My friend Ali taught me this new word. Anguilla, he exclaimed, is a
kakistocracy. I nodded my head sagely,
and waited until I was in private to Google it to find out what it meant. I learned the word has been around for about
500 years. It means government by the
worst or least competent, the opposite of aristocracy, or government by the
supposed best. I was so delighted by
what I found that I was determined to find an opportunity to use it.
Some weeks ago, I was in an informal
meeting at the Ministry of Finance conference room with a visiting UN team out
of Barbados that was in Anguilla to sign an agreement with the Premier about
support the UN will provide us in a wide range of areas. The visiting team wanted to alert us to the
existence of this Agreement in case it could be of any use to our
organisations. The GOA however seems to
believe that this Agreement is so confidential that it is best it be hidden
away from us. There has been no mention
of it in any press release. No
Anguillian member of the public has been favoured with a sight of this
Agreement that was so important that a three-man UN team travelled up from
Barbados to sign it. I was present at
the meeting as a part of a group of “civic society” associations that the
visitors thought should be aware of this new Agreement. Apparently, by this Agreement we in Anguilla
agreed with this UN organisation that we were going to live up to all sorts of
standards that we are required to achieve if we can participate. Since no one has told us about it, I am not
certain how we are going to do it.
I could hardly understand a word of what
the French leader of the UN team was saying to us. He spoke “Franglais” in a rapid-fire monotone
at the very lowest pitch, guaranteed to leave his listeners no wiser at the end
of his talk than they had been at the beginning. I gathered that we were expected to live up
to all sorts of standards that we had not been doing before. Unfortunately, the UN could not help us in
civil society with any funding to achieve these goals, since we were a British
Overseas Territory, and the UK was solely responsible for ensuring we lived up
to our international expectations. But
the UN might be able to include us in a regional workshop if government
requested it and if funds were available.
I tried to explain to the gentleman and
his team that there was another problem besides funding. There is no Agreement that we sign that our
government does not immediately break once it is no longer convenient (that is,
no funds are forthcoming) or that we do not ignore (for example, if we are
expected to incur an expense.) I gave an
example of us making a law that was unworkable.
A few years ago, I explained, our government took the decision to ban the
import and sale of single-use plastics.
We were admonished to take our own shopping bags to the supermarket,
since the familiar free plastic ones would now be banned.
Within weeks of the announcement,
posters and billboards heralding this ban were put up on walls and along public
roads all over the island. Some of them
were quite elaborate, and you wondered where our government in those penniless
days was able to find the funds to engage in this massive marketing
exercise. Then, you saw the small print
at the foot of the banners and billboards, which read “Environmental agency of
Barbados”, and you realised they had just borrowed the artwork from Barbados,
and there was nothing original about the presentation.
For a few months, supermarkets
stopped handing out free plastic shopping bags.
Cardboard straws and food containers were offered to customers. Plastic shopping bags labelled “biodegradable”
made a short-lived appearance, but they have mostly all disappeared now,
replaced by either the old harmful ones or by newly designed ones labelled
“recyclable”. A recyclable bag is not always
biodegradable, though a bag may be both biodegradable and recyclable. There has been no attempt to enforce the
ban. The ban has simply gone into
hibernation, as so many other commendable efforts do.
I had never heard of us in Anguilla passing
a “single-use plastics ban” law or Regulation.
I knew that our governments frequently but erroneously believe that
because something has been discussed and agreed in Executive Council, that makes
it the law. Of course, nothing could be
further from the truth.
If government wants to make it
illegal for shopkeepers and restaurants to import and hand out to customers
free plastic shopping bags and Styrofoam containers, they would have to pass a
law to put this ban into effect. The
police cannot prosecute a shopkeeper for illegally supplying free plastic
shopping bags unless there is an enforceable law. I had previously searched the law but could
not find anything. So, I told the
visiting UN delegation that this was an example of us in Anguilla making up a non-existent
rule that was completely unenforceable.
Up piped one of our local
participants, “Nonsense, Don, the Minister signed the required Regulation
under the Customs Act.” That caught
me by surprise, and I had nothing further to say. I was not going to argue in public with a
non-lawyer (and a friend of mine) that there was no power under the Customs
Act to prohibit the importation of any otherwise legal goods into
Anguilla. So, I merely apologised to the
persons present that I was obviously out of touch with current Anguilla laws.
I came back home to my laptop computer,
and I searched the laws of Anguilla.
Sure enough, there was nothing in the Customs Act that prohibited
the import of single-use plastics. So, I
took a chance and wrote a Permanent Secretary inquiring whether there was any
law that brought this alleged prohibition into effect. She very kindly and efficiently wrote back
explaining that the Minister had signed a Regulation under the Public Health
Act in 2019. She even sent me a copy
of it.
