British Overseas Territories Law 9781472565433, 9781849460194

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Foreword The historian WEH Lecky once said that empires, like the sun, often throw out their most glorious colours when they are on the point of disappearing. In legal terms, it might be said that the twilight of the British Empire has thrown out a more confused, kaleidoscopic range of colours than any sunset could hope to emulate. The ad hoc evolution of the British Empire over a period of centuries, and its piecemeal breakup since the Second World War have between them produced ‘an overall pattern of complexity and obscurity’.1 To modern eyes the problem is further compounded by the fact that many of the legal principles which underlay the development of colonial law, and even the legal vocabulary in which it is expressed, are now so rarely encountered by practitioners that the case-law can seem impenetrable. Indeed, it has even been suggested by one academic commentator that English judges are now so unfamiliar with the applicable principles of colonial law that the House of Lords recently accepted a submission which ‘every Colonial or Foreign and Commonwealth Office draftsman during the past 200 years would ... have regarded ... as a theory defunct since the time of William and Mary’.2 But in fairness to contemporary judges, even the judiciary of an earlier age which was more accustomed to dealing with arcane questions such as the indivisibility of the Crown sometimes found that the relevant legal concepts tended to ‘dissolve into verbally impressive mysticism’.3 There are now only 14 British Overseas Territories, and their combined population is slightly less than that of Norwich. Some, like South Georgia and the South Sandwich Islands, Pitcairn and the British Antarctic Territory, have either a tiny human population or none at all. But others, such as Bermuda, the Cayman Islands and the British Virgin Islands, have substantial populations and thriving economies based on financial services and tourism. And in any event, the mere size of a territory’s civilian population bears no relation to the frequency with which legal problems may come before the courts, nor the complexity of the constitutional issues which they may raise. For example, the long-running litigation brought by a number of Chagossians seeking to return to the British Indian Ocean Territory was prompted precisely by the fact that the islands had been depopulated and the islanders were prevented from living where they or their forbears had been born. In recent years there have also been other complex disputes in the English courts covering a range of issues from electoral boundary changes in Bermuda to the capacity in which the Crown acts in relation to South Georgia and the South Sandwich Islands, and from the application to the territories of the Human Rights Act 1998 to the jurisdiction of

1

K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 138. J Finnis, Common Law Constraints: Whose Common Good Counts? University of Oxford Faculty of Law Legal Studies Research Paper no 10/2008, §18, commenting on the decision in R (Quark Fishing Limited) v Secretary of State for Foreign & Commonwealth Affairs [2006] 1 AC 529. 3 Minister for Works for Western Australia v Gulson (1944) 69 CLR 338, 350, per Latham CJ. 2

vi Foreword the English Administrative Court in relation to the actions of local officials. Several of these cases have reached the House of Lords, and there has also been the usual diet of Privy Council appeals. The recent suspension of parts of the Constitution of the Turks and Caicos Islands has recently been up to the English Court of Appeal. It would be wrong to think that the traffic of legal learning is all one way. Many of the British Overseas Territories have enjoyed much longer experience of certain legal issues which have only recently arisen in the UK. For example, Bermuda has had constitutional provisions protecting human rights since 1968, some 30 years before the UK. Nearly half a century ago, an enormous amount of light was thrown onto the legal position of the colonies and their relations with the UK by a former legal adviser to the Commonwealth Relations Office and the Colonial Office, Sir Kenneth Roberts-Wray. His book, Commonwealth and Colonial Law (1966), preserved a wealth of learning which might otherwise have been lost to later generations. However, much has happened in the last 44 years, and the time has long since passed for a fresh study to be published. Here it is. Now, a new generation of practitioners will have cause to thank two Foreign and Commonwealth Office lawyers who between them can boast a unique level of knowledge and unrivalled experience of the British Overseas Territories. Their book wears its learning deceptively lightly, but it is thoroughly comprehensive. It is also written in a clear, lucid style which is more than welcome in such an obscure field of law. The book examines each aspect of the subject in turn—the constitutional arrangements, the sources of law, the office of Governor, the executive, legislative and judicial branches of government, human rights, defence and public order, nationality and belonger status, public finance, external relations and the application to the territories of international and EU law. At the end, there is an invaluable Annex covering each of the 14 territories in turn. No one is better placed to write this book than Ian Hendry and Susan Dickson. They are to be congratulated and thanked for their industry and insight. This book now stands as a worthy successor to Roberts-Wray in the study of colonial law, and it is unlikely to be equalled for another generation. Jonathan Crow QC 9 June 2010

Preface The aim of this book is to describe succinctly the law and practice relating to the British overseas territories. Our deliberate objective is to state what the position is, as we understand it, not what we think it ought to be or whether it is justified. We are legal practitioners, and academic analysis or criticism is better done by others more qualified to do so. Our intention is to try to explain a somewhat misty field of law that has been largely ignored by writers, especially for the benefit of those who have to grapple with the wide variety of problems thrown up in the administration of these British territories. At the same time, we hope that this book will be of general interest to lawyers and others, touching as it does on constitutional, international, human rights, and European Union law, always in the context of the organisation and operation of small jurisdictions in a close relationship with the United Kingdom. Much of the planning for this book took place on the deck of the Royal Mail Ship St Helena, the only means of access to that beautiful island, as we steamed serenely to hold meetings with its people. But the idea long preceded that. Throughout our careers as Foreign and Commonwealth Office legal advisers, learning about the law and practice of the overseas territories was never easy. The great authority on the subject, Sir Kenneth Roberts-Wray’s Commonwealth and Colonial Law, was published in 1966 and thus, although still immensely helpful on many issues, is inevitably out of date on many others. For the most part we learned from our colleagues and mentors, from our many friends among the Attorneys General and Judges of the territories themselves, and from bitter experience. Something reasonably comprehensive and up to date was plainly required. The timing also seemed right. Most of the territories have been granted new constitutions during the past five years. We had the privilege of playing a central role in the negotiation of these constitutions, every word of which had to be agreed with territory representatives. The British Overseas Territories Act 2002 restored full British citizenship to the vast majority of the people of the territories, and gave statutory recognition to the modern term ‘British overseas territory’, rather than the outdated terms ‘dependent territory’ or ‘colony’. Some important legal issues have been considered recently by the courts, and judgments of considerable constitutional significance have been delivered by the Judicial Committee of the Privy Council, the House of Lords, the Supreme Court and the Court of Appeal, as well as by the European Court of Justice and the European Court of Human Rights. But timing can never be perfect. In the Turks and Caicos Islands, ministerial government and the elected House of Assembly were temporarily suspended in 2009, following a Commission of Inquiry into allegations of corruption, and the 2006 Constitution of that territory is under review. The outcome was not known at the time of publication. In Anguilla, constitutional reform has been discussed sporadically for several years, but whether it will come to anything substantial cannot yet be predicted. Finally, the judgment of the European Court of Human Rights in the

viii Preface case brought on behalf of the Chagos Islanders is still awaited. These are among the matters we would ideally have liked to cover, but the curtain must come down some time. We are immensely grateful to the many colleagues from whom we have learned so much, to those who have helpfully commented on parts of the text, and to those who have helped us produce the text, notably Laura Hayman and the FCO librarians. Others have contributed unwittingly by their requests for advice over the years. Our sincere thanks go to our families, especially Annabel Hendry, whose constant patience and encouragement kept us going throughout. Above all, we wish to pay tribute to our friend and colleague in the constitutional review negotiating team, Michael Bradley, who passed away in February 2010. As a former Attorney General of several territories and Governor of the Turks and Caicos Islands, Michael’s knowledge and experience were unrivalled, as was his generosity in passing on to us what he knew. The opinions expressed in this book are our own, and should not be taken as an expression of official government policy. The writing of this book has not been subsidised by any public or private source. We have tried to state the law as at 15 October 2010, but we have been able to take account of some developments after that date. IDH SJD

Table of Cases A. NATIONAL COURTS Akar v Attorney General of Sierra Leone [1970] AC 853 (PC) ..........................................66 Al Baker v Alford [1960] AC 786 (PC) ............................................................................186 Attorney-General v Great Southern and Western Railway Co of Ireland [1925] AC 754 (PC) ................................................................................223 Attorney General v Ryan [1980] AC 718 (PC) ................................................................ 153 Attorney General for Canada v Hallett and Carey Ltd [1952] AC 427 (PC) ......................................................................................................192 Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2005] 1 AC 328...............................................................................167 Bahamas District of the Methodist Church in the Caribbean and the Americas v Symonette [2000] UKPC 31 .............................................................78 Bhagat Singh v King-Emperor (1931) LR 58 Ind App 169 (PC) .......................................192 Blankard v Galdy (1693) 2 Salk 411 ............................................................................8, 137 Bonser v La Macchia (1969) 122 CLR 177 ........................................................................71 Boyce v R [2004] UKPC 32, [2005] 1 AC 400 (PC) ...........................................................67 Bribery Commissioner v Ranasinghe [1965] AC 172 (PC) .................................................66 British Coal Corporation v R [1935] AC 500 (PC).......................................................70, 72 Broken Hill South Ltd v Commissioner of Taxation (New South Wales) (1937) 56 CLR 337..................................................................71, 212 Cameron v Kyte (1835) 3 Knapp 332 (PC) .........................................................................38 Campbell v Hall (1774) 1 Cowp 204................................................... 8, 19, 58, 60, 98, 138 Campbell-Rodriques v Attorney General of Jamaica [2007] UKPC 65 .....................154, 168 Chagos Islanders v Attorney General [2003] EWHC 2222 (QB), [2003] All ER (D) 166...................................................................................................303 Chenard v Arissol [1949] AC 127 (PC) ..............................................................................30 Christian v R [2006] UKPC 47, [2007] 2 AC 400 (PC) ....................... 6, 7, 8, 137, 138, 140 Clark v Vanstone [2004] FCA 1105, (2004) 81 ALD 21 ..................................................119 Cobb & Co v Kropp [1967] 1 AC 141 (PC) .................................................................65, 66 Conway v Rimmer [1968] AC 910 (HL) ............................................................................52 Croft v Dunphy [1933] AC 156 (PC) .................................................................................71 Damodhar Gordhan v Deoram Kanji (1875) 1 App Cas 332 ...........................................287 De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 (PC)......................................................168 De Verteuil v Knaggs [1918] AC 557 (PC) .........................................................................51 Dominion of Canada v Province of Ontario [1910] AC 637 (PC)....................................223 Doss v Secretary of State for India in Council [1875] LR 19 Eq 509 ...............................223 DPP v Mollison (No 2) [2003] UKPC 6, [2003] 2 AC 195 (PC) ........................................67 Durity v Attorney General of Trinidad and Tobago [2008] UKPC 59 ..............................167 Ex p Carew [1897] AC 719 ................................................................................................98 Ex p Mwenya [1960] 1 QB 241........................................................................................143 The Fagernes [1927] P 311 ...................................................................................................8 Fatuma bin Mohamed bin Salim Backhshuwen v Mohamed bin Salim Backhshuwen [1952] AC 1 (PC) ...................................................146

xiv Table of Cases Ford v Labrador [2003] UKPC 41 ................................................................................... 170 Gairy v Attorney General of Grenada [2001] UKPC 30, [2002] 1 AC 167 (PC) .................................................................................................. 164 Glynn v Houston (1841) 2 Man & G 337......................................................................... 51 Grant v R [2006] UKPC 2, [2007] 1 AC 1 .............................................................. 168, 170 Grape Bay Ltd v Attorney General [2000] 1 WLR 574 (PC) .......................................... 153 Hearing on the Report of the Chief Justice of Gibraltar, referral under s 4 of the Judicial Committee Act 1833 [2009] UKPC 43 .......................... 119, 130 Hearing on the Report of the Tribunal to the Governor of the Cayman Islands [2010] UKPC 24 ................................................................................ 119 Hector v Attorney General of Antigua and Barbuda [1990] 2 AC 312 (PC) ................... 168 Hennessy v Wright (1888) 21 QB 509 ............................................................................... 52 Hill v Bigge (1841) 3 Moo PC 465 .............................................................................. 38, 51 Hinds v R [1977] AC 195 (PC).......................................................................................... 67 Ibralebbe v The Queen [1964] AC 900 (PC) ......................................................... 21, 61, 66 Jaundoo v Attorney General of Guyana [1971] AC 972 (PC) ......................................... 166 Jersey Fishermen’s Association v States of Guernsey [2007] UKPC 30, [2007] All ER (D) 39 (May) .................................................................. 70, 212 Johnson v Stamp Duties Commissioner [1956] AC 331 (PC) .................................... 71, 212 Kariapper v Wijesinha [1968] AC 717 (PC)....................................................................... 66 Lawrence v Attorney General of Grenada [2007] UKPC 18, [2007] 1 WLR 1474 (PC) ..................................................................... 119, 121, 130, 219 Liyanage v The Queen [1967] 1 AC 259 (PC) ............................................................. 67, 70 Lyons (Mayor) v East India Company (1836) 1 Moo PC 175 ......................................... 143 MacBeath v Haldimand (1786) 1 TR 172 ......................................................................... 51 Macleod v Attorney General for New South Wales [1891] AC 455 (PC) .......................... 70 Madzimbamuto v Lardner-Burke and George [1969] 1 AC 645 (PC) ................... 22, 55, 61 Maharaj v Attorney General of Trinidad and Tobago (No 2) [1979] AC 385 (PC) ..................................................................................................... 164 Manuel v Attorney-General [1983] Ch 77 ......................................................................... 25 Martin v R [2001] EWCA 2245 ...................................................................................... 154 McCawley v R [1920] AC 691 (PC) .................................................................................. 66 McLaughlin v Governor of the Cayman Islands [2007] UKPC 50 .................................... 51 Merson v Cartwright [2005] UKPC 38 ............................................................................ 167 Mootoo v Attorney General of Trinidad and Tobago [1979] 1 WLR 1334 (PC) ........................................................................................................ 168 Mostyn v Fabrigas (1774) 1 Cowp 161 ............................................................................. 51 Musgrave v Pulido (1879) 5 App Cas 102 ................................................................... 38, 51 Mutasa v Attorney-General [1980] QB 114 ..................................................................... 223 Nadan v R [1926] AC 482 (PC) .................................................................... 70, 72, 76, 103 Nadarajan Chettiar v Walauwa Mahatmee [1950] AC 481 (PC) ..................................... 147 New South Wales v The Commonwealth of Australia (1975) 135 CLR 337 ................................................................................................................. 71 Ningkan v Government of Malaysia [1970] AC 379 (PC) ............................................... 192 Nyali v Attorney-General [1956] 1 QB 1................................................................. 140, 143 Pesona v Babonchi Baas (1948) 49 NLR (Ceylon) 442 ................................................... 146 Phillips v Eyre (1870) LR 6 QB 1 ..............................................8, 14, 19, 51, 57, 58, 66, 98 R v Burah (1878) 3 App Cas 889 ................................................................................ 21, 61 R v Secretary of State for Foreign and Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892 ................................................ 25, 223

Table of Cases xv R v Secretary of State for the Home Department, ex p Shadeo Bhurosah [1968] 1 QB 266 ................................................................ 25, 223 R v Shawe (1816) 5 M & S 403 ........................................................................................ 52 R (al-Skeini) v Secretary of State for Defence [2008] 1 AC 153 (HL) .......................... 92, 93 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 ................................................. 21, 77, 303, 304 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL) ............................................................ 7−8, 19−26, 32, 39, 42, 57, 61, 66, 69−70, 77, 92, 138, 151, 205−209, 253, 303−04 R (Barclay) v Secretary of State for Justice and Lord Chancellor [2008] EWCA Civ 1319; [2009] UKSC 9..................................................... 24, 26, 92−93 R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1039; [2009] EWCA Civ 1549 ....................... 17, 21, 32, 157, 253 R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409; [2005] UKHL 57, [2006] 1 AC 529 (HL) ................................v, 7, 24−26, 40–42, 92−93, 151, 223, 337 Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136 (PC) ....................................................................... 40, 78 Reyes v R [2002] UKPC 11, [2002] 2 AC 235 (PC) ........................................................ 168 Riel v The Queen (1885) 10 App Cas 675................................................................... 21, 61 Roberdeau v Rous (1738) 1 Atk 543 ........................................................................... 8, 137 Robins v National Trust Co [1927] AC 515 (PC) ............................................................ 146 Robinson v Western Australian Museum (1977) 138 CLR 283 ......................................... 71 Ross-Clunis v Papadopoullos [1958] 1 WLR 546 (PC) ................................................... 192 Ruding v Smith (1821) 2 Hag Con 371 ........................................................................... 138 Russell v Attorney General for St Vincent and the Grenadines [1997] 1 WLR 1134 (PC) ............................................................................................... 64 Sabally and N’Jie v Attorney-General [1965] 1 QB 273 .............................................. 16, 58 Sammut v Strickland [1938] AC 678 (PC) ............................................... 7−8, 19, 57−58, 60 Societe United Docks v Government of Mauritius [1985] AC 585 (PC) .......................... 164 Sprigg v Sigcau [1897] AC 238 (PC) .................................................................................. 38 State of Mauritius v Khoyratty [2006] UKPC 13, [2007] 1 AC 80 (PC) ............................ 67 Stewart v Secretary of State for Scotland 1998 SC (HL) .................................................. 120 Subiah v Attorney General of Trinidad and Tobago [2008] UKPC 47 ............................. 167 Suratt v Attorney General of Trinidad and Tobago [2007] UKPC 55 .............................. 168 Swann v Attorney General of the Turks and Caicos Islands [2009] UKPC 22............................................................................................................. 51 The Queen in Right of Alberta v Canadian Transport Commission (1977) 75 DLR (3d) 257 ................................................................................................ 25 The Yuri Maru; The Woron [1927] AC 906 (PC) ............................................................ 100 Therrien v Minister of Justice [2001] 2 SCR 3 ................................................................. 120 Tilonko v Attorney General of Natal [1907] AC 93 (PC) .................................................. 66 Tito v Waddell (No 2) [1977] Ch 106 ................................................................. 23, 25, 223 Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1 ........................................................................................... 21, 61 Wallace v Commissioner for Income Tax, Bombay (1948) 75 LR Ind App 86 (PC) .................................................................................................. 70

xvi Table of Cases Western Transport Pty Ltd v Kropp [1965] AC 914 (PC) ................................................. 66 Winfat Enterprises (Hong Kong) Co Ltd v Attorney General of Hong Kong [1985] AC 733 (PC) ............................................................................... 78 Zainal bin Hashim v Government of Malaysia [1980] AC 734 (PC) ................................. 66

B. EUROPEAN COURT OF HUMAN RIGHTS AND EUROPEAN COMMISSION OF HUMAN RIGHTS Callaghan v United Kingdom Application 14739/89 ....................................................... 157 Dudgeon v United Kingdom Series A 45 (1982), [1982] 4 EHRR 149 ............................ 160 Ebanks v United Kingdom Application 36822/06 ........................................................... 254 Matthews v United Kingdom ECHR 1999-I, (1999) 28 EHRR 361 ........................ 273, 323 McCotter v United Kingdom (1993) 15 EHRR CD 98 .................................................... 189 Py v France (2005) 42 EHRR 548 ................................................................................... 173 Quark Fishing Company v United Kingdom ECHR 2006-XIV, 44 EHRR SE 4 .............. 173 Schalk and Kopf v Austria Application 30141/04 ............................................................ 156 Venetucci v Italy Application 33830/96 ........................................................................... 189 Wakefield v United Kingdom Application 15187/89........................................................ 189 X v United Kingdom Application 5712/72 ...................................................................... 188 X and Y v Ireland Application 8299/78 ........................................................................... 157

C. EUROPEAN COURT OF JUSTICE Case C-390/95 P Antillean Rice Mills v Commission [1999] ECR I-769 ................. 267−268 Case C-30/01 Commission v United Kingdom [2003] ECR I-9481 ................................. 272 Case C-300/04 Eman and Sevinger [2006] ECR I-8055 .................................. 266, 270, 273 Cases C-100 and C-101/89 Kaefer and Procacci v French State [1990] ECR I-4647 .......................................................................... 266−268 Case C-192/99 Kaur [2001] ECR I-1237 ......................................................................... 271 Case C-260/90 Leplat [1992] ECR I-643 ................................................................. 266−267 Case C-110/97 Netherlands v Council [2001] ECR I-8763 ............................................. 266 Case C-310/95 Road Air v Inspecteur der Invoerrechten en Accijnzen [1997] ECR I-2229....................................................................................................... 267 Case C-145/04 Spain v United Kingdom [2006] ECR I-7917 .......................................... 273

D. INTERNATIONAL COURT OF JUSTICE Antarctica Cases (United Kingdom v Argentina; United Kingdom v Chile), ICJ Pleadings, 1955 ............................................ 263, 300, 337

Table of Laws of the British Overseas Territories ANGUILLA Constitution Anguilla Constitution Order 1982 (SI 1982/334, as amended by SI 1983/1108 and 1990/587) ............................................... 18, 59, 105, 150, 205, 293

Local legislation Common Law (Declaration of Application) Act (Revised Statutes of Anguilla, Cap C60) ...........................................................................................144, 295 Eastern Caribbean Supreme Court (Anguilla) Act (Revised Statutes of Anguilla, Cap E15) ...........................................................................................144, 295 Elections Act (Revised Statutes of Anguilla, Cap E30) ......................................................294 Magistrate’s Code of Procedure Act (Revised Statutes of Anguilla, Cap M5) ....................................................................................................295

BERMUDA Constitution Bermuda Constitution Order 1968 (SI 1968/182, as amended by SI 1968/463, 1968/726, 1973/233, 1979/452, 1979/1310, 1989/151, 2001/2579, 2003/456)....................................................... 18, 60, 99, 150, 297

Local legislation Anti-Terrorism (Financial and Other Measures) Act 2004 (2004:31) ...............................191 Appeals Act 1911 (1989 Revision, Title 8, Item 86) .................................................103, 298 Bermudian Status by Birth or Grant Register Act 1992 (1989 Revision, Title 5, Item 2) ..............................................................................................................207 Consular Relations Act 1971 (1989 Revision, Title 6, Item 1)..................................241, 253 Crown Proceedings Act 1966 (1989 Revision, Title 8, Item 105) .......................................28 Defence Act 1965 (1989 Revision, Title 7, Item 21) .........................................................177 Diplomatic Privileges Act 1980 (1989 Revision, Title 6, Item 5) ......................................241 Emergency Powers Act 1963 (1989 Revision, Title 10, Item 2) ........................................195 Human Rights Act 1981 (1989 Revision, Title 2, Item 23)...............................152, 154, 170 Immigration and Protection Act 1956 (1989 Revision, Title 5, Item 16) ..........................207 International Organisations Etc (Privileges and Immunities) Act 1948 (1989 Revision, Title 6, Item 6).....................................................................................241 International Sanctions Act 2003 (2003:6) .......................................................................278 International Sanctions (Burma) (Restrictive Measures) (Overseas Territories) Regulations 2006 (BR 80/2006) ....................................................................................278

xviii Table of Laws of the British Overseas Territories Magistrates Act 1948 (1989 Revision, Title 8, Item 15) .......................................... 110, 298 Ombudsman Act 2004 (2004:32) .............................................................................. 93, 215 Police Act 1974 (1989 Revision, Title 10, Item 21) ......................................................... 184 Repatriation of Prisoners Act 2002 (2002:9) ................................................................... 189 Supreme Court Act 1905 (1989 Revision, Title 8, Item 1) ............... 100, 108, 139, 144, 298

BRITISH ANTARCTIC TERRITORY Constitution British Antarctic Territory Order 1989 (SI 1989/842) ...............8, 14, 16, 35, 40, 46, 59, 62, 100, 150, 226, 299−301

Local legislation Administration of Justice Ordinance 1990 (Ordinance No 5 of 1990)............................................................ 109, 141, 144, 300−301 Crown Proceedings Ordinance 1990 (Ordinance No 7 of 1990) ....................................... 28 Police Powers Ordinance 1991 (Ordinance No 2 of 1991) .............................................. 184 Principal Legal Adviser Ordinance 1990 (Ordinance No 8 of 1990).............................................................................. 81, 124, 134 Prisons Ordinance 1990 (Ordinance No 10 of 1990) ...................................................... 186 Public Funds (Procedures) Ordinance 1990 (Ordinance No 12 of 1990).................................................................................. 213, 217

BRITISH INDIAN OCEAN TERRITORY Constitution British Indian Ocean Territory (Constitution) Order 2004 (reproduced at Annex, p 305) ............................ 8, 20−21, 32, 109, 150, 178, 207, 301−304, 305−310

Local legislation Courts Ordinance 1983 (Ordinance No 3 of 1983) ......................... 109, 141, 144, 304−305 Criminal Procedure Code 1986 (Ordinance No 1 of 1986) ..................................... 124, 134

CAYMAN ISLANDS Constitution Cayman Islands Constitution Order 2009 (SI 2009/1379) ........... 17, 99, 142, 149, 152, 312

Local legislation Immigration Law (Law 34 of 2003 (2009 Revision)) ...................................................... 207 Interpretation Law (1995 Revision, Cap 70) ..................................................................... 86 Penal Code (Law 12 of 1975 (2007 Revision)) ................................................................ 315 Public Management and Finance Law (Law 25 of 2001 (2005 Revision)) ....................... 217 Public Service Management Law (Law 27 of 2005) ........................................................... 95 Summary Jurisdiction Law (Law 10 of 1975 (2006 Revision)) ........................................ 315

Table of Laws of the British Overseas Territories xix FALKLAND ISLANDS Constitution Falkland Islands Constitution Order 2008 (SI 2008/2846) .................................................14, 16, 40, 58−59, 99, 150, 205, 227, 318

Local legislation Administration of Justice Ordinance (Title 22) ................................................................ 320 Falkland Islands Defence Force Ordinance (Title 7.1) ...................................................... 177 Fisheries Conservation Outer Zone Proclamation 1990 (Title 39.1.2) ............................... 65 Interpretation and General Clauses Ordinance (Title 67) ............................................................... 86, 141−142, 144, 320, 339

GIBRALTAR Constitution Gibraltar Constitution Order 2006 (published in SI 2006, III, p 11503) ...............................19−20, 33, 59, 98, 150, 288, 321

Local legislation Crown Proceedings Act 1951 (1951–10) ........................................................................... 28 English Law (Application) Act 1962 (1962–17) ............................................... 139, 143, 324 European Arrest Warrant Act 2004 (2004–04) ................................................................ 190 European Communities Act 1972 (1972–18) ........................................... 141, 148, 274, 324 Export Control Act 2005 (2005–33)................................................................................ 278 Export Control (Sanctions etc) Order 2006 (Subsidiary 2006/028) ................................. 278 Fugitive Offenders Act 2002 (2002–15) ........................................................................... 190 Gibraltar Regiment Act 1998 (1998–25) ......................................................................... 177 Gibraltarian Status Act 1962 (1962–13) .......................................................................... 206 Magistrates’ Court Act 1961 (1961–23) .......................................................................... 323 Police Act 2006 (2006–20) .............................................................................................. 184 Public Finance (Borrowing Powers) Act 2008 (2008–13)......................................... 211, 217 Public Finance (Control and Audit) Act 1977 (1977–09) ................................ 211, 213, 218 Public Services Ombudsman Act 1998 (1998–48) ............................................. 93, 171, 215 Terrorism Act 2005 (2005–43) ........................................................................................ 191

MONTSERRAT Constitution Montserrat Constitution Order 2010 (SI 2010/2474) .................. 17, 59, 150, 205, 325−326

Local legislation Crown Proceedings Act (Cap 2.06) .................................................................................... 28 Defence Force Act (Cap 10.07) ........................................................................................ 177 Emergency Powers Regulations 1996 (Cap 10.08) ........................................................... 193 Juveniles Act (Cap 2.11) .................................................................................................. 110

xx Table of Laws of the British Overseas Territories Magistrate’s Court Act (Cap 2.02) ................................................................... 110, 114, 328 Montserrat Exclusive Fisheries Zone Proclamation No 4 of 1983 ................................... 262 Supreme Court Act (Cap 2.01) ................................................................ 100, 108, 144, 328

PITCAIRN, HENDERSON, DUCIE AND OENO ISLANDS Constitution Pitcairn Constitution Order 2010 (SI 2010/244) ......................16, 40, 59, 99, 150, 226, 330

Local legislation Judicature (Courts) Ordinance (2001 Revision, Cap II) ................................... 139, 144, 331 Local Government Ordinance (2001 Revision, Cap XI) ............................................ 82, 330 Right of Abode Ordinance (Laws of Pitcairn, Ordinance No 1 of 2010) ......................... 204

ST HELENA, ASCENSION AND TRISTAN DA CUNHA Constitution St Helena, Ascension and Tristan da Cunha Constitution Order 2009 (SI 2009/1751) ....................................16−17, 40, 59, 99, 150, 226, 332−333

Local legislation English Law (Application) Ordinance 2005 (St Helena Ordinance No 10 of 2005) ......................................................... 141, 144, 336 Immigration Control Ordinance 2008 (St Helena Ordinance No 9 of 2008)................... 207 Application of St Helena Law (Ascension) Ordinance 1987 (Ascension Ordinance No 4 of 1987) ................................................... 141−142, 144, 336 Island Government (Ascension) Ordinance 2008 (Ascension Ordinance No 7 of 2008) ..................................................................... 82, 335 Application of St Helena Law (Tristan da Cunha) Ordinance 1987 (Tristan da Cunha Ordinance No 3 of 1987) ....................................... 141−142, 144, 336 Entry Control Ordinance 1967 (Tristan da Cunha Ordinance No 1 of 1967) ................. 204 Island Council Ordinance 1985 (Tristan da Cunha Ordinance No 1 of 1985) .......... 82, 335

SOUTH GEORGIA AND THE SOUTH SANDWICH ISLANDS Constitution South Georgia and South Sandwich Islands Order 1985 (SI 1985/449, as amended by SI 1995/1621) ................................. 8, 16, 59, 73, 100, 150, 184, 192, 337−338

Local legislation Administration of Justice Ordinance 1949 (Falkland Islands Ordinance No 1 of 1949) ......................................................... 109, 338 Application of Colony Laws Ordinance 1977 (Ordinance No DS1 of 1977) ............................................................... 141−142, 144, 339 Application of Colony Laws (No 2) Ordinance 1970 (Ordinance No DS3 of 1970) ....................................................................................... 338

Table of Laws of the British Overseas Territories xxi SOVEREIGN BASE AREAS OF AKROTIRI AND DHEKELIA Constitution Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 (SI 1960/1369, as amended by SI 1966/1415) ..................19, 27, 36, 46, 60, 62, 150, 177, 226, 341−342

Local legislation Administration (Renaming of Posts) Ordinance 1992 (Ordinance 11 of 1992) ................................................................................................ 124 Courts (Constitution and Jurisdiction) Ordinance 2007 (Ordinance 5 of 2007) .................................................. 106, 109, 118, 141, 144, 341−342 Delegation of Functions to the Republic Ordinance 2007 (Ordinance 17 of 2007) ................................................................................................ 277 Euro Ordinance 2007 (Ordinance 18 of 2007) ................................................................ 342 European Community (Protocol Measures) Ordinance 2004 (Ordinance 11 of 2004) ........................................................................ 141, 148, 277, 342 European Community (Specified Measures) Ordinance 2005 (Ordinance 24 of 2005) ................................................................................................ 277 Human Rights Ordinance 2004 (Ordinance 9 of 2004) ................................................... 152

TURKS AND CAICOS ISLANDS Constitution Turks and Caicos Islands Constitution Order 2006 (SI 2006/1913), subject to Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (SI 2009/701) ............................ 10, 18, 32, 59, 62, 80, 99, 150, 211, 345

Local legislation Fishery Limits (Turks and Caicos Islands) Ordinance (1998 Revision, Cap 105) ............................................................................................ 262 Magistrates Courts Ordinance (1998 Revision, Cap 12).................................................. 346 Supreme Court Ordinance (1998 Revision, Cap 11) ................................................ 144, 347

VIRGIN ISLANDS Constitution Virgin Islands Constitution Order 2007 (SI 2007/1678) ...................... 18, 59, 150, 205, 348

Local legislation Constitution Ordinance 1867 (Ordinance No 5 of 1867) ................................................ 348 Constitution Ordinance 1902 (Ordinance No 1 of 1902) ................................................ 348 Eastern Caribbean Supreme Court (Virgin Islands) Act (Cap 80) ............................ 144, 350 General Legislative Council (Revocation of Competency) Ordinance 1953 (Ordinance No 7 of 1953) ................................................................. 348 Magistrate’s Code of Procedure Act (Cap 44) .................................................................. 350 Repatriation of Prisoners Act (Cap 123) .......................................................................... 189

Table of United Kingdom Statutes Criminal Jurisdiction Act 1802 (1802 c 85) ........................................................................52 Judicial Committee Act 1833 (1833 c 41)............................................ 22, 72, 101, 103, 117 Saint Helena Act 1833 (formerly called Government of India Act 1833) (1833 c 85)............................................................. 15, 16, 20, 99, 333 Judicial Committee Act 1844 (1844 c 38)............................................ 22, 72, 101, 102, 103 Australian Waste Lands Act 1855 (1855 c 56)..................................................................286 British Law Ascertainment Act 1859 (1859 c 63) .............................................................110 Habeas Corpus Act 1862 (1862 c 20).................................................................................72 Cayman Islands Act 1863 (1863 c 31) ..................................................... 142, 311, 312, 315 Colonial Laws Validity Act 1865 (1865 c 63) ......................... 22−23, 30, 40, 67−73, 78, 99, 136, 167, 239, 281−282, 307 Colonial Prisoners Removal Act 1869 (1869 c 10) ...................................................186−187 Extradition Act 1870 (1870 c 52) .....................................................................................191 Turks and Caicos Islands Act 1873 (1873 c 6) .........................................................343, 345 Colonial Prisoners Removal Act 1884 (1884 c 31) .....................................56, 135, 187–188 British Settlements Act 1887 (1887 c 54) ............. 7, 15, 16, 19, 20, 40, 58−59, 98−100, 286 Colonial Courts of Admiralty Act 1890 (1890 c 27) ........................................................100 Foreign Jurisdiction Act 1890 (1890 c 37) ....................................................................6, 283 Colonial Probates Act 1892 (1892 c 6) .........................................................................55−56 Colonial Boundaries Act 1895 (1895 c 34) ...........................................................8, 286, 302 Demise of the Crown Act 1901 (1901 c 5) .........................................................................36 British Nationality and Status of Aliens Acts 1914 to 1943 (1914 c 17, 1918 c 38, 1922 c 44, 1933 c 49, 1943 c 14) ............................................197 Administration of Justice Act 1920 (1920 c 81) .................................................................55 Statute of Westminster 1931 (1931 c 4) ....................................................................280−281 Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 c 13) ..................................55 British Settlements Act 1945 (1945 c 7) ..................................... 7, 15, 16, 19, 20, 40, 58−59 Statutory Instruments Act 1946 (1946 c 36) .......................................................................20 United Nations Act 1946 (1946 c 45) .................................................................56, 136, 191 Crown Proceedings Act 1947 (1947 c 44) ..........................................................................27 British Nationality Act 1948 (1948 c 56)..........................................................................197 Criminal Justice Act 1948 (1948 c 58)................................................................................52 Statute Law Revision Act 1948 (1948 c 62) ...............................................................16, 333 Visiting Forces Act 1952 (1952 c 67) ................................................................................181 Cocos Islands Act 1955 (1955 c 5) ...................................................................................286 Leeward Islands Act 1956 (1956 c 23) .............................................................................325 Administration of Justice Act 1956 (1956 c 46) ...............................................................100 British Caribbean Federation Act 1956 (1956 c 63) ...........................................17, 291, 325 Sexual Offences Act 1956 (1956 c 69) ..............................................................................140 Cayman Islands and Turks and Caicos Islands Act 1958 (1958 c 13)...............142, 312, 344 Christmas Island Act 1958 (1958 c 25) ............................................................................286 Mental Health Act 1959 (1959 c 72) ................................................................................188 Cyprus Act 1960 (1960 c 52) ............................................................ 2, 19−20, 60, 339−341

xxiv Table of United Kingdom Statutes Mental Health (Scotland) Act 1960 (1960 c 61) .............................................................. 188 West Indies Act 1962 (1962 c 19) ..............17, 20−21, 59, 99, 142, 157, 312, 325, 344−345 Commonwealth Immigrants Act 1962 (1962 c 21) .......................................................... 198 Jamaica Independence Act 1962 (1962 c 40) ................................................................... 312 Bahama Islands (Constitution) Act 1963 (1963 c 56) ...................................................... 283 West Indies Act 1967 (1967 c 4) .................................................... 6, 99, 105, 280, 291−292 Criminal Law Act 1967 (1967 c 58) .................................................................................. 52 Bermuda Constitution Act 1967 (1967 c 63) ................................... 18, 20, 60, 99, 296−297 Commonwealth Immigrants Act 1968 (1968 c 9) ............................................................ 198 Anguilla Act 1971 (1971 c 63) ........................................................................................ 292 Immigration Act 1971 (1971 c 77) .................................................................. 198−199, 204 European Communities Act 1972 (1972 c 68) ........................................... 69, 141−142, 148 Evidence (Proceedings in Other Jurisdictions) Act 1975 (1975 c 34) ............................... 110 Solomon Islands Act 1978 (1978 c 15) ............................................................................ 282 Interpretation Act 1978 (1978 c 30)......................... 3−6, 18, 36, 75−76, 100, 200, 287, 305 Kiribati Act 1979 (1979 c 27) ............................................................................ 57, 282−284 Overseas Development and Co-operation Act 1980 (1980 c 63) ..................................... 221 Anguilla Act 1980 (1980 c 67).......................................................... 18, 20, 60, 283, 292−293 Belize Act 1981 (1981 c 52) ..................................................................................... 280−283 Senior Courts Act 1981 (formerly called Supreme Court Act 1981) (1981 c 54) ................................................................................................................... 100 Armed Forces Act 1981 (1981 c 55) ................................................................................ 187 British Nationality Act 1981 (1981 c 61).................................... 2−6, 11, 22, 135, 198, 200, 203−204, 209, 270, 287−288 Civil Aviation Act 1982 (1982 c 16) .................................................................................. 56 British Nationality (Falkland Islands) Act 1983 (1983 c 6)...................................... 199, 203 Mental Health Act 1983 (1983 c 20) ............................................................................... 188 Mental Health (Scotland) Act 1984 (1984 c 36) .............................................................. 188 Repatriation of Prisoners Act 1984 (1984 c 47) .............................................................. 189 Hong Kong Act 1985 (1985 c 15) ................................................................................... 288 Outer Space Act 1986 (1986 c 38)..................................................................................... 56 Extradition Act 1989 (1989 c 33) ...................................................................... 56, 190−191 Antarctic Act 1994 (1994 c 15) ......................................................................................... 56 Merchant Shipping Act 1995 (1995 c 21) .......................................................................... 56 Statute Law Repeals Act 1995 (1995 c 44) ........................................................................ 52 British Nationality (Hong Kong) Act 1997 (1997 c 20) ................................................... 200 Human Rights Act 1998 (1998 c 42) ............... v, 22, 24−26, 42, 57, 92, 148, 151, 155, 167 Scotland Act 1998 (1998 c 46) .......................................................................................... 25 International Development Act 2002 (2002 c 1) ...................................................... 221−222 British Overseas Territories Act 2002 (2002 c 8) ..... vii, 2−4, 12, 22, 56, 135, 200−204, 287 European Parliamentary Elections Act 2002 (2002 c 24) ................................... 22, 273, 323 Adoption and Children Act 2002 (2002 c 38) ................................................................. 202 Nationality, Immigration and Asylum Act 2002 (2002 c 41) ........................................... 203 European Parliament (Representation) Act 2003 (2003 c 7) ........................ 22, 56, 273, 323 Extradition Act 2003 (2003 c 41) .................................................................................... 190 Domestic Violence, Crime and Victims Act 2004 (2004 c 28) ......................................... 188 Civil Partnership Act 2004 (2004 c 33) ........................................................................... 156 Immigration, Asylum and Nationality Act 2006 (2006 c 13)........................................... 201 Armed Forces Act 2006 (2006 c 52) ........................................................................ 177−178 Mental Health Act 2007 (2007 c 12) ............................................................................... 188

1 Introduction

T

HE 14 BRITISH overseas territories are all that remain of the former British Empire. Most are groups of small islands. But Gibraltar and the Sovereign Bases Areas of Akrotiri and Dhekelia in Cyprus are enclaves, and the bulk of the British Antarctic Territory fills a large slice of the Antarctic continent. Most territories have small but permanent populations, ranging from over 63,000 in Bermuda to around 50 on Pitcairn. But there is no permanent population in the British Antarctic Territory, South Georgia and the South Sandwich Islands, Ascension and the British Indian Ocean Territory. The territories span the globe, so that, in the old phrase, the sun never sets on these remains of the Empire. Bermuda lies in the North Atlantic; the Falkland Islands, South Georgia and the South Sandwich Islands, and St Helena, Ascension and Tristan da Cunha are situated in the South Atlantic; Pitcairn is in the eastern Pacific; the five territories in the Caribbean are Anguilla, the Cayman Islands, Montserrat, the Turks and Caicos Islands, and the Virgin Islands;1 Gibraltar and the Sovereign Base Areas are the two European territories; and the general location of the British Antarctic Territory and the British Indian Ocean Territory can be deduced from their names. That these territories remain British may seem anomalous. There are various reasons for their doing so. The more substantially populated territories might be expected to have moved to independence in the rush of decolonisation during the four decades following the Second World War. But none of them has done, because their peoples have not expressed a wish for independence, and the principle of self-determination underlies the United Kingdom Government’s relationship with the overseas territories. For some of the territories independence is anyway not a viable option, in particular those with a tiny, or no permanent, population. Two of the territories, the British Indian Ocean Territory and the Sovereign Base Areas in Cyprus, are retained for defence purposes. Most of the territories now have constitutional arrangements, agreed between their representatives and the United Kingdom Government, that are designed to suit modern circumstances. A few of the territories are the subject of continuing sovereignty disputes: the British Antarctic Territory (with Argentina and Chile),2 the British Indian Ocean Territory (with Mauritius), the Falkland Islands and South Georgia and the South Sandwich Islands (with Argentina), and Gibraltar (with Spain). 1 The Virgin Islands are more commonly, and internationally, known as the British Virgin Islands, to distinguish them from the neighbouring United States Virgin Islands. But in legislation of the United Kingdom, and of the territory itself, the title of the territory is simply the Virgin Islands. 2 But these disputes are held in abeyance by the Antarctic Treaty 1959 (UKTS No 97 (1961); Cmnd 1535).

2 Introduction This book is designed to serve as a manual of law and practice relating to the British overseas territories. It is principally about a special area of constitutional law, but also looks at the position of the United Kingdom and the territories in international law. It examines the relationship between the United Kingdom and the territories. It describes the various governmental powers and authorities in the territories, and some important related subjects. It looks at features of governance that are common to the various territories, and at features that are peculiar to one or other of them. The Annex describes briefly the geography, history, status, constitutional structure, courts, sources of law and economy of each territory in turn, and in some cases information about regional integration. It is first necessary to establish precisely which are the remaining British overseas territories and what are their correct names, to distinguish them from certain other entities with which they might be confused, and to be clear about terminology. THE BRITISH OVERSEAS TERRITORIES

In law, which are the British overseas territories? There are 14 of them: Anguilla Bermuda British Antarctic Territory British Indian Ocean Territory Cayman Islands Falkland Islands Gibraltar Montserrat Pitcairn, Henderson, Ducie and Oeno Islands3 St Helena, Ascension and Tristan da Cunha South Georgia and the South Sandwich Islands Sovereign Base Areas of Akrotiri and Dhekelia (that is to say the areas mentioned in section 2(1) of the Cyprus Act 19604) Turks and Caicos Islands Virgin Islands These are the territories under British sovereignty that are listed in Schedule 6 to the British Nationality Act 1981, in the terms in which they are there currently described.5 By virtue of section 1(1)(a) of the British Overseas Territories Act 2002,6 section 50(1) of the British Nationality Act 1981 includes the following definition: ‘British overseas territory’ means a territory mentioned in Schedule 6.

