ANGUILLA HOUSE OF ASSEMBLY POST-ELECTION SEMINAR
TOPIC: Background and Overview of the Anguilla Constitution as it Relates to the Government, Parliament and the Judiciary, and any Recent Changes. Why the Constitution has been Shaped as it Has. Future Plans for Development (Where Applicable)
A Presentation to Parliamentarians made on Monday 10th August 2015, at the House of Assembly, The Valley, Anguilla
By Don Mitchell CBE QC
THE HISTORICAL AND CONSTITUTIONAL BACKGROUND
 The present 1982 Constitution of Anguilla was born out of the break-up of the Associated State of St Kitts, Nevis and Anguilla in 1980. When in 1980 the People’s Action Movement and its Nevis allies won the general election the new government set about negotiating full independence from Britain. The United Kingdom government was happy to see St Kitts and Nevis, the last of its Associated States left in the Caribbean, go into independence, which it did in 1983.
 There was just one loose string to be tied before independence day. The UK had promised Anguillians, when UK armed forces stormed into Anguilla in 1969 at the invitation of the then St Kitts Government, that Anguillians would never again be forced to live under an administration that they did not want. At that time, Anguilla was legally a part of the tri-island Associated State of St Kitts-Nevis-Anguilla. The UK government technically was merely administering a part of this Associated State on behalf of the government in St Kitts. The St Kitts-Nevis Labour Party, which then formed the St Kitts government, put up with this arrangement so long as it appeared that the UK would one day, somehow, persuade the rebelling Anguillians to return to their fold. The Anguillians for their part, under the leadership of the Father of the Nation and revolutionary leader, Ronald Webster, were adamant that they would never again consent to government from St Kitts. With the 1980 replacement of the Labour Party administration by that of the People’s Action Movement, the way ahead lay clear for Anguilla to be legally separated from St Kitts-Nevis in exchange for those two islands going into independence as a federal, two-island State. It became necessary for new constitutional arrangements to be made for Anguilla now that it would no longer be a part of the Associated State.
 The solution was to have the British Parliament pass the Anguilla Act, 1980 which enabled the British Government to take full legal responsibility for the administration of Anguilla. Up to that point, under the Constitution of Anguilla, 1976, Anguillians had enjoyed all the privileges and rights of a semi-independent Associated State. Anguilla was at this time still technically a part of the Associated State of St Kitts-Nevis-Anguilla, even if administered directly from the UK. So, the 1976 Constitution essentially conferred on Anguilla the Constitution of an Associated State which, at that point, it technically still was.
 The status of ‘Associated State’ had been invented by the British Government as a sort of half-way house to independence for its colonies in the West Indies after the break-up of the short-lived, independent Federation of the West Indies, 1958-1961. When Jamaica, Trinidad & Tobago and Barbados left the Federation and went into separate independence starting in 1962, the remaining islands, to Britain’s dismay, fell back into colonial status. Britain was under a great deal of pressure from the United Nations to get rid of its remaining colonies. These colonies were, in any case, a burden on the UK Treasury, and of no benefit to the UK economy. The status of Associated State, whereby the colonies would be converted into semi-independent states with responsibility for all their internal affairs, and Britain would remain responsible only for foreign affairs and defence, was the strategy settled on to nudge the islands into full independence. Associated Statehoodship was to take effect in the year 1967. As we all know, Anguillians objected to going into Associated Statehoodship tied to St Kitts. The Anguilla Revolution of 1967 followed, with the St Kitts police contingent expelled from the island by force. The result was the independent Republic of Anguilla. This was only brought to an end two years later by the invasion of the Royal Marines in 1969. By this act, Britain acquired its latest and last colony, much to the chagrin of the British administration.
 After a number of temporary and unsatisfactory Administration Orders which authorized direct rule of Anguilla in the years between 1969 and 1975 by a British administrator, known as the ‘Commissioner’, the Ronald Webster government persuaded the British Government to enact a real Constitution for Anguilla. This was the Constitution of Anguilla, 1976. It provided for Anguilla to have a legislature of its own to enact laws and for a ministerial system of government to run the island. Under this Act, Anguillians democratically enacted their first locally made statutory instruments for the governance of their island since the year 1650 when the island was first settled by colonists.
