06 March, 2008
Order in Council
When is the Use of an Order in Council a Legitimate Method of Legislating for Anguilla? We have been considering the four different ways that the British Foreign and Commonwealth Office can legislate for Anguilla. We are coming to an end now, as this is the last of my four posts on the subject.
It is worth reminding ourselves one last time that the general rule 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 our 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.
The fourth extraordinary way in which the FCO can legislate for Anguilla is by the Order in Council. Orders in Council are very old. They were originally thought of as a residue of the “royal prerogative” power. In the struggles between the British Parliament and the Monarchy, some monarchs claimed a right to rule by royal prerogative. Parliament opposed that view. There was a Civil War over it in the 1640s. A King's head was cut off. Gradually, this power to rule by the royal prerogative has been reduced and restricted in Britain. It still remains, to a limited extent, in use in the Colonies. It is now mainly regulated by statute.
The Order in Council is found particularly in those Acts of Parliament that provide for British administration of overseas territories. The Anguilla Act 1980 of the British Parliament is an example of this type of legislation. The Act expressly 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. 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 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, it has never arisen since the Second World War. Since that time, it has been recognised as involving the possibility of mutual annihilation. In US constitutional dialectic, the term was first used by Senator Trent Lott to refer to the attempt by the presiding officer of the Senate to end a filibuster by majority vote. In the British Overseas Territories, it refers to the use by the FCO of an Order in Council to impose British government will on an Overseas Territory by what we used to call in the bad old days “imperial legislation”. A nuclear option is something never to be preferred. In our case, any form of unwilling imperial legislation would be a denial of our right to self-government. For an Order in Council ever to be passed without the consent of the people of Anguilla, the UK government would have to be willing to take a giant step backwards.
Imperial legislation, by way of an Order in Council, may always legitimately be used 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, or 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. That is the positive side of the Order in Council. Let us now consider the negative side. This is when an Order in Council affecting our basic rights is passed without general information, consultation, and resulting consent. It used to be thought that no court in the West Indies or in England could intervene when an unjust Order in Council had been made. That was the nuclear option in its worst aspect.
It is arguable that the nuclear option, in this anti-democratic sense, no longer exists. It has now largely been destroyed by the Court of Appeal in the Chagos Islands Case. An Order in Council made under the Royal Prerogative is now, since that judgement, subject to judicial review. No one in Anguilla would have any problem with an Order in Council that was made with our express consent. Nor would we have any problem with an Order in Council made for us that complied with the restrictions in the judgement of the Court of Appeal.
The British government has appealed the Chagos Islands judgement to the House of Lords. The appeal will be heard later this year. No thinking person has any doubt that the House of Lords will dismiss the appeal. Arbitrary and unjust use of the Royal Prerogative can now be considered to be a dead letter in the British Overseas Territories as much as it is in Britain itself. It is fair to say that, from the date of this judgement, an Order in Council that were to be made without our consent, and against our wishes, and not evidently in our best interests, would be held by our court to be an abuse of power, illegal and unconstitutional.
During the 2006 Constitutional review process, no person made any recommendation to the Constitutional and Electoral Reform Commission proposing restrictions on the future use of the Order in Council. The Commission made no recommendations concerning the use of the Order in Council. The legitimate use of an Order in Council remains unobjectionable. More than that, it can be considered as a legislative mechanism now existing only for our use and benefit, as happened a few years ago with the abolition of homosexual offences and the death penalty. That story is not without some element of amusement, and is worth retelling.
Back in 1990, the FCO wanted the issues of homosexuality and the death penalty dealt with in the local Assembly. It was obvious to the FCO that this was the preferred method for updating and amending a local law. The problem that the FCO faced at the time, and that it was attempting to correct, was that it had been advised by its lawyers that the continuance of the offence of “buggery” on our statute book exposed the British people to contingent liability. The offence, they were advised, was contrary to the European Convention on Human Rights. The FCO was concerned that there was a risk that some injured homosexual, with this particular propensity, might sue them if he was prosecuted under local laws outlawing the practice. It was necessary for the FCO to be able to prove to Britain's European partners that there were no laws in Anguilla discriminating against anyone on the basis of their sexual preference. So, they put pressure on the local government to introduce a law in the Assembly, and to debate the issue, and to repeal the old buggery offence. Not on your life! There was no way that any Anguilla government was going to permit the topic of homosexuality even to be introduced into the Assembly. They downright refused to allow it. The solution was simple. They told the British, in effect, “You go ahead and abolish it for us. We will not object. We would prefer you did it for us. We do not want to be embarrassed by appearing in front of our people to be in support of homosexual practices. That will be the consequence of us advocating the abolition of the offence. It will be bad for us politically. But, you can go ahead and do it for us.” And, so was passed the Order in Council that did away with the offence of buggery. The same with the death penalty.
But, when it comes to the liberties and freedoms of Anguillians, it can be stated as a general proposition of constitutional law that no Order in Council affecting those liberties and freedoms may be consented to by any government of Anguilla without the agreement of the people of Anguilla. No government of Anguilla, for example, can validly consent to the FCO legislating for Anguilla by Order in Council to amend our Constitution without our prior knowledge and approval. Only the people can give this consent. That the FCO recognises this principle is clear. The FCO has repeatedly promised that no amendment to the Anguilla Constitution will be made unless it is satisfied that such proposed amendment has the consent and approval of the people of Anguilla. That is as it should be.
In conclusion, the proper use of the Order in Council is unobjectionable. It exists for our use and benefit. It is a great saver of time and energy when it comes to passing into law, for example, provisions that are highly technical and related to our international obligations that have been worked out by the international experts. There is no point in us duplicating all that work. We permit the Order in Council to be passed to save us the waste of duplication. That is its legitimate use.
I am fully conscious that in expressing my opinion on the four extraordinary methods retained by the FCO to legislate for us, and in repeadedly declaring that Anguilla is already fully internally self-governing, I may have stretched the strict constitutional boundaries. The matter is one for negotiation with the FCO. It is not up to us alone. An understanding has to be reached about its implementation. Nor is full internal self-government something that the FCO gives us. It is something that we do. It involves the way we think about ourselves and our rights and powers. The point that I am trying to make is that “full internal self-government” is a state of mind, a readiness for action, rather than a statement in a document. Regardless of what the document says, if our leaders can look a UK diplomat in the eye and say, “No, you are not going to pass that enactment for Anguilla until Anguillians have been informed, and have expressed their consent”, then we will have achieved “full internal self-government”. It is my submission that not one word in the present Constitution needs to be changed for us to achieve full internal self-government. You can change all the words that empower, and if we are not ready, we will have achieved nothing