3

Referred to hereafter as ‘Pitcairn’. 1960 c 52. Hereafter references are to the ‘Sovereign Base Areas’. 5 1981 c 61. Schedule 6 was amended by SI 2001/3497 to add South Georgia and the South Sandwich Islands (formerly Dependencies of the Falkland Islands), and by SI 2009/2744 as regards the entry for St Helena, Ascension and Tristan da Cunha (formerly called ‘St Helena and Dependencies’). 6 2002 c 8. 4

Dependent Territories

3

Section 1(3) of the British Overseas Territories Act 2002 added the following definition to Schedule 1 to the Interpretation Act 1978:7 ‘British overseas territory’ has the same meaning as in the British Nationality Act 1981.

Section 5 of the Interpretation Act 1978 provides: In any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that Schedule.

So, in United Kingdom Acts of Parliament, unless the contrary intention appears, the term ‘British overseas territory’ means any of the 14 territories listed above, and no other territorial entity. By virtue of sections 23(1) and 26 of the Interpretation Act 1978, the same applies to subordinate legislation (as defined in section 21(1) of the Act) made after 1 January 1979. DEPENDENT TERRITORIES

It is no longer legally correct to describe the territories as ‘dependent territories’. The term ‘dependent territories’ had for some years been used to describe these territories, as well as other territories under British sovereignty (apart from the Channel Islands and the Isle of Man) that had yet to achieve independence. The term had in particular found statutory expression in the British Nationality Act 1981, but that was altered by the British Overseas Territories Act 2002. This reflected a change of nomenclature that had already occurred informally. Paragraph 4 of the Explanatory Notes for the 2002 Act states: After consultation with these territories, the British Government published in March 1999 a White Paper entitled ‘Partnership for Progress and Prosperity: Britain and the Overseas Territories’ (Cm 4264). This dealt with several aspects of Britain’s relationship with the territories, including the decision that they should be known as ‘overseas territories’ in place of outdated terms such as ‘dependent territories’ or ‘colonies’. The term ‘overseas territories’ is now in common use both within the territories and as between their governments and the British Government.

Section 1(1) of the British Overseas Territories Act 2002 opens with the words: As the territories mentioned in Schedule 6 to the British Nationality Act 1981 are now known as ‘British overseas territories’.

It then amends the 1981 Act in three ways: (a) by inserting in section 50(1) of that Act a definition of ‘British overseas territory’ as meaning a territory mentioned in Schedule 6 to that Act; (b) by substituting ‘British overseas territory’ or ‘British overseas territories’ for ‘dependent territory’ or ‘dependent territories’ wherever occurring in that Act; and

7

1978 c 30.

4 Introduction (c) by substituting ‘British Overseas Territories’ for ‘British Dependent Territories’ in the heading to Schedule 6 to that Act. Section 1(2) of the British Overseas Territories Act 2002 goes further. It provides: In any other enactment passed or made before the commencement of this section (including an enactment comprised in subordinate legislation), any reference to a dependent territory within the meaning of the British Nationality Act 1981 shall be read as a reference to a British overseas territory.8

Thus the 2002 Act marked the formal transition from the description ‘dependent territory’ to ‘British overseas territory’. COLONIES

Are the territories still, legally, ‘colonies’? The British Overseas Territories Act 2002 did not expunge the term ‘colony’, which continues in several enactments passed or made before 2002. The term ‘colony’ remains in Schedule 1 to the Interpretation Act 1978, and is defined as follows: ‘Colony’ means any part of Her Majesty’s dominions outside the British Islands except (a) countries having fully responsible status within the Commonwealth; (b) territories for whose external relations a country other than the United Kingdom is responsible; (c) associated states; and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature are deemed for the purposes of this definition to be one colony.

All 14 British overseas territories fall within this definition, and are therefore (unless the contrary intention appears in any particular enactment) within the meaning of references to ‘colony’ in existing United Kingdom legislation.9 But, although the modern term ‘British overseas territory’ is thus interchangeable with the outdated term ‘colony’ in British statute law, the modern term is nowadays the one invariably used, both in formal and informal documents. This applies most importantly to Acts of Parliament and subordinate legislation drafted since the enactment of the British Overseas Territories Act 2002. The term ‘Crown colony’ is sometimes informally used, but its precise meaning is unclear and it is therefore better avoided.10 HER MAJESTY’S DOMINIONS

Do the territories form part of Her Majesty’s dominions? Although not defined in the Interpretation Act 1978, the term ‘Her Majesty’s dominions’ is understood to embrace all countries and territories of which the Queen is Head of State; or as Roberts-Wray

8 9 10

The section commenced on 26 February 2002, the date of Royal Assent. Or at least in any Act passed after 1889: see Interpretation Act 1978 sch 2 para 4(1)(a). K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 44–45.

The Channel Islands and the Isle of Man 5 puts it: ‘Her Majesty’s dominions may be said to comprise all territories which “belong to” the Crown or are in the “ownership” of the Crown’.11 The term therefore includes the United Kingdom and all of the British overseas territories. It also includes those independent States of which Her Majesty is sovereign, such as Australia, Canada and New Zealand. These States are excluded from the definition of ‘colony’ in the Interpretation Act 1978 because they are ‘countries having fully responsible status within the Commonwealth’. By contrast, British overseas territories do not have this status, not having yet achieved independence. BRITISH POSSESSIONS

Are the territories, in law, ‘British possessions’? All British overseas territories fall within the definition of ‘British possession’ in the Interpretation Act 1978. This definition reads as follows: ‘British possession’ means any part of Her Majesty’s dominions outside the United Kingdom; and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature are deemed, for the purposes of this definition, to be one British possession.

This definition is evidently very wide. It embraces all countries and territories of which the Queen is monarch except the United Kingdom. The term British possession is therefore anomalous as far as the independent States covered by it are concerned. Although the term appears in some statutes, its use in modern times is rare. THE UNITED KINGDOM

Do the territories form part of the United Kingdom? Each British overseas territory is constitutionally separate from the United Kingdom. In terms of British statute law, ‘the United Kingdom’ is defined in the Interpretation Act 1978 as Great Britain and Northern Ireland. This plainly excludes the British overseas territories. THE BRITISH ISLANDS

Do the island territories form part of ‘the British Islands’? As a matter of British statute law, they do not. The term ‘British Islands’ is defined in the Interpretation Act 1978 as meaning the United Kingdom, the Channel Islands and the Isle of Man. THE CHANNEL ISLANDS AND THE ISLE OF MAN

Is the status of the territories the same as that of the Channel Islands and the Isle of Man? The Channel Islands and the Isle of Man have some similarities to the overseas territories, in that none of those islands is constitutionally part of the United Kingdom 11

Ibid 23.

6 Introduction while remaining under British sovereignty. But the Channel Islands and the Isle of Man, usually referred to collectively as the Crown Dependencies, are treated separately as a matter of United Kingdom law. Hence they are not listed with the British overseas territories in Schedule 6 to the British Nationality Act 1981, and accordingly they fall outside the definition of ‘British overseas territory’ in the Interpretation Act 1978. This book is not concerned with the Channel Islands or the Isle of Man. PROTECTORATES, PROTECTED STATES AND ASSOCIATED STATES

There are currently no protectorates, protected states or associated states for which the United Kingdom is responsible. In former times there were different categories of overseas territory under British sovereignty or protection or in which the United Kingdom exercised jurisdiction. The main common feature was that the United Kingdom was responsible for the external relations of all of them. The majority were ‘colonies’, over which the United Kingdom had full sovereignty, and each of the remaining British overseas territories fell into that category, either on its own account or as a part or dependency of another colony.12 Other categories were ‘protectorates’ (the last being the Solomon Islands), some of which were in constitutional terms assimilated to colonies;13 ‘protected states’ (such as Brunei and Tonga); and there was even the ‘condominium’ of the New Hebrides, which before it achieved independence as Vanuatu was administered jointly by the United Kingdom and France. In these categories of territory the United Kingdom exercised jurisdiction to varying degrees. Finally there were ‘associated states’, which were six Caribbean territories in a special status of association with the United Kingdom under the West Indies Act 1967.14 All of these achieved independence, the last being St Christopher and Nevis (without Anguilla) in 1983. The position today is therefore a great deal simpler than it was in times past. We need consider only one category, and the United Kingdom has full sovereignty over each of the remaining British overseas territories. MEANS OF ACQUISITION OF THE TERRITORIES

Territories may be acquired by settlement, cession, conquest or annexation, or any combination of two of these. Every territory must be assigned, for the purposes of constitutional law, to one or other of these means of acquisition. This is a matter of law, and once assigned by practice or judicial decision this will not be disturbed by historical research.15 A territory acquired by the Crown by settlement was a consequence of the fact of settlement by British subjects in a place where there was no population or no form of government considered civilised and recognised in international law.16 Of the 12 Although Anguilla spent some years after 1967 as part of the associated state of St Christopher, Nevis and Anguilla, before formally resuming its legal status as a colony in 1980. 13 By virtue of Orders in Council made under the Foreign Jurisdiction Act 1890 (1890 c 37). 14 1967 c 4. The original six were Antigua; Dominica; Grenada; St Christopher, Nevis and Anguilla; St Lucia; and St Vincent. 15 Christian v R [2006] UKPC 47, [2007] 2 AC 400 (PC) (Lord Hope) para 47, in which the Judicial Committee of the Privy Council confirmed that Pitcairn was acquired by settlement. 16 Halsbury’s Laws of England, vol 13, 5th edn (London, Lexis Nexis, 2009) para 801.

Means of Acquisition of the Territories 7 remaining British overseas territories, the following were acquired by settlement in this sense: Anguilla, Bermuda, the Cayman Islands, the Falkland Islands, Montserrat, Pitcairn, St Helena, Ascension and Tristan da Cunha, the Turks and Caicos Islands, the Virgin Islands and, at least partly, South Georgia and the South Sandwich Islands.17 Most of these territories are not treated as ‘British settlements’ for the purposes of the British Settlements Acts 1887 and 1945, because of the special definition of that term in the 1887 Act.18 But that does not affect their classification as territories acquired by settlement. A territory may be acquired by the Crown by cession under a treaty or agreement or by more informal means. Cession may be made by the government of a State or by the inhabitants.19 Of the present British overseas territories Gibraltar (from Spain) and the British Indian Ocean Territory (from France) were acquired by cession.20 Some former territories were acquired by the Crown by conquest resulting from armed force. None of the remaining British overseas territories was acquired by conquest.21 Annexation of a territory describes the process of unilateral acquisition by the Crown in the absence of settlement, cession or conquest.22 Annexation was effected in British constitutional law by formal instrument. It was particularly appropriate for the acquisition of remote territories where proper settlement was impracticable. It was therefore the method of formal acquisition of the territories now forming the British Antarctic Territory and (in part) South Georgia and the South Sandwich Islands,23 although these territories are treated as British settlements for the purposes of the British Settlements Acts 1887 and 1945.24 But remoteness is not the only circumstance. Annexation was probably also the original basis for the acquisition of the territory comprising the Sovereign Base Areas, though it could be argued that Cyprus was acquired by cession or conquest.25 The Annex specifies in more detail how each territory was acquired. The manner of acquisition of a territory matters in two main contexts. The first relates to the power of the sovereign to legislate for the territory in exercise of the Royal prerogative. At common law the sovereign had (at least initially)

17 In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529 (HL), Lord Bingham states (para 2): ‘SGSSI was acquired by the Crown by settlement. Its government was established under the British Settlements Acts 1887 and 1945.’ Halsbury’s Laws of England, vol 13, n 16 above, states at para 863: ‘The territories of South Georgia and South Sandwich Islands were acquired by the Crown by annexation and settlement’. 18 1887 c 54 and 1945 c 7. See further ch 2, pp 15–16 below. 19 Cession by a State is more usual, but in Sammut v Strickland [1938] AC 678, the Privy Council considered the possibility that Malta was ceded to the Crown by its people, and Roberts-Wray considers that it was so ceded: see Commonwealth and Colonial Law, n 10 above, 685–86. In Christian v R, n 15 above, the Privy Council did not accept the argument that Pitcairn was acquired by cession from the inhabitants of the island: paras 11 and 47. 20 And possibly the Sovereign Base Areas: see n 25 below. The House of Lords confirmed that the British Indian Ocean Territory was acquired by cession in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL). 21 With the possible exception of the Sovereign Base Areas: see n 25 below. 22 This is not treated as a separate means of acquisition in Halsbury’s Laws of England, vol 13, n 16 above, para 801. But it is in Roberts-Wray, Commonwealth and Colonial Law, n 10 above, 107–08, and that analysis seems more convincing. 23 These territories were first defined by Letters Patent of 21 July 1908 and extended by Letters Patent of 28 March 1917 (SRO & SI Rev VII, 583 and 585). See also n 16 above. 24 1887 c 54 and 1945 c 7. 25 See the discussion in Roberts-Wray, Commonwealth and Colonial Law, n 10 above, 108–10.

8 Introduction full prerogative power in relation to territories acquired by cession, conquest or annexation,26 but not in relation to territories acquired by settlement.27 This is considered further in chapter four. The second concerns the underlying law in force in a territory. Broadly speaking, in territories acquired by settlement the settlers took with them the law of England as in force at the time of settlement, so far as applicable to their new situation, and this continued to apply until altered or replaced by later legislation.28 By contrast, in ceded or conquered territories the law in force in the territory at the time of acquisition continued until altered or replaced by later legislation.29 This is considered more fully in chapter eight. As to what is the territory of the Crown, the courts will normally regard statements of the executive as conclusive. The Judicial Committee of the Privy Council confirmed this in Christian v R, accepting a direction by the Secretary of State and two Orders in Council concerning the government of Pitcairn as affirmations that Pitcairn is part of the territory of the Crown.30 The Judicial Committee also quoted the following passage by Atkin LJ in The Fagernes:31 What is the territory of the Crown is a matter of which the Court takes judicial notice. The Court has, therefore, to inform itself from the best material available; and on such a matter it may be its duty to obtain its information from the appropriate department of Government. Any definite statement from the proper representative of the Crown as to the territory of the Crown must be treated as conclusive.

COLONIAL BOUNDARIES

The boundaries of some overseas territories are set out in Orders in Council.32 As to the alteration of a territory’s boundaries, section 1(1) of the Colonial Boundaries Act 189533 provides: Where the boundaries of a colony have, either before or after the passing of this Act, been altered by Her Majesty the Queen by Order in Council or letters patent the boundaries

26 Campbell v Hall (1774) 1 Cowp 204; Phillips v Eyre (1870) LR 6 QB 1; Sammut v Strickland [1938] AC 678 (PC); as regards territories acquired by annexation, see Roberts-Wray, Commonwealth and Colonial Law, n 10 above, 163–64. 27 Phillips v Eyre, n 26 above; Sammut v Strickland, n 26 above. 28 Blackstone, Commentaries on the Laws of England, 15th edn (London, T Cadell and W Davies, 1809) vol 1, pp 106-07; Blankard v Galdy (1693) 2 Salk 411; Roberdeau v Rous (1738) 1 Atk 543. Recently confirmed by the Judicial Committee of the Privy Council in Christian v R, n 15 above . 29 Blackstone, n 28 above; Campbell v Hall (1774) 1 Cowp 204. Recently confirmed in Christian v R, n 15 above, and by the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL). 30 Christian v R, n 15 above, para 10. But Lord Woolf, while accepting as overwhelming the evidence that Pitcairn is and was at all material times a British possession, warned that nowadays an executive statement might be judicially reviewed ‘if a proper foundation for the review is established’: see para 33. 31 The Fagernes [1927] P 311, 324. 32 British Antarctic Territory Order 1989 (SI 1989/842); South Georgia and South Sandwich Islands Order 1985 (SI 1985/449); Sovereign Base Areas of Akrotiri and Dhekelia (Boundaries) Order in Council 1962 (SI 1962/396). The British Indian Ocean Territory (Constitution) Order 2004 (reproduced at Annex, p 305 below) lists the islands comprising the Territory. 33 1895 c 34.

The Territories’ Constitutional Arrangements 9 as so altered shall be, and be deemed to have been from the date of the alteration, the boundaries of the colony.

This wording, including its retroactive effect, suggests that the Act was passed to remove doubts. In practice the Act has been cited as part of the legal basis for Orders in Council altering the boundaries of overseas territories.34

COMMONWEALTH MEMBERSHIP

The British overseas territories are within the Commonwealth by virtue of the membership of the United Kingdom. The territories are not separate members in their own right, because they are not sovereign States. Representatives of the territories may attend Commonwealth meetings as part of the United Kingdom delegation, and in some specialised groups of small jurisdictions they attend separately from the United Kingdom.

THE TERRITORIES’ CONSTITUTIONAL ARRANGEMENTS

Each British overseas territory is a constitutional unit separate from the others and from the United Kingdom. The Annex describes the main constitutional features of each territory. The legal basis for each territory’s constitution, and the constitutional relationship between the territories and the United Kingdom, are considered in chapter two. Each territory has a government separate from the Government of the United Kingdom. As Her Majesty is the Queen of all of the overseas territories, the government of each territory is Her Majesty’s Government and is headed by Her representative in or for the territory, the Governor35 or an equivalent.36 The office of Governor is discussed in chapter three. The United Kingdom Government is commonly referred to as ‘Her Majesty’s Government’ (or ‘HMG’), to distinguish it from the government of a territory. But that is inaccurate, because the government of each territory is a government of Her Majesty and therefore entitled to the same description. The correct formula, when referring to the United Kingdom Government, is ‘Her Majesty’s Government in the United Kingdom’, and when referring, for example, to the Gibraltar Government, it is ‘Her Majesty’s Government in Gibraltar’.

34 Eg. British Indian Ocean Territory Order 1965 (SI 1965/1920), which constituted the new colony of the British Indian Ocean Territory from islands that were previously part of Mauritius and Seychelles and therefore altered the boundaries of those colonies. 35 There is a Governor of each of the following: Anguilla, Bermuda, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn, St Helena, Ascension, Tristan da Cunha, the Turks and Caicos Islands, and the Virgin Islands. 36 For the British Antarctic Territory, the British Indian Ocean Territory, and South Georgia and the South Sandwich Islands the equivalent to a Governor is a Commissioner, and in the Sovereign Base Areas the equivalent is an Administrator.

10 Introduction In the less populated territories executive power is exercised on Her Majesty’s behalf largely by the Governor (or equivalent office-holder).37 In territories with permanent populations the Governor is advised by an elected executive body, variously called a Cabinet,38 Executive Council,39 Council of Ministers,40 or Island Council.41 In the larger territories this body itself exercises direct executive power, or gives binding advice to the Governor, on a wide range of matters. Executive authority and controls in the territories are examined in chapter five. Each territory has its own legislature, which enacts the great majority of laws for the territory. In the less populated territories the Governor (or equivalent) is the legislature.42 In nine territories there is an elected legislative body which debates and passes bills and submits them for assent by the Queen or the Governor on Her behalf.43 Laws may also be made for the territories by United Kingdom Act of Parliament, or by Order in Council made by Her Majesty on the advice of United Kingdom Ministers. Legislative authority and controls in the territories are considered in chapter four. Each territory has its own judicial system, with its own system of courts. In some cases superior courts are shared.44 Final appeal from all territories lies to the Judicial Committee of the Privy Council. Judicial authority in the territories is discussed in chapter six. THE LAWS OF THE TERRITORIES

Each territory has its own law, largely consisting of its own statute book of local enactments, which is distinct from that of the United Kingdom (or any part of it), although some United Kingdom laws form part of a territory’s corpus of law.45 The sources of law in the territories are described in chapter eight.

37 British Antarctic Territory, British Indian Ocean Territory, South Georgia and the South Sandwich Islands, Sovereign Base Areas. 38 Bermuda, Cayman Islands, Montserrat, Turks and Caicos Islands, Virgin Islands. At the time of writing the Cabinet in the Turks and Caicos Islands had been suspended, the Governor exercising executive power with an Advisory Council: see Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (SI 2009/701). 39 Anguilla, Falkland Islands, St Helena. 40 Gibraltar. 41 Ascension, Tristan da Cunha, Pitcairn. 42 Ascension, British Antarctic Territory, British Indian Ocean Territory, Pitcairn, South Georgia and the South Sandwich Islands, Sovereign Base Areas, and Tristan da Cunha. But the Governor must consult the local Island Council before legislating for Ascension, Tristan da Cunha, or (in normal circumstances) Pitcairn. 43 Anguilla, Bermuda, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, St Helena, Turks and Caicos Islands, and Virgin Islands. At the time of writing the elected House of Assembly of the Turks and Caicos Islands had been dissolved and constitutional provision for it suspended, sole legislative power vesting instead in the Governor: see SI 2009/701, n 38 above. 44 Anguilla, Montserrat and the Virgin Islands share the High Court and Court of Appeal of the Eastern Caribbean Supreme Court with the six independent former associated states: Antigua and Barbuda, Dominica, Grenada, St Christopher and Nevis, St Lucia, and St Vincent and the Grenadines. The Falkland Islands Supreme Court and Court of Appeal have jurisdiction in respect of South Georgia and the South Sandwich Islands, and the Falkland Islands Supreme Court has jurisdiction in respect of the British Antarctic Territory. The Supreme Court and Court of Appeal of St Helena are also the superior courts for Ascension and Tristan da Cunha. 45 Either directly, or by incorporation through local legislation, or by the operation of common law.

The Nationality of the Territories’ Inhabitants 11 HUMAN RIGHTS PROTECTION

There is a high level of human rights protection in the territories. The constitutions of most of them define in detail the fundamental rights and freedoms of the individual and provide for their enforcement by the courts.46 Some territories have established local human rights bodies with investigative, mediation and educational functions.47 The European Convention on Human Rights48 has been extended to all except the British Antarctic Territory, the British Indian Ocean Territory and Pitcairn,49 and the right of individual petition has been accepted in respect of them. Several other human rights treaties have been extended to many of the territories, some involving regular reports to international monitoring bodies, though the position is far from uniform throughout the territories. Human rights protection in the territories is examined in chapter nine. DEFENCE AND SECURITY

The defence and security of the territories is an important responsibility of the United Kingdom. For this reason these matters remain locally among the constitutional responsibilities of the Governor. British armed forces are stationed in the Falkland Islands, Gibraltar, Ascension, the British Indian Ocean Territory and the Sovereign Base Areas. Pursuant to various treaties, United States armed forces are stationed on Ascension and on Diego Garcia in the British Indian Ocean Territory. Each substantially populated territory has its own police force for the maintenance of security and public order, and while each of these forces has operational independence it is a constitutional responsibility of the Governor. But security, law and order are naturally of local political concern, and some territories have local security bodies, with local politicians among their membership, to advise Governors.50 In all territories Governors are invested with powers which occasionally need to be invoked to deal with emergencies. In recent years these have proved necessary to respond to natural disasters, such as volcanic eruptions in Montserrat and hurricanes in the Cayman Islands. These matters are discussed in chapter ten. THE NATIONALITY OF THE TERRITORIES’ INHABITANTS

Most of the inhabitants of the overseas territories are British overseas territories citizens, by virtue of the British Nationality Act 198151 as amended by the British

46 The exceptions are the British Antarctic Territory, the British Indian Ocean Territory, South Georgia and the South Sandwich Islands, and the Sovereign Base Areas. 47 Eg. Bermuda, the Cayman Islands and the Virgin Islands. 48 UKTS No 71 (1953); Cmd 8969. 49 At the time of writing the extension of the Convention to Pitcairn was under consideration by the United Kingdom Government. 50 Eg Bermuda, the Cayman Islands and the Virgin Islands. 51 1981 c 61.

12 Introduction Overseas Territories Act 2002.52 In addition, most of those who are British overseas territories citizens by virtue of a connection with any overseas territory except the Sovereign Base Areas are British citizens, by virtue of the British Overseas Territories Act 2002. In consequence, the vast majority have both British citizenship (which gives them the right of abode in the United Kingdom) and British overseas territories citizenship (which does not). It is important not to confuse nationality, which is governed by United Kingdom statutes, with the status of ‘belonger’ in a territory. The latter is a status granted by the legislation of the more populated territories, and normally carries with it the right of abode in the territory and certain other privileges not enjoyed by people who do not possess that status, such as the right to vote. The term ‘belonger’ is used generically for this purpose. In some territories the term ‘belonger’, or a person who ‘belongs’ to the territory, is used in legislation. In others the status is given a different name, for example ‘Caymanian’ and ‘Gibraltarian status’. These matters are considered in chapter eleven. PUBLIC FINANCE

Each territory has its own public funds, its own revenue-raising powers and rules governing public expenditure, and its own audit arrangements. While the territories are expected to be self-financing as far as possible, financial assistance is granted to several territories by the United Kingdom and the European Union. The system of public finance in the territories is described in chapter twelve. THE TERRITORIES IN INTERNATIONAL LAW

The overseas territories are plainly not independent sovereign States. Their external relations remain the responsibility of the United Kingdom, the sovereign power. Accordingly, the United Kingdom is responsible for each of the territories under international law. The United Kingdom has treaty-making power in respect of the territories, and very many treaties concluded by the United Kingdom have been extended to the territories. The more substantially populated territories, however, have for some time conducted various forms of external relations in their own names, including the negotiation and conclusion of international agreements, by virtue of authority granted by the United Kingdom. Some are members of international organisations on their own account, again by virtue of authority granted by the United Kingdom. Almost all the territories with permanent populations are accepted by the United Kingdom as territories within the scope of Article 73 of the United Nations Charter,53 and the United Kingdom Government makes annual reports in respect of them to the United Nations. These and related matters are discussed in chapters thirteen and fourteen.

52 53

2002 c 8. UKTS No 67 (1946); Cmd 7015.

The Termination of British Sovereignty 13 THE TERRITORIES AND THE EUROPEAN UNION

The relationship of the territories with the European Union is not uniform. The European territories of Gibraltar and the Sovereign Base Areas are within the European Union for certain, defined purposes. The other territories have the status of ‘overseas countries and territories’ for the purposes of Part Four of the Treaty on the Functioning of the European Union and are listed as such in Annex II to that Treaty. This topic is considered in chapter fifteen. THE TERMINATION OF BRITISH SOVEREIGNTY

In practice, sovereignty over British territories has terminated either upon their achieving independence or by their transfer to another State. The legal steps, and past practice, relating to the termination of British sovereignty are examined in chapter sixteen.

2 Constitutional Arrangements

E

ACH BRITISH OVERSEAS territory is a separate constitutional unit, and accordingly is a distinct legal jurisdiction. None is constitutionally a part of the United Kingdom. Each territory has its own constitution and is administered separately from the others. But at the same time each territory has a constitutional relationship with the United Kingdom, the sovereign power. Later chapters examine some of the key features of the territories’ constitutions. This chapter considers the legal basis for their constitutions, and the constitutional relationship between the territories and the United Kingdom. Important elements of both of these matters are the power of the United Kingdom Parliament and the position of the Crown. This chapter also discusses the powers and procedure for constitutional amendment and review, and describes the substance of recent constitutional reforms. THE LEGAL BASIS FOR THE TERRITORIES’ CONSTITUTIONS

Each British overseas territory has a distinct written constitution, designed to suit its circumstances. In this important respect each territory differs from the United Kingdom, which has no single constitutional instrument. The constitutions of the overseas territories differ from each other, although they have several features in common; indeed some provisions are worded identically. The constitution of each territory is contained in an Order in Council. Thus it is legally enacted by Her Majesty the Queen, by and with the advice of Her Privy Council, acting on the recommendation of United Kingdom Ministers. But the legal basis for such Orders in Council differs as between the various territories. At common law the sovereign has prerogative power to establish a constitution for any of the territories.1 The prerogative remains the sole constituent power for Gibraltar and the British Indian Ocean Territory. For all the other territories there is a statutory constituent power, but in most cases that does not appear to have been treated as exclusive. The Orders in Council providing constitutions for all except Anguilla and Bermuda recite not only the relevant statutory power but add words such as ‘or otherwise in Her Majesty vested’2 or ‘and of all other powers enabling Her to do so’.3 This suggests that the relevant statutes were not considered to have displaced the prerogative power entirely, or that some matters in the Orders 1 2 3

Phillips v Eyre (1870) LR 6 QB 1. Eg British Antarctic Territory Order 1989 (SI 1989/842). Eg Falkland Islands Constitution Order 2008 (SI 2008/2846).

The Legal Basis for the Territories’ Constitutions 15 required citation of prerogative powers. In any case the practice has been generally consistent. Even in the cases of Anguilla and Bermuda, where the main constitution Orders recite only the relevant statutory powers, Orders amending them also recite other (unspecified) powers of Her Majesty.4

A. Constitutions Made under Statutory Powers The constitutions of twelve of the British overseas territories are made under powers granted by Acts of the United Kingdom Parliament. The Acts in question are the following. 1. British Settlements Acts 1887 and 19455 These Acts are the statutory legal basis for the constitutions of the following territories: Ascension, the British Antarctic Territory, the Falkland Islands, Pitcairn, South Georgia and the South Sandwich Islands, and Tristan da Cunha. Ascension and Tristan da Cunha are administered as a single territorial grouping with St Helena, so a single constitution governs all three, on the basis also of the power provided by the Saint Helena Act 1833.6 The 1887 Act contains a special definition of ‘British settlement’. Section 6 provides: For the purposes of this Act, the expression ‘British possession’ means any part of Her Majesty’s possessions out of the United Kingdom, and the expression ‘British settlement’ means any British possession which has not been acquired by cession or conquest, and is not for the time being within the jurisdiction of the Legislature, constituted otherwise than by virtue of this Act or of any Act repealed by this Act, of any British possession.

Although the territories now forming the British Antarctic Territory were acquired by annexation, as were (at least partially) South Georgia and the South Sandwich Islands,7 they were acquired otherwise than by cession or conquest. Neither is within the jurisdiction of a territory legislature constituted otherwise than by virtue of the Act. They therefore fall within the definition and are treated as ‘British settlements’ for the purposes of the Acts. Most of the territories acquired by settlement fall outside the definition, because they have their own legislatures constituted otherwise than by virtue of the Act. These territories are the subject of the other statutes referred to below. The main constituent powers in the British Settlements Acts for the territories listed above are set out in sections 2 and 5 of the 1887 Act, as follows: 2. It shall be lawful for Her Majesty The Queen in Council from time to time to establish any such laws and institutions, and constitute such courts and officers, and make such

4 Eg Anguilla Constitution (Amendment) Order 1990 (SI 1990/587); Bermuda Constitution (Amendment) Order 2003 (SI 2003/456). 5 1887 c 54 and 1945 c 7. 6 1833 c 85; see further below. 7 See ch 1, p 7 above.

16 Constitutional Arrangements provisions and regulations for the proceedings in the said courts and for the administration of justice, as shall appear to Her Majesty in Council to be necessary for the peace, order and good government of Her Majesty’s subjects and others within any British settlement. … 5. It shall be lawful for Her Majesty The Queen in Council from time to time to make, and when made to alter and revoke, Orders for the purposes of this Act.

In addition, as amended by the 1945 Act, section 3 of the 1887 Act provides: 3. It shall be lawful for Her Majesty The Queen from time to time, by any instrument passed under the Great Seal of the United Kingdom including any Order of Her Majesty in Council, or by any instructions under Her Majesty’s Royal Sign Manual referred to in such instrument as made or to be made, as respects any British settlement, to delegate to any specified person or persons or authority within the settlement all or any of the powers conferred by this Act on Her Majesty in Council, either absolutely or subject to such conditions, provisions, and limitations as may be specified in such instrument or instructions: Provided that, notwithstanding any such delegation, the Queen in Council may exercise all or any of the powers under this Act; provided always, that every such instrument or instruction as aforesaid shall be laid before both Houses of Parliament as soon as conveniently may be after the making and enactment thereof respectively.

The powers conferred by the British Settlements Acts have been held by the Court of Appeal to be plenary powers.8 The current constitutions of the territories covered by the British Settlements Acts are set out in the St Helena, Ascension and Tristan da Cunha Constitution Order 20099 (for Ascension and Tristan da Cunha); the British Antarctic Territory Order 1989;10 the Falkland Islands Constitution Order 2008;11 the Pitcairn Constitution Order 2010;12 and the South Georgia and South Sandwich Islands Order 1985, as amended.13 2. Saint Helena Act 183314 This Act was originally called the Government of India Act 1833. Section 112 deals with St Helena. All sections of the original Act have been repealed, except for section 112. The present short title of the Act was given by the Statute Law Revision Act 1948.15 Section 112, which is the statutory legal basis for the Constitution of St Helena, provides: The island of St Helena, and all forts, factories, public edifices, and hereditaments whatsoever in the said island, and all stores and property thereon fit or used for the service

8 9 10 11 12 13 14 15

Sabally and N’Jie v Attorney-General [1965] 1 QB 273. SI 2009/1751. SI 1989/842. SI 2008/2846. SI 2010/244. SI 1985/449, as amended by SI 1995/1621. 1833 c 85. 1948 c 62.

The Legal Basis for the Territories’ Constitutions 17 of the government thereof, shall be vested in His Majesty, and the said island shall be governed by such orders as His Majesty in Council shall from time to time issue in that behalf.

The current Constitution of St Helena is set out in the St Helena, Ascension and Tristan da Cunha Constitution Order 2009.16 3. West Indies Act 196217 This Act is the statutory legal basis for the constitutions of the Cayman Islands, Montserrat, the Turks and Caicos Islands, and the Virgin Islands. The constituent powers in the West Indies Act 1962 for these four territories are set out in sections 5 and 7, which provide (as far as material) as follows: 5.-(1) Her Majesty may by Order in Council make such provision as appears to Her expedient for the government of any of the colonies to which this section applies, and for that purpose may provide for the establishment for the colony of such authorities as She thinks expedient and may empower such of them as may be specified in the Order to make laws either generally for the peace, order and good government of the colony or for such limited purposes as may be so specified subject, however, to the reservation to Herself of power to make laws for the colony for such (if any) purposes as may be so specified. … (5) The colonies to which this section applies are those included at the passing of this Act in the Federation, and the Virgin Islands.18 … 7.-(1) An Order in Council under any provision of this Act may make or provide for the making of such incidental, consequential or transitional provisions as may appear to Her Majesty in Council to be necessary or expedient. (2) Any power conferred by this Act to make an Order in Council shall be construed as including power to vary or revoke the Order in Council by a subsequent Order in Council. (3) … a statutory instrument containing an Order in Council under this Act which does not adapt or modify an Act shall be laid before Parliament after being made.

The power conferred by section 5(1) has been held to be a plenary power.19 The current constitutions of the four territories are set out in the Cayman Islands Constitution Order 2009;20 the Montserrat Constitution Order 2010;21 the Turks

16

SI 2009/1751. 1962 c 19. 18 The ‘Federation’ was the Federation of the West Indies established under the British Caribbean Federation Act 1956 (1956 c 63). The Cayman Islands, Montserrat and the Turks and Caicos Islands were included in the Federation at the passing of the West Indies Act 1962. 19 R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1039 (Admin), upheld by the Court of Appeal: [2009] EWCA Civ 1549. 20 SI 2009/1379. 21 SI 2010/2474. 17

18 Constitutional Arrangements and Caicos Islands Constitution Order 2006, subject to the Turks and Caicos Islands Constitution (Interim Amendment) Order 2009;22 and the Virgin Islands Constitution Order 2007.23 4. Bermuda Constitution Act 196724 This Act provides the statutory legal basis for the Constitution of Bermuda. The material provisions are in section 1(1), (3) and (4): (1) Her Majesty may by Order in Council make such provision as appears to Her expedient for the government of Bermuda. … (3) Any Order in Council under this section may be varied or revoked by a subsequent Order in Council thereunder, but otherwise shall not be capable of being varied or revoked except by Act of Parliament. (4) Any Order in Council under this section shall be laid before Parliament after being made.

The current Constitution is set out in the Bermuda Constitution Order 1968, as amended.25 5. Anguilla Act 198026 This Act provides the statutory legal basis for the Constitution of Anguilla. The relevant provision is section 1(2): Her Majesty may by Order in Council make such provision as appears to Her expedient for and in connection with the government of Anguilla.

There is no express provision in this Act enabling an Order in Council made under section 1(2) to be varied or revoked. This was unnecessary because its enactment post-dated the Interpretation Act 1978,27 section 14 of which provides for an implied power to amend or revoke Orders in Council made under an Act. The current Constitution is set out in the Anguilla Constitution Order 1982, as amended.28

22 SI 2006/1913, as amended by SI 2009/701 (which temporarily suspended the parts of the Constitution concerning the Cabinet, ministerial government and the House of Assembly, and substituted alternative arrangements for the exercise of executive and legislative powers). 23 SI 2007/1678. 24 1967 c 63. 25 SI 1968/182, as amended by SI 1968/463, 1968/726, 1973/233, 1979/452, 1979/1310, 1989/151, 2001/2579, 2003/456. 26 1980 c 67. 27 1978 c 30. 28 SI 1982/334, as amended by SI 1983/1108 and 1990/587.

The Legal Basis for the Territories’ Constitutions 19 6. Cyprus Act 196029 This Act provides the statutory legal basis for the Constitution of the Sovereign Base Areas of Akrotiri and Dhekelia. Section 2(1) provides: The Republic of Cyprus shall comprise the entirety of the Island of Cyprus with the exception of the two areas defined as mentioned in the following subsection, and— (a) nothing in the foregoing section shall affect Her Majesty’s sovereignty or jurisdiction over those areas; (b) the power of Her Majesty to make or provide for the making of laws for the said areas shall include power to make such laws (relating to persons or things either within or outside the areas) and such provisions for the making of laws (relating as aforesaid) as appear to Her Majesty requisite for giving effect to arrangements with the authorities of the Republic of Cyprus.

Section 2(1)(b) is drafted in terms that confirm and amplify a pre-existing prerogative power of Her Majesty to make both constitutional provision and ordinary laws for the Sovereign Base Areas. The current Constitution is the Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960, as amended.30

B. Constitutions Made Exclusively by Prerogative Powers The Constitutions of two British overseas territories are contained in Orders in Council made exclusively by virtue of the Royal prerogative. These are Gibraltar and the British Indian Ocean Territory. The reason for this apparent anomaly is that, by contrast with the other territories, no Act of Parliament has been passed that deals with their constitutional arrangements. Neither territory is within the scope of the British Settlements Acts 1887 and 1945, because each was acquired by cession and thus falls outside the definition of ‘British settlement’ for the purposes of those Acts. In territories acquired by cession, as these two are, the Crown has full prerogative power to establish such legislative, executive and judicial arrangements as it thinks fit, and generally to act legislatively and executively, provided the provisions made by the Crown do not contravene any Act of Parliament extending to the territory or to all British territories.31 Full constituent and legislative power has been expressly reserved to the Crown in the constitutional Orders in Council of these two territories, thus avoiding the operation of the common law rule that by establishing legislatures for these territories (or at least Gibraltar, which has an elected legislative body) the prerogative power would otherwise be lost.32

29

1960 c 52. SI 1960/1369, as amended by SI 1966/1415. 31 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL); Phillips v Eyre, n 1 above; Campbell v Hall (1774) 1 Cowp 204; Halsbury’s Laws of England, vol 13, 5th edn (London, LexisNexis, 2009) para 808. 32 Sammut v Strickland [1938] AC 678 (PC). See Gibraltar Constitution Order 2006 Annex 2 s 8; British Indian Ocean Territory (Constitution) Order 2004 s 15. 30

20 Constitutional Arrangements The current Constitution of Gibraltar is set out in the Gibraltar Constitution Order 2006,33 and the current Constitution of the British Indian Ocean Territory is the British Indian Ocean Territory (Constitution) Order 2004.34

C. Parliamentary Scrutiny of Constitution Orders The statutory powers of the United Kingdom Parliament to control or scrutinise Orders in Council providing constitutions for overseas territories are limited. Parliament itself has made inconsistent provision for this in the Acts mentioned above. Orders in Council providing such constitutions under the British Settlements Acts 1887 and 1945, the West Indies Act 1962 and the Bermuda Constitution Act 1967 must be laid before Parliament after being made.35 But that is all. They do not require an affirmative resolution in either House, and they are not subject to annulment by resolution of either House.36 By contrast, constitution Orders made under the Saint Helena Act 1833, the Anguilla Act 1980 and the Cyprus Act 1960 are not even required to be laid before Parliament after being made. The same applies to constitution Orders made exclusively by virtue of the Royal prerogative, that is to say those for Gibraltar and the British Indian Ocean Territory. Accordingly, Parliament has made little statutory provision for its scrutiny of overseas territory constitutions. However, since 2002 political arrangements have operated whereby most constitution Orders have been sent in draft by the Foreign and Commonwealth Office to the House of Commons Foreign Affairs Committee, where possible at least 28 sitting days before they were submitted to Her Majesty in Council.37 This political arrangement allows, in most cases at least,38 timely scrutiny by a House of Commons Committee and goes some way to mitigate the limited parliamentary control provided for in the Acts in question.

D. Judicial Control of Constitution Orders In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2),39 the House of Lords held unanimously that an Order in Council made by virtue

33 Although not a statutory instrument, the Order was published under Selected Instruments in SI 2006 III p 11503. Also published in Supplement to the Gibraltar Gazette, No 3,574 of 28 December 2006. 34 Published in the (2004) 36(1) British Indian Ocean Territory Official Gazette. For convenience, the text of this Order is reproduced below (Annex, p 305). 35 British Settlements Act 1887 s 3 (as amended by 1945 Act); West Indies Act 1962 s 7(3) (second limb); Bermuda Constitution Act 1967 s 1(4). 36 That is the effect of the Statutory Instruments Act 1946 (1946 c 36) ss 5 and 6. 37 See House of Commons Foreign Affairs Committee Seventh Report, Session 2007–08, HC 147–1, para 29. 38 The British Indian Ocean Territory (Constitution) Order 2004 was not sent to the Committee in draft: see House of Commons Foreign Affairs Committee Seventh Report, n 37 above, and Bancoult (No 2) (Lord Hoffmann), n 31 above, para 27. 39 Bancoult (No 2), n 31 above

The Legal Basis for the Territories’ Constitutions 21 of the Royal prerogative providing a constitution for an overseas territory is subject to judicial review by the United Kingdom courts on ordinary principles of legality, rationality and procedural propriety. Although the House of Lords was not in that case considering a constitution Order made under statutory powers, it has recently been confirmed that such an Order is likewise subject to judicial review, not least as to whether it is within the powers granted by the parent Act.40 In Bancoult (No 2) the House of Lords had the task of examining the legality of the British Indian Ocean Territory (Constitution) Order 2004, an Order made by virtue of the Royal prerogative. Was that Order ultra vires, and is the prerogative power to grant a constitution to an overseas territory unlimited, there being no statute prescribing the limits of the power? A minority (Lord Bingham and Lord Mance) held that this prerogative power does not extend to excluding from the territory its former inhabitants. But a majority (Lord Hoffmann, Lord Rodger and Lord Carswell) held that there is no such limitation. In the absence of previous judicial authority as to the scope of this prerogative power, the majority proceeded on the basis that it comprised a power to legislate ‘for the peace, order and good government of the Territory’, partly on the basis that the previous Constitution of the British Indian Ocean Territory had expressly reserved this power to Her Majesty.41 The majority confirmed a previous line of Privy Council authority that a law made for the peace, order and good government of a territory is not susceptible to judicial review on the grounds of alleged incompatibility with those objects. As Lord Hoffmann said:42 [T]he words ‘peace, order and good government’ have never been construed as words limiting the power of a legislature. Subject to the principle of territoriality implied in the words ‘of the Territory’, they have always been treated as apt to confer plenary law-making authority. For this proposition there is ample authority in the Privy Council (R v Burah (1878) 3 App Cas 889; Riel v The Queen (1885) 10 App Cas 675; Ibralebbe v The Queen [1964] AC 900) and the High Court of Australia (Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1). The courts will not inquire into whether legislation within the territorial scope of the power was in fact for the ‘peace, order and good government’ or otherwise for the benefit of the inhabitants of the Territory. So far as Bancoult (1) departs from this principle, I think that it was wrongly decided.

