in each of those territories, have made no contribution to good governance in any of them. Let us look at some of the details.
[35]   In 2010, the FCO successfully brought about a new Constitution for Montserrat. The new Montserrat Constitution was enacted by an Order in Council on 13 October 2010[25]. It comes into effect in September 2011. It had been approved by a resolution of the Montserrat legislature in very suspicious circumstances. As the Hon Don Romeo of of the Montserrat Legislative Assembly has protested[26],
“… it cannot be soundly argued that there was an informed mandate from the public for the legislature to act on their general mandate as our representatives, by ever so abruptly bringing the constitution development process to a conclusion within the next week or so. Therefore, if the FCO and our government now knowingly proceed to force through the Constitution and/or to accept it as it stands, they will have utterly betrayed the moral and historical imperatives and principles of decolonisation that were codified in UN Resolution 1541.”
[36]   Anguilla continues to dwell under a 30-year-old Constitution. In August 2006, Anguilla published a report[27] making recommendations[28] for constitutional and electoral reform. However, that report did not receive universal acceptance, and progress in implementing its recommendations ground to a halt. General elections took place on 15 February 2010 and a new government was installed. The new government did not accept the Report. It has undertaken to appoint a new Committee to come up with new recommendations for constitutional reform and advancement. The citizens of Anguilla can hope that our government and the new Committee will learn from the errors made in our neighbouring BOTs of Montserrat and the Turks and Caicos Islands. Their reforms tell something about the type of proposals that are likely to be pushed by the FCO for inclusion in Anguilla’s new Constitution.
[37]   We Anguillians must consider our options in the context of Anguilla holding the status of a British Overseas Territory, or colony. As such, Anguillians will continue for the foreseeable future to depend on the good will of FCO personnel if we are to enjoy any hope of constitutional advance. What are the constitutional changes the FCO have made to Montserrat and proposed for the TCI in the year 2010?
[38]   Regarding TCI, it is as well to get the controversy over the suspension of parts of that Territory’s Constitution and its reversion to direct rule by the FCO out of the way. The waste and mismanagement of preceding TCI governments having come to a head in 2009, the FCO was stirred into action and suspended the three-year old Constitution, assuming direct control of the Government.
[39]   While some TCI politicians and their hangers-on who had enjoyed the spoils of government, together with a few misguided political leaders in Caricom, continue to protest the suspension of parts of the TCI Constitution, there can be no doubt that the majority of TC Islanders accepted direct rule with relief. The dissolution of the local government and legislature were essential. It will require a Herculean effort to clean out the Augean stables of the TCI. Direct rule by the FCO was viewed by the TC Islanders as a precondition for the cleansing of the corrupt system under which they suffered at the hands of their local leadership. The introduction of an independent investigative and prosecutorial team to recover some of the stolen public assets and to put the more corrupt leaders in prison was unlikely to be accomplished if those leaders continued to run the organs of government. One gleans from the press in the TCI that the process of prosecuting politicians for corrupt acts and suing for the recovery of misappropriated public assets is grinding on so slowly that the anxious TC Islanders are growing impatient and dissatisfied with the rate of progress. That does not mean that they disapprove of the suspension of the Constitution. On the contrary, it was welcomed by all well-intentioned persons in and out of the TCI.
[40]   There is one matter of justifiable concern in TCI. The FCO has appointed a constitutional consultant to come up with a set of recommendations[29] for revising the Constitution of the TCI, allegedly with the objective of improving the appalling standard of governance suffered by the citizens of that territory in past years. The resulting published recommendations can be criticised on two general grounds. The first is that they do not contribute to the improvement of democracy. The second is that the opportunity for installing effective checks and balances against future government excesses has been missed.
[41]   So far as Montserrat is concerned, the FCO has, with the agreement of the local government, introduced a wholly repressive and retrograde new Constitution for that Territory. The TCI Revised Recommendations and the 2010 Montserrat Constitution give us some guidance as to what proposals the FCO legal team is likely to make for Anguilla when we come to discuss with it the question of constitutional advance. The omens are not good for Anguilla.
[42]   Some questions are appropriate. What are the ‘watchdog institutions’ or ‘checks and balances’ that the FCO propose to introduce into the new TCI Constitution? Which of them, if any, have they included in the 2010 Montserrat Constitution? Which of them are they likely to insist on for Anguilla? What does the recent imposition of the Constitution in Montserrat tell us about the FCO’s true attitude to good governance? In relation to the 2010 Montserrat Constitution and the TCI Revised Recommendations, has the FCO shown any inclination to take steps that will ensure that good governance will prevail? Let us look at the answers to these questions in the context of the requirements for good governance.
[Continued in Part 2]


[1]        The new name under the British Overseas Territories Act 2002 for a colony.
[2]        The Cayman Islands Constitution Order, SI 2009 No 1379.
[3]        The Virgin Islands Constitution Order, SI 2007 No 1678.
[4]        The Bermuda Constitution Order, SI 1963 No 182.
[5]        The Anguilla Constitution Order, SI 1982 No 334.
[6]        The Turks and Caicos Islands Constitution Order, SI 2006 No 1913.
[7]        The Montserrat Constitution Order, SI 2010 No 2474.
[8]        The new UK Conservative/LibDem Government in 2010 shortly after coming to office published its intent to replace the 1999 White Paper early in 2011 by a new policy document which it is developing. It is uncertain to what extent, if any, the governments of the BOTs have been asked to play any part in this exercise.
[9]        The Caribbean Territories (Abolition of the Death Penalty for Murder) Order, SI 1991 No 998.
[10]       The Caribbean Territories (Criminal Law) Order, 2000.
[13]       The consent of the TCI belongers was neither formally sought nor obtained before the Order authorizing the FCO takeover of TCI was signed. But, it was, at the time, widely welcomed. Except for the politicians and those depending on them, few felt wronged at the time.
[15]       In some BOTs this is referred to as the “Executive Council”. I will use the newer term “Cabinet” throughout this paper.
[16]       1998 unreported High Court judgment in suit 56 of 1997.
[17]       http://corruptionfreeanguilla.blogspot.com/2008/01/colonialism.html [The Montserrat Reporter newspaper website has since mysteriously had the articles referenced taken down.]
[18]       The 1982 Anguilla Constitution, section 57. By section 58 the Governor may return to the Legislature any Bill presented to him for assent together with any amendment he may recommend, “and the Assembly shall deal with such recommendation”, whatever that may mean.
[19]       The 1982 Anguilla Constitution, section 56.
[20]       The 2007 BVI Constitution, section 81.
[21]       See, e.g., section 59 of the 1982 Anguilla Constitution or section 81 of the 2007 BVI Constitution.
[22]       The 2010 Montserrat Constitution, section 76.
[23]       The 2007 BVI Constitution, section 80.
[24]       Eg, the Land Development (Control) Act, section 7.
[25]       The FCO claims that this new Constitution was brought in with the consent and approval of the people of Montserrat. Indeed it can point to a Resolution of the Legislative Council of Montserrat approving the draft Constitution.
[26]       Memo of June 24, 2010 to Ms Teresina Bodkin the Speaker of the Legislative Council, copied to the acting Governor and others.
[27]       Report of the Constitutional and Electoral Reform Commission, dated 26 August 2006.
[29]       Kate Sullivan: Revised recommendations for changes to constitutional and electoral arrangements in the Turks and Caicos Islands, dated November 2010 (TCI Revised Recommendations): http://turksandcaicosislands.fco.gov.uk/resources/en/pdf/revised-cerrecommendations