 The Constitution of Anguilla, 1976 functioned satisfactorily enough until the year 1982. Chief Minister Ronald Webster had been ousted from government by a palace coup of his own ministers in 1977. He was dissatisfied with some aspects of the Constitution, in particular that it had not permitted him to direct the Commissioner to dissolve Parliament and to call general elections when his ministers abandoned him. The British Government for their part were dissatisfied that the island was now essentially self-governing, while the British administration remained contingently liable for any illegal acts committed by a local government whose actions they could not control. The British wanted to bring an end to the status of self-government. Ronald Webster, now back in office after the general elections of 1980, wanted the Constitution changed so he could force the Commissioner to dissolve Parliament if a Motion of No-Confidence against him should ever again succeed. The interests of these two parties coincided. The result was the passage by the British Parliament of the Anguilla Act, 1980 and the resulting Constitution of Anguilla, 1982. By this Constitution, Anguilla consented to revert to full colonial status, and all aspects of internal self-government were removed from the Constitution. From that moment, the Foreign and Commonwealth Office (the FCO) would enjoy full sovereignty over Anguillians, and the islanders would enjoy only an appearance of sovereignty.
 Under the 1982 Constitution, Anguilla enjoys a ‘Westminster-style’ system of government. This is a system based on the form of Parliamentary Democracy, of which the exemplar is the Parliamentary form of government headquartered in the Borough of Westminster in London, where the British Parliament meets. In this system, the monarch is the Head of State, as he or she still is even of independent Commonwealth Caribbean countries. The Westminster-style legislature is made up of a majority of elected representatives of the people, and is known in Britain as the House of Commons, and in Anguilla as the House of Assembly. Sometimes there is a second chamber of Parliament, known in London as the House of Lords, and in Antigua and Barbuda as the Senate. Sometimes, there are non-elected members who do not sit in a second chamber, but sit among the elected representatives in a unicameral (one-chamber) Parliament as in St Kitts-Nevis and Anguilla. Our House of Assembly consists of one chamber, with two nominated members appointed to sit among the seven elected representatives, in addition to the two ex-officio members. Under the Westminster system, the Cabinet, the Executive branch of government, is a committee of the legislature. Compare this with the United States presidential mode of government, where the President’s Cabinet consists entirely of his nominees, and none of them is an elected member of Congress. Under the US presidential system, there is a complete separation of the Executive from the Legislature, which we do not find in the Westminster-style system.
 One characteristic of modern parliamentary democracies is that government is considered to consist of three branches: the Executive, the Legislature, and the Judiciary. In Britain the Executive is the Queen in Cabinet. The Queen must generally act on the advice of Cabinet. In Anguilla, as a British Overseas Territory, the new term for a colony, the executive branch of government is the Queen, represented locally by the Governor. This is provided for by section 22 of the Constitution of Anguilla, 1982 which reads:
Executive authority for Anguilla
22. (1) The executive authority of Anguilla shall be vested in Her Majesty.
(2) Subject to the provisions of this Constitution, the executive authority of Anguilla may be exercised on behalf of Her Majesty by the Governor either directly or through officers subordinate to him, but nothing in this subsection shall operate so as to prejudice the provisions of any laws for the time being in force in Anguilla whereby functions are, or may be, conferred on persons or authorities other than the Governor.
 The meaning of sub-section (2) is that the Queen ‘may’ delegate executive authority to the Governor, but she may take it back at any time. She may, for example, make an Order in Council suspending or replacing the Constitution.
 Section 23 of the Constitution creates the Executive Council (the colonial name for the Cabinet) for Anguilla, which is to consist of the Chief Minister, up to three other Ministers, and two ex-officio members, the Deputy Governor and the Attorney-General. The Governor chairs meetings of the Executive Council.
 Section 28 of the Constitution provides that the Governor ‘shall’ consult with the Executive Council on all matters of policy and government, and the Governor is normally required to act on the advice given to him by the Executive Council.