However, the House of Lords also examined the validity of the 2004 Order on grounds of irrationality and procedural impropriety, including an alleged breach of legitimate expectation. A majority of their Lordships upheld the validity of the Order on these grounds too. They also held that the validity of the Order was not affected by international law,43 and it has since been held that the same applies to a constitutional Order for the Turks and Caicos Islands made under section 5 of the West Indies Act 1962.44

40 41 42 43 44

Misick, n 19 above. British Indian Ocean Territory Order 1976 (SI 1976/893) s 15. Bancoult (No 2), n 31 above, para 50. Ibid paras 66, 116 and 120. See Misick, n 19 above.

22 Constitutional Arrangements THE CONSTITUTIONAL RELATIONSHIP BETWEEN THE TERRITORIES AND THE UNITED KINGDOM

The keys to the constitutional relationship between the overseas territories and the United Kingdom lie in the power of the United Kingdom Parliament and the position of the Crown. The part played by the courts is also important.

A. Parliament The most fundamental principle of the relationship between the British overseas territories and the United Kingdom is the supremacy of Parliament. So, as a matter of constitutional law, Parliament has unlimited power to legislate for the overseas territories.45 As noted above, Parliament has not exercised its power to provide directly by Act of Parliament for the constitution of any of the overseas territories. Instead it has, except in the cases of Gibraltar and the British Indian Ocean Territory, enabled the Crown to do so by Order in Council. Of course Parliament retains the power to alter that state of affairs by legislation in the future if it so wishes. However, apart from the enabling statutes discussed above, a few Acts of Parliament are important to the constitutional position of one or more territories. First among these is the Colonial Laws Validity Act 1865,46 which clarified the powers of territory legislatures and is still in force. It is discussed further in chapter four. The Judicial Committee Acts 1833 and 184447 provide statutory authority for final appeals to Her Majesty in Council from the territories, and these are considered in chapter six. The British Nationality Act 198148 and the British Overseas Territories Act 200249 make provision for the citizenship of people connected with the territories, as discussed in detail in chapter eleven. The European Parliament (Representation) Act 200350 and the European Parliamentary Elections Act 200251 provide for Gibraltar’s participation in elections to the European Parliament, as part of the combined South West region. By contrast, the Human Rights Act 199852 does not extend to the territories as part of their law; human rights protection is provided for in each territory’s law, in most cases in the constitution. This is considered further in chapter nine. The power of Parliament to legislate for the overseas territories results in there being a hierarchy of laws in force in each territory, with Acts of Parliament and statutory instruments made under them that extend to that territory being at the apex. But the local (or subsidiary) legislatures of the territories have very considerable autonomy. Their legislation is not invalid for inconsistency with the law of England

45 46 47 48 49 50 51 52

See Madzimbamuto v Lardner-Burke and George [1969] 1 AC 645 (PC), at 722. 1865 c 63. 1833 c 41; 1844 c 69. 1981 c 61. 2002 c 8. 2003 c 7. 2002 c 24. 1998 c 42.

The Constitutional Relationship between the Territories and the United Kingdom 23 except to the extent that it is repugnant to any Act or subordinate legislation that extends to the territory in question. This is the effect of sections 2 and 3 of the Colonial Laws Validity Act 1865,53 and otherwise, apart from very limited constraints relating to extraterritoriality and major prerogative powers, these legislatures have plenary legislative power. These matters are examined in chapter four.

B. The Crown: An Undivided Realm The position of the Crown in relation to the overseas territories is to some extent complex. The Crown is of course the sovereign of both the United Kingdom and the British overseas territories, such sovereignty being ‘in the sense of government, power, ownership and belonging’.54 As such the United Kingdom and the territories form one undivided realm, which is distinct from the other States of which the Queen is monarch. This is the position for international purposes, the territories having no sovereignty of their own, and it explains why, for example, the territories are not separate members of the Commonwealth. Nor can they be separate members of other international organisations except with the authority of the United Kingdom and where the rules of the organisation concerned so allow. For constitutional purposes, the undivided realm of the United Kingdom and the overseas territories means that Parliament may legislate for both the United Kingdom and the territories as it wishes, and in doing so may weigh the interests of the United Kingdom and the territories as it pleases. This is an inevitable consequence of the supremacy of Parliament. In the case of Bancoult (No 2)55 discussed above, the House of Lords confirmed that the same principle applies when the Crown exercises legislative power in relation to an overseas territory. As Lord Hoffmann said:56 But Her Majesty exercises her powers of prerogative legislation for a non-self-governing colony on the advice of her ministers in the United Kingdom and will act in the interests of her undivided realm, including both the United Kingdom and the colony: see Halsbury’s Laws of England (4th ed 2003 reissue) vol 6, para 716: ‘The United Kingdom and its dependent territories within Her Majesty’s dominions form one realm having one undivided Crown … To the extent that a dependency has responsible government, the Crown’s representative in the dependency acts on the advice of local ministers responsible to the local legislature, but in respect of any dependency of the United Kingdom (that is, of any British overseas territory) acts of Her Majesty herself are performed only on the advice of the United Kingdom government.’

Lord Hoffmann continued57— Her Majesty in Council is therefore entitled to legislate for a colony in the interests of the United Kingdom. No doubt she is also required to take into account the interests of

53 54 55 56 57

1865 c 63. See Tito v Waddell (No 2) [1977] Ch 106 (Megarry VC). Bancoult (No 2), n 31 above. Ibid para 47. Ibid para 49. See also para 114 (Lord Rodger) and paras 120 and 132 (Lord Carswell).

24 Constitutional Arrangements the colony (in the absence of any previous case of judicial review of prerogative colonial legislation, there is of course no authority on the point) but there seems to me no doubt that in the event of a conflict of interest, she is entitled, on the advice of Her United Kingdom Ministers, to prefer the interests of the United Kingdom. I would therefore entirely reject the reasoning of the Divisional Court which held the Constitution Order invalid because it was not in the interests of the Chagossians.

While Bancoult (No 2) concerned an Order in Council made by prerogative powers, there is no reason to suppose that the position is different in the case of legislation, whether constitutional or otherwise, made for an overseas territory by Order in Council under statutory powers. The same principle applies to executive acts of Her Majesty in relation to the overseas territories done on the advice of Her United Kingdom Ministers. The constitutions of all the overseas territories reserve certain executive powers to Her Majesty or to a Secretary of State on Her behalf, and constitutionally the exercise of those powers is a matter for United Kingdom Ministers. Those Ministers retain certain responsibilities in respect of the government of any overseas territory and are entitled to exercise them with a view to the interests not only of the territory in question but also of the United Kingdom and of its other territories.58 In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs,59 the House of Lords had earlier warned about the difficulty for a court in exploring governmental motivation and weighing competing interests. In that case an argument that an instruction given by the Secretary of State to the Commissioner for South Georgia and the South Sandwich Islands was given in the interests of the United Kingdom and was therefore an act of a United Kingdom public authority (for the purposes of the Human Rights Act 1998) was rejected on the basis that the motivation for the decision was not justiciable,60 or even if it were justiciable, to explore such motivation would give rise to great uncertainty.61 Self-evidently, it is through the retention of legislative and executive powers and, where considered necessary or expedient, the exercise of those powers in the interests of the United Kingdom, or the United Kingdom and its overseas territories as a whole, that the United Kingdom maintains ultimate control of the British overseas territories, for which the United Kingdom Government is responsible.

C. The Crown: In Right of Different Governments While the United Kingdom and the overseas territories form an undivided realm, it is an established constitutional principle that the Crown can and does act in different capacities in relation to different parts of that realm. This occurs where a

58 Halsbury’s Laws of England, vol 13, n 31 above, para 806; Bancoult (No 2), n 31 above. Similarly, as regards the Crown Dependencies, see R (Barclay) v Secretary of State for Justice and the Lord Chancellor [2008] EWCA Civ 1319. 59 R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529 (HL). 60 Quark, n 59 above, (Lord Bingham) para 18 and (Lord Hoffmann) para 64. 61 Ibid (Lord Hope) paras 78–79.

The Constitutional Relationship between the Territories and the United Kingdom 25 distinct Government of Her Majesty has been lawfully established for a part of the realm. So, just as the Scotland Act 199862 established a separate Government of Her Majesty in Scotland, the various constitutions of the British overseas territories have established separate governments of Her Majesty in the territories. Each of these governments is a separate legal entity, distinct from each other and from the United Kingdom Government; and as each is a Government of Her Majesty, in constitutional terms this distinction is often described as ‘the Crown in right of the Government of the United Kingdom’ as opposed to ‘the Crown in right of the Government of Scotland’ or ‘the Crown in right of the Government of Anguilla’, or of the Government of any other overseas territory.63 Sometimes the formula used is ‘the Crown in right of the United Kingdom’ or, for example, ‘the Crown in right of Canada’, but this means the same as the Government of the place in question.64 This important constitutional distinction was confirmed by the Court of Appeal in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta.65 In that case it was held that any obligations to the claimants were owed by the Crown in right of the Government of Canada, not the Crown in right of the Government of the United Kingdom. Moreover, Kerr LJ made clear that the principle applied even where the territory concerned had not achieved independence from the United Kingdom. He said:66 Indeed, independence, or the degree of independence, is wholly irrelevant to the issue, because it is clear that rights and obligations of the Crown will arise exclusively in right or respect of any government outside the bounds of the United Kingdom as soon as it can be seen that there is an established government of the Crown in the overseas territory in question.

These observations of Kerr LJ, as well as the reasoning of the Court of Appeal, were approved by the House of Lords in refusing leave to appeal.67 More recently, the principle was confirmed in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs.68 The House of Lords reviewed the previous authorities and reaffirmed them.69 In that case the question before the House was whether the claimant could sue for damages under the Human Rights Act 199870 in respect of loss allegedly suffered as a result of an instruction given 62

1998 c 46. Although administered as a single territorial grouping under a single constitution, St Helena, Ascension and Tristan da Cunha have distinct governments: see St Helena, Ascension and Tristan da Cunha Constitution, ss 31, 44(1), 46(1), 112 among others (relating to St Helena), 145, 150(2), 179 among others (relating to Ascension), 210, 215(2) among others (relating to Tristan da Cunha). 64 In Quark, n 59 above, Lord Bingham said (para 13): ‘From The Queen in Right of Alberta v Canadian Transport Commission (1977) 75 DLR (3d) 257, 259, is derived the proposition, which cannot I think be doubted, that the Crown in right of Alberta may be equated with the Government of Alberta’. 65 R v Secretary of State for Foreign and Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892. 66 Ibid 927. 67 See ibid 937–38. See also Tito v Waddell (No 2), n 54 above; R v Secretary of State for the Home Department, ex p Shadeo Bhurosah [1968] 1 QB 266, [1967] 3 All ER 831; Manuel v Attorney-General [1983] Ch 77. 68 Quark, n 59 above. 69 See in particular Quark, n 59 above, paras 13–19 (Lord Bingham) and paras 72–76 (Lord Hope). 70 1998 c 42. 63

26 Constitutional Arrangements by the Secretary of State to the Commissioner for South Georgia and the South Sandwich Islands. The majority held that the instruction had been given by the Crown acting through the Secretary of State in the context of the government of South Georgia and the South Sandwich Islands, in the operation of the Constitution and governmental machinery of that territory and under its law. The Secretary of State had therefore acted on behalf of Her Majesty in right of the territory and not of the United Kingdom. Accordingly the Secretary of State was not a United Kingdom public authority for the purposes of section 6 of the Human Rights Act 1998, and there could be no claim for damages under the Act.71 Is there a minimum governmental structure that would qualify the government of an overseas territory to be legally separate from the United Kingdom Government? The majority in Quark suggests not. The territory of South Georgia and the South Sandwich Islands has only a Commissioner as the executive and legislative authority, although it has its own courts, law, public officers and public funds. In the same case, however, Baroness Hale suggested that the distinction between the Crown in right of the United Kingdom and the Crown in right of each overseas territory ‘may have less validity in the case of territories which are in reality governed by and from the United Kingdom’, and Lord Bingham accepted that the matter might need to be viewed from a different perspective if there were in a given territory no government, or no government worthy of the name, other than the United Kingdom Government.72 Halsbury’s Laws of England states that on the grant of a representative legislature, and perhaps even from the setting up of courts, a legislative council and other such structures of government, Her Majesty’s government in an overseas territory or dependency is distinct from Her Majesty’s government in the United Kingdom.73

But the reference here to ‘a legislative council’ clearly exceeds the finding of the majority in Quark. The decision in Quark has been the subject of academic criticism, where it is argued that the capacity in which the Crown acts, in the United Kingdom, in relation to an overseas territory must be in right of the United Kingdom—or in right of the United Kingdom and the territory concerned—because in so acting the Queen can constitutionally act only on the advice of United Kingdom Ministers.74 Thus, acts of Her Majesty or of a Secretary of State on Her behalf would be done in right of the United Kingdom Government. Indeed, this would fit with the position taken in the House of Lords in Bancoult (No 2), where it was accepted that in making the Order in Council under review Her Majesty acted in right of the United Kingdom.75 By contrast, acts done in a territory or by a territory authority 71 In R (Barclay) v Secretary of State for Justice and Lord Chancellor [2009] UKSC 9, the Supreme Court mentioned, but declined to revisit, this reasoning in the context of constitutional reform in Sark, there being no need to do so for the purpose of deciding that case. 72 See Quark, n 59 above, para 95 (Baroness Hale) and para 19 (Lord Bingham). 73 Halsbury’s Laws of England, vol 13, n 31 above, para 806. 74 See J Finnis, ‘Common Law Constraints: Whose Common Good Counts?’, University of Oxford Faculty of Law Legal Studies Research Paper Series, Working Paper No 10/2008, available at http:// papers.ssrn.com/Abstract=1100628); A Twomey, ‘Responsible Government and the Divisibility of the Crown’ (2008) Public Law 742. 75 Bancoult (No 2), n 31 above, paras 76 and 127.

The Constitutional Relationship between the Territories and the United Kingdom 27 would be acts in right of the government of the territory. But these critics do not argue that the territories do not have governments distinct from the United Kingdom Government. They point out that the capacity in which the Crown acts in certain circumstances is a different issue from the existence of distinct governments of the Crown. It is submitted that the correct legal position is indeed that each overseas territory76 has a government distinct from the United Kingdom Government. That is the plain intention of the Orders in Council establishing a distinct constitution for each territory, most of which expressly refer to ‘the Government’ of the territory77 and some to the Crown ‘in right of the Government’ of the territory.78 Each territory has its own legislative and executive authorities separate from those of the United Kingdom. Each territory has its own courts, laws, public services and public funds,79 again separate from those of the United Kingdom. This situation is not altered by the fact that some territories are more susceptible to direction from London than others. The importance of this principle lies in the determination of the rights, powers, obligations and liabilities of the distinct governments of the Crown. This is crucial in settling legally which government—or put another way, the Crown in right of which government—has particular rights, such as title to Crown land and other property in a particular territory, which government has power to take particular action, which government owes statutory or contractual obligations to particular persons, and which government is liable to others for particular acts or omissions. The consequences of a failure to determine correctly the possessor of such rights, powers, obligations and liabilities hardly need spelling out. The principle of distinct governments of the Crown is reflected in section 40(2)(b) of the Crown Proceedings Act 1947,80 the effect of which limits to the Government of the United Kingdom and the Scottish Administration the capacity granted by the Act to bring proceedings against the Crown in the United Kingdom courts. Section 40(2)(b) provides: (2) Except as therein otherwise expressly provided, nothing in this Act shall— (b) authorise proceedings to be taken against the Crown under or in accordance with this Act in respect of any alleged liability of the Crown arising otherwise than in right of His Majesty’s Government in the United Kingdom or the Scottish

76 And each of St Helena, Ascension and Tristan da Cunha has a separate government: see n 63 above. 77 See eg Anguilla Constitution s 25(1); Bermuda Constitution s 102(1); British Indian Ocean Territory (Constitution) Order 2004 s 15(3)(a); Cayman Islands Constitution s 124(1); Falkland Islands Constitution s 100(1); Gibraltar Constitution s 45(1); Montserrat Constitution s 107(1); Pitcairn Constitution s 35(1); St Helena, Ascension and Tristan da Cunha Constitution ss 44(1), 150(2) and 215(2); Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 s 2; Turks and Caicos Islands Constitution s 99(1); Virgin Islands Constitution s 56(1). 78 See eg Gibraltar Constitution s 54(2)(c); Pitcairn Constitution s 30; St Helena, Ascension and Tristan da Cunha Constitution ss 31, 145 and 210. Cayman Islands Constitution s 58(4), and Virgin Islands Constitution s 57(3), recognise the distinction between ‘Her Majesty’s interest’ in respect of the United Kingdom and the territory. 79 Indeed Halsbury’s Laws of England appears to accept that what may be decisive for many purposes ‘is the existence of separate treasuries or consolidated funds’: see vol 13, n 31 above, para 806, fn 5. 80 1947 c 44.

28 Constitutional Arrangements Administration, or affect proceedings against the Crown in respect of any such liability as aforesaid.

Accordingly the Act does not authorise proceedings in the United Kingdom courts against the Crown in right of any overseas territory Government. This situation is reciprocated by equivalent provisions in the Crown proceedings legislation of the overseas territories.81

D. The Courts The formal relationship between the British overseas territories and the United Kingdom in the judicial sphere resides in all of the territories having as their final court of appeal Her Majesty in Council. This means that, as a final appeal in circumstances prescribed by law,82 a litigant may go to the Judicial Committee of the Privy Council, which formally advises the Queen as to the judgment to be delivered. The Judicial Committee normally sits in London, although its members are not exclusively from the United Kingdom. Nevertheless many of them also sit in the Supreme Court. Having the Privy Council at the apex of the judicial system in each territory contributes to coherence in the administration of justice in the territories. It follows that decisions of the Privy Council, or of Her Majesty in Council to use the correct terminology, are the highest judicial authority for each British overseas territory and are binding on its courts. By contrast, the courts of the United Kingdom are not courts of the overseas territories, and their decisions are in most circumstances persuasive authority, rather than binding, for the courts of the territories.83 This does not mean that the decisions of United Kingdom courts have little importance for the constitutional relationship between the territories and the United Kingdom. The contrary is true, not least because they determine the lawfulness of the actions of the United Kingdom Government. The law relating to the overseas territories owes a great deal to the jurisprudence of both the Privy Council and the United Kingdom courts, as is demonstrated by the judgments referred to in this and other chapters. Difficulty and confusion are likely to arise where the Privy Council and United Kingdom courts reach different conclusions on the same point of principle, as has sometimes happened, because each carries a different weight of authority in the territories and the United Kingdom respectively. But the risk of this occurring in serious cases should be reduced by the substantial overlap of judges sitting on the Supreme Court and the Privy Council. The importance of this from the standpoint of legal certainty is obvious.

81 See eg Crown Proceedings Act 1951 (Laws of Gibraltar 1951–10); Crown Proceedings Act 1966 (Laws of Bermuda (1989 Revision) Title 8, Item 105); Crown Proceedings Act (Laws of Montserrat Cap 2.06). Even the British Antarctic Territory has such a law, which refers to the Crown in right of the Government of the Territory: see Crown Proceedings Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 7 of 1990). 82 Or in cases where the Judicial Committee grants special leave to appeal. 83 See further ch 8 below.

Constitutional Amendment and Review 29 CONSTITUTIONAL AMENDMENT AND REVIEW

As the constitutions of the overseas territories are contained in Orders in Council, they may be amended or replaced by further Orders in Council. They could also, of course, be amended or replaced by Act of Parliament.

A. Provisions for Local Amendment A territory constitution may include provision for its amendment by the legislature of the territory. There are very few examples of this. One relates to the fundamental rights provisions in sections 1 to 15 of the Gibraltar Constitution. Section 18(9) and (10) of that Constitution provide: (9) Any right or limitation thereof set out in sections 1 to 15 may be amended if— (a) a motion proposing that amendment is carried by a majority of at least three-quarters of the total number of Members of the Parliament; (b) the Parliament’s vote on such motion is thereafter supported by a simple majority of the votes cast in a referendum of all persons entitled to vote in elections to the Parliament; and (c) the consent of Her Majesty signified through a Secretary of State has been obtained before any such motion or referendum. (10) Subsection (9) is without prejudice to the power of Her Majesty to amend or revoke any provision of this Chapter by Order in Council.

Thus, the consent of Her Majesty through a Secretary of State is required before the local parliamentary and referendum procedures can be undertaken, and the power to amend or revoke any provision of the fundamental rights chapter by Order in Council is preserved. Another example concerns changing electoral constituencies. Section 27 of the Falkland Islands Constitution provides: (1) The Falkland Islands shall be divided into two constituencies, Camp and Stanley. Camp shall return three elected members to the Legislative Assembly and Stanley five elected members and the members shall be elected in such manner as shall be prescribed by Ordinance. (2) For the purposes of this section the boundaries of the Stanley constituency shall be such as shall be prescribed by the Ordinance which shall make provision for elections to the Legislative Assembly and ‘Camp’ shall be the remainder of the Falkland Islands. (3) Subsections (1) and (2) may be amended by Ordinance; but no Bill for any such Ordinance shall be enacted unless it has been supported in a referendum by at least two-thirds of those voting who are registered as electors in each constituency.

This represents a careful balance in a territory where the great majority reside in Stanley. The referendum requirement is designed both to ensure direct public approval of any change and to afford some protection to the minority of voters who reside in the Camp constituency. Section 52(3) of the Bermuda Constitution provides that the names and boundaries of the constituencies of Bermuda are those set out in the Second Schedule to the

30 Constitutional Arrangements Constitution. It goes on to provide that the Second Schedule may from time to time be modified by order made by the Governor in accordance with section 54(6). Such an order must be made by the Governor if a draft of it has been submitted by the Premier to the House of Assembly to give effect (with or without modifications) to the recommendations of a Constituency Boundary Commission and the draft has been approved by the House of Assembly. The other examples relate to increasing the number of elected members of the local legislative body and the number of Ministers.84 Apart from these few cases, in the absence of an Act of Parliament constitutional amendment requires an Order in Council in exercise of the same powers as those used for the Order providing the constitution for the territory in question. At first sight it might appear that section 5 of the Colonial Laws Validity Act 186585 provides a limited exception. This provides, in part, that every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the said colony.

A ‘representative legislature’ is defined in section 1 as any colonial legislature which shall comprise a legislative body of which one half are elected by inhabitants of the colony. But in none of the territories with an elected legislative body does the legislature comprise only that body.86 Even if it did, the legislative power of each territory legislature is expressed in the constitution to be ‘subject to this Constitution’ and ‘for the peace, order and good government’ of the territory.87 In Chenard v Arissol88 the Judicial Committee of the Privy Council stated that the power to make laws for peace, order and good government does not authorise alteration by a colonial legislature of its constitution or powers. Section 5 of the Act would therefore be trumped by section 2, which renders territory legislation void to the extent of repugnancy to any Act or subordinate legislation that extends to the territory, at least as regards constitution Orders made under Acts passed after the 1865 Act.89

84 See Virgin Islands Constitution ss 47 and 63; Cayman Islands Constitution ss 44 and 60; Gibraltar Constitution ss 25(2) and 45(2); Montserrat Constitution ss 32 and 48. See also Turks and Caicos Islands Constitution ss 27(6) and 41(2), but these are among the provisions temporarily suspended by SI 2009/701. 85 1865 c 63. 86 Because it also includes Her Majesty, or the Governor or, in Bermuda, the appointed Senate. See further ch 4, p 63 below. 87 See ch 4, pp 66–67 below. 88 Chenard v Arissol [1949] AC 127 (PC). 89 See Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 403–05. See also E Davies, The Legal Status of British Dependent Territories (Cambridge, Cambridge University Press, 1995) 161–63, who cites authority from the Cayman Islands Grand Court that s 5 must be read subject to s 2. Given the non-applicability of s 5, it was necessary to confer specific powers to alter the composition of the legislative bodies in the constitutions listed in n 84 above.

Constitutional Amendment and Review 31 B. Procedure An Order in Council amending, or revoking and replacing, a territory constitution is recommended to Her Majesty in draft by United Kingdom Ministers. The Order itself is formally made by Her Majesty with the advice of Her Privy Council. Apart from these final stages, there is no prescribed procedure. The practice in recent years has been, with very few exceptions, to reach political agreement on the text of constitutional amendments, or of a new constitution, by negotiation between United Kingdom representatives and representatives of the territory concerned.90 The policy of the United Kingdom Government has been to seek evidence of popular acceptance in the territory of a politically agreed text, whether by resolution of the locally elected body, by referendum, or by less formal means of public consultation. Different territories have chosen different methods. In Gibraltar a referendum approved in draft the 2006 Constitution, and in the Cayman Islands a referendum approved in draft the 2009 Constitution. In the Falkland Islands, Montserrat and the Virgin Islands the current constitutions were approved in draft by the local Legislative Council following a process of public consultation on the text. In St Helena the new Constitution was approved in draft by a majority of Legislative Councillors, and in Ascension, Tristan da Cunha and Pitcairn the constitutions were approved in draft by the respective Island Councils. Almost all recent constitutional review negotiations have taken place on the basis of proposals emanating from the territories themselves.91 Such proposals have been formulated either by local constitutional reform commissions92 or by committees of the local legislative body,93 and have been put forward either unchanged or with adjustments by the governments of the territories. In one case proposals were made exclusively by the government of the territory.94 This process followed the United Kingdom Government White Paper of 1999 entitled ‘Partnership for Progress and Prosperity: Britain and the Overseas Territories’,95 which included the following paragraph: 2.7 The link between the UK and the Overseas Territories is enshrined in the constitution of each territory. The Overseas Territories believe that their constitutions need to be kept up to date and where necessary modernised. Each Overseas Territory is unique and needs a constitutional framework to suit its own circumstances. Suggestions from Overseas Territory governments for specific proposals for constitutional change will be considered carefully.96

Constitutional changes in recent years imposed by the United Kingdom Government have been rare and exceptional. The two recent instances have each involved a need 90 Territory representatives have predominantly been locally elected political representatives, but in some cases others have been included such as expert advisers and representatives of civil society. 91 The only exceptions are Ascension, Tristan da Cunha, and Pitcairn, but in each case drafts prepared by the United Kingdom Government were negotiated, and the resulting text fully agreed, with the Island Council concerned. 92 The Virgin Islands, the Turks and Caicos Islands, Montserrat, the Cayman Islands. 93 Gibraltar, the Falkland Islands, St Helena. 94 Bermuda. 95 Cm 4264. 96 White Paper p 13.

32 Constitutional Arrangements perceived by the United Kingdom Government to take close control of the territory. One was the making of the British Indian Ocean Territory (Constitution) Order 2004, the circumstances surrounding which were examined in Bancoult (No 2).97 The other was the temporary suspension of parts of the Constitution of the Turks and Caicos Islands following a judicial commission of inquiry into allegations of corruption in the territory.98 Each case provoked controversy and challenge by way of judicial review.99 That is not particularly surprising. The United Kingdom Government remains responsible for the overseas territories, including their constitutional arrangements. But in making such constitutional arrangements its actions are always subject to judicial review by the United Kingdom courts and political responsibility to the United Kingdom Parliament.

C. Substance of Recent Constitutional Reforms The substance of the recent constitutional review negotiations with Gibraltar, the Falkland Islands, the Cayman Islands, the Virgin Islands, the Turks and Caicos Islands, Montserrat, St Helena, Ascension and Tristan da Cunha, and Pitcairn resulting in new constitutions for those territories followed a similar pattern. Each territory was keen to increase local autonomy and to reduce the reserved powers of the Governor and the United Kingdom. The outcome in each case marked an advance in local self-government. The reserved powers were reduced to those that were considered necessary and sufficient to ensure that the United Kingdom Government could discharge its responsibilities. A revised balance of powers was achieved that both sides could accept and that better suited modern conditions.100 Some symbolic changes were made, which the territories concerned regarded as important. In Gibraltar the House of Assembly was renamed the Gibraltar Parliament. In the Virgin Islands and the Turks and Caicos Islands the Legislative Council was renamed the House of Assembly, and in the Falkland Islands and Montserrat it was renamed the Legislative Assembly. In the Virgin Islands, Montserrat and the Turks and Caicos Islands the title of Chief Minister was changed to Premier and the Executive Council was renamed the Cabinet. The latter change had earlier been made in the Cayman Islands, but in the 2009 Constitution the Leader of Government Business became the Premier. In the Cayman Islands, the Virgin Islands, St Helena, Ascension and Tristan da Cunha, and Pitcairn enforceable fundamental rights chapters were included for the

97

Bancoult (No 2), n 31 above. See Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (SI 2009/701), amended by SI 2009/1755. 99 See Bancoult (No 2), n 31 above, and Misick, n 19 above. 100 The exceptional step taken in 2009 to suspend parts of the Turks and Caicos Islands Constitution resulted not from the distribution of powers made by that Constitution but from the use of powers by some territory politicians. 98

Constitutional Amendment and Review 33 first time in the new constitutions.101 The previous constitutions of Gibraltar, the Falkland Islands, the Turks and Caicos Islands and Montserrat already contained fundamental rights chapters, and these were updated and expanded in the new constitutions. There are some novel provisions in the new constitutions. Judicial Service Commissions were established in Gibraltar, the Cayman Islands, the Virgin Islands, the Turks and Caicos Islands, St Helena and Ascension.102 The Cayman Islands and Virgin Islands constitutions provide for Human Rights Commissions, and the Montserrat Constitution provides for a Complaints Commission.103 In the Cayman Islands the new Constitution also set up a Commission for Standards in Public Life and a Constitutional Commission.104 These new bodies were designed to contribute to good government and to enhance local involvement in that effort. The new Constitution of St Helena, Ascension and Tristan da Cunha sets out a list of ‘partnership values’ which form the basis of the partnership between each island and the United Kingdom and of the relationship between the three islands. The values include good faith, the rule of law, good government, sound financial management, the impartial administration of justice and the impartiality of the public service. Each local organ of government is obliged to give effect to the values.105 Similar provisions are included in the new Pitcairn Constitution.106 The constitutions of the Virgin Islands, the Cayman Islands, Montserrat and St Helena, Ascension and Tristan da Cunha include preambles, mostly drafted locally, that express something of the history, culture and aspirations of the people of the territory concerned. This was an innovation, and helps to give some local ‘ownership’ to the constitution that governs the territory. The Gibraltar Constitution Order 2006 contains an important preamble, the first paragraph repeating that in the Gibraltar Constitution Order 1969, the second paragraph being new. It reads: Whereas Gibraltar is part of Her Majesty’s dominions and Her Majesty’s Government have given assurances to the people of Gibraltar that Gibraltar will remain part of Her Majesty’s dominions unless and until an Act of Parliament otherwise provides, and furthermore that Her Majesty’s Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes; And whereas the people of Gibraltar have in a referendum held on 30th November 2006 freely approved and accepted the Constitution annexed to this Order which gives the people of Gibraltar that degree of self-government which is compatible with British sovereignty of Gibraltar and with the fact that the United Kingdom remains fully responsible for Gibraltar’s external relations.

101 Cayman Islands Constitution pt I; Virgin Islands Constitution c 2; Constitution of St Helena, Ascension and Tristan da Cunha c 1 pt 2, c 2 pt 2, c 3 pt 2; Pitcairn Constitution pt 2. 102 See further ch 6, pp 111–13 below. 103 Cayman Islands Constitution s 116; Virgin Islands Constitution s 34; Montserrat Constitution s 105. 104 Cayman Islands Constitution ss 117 and 118. 105 Constitution of St Helena, Ascension and Tristan da Cunha ss 2, 3, 4, 121 and 186. 106 Pitcairn Constitution s 1.

34 Constitutional Arrangements At the time of writing, negotiations for a new constitution for Anguilla had not advanced beyond the preliminary stage, and it remains to be seen whether they will eventually come to fruition. As for Bermuda, important constitutional changes were made in 2001 and 2003 to establish, for the first time, single-member constituencies for elections to the House of Assembly and to provide for an Ombudsman.107 The fundamental rights chapter of the Bermuda Constitution, which dates from 1968, is under review.

107

See SI 2001/2579 and 2003/456.

3 The Office of Governor

I

N OR IN respect of each British overseas territory, Her Majesty is represented by a Governor or other officer administering the government of the territory. As the Queen is the Head of State for all overseas territories, the office of Her representative in or for each territory is obviously crucial. This chapter examines the main features of that office. THE TITLE OF THE OFFICE

In most territories the title of the office is ‘Governor’. This is the case in the following territories: Anguilla, Bermuda, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn, St Helena, Ascension and Tristan da Cunha, the Turks and Caicos Islands, and the Virgin Islands. The office of Governor of Pitcairn is in practice held by the British High Commissioner to New Zealand, and the Governor is therefore resident in Wellington, New Zealand. The Governor of Ascension and Tristan da Cunha is the same person as the Governor of St Helena, who is resident in St Helena. In all other cases the Governor is resident in the territory concerned. In the constitutions of Bermuda and Gibraltar, the office of Governor is given the title ‘Governor and Commander-in-Chief’,1 the designation Commander-in-Chief being honorific in Bermuda.2 It does not appear in the title of the office in the other territories listed above. There is no office of Governor in the other territories, but there is an equivalent. For the British Antarctic Territory, the British Indian Ocean Territory and South Georgia and the South Sandwich Islands, the equivalent office has the title ‘Commissioner’.3 In none of these territories is the Commissioner resident. The offices of Commissioner of the British Antarctic Territory and of the British Indian Ocean Territory are, and have been for several years, held by a senior official in the Foreign and Commonwealth Office. The office of Commissioner of South Georgia

1 Bermuda Constitution (SI 1968/182, as amended by SI 1968/463, 1968/726, 1973/233, 1979/452, 1979/1310, 1989/151, 2001/2579, 2003/456) s 17(1); Gibraltar Constitution s 19 (published in SI 2006 III, p 11503). 2 Except on special appointment from the Queen, a Governor is not invested with command of Her Majesty’s Regular Forces in the territory: Colonial Regulation 105. 3 British Antarctic Territory Order 1989 (SI 1989/842) s 4; British Indian Ocean Territory (Constitution) Order 2004 s 4(1) (see Annex, p 305 below); South Georgia and South Sandwich Islands Order 1985 (SI 1985/449, as amended by SI 1995/1621) s 4(1).

36 The Office of Governor and the South Sandwich Islands has in practice been held by the Governor of the Falkland Islands. In the Sovereign Base Areas, the equivalent office is that of ‘Administrator’,4 who is resident in the territory. This should not be confused with the officials called ‘Administrator’, resident in Ascension and Tristan da Cunha, whose offices are not equivalent to the office of Governor. Schedule 1 to the Interpretation Act 19785 includes the following definition: ‘Governor’, in relation to any British possession, includes the officer for the time being administering the government of that possession.

That definition, for the purpose of United Kingdom statutes (in the absence of a contrary intention), is broad enough to include the three Commissioners mentioned above and the Administrator of the Sovereign Base Areas. It also includes an officer temporarily acting in the office of Governor, Commissioner or Administrator. Apart from the Interpretation Act, a collective term sometimes used to describe a Governor, Commissioner or Administrator (of the Sovereign Base Areas) is ‘officer administering the government of an overseas territory’. But for convenience the term ‘Governor’ is used in this chapter when referring to the office in a general sense. THE POSITION AND STATUS OF GOVERNOR

As the Queen’s representative, the Governor of a British overseas territory is appointed by Her Majesty. A typical formulation is that in section 35(1) of the Virgin Islands Constitution:6 There shall be a Governor of the Virgin Islands who shall be appointed by Her Majesty by Commission under Her Sign Manual and Signet7 and shall hold office during Her Majesty’s pleasure.

Not every overseas territory constitution specifies the instrument by which Her Majesty appoints the Governor, but in almost all cases the appointment is made by Royal Commission. Appointments are in constitutional practice made by Her Majesty on the advice of Her United Kingdom Ministers.8 Appointments are at Her Majesty’s pleasure, and the removal of a Governor is also constitutionally a matter for the advice of United Kingdom Ministers. It is not necessary to reappoint a Governor on the demise of the Crown.9 The Governor of a territory is the single and supreme authority responsible to Her Majesty, and is entitled by virtue of the Commission of appointment and the 4 Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 (SI 1960/1369, as amended by SI 1966/1415) s 1(1), which specifies that the Administrator ‘shall be a serving officer of Her Majesty’s Forces’. 5 1978 c 30. 6 SI 2007/1678. 7 The term ‘Sign Manual and Signet’ means signed personally by the sovereign and sealed with the Royal seal. 8 It is open to United Kingdom Ministers to consult political leaders in the territories about such appointments. In recent years the practice has been to consult the elected leaders of the territories with representative government about the qualities they consider important in a Governor. 9 Demise of the Crown Act 1901 (1901 c 5) s 1(1).

The Position and Status of Governor

37

Order in Council constituting the office to the obedience, aid and assistance of all civil and military officers in the territory.10 It is sometimes thought, and even said, that the Governor is the Head of State of a territory. But that is an incorrect description, because no territory is a State separate from the United Kingdom, and it is of course the Queen who is Head of State of the United Kingdom and the overseas territories. A more accurate description is that the Governor is the head of the Government of the territory, this position flowing naturally from the Governor’s position as the Queen’s representative. In territories with representative government, that is to say an elected legislative body from which local Ministers are appointed, the senior Minister (variously called the Chief Minister or the Premier) may correctly be called the elected head of Government. So, for example, in Bermuda the Queen is Head of State, the Governor of Bermuda is the head of Government, and the Premier of Bermuda is the elected head of the Government of Bermuda. It is often said that Governors ‘wear two hats’, because they head the governments of the territories but are appointed on the advice of, and report to, the Secretary of State. Governors are charged by Ministers in London with endeavouring to ensure good government in their territories, as well as representing to local politicians the policies of the United Kingdom Government. But a Governor must at the same time represent and explain the views of territory governments to London. These different roles can no doubt sometimes present difficulties. But constitutionally a Governor has only one position, and that is to be the representative of the Queen as Queen of the territory concerned. So, constitutionally speaking, no Governor is an officer of the United Kingdom Government. The Governor is the senior officer of the Government of the territory. In smaller territories with no elected legislative body, the Governor is also the legislature for the territory. By contrast, the Governor is not a member of the legislative body in territories where that body is elected, but the Governor exercises the power of assent in relation to bills passed by that body and in some cases formally makes laws with the advice and consent of that body.11 The Governor is expressly empowered in most constitutions to exercise executive authority in the territory on behalf of Her Majesty.12 Of the territories with elected governments, the Governor chairs the local Cabinet or Executive Council of Ministers in Anguilla, the Cayman Islands, the Falkland Islands, Montserrat, St Helena and the Virgin Islands.13 The Governor does not do so in Bermuda or Gibraltar.

10 Colonial Regulation 105; Halsbury’s Laws of England, vol 13, 5th edn (London, LexisNexis, 2009) para 816. 11 See eg Falkland Islands Constitution (SI 2008/2846) ss 37 and 52. 12 See eg Falkland Islands Constitution s 56(2), Virgin Islands Constitution s 46(2). 13 Anguilla Constitution (SI 1982/334, as amended by SI 1983/1108 and 1990/587) s 33(1); Cayman Islands Constitution (SI 2009/1379) s 46(1); Falkland Islands Constitution s 63; Montserrat Constitution (SI 2010/2474) s 42(1); St Helena, Ascension and Tristan da Cunha Constitution (SI 2009/1751) s 41(1); Virgin Islands Constitution s 49(1). See also Turks and Caicos Islands Constitution (SI 2006/1913) s 35(1), but the Cabinet was temporarily suspended by SI 2009/701.

38 The Office of Governor No Governor has any judicial function in the overseas territories, but Governors do have powers to make judicial appointments and a role in the suspension and removal of persons holding judicial offices. The powers of Governors in the legislative, executive and judicial fields are discussed later in this chapter and in chapters four, five and six. THE AUTHORITY OF THE OFFICE OF GOVERNOR

The authority of the Governor of a territory is not the same as that of the sovereign in respect of the territory. The Governor’s authority is limited to that conferred on him or her by the Crown and by Acts of Parliament or other laws.14 In each of the remaining overseas territories, the authority and functions of the office of Governor are expressly stated in the constitution of the territory. These are described in standard terms. A typical provision is section 35(2) of the Virgin Islands Constitution: The Governor shall have such powers and duties as are conferred or imposed on him or her by this Constitution or any other law and such other powers as Her Majesty may from time to time be pleased to assign to him or her.

This is a crucial provision in any overseas territory constitution, because it makes clear that the Governor’s functions derive from three sources only: (1) the constitution itself; (2) any other law; and (3) by assignment from Her Majesty. Some examples of functions conferred by a territory’s constitution are discussed in this chapter and later chapters. In addition the local legislation in force in a territory confers various functions on the Governor, as do other laws such as certain Acts of Parliament and Orders in Council that extend to territories. These are covered by the reference to ‘any other law’. Finally, there is a residuum of functions that may be assigned to the Governor by Her Majesty or, in constitutional practice, by or on behalf of a United Kingdom Minister acting in Her name. This last category is indeterminate, and consists essentially of executive or ceremonial functions that may be exercised locally as prerogative powers.15 In practice its relevance is very limited in view of the powers conferred expressly by the constitutions of the territories. In summary, the functions of the Governor are defined and therefore constrained by the constitution of the territory concerned, and may not be exceeded. The exercise of the Governor’s functions is in general subject to judicial review in the normal way, and is discussed later in this chapter. Uniquely, the Cayman Islands Constitution provides that in the exercise of his or her functions ‘the Governor shall endeavour to promote good governance and to act in the best interests of the Cayman Islands so far as such interests are consistent with the interests of the United Kingdom’.16 This is the only constitution that expressly mandates the Governor to try to promote good governance and act in the best interests of the territory. The qualification ‘so far as such interests are consistent 14 Musgrave v Pulido (1879) 5 App Cas 102, 111. See also Cameron v Kyte (1835) 3 Knapp 332 (PC); Hill v Bigge (1841) 3 Moo PC 465; Sprigg v Sigcau [1897] AC 238 (PC). 15 Such as recommending honours for local people, and conferring honours on behalf of the Queen. 16 Cayman Islands Constitution s 31(3).

