Constitutional Future of the Colony of Anguilla

Constitutional Future of the Colony of Anguilla

- By Don Mitchell CBE QC

23 May 2008

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

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

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

1. The West Indies Act 1967

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

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

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

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

2. The Anguilla Act 1980

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

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

3. The Anguilla Constitution 1982

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

Future Prospects for Anguilla

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

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

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

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

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

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

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

Law and the Anguilla Revolution

When the Anguilla Revolution broke out in March 1967, Anguilla was a part of the Associated State of St Kitts, Nevis and Anguilla.  The legal system in effect at that moment was the common law of England and of the Associated State, as supplemented by the statutes enacted by the St Kitts House of Assembly.  Anguilla at that time was not only an integral part of the Associated State, but also shared in common institutions of the nine-country Associated States, and the world-wide Commonwealth of Nations headed by Queen Elizabeth II.  The common law of Anguilla was supplemented by laws and regulations made by the House of Assembly in St Kitts, to which Anguilla elected one representative.  The laws and regulations that applied in Anguilla in 1967 could all be looked up in one series of books.[1]  The ‘Laws of St Kitts Nevis and Anguilla’ contained all of the statutes that applied to Anguilla, save for a few passed by the House of Assembly in the intervening years before 1967.[2]

The 1967 Revolution.  The Anguilla Revolution was to fundamentally change Anguilla’s legal framework.  On 8 March 1967 Government House at Landsome Estate burned to the ground, and the St Kitts Warden fled to Basseterre.  On 29 May, at a meeting in Burroughs Park,[3] the crowd voted by a show of hands to expel the St Kitts policemen from the island.  They left the Park in procession.  They marched to Police Headquarters and ordered the St Kitts police stationed in Anguilla to leave by 10:00 the following morning.  On 30 May the officers were advised that a ‘plane was ready to take them to St Kitts.  They were all disarmed and expelled and sent back to St Kitts.  From that point on, all central government trappings as they had extended to Anguilla were brought to an end.  The St Kitts Magistrate was no longer permitted to visit Anguilla and to dispense justice in the Magistrate’s Court.  The High Court Judge from St Kitts was no longer permitted to visit and to hold court in Anguilla[4] as had occurred every year since 1825, the year when Anguilla had submitted to rule from St Kitts.  Only a limited number of laws passed by the legislature in St Kitts were ever to be applied to Anguilla again.[5]

On 31 May 1967, the Anguillians established a Peace-keeping Committee[6] to manage the island’s affairs.  This Committee and its successor Councils carried out all of the executive functions of government.  There was no attempt to set up a rival legislature to the St Kitts House of Assembly.[7]  The situation was not to change until the British Parliament passed the Anguilla Act of 1971 and made provision for the Commissioner to be able to make laws for the island.  The result was that no substantive laws were made in Anguilla until those made by the Commissioner the year 1971.  The first laws enacted by the House of Assembly of Anguilla were passed in the year 1976.

The first legal instrument of a sort to be passed in Anguilla after the Revolution began was the referendum on secession from St Kitts of 11 July 1967.[8]  A referendum not held under a governing statute is not strictly a law, but it may have legal implications and consequences, especially when it is acted on.  By this public act, Anguilla ceased for all time to be administered as a part of the Associated State.  A further step in legitimising the Revolution was the adoption of a Constitution.  The Peace-keeping Committee recruited Professor Roger Fisher[9] of Harvard University to help with its drafting.  He produced an eleven-section Constitution which provided for an Anguilla Council with full legislative and executive powers.  The members of the First Anguilla Council were named in the Constitution.[10]  They were to hold office until elections were held not later than July 1968.

The Peace-keeping Committee set about arranging the first elections under the new Fisher Constitution.  When nominations closed on nomination day, 17 October 1967, five of Ronald Webster’s candidates stood unopposed.  They were declared to be duly elected councillors.[11]  They took their seats as the Second Anguilla Council on 21 October.

In early 1968, the British sent an adviser, Tony Lee, to assist the Anguillians in running the island’s affairs.  He was to remain for a period of one year.  During this time, the British attempted to negotiate a settlement between the Anguillian and St Kitts leaders that would preserve the integrity of the Associate State.  They failed to resolve the crisis.  The Anguillians were adamant that they would accept nothing short of complete separation from St Kitts.  The Kittitians were equally adamant that the Revolution was illegal and that they would accept nothing short of the agreement of the Anguillians to return to the fold of the Associated State.  The British were caught in a quandary of their own making.  The West Indies Act of the UK Parliament of 1967[12] prohibited the UK government from imposing a solution.  The Act prohibited the UK from changing the status of any part of an Associated State without the request and consent of the State legislature.  On 30 July new elections were held for the Third Anguilla Council.[13]  Tony Lee left Anguilla on 6 January 1969 when the year was up.  Up to this point, no laws had been passed in or for Anguilla since the date of the commencement of the Revolution.