 The Governor is not required to consult or act on the advice of the Executive Council in matters of (a) defence, external affairs, international financial services, finance, internal security; or, (b) the appointment, promotion, transfer, suspension, dismissal, retirement, or terms or conditions of service of the public service; or (c), any reserved powers; or (d), any matter which the Constitution or a law authorizes him to exercise in his discretion; or (e), any matter he judges might prejudice the interests of the British Government; or (f), minor matters too unimportant to need the advice of the Council; or (g), matters that are so urgent he must act before consulting the Council (but he must report to the Council subsequently). No court is permitted to inquire whether or not the Governor carried out his obligation to act on the advice of the Executive Council.
 Section 29 gives the Governor the power to ignore the advice of Executive Council in any matter in which the Secretary of State backs him up. The Governor also chairs meetings of Executive Council, which gives the Governor an opportunity to shape its decisions. Despite the power given to the Governor to ignore the advice of Executive Council, this is a power seldom or never exercised. It is more usual for the Governor to express disapproval of a decision taken by the Ministers, but to leave it to the Ministers to make their own mistakes, and to be content with having the Minutes of the meeting record the Governor’s disapproval of their decision.
 Recent welcome reforms in the proceedings of Executive Council include the publication of a much abbreviated list of decisions, called ‘Minutes’ of the Executive Council, which appear relatively regularly on the Government website. This innovation has contributed considerably to a feeling in the community of transparency and accountability on the part of Government.
 The power to make laws for Anguilla is provided by section 47 of the Constitution. The section reads:
Power to make laws
47. 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.
In other words, the legislative power for Anguilla is the Governor, not the House of Assembly. Compare the wording of section 46 of the Antigua and Barbuda Constitution 1981. This provides:
46. - Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Antigua and Barbuda.
 Anguilla’s House of Assembly is constitutionally described as a ‘subordinate legislature.’ Anguilla is an Overseas Territory, and as such, its law-making powers are constrained by the Constitution and various other laws of the United Kingdom. Strictly speaking, the Governor is merely required to consult the House of Assembly. As a matter of convention, however, the Governor almost invariably accepts Bills which have been passed by the House of Assembly. It would take an extraordinary constitutional crisis for a Governor to make laws for Anguilla that have not previously been passed by the Assembly, something that has not happened to this date.
 As a colony with a subordinate legislature, Anguilla is subject to various constraints on the power of its House of Assembly to make laws for Anguilla. Under a combination of the Constitution and UK legislation, the FCO has reserved four ways to make laws for us or to override our laws. 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.
 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 . . .
 This means that the Governor 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, presumably acting 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.
 During the 2006 constitutional and electoral reform exercise, Anguillians who addressed the Commission went so far as to suggest that the section is a dead letter. The general view was that it is 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 the wishes of their representatives. The outrage such a use of the section 56 power would engender among Anguillians 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 Constitutional and Electoral Reform Commission Report 2006 in these words, “The Commission recommends that the section be repealed in its entirety.”
2. The Power to Disallow an Act Passed by the Assembly.
 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.
This is a ‘disallowance section’ rather than a law-making section. The section permits the FCO to intervene after the Assembly has passed a Bill, and after the Governor has signed it into law, and after it has become an Act. The Secretary of State may ‘disallow’ the Act. That is, he may repeal a properly made Act of our Parliament.
 This provision 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 in those early days. 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, eg, it conflicted with a Treaty or Convention recently entered into by the British Government. So, it was considered a good precaution to have the power for the Secretary of State to disallow a colonial Act to ensure Britain was not in conflict with its international obligations. In the old colonial days, the records are filled with examples of this happening.
 Since we have 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 colonial Bill long before it is passed into law by the local colonial Assembly. The FCO has plenty of time to send its comments to the A-G's Chambers. Long before the Bill gets to the House of Assembly, the FCO can recommend amendments to the local draughtsman, thus ensuring that an unobjectionable Bill arrives before the Members of the Assembly.
 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.”
3. An Act of the British Parliament
 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. 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 Itself. This is the law under which Britain took responsibility for administering the government of Anguilla. Providing this form of legislation is done responsibly and with prior consultation, there would not normally be any objection that could properly be made to the right of the British Parliament to pass a law for one of its overseas territories. That is what it means to be a British Overseas Territory. When a 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.