Instructions to a Governor 39 with the interests of the United Kingdom’ reflects the judgment of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)17 that in legislating for a territory Her Majesty may prefer the interests of the United Kingdom. INSTRUCTIONS TO A GOVERNOR

In all overseas territories the exercise of the Governor’s functions is subject to instructions given by or on behalf of Her Majesty. A typical provision is section 35(3) of the Virgin Islands Constitution: Subject to the provisions of this Constitution and of any other law by which powers or duties are conferred on the Governor, the Governor shall do and execute all things that belong to his or her office (including the exercise of any powers with respect to which the Governor is empowered by this Constitution to act in his or her discretion) according to such instructions, if any, as Her Majesty may from time to time see fit to give him or her; but the question whether or not the Governor has in any matter complied with any such instructions shall not be enquired into in any court.

In some territory constitutions the equivalent provision refers to instructions given by Her Majesty ‘through a Secretary of State’. But the effect is the same, with or without these words. Instructions may be given directly by Her Majesty or, as is much more common, through a Secretary of State on Her Majesty’s behalf. Instructions given directly by Her Majesty, known as Royal Instructions, are standing instructions as to how the Governor should perform specified functions. Those given by a Secretary of State most often relate to the exercise of a particular function by the Governor in a particular situation.

A. Royal Instructions In some territories there are still in force Royal Instructions to the Governor, which are issued under the Sign Manual and Signet by Her Majesty in exercise of the Royal prerogative.18 These are standing instructions, which are issued on the advice of United Kingdom Ministers and are approved by Her Majesty in the Privy Council before being formally signed by the Queen. They are in common form with minimal variations.19 As they deal predominantly with matters relating to local legislation in a territory, they are considered further in chapter four.20 Although doubts have been expressed about the legal effect of Royal Instructions, they are certainly binding on the Governors to whom they are addressed, and the better view is that they form part of the law of each territory where they are in

17 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, 1 AC 453 (HL), paras 47–49, 114, 120 and 132. 18 Anguilla, the British Antarctic Territory, the British Indian Ocean Territory, St Helena, Ascension and Tristan da Cunha, the Sovereign Base Areas, and the Turks and Caicos Islands. 19 See eg Turks and Caicos Islands Royal Instructions 1988 (published in SI 1988, I, p 1836). 20 See ch 4, p 73 below.

40 The Office of Governor force.21 As the constitution of each territory, which is contained in an Order in Council, requires the Governor to perform his or her functions in accordance with instructions from Her Majesty, Royal Instructions must derive legal force from that Order in Council. The Judicial Committee of the Privy Council has held that prohibitions in Royal Instructions may be enforced by injunction or declaration.22 Exceptionally, section 3 of the British Settlements Act 1887 as amended by the British Settlements Act 194523 enables the sovereign to delegate legislative power by Royal Instructions, but in practice such delegation has been effected by Order in Council rather than Royal Instructions in the territories whose constitutions are made under those Acts.24 By virtue of section 4 of the Colonial Laws Validity Act 1865,25 no ‘colonial law’ as defined in the Act26 is invalid by reason only of failure to comply with Royal Instructions not contained in the instrument authorising the Governor to signify assent to laws for the peace, order and good government of the territory, even though such Instructions may be referred to in that instrument.

B. Instructions from a Secretary of State The legal nature of instructions given by a Secretary of State was considered by the House of Lords in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs.27 At issue in that case was the capacity in which an instruction had been given by the Secretary of State for Foreign and Commonwealth Affairs to the Commissioner for South Georgia and the South Sandwich Islands (SGSSI). It had been given in pursuance of section 5(1) of the South Georgia and South Sandwich Islands Order 1985,28 which required the Commissioner to ‘do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him through a Secretary of State’. Lord Bingham said:29 Here, it is plain that the Secretary of State for Foreign and Commonwealth Affairs of the United Kingdom has no power or authority under the constitution of SGSSI (the 1985 Order, as amended) to instruct the Commissioner. Such power and authority can be exercised only by the Queen, who in this context is (and is only) the Queen of SGSSI. It is in

21 See the discussion in K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 146–49. 22 Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136 (PC). 23 1887 c 54 and 1945 c 7. 24 British Antarctic Territory Order 1989; Falkland Islands Constitution Order 2008; Pitcairn Constitution Order 2010 (SI 2010/244); St Helena, Ascension and Tristan da Cunha Constitution Order 2009 (in respect of Ascension and Tristan da Cunha); South Georgia and South Sandwich Islands Order 1985. 25 1865 c 63. 26 The term includes laws made by the territory legislature or by Order in Council: s 1. 27 R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529 (HL). 28 SI 1985/449. 29 Quark, n 27 above, para 12.

Instructions to a Governor 41 my view correct in constitutional theory to regard the Secretary of State as her mouthpiece and medium.

And he continued:30 What is in issue is the constitutional standing of the instruction. The factual matrix might, I accept, be relevant if there were in a given territory no government, or no government worthy of the name, other than the United Kingdom Government. There would then be no government other than that of the United Kingdom Government on whose behalf an exercise of executive power could be made, no other government in right of which the Queen could act. But that is not this case. Here, there is nothing to displace the initial inference that the instruction was given by Her Majesty, through the Secretary of State, in right of the government of SGSSI.

Lord Hope and Lord Hoffmann shared this analysis. Instructively, Lord Hope said the following:31 It was the constitution of SGSSI that provided the vehicle for the instruction. And it was the constitution of SGSSI that established the legal framework within which the instruction was given and which required the Commissioner to give effect to it. If one approaches the 1985 Order, as one should, as an instrument which sets out the constitution of SGSSI, the references that it makes to Her Majesty fall to be read as references to Her Majesty in the exercise of her rights as Head of State and Queen of the territory unless there is a clear indication to the contrary. As I have already said, that is the meaning that one would give to the first reference that is made to Her Majesty in section 5(1). I can see no good reason for altering the meaning of the phrase when she is referred to again in the same subsection or elsewhere in the 1985 Order just because the references on these occasions are to her giving instructions through a Secretary of State. These references reflect the constitutional reality that the government of SGSSI is subordinate to that of the United Kingdom. It is subject to instruction from time to time as to what it can and cannot do. But the constitutional reality is that, although the government of SGSSI is a subordinate government, it is nevertheless the government of the territory. The Secretary of State is not acting, when Her Majesty gives instructions under section 5(1), on behalf of Her Majesty as Head of State of the United Kingdom. What he is doing is providing the vehicle by which, according to the constitution of SGSSI, instructions are given and other acts done by Her Majesty as its Head of State.

This case is important in making clear that instructions given to a Governor (or equivalent officer administering the government of an overseas territory) are given on behalf of Her Majesty in right of the government of the territory itself, and are not themselves acts of the United Kingdom Government. But, as Lord Hope recognised as a ‘constitutional reality’, the governments of the overseas territories are subordinate to the United Kingdom Government. The United Kingdom Government is in this way able to exercise a degree of executive control over the governments of the overseas territories by means of instructions to the Governor given by the Secretary of State, a United Kingdom Minister, on behalf of Her Majesty. Thus the Secretary of State is the agent of the Queen as Queen of the territories, and therefore

30 31

Ibid para 19. Ibid paras 75–76.

42 The Office of Governor forms part of the governmental structure of the territories, while being at the same time a Minister in the United Kingdom Government.32 In Quark, the House of Lords also rejected an argument that the instruction was an act of a United Kingdom public authority (for the purposes of the Human Rights Act 199833) because it was given in the interests of the United Kingdom, on the basis that the motivation for the decision was not justiciable, or even if it were justiciable, to explore such motivation would give rise to great uncertainty.34 It follows that in giving instructions to a Governor, the Queen, advised by United Kingdom Ministers, may prefer the interests of the United Kingdom, or the interests of the United Kingdom and the overseas territories as a whole, where these may be in conflict with the particular interests of the territory concerned. This was confirmed by the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2),35 although in the different, but analogous, context of legislation by Her Majesty in Council for an overseas territory. However, a Governor cannot lawfully be instructed to act contrary to the constitution or other laws in force in the territory concerned. This is the effect of the opening words of section 35(3) of the Virgin Islands Constitution cited above, which are in substance replicated in all overseas territory constitutions: ‘Subject to the provisions of this Constitution and of any other law by which powers or duties are conferred on the Governor’. So a Governor may only be instructed to act in a way that is consistent with the law of the territory concerned. COLONIAL REGULATIONS

The current version of Colonial Regulations dates from 1977.36 These Regulations are described as ‘directions to Governors for general guidance given by the Crown through the Secretary of State for Foreign and Commonwealth Affairs’. As such they do not constitute a legislative instrument and, since they do not use the term ‘instructions’, they probably do not constitute instructions from Her Majesty either.37 Part I deals with public officers, and Part II (headed ‘Public Business’) the office of Governor, ceremonies, correspondence and finance. Although Colonial Regulations have not be revised and updated in recent years, and are now in some respects out of date, they have not been formally revoked or withdrawn. Modern guidance, however, has been given to Governors by the Foreign and Commonwealth Office by less formal means.

32 For academic criticism of Quark, where it is argued that acts of the Crown in the United Kingdom concerning an overseas territory must be in right of the United Kingdom, or of the United Kingdom and the territory concerned, because in so acting the Queen can constitutionally act only on the advice of United Kingdom Ministers, see J Finnis, ‘Common Law Constraints: Whose Common Good Counts?’, University of Oxford Faculty of Law Legal Studies Research Paper Series, Working Paper No 10/2008, available at http://papers.ssrn.com/Abstract=1100628; A Twomey, ‘Responsible Government and the Divisibility of the Crown’ (2008) Public Law 742. 33 1998 c 42. 34 See Quark, n 27 above, paras 18 (Lord Bingham), 64 (Lord Hoffmann) and 78–79 (Lord Hope). 35 Bancoult (No 2), n 17 above. 36 They were published by HM Stationery Office (ISBN 0 11 580191 X). 37 See Roberts-Wray, Commonwealth and Colonial Law, n 21 above, 239.

Executive Functions of a Governor 43 EXECUTIVE FUNCTIONS OF A GOVERNOR

The great majority of a Governor’s functions are in the executive field. Most overseas territory constitutions provide expressly that the executive authority of the territory vests in Her Majesty, and that this authority may be exercised on behalf of Her Majesty by the Governor. But it is also made clear that the Governor must do so subject to the constitution itself.38 This qualification is important, because each constitution specifies the functions that the Governor must exercise: (a) after consultation with, or in accordance with the advice of, elected local Ministers or the local Cabinet or Executive Council (where such exist); (b) after consultation with, or in accordance with the advice or recommendation of, some other person or body; (c) on instructions from Her Majesty, or on instructions or with the approval of a Secretary of State; or (d) in his or her discretion or judgement, that is to say without reference to any other local person or body, but still subject to instructions from or on behalf of Her Majesty.39 While a variety of executive functions are conferred on Governors by local legislation in a territory, and by Acts of Parliament or Orders in Council that extend to a territory, some are typically found in the constitutions of the territories. They include the following.

A. Special Responsibilities In overseas territories with elected governments, certain fields of executive government are reserved to the Governor, as opposed to local politicians, and these are called ‘special responsibilities’. The standard subjects that fall into this category are external affairs, defence, internal security, including the police, and the appointment, discipline and removal of public officers. In some territories there are others, such as finance and shipping (St Helena40), the administration of justice or the courts (St Helena, Virgin Islands41), and aspects of international finance (Anguilla, Montserrat, Turks and Caicos Islands42). Some constitutions provide the Governor with powers to delegate some of these responsibilities to Ministers or senior officials;43 and the Virgin Islands, Montserrat and Cayman Islands constitutions oblige

38 Eg Virgin Islands Constitution s 46; Falkland Islands Constitution s 56. See further ch 5, pp 79–80 below. 39 On all these matters, see further ch 5 below. 40 St Helena, Ascension and Tristan da Cunha Constitution s 44(1). 41 St Helena, Ascension and Tristan da Cunha Constitution s 44(1); Virgin Islands Constitution s 60(1). 42 Anguilla Constitution s 28(2); Montserrat Constitution s 39(1); Turks and Caicos Islands Constitution s 33(1). 43 See eg Bermuda Constitution s 62(2); Virgin Islands Constitution s 60(3).

44 The Office of Governor the Governor to delegate considerable functions to Ministers in the external field.44 These matters are considered more fully in chapters five, ten and thirteen.

B. Responsibility for the Public Service In each territory a major concern of the Governor is the good government of the territory and, as a vital contribution to that, the best possible performance of the territory’s public service. This is reflected in the special responsibilities of the Governor described above. The public service of a territory is staffed by officers of the Crown (in right of the territory, not of the United Kingdom) and they are therefore ultimately under the authority of the Governor as Her Majesty’s representative in the territory. The constitutions and laws of the territories confer extensive functions on Governors in relation to the public service and public officers. This is considered in more detail in chapter five.

C. Assignment of Responsibilities to Ministers In territories with ministerial systems of government, the constitutions give power to the Governor to assign executive responsibilities to Ministers in fields other than the special responsibilities of the Governor. This power is normally exercisable on the advice of the Premier or Chief Minister.45

D. Power to Prorogue or Dissolve the Legislative Body In territories with elected legislative bodies, the constitutions confer power on the Governor to prorogue or dissolve that body. The power of prorogation is usually exercisable on the advice of the Premier or Chief Minister. By contrast, the Governor is in most territories given ultimate discretion as to whether to dissolve a legislative body.46 In Bermuda and Gibraltar, the circumstances in which the Governor may dissolve without, or contrary to, the advice of the Premier or Chief Minister are specified.47 In all cases, dissolution is mandatory when the parliamentary term specified in the constitution has elapsed.48

E. Powers of Appointment All overseas territory constitutions confer on Governors the power to make appointments to a variety of offices. These include the appointment of the Premier or

44 Virgin Islands Constitution s 60(4) to (7); Montserrat Constitution s 39(4); Cayman Islands Constitution s 55(4) to (6). 45 See eg Bermuda Constitution s 61; Virgin Islands Constitution s 56. 46 See eg Virgin Islands Constitution s 84(2); Anguilla Constitution s 63(2). 47 Bermuda Constitution s 49(1); Gibraltar Constitution s 38(3). 48 See eg Bermuda Constitution s 49(2); Gibraltar Constitution s 38(2); Anguilla Constitution s 63(3).

Executive Functions of a Governor 45 Chief Minister and other Ministers, and judicial and public service appointments.49 Each constitution specifies how this power is to be exercised, in particular whether the Governor may do so in his or her discretion, or must act on instructions, or must do so after consulting, or on the advice of, some other person or body. This is considered further in chapter five.

F. Power to Dispose of Crown Land The Governor is given power by overseas territory constitutions, subject to any law in force, to dispose of Crown land or other immovable property ‘in Her Majesty’s name and on Her Majesty’s behalf’. The use of this phrase makes clear that the power is merely delegated by the sovereign, and is not assigned to the Governor. The power may still therefore be exercised by Her Majesty, advised by Her Ministers in London.50 The land and property concerned is that which vests in the Crown in right of the Government of the territory in question. The Governor is usually given power to sub-delegate this function personally (‘by writing under his or her hand’), but is not obliged to do so.51 In territories where there is an elected government, the Governor must normally exercise this function on the advice of the local Executive Council or Cabinet.52 In Gibraltar there are special provisions dealing with ordinary Crown lands, for the disposal of which the Governor acts on the advice of the Chief Minister, and Crown lands which are at any time in the possession, occupation, use or control of a United Kingdom Government authority, for the disposal of which the Governor acts on the instructions of a Secretary of State and with the consent of the Chief Minister.53

G. Power to Constitute Offices The Governor is given power by overseas territory constitutions to constitute offices for the territory ‘in Her Majesty’s name and on Her Majesty’s behalf’.54 This is usually expressed to be subject to any law in force in the territory, and in practice many public offices are created by local legislation. The Governor’s power, which in territories with an elected government must normally be exercised on the advice of the Executive Council or Cabinet, is in the nature of a residual prerogative power to create offices under the Crown. The resulting public expenditure must be voted by the territory’s legislature. Again, the power is delegated rather than assigned to the Governor. 49

See eg Bermuda Constitution ss 58, 73(4), 77(3), 82(1). In practice this is very unlikely to happen, apart from exceptional circumstances such as a public emergency or for defence purposes. 51 See eg Falkland Islands Constitution s 73; Bermuda Constitution s 24. 52 The Virgin Islands Constitution s 41, is in stronger terms, requiring the prior approval of the Cabinet. 53 Gibraltar Constitution s 75. 54 See eg Falkland Islands Constitution s 82; Virgin Islands Constitution s 42. 50

46 The Office of Governor H. Powers of Pardon Overseas territory constitutions delegate the Royal prerogative of mercy, in common form language, by giving the Governor power, ‘in Her Majesty’s name and on Her Majesty’s behalf’, to grant convicts a pardon or a respite from the execution of sentence, to substitute a less severe form of punishment than that to which a convict has been sentenced, or to remit the whole or any part of any sentence passed.55 In some territories the constitution requires the Governor to exercise this power after consulting an Advisory Committee on the Prerogative of Mercy,56 in others after consulting a Mercy Committee57 or a Minister,58 and in others the Governor is required to consult no-one.59 Even in cases where the Governor must consult some other body, the Governor is not bound by any advice it might give. In some cases this is made explicit,60 in others it results from the requirement that the Governor must consult, rather than act in accordance with the advice of, another person or authority.61 Once again, this power is merely delegated, rather than assigned, to the Governor by the sovereign. It therefore remains open to Her Majesty to exercise the power, on the advice of Her Ministers in the United Kingdom.62 The Governor may also be instructed as to the exercise of the power by or on behalf of Her Majesty. FUNCTIONS OF A GOVERNOR IN THE LEGISLATIVE FIELD

In overseas territories without an elected legislative body, the Governor is constituted as the legislature by the constitution. Thus, in South Georgia and the South Sandwich Islands, the British Antarctic Territory and the British Indian Ocean Territory, the Commissioner alone is given power to make laws for the peace, order and good government of the territory,63 as is the Administrator in the Sovereign Base Areas.64 For Ascension and Tristan da Cunha the Governor has power to make laws for the peace, order and good government of the islands, but must first consult the Island Council in each case.65 The same applies to Pitcairn, although in that case the

55

See eg Falkland Islands Constitution s 71; Virgin Islands Constitution s 43. See eg Falkland Islands Constitution ss 70 and 71; Virgin Islands Constitution ss 43 and 44. 57 Montserrat Constitution s 29. 58 Gibraltar Constitution s 76. 59 See eg South Georgia and South Sandwich Islands Order 1985 s 11; British Indian Ocean Territory (Constitution) Order 2004 s 12. 60 See eg Virgin Islands Constitution s 43(2); Cayman Islands Constitution s 39(2). 61 See eg Bermuda Constitution s 22(2) read with s 21(4); Falkland Islands Constitution s 71(1) read with s 100(9). 62 In practice such intervention would only be in very exceptional circumstances: see the ‘Creech Jones doctrine’ described in Roberts-Wray, Commonwealth and Colonial Law, n 21 above, 342, and Hansard, HC Debates, vol 441, Written Answers, cols 230–33, though the consideration relating to capital cases is otiose following the abolition of capital punishment in the overseas territories. 63 South Georgia and South Sandwich Islands Order 1985 s 9(1); British Antarctic Territory Order 1989 s 13(1); British Indian Ocean Territory (Constitution) Order 2004 s 10(1). 64 Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 s 4(1). 65 St Helena, Ascension and Tristan da Cunha Constitution ss 151 and 216. 56

Functions of a Governor in the Judicial Field 47 Governor also has an exceptional power to make such laws without consulting the Island Council when instructed to do so by a Secretary of State.66 In some other territories, the Governor has a reserved legislative power, which may be used for defined purposes and according to a prescribed procedure. The power is available in cases where the elected legislative body fails to pass a bill that the Governor considers ought to be passed. In one form or other this power exists in the constitutions of Anguilla, the Cayman Islands, the Falkland Islands, Gibraltar, the Turks and Caicos Islands and the Virgin Islands.67 Otherwise, the main function of the Governor in the legislative field is the power of assent in relation to bills passed by the elected legislative body of the territory. These matters are examined in greater depth in chapter four. EMERGENCY POWERS

In all overseas territories the Governor has considerable powers in the event of an emergency. These include the power to declare an emergency, and having done so to issue emergency regulations with the force of law during the period of emergency. The legal basis for these powers is the constitution in the Cayman Islands, the Virgin Islands and Montserrat,68 while in most territories it is separate Orders in Council69 or local legislation. This is considered in more detail in chapter ten. FUNCTIONS OF A GOVERNOR IN THE JUDICIAL FIELD

No Governor has any judicial function in the overseas territories. But as the Queen’s representative the Governor is given powers to make judicial appointments. These powers are usually prescribed in the constitution for senior judicial appointments,70 and in many cases too for the appointment of magistrates.71 The constitutions also give the Governor an important role in the suspension and removal of senior judges, and in several cases magistrates.72 These matters are considered further in chapter six.

66

Pitcairn Constitution s 36. Anguilla Constitution s 56; Cayman Islands Constitution s 81; Falkland Islands Constitution s 55; Gibraltar Constitution s 34; Turks and Caicos Islands Constitution s 68; Virgin Islands Constitution s 81. At the time of writing the Governor is the sole legislative authority in the Turks and Caicos Islands, the local House of Assembly having been dissolved and suspended: see SI 2009/701; but that situation is intended to be temporary. 68 Cayman Islands Constitution s 21; Virgin Islands Constitution s 27; Montserrat Constitution s 18. 69 Emergency Powers Orders in Council 1939 to 1973 (SI 1952/2031, 1956/731, 1963/88, 1963/1633, 1964/267, 1964/1199, 1965/131, 1968/724, 1973/759); Leeward Islands (Emergency Powers) Order in Council 1959 (SI 1959/2206). 70 See eg Bermuda Constitution ss 73(3) and (4), 77(3); Falkland Islands Constitution s 88(1). 71 See eg Cayman Islands Constitution s 106(4)(e); St Helena, Ascension and Tristan da Cunha Constitution ss 90(4) and 161. 72 See eg Bermuda Constitution ss 74, 78 and 89; Falkland Islands Constitution s 90. 67

48 The Office of Governor In most territories the Governor, either expressly in the constitution or by implication or practice, has executive responsibility for the administration of justice.73 The necessary expenditure for this needs to be voted by the territory’s legislature. ACTING GOVERNORS

The constitutions of the overseas territories make provision for who is to act in the office of Governor whenever the office is vacant or the holder of the office, the substantive Governor, is for any reason unable to perform the functions of the office. In some of the larger territories there is an office of Deputy Governor, and the constitutions of those territories provide that the Deputy Governor is first in line to act as Governor.74 In the absence of the Deputy Governor, and in territories where there is no Deputy Governor, the constitutions usually provide that a person designated by instructions from Her Majesty through a Secretary of State is to act as Governor. Thus, for example, section 37(1) of the Virgin Islands Constitution provides: During any period when the office of Governor is vacant or the Governor is absent from the Virgin Islands or is for any other reason unable to perform the functions of his or her office— (a) the Deputy Governor; or (b) if the office of Deputy Governor is vacant, or the Deputy Governor is absent from the Virgin Islands or is for any other reason unable to perform the functions of the office of Governor, such person as Her Majesty may designate by instructions given through a Secretary of State (in this section referred to as ‘the person designated’), shall, during Her Majesty’s pleasure, act in the office of Governor and shall perform the functions of that office accordingly.

As an example of a territory with no Deputy Governor, section 24(1) of the Falkland Islands Constitution provides: During any period when the office of Governor is vacant or the holder of it is absent from the Falkland Islands or is for any reason unable to perform the functions of that office those functions shall, during Her Majesty’s pleasure, be assumed and performed by such person as Her Majesty may designate in that behalf by instructions given through a Secretary of State.

These are, however, only examples. It is important to look at the precise constitutional provisions for the territory in question, which of course must be followed. The importance of ensuring that an acting Governor is validly designated or appointed, or that the functions of the office of Governor have been validly assumed by any person, hardly need emphasis.

73 See eg Virgin Islands Constitution s 60(1)(e); Falkland Islands Constitution s 67(2)(d); St Helena, Ascension and Tristan da Cunha Constitution s 44(1)(e). But in Bermuda and Gibraltar there is a Minister responsible for justice. 74 Anguilla Constitution ss 19A and 20(1); Bermuda Constitution ss 18 and 19(1); Cayman Islands Constitution ss 34 and 35(1); Montserrat Constitution ss 23 and 25(1); Turks and Caicos Islands Constitution ss 22 and 23(1); Virgin Islands Constitution ss 36 and 37(1).

Governors’ Deputies 49 When a person other than the substantive Governor has validly assumed office as acting Governor, he or she steps into the shoes of the Governor and alone has legal authority to perform the functions of that office. This is clear from the language used in the constitutions: in the Virgin Islands example cited above, ‘shall perform the functions of that office’, and in the Falkland Islands example, ‘those functions shall ... be assumed and performed’. That does not of course preclude the acting Governor consulting the substantive Governor, where that is possible, but the functions of the office must still be performed by the acting Governor. The constitutions usually provide that an acting Governor shall not continue to act in the office of Governor after the substantive Governor has notified the acting Governor that he or she is about to assume or resume the functions of that office.75 There is no objection to standing instructions that designate a particular individual, or the person for the time being holding a particular office, as an acting Governor. But such instructions clearly need to be kept under regular review to ensure their current effectiveness. Alternatively, instructions may be given ad hoc. GOVERNORS’ DEPUTIES

The constitutions of several overseas territories provide for the appointment of a Governor’s deputy during a temporary absence or incapacity of the Governor. This should not be confused with the permanent office of Deputy Governor, in those territories where that office exists, although a Governor of such a territory may, and often does, appoint the Deputy Governor as his temporary deputy under these provisions. The appointment of a temporary deputy is distinct from the appointment of an acting Governor, in terms of time, function and purpose, though the two are sometimes confused. A typical modern example of provisions for the appointment of a temporary deputy is to be found in section 39 of the Virgin Islands Constitution: (1) Whenever the Governor— (a) has occasion to be absent from the seat of Government but not from the Virgin Islands; (b) has occasion to be absent from the Virgin Islands for a period which he or she has reason to believe will be of short duration; or (c) is suffering from any illness which he or she has reason to believe will be of short duration, the Governor may, acting in his or her discretion, by instrument under the public seal, appoint the Deputy Governor, or if the Deputy Governor is not available any other person in the Virgin Islands who is a Virgin Islander as defined in section 65(2), to be his or her deputy during such absence or illness and in that capacity to perform on his or her behalf such of the functions of the office of Governor as may be specified in that instrument. (2) The power and authority of the Governor shall not be affected by the appointment of a deputy under this section, and a deputy shall comply with such instructions as the 75

See eg Virgin Islands Constitution s 37(3); Falkland Islands Constitution s 24(3).

50 The Office of Governor Governor, acting in his or her discretion, may from time to time address to the deputy; but the question whether or not the deputy has in any matter complied with any such instructions shall not be enquired into in any court. (3) A person appointed as a deputy under this section shall hold that appointment for such period as may be specified in the instrument by which he or she is appointed, and the appointment may be revoked at any time by Her Majesty by instructions given through a Secretary of State or by the Governor, acting in his or her discretion.

A number of points emerge from these provisions, which are standard in those constitutions that include them.76 They are designed to be activated during a temporary absence or incapacity of the Governor, and therefore provide an alternative—in the circumstances defined in subsection (1)—to the appointment of an acting Governor. They allow the Governor to specify which of the functions of the office of Governor—all or just some—may be performed by the deputy on the Governor’s behalf: see the end of subsection (1). But it is obviously important that a specification of functions is actually made. This is an important distinction from the situation of an acting Governor, who assumes all the functions of the office of Governor. The appointment of a deputy does not detract from the power and authority of the Governor, which continues; and the deputy must comply with any instructions the Governor may address to the deputy: see subsection (2). This too is a crucial distinction from the position of an acting Governor, who alone has authority to perform the functions of the office of Governor. A deputy may act as such for the term specified in the instrument of appointment, and the appointment may be terminated at any time by instructions from London or by the Governor: see subsection (3). OATHS OR AFFIRMATIONS TO BE TAKEN BY GOVERNORS

Most overseas territory constitutions require the Governor, and any person acting as Governor, to take an oath or affirmation of allegiance to the sovereign and an oath or affirmation for the due execution of the office of Governor. They must do so before assuming the functions of that office. The words of the oaths or affirmations are set out in a Schedule or Annex to the constitution.77 LEGAL LIABILITY OF GOVERNORS

As a general rule, a Governor is not immune from judicial process. The acts of a Governor, and of any person performing the functions of the office of Governor,

76 Anguilla Constitution s 21; Cayman Islands Constitution s 36 (but in this case the word ‘deputy’ is not used); Gibraltar Constitution s 23; St Helena, Ascension and Tristan da Cunha Constitution s 28; Turks and Caicos Islands Constitution s 24. 77 See eg Virgin Islands Constitution ss 35(4), 37(2) and Schedule 1; Falkland Islands Constitution ss 23(3), 24(2) and Annex B.

Legal Liability of Governors 51 are in principle subject to judicial review in the courts of the territory in the normal way and in accordance with the law of the territory.78 The constitutions of the territories provide for very limited exceptions. A standard exception is that the question whether or not a Governor has in any matter complied with instructions from Her Majesty shall not be inquired into by any court.79 A subset of this exception is that the question whether or not a Governor’s deputy has complied with any instructions given to the deputy by the Governor shall not be inquired into by any court (see for example section 39(2) of the Virgin Islands Constitution quoted above). In territories with an elected government a further standard exception is that no court may inquire into the question whether the Governor has in any matter acted on the advice of, or after consultation with, any other person or authority.80 All of these are traditional exceptions in overseas territory constitutions, the limited issues they deal with being regarded as political, rather than justiciable, matters.81 It should be recalled that in all cases Governors hold office at Her Majesty’s pleasure. As regards civil liability, a Governor may be sued in the territory courts in respect of private law claims, whether arising in or outside of the territory.82 Furthermore, a Governor may be sued in the territory in respect of an official act which is tortious or ultra vires under the law of the territory, as well as in England if the act is tortious in England and not justifiable under the law of the territory.83 It is for the courts to determine the true character of an act done by a Governor, whether the Governor was authorised to do it, and whether any legal immunity attaches to it.84 It has been held that a Governor cannot be personally liable in respect of a contract made in his official capacity,85 and that civil liability can be barred, both in the territory and in England, by territory legislation giving the Governor an indemnity, even though the Governor participated in the enactment of that legislation.86 A Governor is not immune from the obligation to give evidence in legal proceedings, but official documents held by a Governor in his or her capacity as such are prima

78 Musgrave v Pulido (1879) 5 App Cas 102 (PC). For recent examples of Governors’ actions being judicially reviewed, see Privy Council judgments in McLaughlin v Governor of the Cayman Islands [2007] UKPC 50, and Swann v Attorney General of the Turks and Caicos Islands [2009] UKPC 22. 79 See eg Bermuda Constitution s 17(2); Virgin Islands Constitution s 35(3). The Gibraltar Constitution s 20(3), prefaces the exception with the words: ‘Notwithstanding the jurisdiction of the courts in respect of functions exercised by the Governor’, and the Cayman Islands Constitution s 31(4), is in similar terms. 80 Eg Bermuda Constitution s 21(6); Virgin Islands Constitution s 40(6). 81 For discussion of the scope of these exceptions, see E Davies, The Legal Status of British Dependent Territories (Cambridge, Cambridge University Press, 1995) 223–25. 82 Hill v Bigge, n 14 above, Musgrave v Pulido, n 14 above. 83 Mostyn v Fabrigas (1774) 1 Cowp 161; Glynn v Houston (1841) 2 Man & G 337. 84 Musgrave v Pulido, n 14 above, 111; De Verteuil v Knaggs [1918] AC 557 (PC). 85 MacBeath v Haldimand (1786) 1 TR 172. 86 Phillips v Eyre (1870) LR 6 QB 1.

52 The Office of Governor facie privileged from disclosure in such proceedings.87 A claim to privilege has been upheld in respect of correspondence between a Governor and a Secretary of State.88 As to criminal liability, any Governor committing any crime or offence ‘in the execution, or under colour, or in the exercise of’ his office, may be tried by any competent court in England, and on conviction may be sentenced to the penalties attaching to such crime or offence committed in England and may be adjudged incapable of holding public office.89 PETITIONS

Among the many tasks of a Governor is handling complaints and correspondence from inhabitants of the territory. Most of these are dealt with locally. But any officer in an overseas territory has the right to address the Secretary of State, and any person in an overseas territory may petition the Queen directly. In either of these cases the Governor should act as a conduit, and offer advice to the Secretary of State. It is worth reproducing here regulations 69–71 of Colonial Regulations,90 because in substance they still reflect current policy and practice. 69. Any officer in a Territory has the right to address the Secretary of State, if he thinks proper; in which case he must transmit such communication, unsealed and in triplicate, to the Governor, requesting him to forward it in due course to the Secretary of State. Every letter, memorial or other document which may be received by the Secretary of State from a Territory otherwise than through the Governor will be referred back to the Governor for his report or returned to the writer. The rule requiring transmission of communications to the Secretary of State through the Governor is based on the strongest grounds of public convenience, in order that all communications may be duly verified, as well as reported on, before they reach the Secretary of State. It extends, therefore, to communications relating to public affairs as well as to the concerns of the writer. 70. Petitions addressed to The Queen or The Queen in Council and memorials to officers or to departments of Her Majesty’s Government in the United Kingdom must be in like manner sent to the Governor for transmission to the Secretary of State. 71. The Governor shall transmit to the Secretary of State with all reasonable despatch every communication received by him in accordance with Regulations 69 and 70 accompanied by such report as its contents may appear to him to require.

In practice, such petitions and communications are nowadays quite rare, but they do occasionally occur, and their availability to the people of the territories can act

87 Hennessy v Wright (1888) 21 QB 509; Conway v Rimmer [1968] AC 910 (HL) (Lord Reid) 946 and (Lord Morris) 965. 88 Hennessy v Wright, n 87above. 89 Criminal Jurisdiction Act 1802 (1802 c 85) s 1, as amended by Criminal Justice Act 1948 (1948 c 58) sch 10 pt I, Criminal Law Act 1967 (1967 c 58) sch 2 para 15(1), sch 3 pt III, and Statute Law Repeals Act 1995 (1995 c 44). The amendment made by the Criminal Law Act 1967 extended the 1802 Act to crimes which would previously have been felonies, thus removing any doubt about the effect of R v Shawe (1816) 5 M & S 403, in which it had been held that the 1802 Act did not apply to a charge of felony. 90 Published by HM Stationery Office (ISBN 0 11 580191 X).

The Office of Deputy Governor 53 as a valuable check on the performance of Governors and others responsible for the government of the territories. THE OFFICE OF DEPUTY GOVERNOR

The constitutions of Bermuda and each of the Caribbean territories establish the office of Deputy Governor.91 The method of appointment of these Deputy Governors varies, some being designated directly by Her Majesty by instructions given through a Secretary of State,92 some being appointed by the Governor in accordance with such instructions,93 and one being appointed by the Governor with the prior approval of a Secretary of State.94 Several modern constitutions specify that the Deputy Governor must be a ‘belonger’ of the territory.95 The main purposes of the office of Deputy Governor are to assist the Governor and to be the first in line to act as Governor during the Governor’s absence or a vacancy in the office of Governor. The functions of the Deputy Governor are defined in similar, but not identical, terms in the constitutions concerned. Section 34(4) of the Cayman Islands Constitution provides concisely: The Deputy Governor shall have such functions as (subject to this Constitution and any other law) may be delegated to him or her by the Governor, acting in his or her discretion.

Section 22(3) of the Turks and Caicos Islands Constitution contains a little more detail, but excludes functions of a ministerial nature and allows the Governor to assign, rather than only delegate, functions to the Deputy Governor. It provides: The Deputy Governor shall assist the Governor in the exercise of his or her functions, and shall have such functions, not of a ministerial nature, as (subject to this Constitution and any other law) may be assigned to him or her by the Governor, acting in his or her discretion.

The functions of the Deputy Governor in Anguilla, Bermuda, Montserrat and the Virgin Islands are defined in greater detail.96 Section 34(5) of the Cayman Islands Constitution provides that, under the authority of the Governor, the Deputy Governor shall be head of the civil service. The Constitution of Montserrat gives substantive functions to the Deputy Governor in relation to the public service, under the Governor’s authority and subject to

91 Anguilla Constitution s 19A(1); Bermuda Constitution s 18(1); Cayman Islands Constitution s 34(1); Montserrat Constitution s 23(1); Turks and Caicos Islands Constitution s 22(1); Virgin Islands Constitution s 36(1). 92 Anguilla Constitution s 19A(1); Cayman Islands Constitution s 34(1); Virgin Islands Constitution s 36(1). 93 Bermuda Constitution s 18(1); Turks and Caicos Islands Constitution s 22(1). 94 Montserrat Constitution s 23(2). 95 Cayman Islands Constitution s 34(2)(a); Montserrat Constitution s 23(1); Virgin Islands Constitution s 36(1). A similar requirement in the Turks and Caicos Islands Constitution s 22(1), was suspended (along with many other provisions of the Constitution) by SI 2009/701, s 7 and sch 1 para 2(a). 96 Anguilla Constitution s 19A(2) to (6); Bermuda Constitution s 19A; Montserrat Constitution s 24; Virgin Islands Constitution s 38.

54 The Office of Governor directions from the Governor.97 These provisions have the advantage of providing a constitutional basis for senior management of the territory’s public service by the (local) Deputy Governor. In Anguilla the Deputy Governor is an ex officio member of the Executive Council and the House of Assembly,98 and in the Cayman Islands the Deputy Governor is an ex officio member of the Cabinet, the National Security Council and the Legislative Assembly.99 In Montserrat the Deputy Governor has the right to attend and take part in meetings of the Cabinet and the Legislative Assembly, but without the right to vote.100 There is no Deputy Governor in the other eight territories. In Gibraltar, the office of Deputy Governor (which had been established by the 1969 Constitution) was discontinued in the 2006 Constitution. In the Falkland Islands, the equivalent office is that of Chief Executive, and in St Helena it is Chief Secretary. Each is an ex officio member of the local Executive Council and legislative body.101 The Chief Executive in the Falkland Islands is, constitutionally, the head of the public service and has power to make most public service appointments, under the authority and subject to directions of the Governor.102 The Chief Secretary of St Helena has no functions in relation to Ascension and Tristan da Cunha, each of which has a resident Administrator under the authority of the Governor.103 GOVERNOR’S STAFF

Most Governors are served by staff who work in the Governor’s Office. Such staff may include officers posted from the United Kingdom Government as well as locally-engaged officers. All members of the Governor’s staff are in the service of the territory Government, of which the Governor is the senior officer.

97

See ss 24(2) and (3) and 84. Anguilla Constitution ss 23 and 35(2)(b). 99 Cayman Islands Constitution ss 44(1)(c), 58(1)(f) and 60(1)(c). 100 Montserrat Constitution ss 32(4) and 50(1). 101 Falkland Islands Constitution ss 57(1) and 26(2); St Helena, Ascension and Tristan da Cunha Constitution ss 35(1)(b) and 48(b)(ii). 102 Falkland Islands Constitution ss 83(2) and 84(1). 103 St Helena, Ascension and Tristan da Cunha Constitution ss 147(1) and 212(1). 98

4 Legislative Authority and Controls

T

HE POWER TO make laws for the British overseas territories is dispersed among various authorities. It is not uniform throughout the territories. But it has in common that legislative authority resides both in the United Kingdom and in (or in respect of) each territory. Laws enacted by a legislative authority constituted specifically in or for a territory are sometimes called ‘local legislation’, to distinguish them from laws made for a territory by a legislative authority in the United Kingdom. This chapter examines the various legislative authorities of the territories, and the relationship between laws made for a territory in the United Kingdom and local legislation of a territory. It also considers what checks and controls, both executive and judicial, exist in relation to legislation enacted for the territories. LEGISLATIVE AUTHORITIES IN THE UNITED KINGDOM

This part of this chapter examines the powers of legislative authorities in the United Kingdom to make laws that extend to an overseas territory and form part of its law. It is not concerned with laws that form part of the law of the United Kingdom (or a constituent part of it) only, which refer to a territory or provide for legal effects in the United Kingdom of things done in a territory, such as the recognition of judgments delivered or probate granted in a territory.1 It is sometimes provided in such laws that provisions of them ‘extend to’ a territory, but they do not form part of its law.2 It is important to keep in mind this distinction, which is sometimes confused.

A. Parliament The Westminster Parliament is the supreme legislative authority of the United Kingdom and of all territories under United Kingdom sovereignty. Accordingly Parliament has unlimited power to enact laws for all British overseas territories.3 In some cases this is done by an Act of Parliament which itself applies to one or more 1 Eg Administration of Justice Act 1920 (1920 c 81), Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 c 13), Colonial Probates Act 1892 (1892 c 6), and Orders in Council made under those Acts. 2 It is possible that a law might fall into both categories, some provisions forming part of the law of a territory and others referring to a territory but not forming part of its law. Careful analysis is always required. 3 See Madzimbamuto v Lardner-Burke and George [1969] 1 AC 645 (PC), at 722.

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territories. In such cases the Act normally provides for such territorial application, either in whole or in part. An example is the British Overseas Territories Act 2002,4 section 8(4) of which provides: This Act extends to— (a) the United Kingdom, (b) the Channel Islands and the Isle of Man, and (c) the British overseas territories.

An Act of Parliament may apply to an overseas territory expressly, as in this example, or by necessary intendment.5 Otherwise it does not. In modern practice express application is the norm. Examples of statutes which themselves apply to all or any British overseas territories are in recent times rare. Those that apply to all usually deal with matters that require uniform treatment throughout British territory, such as British nationality.6 Some old Acts are still important and applied from time to time, such as the Colonial Prisoners Removal Act 1884.7 Occasionally an Act applies only to one territory. For example, the European Parliament (Representation) Act 20038 applies in part to Gibraltar. More frequently, Acts of Parliament confer power to make subordinate legislation for the British overseas territories. Such a power is usually conferred on Her Majesty to legislate by Order in Council. This may be for a variety of purposes. Chapter two describes examples of statutory powers to make constitutions for overseas territories. The other main purpose is to make provision by Order in Council to implement in the territories international obligations of the United Kingdom that extend to the territories. For example, Orders in Council are routinely made under the United Nations Act 19469 to implement in the overseas territories resolutions of the United Nations Security Council establishing sanctions regimes. Other current examples deal with important matters such as civil aviation,10 merchant shipping,11 and extradition,12 though in these cases the power to extend provisions of the Act to the territories is not confined to the implementation of international obligations. There are other examples in less predictable areas, such as outer space13 and Antarctica.14 In Acts passed before 2002 it is common to find the overseas territories referred to as ‘colonies’.15 As a matter of practice, since the passage of the British Overseas Territories Act 2002 they are described as ‘British overseas territories’.

