Disallowance

The Power to Disallow an Act Passed by the Assembly. We are looking at the four different ways that the British Foreign and Commonwealth Office can legislate for Anguilla.

We know that the general proposition is that it is for the elected representatives of Anguilla to pass laws for Anguilla. Section 47 of the Anguilla Constitution 1982 says,

“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.”

That is the section of the Constitution that empowers the House of Assembly to pass a law. Such a law when passed is then signed or “assented” to by the Governor. In the same way, in the UK, Parliament passes a law and the Queen then gives her “assent”. We may describe this as the “normal” way that laws are made. However, as we have seen in the earlier post, it is not the only way. The FCO has reserved four other ways to make laws for us. They may be described as, (1) the section 56 power; (2) the section 59 power; (3) an Act of Parliament; and (4) the Order in Council.

We looked at the section 56 power in the last post. 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. It is no less objectionable for all that. It enables the FCO, acting in Her Majesty's name, to block a law properly passed in our House of Assembly. We can be quite sure that Her Majesty has no interest in interfering in the making of Anguillian laws. Of all the Secretaries of State in the UK government, there is only one who has the slightest dealings with Anguilla. That is the head of the FCO, the Secretary of State for Foreign and Commonwealth Affairs.

So, section 59 permits the FCO to intervene after the Assembly has passed a Bill, after the Governor has signed it into law, and it has become an Act. He may “disallow” it. He may legislate for us by repealing a properly made Act of our parliament.

Highly objectionable as such a provision is, it is not a new one. It is a traditional colonial power. It has existed in colonial constitutions for hundreds of years. The power of disallowance had its usefulness in the days of the sailing ship. At that time, it was conceived that a colonial Assembly might in good faith pass an Act which, when the copy of it arrived in London several months later, might be found to be objectionable for some reason. So, it was considered a good precaution to have the power for the Secretary of State to disallow such Acts. In the old colonial days, the records are filled with examples of this happening. However, since we have all 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 Bill long before it is passed into law by the Assembly. It has plenty of time to send its comments to the A-G's Chambers. Long before the Bill gets to the House of Assembly, it can recommend amendments to the local draughtsman. There might be legitimate reasons for this. It might be necessary, for example, to ensure that the Bill complies with Britain's international obligations.

The retention of this supervisory provision, bedded as it is in the days of the sailing ship, is now an anachronism. Every person who addressed the Constitutional and Electoral Reform 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”.

And, high time too! Either Anguilla is fully internally self-governing or it is not. Most Anguillians would be shocked to learn that there are some people who still believe that we are a “dependent territory”. A whole generation of Anguillians has grown up with the understanding that we are not dependent on Britain or anyone else. We take care of our own affairs. That includes making our own laws. With that in mind, we rely on our Attorney-General to keep in close touch with the latest thinking on the draughting issues that arise in his Chambers. It is his duty to ensure that we put the very best version of any proposed new law before the House of Assembly. If he fails, it is not a matter for the Secretary of State to try to correct the error by blocking a badly draughted law. He has one of his juniors point out the error to our draughtsman, and, if appropriate, and after discussion at Cabinet level, an amending Bill is introduced into the House of Assembly at the earliest opportunity. That is the proper way to deal with bad laws.

It is up to the legislature of Anguilla to legislate for Anguilla, and nobody else.