 Nevertheless, it is not inappropriate for us to expect that the British Parliament will never legislate for us except in two circumstances. The first is if we request it. If, for some reason, it is inconvenient for us to pass our own law on a particular subject, for example, nuclear energy regulation, we could, conceivably, request the British Parliament to do it for us. The second is where it may be necessary for Britain to make a law for our collective well-being without us having first asked. If the bona fides of such a law were to be clearly established, none of us would object to it.
 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
 The fourth way in which the FCO can legislate for Anguilla is by the Order in Council. Orders in Council are very old. They are now mainly regulated by statute. 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. So, 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.
The Constitution of Anguilla, 1982 is an example of such an Order in Council. It was made under the Anguilla Act, 1980.
 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, the use of a nuclear weapon has never arisen since the end of the Second World War. Since that time, its use has been recognised as involving the possibility of mutual annihilation.
 Imperial legislation, by way of an Order in Council, may always legitimately be used if it is 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, 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.
 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.
 To conclude, the Anguilla House of Assembly is the ‘normal’ way in which laws are made for the peace and good government of Anguilla. But, the House of Assembly is a subordinate one, and the British Government retains extraordinary powers to legislate for us.
 The third branch of government is the Judiciary. The function of the judiciary under the Constitution is to settle disputes that arise between citizen and citizen, and the citizen and the State. In Anguilla, there are four levels of the Judiciary: the Magistracy, the High Court, the Court of Appeal and the Privy Council.
 The Magistracy is created under a local statute, the Magistrates Code of Procedure. The courts at this level deal with the majority of criminal cases and with civil disputes below a value of EC$15,000.00.
 The High Court has unlimited jurisdiction, and deals with more serious criminal cases and civil and constitutional disputes.
 The Court of Appeal hears appeals from decisions of Magistrates and from the decisions of juries and High Court Judges. The High Court and the Court of Appeal are the two levels of the Eastern Caribbean Supreme Court (the ECSC). They were enabled by the British Government while most of our islands were still colonies, after the break-up of the Federation of the West Indies and the Federal Court of the West Indies came to an end. The Chief Justice of the ECSC is appointed by the unanimous decision of all the Prime Ministers and Chief Ministers of the nine participating countries of the court. The other judges are appointed by an independent Judicial and Legal Services Commission made up of judges and senior public servants appointed by rotation among the islands and states. The judiciary of the ECSC is considered to be one of the most independent and least politically influenced institutions of the Eastern Caribbean.
 The highest level of the judiciary in Anguilla is the Judicial Committee of the Privy Council. This sits in London, and hears only the most important appeals that come to it from the Court of Appeal.
 There are two principal initiatives for reform of the judiciary of the Eastern Caribbean. The first is to remove the Magistrates from appointment by the Executive and transfer their appointment, discipline, conditions and terms of service, to the regional Judicial and Legal Services Commission. The second is the replacement of the Privy Council by the Caribbean Court of Justice (the CCJ).
 The transfer of the Magistracy to the regional Judicial and Legal Service Commission has enjoyed universal approval from the Magistracy, the Bar Associations, the governments, and the public of the region. Its progress is being held up by the need for constitutional reform to achieve this end.
THE CARIBBEAN COURT OF JUSTICE
 The second initiative, of the replacement of the Privy Council by the CCJ, is favoured by the Privy Council itself, regional academic lawyers, and most of the Bars and the public throughout the West Indies. This initiative does not affect Anguilla at this time. It is considered to be a matter principally for the independent countries of the Commonwealth Caribbean, and not for British Overseas Territories. The CCJ is presently the final court for Barbados, Guyana, Belize, and Dominica. In the coming years it is expected that the independent countries will replace the Privy Council by the CCJ. The principal hold-back to wholesale replacement of the Privy Council by the CCJ is the need to amend the Constitution, where necessary, to permit this alteration to the judicial system.
 It is unlikely that the British Government would look favourably on the transfer of the final court for its Overseas Territories to a court outside of its control. In theory, the British Government would want our final Court of Appeal to be a British Court in order to ensure that British standards of human rights are followed, something that, in theory at least, is not guaranteed when the court is not a British court.