4

2002 c 8. F Bennion, Statutory Interpretation, 4th edn (London, Butterworths, 2002) 282. 6 British Nationality Act 1981 (1981 c 61) s 53(5). 7 1884 c 31. See further ch 10 below. 8 2003 c 7. 9 1946 c 45. 10 Civil Aviation Act 1982 (1982 c 16) s 108. 11 Merchant Shipping Act 1995 (1995 c 21) s 315. 12 Extradition Act 1989 (1989 c 33) ss 32–34. 13 Outer Space Act 1986 (1986 c 38) s 15(6). 14 Antarctic Act 1994 (1994 c 15) s 34. 15 But there are variations. In some older Acts, they come within general words such as ‘Her Majesty’s dominions’ (eg United Nations Act 1946) or ‘British possession’ (eg Colonial Probates Act 1892). 5

Legislative Authorities in the United Kingdom

57

There is no rule of law that requires the consent of a territory, or even prior consultation with a territory, before Parliament legislates for it. In modern practice consultation is normally undertaken where practicable. That is particularly so before Orders in Council made under statutory powers are made for a territory. There are good reasons for that practice. It is a matter not only of respect for the democratic system of the territory, but also to ensure that the Order will fit and work well with the existing law in force in the territory. On rare occasions such prior consultation is impracticable due to urgency, or (even more rarely) is considered undesirable for other reasons. The power of Parliament to legislate for a British overseas territory is a principal mark, if not the principal mark, of the dependence of the territory on the United Kingdom. Acts of Parliament granting independence to former British territories routinely provided for the removal of that power. For example, section 1(2) of the Kiribati Act 197916 provides: No Act of the Parliament of the United Kingdom passed on or after Independence Day shall extend, or be deemed to extend, to Kiribati as part of its law.

B. Her Majesty in Council Orders in Council are made by Her Majesty with the advice of the Privy Council. Orders in Council making law for a British overseas territory are normally made under powers conferred by Act of Parliament. An Act may, and many Acts do, confer such power for specified purposes in respect of any or all of the territories. In these cases such Orders in Council are subordinate legislation. By contrast, where Orders in Council are made in exercise of the Royal prerogative, they are primary legislation in the sense that the legislative power of the Crown is original and not subordinate.17 In addition to the power to legislate for specific purposes, there is also a general power to legislate by Order in Council for all of the overseas territories except Bermuda. The legal basis for this general power is exclusively the Royal prerogative for Gibraltar and the British Indian Ocean Territory, and for the other 11 territories it derives, at least in part, from an Act of Parliament. Furthermore, the Orders in Council making constitutions for all of the territories except Bermuda and the Sovereign Base Areas expressly reserve to Her Majesty power to make laws for the peace, order and good government of the territory in question. There are historical reasons behind this practice. At common law, in a settled territory the Crown by prerogative power may grant a constitution but may not enact ordinary legislation.18 In a ceded or conquered territory, and probably also in a territory acquired by annexation, the Crown could by prerogative 16

1979 c 27. This was accepted by Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL) para 34, and such Orders are classified as primary legislation by the Human Rights Act 1998 (1998 c 42) s 21 (definition of ‘primary legislation’, para (f)(i)). 18 Phillips v Eyre (1870) LR 6 QB 1; Sammut v Strickland [1938] AC 678 (PC). 17

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power both establish a constitution and, at least initially, enact ordinary legislation.19 But in Campbell v Hall,20 the Judicial Committee of the Privy Council held that in a conquered colony (Grenada) if the Crown establishes a representative legislative body, without reserving to itself the power to legislate, that power is no longer exercisable. This was confirmed in other cases, notably Sammut v Strickland,21 in which the Judicial Committee said that a grant of representative institutions ‘without the reservation of a power of concurrent legislation precludes the exercise of the prerogative while the legislative institutions continue to exist’. It is accepted that this rule applies both to conquered and ceded territories,22 and probably also to annexed territories. The practice of expressly reserving the right of the Crown to legislate in most of the current constitutional instruments was probably followed to leave no doubt that the sovereign was retaining Her own legislative power for that territory and, for the territories acquired by cession, to negative the rule in Campbell v Hall that the power would be lost in the absence of such a reservation. But for most present British overseas territories the position is clarified by the terms of specific Acts of Parliament. A modern example of the reservation of general legislative power is section 11 of the Falkland Islands Constitution Order 2008,23 which provides: There is reserved to Her Majesty full power to make laws for the peace, order and good government of the Falkland Islands including, without prejudice to the generality of the foregoing, laws amending this Order or the Schedule.

There is a question whether this reservation of power is strictly necessary, given the terms of sections 2 and 3 of the British Settlements Acts 1887 and 1945,24 under which the Order was made. Section 2 enables Her Majesty by Order in Council from time to time to establish any such laws as shall appear to Her Majesty in Council to be necessary for the peace, order and good government of Her Majesty’s subjects and others within any British settlement. Section 3 provides that, notwithstanding any delegation of Her Majesty’s powers under the Acts to any local person or authority, Her Majesty may exercise all or any of the powers under the Acts. These provisions appear amply to reserve the power to make laws for the Falkland Islands. But the express reservation in the Order was probably included, in accordance with the general practice of doing so in constitution Orders for the overseas territories, for the avoidance of any doubt. Another recent example of a reservation is section 125 of the Cayman Islands Constitution,25 which provides: There is reserved to Her Majesty full power to make laws for the peace, order and good government of the Cayman Islands.

19 Campbell v Hall (1774) 1 Cowp. 204; Phillips v Eyre, n 18 above; Sammut v Strickland, n 18 above; as regards territories acquired by annexation, see K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 163–64. 20 Campbell v Hall, n 19 above. 21 Sammut v Strickland, n 18 above, 704. 22 Sammut v Strickland, n 18 above, which concerned Malta, a colony acquired by cession. 23 SI 2008/2846. 24 1887 c 54 and 1945 c 7. The inconvenience of the common law rule led to the passing of the 1887 Act: see Sabally and N’Jie v Attorney General [1965] 1 QB 273 (CA) 294 (Lord Denning). 25 SI 2009/1379.

Legislative Authorities in the United Kingdom 59 There appears to be a stronger reason for the reservation of power in this instance. The Order is made under the West Indies Act 1962,26 section 5(1) of which enables Her Majesty by Order in Council to make provision for the government of the Cayman Islands and for that purpose to provide for the establishment for the Islands of such authorities as She thinks expedient and to empower such of them as may be specified in the Order to make laws either generally for the peace, order and good government of the Islands or for such limited purposes as may be so specified subject, however, to the reservation to Herself of power to make laws for the colony for such (if any) purposes as may be so specified.

It is unclear whether the words quoted require, or merely enable, such a reservation of power to be made. The use of the words ‘if any’ suggests that the latter interpretation is better; a reservation of power is optional. But in any case, if the power is to be reserved a choice is required as to its purposes, because these must be specified in the Order. In the Cayman Islands Constitution this is done, in the most ample terms, in section 125 quoted above. Similar reservations of the power to legislate by Order in Council for the peace, order and good government of the territory are contained in the constitution Orders of Anguilla, the British Antarctic Territory, the British Indian Ocean Territory, the Falkland Islands (as noted above), Gibraltar, Montserrat, Pitcairn, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, the Turks and Caicos Islands, and the Virgin Islands.27 Of these, the constitution Orders for the British Antarctic Territory, Pitcairn, Ascension and Tristan da Cunha, and South Georgia and the South Sandwich Islands are made under the British Settlements Acts 1887 and 1945, as is the Falkland Islands Constitution Order 2008 discussed above. As with the Falkland Islands, the reservation of power in these cases seems precautionary but not legally essential. The constitution Orders of the Virgin Islands, Montserrat and the Turks and Caicos Islands are made under the West Indies Act 1962, as is the Cayman Islands Constitution discussed above. In these cases there are, as with the Cayman Islands, stronger reasons for the reservation of power, which in each instance is in plenary terms (‘peace, order and good government’). For St Helena, the governing statute is the St Helena Act 1833,28 section 112 of which provides that St Helena shall be governed by such orders as His Majesty in Council shall from time to time issue in that behalf.

26

1962 c 19. Anguilla Constitution Order 1982 (SI 1982/334) s 9; British Antarctic Territory Order 1989 (SI 1989/842) s 20; British Indian Ocean Territory (Constitution) Order 2004 (see Annex, p 305 below) s 15; Gibraltar Constitution Order 2006 (SI 2006, III, p 11503), Annex 2 para 8; Montserrat Constitution Order 2010 (SI 2010/2472) s 121; Pitcairn Constitution Order 2010 (SI 2010/244) s 10; St Helena, Ascension and Tristan da Cunha Constitution Order 2009 (SI 2009/1751) s 14; South Georgia and South Sandwich Islands Order 1985 (SI 1985/449) s 15; Turks and Caicos Islands Constitution Order 2006 (SI 2006/1913) s 10; Virgin Islands Constitution Order 2007 (SI 2007/1678) s 119. 28 1833 c 85. 27

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This power seems ample to enable laws to be made for St Helena by Order in Council, and the reservation of power in the constitution Order seems predominantly precautionary. The same can be said of Anguilla, the constitution Order of which is made under the Anguilla Act 1980,29 section 1(2) of which 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 reservation of general legislative power in the constitution Orders for Gibraltar and the British Indian Ocean Territory is made in pursuance of the prerogative power to make the constitution itself. As each constitution establishes a legislature for the territory, and since it was evidently desired to reserve the power to legislate for the peace, order and good government of the territory by Order in Council, it was a sensible legal precaution to do so expressly. Both territories were acquired by cession, and the judgments in Campbell v Hall and Sammut v Strickland would otherwise apply to deprive the sovereign of the power to legislate for them. That is at least so as regards Gibraltar, which has a representative legislative body, and in that case the reservation was a legal necessity rather than a mere precaution. There is no reservation of general legislative power in the Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960.30 It was legally unnecessary to do so because the power of Her Majesty to legislate for these areas was confirmed and amplified by section 2(1)(b) of the Cyprus Act 1960.31 As noted above, there is no general power to legislate by Order in Council for Bermuda. In the constitution Order of Bermuda, the Bermuda Constitution Order 1968,32 there is no reservation of legislative power to Her Majesty. It is perhaps arguable that the governing statute, the Bermuda Constitution Act 1967,33 does not preclude the exercise of legislative power by Order in Council. Section 1(1) provides: Her Majesty may by Order in Council make such provision as appears to Her expedient for the government of Bermuda.

These are very general words, and ‘for the government of Bermuda’ might conceivably be construed to include ‘legislation for Bermuda’. But the short title of the Act includes the word ‘Constitution’, and the long title is ‘An Act to provide for the grant of a new constitution for Bermuda’.34 The better view is therefore that the Act provides no authority to legislate by Order in Council for Bermuda (other

29

1980 c 67. SI 1960/1369. 31 1960 c 52. 32 SI 1968/182. 33 1967 c 63. 34 Although the Anguilla Act 1980, s 1(2), is in similar terms to the Bermuda Constitution Act 1967 s 1(1), the word ‘Constitution’ does not appear in the short title of the Anguilla Act and its long title is ‘An Act to make further provision with respect to Anguilla’. Moreover, s 1(2) includes the words ‘and in connection with’, which the Bermuda Constitution Act s 1(1) does not. For an alternative view, see E Davies, The Legal Status of British Dependent Territories (Cambridge, Cambridge University Press, 1995) 132. 30

Legislative Authorities in the United Kingdom 61 than to grant and amend a Constitution), and in practice that interpretation has been consistently followed. Accordingly, there is no general power to legislate by Order in Council for the peace, order and good government of Bermuda. However, there remains power to legislate for Bermuda by Act of Parliament and by Order in Council under specific Acts of Parliament conferring power to do so for the purposes defined in those Acts.

C. Scope of Legislative Authority There is no limit to the power of Parliament to enact legislation for any of the overseas territories.35 The scope of the power to legislate for a territory by Order in Council conferred by statute is restricted to the terms of the enabling provision of the statute. As with other types of subordinate legislation the Order must be intra vires the parent Act, and may be annulled by the courts if it is held not to be. A power (whether statutory or prerogative) to legislate by Order in Council for the ‘peace, order and good government’ of a territory is of very wide scope. A law made in pursuance of such a power is not susceptible to judicial review on the grounds of alleged incompatibility with those objects. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2),36 Lord Hoffmann put it thus: [T]he words ‘peace, order and good government’ have never been construed as words limiting the power of a legislature. Subject to the principle of territoriality implied in the words ‘of the Territory’, they have always been treated as apt to confer plenary law-making authority. For this proposition there is ample authority in the Privy Council (R v Burah (1878) 3 App Cas 889; Riel v The Queen (1885) 10 App Cas 675; Ibralebbe v The Queen [1964] AC 900) and the High Court of Australia (Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1). The courts will not inquire into whether legislation within the territorial scope of the power was in fact for the ‘peace, order and good government’ or otherwise for the benefit of the inhabitants.

Lord Rodger, having also reviewed the authorities, said:37 [I]t cannot be open to the courts to substitute their judgement for that of the Secretary of State advising Her Majesty as to what can properly be said to conduce to the peace, order and good government of BIOT. This is simply because such questions are not justiciable. The law cannot resolve them: they are for the determination of the responsible Ministers rather than judges. In this respect, the legislation made for the colonies is in the same position as legislation made by Parliament for this country

The House of Lords also held in that case that in legislating for an overseas territory the Crown may prefer the interests of the United Kingdom (or the United Kingdom and all of its territories) where these may conflict with those of the territory.38

35 36 37 38

See Madzimbamuto v Lardner-Burke and George, n 3 above, 722. Bancoult (No 2), n 17 above, para 50. Bancoult (No 2), n 17 above, para 109. Lord Carswell agreed: see ibid para 130. Bancoult (No 2), n 17 above, paras 47–49, 114, 120 and 132.

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However, the House went on to hold unanimously that Orders in Council that legislate for overseas territories are executive acts that are judicially reviewable on the normal grounds of illegality, irrationality and procedural impropriety. The extent to which such Orders are affected by the Colonial Laws Validity Act 186539 is discussed later in this chapter. LEGISLATIVE AUTHORITIES IN THE OVERSEAS TERRITORIES

A. Local Legislatures Each British overseas territory has its own legislature, established by the constitution of the territory. The vast bulk of statute law of the territories is enacted by these legislatures. In sparsely populated territories the Governor (or equivalent) is the legislature, and in some cases is not resident in the territory. So, the legislature of Ascension and of Tristan da Cunha is the Governor, who is resident in St Helena, acting after consultation with the Island Council of Ascension or of Tristan da Cunha respectively.40 The legislature of Pitcairn is the Governor, who is resident in New Zealand, acting in normal circumstances after consultation with the Island Council of Pitcairn.41 The legislature of South Georgia and the South Sandwich Islands is the Commissioner of that territory,42 who in practice has been resident in (and the Governor of) the Falkland Islands. The legislatures of the British Antarctic Territory and the British Indian Ocean Territory are, respectively, the Commissioners of those territories,43 who are resident in London and also hold office in the Foreign and Commonwealth Office. (In practice the same person is usually the Commissioner for each territory.) In the Sovereign Base Areas the legislature is the Administrator,44 who is resident in the territory. In each case the Governor, Commissioner or Administrator has power ‘to make laws for the peace, order and good government of the territory’.45 By contrast, in eight of the nine substantially populated territories there are local, predominantly elected, legislative bodies that form part of their legislatures.46 These bodies have a variety of names, but the name of the legislative body is legally immaterial. In Bermuda, there is an appointed Senate and an elected House of Assembly, this being the only territory with a bicameral legislature. In Gibraltar, the elected legislative body is the Gibraltar Parliament. In Anguilla and the Virgin Islands there

39

1865 c 63. St Helena, Ascension and Tristan da Cunha Constitution ss 151 and 216. 41 Pitcairn Constitution s 36(1). Exceptionally, the Governor may legislate without consulting the Island Council whenever instructed to do so by a Secretary of State: see s 36(3). 42 South Georgia and South Sandwich Islands Order 1985 s 9(1). 43 British Antarctic Territory Order 1989 s 13(1); British Indian Ocean Territory (Constitution) Order 2004 s 10(1). 44 Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 s 4(1). 45 See provisions cited in nn 40–44 above. 46 In the ninth, the Turks and Caicos Islands, there is normally a House of Assembly, but this was dissolved and provision for it temporarily suspended in 2009; in the interim, at the time of writing, the Governor is the sole legislative authority: see Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (SI 2009/701). 40

Legislative Authorities in the Overseas Territories 63 is a House of Assembly. In the Falkland Islands, Montserrat and the Cayman Islands there is a Legislative Assembly. In St Helena there is a Legislative Council. Apart from the Senate in Bermuda, the members of which are all appointed, all of these bodies consist predominantly or exclusively of members elected by the voters of the territory, and a Speaker elected by the members. In Anguilla, the House of Assembly includes in addition two appointed members. Except in Bermuda and Gibraltar, the legislative bodies include one or more officials as ex officio members. For example, in the Virgin Islands the Attorney General is an ex officio member of the House of Assembly, and in the Falkland Islands the Chief Executive and the Director of Finance are ex officio members of the Legislative Assembly. Further details on the composition of the territories’ legislative bodies are set out in the Annex. The precise composition of the local legislature, that is to say the legislative authority of which the legislative body forms part, varies as between these eight territories. In Bermuda, the local legislature consists of Her Majesty, the Senate and the House of Assembly.47 Similarly, in Gibraltar the legislature consists of Her Majesty and the Gibraltar Parliament,48 in the Virgin Islands it consists of Her Majesty and the House of Assembly,49 in the Cayman Islands and Montserrat it consists of Her Majesty and the Legislative Assembly,50 and in St Helena it consists of Her Majesty and the Legislative Council.51 In each of these territories the power to make laws is vested in the legislature, as so composed.52 By contrast, in the Falkland Islands the power to make laws is conferred on the Governor, with the advice and consent of the Legislative Assembly, and this formula is also used in the Constitution of Anguilla.53 In all cases, therefore, either the Queen or the Governor as Her representative in the territory takes part in the enactment of local legislation. In substance this part, reflecting that in the United Kingdom, takes the form of assent, either directly by Her Majesty or by the Governor on Her behalf. The power of assent is considered further below. In all of these eight territories, the local legislative power is expressed in the constitution as a power to make laws ‘for the peace, order and good government’ of the territory. The power is also expressed, in each case, to be subject to the constitution.54 The constitutions of these eight territories make detailed provision for the composition and operation of their legislative bodies. While some provisions bear similarities from one constitution to another, there is no uniformity and therefore no short cut; to find the applicable rules in any particular territory one has to consult its constitution.

47

Bermuda Constitution s 26. Gibraltar Constitution s 24. 49 Virgin Islands Constitution s 62. 50 Cayman Islands Constitution s 59(1); Montserrat Constitution s 47. 51 St Helena, Ascension and Tristan da Cunha Constitution s 47 (which provides that the Legislative Council forms part of the Legislature for St Helena, and thus not for Ascension or Tristan da Cunha). 52 Bermuda Constitution s 34; Gibraltar Constitution s 32; Virgin Islands Constitution s 71; Cayman Islands Constitution s 59(2); Montserrat Constitution s 71; St Helena, Ascension and Tristan da Cunha Constitution s 60. 53 Falkland Islands Constitution s 37; Anguilla Constitution s 47. 54 Anguilla Constitution s 47; Bermuda Constitution s 34; Cayman Islands Constitution s 59(2); Falkland Islands Constitution s 37; Gibraltar Constitution s 32; Montserrat Constitution s 71; St Helena, Ascension and Tristan da Cunha Constitution s 60; Virgin Islands Constitution s 71. 48

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The sort of provisions relating to composition that are typically included deal with general elections and filling vacant seats; qualifications and disqualifications for election; the circumstances in which a parliamentary seat must be vacated; determination of questions as to membership;55 penalties for unauthorised sitting or voting; the method of election of the Speaker and Deputy Speaker; and (in territories having such an office) the Leader of the Opposition. Some constitutions define the franchise and the electoral constituencies, and provide for a commission to review constituency boundaries periodically, while others leave these matters to be dealt with in ordinary legislation. As regards the operation of legislative bodies, provisions that are usually included relate to such matters as the power of the body to make its own standing orders; the requirement of members to take oaths or affirmations; presiding in the legislative body; voting in, and the quorum of, the legislative body; the introduction of bills and assent to bills; the sessions of the legislative body and its dissolution (and in some cases, its prorogation); and a power to recall the legislative body after its dissolution in case of emergency. Provision is also commonly made that the legislative body is not disqualified from transacting business by reason of a vacancy in its membership, and that its proceedings are valid even though some person who was not entitled to do so took part in the proceedings. As regards parliamentary privileges, the standard constitutional provision enables the local legislature to enact laws to regulate and determine the privileges, immunities and powers of the legislative body and its members, subject to the limitation that no such privileges, immunities or powers shall exceed those of the House of Commons of the United Kingdom or of its members.56

B. Reserved Legislative Power of the Governor In Anguilla, the Cayman Islands, the Falkland Islands, Gibraltar and the Virgin Islands the constitution confers a reserved legislative power on the Governor. The scope and procedure for the exercise of this power vary as between these territories. As regards scope, in the Virgin Islands the power is only available if the Governor considers it urgently necessary for the purpose of complying with an international obligation.57 In the Cayman Islands and Gibraltar the substantive scope of the power is limited to the matters for which the Governor has special responsibility under the constitution, while in Anguilla and the Falkland Islands the scope is wider.58 As regards procedure, in Gibraltar and the Cayman Islands the power may be exercised whether or not a Bill has been introduced in the Gibraltar Parliament or

55 This power is usually conferred on the Supreme Court (or equivalent), with no right of appeal: see eg Cayman Islands Constitution s 66(1). That is sufficient to exclude appeal to the Privy Council, which will not grant special leave to appeal: see Russell v Attorney General for St Vincent and the Grenadines [1997] 1 WLR 1134 (PC). 56 See eg Bermuda Constitution s 46. On this topic, see further Halsbury’s Laws of England, vol 13, 5th edn (London, LexisNexis, 2009) para 825. 57 Virgin Islands Constitution s 81. See also Turks and Caicos Islands Constitution s 68, suspended by SI 2009/701. 58 Anguilla Constitution s 56; Cayman Islands Constitution s 81; Gibraltar Constitution s 34; Falkland Islands Constitution s 55.

Legislative Authorities in the Overseas Territories 65 the Cayman Islands Legislative Assembly. By contrast, in the other three territories the power may only be used to ‘push through’ a Bill (in its original form or with amendments) that has already been introduced in the local legislative body. This is a reserved power, which is used rarely and exceptionally. The constitutions require that the Governor must normally have the approval or instructions of a Secretary of State before exercising the power. Some also provide opportunities for objection by local politicians. For example, the Falkland Islands Constitution requires the Governor to inform the Executive Council of his or her intention to exercise the power and the reasons for doing so, and the Governor must allow members of the Council the opportunity to express their views. Moreover, the Governor must forward to a Secretary of State any statement of objection to the exercise of the power submitted within 14 days by any member of the Legislative Assembly.59 C. Subordinate Legislation Laws enacted by the local legislative authorities described above are, below the level of the constitution of the territory, primary legislation. Such laws can, and often do, confer power to make secondary or subordinate legislation on executive authorities or, in the case of rules of court, on judicial authorities in the territory. Such delegation is permissible provided it does not amount to abrogation of the power of the legislature to a separate legislative body or to the conferral of general legislative power to another body.60 In practice such delegated law-making authorities are most often the Governor (alone or acting after consultation with, or on the advice of, some other person or authority), the Cabinet or Executive Council, or a Minister. D. Proclamations The constitutions of several overseas territories confer power on the Governor to make a proclamation for stated purposes, for example to declare a state of emergency, to dissolve the local legislative body, and to determine the date of a general election.61 Such proclamations are executive rather than legislative acts. However, proclamations of legislative effect have occasionally been issued by Governors, in exercise of prerogative powers on Her Majesty’s behalf, to determine or delimit maritime jurisdiction.62 E. Emergency Regulations Governors have power to make emergency regulations in certain circumstances. In the Cayman Islands, the Virgin Islands and Montserrat this power is conferred 59

Falkland Islands Constitution s 55(2) and (4). Cobb & Co Ltd v Kropp [1967] 1 AC 141 (PC). 61 See eg Virgin Islands Constitution ss 27(1), 84(2) and 86 respectively. 62 See eg Fisheries Conservation Outer Zone Proclamation 1990 (Laws of the Falkland Islands, Title 39.1.2). 60

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by the constitution,63 while in others it is conferred by separate Order in Council64 or by local legislation. Clearly this is an exceptional power that is used only in emergency situations, and it supplements the powers of a territory’s legislature. The subject of emergency powers is considered in more detail in chapter ten.

F. Nomenclature of Local Legislation Laws enacted by local legislatures of the overseas territories as primary legislation have a variety of names. In Bermuda, Gibraltar, Anguilla, Montserrat and the Virgin Islands they are called Acts. In the Cayman Islands they are called Laws. In all other territories they are called Ordinances. Laws made as subordinate legislation also have a variety of names, such as orders, regulations, rules and by-laws. SCOPE OF LOCAL LEGISLATIVE AUTHORITY

The scope of the authority of local legislatures to enact primary legislation is in principle very broad. In each case the constitution of the territory confers power to make laws ‘for the peace, order and good government’ of the territory. As noted above, the courts will not inquire into whether legislation within the territorial scope of the power was in fact for the ‘peace, order and good government’ or otherwise for the benefit of the inhabitants of the territory.65 The Judicial Committee has described the power as connoting, in British constitutional language, the widest law-making powers appropriate to a sovereign.66 Accordingly, it has also been held that a local legislature may repeal its own previous legislation,67 may legislate retrospectively, retroactively or by deeming or validating provisions,68 and may enact indemnity laws.69 There are, however, limits on the legislative power of local territory legislatures, and these will now be examined.

A. Constitutional Limits The law-making power of a local legislature is one conferred by the constitution of the territory, and its exercise must conform with the constitution conferring the power.70 This is made explicit in each constitution which establishes a locally elected 63

Cayman Islands Constitution s 21; Virgin Islands Constitution s 27; Montserrat Constitution s 18. Emergency Powers Orders in Council 1939 to 1973 (SI 1952/2031, 1956/731, 1963/88, 1963/1633, 1964/267, 1964/1199, 1965/131, 1968/724, 1973/759); Leeward Islands (Emergency Powers) Order in Council 1959 (SI 1959/2206). 65 Bancoult (No 2) (Lord Hoffmann) para 50, and previous authorities there cited. 66 Ibralebbe v The Queen [1964] AC 900 (PC). 67 McCawley v R [1920] AC 691 (PC); Kariapper v Wijesinha [1968] AC 717 (PC) 739–44. 68 Zainal bin Hashim v Government of Malaysia [1980] AC 734 (PC); Akar v Attorney General of Sierra Leone [1970] AC 853 (PC) 870; Western Transport Pty Ltd v Kropp [1965] AC 914 (PC). 69 Phillips v Eyre, n 18 above; Tilonko v Attorney General of Natal [1907] AC 93 (PC). 70 Bribery Commissioner v Ranasinghe [1965] AC 172 (PC); Kariapper v Wijesinha, n 67 above. 64

Scope of Local Legislative Authority 67 legislative body as part of the legislature. The law-making power is expressed to be subject to the constitution. So, as a typical example, section 71 of the Virgin Islands Constitution provides: Subject to this Constitution, the Legislature shall have power to make laws for the peace, order and good government of the Virgin Islands.

Accordingly, locally enacted legislation may not alter or derogate from the constitution, unless the constitution expressly authorises it.71 In substantive terms this means, in particular, that local legislation must comply with the fundamental rights and freedoms guaranteed by the constitution,72 as well as the structure and rules established by the constitution for the government of the territory. This is obviously of the utmost importance. Indeed the Judicial Committee has held that the principle of the separation of judicial power from legislative and executive power may be implied in a constitution based on the Westminster model (as the constitutions of the overseas territories are), and that local legislation must comply with that principle.73 It has also held that different constitutions apply the principle of separation of powers in their own ways, and a court can concern itself only with the actual constitution and not with what it thinks might have been an ideal one.74 Of the overseas territory constitutions, only three make express provision for the separation of judicial power from legislative and executive power,75 but in most of the others it can be easily inferred from the structure of the constitution conferring separate powers on legislative, executive and judicial authorities. Local legislation must also comply with any rules prescribed by the constitution regarding the procedure by which legislation is made, such as the traditional provisions relating to parliamentary procedure, the passage of bills and their submission to the Governor for assent,76 and it must comply with any constitutional provisions limiting the scope of particular legislation77 or specifying its content.78 The power of territory courts to grant relief during and after enactment is considered in the final part of this chapter.

B. Colonial Laws Validity Act 1865 The constitutional limits discussed above reflect the result produced by the operation of section 2 of the Colonial Laws Validity Act 1865,79 as regards the 12 71

For examples of such express authorisation, see ch 2, pp 29–30 above. See further ch 9 below. 73 State of Mauritius v Khoyratty [2006] UKPC 13, [2007] 1 AC 80 (PC); DPP v Mollison (No 2) [2003] UKPC 6; [2003] 2 AC 411 (PC); Hinds v R [1977] AC 195 (PC); Liyanage v The Queen [1967] 1 AC 259 (PC). 74 Boyce v R [2004] UKPC 32, [2005] 1 AC 400 (PC) para 70. 75 St Helena, Ascension and Tristan da Cunha Constitution ss 81, 154 and 219; Pitcairn Constitution s 44; Cayman Islands Constitution s 107. See further ch 6, p 123 below. 76 See eg Virgin Islands Constitution ss 74–79. 77 Such as the traditional requirement that privileges and immunities of the legislative body and its members conferred by local legislation shall not exceed those of the House of Commons of the United Kingdom or its members: see eg Virgin Islands Constitution s 82. 78 See eg Cayman Islands Constitution s 122, concerning freedom of information legislation. 79 1865 c 63. 72

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territories whose constitutions are made (at least in part) under powers conferred by Act of Parliament. Section 2 of the Colonial Laws Validity Act 1865 provides: Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

Section 1 of the Act includes the following definitions: The term ‘colony’ shall in this Act include all of Her Majesty’s possessions abroad in which there shall exist a legislature, as hereinafter defined, except the Channel Islands and the Isle of Man. The term ‘legislature’ ... shall ... signify the authority, other than the Imperial Parliament or Her Majesty in Council, competent to make laws for any colony. The term ‘colonial law’ shall include laws made for any colony either by such legislature as aforesaid or by Her Majesty in Council.

All British overseas territories fall within the definition of ‘colony’ for the purposes of the Act. All the legislatures in or for the overseas territories described in this chapter fall within the definition of ‘legislature’ for the purposes of the Act. All laws made by any such legislature, as well as laws made for a territory by Order in Council, are ‘colonial laws’ for the purposes of the Act. Section 1 of the Act also provides: An Act of Parliament, or any provision thereof, shall, in construing this Act, be said to extend to any colony when it is made applicable to such colony by the express words or necessary intendment of any Act of Parliament.

The constitution of an overseas territory that is made under an Act of Parliament is contained in an Order in Council that extends to the territory as part of its law. Local legislation made in such a territory that is repugnant to the constitution is therefore, to the extent of the repugnancy, void and inoperative by virtue of section 2 of the 1865 Act. So is any local legislation of a territory to the extent of its repugnancy to any Act of Parliament (or subordinate legislation other than the constitution) that extends to the territory either expressly or by necessary intendment.80 The constitutions of Gibraltar and the British Indian Ocean Territory are contained in Orders in Council made exclusively under prerogative, rather than statutory, powers. Local legislation made for each of these territories must conform with the constitution because the constitution so requires,81 but the Colonial Laws

80 But this does not apply to Acts or subordinate legislation that form part of the law of a territory by virtue only of local legislation of the territory; the importation of such measures is the result of a voluntary choice by the local legislature, which may therefore exercise a different choice in the future. See further ch 8 below. 81 See Gibraltar Constitution s 32; British Indian Ocean Territory (Constitution) Order 2004 s 10(1).

Scope of Local Legislative Authority 69 Validity Act does not operate to render void legislation that is repugnant to the constitution. This is because the constitution Order in Council is not an Order made under the authority of an Act of Parliament extending to the territory (or at all). But section 2 of the Act applies, as it does to the other territories, in relation to repugnancy of local legislation of these territories to Acts of Parliament and subordinate legislation that extend to them.82 Section 1 of the 1865 Act includes within the definition of ‘colonial law’ laws made for a territory ‘by Her Majesty in Council’. There is a risk of some circularity here. The definition does not expressly limit this reference to prerogative Orders in Council, but reasons of principle support the inference that this was the intention. Orders in Council made under statutory powers must in any case conform with the parent statute, and to apply section 2 of the Act to Orders made under statutory authority would fetter the discretion of Parliament to enable such Orders to legislate for the territories. By contrast, prerogative Orders in Council making law for an overseas territory have the character of primary legislation, because they do not derive their authority from any statute. The effect of section 2 of the 1865 Act, read with the definition of ‘colonial law’ in section 1, is that a prerogative Order in Council making law for a territory must conform with any Act of Parliament (or subordinate legislation) extending to the territory, either expressly or by necessary intendment, and is void to the extent of any repugnancy to it. It follows that, for these purposes, such a prerogative Order in Council has the same legal value as a locally enacted law in the legal system of a territory. In Bancoult (No 2), Lord Rodger and Lord Carswell considered that a prerogative Order in Council making a constitution for the British Indian Ocean Territory was a ‘colonial law’ for the purposes of the 1865 Act.83 So the Constitution Orders for Gibraltar and the British Indian Ocean Territory, both of which are made under prerogative powers, would in their view fall within the scope of section 2 of the 1865 Act. But as the majority (Lord Hoffmann, Lord Bingham and Lord Mance) did not share that view, at least as regards judicial review by a United Kingdom court, the position as regards these constitution Orders is not clear.84 Section 2 of the 1865 Act represents an important, but limited, restriction on the scope of primary legislation enacted by the local legislatures of the overseas territories (and by prerogative Order in Council). But section 2 includes the important words ‘but not otherwise’. So, except in the limited circumstances described in section 2, the local legislatures have virtually plenary law-making power within their respective territories, and the same applies to prerogative Orders in Council. Section 3

82 There is, however, a special exception for laws of Gibraltar made to implement the European Union Treaties or obligations of the United Kingdom under them: see European Communities Act 1972 (1972 c 68) s 2(6). 83 Bancoult (No 2) paras 97 and 126. 84 For an enlightening analysis of the background, purpose and effect of the 1865 Act, and a critique of the approach to the Act of the Court of Appeal in Bancoult (No 2) which could be applied to that of the majority in the House of Lords, see J Finnis, ‘Common Law Constraints: Whose Common Good Counts?’, University of Oxford Faculty of Law Legal Studies Research Paper Series, Working Paper No 10/2008, available online at http://papers.ssrn.com/Abstract=1100628.

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of the 1865 Act makes clear that any other repugnancy to the law of England is immaterial. It provides: No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid.

This section changed the previously accepted legal principle that colonial laws were invalid to the extent of their repugnancy to English law, or at least to ‘fundamental’ laws of England.85 In Liyanage v The Queen, it was argued that a law of Ceylon was void because it was repugnant to the fundamental principles of justice. The Privy Council rejected this argument, holding: Their Lordships cannot accept the view that the legislature while removing the fetter of repugnancy to English law, left in existence a fetter of repugnancy to some vague unspecified law of natural justice. The terms of the Colonial Laws Validity Act and especially the words ‘but not otherwise’ in section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy.86

This decision was confirmed more recently in Bancoult (No 2) by Lord Rodger and Lord Carswell.87 It did not, however, prevent the House of Lords in that case deciding (unanimously) that the prerogative Order in Council in question could be judicially reviewed for compatibility with English public law principles relating to illegality, irrationality and procedural impropriety.

C. Extraterritoriality A power conferred on a territory legislature to make laws ‘for the peace, order and good government of the territory’ necessarily implies some territorial limitation. But the extent of that limitation has proved both controversial and difficult to apply in practice.88 Considering the issue recently in Jersey Fishermen’s Association v States of Guernsey,89 the Judicial Committee of the Privy Council put the position thus:90 The principle governing the extraterritorial jurisdiction of colonial legislatures is stated in Halsbury’s Laws of England (4th edn; 2003 reissue), volume 6 title: Commonwealth, paragraph 840 as follows: ‘The rule is not that the territorial limits of a legislature define the possible limits of its legislative enactments; rather the rule is that those enactments which purport to have an

85 See Roberts-Wray, Commonwealth and Colonial Law, n 19 above, 396 and 400–02, and Finnis, ‘Common Law Constraints’, n 84 above. 86 Liyanage v The Queen, n 73 above, 284–85. 87 Bancoult (No 2), n 17 above, paras 96–101 and 126. 88 See eg Macleod v Attorney General for New South Wales [1891] AC 455 (PC); Nadan v R [1926] AC 482 (PC); British Coal Corporation v R [1935] AC 500 (PC); Wallace v Commissioner of Income Tax, Bombay (1948) 75 LR Ind App 86 (PC). See further Roberts-Wray, Commonwealth and Colonial Law, n 19 above, 387–96. 89 Jersey Fishermen’s Association v States of Guernsey [2007] UKPC 30, [2007] All ER (D) 39 (May) (PC). 90 Jersey Fishermen’s Association , n 89 above, para 33.

Scope of Local Legislative Authority 71 extraterritorial operation, application or effect will be valid only if they bear a substantial relationship to the peace, order and good government of the territory concerned, whether generally or in respect of particular subjects. In particular, legislation creating any liability must base that liability on some fact, circumstance, event or thing which is relevantly connected, to a sufficient degree, with the territory concerned.’91 In Croft v Dunphy [1933] AC 156, 162 the Board observed that, in relation to an independent state: [W]hatever be the limits of territorial waters in the international sense, it has long been recognised that for certain purposes, notably those of police, revenue, public health and fisheries, a state may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory.’ The Board applied a like principle to a dominion with power to legislate for specific purposes (in the case in question, Canada acting pursuant to a power to make customs laws). The principle was further considered and applied in Australian authorities such as Bonser v La Macchia (1969) 122 CLR 177, 189 and 224–5; New South Wales v The Commonwealth of Australia (1975) 135 CLR 337; Robinson v Western Australian Museum (1977) 138 CLR 283, although the Court of Appeal erred in the present case in thinking that the legislation was upheld in the last case. Broadly, a subordinate legislature may legislate with extraterritorial effect where the legislation has in nature and effect a sufficiently substantial relationship with the peace, order and good government of the relevant territory and is for a purpose for which the subordinate legislature has power to legislate.

The Judicial Committee had earlier stated that when a power is conferred to legislate on a particular topic it is important, in determining the scope of the power, to have regard to what is ordinarily embraced within the topic in legislative practice and particularly in the legislative practice of the State which has conferred the power.92 As regards the sufficiency of a territorial connection, this had been helpfully clarified in the Australian case of Broken Hill South Ltd v Commissioner of Taxation (New South Wales)93 by Dixon J in the following way: (a) the connection may be that either of the person affected or of a thing in which he is concerned; (b) the power to make laws for the peace, order and good government of a state does not enable the legislature to impose (tax) liability by reference to things outside the state on a person unconnected with the state; (c) it is within their competence to impose liability on any person concerned in any occurrence or thing which is in or connected with the state; (d) connection to bring a person within legislative jurisdiction may be presence, residence, domicile, the carrying on of business or even remoter connection.

It has been held that the taxing power of a legislature does not extend to the taxation of a person neither resident nor domiciled in the territory in respect of property not situated there, and statutes are to be interpreted accordingly.94

91 92 93 94

This extract is repeated in Halsbury’s Laws of England, vol 13, n 56 above, para 828. Croft and Dunphy [1933] AC 156 (PC) 165. Broken Hill South Ltd v Commissioner of Taxation (New South Wales) (1937) 56 CLR 337. Johnson v Stamp Duties Commissioner [1956] AC 331 (PC).

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D. Local Legislation Affecting the Royal Prerogative The local legislature of an overseas territory may alter or abolish most prerogative powers that form part of the common law in force there. This is the general effect of section 3 of the Colonial Laws Validity Act 1865 discussed above. But there are major prerogative powers that are part of the constitutional foundation of a territory and that, without an express grant of competence (which in no case has been given), are beyond the competence of its legislature to affect.95 A local law seeking to abolish or limit the prerogative power of Her Majesty (in the United Kingdom) to make laws for a territory is one such case. A local legislature cannot violate the foundations of the sovereign’s authority. Nor may a local law abolish or limit the constituent prerogative power (where it still exists), because the effect of sections 4 and 5 of the Colonial Laws Validity Act 1865 is that a colonial legislature is subject to the authority by which it was created. Other major prerogatives with which a local legislature may not interfere are the prerogative power to grant special leave to appeal to the Privy Council;96 the exercise of the prerogative of mercy (in the United Kingdom); and the prerogative powers to make war and peace and to conclude treaties, which are plainly powers in the field of foreign affairs for which the United Kingdom is responsible. Nor can a local legislature affect the prerogative power of English courts to issue the writ of habeas corpus into an overseas territory, although that does not prevent a legislature conferring a power to issue such writs on its own courts.97 It is probably the case that laws purporting to do any of these things could also be annulled on the grounds of extraterritoriality.98 EXECUTIVE CONTROLS ON LOCALLY-ENACTED LEGISLATION

A. Instructions Governors (or their equivalents) of overseas territories invested with legislative powers may be instructed as to the exercise of those powers by instructions given either directly by Her Majesty or by a Secretary of State on Her behalf. The constitution of each overseas territory provides that the Governor may be so instructed in the exercise of any functions conferred on the Governor.99

95 See Roberts-Wray, Commonwealth and Colonial Law, n 19 above, 377–83, where the author critically analyses a dictum of the Judicial Committee of the Privy Council in British Coal Corporation v R [1935] AC 500 to the effect that if the Prerogative is to be limited ‘by a Dominion or Colonial Act, it must be the Act of a Dominion or Colonial Legislature which has been endowed with the requisite powers by an Imperial Act giving the power either by express terms or by necessary intendment’. 96 Nadan v R, n 88 above, in which a Canadian law was annulled for extraterritoriality as well as repugnancy to the Judicial Committee Acts 1833 and 1844. 97 The Habeas Corpus Act 1862 (1862 c 20) removed the power of English courts to issue the writ in any colony where there is a court having authority to issue the writ. 98 On all these matters, see Roberts-Wray, n 19 above, 379–81. 99 See eg Bermuda Constitution s 17(2).

Executive Controls on Locally-enacted Legislation 73 In some territories there remain in force Royal Instructions issued personally by Her Majesty to the Governor under Her Sign Manual and Signet.100 Royal Instructions are made in exercise of the Royal prerogative, and are approved by Her Majesty in the Privy Council before being formally signed by the Queen. Such Instructions include rules as to the enactment of laws, and apply to all local legislation. Such rules deal with technical matters such as the words of enactment and the numbering of laws. Royal Instructions also require certain defined categories of Bill not to be enacted, or to be suspended in operation until the signification of Her Majesty’s pleasure, in the absence of instructions given through a Secretary of State. These categories are largely standard in the various Royal Instructions, and include such matters as laws affecting the currency of the territory and the issue of banknotes, laws affecting the discipline and control of the armed forces, and laws that appear to the Governor to be inconsistent with treaty obligations. Royal Instructions also typically require all locally enacted laws, and bills reserved for Her Majesty’s pleasure, to be sent by the Governor to a Secretary of State with an ‘explanation of the reasons and occasion’ for them. In practice such reasons are usually provided to the Governor by the Attorney General of the territory. Failure to comply with Royal Instructions does not invalidate a law enacted in any of these territories.101 For Pitcairn, rules of this kind are set out in the body of the Constitution, and for the Falkland Islands and South Georgia and the South Sandwich Islands they are contained in an Annex to the Constitution, rather than in Royal Instructions.102 Otherwise, instructions as to the exercise of legislative power may be given less formally by a Secretary of State to the Governor. However, as the constitutions of the territories themselves provide, such instructions may not lawfully require the Governor to act contrary to the constitution of the territory.