The next law to take effect in Anguilla was the 1969 Holcombe Constitution.  It was adopted by a show of hands in Burroughs Park on 6 February 1969.[14]  It provided for Anguilla to become an independent Republic.  There would be a President and a Vice President elected nationally.  There would also be an Assembly of nine legislators, two from each of the three constituencies and five elected at large.  The date set for elections to the legislature was 25 March 1969, while the President and Vice President were to be elected on 3 April.  When nominations closed on 21 February, Ronald Webster was nominated unopposed and was declared President of the Republic of Anguilla.[15]  On nomination day only six candidates were nominated, and they were similarly declared elected unopposed.[16]

Temporary British Administration.  On 11 March 1969, the British envoy William Whitlock who had arrived in Anguilla on a fact-finding mission was expelled.  During the early hours of 19 March 1969 some four hundred British paratroopers brought the Revolution to an end.  Their invasion of the island was not opposed, and not a person was harmed.  Tony Lee returned to govern the island as Commissioner under a British Order in Council of 18 March.[17]  The Holcombe Constitution was swept aside and the previous Third Anguilla Council was recognised as the duly elected representatives of the people.

With the change of government in London in 1971, the British administration gradually became more sympathetic to the Anguillian cause.  On 27 July 1971, the Anguilla Act of the British Parliament[18] came into effect.  It provided the framework under which the British would administer the island.  Shortly after, on 4 August, the 1971 Constitution[19] came into effect.  It provide for a Legislative Council of seven members and up to six nominated members.  No legislation was enacted in Anguilla during the year 1971.

In the early part of 1972 the first laws for Anguilla made in Anguilla were enacted under the provisions of the 1971 Constitution.  There were twenty-six laws in all, covering such matters as financial administration,[20] police,[21] council elections,[22] marriages,[23] courts,[24] and taxes.[25]  These laws were made by the Commissioner “after consultation with the Anguilla Council” but were not introduced into and debated in any legislative council in the normal way.  This was not a satisfactory state of affairs, and this early period was marked by disputes between the members of the Anguilla Council and the British Commissioner.[26]

The first general elections under the new Constitution were held on 24 July 1972.  The Fourth Anguilla Council that resulted found itself completely without any power.  Laws continued to be made by the Commissioner without reference to any legislative assembly.  Laws continued during 1973 to be made by Her Majesty’s Commissioner “after consultation with the Anguilla Council”.[27]  The situation remained unchanged during 1974 and 1975.  The Anguilla Council was continually unhappy with the arrangement that gave the Commissioner total power and control.  The result was a series of strikes and other civil unrest during the period of legislation by the Commissioner.

Modern Government Begins.  The turbulence was not to be calmed until the British agreed to constitutional reform, and the 1976 Anguilla Constitution[28] was made on 19 January and came into effect on 10 February 1976.  This provided for the first time for laws to be made by the Commissioner “with the advice and consent of the Assembly”.  Laws passed from this date were to be introduced into the Legislative Assembly, and assented to by the Commissioner.  These are laws as properly so understood.  They would have truly have been made with the consent of the representatives of the people.  The first such proper law to be made in Anguilla’s history by a legislative assembly turned out to be a humble and insignificant one, now long forgotten.  The Anguilla Fund and Financial Administration (Repeal) Ordinance, No 1 of 1976 did nothing more than bring back the old St Kitts Finance and Audit Ordinance of 1965 with such modifications as were necessary to bring it into conformity with the Constitution of Anguilla.  It was passed by the Legislative Assembly on 13 May 1976.  It commences with, what for a lawyer, are the magical words, “Enacted by the Legislature of Anguilla”.[29]  Modern constitutional government had at last come to Anguilla.

Originally written for the 40^th Anniversary of the Anguilla Revolution Magazine Committee.

---

[1]     The 1964 Edition of the Revised Laws of St Christopher Nevis and Anguilla had just been published.

[2]     All of the laws and regulations of Anguilla would not be collected in one spot again until the Revised Edition of the Laws of Anguilla, 2000.

[3]     Later renamed the Ronald Webster Park.

[4]     From sometime in the 1930s the Assizes ceased to be held in Anguilla and serious Anguillian crimes were tried in St Kitts until the Anguilla Revolution:  Per Dame Bernice Lake QC in a private communication to the author.