What she sent me was a Regulation
titled the Single-Use Plastics (Prohibition) Regulations 2019. This Instrument prohibits the distribution
and sale of single-use plastics in Anguilla after 30 June 2020. It was signed by the Hon Evan McNiel Rogers, Minister
of Health. It says that he made it with
the approval of Executive Council under Section 8 of the Public Health Act. I read it with interest, and with rising
concern. It is not included on the
Government website of the statutes of Anguilla.
Was it ever published? Or was it
kept secret?
It is basic principle of administrative
law that it is the House of Assembly that generally makes law for Anguilla, not
Ministers. Sometimes, the administrative
details of a statute are not convenient to put into a law that is going to be
debated in the Assembly. Then, it is
quite common throughout the Commonwealth for parliament to pass a skeleton Act
and in it to delegate to another person, eg, a Minister or the Governor, the power
to make Regulations to give effect to the law.
That makes the Regulation as good as a statute passed by parliament.
But there is one essential rule. The Minister can only sign into law a Regulation
that gives effect to the intent of the statute.
The Minister is then “fleshing out” or adding necessary detail to the
law. He is doing what parliament was
supposed to do but did not do because it was too complicated or a mere
administrative detail that the Assembly delegated to him to fill out. He cannot sign into law a Regulation that has
nothing to do with the substantive law, the Act. That would be illegal and unenforceable.
I checked and re-checked the Public
Health Act. Did the Assembly in that
Act give the Minister power to make any Regulation prohibiting the import of
any goods? Section 8 gives the Minister
the power to make almost 100 different types of Regulations. They range from Regulations preventing
disease to Regulations respecting the performance of post-mortem
examinations. But they clearly do not
include a power to prohibit the importation of anything, including single-use
plastics.
There is a good reason for this
omission. Since long before Anguilla
became a separate colony of Great Britain under the Anguilla Act of 1981,
there has been a law in Anguilla inherited from the old Associated State of St
Kitts, Nevis, and Anguilla that empowered the Executive Council to prohibit the
importation of any goods into the colony.
That law is the External Trade Act. It is a very old Act, dating back to the
Colony of the Leeward Islands in the 1800s.
It was first enacted as I recall by the Legislature of the Leeward
Islands. It is still a valid law of
Anguilla, listed on the government website under the statutes of Anguilla.
Section 2 of this Act states quite
simply that the Governor may by an Order published in the Gazette prohibit the
import of any class of goods. So, if the
Anguilla government wanted to prohibit the import of single-use plastics, they
had to do it under the External Trade Act, not under the Public
Health Act. They had to do it by an Instrument
signed by the Governor, not one signed by the Minister. They had to do it by an Order, not by a
Regulation. They had to ensure the Order
was published in the Gazette. I
concluded that any first-year CAPE (A-Level) law student in Anguilla can
explain why this Instrument is illegal and unenforceable.
I wrote to the Permanent Sectary
pointing out that we all in Anguilla wanted the abolition of single use
plastics, but we need it to be done by a law that is enforceable. We do not want a law that is so obviously
defective that any shopkeeper charged with an offence would be able to get the
charges dismissed by a first-year law student, not even needing a qualified
lawyer. That would result in the
Attorney General and the government being left with egg all over their faces,
not to mention the legal costs.
When a month passed, not hearing
anything back from the Permanent Secretary, I wrote a polite note to the
Attorney-General encouraging him to have one of his parliamentary
draughtspersons look at the issue. I
pointed out that it would be a simple matter to have the Governor sign the same
Order under the External Trade Act while quietly withdrawing the
defective Regulation previously made under the Public Health Act.
More than a month has now passed, and
I have not heard back from the Attorney-General. Of course, I have no right to expect to
receive correspondence from the government’s legal counsel. The A-G only responds to Ministers and
government departments, not private citizens.
I would have been satisfied to see the correct Order signed by the
Governor published in the Gazette. That
would show that government was responding efficiently and diligently to an
urgent and necessary matter of good government.
The bottom line is that shopkeepers are not bound by any existing valid
law to stop importing and distributing permanent, non-degrading shopping
bags. The restaurants that still supply
Styrofoam cups and take-away food containers need have no fear. They are free to continue all the old, bad
practices, confident in the knowledge that no one can do them anything! It may be bad for the environment, but it is
not illegal. If any customs officer
confiscates any of their plastic bags or other utensils, they can claim
compensation for an illegal act done to them.
Any customs officer or other government officer interfering with the
conduct of legitimate trade leaves government open to claims for damages and
compensation.
Considering the importance of the correction suggested and the
insignificance of the work necessary, is it asking too much to make the
correction? The correction would make an
unworkable law effective. It would avoid the risk of egg on everyone’s face
when an attempt is made to enforce it.
It is such a simple legislative drafting job that a trainee
draughtsperson could do it. Or is Ali
right and inefficiency and lack of diligence prevail in our public
administration?