B. Assent In each territory that has a local legislative body, Bills passed by that body require assent by or on behalf of Her Majesty before they become law. A typical constitutional provision is section 79(1) of the Virgin Islands Constitution: A Bill passed by the House of Assembly shall become a law when— (a) the Governor has assented to it in Her Majesty’s name and on Her Majesty’s behalf and has signed it in token of such assent; or (b) Her Majesty has given Her assent to it through a Secretary of State and the Governor has signified such assent by proclamation published in the Gazette.

100 Anguilla Royal Instructions 1982; British Antarctic Territory Royal Instructions 1962; British Indian Ocean Territory Royal Instructions 1965; St Helena, Ascension and Tristan da Cunha Royal Instructions 2009; Sovereign Base Areas of Akrotiri and Dhekelia Royal Instructions 1960; Turks and Caicos Islands Royal Instructions 1988. 101 Colonial Laws Validity Act 1865 s 4. 102 Pitcairn Constitution ss 37–40; Falkland Islands Constitution Annex A; South Georgia and South Sandwich Islands Order 1985 s 9(2) and Annex. Accordingly there is a constitutional requirement to comply with them, and the Colonial Laws Validity Act 1865 s 4 does not apply in these cases.

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This sort of provision is standard in requiring assent either by the Governor or by Her Majesty. On the other hand, the constitutions of the territories are not uniform in their provisions that prescribe the circumstances in which assent may be given or withheld by the Governor or in which the Governor may, or must, reserve a Bill ‘for the signification of Her Majesty’s pleasure’. Reserving a Bill for this purpose means sending a Bill to London for assent to be considered by Her Majesty on the advice of United Kingdom Ministers,103 or by a Secretary of State on Her Majesty’s behalf. There are no common rules; it is necessary to look at the constitution of each territory individually. Some constitutions allow the Governor a considerable degree of latitude. For example, section 52(2) of the Falkland Islands Constitution provides: When a Bill is presented to the Governor for his or her assent, the Governor shall, acting in his or her discretion but subject to this Constitution and any instructions given through a Secretary of State, declare that he or she assents or refuses assent to it, or that he or she reserves the Bill for the signification of Her Majesty’s pleasure; but the Governor shall reserve for the signification of Her Majesty’s pleasure any Bill which in his or her judgement is in any way repugnant to, or inconsistent with, this Constitution.

Thus, the Governor has broad discretion, limited only by (a) the Constitution, (b) any instructions given through a Secretary of State, and (c) the obligation to reserve any Bill that he or she considers unconstitutional. By contrast, section 33(2) of the Gibraltar Constitution is very prescriptive: When a bill is submitted to the Governor for assent in accordance with this Constitution he shall signify that he assents, or withholds assent, thereto, or that he reserves the bill for the signification of Her Majesty’s pleasure; provided that the Governor— (a) may only reserve for the signification of Her Majesty’s pleasure any bill which appears to him, acting in his or her discretion, to be in any way repugnant to or inconsistent with this Constitution; (b) may only withhold assent to any bill which appears to him, acting in his discretion, to be in any way repugnant to good government or incompatible with any international legal obligation, unless he has been authorised by a Secretary of State to assent to it.

Thus, in Gibraltar, while the Governor has discretion as to whether a bill falls within paragraph (a) or (b), if he concludes that it does not he must assent to it. It is common to find constitutional provisions that require the Governor to reserve for Her Majesty’s pleasure certain categories of Bill, unless the Governor has been authorised by a Secretary of State to assent to the Bill. So, for example, section 79(2) of the Virgin Islands Constitution provides: When a Bill is presented to the Governor for assent the Governor shall declare that he or she assents to it or that he or she reserves the Bill for the signification of Her Majesty’s pleasure; but unless the Governor has been authorised by a Secretary of State to assent to it, the Governor shall reserve for the signification of Her Majesty’s pleasure any bill which appears to him or her, acting in his or her discretion—

103

Royal assent by Her Majesty directly is given by Order in Council.

Executive Controls on Locally-enacted Legislation 75 (a) to be inconsistent with any obligation of Her Majesty or of Her Majesty’s Government in the United Kingdom towards any other state or power or any international organisation; (b) to be likely to prejudice the Royal prerogative; or (c) to be in any way repugnant to or inconsistent with this Constitution.

So, in the Virgin Islands, the Governor has no power to withhold assent. The choice is between assent and reservation for Her Majesty’s pleasure. The Governor is obliged to reserve in the circumstances specified. Otherwise, the Governor must, in accordance with other provisions of the Constitution, decide on the advice of the Cabinet unless the Constitution itself enables the Governor to do otherwise. One circumstance in which the Constitution enables the Governor to do otherwise is when he or she is acting under instructions given by Her Majesty through a Secretary of State: see section 40(1)(a) and (3). So the Governor may be instructed to assent to a bill or to reserve it. This demonstrates that it is important to consider the power of assent in the wider context of each territory constitution.

C. Disallowance The power of Her Majesty to disallow a law enacted by the legislature of an overseas territory is retained in the constitutions of all territories except that of Gibraltar. In Bermuda the power applies only to certain laws relating to Government stock, and its scope is therefore extremely limited.104 In all other territories the power of disallowance is unlimited in scope. A typical constitutional provision is section 75 of the Constitution of St Helena, Ascension and Tristan da Cunha:105 (1) Any law to which the Governor has given his or her assent may be disallowed by Her Majesty through a Secretary of State. (2) Whenever a law has been disallowed by Her Majesty the Governor shall, as soon as practicable, cause notice of the disallowance to be published in the Gazette, and the law shall be annulled with effect from the date of the publication of that notice. (3) Section 16(1) of the Interpretation Act 1978 shall apply to the annulment of any law under this section as it applies to the repeal of an Act of Parliament, save that any enactment repealed or amended by or in pursuance of that law shall have effect as from the date of the annulment as if that law had not been made.

Some recent constitutions provide for a delay to allow the local legislature to reconsider the law in question. For example, section 80(1) of the Virgin Islands Constitution106 provides: Any law assented to by the Governor may be disallowed by Her Majesty through a Secretary of State; but no law shall be disallowed until the expiration of a period notified

104

Bermuda Constitution s 47. This section relates to St Helena. Ss 152 and 217 make equivalent provision for Ascension and Tristan da Cunha respectively. 106 There are similar provisions in Falkland Islands Constitution s 54(1), Montserrat Constitution s 76(1), and Cayman Islands Constitution s 80(1). 105

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by a Secretary of State to the Governor, who shall advise the Speaker of that period, in order to give the House of Assembly an opportunity to reconsider the law in question.

This formulation recognises reality. Disallowance of a territory law is a very major step. The power has been exercised extremely rarely. In any case where it became a serious possibility it would make obvious sense to give the local legislative body the chance to reconsider the law in question. In practice, the power of disallowance is more in the nature of a disincentive to objectionable legislation. Laws enacted in the territories where the power remains are examined by the United Kingdom Government, and if objection is found the authorities of the territory are made aware of it. If the objection is serious enough amending legislation is passed to correct the law. The sort of objections that have been found in practice usually relate to questions of constitutionality or compatibility with international obligations. But they could equally relate to issues of good government or plain decency. The process also allows minor problems of drafting or clarity to be ironed out. Once a territory law has been examined and found to be unobjectionable, the practice is for the Secretary of State formally to notify the Governor of the territory that Her Majesty will not be advised to exercise the power of disallowance. This does not have any legal consequence as to the force or validity of the law in question;107 the law is a law from the moment of its enactment, and its coming into force depends on its terms (or the terms of the territory constitution), not on whether or not the power of disallowance is exercised. It is therefore important that examination of territory laws from the point of view of possible disallowance takes place with reasonable expedition. If a law is disallowed, the territory constitutions uniformly provide that the law is annulled with effect from the date of publication of a notice of disallowance issued by the Governor. They also uniformly provide, by reference to section 16 of the Interpretation Act 1978,108 that such annulment does not have retroactive effects. But there is a saving for any enactment repealed or amended by or in pursuance of the disallowed law; any such enactment is to have effect as from the date of annulment as if the disallowed law had not been made. These provisions are designed to contribute to legal certainty.

D. Other Controls Clearly it is preferable to check overseas territory legislation before, rather than after, it has been enacted. There is normally the opportunity for a Governor and his or her advisers, and the United Kingdom Government in London, to check and seek to influence the content of proposed legislation of significance when published in Bill form and often before that.109 In practice that is how many potential problems are sorted out. 107

Nadan v R , n 88 above, 493. 1978 c 30. 109 In territories where the Governor chairs the Cabinet or Executive Council, proposed legislation is routinely examined in that body before publication and the Governor will therefore be aware of it. 108

Judicial Controls 77 As noted above, the power of disallowance was abolished in the Gibraltar Constitution of 2006. Instead, that Constitution contains provisions designed to assist in this process of pre-enactment control. Section 35(3) provides: Every bill shall be published in the Gazette, and the Parliament shall not proceed upon any bill until the expiration of six weeks after the date on which the bill was so published, unless the Chief Minister certifies by writing under his hand that consideration of the bill is too urgent to permit such delay.

This provision plainly contributes to good government by providing advance public notice of bills, as well as allowing the Governor and other interested parties an opportunity to examine bills before they can be debated. Section 35(2) establishes a specific control on bills that might concern matters for which the Governor is specially responsible, namely external affairs, defence, internal security, and certain public service matters. It provides: Except with the consent of the Governor, acting in his discretion, signified by the Chief Minister, the Parliament shall not proceed upon any bill (including any amendment to a bill) that, in the opinion of the Governor, acting in his discretion, signified as aforesaid, concerns a matter for which he is responsible under section 47(1).

Once again, the object is to resolve any problems perceived by the Governor in these fields before, rather than after, the passing of legislation. JUDICIAL CONTROLS

The courts of the United Kingdom have no jurisdiction to annul an Act of the United Kingdom Parliament making law for an overseas territory. But the House of Lords held in Bancoult (No 2)110 that those courts have jurisdiction to review, and if necessary annul, Orders in Council making law for an overseas territory on the normal grounds of illegality, irrationality and procedural impropriety. It is questionable whether the courts of the United Kingdom (excluding the Judicial Committee of the Privy Council as the territories’ final court of appeal) have jurisdiction to review, and if necessary annul, a law enacted by the local legislature of an overseas territory. In Bancoult (No 1)111 the English Divisional Court held that they did, and annulled provisions of an Ordinance made by the Commissioner of the British Indian Ocean Territory. In doing so the Court emphasised that the Ordinance in question had been made on the instructions of United Kingdom Ministers by the Commissioner as the sole local legislator for the territory. While the United Kingdom courts may be reluctant to concede that they have no jurisdiction to review laws enacted by local territory legislatures, it is considered likely that they would be slow to do so where the legislature includes an elected body. The United Kingdom courts are, after all, not part of the judicial structure of the territories according to their constitutions. The effect of any judgments or declarations they might make is in practice directed at United Kingdom Ministers politically responsible for the

110 111

Bancoult (No 2), n 17 above. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067.

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territories. The proper forum for such judicial review is the courts of the territory concerned, from which final appeal lies to the Privy Council. The courts of each overseas territory have jurisdiction to review legislation passed by the local legislature of the territory. As noted above, all such legislation is made under powers granted by the constitution of the territory, and the validity of such legislation also depends on section 2 of the Colonial Laws Validity Act 1865 and limitations relating to extraterritoriality and major prerogatives. Questions of the compatibility of territory legislation with the constitution, with Acts of Parliament (or subordinate legislation) extending to the territory, and these other limitations may therefore be considered in the courts of the territory, and ultimately by the Privy Council. The forms and scope of judicial review, and the remedies available to the courts, depend on the law of each territory. It has been held by the Judicial Committee that the territory courts have jurisdiction to inquire into the conduct of members of a territory legislature to the extent necessary to determine the lawfulness of the legislative proceedings and the validity of their legislation; and that the courts have a discretion to issue a declaration or injunction relating to persons involved in the legislative process where that conduct is unlawful.112 But this is exceptional. The primary and normal remedy in respect of a statutory provision whose content contravenes the constitution is a declaration, made after the enactment has been passed, that the offending provision is void.113 Pre-enactment relief should be granted only when, exceptionally, this is necessary to enable the courts to afford the protection intended to be provided by the constitution.114

112

Rediffusion (Hong Kong) Ltd v Attorney General of Hong Kong [1970] AC 1136 (PC). But this is not always available, because not every prohibited form of conduct during legislative proceedings makes the resulting legislation void: Winfat Enterprises (Hong Kong) Co Ltd v Attorney General of Hong Kong [1985] AC 733 (PC); and see Colonial Laws Validity Act 1865 s 4. 114 Bahamas District of the Methodist Church in the Caribbean and the Americas v Symonette [2000] UKPC 31. 113

5 Executive Authority and Controls

A

S IN THE United Kingdom, executive government in the British overseas territories is formally carried out in the name of the Crown. Her Majesty the Queen is sovereign of the United Kingdom and of all British overseas territories. But, as explained in chapter two, each territory has its own government which is legally distinct from the United Kingdom Government. This chapter examines the arrangements for executive government in the territories, and the controls over executive government. It also considers the public services of the overseas territories that support and administer their governments. EXECUTIVE GOVERNMENT IN THE TERRITORIES

The constitutions of the territories deal in varying detail with executive government. While there are some common features, the relevant provisions are not identical. To discover the position in any particular territory it is essential to examine the constitution of that territory, and to resist any temptation to assume uniformity.

A. Power to Exercise Executive Authority Most overseas territory constitutions provide expressly that the executive authority of the territory vests in Her Majesty, and that this authority shall or may be exercised on behalf of Her Majesty by the Governor. A recent example of such provisions is section 56 of the Falkland Islands Constitution:1 (1) The executive authority of the Falkland Islands is vested in Her Majesty. (2) Subject to this Constitution, the executive authority of the Falkland Islands shall be exercised on behalf of Her Majesty by the Governor, either directly or through officers subordinate to him or her. (3) Nothing in this section shall preclude persons or authorities other than the Governor from exercising such functions as are or may be conferred on them by any law.

1

SI 2008/2846.

80 Executive Authority and Controls In this example, subsection (2) uses the word ‘shall’. Others use the word ‘may’. For example, section 46(2) of the Virgin Islands Constitution2 provides: Subject to this Constitution, the executive authority of the Virgin Islands may be exercised on behalf of Her Majesty by the Governor, either directly or through officers subordinate to him or her.

This variation between mandatory and enabling language is not in practice significant, because in each case the provision is qualified by the words: ‘Subject to this Constitution’. This phrase saves the powers reserved to the Queen by the constitution to exercise executive authority directly, for example by giving instructions to the Governor.3 The examples quoted above are standard in most territory constitutions, although there are minor variations of drafting. Some important points should be noted. First, it is made clear that, beneath the sovereign, the head of the executive in the territory is the Governor. Secondly, executive authority may be exercised on Her Majesty’s behalf not only by the Governor directly, but also through officers subordinate to the Governor. This is perhaps a statement of the obvious, but it takes account of the role played by the public service of the territory, consisting of officers of the Crown under the authority of the Governor. No Governor could effectively exercise executive authority in a territory without the support of these officers, and the lawful discharge of executive authority is not confined to the Governor personally. Thirdly, as noted above, any exercise of executive authority, whether by the Governor or by subordinate officers, is ‘subject to this Constitution’. So all such authority must be exercised in accordance with the constitution of the territory. This is especially important in territories which have an executive body, such as a Cabinet or Executive Council,4 which on most matters the Governor is required to consult and in accordance with whose advice the Governor is normally required to comply. Fourthly, there is a saving for executive functions conferred on persons or authorities other than the Governor by any law. That law may be the constitution itself, or ordinary legislation of the territory. In ministerial systems of government, many executive functions are conferred by territory legislation on local Ministers, either individually or collectively. There is also a growing trend for executive functions to be conferred, by territory legislation, on statutory bodies or individual offices established for specific purposes. A recent constitution which is in slightly different terms is the Constitution of Gibraltar.5 Section 44 provides: (1) The executive authority of Gibraltar shall vest in Her Majesty; and, save as otherwise provided in this Constitution, that authority may be exercised by the Government of Gibraltar, either directly or through public officers as prescribed by this Constitution or by any other law.

2

SI 2007/1678. Eg Falkland Islands Constitution s 23(2); Virgin Islands Constitution s 35(3). 4 Anguilla, Bermuda, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, St Helena, Virgin Islands. Also, in normal circumstances the Turks and Caicos Islands has a Cabinet, but Cabinet government was temporarily suspended by the Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (SI 2009/701). 5 Published in SI 2006, III, p 11503. 3

Executive Government in the Territories

81

(2) Nothing in this section shall preclude persons or authorities other than the Government of Gibraltar from exercising such functions as may be conferred upon them by any law.

The main difference in this case is the reference to the Government of Gibraltar, rather than the Governor. Section 45(1) defines, rather obliquely, the Government of Gibraltar. It establishes a Council of Ministers, and goes on and such Council of Ministers, together with Her Majesty who is represented in Gibraltar by the Governor, shall constitute the Government of Gibraltar.

So, in the result, executive authority may be exercised by the Council of Ministers and the Governor as the Queen’s representative, either directly or through public officers to the extent prescribed by the Constitution or any other law. But this is subject to the words ‘save as otherwise provided in this Constitution’. It is therefore necessary to examine the allocation of executive powers in the Constitution, as it is in other territories; and in the Constitution of Gibraltar some executive powers are expressly reserved to the Governor, while most are devolved to Ministers. The saving in section 44(2) has equivalent effect to that in other territories. The Cayman Islands Constitution6 has a similar, but more succinct, formula. Section 43(2) provides: Subject to this Constitution, the executive authority of the Cayman Islands shall be exercised on behalf of Her Majesty by the Government, consisting of the Governor as Her Majesty’s representative and the Cabinet, either directly or through public officers.

Section 43(3) is a saving equivalent to section 44(2) of the Gibraltar Constitution.

B. Principal Executive Authorities 1. Territories without a Local Executive Body In sparsely populated territories the Governor (or equivalent) is the principal executive authority, there being no locally elected executive body. Thus, in South Georgia and the South Sandwich Islands, the British Antarctic Territory and the British Indian Ocean Territory the Commissioner is the principal executive authority, and in the Sovereign Base Areas it is the Administrator. In each case the Commissioner or Administrator is assisted by various public officers of the territory (whether or not resident in the territory), and some executive functions are conferred by law on such officers.7 In most of these cases the Commissioner or Administrator is not required by the constitution to consult anyone else in exercising executive authority. But the Commissioner for South Georgia and the South Sandwich Islands is obliged to consult the Officer for the time being commanding Her Majesty’s Forces in the South Atlantic before exercising any function relating to defence or internal

6

SI 2009/1379. See eg Principal Legal Adviser Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 8 of 1990) s 7 which confers prosecutorial functions on the Principal Legal Adviser. 7

82 Executive Authority and Controls security (except the police) and must act in accordance with that Officer’s advice. The Commissioner must also, whenever practicable, consult the Executive Council of the Falkland Islands before exercising any function which in his opinion might affect the Falkland Islands, and must take due account of such views as the Council may then express.8 These special provisions are explained by the proximity of South Georgia and the South Sandwich Islands to the Falkland Islands (of which, before 1985, they were dependencies), and the involvement of both territories in the Falklands conflict of 1982. In Ascension, Tristan da Cunha and Pitcairn the Governor (who in each case is non-resident) is the principal executive authority according to the respective constitutions. By contrast with the position in South Georgia and the South Sandwich Islands, in the case of Ascension and Tristan da Cunha the Governor is expressly excused from consulting the Executive Council of St Helena as regards any function conferred on the Governor in respect of Ascension or Tristan da Cunha by a provision of the Constitution that applies to Ascension or Tristan da Cunha, or of a law that is in force in Ascension or Tristan da Cunha.9 In Ascension and Tristan da Cunha there is a resident Administrator subordinate to the Governor.10 Moreover, in each of these islands and in Pitcairn there is an Island Council11 which is composed, and whose executive functions are conferred, according to local legislation.12 Although these Island Councils play a considerable role in the executive government of the islands, in no case is the Governor bound to accept the Council’s advice in all matters. The position is less straightforward in the more substantially populated territories. They may conveniently be divided into two groups, those with a ministerial system of government and those with a committee system of government. 2. Territories with a Ministerial System The territories with a ministerial system, loosely reflecting the Westminster model of party politics, are Anguilla, Bermuda, the Cayman Islands, Gibraltar, Montserrat and the Virgin Islands.13 In each of these territories the elected Government is formed from the majority of the elected members of the legislative body, or, in the case of Bermuda, from the majority of the elected members of the lower house of the Legislature, the House of Assembly. The Governor appoints as the first minister (to use a neutral term) the elected member who commands the support of a majority in the legislative body.14 The judgement as to who commands such support is 8

South Georgia and South Sandwich Islands Order 1985 (SI 1985/449) s 5(2) and (3). St Helena, Ascension and Tristan da Cunha Constitution (SI 2009/1751) s 43(2)(e) and (f). 10 Ibid ss 147(1) and 212(1). 11 See St Helena, Ascension and Tristan da Cunha Constitution ss 149 and 214; Pitcairn Constitution (SI 2010/244) s 34. 12 See Island Government (Ascension) Ordinance 2008 (Laws of Ascension, Ordinance No 7 of 2008); Island Council Ordinance 1985 (Laws of Tristan da Cunha, Ordinance No 1 of 1985); Local Government Ordinance (Laws of Pitcairn (2001 Revision) Cap XI). 13 In normal circumstances the Turks and Caicos Islands also have a ministerial system, but this was temporarily suspended by SI 2009/701: see n 4 above. 14 Anguilla Constitution (SI 1982/334, as amended by SI 1983/1108 and 1990/587) s 24(1); Bermuda Constitution (SI 1968/182, as amended by SI 1968/463, 1968/726, 1973/233, 1979/452, 1979/1310, 9

Executive Government in the Territories 83 in most cases left to the Governor, thus reflecting the sovereign’s prerogative and the constitutional convention in the United Kingdom.15 In Bermuda, the Cayman Islands, Montserrat and the Virgin Islands the first minister is called the Premier; in Anguilla and Gibraltar the first minister is called the Chief Minister. The other Ministers are usually appointed by the Governor on the advice of the Premier or Chief Minister from among the elected members of the legislative body (or, in Bermuda, from the House of Assembly or the Senate).16 The Governor also usually assigns responsibilities to Ministers on the advice of the Premier or Chief Minister, except in respect of matters reserved to the Governor or some other person or authority.17 Collectively the Ministers form an executive body, called a Cabinet in Bermuda, the Cayman Islands, Montserrat and the Virgin Islands,18 an Executive Council in Anguilla,19 and a Council of Ministers in Gibraltar.20 Except in Bermuda and Gibraltar, these bodies also include official, or ex officio, members. So, for example, in Anguilla and the Cayman Islands the Deputy Governor and the Attorney General are ex officio members,21 and in the Virgin Islands the Attorney General is an ex officio member.22 Except in Bermuda and Gibraltar, the Governor presides in each of these bodies.23 Apart from these bodies, certain executive functions are carried out by local Ministers. The constitutions of these territories generally provide for the collective responsibility of Ministers, or the executive body, to the legislature,24 and for votes of no confidence in the government in the legislative body resulting in a dissolution and general election or the removal and replacement of the Premier or Chief Minister and his or her team of Ministers.25 The Governor must also remove and replace individual Ministers if so advised by the Premier or Chief Minister.26 Ministers

1989/151, 2001/2579, 2003/456) s 58(1); Cayman Islands Constitution s 49(2) and (3); Gibraltar Constitution s 45(3); Montserrat Constitution (SI 2010/2474) s 33(1); Virgin Islands Constitution s 52(1). 15 But in the Virgin Islands, if a political party gains a majority of seats in the House of Assembly the Governor must appoint as Premier the elected member of the House recommended by a majority of the elected members of the House who are members of that party: Virgin Islands Constitution s 52(1)(a). The position is the same in the Cayman Islands: Cayman Islands Constitution s 49(2). 16 Anguilla Constitution s 24(2); Bermuda Constitution s 58(2); Cayman Islands Constitution s 44(1)(b); Gibraltar Constitution s 45(4); Montserrat Constitution s 33(2); Virgin Islands Constitution s 52(2). 17 Anguilla Constitution s 27; Bermuda Constitution s 61; Cayman Islands Constitution s 54; Gibraltar Constitution s 46; Montserrat Constitution s 38; Virgin Islands Constitution s 56. 18 Bermuda Constitution s 57; Cayman Islands Constitution s 44(1); Montserrat Constitution s 32; Virgin Islands Constitution s 47. 19 Anguilla Constitution s 23. 20 Gibraltar Constitution s 45(1). 21 Anguilla Constitution s 23; Cayman Islands Constitution s 44(1)(c). 22 Virgin Islands Constitution s 47(1). 23 Anguilla Constitution s 33(1); Cayman Islands Constitution s 46(1); Montserrat Constitution s 42(1); Virgin Islands Constitution s 49(1). 24 Eg Bermuda Constitution s 57(2); Virgin Islands Constitution s 47(3); Cayman Islands Constitution s 44(3). 25 Eg Bermuda Constitution s 59(1) and (4)(b); Virgin Islands Constitution s 53(1) and (4)(a); Cayman Islands Constitution ss 51(1) and 52(2)(a). 26 Eg Bermuda Constitution s 59(4)(a); Virgin Islands Constitution s 53(4)(b); Cayman Islands Constitution s 52(2)(b).

84 Executive Authority and Controls remain in office after a dissolution of the legislative body until the appointment of a Premier or Chief Minister after the subsequent election, but they lose office if they are not re-elected to the legislative body.27 The above provides a general description of the position. The Annex provides more detail. But to discover the precise composition and powers of each of these executive bodies it is necessary to examine the constitution of the territory concerned. 3. Territories with a Committee System In the Falkland Islands and St Helena there is no ministerial system and there are no political parties. However, each has an elected legislative body, as well as an Executive Council consisting of some of the elected members of the legislative body. Each Executive Council also has some ex officio members, and each is chaired by the Governor.28 Apart from the Executive Council, in each territory certain executive functions are carried out by committees. In the Falkland Islands these committees are subordinate to the Executive Council.29 In St Helena they are formally committees of the Legislative Council.30

C. Exercise of Executive Powers In sparsely populated territories the constitution grants the Governor (or equivalent) power to exercise executive authority without reference to any local body.31 There is no need to reserve certain powers to the Governor, because no executive powers are devolved by the constitution to local executive authorities. Local legislation confers certain functions on public officers of the territory, for example in the fields of policing, prosecutions, customs and immigration. In islands with an Island Council—Pitcairn, Ascension and Tristan da Cunha—the powers and functions of these Councils are also prescribed in local legislation rather than in the constitution, and they can therefore be more easily adjusted.32 By contrast, in the six territories with a ministerial system and the two territories with a committee system, as described above, the position is more complicated. The constitutions of these territories are different, but the essentials of the system are broadly similar and may be described in the following general terms. In all cases the exercise of certain executive powers is conferred by territory legislation on local political officers (Ministers or committees), public officers or

27 This is the effect of eg Bermuda Constitution s 59(3)(a) and (4)(c); Virgin Islands Constitution s 53(3)(a) and (b); Cayman Islands Constitution s 52(1)(a) and (b). The Gibraltar Constitution s 45(9) is more explicit, and limits the executive authority Ministers may exercise after a dissolution of the Gibraltar Parliament, and the Montserrat Constitution s 34(4), is in similar terms. 28 Falkland Islands Constitution ss 57 and 63; St Helena, Ascension and Tristan da Cunha Constitution ss 35(1) and 41(1). 29 Falkland Islands Constitution s 57(3). 30 St Helena, Ascension and Tristan da Cunha Constitution ss 56–59. 31 Except in South Georgia and the South Sandwich Islands: see pp 81–82 above. 32 See n 12 above.

Executive Government in the Territories 85 statutory bodies or officials. Otherwise, in essence the constitutions divide the exercise of executive power between the Governor and the territory Cabinet, Executive Council or Council of Ministers.33 Most executive power is devolved to the latter bodies (or to members of them), either directly, or indirectly because the Governor is formally required to exercise executive power in most matters in accordance with the advice of such a body. An example of direct devolution of power is found in the Gibraltar Constitution. Section 47(1) lists the special responsibilities of the Governor: external affairs, defence, internal security, and certain public service matters. Section 47(2) then provides: For the avoidance of doubt it is declared that any matter which falls outside the special responsibilities of the Governor set out in subsection (1), or which is not a function which this Constitution or any other law requires the Governor to exercise in his discretion, is the responsibility of Ministers.

This marks a sharp division of powers. Apart from the listed special responsibilities of the Governor, the executive powers reserved to the Governor are those that the Constitution or any other law requires the Governor to exercise in his discretion. Everything else is a ministerial responsibility. An example of indirect devolution of power is found in the Falkland Islands Constitution. Section 66(1) provides: Subject to subsection (2), in the formulation of policy and in the exercise of the functions conferred on the Governor by this Constitution or any other law the Governor shall consult with the Executive Council and, subject to section 67, shall accept its advice.

Section 66(2) lists a number of circumstances in which the Governor is not obliged to consult the Executive Council. Section 67(1) and (2) then provide: (1) In any case in which the Governor consults the Executive Council, he or she may act against the advice given to him or her by the Council— (a) if, in his or her judgement, it would be right to do so in the interests of good governance; or (b) if, in his or her judgement, such advice would affect any of the matters mentioned in subsection (2). (2) The matters referred to in subsection (1)(b) are— (a) external affairs; (b) defence; (c) internal security, including the police; (d) administration of justice; (e) audit; and (f) appointments to the public service, the discipline and removal from office of public officers, and the management of the public service.

In this model, executive power is formally exercised by or through the Governor, but except (a) in those cases where the Governor is not obliged to consult the 33 Apart from prosecutorial powers of the Attorney General or Director of Public Prosecutions: see further ch 7 below.

86 Executive Authority and Controls Executive Council, and (b) where the Governor, having consulted the Executive Council, is permitted by the Constitution to act against its advice, the will of the Executive Council prevails. This model is sometimes called the ‘Governor in Council’ system.34 As noted above, whether devolution of executive power is direct or indirect, the result is that most matters are devolved and a minority of matters are in substance reserved, in one way or another, to the Governor. The precise division between the two is determined by each territory’s constitution.

D. Executive Powers Typically Reserved to the Governor In territories with a ministerial or committee system of government, the constitution uses several devices to reserve certain powers to the Governor. Powers that the Governor is to exercise without reference to any other local person or body are expressed to be exercisable ‘in his or her discretion’ or ‘in his or her judgement’. Some powers are to be exercised by the Governor after consultation with, or on the advice or recommendation of, a local person or authority other than the executive body (the Cabinet, Executive Council or Council of Ministers). This is made explicit, with the consequence that these powers are not to be exercised after consultation with, or in accordance with the advice of, the executive body. So, for example, section 82(1) of the Bermuda Constitution requires the Governor to make most appointments to public offices acting in accordance with the recommendation of the Public Service Commission. Section 21(2)(b) exempts the Governor from the obligation to obtain and act in accordance with the advice of the Cabinet when exercising any function conferred upon him by this Constitution which is expressed to be exercisable by him in his discretion, or in accordance with the recommendation or advice of, or after consultation with, any person or authority other than the Cabinet.

The same applies where territory legislation, rather than the constitution, confers power on the Governor to act without reference to the local executive body.35 Some powers are to be exercised by the Governor on instructions, from Her Majesty directly or through a Secretary of State, or from a Secretary of State. For example, section 19A(1) of the Anguilla Constitution provides: There shall be a Deputy Governor who shall be appointed by the Governor in pursuance of instructions given by Her Majesty through a Secretary of State and shall hold office during Her Majesty’s pleasure.

34 The phrase ‘Governor in Council’ is often used, but it has no established single meaning. It might be understood to mean the Governor acting on the advice of the Executive Council, or after consultation with the Council, or something else. If used in legislation it is therefore wise to define it, as some territories do: see eg Interpretation and General Clauses Ordinance (Laws of the Falkland Islands, Title 67) s 4; Interpretation Law (Laws of the Cayman Islands (1995 Revision) Cap 70) s 3. 35 See eg Bermuda Constitution s 21(2)(c); Virgin Islands Constitution s 40(1)(b); Cayman Islands Constitution s 32(2)(b).

Executive Government in the Territories 87 Some constitutions also allow the Governor to act without consulting the executive body on grounds that are sometimes called in shorthand ‘secrecy, triviality or urgency’. For example, section 40(2) of the Virgin Islands Constitution provides: The Governor shall not be obliged to consult with the Cabinet or the Premier if, in his or her judgement— (a) Her Majesty’s service would sustain material prejudice; (b) the matter is not materially significant so as to require consultation; or (c) the urgency of the matter requires the Governor to act before he or she can consult the Cabinet or the Premier, but in any case falling within paragraph (c) the Governor shall, as soon as practicable, communicate to the Cabinet the measures which he or she has adopted and the reasons for them.

E. Governor’s Special Responsibilities Among the executive powers the Governor may exercise in his or her discretion, or against the advice of the executive body, are matters which are described as the Governor’s special responsibilities. These are listed expressly in the constitution, and they invariably include external affairs, defence and internal security including the police, and almost always (with varying forms of drafting) certain public service matters. In some territories the list is longer; for example, in St Helena it includes the administration of justice, finance and shipping,36 and in Anguilla, Montserrat and the Turks and Caicos Islands it includes aspects of international finance.37 In some territories the Governor may exercise executive powers in the fields listed without reference to the executive body. For example, in the Bermuda Constitution the special responsibilities of the Governor are set out in section 62(1): The Governor, acting in his discretion, shall be responsible for the conduct (subject to the provisions of this Constitution or any other law) of any business of the Government, including the administration of any department of government, with respect to the following matters— (a) external affairs; (b) defence, including the armed forces; (c) internal security; (d) the police.

Section 21(1) and (2)(a) provide: (1) In the exercise of his functions the Governor shall, subject to the provisions of this section, obtain and act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet. (2) Subsection (1) of this section shall not apply to the exercise by the Governor of— (a) any function relating to any business of the Government for which he is responsible under section 62 of this Constitution.

36

St Helena, Ascension and Tristan da Cunha Constitution s 44(1). Anguilla Constitution s 28(2); Montserrat Constitution s 39(1); Turks and Caicos Islands Constitution s 33(1). 37

88 Executive Authority and Controls In some other territories the Governor must consult the executive body in the exercise of some or all of the special responsibilities but is not obliged to accept its advice. This is, broadly speaking, the effect of sections 66 and 67 of the Falkland Islands Constitution quoted earlier in this chapter. Although in that Constitution the matters listed in section 67(2) are not expressly called special responsibilities, they amount to as much; the only such matters the Governor is not obliged to consult the Executive Council about are defence and internal security (except for the police), unless the Governor receives a contrary instruction from Her Majesty through a Secretary of State.38 Some constitutions enable the Governor to delegate some or all of the special responsibilities to Ministers or senior officials. For example, section 62(2) of the Bermuda Constitution provides: The Governor, acting in his discretion, may by directions in writing delegate, with the prior approval of a Secretary of State, to the Premier or any other Minister designated by him after consultation with the Premier such responsibility for any of the matters specified in subsection (1) of this section as the Governor may think fit upon such conditions as he may impose.

This example is typical of such provisions. The power to delegate is in the Governor’s discretion; it requires prior approval from London; it may be total or partial; and it may be subject to conditions. In practice, throughout the territories the power has most frequently been exercised in Bermuda. In the Cayman Islands, Montserrat and the Virgin Islands the constitution goes further by obliging the Governor to delegate considerable functions in the field of external affairs.39 This is considered more fully in chapter thirteen. In some territories the constitution establishes a body to advise the Governor on some or all of the special responsibilities. Section 70 of the Bermuda Constitution establishes a Governor’s Council to do this. The advice of the Council is not binding on the Governor, and in practice the Council has not met for several years. The Montserrat Constitution establishes a National Advisory Council to advise the Governor on some of his special responsibilities and the exercise of emergency powers, but its advice is not binding on the Governor.40 Section 57 of the Virgin Islands Constitution establishes a National Security Council to advise the Governor on matters relating to internal security. The Governor is obliged to act in accordance with its advice ‘unless he or she considers that giving effect to the advice would adversely affect Her Majesty’s interest (whether in respect of the United Kingdom or the Virgin Islands)’. Section 58 of the Cayman Islands Constitution makes similar provision. It is important to bear in mind the scope of a Governor’s special responsibilities, because they are sometimes misunderstood. They are matters within the executive field, to the extent that they are not regulated by legislation. The territory constitutions do not prohibit local legislation on these matters. For example, all have

38

Falkland Islands Constitution s 66(2)(b), read with s 23(2). Cayman Islands Constitution s 55(4)–(6); Montserrat Constitution s 39(4)–(5); Virgin Islands Constitution s 60(4)–(7). 40 Montserrat Constitution s 45. 39

Controls Over Executive Government 89 enacted legislation dealing with various aspects of the local police force and its operations. The extent to which any proposed legislation that touches on any of these matters is acceptable to the Governor, or to the United Kingdom Government, is essentially a political matter, which might bring into play one or more of the controls on legislation discussed in chapter four. CONTROLS OVER EXECUTIVE GOVERNMENT

A. Controls in the Legislative Field Ultimately, the United Kingdom Government and Parliament have power to exercise control over executive government in the overseas territories by means of legislation. As explained in chapter four, this may be achieved by or under an Act of Parliament, and in all territories except Bermuda the power to legislate generally by Order in Council has been reserved. Control may also be exercised by one of the various means, also explained in chapter four, of controlling legislation locally enacted in the territories. Apart from these measures in the legislative field, the means of control of executive government by the United Kingdom vary from territory to territory. Once again, it is a matter of examining the terms of each territory’s constitution. B. Instructions41 In sparsely populated territories the Governor (or equivalent) has wide executive power and may be instructed as to the exercise of that power by Ministers in London.42 Close control of executive power is therefore available in these territories. In territories with a ministerial or committee system of government, Ministers in London may likewise instruct the Governor as to the exercise of the more limited powers vested in him or her.43 It is not uncommon to find constitutional provisions that excuse a Governor from consulting the local executive body when acting under instructions. For example, section 40(1)(a) of the Virgin Islands Constitution provides: Subject to this section, the Governor shall consult with the Cabinet in the exercise of all functions conferred on him or her by this Constitution or any other law for the time being in force in the Virgin Islands, except— (a) when acting under instructions given to him or her by Her Majesty through a Secretary of State.

Similar provisions are included in the constitutions of St Helena, the Falkland Islands, the Cayman Islands and Montserrat.44 Some constitutions enable the Governor to 41

See further ch 3, pp 39–42 above. See eg South Georgia and South Sandwich Islands Order 1985 s 5(1); Pitcairn Constitution s 27(3). 43 See eg Anguilla Constitution s 19(3); Gibraltar Constitution s 20(2); Falkland Islands Constitution s 23(2). 44 St Helena, Ascension and Tristan da Cunha Constitution s 43(2)(a); Falkland Islands Constitution s 66(2)(a); Cayman Islands Constitution s 32(2)(a); Montserrat Constitution s 26(1)(a). 42

90 Executive Authority and Controls act against the advice of the local executive body when so instructed by London. For example, section 33(2)(a) of the Cayman Islands Constitution provides: (2) The Governor may act against the advice given to him or her by the Cabinet— (a) if he or she is instructed to do so by Her Majesty through a Secretary of State.

In practice, the use of instructions to a Governor to avoid consulting the local executive body, or to override advice given to the Governor by that body, is infrequent. The power to do so is mainly a deterrent, to encourage responsible and good government. Locally elected politicians are naturally sensitive to public opinion in the territories, where the local democratic process acts as a check on executive government. But instructions have occasionally been issued in the interests of good governance or the international or constitutional responsibilities of the United Kingdom.

C. Governor’s Special Responsibilities The matters in respect of which Governors are given special responsibility, as discussed above, are those which are considered of particular sensitivity by the United Kingdom Government. The constitutions invariably give Governors power to act against the advice of the local executive body in cases involving those matters. The judgement as to whether such a matter would be affected is a subjective one for the Governor. For example, section 40(3) of the Virgin Islands Constitution provides: In any case in which the Governor is required under this section to consult the Cabinet, the Governor shall act in accordance with the advice of the Cabinet unless in his or her opinion such advice would affect a matter for which he or she is responsible under section 60.

The position is similar in the Cayman Islands, but there the test is whether the advice would, in the Governor’s judgement, ‘adversely affect’ any of the Governor’s special responsibilities.45 In forming an opinion on whether advice would affect a matter within the special responsibilities, the Governor may be instructed by London.46

D. Other Powers to Act against Advice Some constitutions enable the Governor to act against the advice of the local executive body in other specified circumstances. For example, by section 67(1)(a) of the Falkland Islands Constitution the Governor may act against the advice of the Executive Council if, in his or her judgement, it would be right to do so in the interests of good governance.

If the Governor acts against the advice of the Executive Council, section 67(3) requires the Governor to report the matter to a Secretary of State and convey to a Secretary of State the views of the Executive Council on the matter. 45

Cayman Islands Constitution s 33(2)(b). This results from the general duty to conform to instructions, in these examples imposed by Virgin Islands Constitution s 35(3) and Cayman Islands Constitution s 31(2). 46

Controls Over Executive Government 91 The Anguilla Constitution includes a similar but differently formulated power. Section 29(1) provides: In any case where the Governor is required by the last foregoing section to consult with the Executive Council, he may act otherwise than in accordance with the advice given him by the Council if in his opinion it would be inexpedient in the interests of public order or public faith to act in accordance with that advice: Provided that he shall not so act against the advice of the Council without first obtaining the approval of a Secretary of State.

A different, and more precise, approach is taken in section 43(5) of the St Helena, Ascension and Tristan da Cunha Constitution. It provides: The Governor shall not be obliged to act in accordance with the advice of the Executive Council on any matter if, in his or her judgement, that advice involves an inconsistency with one or more of the partnership values declared in section 2.

The ‘partnership values’ declared in section 2 include such matters as good faith, the rule of law, good government, sound financial management, the impartial administration of justice, and compliance with applicable international obligations. If the Governor proposes not to act in accordance with the Executive Council’s advice, he or she must inform the Council in writing of the reasons, the partnership value with which the advice is inconsistent and the respects in which it is inconsistent. Except in a case of urgency the prior approval of a Secretary of State is required, and any member of the Executive Council has the right, within 30 days, to submit comments on the Governor’s reasons to a Secretary of State.47 Even where, as in the Falkland Islands example, the prior approval of a Secretary of State is not constitutionally required, the Governor may be instructed by London as to the exercise of the power.48 In practice, prior consultation with London is very likely, and in some circumstances the Governor might seek an instruction. As with the override power based on instructions, this power is exercised rarely and serves mainly as a deterrent, but has sometimes been needed.