 With a new administration in place in Anguilla following the conclusive success of the United Front party in the 2015 General Elections, we look forward to initiatives that will promote reform and constitutional advance in a number of different areas. The party’s Manifesto, on which they ran, includes the following promises:
CONSTITUTIONAL AND ELECTORAL REFORM – VISION 2020
A revised constitution will be introduced, the electoral system will be reformed and expanded, democratic participation will be increased, the political climate will be improved, conduct in the House of Assembly will improve and participation in the democratic process will be increased.
PRINCIPAL STRATEGIC OBJECTIVES
1) Increased constitutional autonomy.
2) A reformed and updated electoral system.
3) Greater public participation in governing Anguilla and in determining policies.
i) Introduce a revised and improved constitution within 24 months.
ii) Update and modernize the elections system.
iii) Increase public input into determining national policies, laws, strategies and plans.
iv) Develop a local government system in Anguilla’s villages and constituencies.
v) Institute an ongoing public education process for greater self-rule and independence.
vi) Review and revise the Rules and Procedures of the House of Assembly to limit abuse of its privileges and improve its operations.
 If half of these promises are kept, Anguilla will have made more constitutional and electoral progress in the next 5 years than in the past 20 years. It will be your role as parliamentarians to do everything you can to educate yourselves on these issues, and to push continuously for the promises to be kept.
 The Anguilla Constitution Order, S.I. 1982 No 334
 The Constitution of Saint Kitts and Nevis, 1983
 The Anguilla Act 1980, c 67.
 It was necessary for a separate Act to be passed, as the West Indies Act, 1962 (S.I. 1962 c 19) under which the other colonies had been governed, did not apply to Anguilla which did not exist as a separate colony in 1962. See Peter Clegg, Governing the UK Caribbean Overseas Territories: A Two-Way Perspective. In Peter Clegg and Emilio Pantojas-Garcia, eds, 2009. Governance in the Non-Independent Caribbean: Challenges and Opportunities in the Twenty-First Century. Kingston: Ian Randle Publishers, p.4.
 The Anguilla (Constitution) Order, S.I. 1976 No 50.
 Which Dame Dr Bernice Lake QC helped the Ronald Webster government negotiate with the Foreign and Commonwealth Office.
 Anguilla had previously between 1650 and 1825 had no form of legislature of any kind, and no laws were passed locally to govern the island. In 1825, with the collapse of Anguilla’s economy as a result of a long drought and the British wars with the French, the Secretary of State took the opportunity to persuade the St Kitts colonial administration to have its Legislative Council pass the Anguilla Act of 1825. This provided for Anguilla to become a part of the colony now styled St Kitts and Anguilla. The arrangement was that the Anguillians would elect one member to the St Kitts Assembly, and he would have a seat on the St Kitts-Anguilla Executive Council. Despite various Leeward Islands constitutional changes over the next 140 years this remained essentially the constitutional status of Anguilla until the 1967 Revolution changed everything.
 For the most modern constitutional law study, see Tracy Robinson, Arif Bulkan and Adrian Saunders, 2015. Fundamentals of Caribbean Constitutional Law. London: Sweet & Maxwell.
 Since the British Overseas Territories Act, 2002.
 As she did recently in the Turks & Caicos Islands when the Turks and Caicos Islands Constitution Order 2006, S.I. 2006 No 1913 was first suspended by the Turks and Caicos Islands Constitution (Interim Amendment) Order 2009, S.I. 2009 No701, as amended, and later replaced by the Turks and Caicos Islands Constitution Order 2011, S.I. 2011 No 1618.
 For a modern constitutional law study, see Ian Hendry and Susan Dickson, 2011. British Overseas Territories Law. Oxford and Portland: Hart Publishing.
 The last time a Governor rejected a Bill passed by the Anguilla House of Assembly was in December 2012 when Governor Harrison refused to assent to it until the Government agreed to certain conditions required by the FCO.
 Its current legislative authority in the UK is the Colonial Laws Validity Act 1865, 1865 c 63.
 Under the West Indies Act 1967, c 4.