[5]     The Anguilla (Administration) Order 1971, SI 1971 No 1235, section 15, provided that the statutes of the Associated State made prior to its commencement date of 4 August 1971 should have effect as laws of Anguilla.  From that date, any relevant and useful laws made in St Kitts after the date of the Revolution and prior to the commencement date were adopted with any necessary modifications as part of the law of Anguilla.  The ones that were not required were specifically repealed at various times in the following years.

[6]     The first members consisted of Walter Hodge as chairman, Peter Adams, Atlin Harrigan, Alfred Webster, James Baird, John Rogers, Clifford Rogers, Ronald Webster, Wallace Rey, Camile Connor, Phillip Lloyd, Charles Fleming, Wallace Richardson, Mac Connor, and Emile Gumbs.

[7]     Ronald Webster’s explanation to the author was that the members of the Committee were convinced that any laws passed by it would be illegal and unenforceable.  They functioned by persuasion, so that, for example, the customs officers at the ports agreed to collect duties at the revised rate of one half of the prescribed amounts.  The result was that there was no attempt to amend the customs duties law or any other law during the time of the Republic and until the Anguilla (Administration) Order of 1971 made provision for the Commissioner to make laws for Anguilla:  Per Ronald Webster in a private communication to the author.

[8]     Passed 1,813 to 5 in favour of secession.

[9]     Professor Fisher’s involvement grew out of his connection with Professor Leopold Kohr (1909-2004) who at the time was a lecturer at the University of Puerto Rico and who started a ‘state founding action’ to draw the world’s attention to the Anguilla crisis.

[10]    They were Rev Leonard Carty, Ronald Webster, John Rogers, Peter Adams, Walter Hodge, Emile Gumbs, and John Hodge.

[11]    They were Ronald Webster, Wallace Rey, Hugo Rey, Collins Hodge, and John Waddington ‘Waddie” Hodge.

[12]    The West Indies Act, 1967 (1967 c. 4).

[13]    This consisted of Ronald Webster, Atlin Harrigan, Kenneth Hazel, Collins Hodge, John Hodge, Wallace Rey, and Emile Gumbs.

[14]    By a margin of 1,739 to 4 votes.

[15]    He chose as his Vice President Campbell Fleming.  His Cabinet was to include John Webster, a former Secretary of Defence, as Secretary of State for Domestic Affairs, while Jeremiah Gumbs was Secretary of State for Foreign Affairs.

[16]    They were Winston Harrigan, Lucas Wilson, Uriel Sasso, James Woods, Charles Fleming, and Mac Connor.

[17]    The Anguilla (Temporary Provision) Order 1969, SI 1969 No 371.

[18]    The Anguilla Act 1971, (1971 c. 63)

[19]    The Anguilla (Administration) Order, 1971, SI 1971 No 1235.

[20]    The Anguilla Fund and Financial Administration Ordinance, No 1 of 1972.

[21]    The Anguilla Police Ordinance, No 3 of 1972.

[22]    The Anguilla Council Elections Ordinance, No 4 of 1972.

[23]    The Marriage Validation Ordinance, No 8 of 1972.

[24]    The Court of Appeal (Special Provisions) Ordinance, No 10 of 1972; and the Supreme Court (Amendment) Ordinance, No 26 of 1972.

[25]    The Rum Duty (Anguilla) (Amendment) Ordinance, No 13 of 1972; Boat Licensing (Amendment) Ordinance, No 14 of 1972; Liquor Licensing (Amendment) Ordinance, No 15 of 1972; Export Duty (Amendment) Ordinance, No 16 of 1972; Stamp Act (Amendment) Ordinance, No 18 of 1972; Vehicles and Road Traffic (Amendment) Ordinance, No 19 of 1972; Firearms (Amendment) Ordinance, No 20 of 1972; Public Pounds (Amendment) Ordinance, No 21 of 1972; Anguilla Airport (Embarkation) Tax Ordinance, No 24 of 1972.

[26]    First Tony Lee, who had to be replaced, then John Cumber, AC Watson, William Wallace, and later still in David Le Breton, who remained in place until after the 1976 Constitution came into effect.

[27]    There were eight such laws in all, including the Anguilla Roads Ordinance, No 5 of 1973; the Anguilla Local Constables Ordinance, No 6 of 1973; the Accommodation Tax Ordinance, No 7 of 1973; and the Telecommunication Ordinance, No 8 of 1973.

[28]    The Anguilla (Constitution) Order 1976, (SI 1976 No 50).

[29]    Let me in conclusion express my gratitude to Ms Navine Fleming-Kissob of the law chambers of Joyce Kentish & Associates who kindly made a desk and the necessary research material available for me to be able to write this article.