E. Local Political Control In the territories with an elected legislative body,49 local political control consists mainly in the answerability to that body of local Ministers or, in the Falkland Islands and St Helena, of the members of the Executive Council. In the territories with ministerial systems, Ministers may be questioned in the local legislative body or by its committees, must defend their policies in debates, and must pilot proposed legislation through the legislative process. The effectiveness of local political control obviously depends on the industry and determination of the opposition and government backbench members of the legislative body. Ultimately, a successful vote of no confidence

47

St Helena, Ascension and Tristan da Cunha Constitution s 43(6), (7) and (8). Pursuant to the Governor’s general duty under the constitution to comply with instructions. 49 Anguilla, Bermuda, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, St Helena, and the Virgin Islands (and, in normal circumstances, the Turks and Caicos Islands). 48

92 Executive Authority and Controls in the government leads to a dissolution of the legislative body and a general election, or the dismissal of the Premier or Chief Minister and his or her team of Ministers.50 In the Falkland Islands and St Helena, where there are no Ministers, the members of the Executive Council are elected by the elected members of the legislative body from among their number for a specified term. They may be removed at the end of that term by failing to secure re-election, or they may be removed during that term by resolution of the legislative body.51 There are therefore constitutional means and procedures available under each of these systems to monitor and, if necessary, to remove locally elected politicians who for the time being exercise executive powers. The ultimate local political sanction is of course the answerability of local politicians to the electorate at the ballot box.

F. Judicial Control The courts of each territory (and ultimately the Judicial Committee of the Privy Council) exercise judicial control over executive government in the territory, with such forms of action and remedies as are available under the law of the territory. An important sanction at the constitutional level is the requirement in most territories that executive government must comply with the fundamental rights provisions of the constitution, a requirement that is enforceable at the instance of an aggrieved person by the superior courts of the territory.52 Executive acts in the United Kingdom in relation to the territories, such as the making by Her Majesty of an Order in Council (or the advice of United Kingdom Ministers to Her Majesty to do so) or the giving of instructions by a Secretary of State, are judicially reviewable by the United Kingdom courts on the usual grounds of illegality, irrationality and procedural impropriety.53 But such acts are not reviewable on the ground of incompatibility with the Human Rights Act 1998,54 even if the European Convention on Human Rights55 has been extended to the territory in question by declaration under Article 56.56 Nor are they reviewable for incompatibility with the Convention unless the Convention has been so extended to the

50 See eg Bermuda Constitution s 59(1) and (4)(b); Virgin Islands Constitution s 53(1) and (4)(a); Cayman Islands Constitution ss 51(1) and 52(2)(a). 51 Falkland Islands Constitution ss 58 and 59(f); St Helena, Ascension and Tristan da Cunha Constitution ss 36 and 37(1)(f). 52 There are enforceable fundamental rights provisions in the constitutions of Anguilla, Bermuda, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn, St Helena, Ascension and Tristan da Cunha, the Turks and Caicos Islands, and the Virgin Islands. See further ch 9 below. 53 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409. 54 1998 c 42. 55 UKTS No 71 (1953); Cmd 8969. 56 R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529 (HL). See also R (al-Skeini) v Secretary of State for Defence [2008] 1 AC 153 (HL) para 134 (Lord Brown) and para 96 (Lord Carswell), and R (Barclay) v Secretary of State for Justice and Lord Chancellor [2009] UKSC 9 paras 100–10 and 117.

Controls Over Executive Government 93 territory and, it would seem, ministerial advice has expressly been given that the act in question is compatible with the Convention.57 Halsbury’s Laws of England58 suggests that such acts in the United Kingdom would be reviewable for incompatibility with the 1998 Act and the Convention, where the Convention has been so extended to the territory in question, citing as authority the House of Lords decision in al-Skeini59 and the Court of Appeal decision in Barclay.60 But there is no support for that proposition in al-Skeini, and the opinion of Lord Brown, with which Lord Carswell agreed, is to the contrary.61 As for Barclay, the decision of the Court of Appeal was appealed to the Supreme Court. The Supreme Court made clear that it was reviewing compatibility with the Convention because there had been express ministerial advice to Her Majesty that the Reform (Sark) Law 2008, the legislative act that gave rise to the challenge, was compatible with the Convention.62 The view stated in Halsbury’s also ignores the authority of the House of Lords in Quark,63 which the Supreme Court declined to revisit in Barclay since it did not need to do so.64 It should be noted too that of these authorities only Quark involved a British overseas territory, though Barclay is analogous in that the European Convention on Human Rights can only be extended to Sark, as one of the Channel Islands, by declaration under Article 56 in the same way that the Convention can only be extended to a British overseas territory.

G. Complaints Commissioners In Bermuda, the Cayman Islands, the Turks and Caicos Islands and the Virgin Islands the constitution establishes the office of Complaints Commissioner or Ombudsman, in Montserrat it establishes a Complaints Commission, and in the Falkland Islands, Pitcairn and St Helena there is no permanent Complaints Commissioner or Ombudsman but the constitution enables the Governor to appoint such an officer from time to time. In each case these officers have security of tenure and the office has express constitutional independence.65 Ordinary legislation in each territory sets out in detail the jurisdiction and powers of these offices,66 the main purpose of which is to investigate allegations of maladministration by the government of the territory, loosely reflecting the position of the Parliamentary Commissioner for Administration in the United Kingdom. These offices are considered further in chapter nine.67 57

R (Barclay) v Secretary of State for Justice and Lord Chancellor [2009] UKSC 9. See Halsbury’s Laws of England, vol 13, 5th edn (London, LexisNexis, 2009) para 812. 59 al-Skeini, n 56 above. 60 R (Barclay) v Secretary of State for Justice and Lord Chancellor [2008] EWCA Civ 1319. 61 al-Skeini, n 56 above, para 134 (Lord Brown) and para 96 (Lord Carswell). 62 R (Barclay) v Secretary of State for Justice and Lord Chancellor [2009] UKSC 9 paras 45 and 100. 63 Quark, n 56 above. 64 Barclay, n 62 above, para 107. 65 See Bermuda Constitution ss 93A–93B; Cayman Islands Constitution s 120; Turks and Caicos Islands Constitution ss 92–93; Virgin Islands Constitution ss 110–11; Montserrat Constitution s 105; Falkland Islands Constitution ss 95–96; Pitcairn Constitution ss 59–60; St Helena, Ascension and Tristan da Cunha Constitution ss 113–14. In Gibraltar the Public Services Ombudsman is established by local legislation, the Public Services Ombudsman Act 1998 (Laws of Gibraltar, 1998-48). 66 See eg Ombudsman Act 2004 (Laws of Bermuda, 2004: 32). 67 See pp 171–73 below. 58

94 Executive Authority and Controls H. Informal Means of Control It would be wrong and incomplete to say nothing about informal means of control. In the territories with ministerial or committee systems of government there is a local political and democratic process, including local media. The relationship of such territories with the United Kingdom has to take this into account. Reasoned argument, persuasion and influence play an important part. In recent times territory politicians have had readier direct access to United Kingdom Ministers. Since 1999 an annual Overseas Territories Consultative Council has been held in London, at which territory political leaders have met United Kingdom Ministers to discuss topics on an agenda to which they have contributed. This does not preclude bilateral ministerial contacts, and these have become increasingly frequent. Within the territories, the Governor chairs the Cabinet or Executive Council in all five Caribbean territories,68 the Falkland Islands and St Helena. Skilled chairmanship can and most often does resolve problems or minimise differences of opinion so that reserved constitutional powers such as those discussed in this chapter do not have to be used. THE PUBLIC SERVICE

In all territories there is a local public service of officials to support and administer the government. The public service is usually defined in the constitutions to include not only the civil service but also the police and prison services. The efficiency and political impartiality of the public service is plainly a vital element of good governance, and the constitutions of the territories go to considerable trouble to ensure this as far as possible. All public service officers—usually called ‘public officers’ in the territory constitutions—are servants of the Crown (in right of the territory, not the United Kingdom). They are therefore ultimately under the authority of the Governor as Her Majesty’s representative in the territory. The constitutions vest in the Governor power to appoint public officers, to exercise disciplinary control over them and to remove them from office. In the sparsely populated territories this power is exercisable by the Governor (or equivalent) without reference to anyone else; but, as with other powers, the Governor may be instructed by London.69 It is also open to the Governor to establish an advisory body, either informally or by local legislation.70 In more substantially populated territories, the power of appointment, discipline and removal is also vested in the Governor (or in Montserrat the Deputy Governor, subject to direction by the Governor), but often the Governor is also given power

68 Including the Turks and Caicos Islands, before Cabinet government was suspended by SI 2009/701. 69 See eg South Georgia and South Sandwich Islands Order 1985 s 7; British Indian Ocean Territory (Constitution) Order 2004 s 7. 70 This option is expressly mentioned in the St Helena, Ascension and Tristan da Cunha Constitution ss 95, 163 and 226.

The Public Service 95 to delegate it to public officers.71 This power of delegation does not apply to certain senior offices which are reserved to the Governor personally,72 but otherwise it allows a cascading system of powers of appointment and discipline within the public service. In some territories detailed provision is made for a system such as this, sometimes in local legislation.73 In some of the substantially populated territories the constitution establishes a Public Service Commission to advise the Governor (or a delegate of the Governor) on public service appointments, discipline and dismissals.74 The composition of these Commissions varies as between the territories, but there is usually a mixture of members selected personally by the Governor and members nominated by local political leaders. The independence of these Commissions is routinely secured in the constitutions by disqualifying from membership local politicians and public officers, giving Commission members security of tenure,75 and in some cases by requiring that ‘in the exercise of its functions the Commission shall not be subject to the direction or control of any other person or authority’.76 In Anguilla the Public Service Commission is purely advisory: the Governor must consult it but is not bound by its advice.77 In Bermuda the Governor is in most cases bound by the Commission’s advice.78 In Gibraltar and the Virgin Islands the constitution requires the Governor to accept the Commission’s advice unless the Governor determines that compliance with that advice would prejudice Her Majesty’s service.79 The same applies in the Turks and Caicos Islands, but the Governor may also make an appointment without reference to the Commission in case of urgency.80 Some constitutions reserve exclusively to the Governor certain senior appointments, such as Auditor and Commissioner of Police.81 Special constitutional protection is given to offices whose independence is crucial, such as Auditor, Director of Public Prosecutions and Attorney General, by providing for enhanced security of tenure.82 Some constitutions establish specialised Commissions in addition to the Public Service Commission. For example, the constitutions of Anguilla, the Cayman Islands, Gibraltar, St Helena and Ascension, the Virgin Islands and the Turks and Caicos Islands establish a Judicial (or Judicial and Legal) Service Commission to

71 See eg Virgin Islands Constitution s 92; Bermuda Constitution ss 82 and 83; Montserrat Constitution s 84. 72 See eg Bermuda Constitution s 83(1), read with s 82(2) and (4)(c). 73 See eg Public Service Management Law 2005 (Laws of the Cayman Islands, Law 27 of 2005). 74 Anguilla Constitution s 65; Bermuda Constitution s 81; Gibraltar Constitution s 55; Montserrat Constitution, s 82; Turks and Caicos Islands Constitution s 83; Virgin Islands Constitution s 91. 75 See the provisions cited in n 74 above (but in Gibraltar public officers are not disqualified). 76 Gibraltar Constitution s 58(3); Turks and Caicos Islands Constitution s 83(11); Virgin Islands Constitution s 91(9). Montserrat Constitution s 82(11) contains a similar impartiality provision. 77 Anguilla Constitution s 66(1). 78 Bermuda Constitution s 82(1). 79 Gibraltar Constitution s 54(4); Virgin Islands Constitution s 92(1). The phrase ‘prejudice Her Majesty’s service’ is not defined, but its meaning is reasonably clear: prejudice to the good government and administration of the territory, or damage to its public service. 80 Turks and Caicos Islands Constitution s 84(1), as amended by SI 2009/701. 81 Eg Turks and Caicos Islands Constitution s 85. 82 Eg Bermuda Constitution ss 71A, 86(3) to (6), 88(3) and (4); Cayman Islands Constitution ss 106(7) and 114(2); St Helena, Ascension and Tristan da Cunha Constitution ss 46(11) to (13) and 110(4) to (7); Turks and Caicos Islands Constitution s 85(4); Virgin Islands Constitution s 95(9).

96 Executive Authority and Controls advise on judicial (or judicial and government legal) appointments.83 Except in Anguilla where the Commission is advisory and in St Helena and Ascension where the Commission’s advice is binding,84 the Governor is generally bound by the advice of these Commissions unless he or she determines that compliance with their advice would prejudice Her Majesty’s service85 or unless the Governor is instructed otherwise by Her Majesty through a Secretary of State.86 The same applies to two further specialised Commissions established by the Virgin Islands Constitution, a Teaching Service Commission and a Police Service Commission.87 In no territory is the power of appointment, discipline and removal of public officers constitutionally capable of being conferred on a Minister or any other local politician.88 At most, in some instances a Minister must be consulted by the Governor on certain appointments,89 but in very few cases is the Governor bound by any advice given by the person consulted.90 That is not to say that territory politicians have no role to play in relation to the public service. Since the local legislature must vote the necessary funds, the size and structure of the public service is subject to the political process, as (with very few exceptions91) are salaries, allowances and pensions. But the political impartiality of the public service is constitutionally assured by keeping the power of appointment, discipline and removal out of political hands. Moreover, in several territories there is constitutional protection for the pensions of public officers.92 In many territories there are General Orders issued by the Governor or the local government regulating the public service and setting out their conditions of service. In some territories the traditional General Orders have been replaced by modern Management Codes. One of these is mentioned in the Falkland Islands Constitution. Section 85(1) and (3) provide: (1) Disciplinary control of public officers, and the removal from office of any public officer, shall be in accordance with the Management Code for the time being in operation. …

83 Anguilla Constitution s 67; Cayman Islands Constitution s 105; Gibraltar Constitution s 57; St Helena, Ascension and Tristan da Cunha Constitution ss 94 and 162; Virgin Islands Constitution s 94; Turks and Caicos Islands Constitution s 81. 84 Anguilla Constitution s 68; St Helena, Ascension and Tristan da Cunha Constitution ss 90(4), 93(6) and 161(1) and (7). 85 Cayman Islands Constitution s 106(1); Gibraltar Constitution s 57(2) and (3); Virgin Islands Constitution s 95(1). 86 Turks and Caicos Islands Constitution s 82. 87 Virgin Islands Constitution ss 93, 96 and 97. 88 Eg Bermuda Constitution s 61(3)(e); Cayman Islands Constitution s 54(4)(a); Virgin Islands Constitution s 56(3). 89 Eg the Premier must be consulted about appointments of heads of department or more senior officers: Virgin Islands Constitution s 92(4). 90 The advice of the Premier is binding as to the appointment of the Cabinet Secretary in Bermuda (Constitution s 90) and the Virgin Islands (Constitution s 92(6)). 91 Eg in St Helena the remuneration of the Attorney General is determined by the Governor, acting in his or her discretion (Constitution s 46(9)). 92 Anguilla Constitution ss 69–71; Bermuda Constitution ss 91–93; Cayman Islands Constitution s 110; Montserrat Constitution ss 86–88; Turks and Caicos Islands Constitution ss 89–91; Virgin Islands Constitution ss 99–101.

The Public Service 97 (3) In this section ‘Management Code’ means a code for the management of the public service issued by the Governor with the approval of a Secretary of State and with the agreement of the Executive Council; and any amendment of the Management Code that affects the discipline or removal of public officers shall require the prior approval of a Secretary of State.

The St Helena, Ascension and Tristan da Cunha Constitution requires the Governor to approve Codes of Management determining the terms and conditions of employment of officers of the public service of each of the islands.93 These provisions are mirrored in the Pitcairn Constitution.94 While most locally-recruited public officers serve on permanent and pensionable terms, others, especially expatriate officers, serve on contracts which prescribe particular terms and conditions applicable to them.

93 94

St Helena, Ascension and Tristan da Cunha Constitution ss 96, 164 and 227. Pitcairn Constitution s 57.

6 Judicial Authority

J

UDICIAL AUTHORITY IN most of the British overseas territories is organised at four levels, although the precise arrangements vary as between the different territories. At the apex is Her Majesty in Council, that is to say Her Majesty advised by the Judicial Committee of the Privy Council. Below that final level of appeal, each territory either has its own Court of Appeal, or shares a common Court of Appeal. Below that, each territory either has its own court of unlimited civil and criminal jurisdiction, usually but not always called a Supreme Court, or shares such a court. Below that, each territory has its own magistrates’ courts. The only exception is the Sovereign Base Areas, where the structure differs below the level of final appeal to Her Majesty in Council. This chapter examines the arrangements for the exercise of judicial authority in the territories, and the appointment and security of tenure of the judiciary. LEGAL BASIS FOR THE ESTABLISHMENT OF COURTS

Before looking at the arrangements at each level of judicial authority, a prior issue is the legal basis for the establishment of courts in the overseas territories. The Crown has a prerogative power to establish courts in ceded or conquered territories, and also in territories acquired by settlement.1 In exercise of that power the Gibraltar Supreme Court and Court of Appeal and the British Indian Ocean Territory Court of Appeal are established by prerogative Orders in Council.2 Some Acts of Parliament have expressly conferred power to establish courts. Of the Acts conferring power to make constitutional arrangements for the current overseas territories, the British Settlements Act 18873 is unique in doing so. Section 2 enables Her Majesty in Council to establish not only laws and institutions for a British settlement, but also to constitute for such a settlement courts and officers and to make provisions and regulations for the proceedings in such courts and for the administration of justice. But it was hardly necessary to make such express provision, because the power to make constituent provision for a

1 Campbell v Hall (1774) 1 Cowp 204; Phillips v Eyre (1870) LR 6 QB 1; Ex p Carew [1897] AC 719. 2 Gibraltar Constitution Order 2006: ss 60 and 61 of Constitution (SI 2006, III, p 11503); British Indian Ocean Territory (Court of Appeal) Order 1976 (SI 1976, II, p 3815). 3 1887 c 54.

Legal Basis For the Establishment of Courts 99 territory must necessarily include the power to establish courts. As Roberts-Wray4 puts it: [I]n the absence of special reasons, such provisions were redundant and their origin is something of a mystery. They may be attributed to uncertainties in the law and the caution of draftsmen of Acts of Parliament; but that begs part of the question, for why should there have been any doubt?

There were ‘special reasons’ in the case of the West Indies Act 1967,5 because it provides for a common court for several territories. Section 6(1) enabled Her Majesty by Order in Council to establish common courts for the associated states of Antigua, Dominica, Grenada, Saint Christopher, Nevis and Anguilla, Saint Lucia and Saint Vincent. Section 6(2) allowed Montserrat and the Virgin Islands to be brought within the jurisdiction of such common courts. This arrangement, which now applies also to Anguilla, is further considered later in this chapter. The power in the British Settlements Act 1887 has been used to establish courts by Order in Council for the British Antarctic Territory,6 the Falkland Islands,7 Pitcairn,8 Ascension and Tristan da Cunha.9 The general constituent power in the Bermuda Constitution Act 196710 has been used to establish courts in Bermuda.11 Similarly, the general constituent power in the West Indies Act 196212 has been used to establish courts in the Cayman Islands13 and the Turks and Caicos Islands,14 and in the Saint Helena Act 183315 to establish courts in St Helena.16 The power of Her Majesty to establish courts for the territories, whether prerogative or conferred by statute, may be delegated to authorities of the territories. The general power conferred on each territory legislature to make laws ‘for the peace, order and good government’ of the territory is broad enough to include laws establishing courts for the territory, subject only to the constitution of the territory and to the operation of section 2 of the Colonial Laws Validity Act 1865.17 Section 5 of that Act removed previous doubts about the powers of ‘colonial legislatures’ to establish courts. Section 1 of the Act defines a colonial legislature as the authority, other than the Imperial Parliament or Her Majesty in Council, competent to make laws for any colony.

4

K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 464. 1967 c 4. British Antarctic Territory Court of Appeal Order 1965 (SI 1965/590, as amended by SI 1989/2399). 7 Falkland Islands Constitution Order 2008 (SI 2008/2846): ss 86 and 87 of Constitution. 8 Pitcairn Constitution Order 2010 (SI 2010/244): ss 45 and 49 of Constitution. 9 St Helena, Ascension and Tristan da Cunha Constitution Order 2009 (SI 2009/1751): ss 153 and 218 of Constitution. 10 1967 c 63. 11 Bermuda Constitution Order 1968 (SI 1968/182): ss 73 and 77 of Constitution. 12 1962 c 19. 13 Cayman Islands Constitution Order 2009 (SI 2009/1379): ss 94 and 99 of Constitution. 14 Turks and Caicos Islands Constitution Order 2006 (SI 2006/1913): ss 73 and 77 of Constitution. 15 1833 c 85. 16 St Helena, Ascension and Tristan da Cunha Constitution Order 2009: ss 80, 82 and 86 of Constitution. 17 1865 c 63. See further ch 4, pp 67–70 above. 5

6

100 Judicial Authority Section 5 provides (in part): Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein.

In a few cases express power is granted by Order in Council to a territory legislature to establish courts. This is done in the constitution Orders for Pitcairn,18 South Georgia and the South Sandwich Islands19 and the British Antarctic Territory,20 each of which was made under the British Settlements Acts. A. Colonial Courts of Admiralty Act 1890 A particular statute that establishes courts for the territories is the Colonial Courts of Admiralty Act 1890.21 It provides that the local legislature may declare any court of unlimited civil jurisdiction in the territory to be a court of admiralty and, if no such declaration is in force, every court of unlimited civil jurisdiction in the territory is a court of admiralty.22 Section 2 confers on a colonial court of admiralty the same jurisdiction as the High Court of Justice in England, with qualifications, but this was held to refer to the High Court’s jurisdiction as in 1890.23 Orders in Council made under section 150 of the Supreme Court Act 198124 may extend the jurisdiction of colonial courts of admiralty to the full Admiralty jurisdiction conferred on the High Court by that Act. Such Orders have been made in respect of the British Indian Ocean Territory and Gibraltar.25 Similar Orders were made under the Administration of Justice Act 1956,26 which now have effect as if made under section 150 of the 1981 Act,27 in respect of the Cayman Islands, the Falkland Islands, Montserrat, St Helena, Ascension and Tristan da Cunha, the Turks and Caicos Islands and the Virgin Islands.28 THE COURTS OF THE OVERSEAS TERRITORIES

A. The Judicial Committee of the Privy Council The Judicial Committee of the Privy Council is the final court of appeal for all the overseas territories. The Judicial Committee delivers judgment in the form of a 18

Pitcairn Constitution s 43(3). South Georgia and South Sandwich Islands Order 1985 (SI 1985/449) s 13. 20 British Antarctic Territory Order 1989 (SI 1989/842) s 15. 21 1890 c 27. See further Roberts-Wray, Commonwealth and Colonial Law, n 4 above, 467–75; Halsbury’s Laws of England, vol 13, 5th edn (London, LexisNexis, 2009) paras 838–40. 22 ss 2(1) and 3(a). See eg Supreme Court Act (Laws of Montserrat, Cap 2.01) s 8. 23 The Yuri Maru; The Woron [1927] AC 906 (PC). 24 1981 c 54, now called the Senior Courts Act 1981, by virtue of the Constitutional Reform Act 2005 (2005 c 4) sch 11 para 1, and SI 2009/1604, art 2(d). 25 See SI 1984/540 (British Indian Ocean Territory) and SI 1987/1263 (Gibraltar). 26 1956 c 46. 27 By virtue of the Interpretation Act 1978 (1978 c 30) s 17(2)(b). 28 See SI 1964/922 (Cayman Islands); SI 1966/686 (Falkland Islands); SI 1968/1647 (Montserrat); SI 1969/858 (St Helena, Ascension and Tristan da Cunha); SI 1965/1529 (Turks and Caicos Islands): SI 1961/2033 (Virgin Islands). The Admiralty jurisdiction of the Bermuda Supreme Court is conferred by the Supreme Court Act 1905 (Laws of Bermuda (1989 Revision) Title 8, Item 1) ss 24–29. 19

The Courts of the Overseas Territories 101 report or recommendation on an appeal to the Sovereign. The advice of the Judicial Committee is given effect by Order in Council. Strictly speaking, therefore, final appeal from the overseas territories is to ‘Her Majesty in Council’, and that is the language used in various constitution Orders and other Orders in Council that provide for final appeals from territory courts. The appellate jurisdiction of the Privy Council in relation to British colonies is ancient and derives from unwritten law.29 The Judicial Committee Act 183330 set up the Judicial Committee, and section 3 of that Act required the Sovereign to refer to the Judicial Committee all appeals and complaints in the nature of appeals whatever, which either by virtue of this Act, or of any law, statute or custom may be brought before His Majesty or His Majesty in Council.

Section 1 of the Judicial Committee Act 184431 empowers Her Majesty to provide by Order in Council for the admission of appeals to Her Majesty in Council from ‘any court of justice within any British colony or possession abroad’, and for the instituting and prosecuting of such appeals and for carrying into effect any sentences or decisions of Her Majesty in Council on such appeals. It also expressly saves any power now by law vested in Her Majesty for regulating appeals to Her Majesty in Council from the judgments, sentences, decrees, or orders of any courts of justice within any of Her Majesty’s colonies or possessions abroad.

Thus the Royal prerogative in this matter was preserved. Appeals to the Privy Council from all the overseas territories except Bermuda are largely regulated by Orders in Council under section 1 of the Judicial Committee Act 1844.32 Most of these Orders define the appeals that lie from the Court of Appeal of the territory to Her Majesty in Council. For example, article 3 of the Pitcairn (Appeals to Privy Council) Order 200033 provides: Subject to the provisions of this Order, an appeal shall lie— (a) as of right, from any final judgment where the matter in dispute on the appeal amounts to or is of the value of £5,000 or upwards, or where the appeal involves directly

29

See Roberts-Wray, Commonwealth and Colonial Law, n 4 above, 433. 1833 c 41. 31 1844 c 69. 32 Anguilla (Appeals to Privy Council) Order 1983 (SI 1983/1109); British Antarctic Territory Court of Appeal (Appeal to Privy Council) Order 1965 (SI 1965/592); British Indian Ocean Territory (Appeals to Privy Council) Order 1983 (SI 1983/1888); Cayman Islands (Appeals to Privy Council) Order 1984 (SI 1984/1151, as amended by SI 2009/3206); Falkland Islands (Appeals to Privy Council) Order 1985 (SI 1985/445, as amended by SI 2009/3205); Gibraltar (Appeals to Privy Council) Order 1985 (SI 1985/1199, as amended by SI 2009/3207); Montserrat (Appeals to Privy Council) Order 1967 (SI 1967/233, as amended by SI 1983/1108); Pitcairn (Appeals to Privy Council) Order 2000 (SI 2000/1816, as amended by SI 2010/244); St Helena Court of Appeal (Appeal to Privy Council) Order 1964 (SI 1964/1846, as amended by SI 1990/991 and 2009/3204); Sovereign Base Areas of Akrotiri and Dhekelia (Appeals to Privy Council) Order in Council 1961 (SI 1961/59); Turks and Caicos Islands (Appeal to Privy Council) Order 1965 (SI 1965/1863, as amended by SI 1973/1084); Virgin Islands (Appeals to Privy Council) Order 1967 (SI 1967/234, as amended by SI 1983/1108). All these Orders were amended by SI 2009/224. 33 SI 2000/1816, as amended by SI 2009/224 and 2010/244. 30

102 Judicial Authority or indirectly some claim or question to or respecting property or some civil right amounting to or of the said value or upwards; and (b) at the discretion of the Court [of Appeal], from any other judgment, whether final or interlocutory, if, in the opinion of the Court, the question involved in the appeal is one which, by reason of its great or general importance or otherwise, ought to be submitted to Her Majesty in Council for decision.

Some Orders also provide for appeals as of right against final decisions in proceedings for dissolution or nullity of marriage, and for appeals as of right or with the leave of the territory’s Court of Appeal in such other cases as may be prescribed by any law for the time being in force in the territory.34 The Orders made under section 1 of the Judicial Committee Act 1844 also make detailed provision regarding the procedure for appeals, and for Orders of Her Majesty in Council on appeals to be enforced in like manner as any judgment of the territory’s Court of Appeal. However, all these Orders must now be read with (and subject to) the Judicial Committee (Appellate Jurisdiction) Rules Order 2009.35 That Order sets out rules to govern the practice and procedure to be followed in relation to appeals to the Judicial Committee. It also revokes the overseas territory Orders mentioned above but only so far as they relate to the powers of the Judicial Committee and the procedure to be adopted by it with respect to proceedings before it.36 The procedure which these Orders provide for proceedings in the various courts from which appeals lie to the Judicial Committee is not affected. Exceptionally, the constitutions of Anguilla and Gibraltar include provisions defining the appeals that may be made to Her Majesty in Council.37 Each provides, among the cases in which appeals lie as of right, for appeals against final decisions, in any civil or criminal proceedings, on questions as to the interpretation of the Constitution. Curiously, the Anguilla (Appeals to Privy Council) Order 198338 also defines appeals that may be brought from Anguilla in similar terms, but without reference to appeals relating to the Constitution. The territory constitutions that include a fundamental rights chapter provide for final appeal to the Privy Council in cases brought in the territory’s courts for the enforcement of the fundamental rights provisions.39 The constitutions of Anguilla and Gibraltar, and most of the Orders made under section 1 of the Judicial Committee Act 1844, save the prerogative power of Her Majesty to grant special leave to appeal to the Privy Council. For example, section 66(5) of the Gibraltar Constitution provides: Nothing in this section shall affect any right of Her Majesty to grant special leave to appeal to Her Majesty in Council from the decision of any court in any civil or criminal matter.

34

See eg Anguilla (Appeals to Privy Council) Order 1983, art 3. SI 2009/224. 36 See art 5. 37 Anguilla Constitution (SI 1982/334) s 72; Gibraltar Constitution s 66. 38 SI 1983/1109, as amended by SI 2009/224. 39 Anguilla Constitution s 72(1)(c); Bermuda Constitution s 15(4); Cayman Islands Constitution s 26(3); Falkland Islands Constitution s 19(7); Gibraltar Constitution s 66(1)(c); Montserrat Constitution (SI 2010/2474) s 20(4); Pitcairn Constitution s 25(10); St Helena, Ascension and Tristan da Cunha Constitution ss 24(10), 140(10) and 206(10); Turks and Caicos Islands Constitution s 18(4); Virgin Islands Constitution (SI 2007/1678) s 31(9). 35

The Courts of the Overseas Territories 103 The Orders made under the Judicial Committee Act 1844 use a more elaborate formula to the same effect. For example, article 22 of the Pitcairn (Appeals to Privy Council) Order 200040 provides: Nothing in this Order contained shall be deemed to interfere with the right of Her Majesty, upon the humble petition of any person aggrieved by any judgment of the Court [of Appeal], to admit his appeal therefrom upon such conditions as Her Majesty in Council may impose.

These provisions were no doubt included for the avoidance of doubt, but, as noted above, section 1 of the Judicial Committee Act 1844 expressly preserves the prerogative powers of the Sovereign. Special leave may be granted by Her Majesty, on the advice of the Judicial Committee, in any type of case. In practice appeals by special leave most often arise where the Court of Appeal of the territory has no power to grant leave, or where the Court of Appeal has refused leave. Subject to certain exceptions, it is within the general legislative powers conferred on the legislature of an overseas territory to prescribe the cases in which an appeal may be made to the Privy Council, either as of right or with the leave of the territory’s Court of Appeal. The exceptions are: (a) legislation of a territory must be consistent with the constitution of the territory, because in each territory the general legislative power is stated to be ‘subject to this Constitution’;41 (b) legislation of a territory must not be repugnant to the Judicial Committee Act 1833 or an Order in Council made under the Judicial Committee Act 1844, because it would in that case be void under section 2 of the Colonial Laws Validity Act 1865;42 (c) in the absence of express authority, legislation of a territory cannot affect the prerogative power of Her Majesty to grant special leave to appeal to Her Majesty in Council. In Nadan v R43 the Judicial Committee so held because such legislation would be void as repugnant to the Judicial Committee Act 1833, and would also be void on the grounds of extraterritoriality. In none of the present overseas territories has authority been granted to affect the prerogative power to grant special leave to appeal. As noted above, in most territories appeals to the Privy Council are regulated by their constitutions or by Orders made under the Judicial Committee Act 1844, or both. Subject to these limitations, territory legislation may deal with the matter. In Bermuda, appeals to the Privy Council are for the most part dealt with in local legislation,44 but otherwise the

40

See n 33. See ch 4, pp 66–67 above. 42 1865 c 63. See ch 4, pp 67–70 above. 43 Nadan v R [1926] AC 482 (PC). 44 Appeals Act 1911 (Laws of Bermuda (1989 Revision) Title 8, Item 86). s 27 of the Act expressly saves the Royal prerogative in terms similar to the savings in the Orders in Council made under the Judicial Committee Act 1844 for other territories. 41

104 Judicial Authority Constitution of Bermuda provides for final appeal to the Privy Council in cases brought to enforce the fundamental rights provisions.45

B. Courts of Appeal The constitutions of Bermuda, the Cayman Islands, the Falkland Islands, Gibraltar, Pitcairn, St Helena and the Turks and Caicos Islands establish a local Court of Appeal for the territory.46 The St Helena Court of Appeal is also the Court of Appeal for Ascension and Tristan da Cunha.47 Each of these Courts consists of a President and at least two Justices of Appeal. The constitutions prescribe the qualifications for appointment as President or Justice of Appeal. In Bermuda, to be qualified a person must hold or have held ‘high judicial office’, which is defined as the office of judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court.48 In the Cayman Islands and the Turks and Caicos Islands the position is similar, but the definition of ‘high judicial office’ includes Ireland as well as the Commonwealth, and in the latter, to be qualified a person must also be qualified for appointment to the Supreme Court.49 In the Falkland Islands, Gibraltar, Pitcairn and St Helena, to be qualified a person must hold or have held high judicial office in the Commonwealth or Ireland, or be an experienced advocate or solicitor in a superior court in the Commonwealth or Ireland.50 The appointment and security of tenure of Court of Appeal judges under these constitutions are considered later in this chapter. The constitutions prescribe the jurisdiction of these Courts of Appeal in general terms. For example, section 92(1) of the Falkland Islands Constitution51 provides: The Court of Appeal shall have such jurisdiction and powers as may be conferred on it by this Constitution or any other law.

The other constitutions contain provisions in similar terms.52 The constitutions of Gibraltar, the Falkland Islands and St Helena, Ascension and Tristan da Cunha define the Court of Appeal’s jurisdiction in some detail but not exhaustively.53 Otherwise, the constitutions confer little jurisdiction directly. Those of Bermuda,

45

Bermuda Constitution s 15(4). Bermuda Constitution s 77; Cayman Islands Constitution s 99; Falkland Islands Constitution s 87; Gibraltar Constitution s 61; Pitcairn Constitution s 49; St Helena, Ascension and Tristan da Cunha Constitution s 86; Turks and Caicos Islands Constitution s 77. 47 St Helena, Ascension and Tristan da Cunha Constitution ss 153(1) and 218(1). 48 Bermuda Constitution s 77(4), read with definition in s 102(1). 49 Cayman Islands Constitution s 100(3), read with definition in s 124(1); Turks and Caicos Islands Constitution s 77(5), read with definition in s 99(1). 50 Falkland Islands Constitution s 88(2); Gibraltar Constitution s 62(2); Pitcairn Constitution s 49(3); St Helena, Ascension and Tristan da Cunha Constitution s 86(3). 51 SI 2008/2846. 52 Bermuda Constitution s 77(1); Cayman Islands Constitution s 99(1); Gibraltar Constitution s 61(1); Pitcairn Constitution s 50(1); St Helena, Ascension and Tristan da Cunha Constitution ss 87(1), 158(1) and 223(1); Turks and Caicos Islands Constitution s 77(1). 53 Gibraltar Constitution s 66; Falkland Islands Constitution s 94; St Helena, Ascension and Tristan da Cunha Constitution ss 87(2), 158(2) and 223(2). 46

The Courts of the Overseas Territories 105 the Cayman Islands, the Falkland Islands, Gibraltar, Pitcairn, St Helena, Ascension and Tristan da Cunha, and the Turks and Caicos Islands give appellate jurisdiction to the Court of Appeal in the enforcement of the fundamental rights provisions of the constitution.54 For the most part the jurisdiction of the Court of Appeal is prescribed in local legislation. The Court of Appeal for Anguilla, Montserrat and the Virgin Islands is the Court of Appeal of the Eastern Caribbean Supreme Court. That Supreme Court, comprising a Court of Appeal and a High Court of Justice, was originally established as the West Indies Associated States Supreme Court by the West Indies Associated States Supreme Court Order 1967.55 Although Montserrat and the Virgin Islands were not among the ‘associated states’ established by the West Indies Act 1967,56 the Order brought those territories within the jurisdiction of that Court by virtue of powers provided by section 6(2) of the Act. Anguilla, which had formally ceased to be part of the associated state of St Christopher, Nevis and Anguilla in December 1980, was brought back within the jurisdiction of the Court by section 3 of the Anguilla Constitution Order 1982.57 After all of the associated states (minus Anguilla) had become independent, the Anguilla, Montserrat and Virgin Islands (Supreme Court) Order 198358 amended the West Indies Associated States Supreme Court Order 1967 so far as that Order had effect as part of the law of Anguilla, Montserrat or the Virgin Islands. It changed the title of the 1967 Order to ‘the Supreme Court Order’, and altered the Supreme Court’s title to ‘Eastern Caribbean Supreme Court’. It amended the 1967 Order to bring Anguilla within its scope, and provided that for the purposes of the Order Anguilla shall not be regarded as a State. Finally, it revoked section 3(1) and (2) of the Anguilla Constitution Order 1982. The Eastern Caribbean Supreme Court continues to provide the Court of Appeal and High Court for the former associated states as well as for Anguilla, Montserrat and the Virgin Islands. The Court of Appeal, which consists of the Chief Justice and three Justices of Appeal, is itinerant and sits in each State or territory within its jurisdiction to hear appeals. Because the Eastern Caribbean Supreme Court has its legal basis in other Orders in Council described above, the constitutions of Anguilla, Montserrat and the Virgin Islands do not constitute its Court of Appeal as a court for those territories. Although not legally necessary, section 89 of the Virgin Islands Constitution provides: The Supreme Court Order 1967 shall continue to apply to the Virgin Islands as it applied immediately before the commencement of this Constitution, and accordingly the High

54 Bermuda Constitution s 15(4); Cayman Islands Constitution s 26(3); Falkland Islands Constitution ss 19(7) and 94(1)(c); Gibraltar Constitution s 66(1)(c); Pitcairn Constitution s 25(10); St Helena, Ascension and Tristan da Cunha Constitution ss 24(10), 140(10) and 206(10); Turks and Caicos Islands Constitution s 18(4). 55 SI 1967/223. See also Virgin Islands (Courts) Order 1967 (SI 1967/231). 56 1967 c 4. The associated states were Antigua, Dominica, Grenada, St Christopher and Nevis, St Lucia and St Vincent. St Christopher and Nevis originally included Anguilla as part of the associated state. 57 SI 1982/334. 58 SI 1983/1108 (since amended by SI 2000/3060).

106 Judicial Authority Court and the Court of Appeal of the Eastern Caribbean Supreme Court shall continue to have jurisdiction in the Virgin Islands.59

The Constitution of Anguilla defines the appellate jurisdiction of the Court of Appeal,60 though not exhaustively, and the constitutions of Montserrat and the Virgin Islands give it appellate jurisdiction in the enforcement of the fundamental rights provisions of those constitutions.61 Otherwise the jurisdiction of the Court of Appeal in Anguilla, Montserrat and the Virgin Islands is provided for in the ordinary legislation of those territories. As for the sparsely populated territories, the British Antarctic Territory and the British Indian Ocean Territory each has a Court of Appeal established by a specific Order in Council.62 For the Sovereign Base Areas there is a Senior Judges’ Court, established by local legislation,63 which has jurisdiction to hear and determine appeals from decisions of the Resident Judge’s Court and (though it must be differently constituted when doing so) from its own first instance decisions. South Georgia and the South Sandwich Islands have no Court of Appeal of their own. Instead they share a Court of Appeal with the Falkland Islands. Section 9(1) of the Falkland Islands Courts (Overseas Jurisdiction) Order 198964 (read with section 2) provides: The Court of Appeal [of the Falkland Islands] shall have jurisdiction to hear and determine such appeals from the courts of South Georgia and the South Sandwich Islands as may be prescribed by any law in force in that Territory.

The 1989 Order makes further provision regarding such appeals and their enforcement. In all of these territories the appellate jurisdiction is prescribed in local legislation. Power is provided for some of the territories’ Courts of Appeal to sit outside the territory. For example, section 92(3) of the Falkland Islands Constitution provides: The Court of Appeal may, in accordance with such directions as the President may from time to time issue, sit in the Falkland Islands or elsewhere for the purpose of exercising its jurisdiction in respect of the Falkland Islands.

Similar provision is made in respect of the Courts of Appeal of St Helena,65 Pitcairn,66 the British Antarctic Territory,67 and the British Indian Ocean Territory68 and in respect of the Court of Appeal of the Falkland Islands when hearing appeals from the courts of South Georgia and the South Sandwich Islands.69

59

The Montserrat Constitution s 80, makes similar provision. Anguilla Constitution s 72. 61 Montserrat Constitution s 20(4); Virgin Islands Constitution s 31(9). 62 British Antarctic Territory Court of Appeal Order 1965 (SI 1965/590, as amended by SI 1989/2399); British Indian Ocean Territory (Court of Appeal) Order 1976 (SI 1976, II, p 3815). 63 Courts (Constitution and Jurisdiction) Ordinance 2007 (Laws of the Sovereign Base Areas, Ordinance 5 of 2007). 64 SI 1989/2399, as amended by SI 2009/1737. 65 St Helena, Ascension and Tristan da Cunha Constitution ss 88(5), 159(5) and 224(5). 66 Pitcairn Constitution s 50(3). 67 British Antarctic Territory Court of Appeal Order 1965 art 4(3). 68 British Indian Ocean Territory (Court of Appeal) Order 1976 art 4(3). 69 Falkland Islands Courts (Overseas Jurisdiction) Order 1989 s 9(3). 60

The Courts of the Overseas Territories 107 The workload of the territories’ Courts of Appeal varies, but in no case is the Court of Appeal required to sit continuously. In the larger territories there are usually two or three sittings a year, while in the smaller or sparsely populated territories the Court of Appeal is required to sit only occasionally.

C. Superior Courts of First Instance Each of the overseas territories has a superior court of first instance, equivalent to the High Court in England. The constitutions of Bermuda, the Falkland Islands, Gibraltar, Pitcairn, St Helena, Ascension and Tristan da Cunha, and the Turks and Caicos Islands establish a local Supreme Court for the territory.70 The St Helena Supreme Court is also the Supreme Court for Ascension and Tristan da Cunha.71 The Cayman Islands Constitution establishes a Grand Court for the territory.72 Each of these Courts consists of a Chief Justice, with provision for the appointment of other judges.73 All of these constitutions either prescribe the qualifications for appointment as a judge or provide for those qualifications to be prescribed by territory legislation. For example, section 73(4) of the Turks and Caicos Islands Constitution provides: A judge of the Supreme Court must be: (a) a barrister or solicitor of the United Kingdom, of any other part of the Commonwealth, or of Ireland; (b) a member of the Faculty of Advocates or a Writer to the Signet of Scotland; or (c) an attorney of the Supreme Court admitted under the Legal Profession Ordinance or under any law for the time being in force in the Islands making like provision, and of at least ten years’ standing as such.74

By contrast, section 73(5) of the Bermuda Constitution provides: The qualifications for appointment as a judge of the Supreme Court shall be such as may be prescribed by any law enacted by the Legislature: Provided that a person who has been appointed as a judge of the Supreme Court may continue in office notwithstanding any subsequent variation in the qualifications so prescribed.75

The appointment and security of tenure of Supreme Court or Grand Court judges under these constitutions are considered later in this chapter. 70 Bermuda Constitution s 73; Falkland Islands Constitution s 86; Gibraltar Constitution s 60; Pitcairn Constitution s 45; St Helena, Ascension and Tristan da Cunha Constitution s 82; Turks and Caicos Islands Constitution s 73. 71 St Helena, Ascension and Tristan da Cunha Constitution ss 153(1) and 218(1). 72 Cayman Islands Constitution s 94. 73 Bermuda Constitution s 73(2); Cayman Islands Constitution s 95(1); Falkland Islands Constitution s 86(2); Gibraltar Constitution s 60(2); Pitcairn Constitution s 47(1); St Helena, Ascension and Tristan da Cunha Constitution s 84(1); Turks and Caicos Islands Constitution s 73(2). 74 Different qualifications are prescribed in the Falkland Islands Constitution s 88(2) and (3), the Gibraltar Constitution s 62(2) and (3), and the Pitcairn Constitution s 47(4) and (5). 75 Cayman Islands Constitution s 95(2), is in similar terms. For St Helena, see St Helena, Ascension and Tristan da Cunha Constitution s 84(4).

108 Judicial Authority The constitutions vary in describing the jurisdiction of these courts. Only the constitutions of Gibraltar, the Falkland Islands, Pitcairn and St Helena specify that the Supreme Court has unlimited jurisdiction. Section 60(1) of the Gibraltar Constitution provides: There shall be a Supreme Court for Gibraltar which shall have unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred upon it by this Constitution or any other law.76

By contrast, section 73(1) of the Bermuda Constitution provides: There shall be a Supreme Court for Bermuda which shall have such jurisdiction and powers as may be conferred upon it by this Constitution and any other law.77

The constitutions themselves confer jurisdiction on these courts to determine electoral disputes and questions as to whether an elected member has vacated his or her seat in the legislative body or is required to cease to perform his or her functions as such a member.78 In those constitutions containing a bill of rights, jurisdiction is conferred on the Supreme Court to enforce the rights prescribed.79 Otherwise, the jurisdiction of these courts is prescribed in territory legislation.80 The constitutions of Pitcairn and St Helena make provision for the Supreme Court to sit outside the Territory.81 The superior court of first instance for Anguilla, Montserrat and the Virgin Islands is the High Court of Justice of the Eastern Caribbean Supreme Court. The legal basis for this arrangement is the same as that for the Court of Appeal of these territories.82 The High Court consists of the Chief Justice and 13 other judges. Judges of the High Court are assigned to these territories, resident in Anguilla and the Virgin Islands, non-resident in Montserrat. The constitutions of all three territories confer jurisdiction on the High Court to determine electoral disputes and questions concerning elected membership of the legislative bodies,83 and to enforce the fundamental rights prescribed in the constitutions.84 Otherwise the jurisdiction of the High Court in Anguilla, Montserrat and the Virgin Islands is provided for in the local legislation of these territories.85 The British Antarctic Territory, the British Indian Ocean Territory, and South Georgia and the South Sandwich Islands each has a Supreme Court established by

76

Falkland Islands Constitution s 86(1), is in almost identical terms. Turks and Caicos Islands Constitution s 73(1), and Cayman Islands Constitution s 94(1), are in similar terms. 78 Bermuda Constitution s 33; Cayman Islands Constitution s 66; Falkland Islands Constitution s 36; Gibraltar Constitution s 31; St Helena, Ascension and Tristan da Cunha Constitution s 52. 79 Bermuda Constitution s 15; Cayman Islands Constitution s 26; Falkland Islands Constitution s 19; Gibraltar Constitution s 16; Pitcairn Constitution s 25; St Helena, Ascension and Tristan da Cunha Constitution ss 24, 140 and 206; Turks and Caicos Islands Constitution s 18. 80 See eg Supreme Court Act 1905 (Laws of Bermuda (1989 Revision) Title 8, Item 1). 81 Pitcairn Constitution s 46; St Helena, Ascension and Tristan da Cunha Constitution ss 83, 156 and 221. 82 Described earlier in this chapter. 83 Anguilla Constitution s 41; Montserrat Constitution s 55; Virgin Islands Constitution s 87. 84 Anguilla Constitution s 16; Montserrat Constitution s 20; Virgin Islands Constitution s 31. 85 See eg Supreme Court Act (Laws of Montserrat, Cap 2.01). 77

The Courts of the Overseas Territories 109 local legislation.86 Provision is made in the constitution Order for the British Indian Ocean Territory for the Supreme Court to sit outside the territory.87 The Supreme Court of the Falkland Islands has jurisdiction to deal with proceedings that are within the jurisdiction of the Supreme Courts of the British Antarctic Territory and South Georgia and the South Sandwich Islands. Section 3(1) of the Falkland Islands Courts (Overseas Jurisdiction) Order 198988 (read with section 2) provides: The Supreme Court [of the Falkland Islands] shall have jurisdiction to hear and determine any civil or criminal proceedings in respect of matters arising— (a) under the law of the British Antarctic Territory, being proceedings which, under any law in force in that Territory, are within the jurisdiction of the Supreme Court of the British Antarctic Territory; and (b) under the law of South Georgia and the South Sandwich Islands, being proceedings which, under any law in force in that Territory, are within the jurisdiction of the Supreme Court of South Georgia and the South Sandwich Islands.

The 1989 Order makes detailed provision for the exercise of this jurisdiction and the enforcement of decisions of the Supreme Court. It also provides in section 6(1), so far as material: In exercising the jurisdiction conferred on [it] by section 3 of this Order in any proceedings, the Supreme Court ... shall— (a) in all matters of procedure or evidence, apply the law, including rules of court, of the Falkland Islands; and (b) in all matters of substantive law, including remedies in civil proceedings and sentencing powers in criminal proceedings, apply the law of the relevant Territory [ie the British Antarctic Territory or South Georgia and the South Sandwich Islands, as the case may be].

The workload of the Supreme Court of each of these sparsely populated territories does not require a judge of the Court to be resident in the territory. The same applies to the Supreme Courts of Pitcairn, St Helena and the Falkland Islands. Sittings of these courts are held by visiting judges as and when necessary, or in some cases outside the territory. While there are regular (at least annual) judicial visits to hold the Supreme Court in St Helena and the Falkland Islands, such visits are much less frequent in Pitcairn and the British Indian Ocean Territory. In the Sovereign Base Areas the first instance jurisdiction is shared between the Resident Judge’s Court, which has exclusive original jurisdiction in criminal and some civil cases, and the Senior Judges’ Court, which has exclusive original jurisdiction in certain civil matters. These courts are established by territory legislation.89 86 Administration of Justice Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 5 of 1990); Courts Ordinance 1983 (Laws of the British Indian Ocean Territory, Ordinance No 3 of 1983); Administration of Justice Ordinance 1949 (Laws of the Falkland Islands, Ordinance No 1 of 1949), applied to South Georgia and the South Sandwich Islands by s 69. 87 British Indian Ocean Territory (Constitution) Order 2004 (see Annex, p 305 below) s 13(4) to (9). 88 SI 1989/2399, as amended by SI 2009/1737; s 3(3) also confers appellate jurisdiction on the Falkland Islands Supreme Court. 89 Courts (Constitution and Jurisdiction) Ordinance 2007 (Laws of the Sovereign Base Areas, Ordinance 5 of 2007).

110 Judicial Authority While the Resident Judge resides in the territory, the judges of the Senior Judges’ Court visit as and when required. Any court within Her Majesty’s dominions may remit a case to a superior court in any of the territories for an opinion on questions raised in that case concerning the law as administered in that territory. The territory court must then give its opinion, which may be lodged with the remitting court for application to the proceedings before it.90 The provisions of the Evidence (Proceedings in Other Jurisdictions) Act 197591 have been extended by Order in Council to several territories, thus conferring on their Supreme Courts power to order the obtaining of evidence, on an application made pursuant to a request by or on behalf of a court exercising jurisdiction in another country or territory, in proceedings or, in civil matters, contemplated proceedings before the requesting court.92

D. Magistrates’ Courts Except for the Sovereign Base Areas, where there are no magistrates’ courts, each overseas territory has its own magistrates’ or summary court or, in the case of the larger territories, courts. These courts are established, and their jurisdiction is defined, by territory legislation rather than the constitutions of the territories.93 Most territories have a mixture of legally qualified magistrates and lay justices of the peace. There are no resident legally qualified magistrates in St Helena, Ascension, Tristan da Cunha, Pitcairn, the British Indian Ocean Territory, the British Antarctic Territory or South Georgia and the South Sandwich Islands. But there is such a magistrate in the Falkland Islands, called the Senior Magistrate, who is the only legally qualified judicial officer resident in the Islands. The Senior Magistrate is also a magistrate for Ascension (by virtue of appointment under Ascension law), an arrangement made possible by the direct air link between the Falkland Islands and Ascension. The Magistrate’s Court in the Falkland Islands also has jurisdiction over cases arising in the British Antarctic Territory and South Georgia and the South Sandwich Islands. Section 3(2) of the Falkland Islands Courts (Overseas Jurisdiction) Order 198994 (read with section 2) provides: The Magistrate’s Court [of the Falkland Islands] shall have jurisdiction to hear and determine any civil or criminal proceedings in respect of matters arising— (a) under the law of the British Antarctic Territory, being proceedings which, under any law in force in that Territory, are within the jurisdiction of the Magistrate’s Court of the British Antarctic Territory; and

90

British Law Ascertainment Act 1859 (1859 c 63) ss 1–3. 1975 c 34. 92 See SI 1986/218 (Anguilla), SI 1978/1890 (Cayman Islands), SI 1978/1891 (Falkland Islands), SI 1978/1892 (Gibraltar), SI 1978/1920 (Sovereign Base Areas), SI 1987/1266 (Turks and Caicos Islands). 93 See eg Magistrate’s Court Act and Juveniles Act (Laws of Montserrat, Caps 2.02 and 2.11); Magistrates Act 1948 (Laws of Bermuda (1989 Revision) Title 8, Item 15). 94 SI 1989/2399, as amended by SI 2009/1737. 91

Judicial Service Commissions 111 (b) under the law of South Georgia and the South Sandwich Islands, being proceedings which, under any law in force in that Territory, are within the jurisdiction of the Magistrate’s Court of South Georgia and the South Sandwich Islands.

JUDICIAL SERVICE COMMISSIONS

Some overseas territories have a Judicial Service Commission, or a Judicial and Legal Services Commission, with defined functions in relation to the appointment, discipline and removal of judicial and certain government legal officers. Most of these Commissions were established by recent constitutions, but the Judicial Service Commission in Anguilla dates from 1982. It consists of the Chief Justice (of the Eastern Caribbean Supreme Court) as chairman, another judge of the Court of Appeal or the High Court (of the same Court) nominated by the Chief Justice after consultation with the Governor, and the chairman of the Public Service Commission.95 The Governor must consult the Commission before exercising the power to appoint, remove or exercise disciplinary control over magistrates, registrars or other officers of the High Court required to possess legal qualifications, and such other government legal officers as may be prescribed by the law of Anguilla.96 In the Turks and Caicos Islands, the Judicial Service Commission was established by the Constitution of 2006. It consists of a chairman, appointed by the Governor in his or her discretion, and two other members appointed by the Governor from among persons who hold or have held high judicial office in the Commonwealth or Ireland.97 The members of the Commission have security of tenure in that they may only be removed from office by the Governor, acting in his or her discretion, for incapacity or misbehaviour; and the Commission’s independence is expressly safeguarded by the constitution.98 The Governor must generally act in accordance with the Commission’s advice in appointing judges of the Supreme Court, judges of the Court of Appeal, magistrates and registrars, and in removing or disciplining magistrates and registrars; but the Governor may act otherwise than in accordance with the Commission’s advice if instructed to do so by Her Majesty through a Secretary of State.99 These provisions are considerably more elaborate than those in the Anguilla Constitution, and were novel in subjecting senior judicial appointments in the territory to a process involving an independent Commission. Traditionally such appointments were the sole preserve of the Governor, subject to instructions from London. The 2006 Gibraltar Constitution followed this example, but in a slightly different form. The Judicial Service Commission there consists of seven members: the President of the Court of Appeal as chairman, the Chief Justice, the Stipendiary Magistrate, two members appointed by the Governor on the advice of the Chief Minister, and two members appointed by the Governor in his discretion.100 It therefore allows for 95 96 97 98 99 100

Anguilla Constitution s 67, read with s 73(1). Ibid s 68. Turks and Caicos Islands Constitution s 81, read with s 99(1). Ibid s 81(4)(c) and (6). Ibid s 82. Gibraltar Constitution s 57(1).

112 Judicial Authority a majority of members with no judicial experience, or indeed of non-legally qualified members. In general, the Governor must act in accordance with the Commission’s advice in appointing Supreme Court and Court of Appeal judges, and appointing, removing and disciplining Stipendiary Magistrates, Justices of the Peace, Registrars, and such other officers as may be prescribed by law. The Governor, with the prior approval of a Secretary of State, may disregard the Commission’s advice in any case where he judges that compliance with that advice would prejudice Her Majesty’s service.101 The Commission’s advice must also be sought (and complied with) by the Governor on the question of referring to a tribunal the possible removal of a Supreme Court or Court of Appeal judge, and on the suspension of such a judge in those circumstances.102 The Commission’s independence is expressly secured.103 The Virgin Islands Constitution of 2007 established a Judicial and Legal Services Commission with five members: the Chief Justice (of the Eastern Caribbean Supreme Court) as chairman, one judge of the Court of Appeal or the High Court (of that Court), the chairman of the Public Service Commission, and two other members appointed by the Governor, one nominated by the Premier and one by the Leader of the Opposition, of whom one must be a legal practitioner.104 The nominated members must not be public officers or members of, or candidates for election to, the House of Assembly, and they have security of tenure.105 The Commission has express constitutional independence.106 In general the Governor must act on the Commission’s advice in making appointments to, or removing or disciplining persons holding or acting in, the following offices: Attorney General, Director of Public Prosecutions, Magistrate, any office in the public service of the Attorney General’s Chambers or of any Registrar or other officer of the High Court required to possess legal qualifications, and such other offices in the public service requiring legal qualifications as may be prescribed by law or Government policy. The Governor may act otherwise than in accordance with the Commission’s advice if he or she determines that compliance with that advice would prejudice Her Majesty’s service.107 The senior judiciary is not within the remit of the Commission because the Court of Appeal and High Court judges are supplied from the Eastern Caribbean Supreme Court. In the Cayman Islands, the 2009 Constitution established a Judicial and Legal Services Commission consisting of a chairman and one other member, neither of whom shall be a lawyer, appointed by the Governor after consultation with the Premier and the Leader of the Opposition; the President of the Court of Appeal, ex officio; a person, appointed by the Governor in his or her discretion, who is or was a senior judge in the Cayman Islands and has recent personal knowledge of the courts of the Islands; two members appointed by the Governor in his or her discretion who hold or have held high judicial office in the Commonwealth or in Ireland but do not currently hold such office in the Cayman Islands; and two locally qualified lawyers, 101 102 103 104 105 106 107

Ibid s 57(2) and (3). Ibid s 64(4), (6) and (8). Ibid s 58(3). Virgin Islands Constitution s 94(1). Ibid s 94(3) and (4)(d). Ibid s 94(7)(a). Ibid s 95.

Judicial Service Commissions 113 one with experience in Government service and one with experience in private practice, appointed by the Governor after consultation with local legal professional organisations and the Attorney General.108 Members of, or candidates for election to, the Legislative Assembly are disqualified from appointment, and all members have security of tenure.109 The Commission and its members have express constitutional independence.110 In general the Governor must act on the Commission’s advice in appointing or disciplining Grand Court and Court of Appeal judges, the Attorney General, the Director of Public Prosecutions, Magistrates, and such public office holders requiring legal qualifications as may be prescribed by local legislation, and in removing from office persons holding or acting in any of those offices other than that of Grand Court or Court of Appeal judge. The Governor may act otherwise than in accordance with the Commission’s advice if he or she determines that compliance with that advice would prejudice Her Majesty’s service.111 The Commission has other important functions. It must investigate and report to the Governor on the question whether the Governor should request Her Majesty to refer to the Judicial Committee the removal of a Grand Court or Court of Appeal judge.112 It must also draw up a code of conduct for the judiciary and a procedure for dealing with complaints.113 It will be noted that there is local political input into the composition of the Commissions in Gibraltar, the Virgin Islands and the Cayman Islands, but in no case is that input decisive. The powers of these Commissions are almost executive, but in each case the Governor has an override power. The test is prejudice to Her Majesty’s service. This has not been defined in the constitutions or by judicial interpretation, but the meaning is reasonably clear: prejudice to Her Majesty’s judiciary or to the administration of justice on Her Majesty’s behalf. The 2009 Constitution of St Helena, Ascension and Tristan da Cunha114 established separate Judicial Service Commissions for St Helena and Ascension.115 Each consists of the Chief Justice as chairman, the Attorney General, the Public Solicitor, and an independent member appointed by the Governor who has security of tenure; and each has express constitutional independence.116 Each Commission advises the Governor on the appointment and removal of magistrates, coroners and other judges of courts subordinate to the Supreme Court, and the Governor must accept its advice.117 Finally, though not belonging to any overseas territory, there is a Judicial and Legal Services Commission with power to appoint judges (other than the Chief Justice) of the Eastern Caribbean Supreme Court.118 It consists of the Chief Justice, as chairman; one other judge of the Court designated by the Chief Justice; a person appointed by the Chief Justice, with the concurrence of not less than four Premiers of the independent States within the Court’s jurisdiction, who has held high judicial 108 109 110 111 112 113 114 115 116 117 118

Cayman Islands Constitution s 105(1). Ibid s 105(2) and (3)(d). Ibid s 105(6). Ibid s 106(1) to (4). Ibid ss 96(4) and 101(4). Ibid s 106(10)(a). SI 2009/1751. St Helena, Ascension and Tristan da Cunha Constitution ss 94 and 162. Ibid ss 94(1), (2) and (7) and 162(1), (2) and (7). Ibid ss 90(4), 93(6), 94(6), 161(1), 161(7) and 162(6). Supreme Court Order 1967 (SI 1967/223) s 5(1).

114 Judicial Authority office in the Commonwealth and who is not practising as an advocate before the Court; and two members who are chairmen of the Public Service Commissions of the independent States appointed in rotation.119 JUDICIAL APPOINTMENTS

As noted above, Anguilla, Montserrat and the Virgin Islands are within the jurisdiction of the Eastern Caribbean Supreme Court. The Chief Justice of this Court is appointed by Her Majesty (in practice, acting on the advice of the Premiers of all the independent States within the Court’s jurisdiction), and the other judges are appointed by the Judicial and Legal Services Commission for the Court.120 It is evident that the United Kingdom Government has confidence in the quality of this Court, because there is no serious question about the continuation of these three British overseas territories within its jurisdiction. The magistrates in Anguilla, Montserrat and the Virgin Islands are appointed by the Governor. In Anguilla the Governor must consult the Judicial Service Commission before making such appointments.121 In Montserrat, the matter is dealt with in local legislation rather than the Constitution.122 In the Virgin Islands, the Governor generally appoints magistrates in accordance with the advice of the Judicial and Legal Services Commission, subject (as described above) to a power to act against the Commission’s advice if he or she determines that compliance with it would prejudice Her Majesty’s service.123 The role of Judicial Service Commissions in judicial appointments in the Cayman Islands, Gibraltar, the Turks and Caicos Islands, St Helena and Ascension has been described above. In each other overseas territory, all judicial appointments are made by the Governor (or equivalent) of the territory, without reference to a commission or other body. Sometimes the power of appointment is expressed to be in the Governor’s discretion,124 and in some cases the Governor must exercise the power in accordance with instructions from Her Majesty.125 In Bermuda, magistrates and other junior judicial officers are appointed by the Governor after consulting the Chief Justice.126 Exceptionally there is some political input. In Bermuda, the Chief Justice is appointed by the Governor, acting after consultation with the Premier who shall first have consulted the Opposition Leader.127 But in no case is political input decisive. 119

Ibid s 18. Ibid s 5(1). 121 Anguilla Constitution s 68. 122 Magistrate’s Court Act (Laws of Montserrat, Cap 2.02). 123 Virgin Islands Constitution s 95. 124 Eg, Court of Appeal judges in Bermuda: Bermuda Constitution, s77(3); Senior Magistrate in the Falklands: Falkland Islands Constitution s 88(4). 125 Eg, Supreme Court and Court of Appeal judges in the Falkland Islands, Pitcairn and St Helena: Falkland Islands Constitution s 88(1); Pitcairn Constitution s 52(1); St Helena, Ascension and Tristan da Cunha Constitution s 90(1). 126 Bermuda Constitution s 89. 127 Bermuda Constitution s 73(3). But Puisne Judges are appointed by the Governor after consultation with the Chief Justice: Bermuda Constitution s 73(4). 120

Judicial Security of Tenure 115 JUDICIAL SECURITY OF TENURE

Security of tenure is a key aspect of judicial independence. In each substantially populated territory the constitution includes in its bill of rights guarantees for a fair trial before independent and impartial courts, reflecting Article 6 of the European Convention on Human Rights.128 It is therefore appropriate that, in these territories, security of tenure for the senior judiciary is assured at the constitutional level or otherwise by Order in Council. In some territories security of tenure for magistrates is also assured constitutionally. Judicial security of tenure in this context consists of four elements: an assured term of office, protection from arbitrary removal from office, protection from abolition of office, and protection of remuneration. But these elements are not provided for in a uniform manner.

A. An Assured Term of Office In Bermuda and the Turks and Caicos Islands, a Supreme Court judge is required to vacate office when reaching the age of 65, but the Governor may permit a judge to continue in office until he or she attains such later age, not exceeding 70, as the Governor and that judge may agree.129 The position is identical in the Cayman Islands as regards judges of the Grand Court, except that the Governor must act on the recommendation of the Judicial and Legal Services Commission in agreeing with a judge a continuation beyond the age of 65.130 In Gibraltar the position is slightly more complicated. A judge of the Supreme Court must vacate office at the age of 67, but the Governor may permit a judge to continue for a further period not exceeding three years as may be agreed with that judge, and in exceptional circumstances a further extension may be agreed between the Governor and the judge up to the age of 72.131 In exercising these functions the Governor must act in accordance with the advice of the Judicial Service Commission.132 In each of these four territories there is also provision for a judge to be appointed for a period specified in the instrument of appointment, and if that is done in any particular case the specified term takes priority over the age limit. For example, section 104(5) of the Bermuda Constitution provides (so far as material): Notwithstanding any other provision of this Constitution, a person may be appointed to the office of judge of the Supreme Court ... for such term as may be specified in the instrument

128 Anguilla Constitution s 9; Bermuda Constitution s 6; Cayman Islands Constitution s 7; Falkland Islands Constitution s 6; Gibraltar Constitution s 8; Montserrat Constitution s 7; Pitcairn Constitution s 8; St Helena, Ascension and Tristan da Cunha Constitution ss 10, 127 and 192; Turks and Caicos Islands Constitution s 6; Virgin Islands Constitution s 16. 129 Bermuda Constitution s 74(1); Turks and Caicos Islands Constitution s 74(1). 130 Cayman Islands Constitution s 96(1). 131 Gibraltar Constitution s 64(1). 132 Ibid s 64(8).

116 Judicial Authority of appointment, and the office of a person so appointed shall become vacant on the day on which the specified term expires.133

This option provides some flexibility, which in practice has proved useful in appointing expatriate judges who are content to serve in a territory for a limited period. There are also powers to appoint acting judges for a limited period.134 In St Helena, judges of the Supreme Court and the Court of Appeal are appointed until the age of 70 or such later age as may be agreed at the time of appointment between each judge and the Governor, acting with the approval of a Secretary of State.135 Acting judges may be appointed for limited periods.136 Magistrates and judges of subordinate courts are appointed for life or until the appointee attains such an age as may be prescribed by Ordinance.137 The position is similar in Pitcairn, but the retirement age for Supreme Court and Court of Appeal judges is 75, subject to extension for a period of up to two years by agreement between the Governor and the judge concerned.138 In the Falkland Islands, where the Chief Justice is non-resident, there is no age limit and the term of office of the Chief Justice expires at the end of the period specified in the instrument of appointment, and the same applies to any person appointed to act as a judge of the Falkland Islands Supreme Court.139 In all of these territories (except St Helena and Pitcairn) there is no age limit for Court of Appeal judges, or for persons appointed to act as Court of Appeal judges. All must vacate office on the expiration of the period specified in their instruments of appointment.140 In Anguilla, Montserrat and the Virgin Islands, which are within the jurisdiction of the Eastern Caribbean Supreme Court, the position is governed by the Supreme Court Order 1967.141 The judges of the Court of Appeal, which include the Chief Justice,142 hold office until they attain the age of 65, and the Puisne Judges of the High Court hold office until the age of 62; but there is provision to allow extensions beyond those ages for periods not exceeding in the aggregate three years.143 A person appointed to act in the office of a judge continues so to act for the period for which he or she was appointed or until a person has been appointed to and assumed, or resumed, the functions of that office.144

133 There are provisions to similar effect in the Turks and Caicos Islands Constitution s 73(5); Cayman Islands Constitution s 95(4); Gibraltar Constitution s 64(7). 134 Bermuda Constitution s 75(4); Turks and Caicos Islands Constitution s 75(4); Cayman Islands Constitution s 97(4); Gibraltar Constitution s 63(5). 135 St Helena, Ascension and Tristan da Cunha Constitution s 91(1) and (2). 136 Ibid s 91(3) and (4). 137 Ibid ss 91(7) and 161(3). 138 Pitcairn Constitution ss 54(1) and (2) and 55(1). 139 Falkland Islands Constitution ss 90(1) and 89(4). 140 Bermuda Constitution ss 78(1) and 79(3); Turks and Caicos Islands Constitution ss 78(1) and 79(3); Cayman Islands Constitution ss 101(1) and 102(3); Gibraltar Constitution ss 64(1) and 63(5); Falkland Islands Constitution ss 90(1) and 89(4). 141 SI 1967/223. 142 Supreme Court Order 1967 s 4(3). 143 Ibid s 8(1). 144 Ibid s 7(3).

Judicial Security of Tenure 117 B. Protection from Arbitrary Removal from Office There are standard constitutional provisions to protect the senior judiciary from arbitrary removal from office. A judge may only be removed from office for incapacity or misbehaviour, and then only after an independent tribunal has examined the matter and the Judicial Committee of the Privy Council has recommended removal. As a typical example, the Gibraltar Constitution provides in section 64(2), (3) and (4): (2) The Chief Justice, a Puisne Judge, the President of the Court of Appeal or a Justice of Appeal may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and shall not be removed except in accordance with subsection (3). (3) The Chief Justice, a Puisne Judge, the President of the Court of Appeal or a Justice of Appeal shall be removed from office by the Governor if the question of the removal of that judge from office has, at the request of the Governor made in pursuance of subsection (4), been referred by Her Majesty to the Judicial Committee of Her Majesty’s Privy Council under section 4 of the Judicial Committee Act 1833 or any other enactment enabling Her Majesty in that behalf, and the Judicial Committee has advised Her Majesty that the judge ought to be removed from office for inability as aforesaid or misbehaviour. (4) If the Governor considers that the question of removing the Chief Justice, a Puisne Judge, the President of the Court of Appeal or a Justice of Appeal from office for inability as aforesaid or for misbehaviour ought to be investigated, then— (a) the Governor shall appoint a tribunal, which shall consist of a chairman and not less than two other members selected by the Governor from among persons who hold or have held high judicial office; (b) the tribunal shall inquire into the matter and report on the facts thereof to the Governor and advise the Governor whether he should request that the question of the removal of that judge should be referred by Her Majesty to the Judicial Committee; and (c) if the tribunal so advises, the Governor shall request that the question should be referred accordingly.

Where the Governor has a power, as opposed to a duty, under these provisions he or she must exercise it in accordance with the advice of the Judicial Service Commission.145 This applies to the decision that removal should be investigated and the selection of the tribunal. By contrast, the Governor is duty-bound to request that the question of removal should be referred to the Judicial Committee if the tribunal so advises, and to remove the judge from office if the Judicial Committee advises Her Majesty that the judge ought to be removed. There are also standard provisions for the suspension of a judge under investigation. The Gibraltar Constitution provides at section 64(6): If the question of removing the Chief Justice, a Puisne Judge, the President of the Court of Appeal or a Justice of Appeal from his office has been referred to a tribunal under subsection (4), the Governor may suspend him from performing the functions of his office, and

145

Gibraltar Constitution s 64(8).

118 Judicial Authority any such suspension may at any time be revoked by the Governor and shall in any case cease to have effect— (a) if the tribunal advises that he should not request that the question of the removal of the judge from office should be referred by Her Majesty to the Judicial Committee; or (b) if the Judicial Committee advises Her Majesty that the judge ought not to be removed from office.

Again, where the Governor has a discretion under this provision he or she must exercise it in accordance with the advice of the Judicial Service Commission.146 There are almost identical provisions in the constitutions of Bermuda, the Falkland Islands, Pitcairn, the Turks and Caicos Islands, and St Helena, Ascension and Tristan da Cunha, although in each of those territories the Governor exercises the relevant discretionary powers without reference to anyone else.147 In the Falkland Islands, the Senior Magistrate has the same security of tenure as the Chief Justice and the Court of Appeal judges.148 This is appropriate, given that the Senior Magistrate is the only judge resident in the islands and has extensive criminal and civil jurisdiction. In the Cayman Islands there are similar constitutional provisions, except that the role of the independent tribunal in the process is taken instead by the Judicial and Legal Services Commission.149 As for Anguilla, Montserrat and the Virgin Islands, the judges of the Eastern Caribbean Supreme Court have security of tenure that is very similar to that of the territory judges described above. The grounds for removal are the same, as is the process in requiring investigation by an independent tribunal and recommended removal by the Judicial Committee of the Privy Council, and there are equivalent provisions for suspension pending investigation. But since the Eastern Caribbean Supreme Court also serves six independent States,150 the role the Governor plays in the process in the seven overseas territories described above is given to the Lord High Chancellor of Great Britain in the case of the Chief Justice, and to the Chief Justice in the case of the other judges. The process of investigation is initiated in the case of the Chief Justice by the Premier of any one of the six States making representations to the Lord Chancellor, and in the case of any other judge of the Court by the Judicial and Legal Services Commission making representations to the Chief Justice.151 In territories where the superior courts are established by local legislation, the security of tenure of their judges is also regulated by such legislation.152

146

Gibraltar Constitution s 64(8). Bermuda Constitution ss 74(2)–(7) and 78(2)–(7); Falkland Islands Constitution s 90(2)–(8); Pitcairn Constitution s 54(7)–(11); Turks and Caicos Islands Constitution ss 74(2)–(7) and 78(2)–(7); St Helena, Ascension and Tristan da Cunha Constitution s 93(1)–(5). 148 Falkland Islands Constitution s 90(3)–(8). 149 Cayman Islands Constitution ss 96(2)–(7) and 101(2)–(7). 150 Antigua and Barbuda, Dominica, Grenada, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines. 151 Supreme Court Order 1967 s 8(3)–(9) and sch 2. 152 See eg Courts (Constitution and Jurisdiction) Ordinance 2007 (Laws of the Sovereign Base Areas, Ordinance 5 of 2007). 147

Judicial Security of Tenure 119 In practice the removal of a senior judge in any of the overseas territories has proved an extremely rare event. While there have been occasional resignations, the standard provisions for removal described above had not been activated for decades until separate tribunals were established in 2008 to investigate the question of removal of the Chief Justice of Gibraltar and a judge of the Grand Court of the Cayman Islands. The Judicial Committee considered the question of the removal from office of the Chief Justice of Gibraltar in 2009, a majority of 4–3 recommending that he should be removed for inability to perform the functions of his office.153 As regards the tests of ‘misbehaviour’ and ‘inability’, the Board held that there is a considerable degree of overlap between them. As to ‘misbehaviour’, the majority formulated the following four questions, derived from the analysis by Lord Scott of Foscote in Lawrence v Attorney General of Grenada154 of a passage, which he approved, in the judgment of Gray J in Clark v Vanstone:155 (1) Has the Chief Justice’s conduct affected directly his ability to carry out the duties and discharge the functions of his office? (2) Has that conduct adversely affected the perception of others as to his ability to carry out those duties and perform those functions? (3) Would it be perceived to be inimical to the due administration of justice in Gibraltar if the Chief Justice remains in office? (4) Has the office of Chief Justice been brought into disrepute by the Chief Justice’s conduct?

The passage in the judgment of Gray J in Clark v Vanstone is worth quoting in full:156 It is clear from these expressions of opinion that, in order to constitute misbehaviour by the holder of an office, the conduct concerned need not be criminal conduct and need not occur in the course of the performance of the duties of the office. For present purposes, the important proposition to be drawn from these expressions of opinion is that, in a case in which the term ‘misbehaviour’ is used with reference to the holder of an office, the content of its meaning is to be determined by reference to the effect of the conduct on the capacity of the person to continue to hold the office. In turn, the capacity to continue to hold an office has two aspects. The conduct of the person concerned might be such that it affects directly the person’s ability to carry out the office. Alternatively, or in addition, it may affect the perceptions of others in relation to the office, so that any purported performance of the duties of the office will be perceived widely as corrupt, improper or inimical to the interests of the persons, or the organisation, for whose benefit the functions of the office are performed. In either case, the danger is that the office itself will be brought into disrepute as a result of the conduct of its holder. If that is likely to be the case, then the conduct is properly characterised as misbehaviour for the purposes of the relevant legislation.

153 Hearing on the Report of the Chief Justice of Gibraltar, referral under s 4 of the Judicial Committee Act 1833 [2009] UKPC 43. For the Cayman Islands case, see Hearing on the Report of the Tribunal to the Governor of the Cayman Islands [2010] UKPC 24. 154 Lawrence v Attorney General of Grenada [2007] UKPC 18, [2007] 1 WLR 1474 (PC). 155 Clark v Vanstone [2004] FCA 1105, (2004) 81 ALD 21. 156 Ibid para 85. This passage is quoted in the opinion of the majority of the Judicial Committee, Hearing on the Report of the Chief Justice of Gibraltar, n 153 above, para 202.

120 Judicial Authority For the minority, Lord Hope also approved this statement, but referred also to the high standard required before a judge could be removed from office.157 He quoted the following passage from the judgment of Gonthier J in the Supreme Court of Canada in Therrien v Minister of Justice:158 Thus, before making a recommendation that a judge be removed, the question to be asked is whether the conduct for which he or she is blamed is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its judicial system, would be undermined, rendering the judge incapable of performing the duties of his office.

As to ‘inability’, the Judicial Committee as a whole applied the judgment of the House of Lords in Stewart v Secretary of State for Scotland.159 In that case the House held that a consistent pattern of bizarre behaviour, both on and off the Bench, did not constitute ‘misbehaviour’ but was attributable to a character flaw which amounted to ‘inability’. Inability was not to be restricted to unfitness through illness but extended to unfitness through a defect in character. The majority of the Judicial Committee considered that defect of character and the effects of conduct reflecting that defect, including incidents of misbehaviour, were cumulatively capable of amounting to ‘inability to discharge the functions of his office’ within section 64(2) of the Gibraltar Constitution.160 In the opinion of Lord Hope, the phrase ‘wholly unfitted to perform judicial functions’ captures the essence of what ‘inability’ means in this context, explaining that the high standard this sets is justified by the need to preserve the rule of law and judicial independence.161 The Judicial Committee also held that issues of fact that bear on the question whether a judge is fit to perform his or her office should be determined according to the civil standard of proof, that is to say on a balance of probabilities.162 This case is of considerable importance, and is relevant beyond the field of judicial independence. The security of tenure of some other offices in the overseas territories, the independence of which is vital to their proper exercise, is constitutionally underpinned by the requirement that the holder may only be removed from office for inability to perform the functions of the office or for misbehaviour. It applies, for example, in several territories to the quasi-judicial office of Complaints Commissioner,163 as well as to the offices of Attorney General,164 Director of

157

Hearing on the Report of the Chief Justice of Gibraltar, n 153 above, para 263. Therrien v Minister of Justice [2001] 2 SCR 3 para 147. 159 Stewart v Secretary of State for Scotland 1998 SC (HL) 81. 160 Hearing on the Report of the Chief Justice of Gibraltar, n 153 above, para 206. 161 Ibid para 266. 162 Ibid para 16. 163 See eg Bermuda Constitution s 93A(4)(d); Cayman Islands Constitution s 120(4)(d); Turks and Caicos Islands Constitution s 92(4)(d); Virgin Islands Constitution s 110(4)(d). 164 See eg Cayman Islands Constitution s 106(7); St Helena, Ascension and Tristan da Cunha Constitution s 46(11); Turks and Caicos Islands Constitution s 85(4); Virgin Islands Constitution s 95(9). 158

Judicial Security of Tenure 121 Public Prosecutions,165 Auditor General166 and member of various Commissions.167 Indeed, the case of Lawrence v Attorney General of Grenada,168 which the Judicial Committee followed in the Gibraltar case described above, was an appeal against the removal from office of the Director of Audit of Grenada under a provision with identical wording to that of section 64(2) of the Gibraltar Constitution. As regards magistrates, some of the recent constitutions provide for their security of tenure. Mention has already been made of the Resident Magistrate in the Falkland Islands. In the Turks and Caicos Islands, Gibraltar, the Virgin Islands and the Cayman Islands, the Governor is normally required to act on the advice of the local Judicial Service Commission (or Judicial and Legal Services Commission) in disciplining or dismissing magistrates.169 In St Helena and Ascension the Governor may only dismiss a magistrate on the recommendation of the local Judicial Service Commission.170 In Anguilla the Governor must consult the local Judicial Service Commission before disciplining or removing magistrates from office.171 In the Virgin Islands, the Cayman Islands, Pitcairn, St Helena and Ascension a magistrate may only be removed from office for inability to perform the functions of the office or for misbehaviour.172 In Bermuda, the Governor must consult the Chief Justice before disciplining or removing from office any magistrate or member of any other civil court subordinate to the Supreme Court.173

C. Protection from Abolition of Office Where the constitution of a territory establishes a particular judicial office, that office cannot lawfully be abolished without alteration or revocation of the constitution and it is therefore protected. So, for example, the constitutions of Bermuda, the Cayman Islands, the Falkland Islands, Gibraltar, Pitcairn, St Helena, Ascension and Tristan da Cunha, and the Turks and Caicos Islands establish the offices of Chief Justice and President of the Court of Appeal,174 and these offices are protected in this way. For Anguilla, Montserrat and the Virgin Islands the office of Chief 165 See eg Bermuda Constitution s 86(3) read with s 71A(b); Cayman Islands Constitution s 106(7); Virgin Islands Constitution s 95(9). 166 See eg Bermuda Constitution s 88(3); Cayman Islands Constitution s 114(2); Turks and Caicos Islands Constitution s 85(4). 167 See eg Bermuda Constitution s 81(6) (Public Service Commission); Cayman Islands Constitution s 105(3)(d) (Judicial and Legal Services Commission) and s 117(6)(d) (Commission for Standards in Public Life); Virgin Islands Constitution ss 91(4)(d), 93(2), 94(4)(d) and 96(2) (Public Service Commission, Teaching Service Commission, Judicial and Legal Services Commission, Police Service Commission). 168 Lawrence v Attorney General of Grenada, n 154 above. 169 Turks and Caicos Islands Constitution s 82; Gibraltar Constitution s 57(2); Virgin Islands Constitution s 95; Cayman Islands Constitution s 106. 170 St Helena, Ascension and Tristan da Cunha Constitution ss 93(1) and (6) and 161(6) and (7). 171 Anguilla Constitution s 68. 172 Virgin Islands Constitution s 95(9); Cayman Islands Constitution s 106(7); Pitcairn Constitution s 55(4); St Helena, Ascension and Tristan da Cunha Constitution ss 93(1) and 161(6). 173 Bermuda Constitution s 89. 174 Bermuda Constitution ss 73(2) and 77(2); Cayman Islands Constitution ss 95(1) and 100(1); Falkland Islands Constitution ss 86(2) and 87(2); Gibraltar Constitution ss 60(2) and 61(2); Pitcairn Constitution ss 47(1) and 49(2); St Helena, Ascension and Tristan da Cunha Constitution ss 84(1) and 86(2); Turks and Caicos Islands Constitution ss 73(2) and 77(3).

122 Judicial Authority Justice of the Eastern Caribbean Supreme Court is protected by virtue of its being established by the Order in Council constituting the Court.175 Where a constitution provides for a variable number of judicial offices, it is customary to make express provision that the office shall not be abolished while it is being held without the consent of the holder. So, for example, section 60(2) and (3) of the Gibraltar Constitution provides: (2) The Supreme Court shall, subject to section 62, consist of the Chief Justice and such number of Puisne Judges as may be prescribed by law. (3) The office of a Puisne Judge shall not without his consent be abolished during his continuance in office.

Equivalent provision is made regarding the Justices of Appeal, of which there must be at least two.176 There are similar provisions in other constitutions177 and in the Order in Council establishing the Eastern Caribbean Supreme Court.178

D. Protection of Remuneration In some territories the remuneration of the senior judiciary is protected by the constitution or otherwise by Order in Council. For example, section 95(5) of the Cayman Islands Constitution provides: The emoluments and allowances of a judge of the Grand Court shall be prescribed by law and shall be charged on the revenues of the Cayman Islands, and the emoluments and allowances of a judge shall not, without his or her consent, be reduced during his or her continuance in office.179

In Pitcairn, St Helena and Ascension the remuneration of both senior and junior judiciary is constitutionally protected.180 In Bermuda and Gibraltar the remuneration (and other terms of service) of the Supreme Court and Court of Appeal judges are protected by more elaborate provisions.181 As regards Anguilla, Montserrat and the Virgin Islands the salaries, allowances and terms of service of the judges of the Eastern Caribbean Supreme Court are similarly protected by Order in Council.182 Provision is also made in the constitutions of a few territories to protect such pension expectations as a senior judge or magistrate might have.183

175

Supreme Court Order 1967 s 4(3) and (4). Gibraltar Constitution s 61(2)(a) and (3). 177 Bermuda Constitution ss 73(2) and 77(2); Cayman Islands Constitution ss 95(1) and 100(1) and (2); Falkland Islands Constitution s 87(2)(a) and (3); Pitcairn Constitution s 54(6); St Helena, Ascension and Tristan da Cunha Constitution s 84(1); Turks and Caicos Islands Constitution ss 73(2) and 77(3). 178 Supreme Court Order 1967 s 4(5). 179 There is no equivalent provision in respect of Court of Appeal judges. 180 Pitcairn Constitution s 53; St Helena, Ascension and Tristan da Cunha Constitution ss 92 and 161(9) and (10). 181 Bermuda Constitution s 100; Gibraltar Constitution s 72. 182 Supreme Court Order s 11. 183 Anguilla Constitution ss 69–71; Bermuda Constitution ss 91–93; Cayman Islands Constitution s 110; Gibraltar Constitution s 72; Turks and Caicos Islands Constitution ss 89–91; Virgin Islands Constitution ss 99–101. 176

Judicial Independence Generally 123 Where there is no express constitutional protection for the remuneration, pensions or other terms of service of the judiciary, reliance must be placed, should it prove necessary, on the various controls on territory legislation184 and on the reserved powers of Governors and other controls on executive action.185 In practice, however, there has been little need for such controls, because the need for an independent and impartial judiciary is generally well recognised and understood. JUDICIAL INDEPENDENCE GENERALLY

Three recent constitutions include novel provisions evidently designed to strengthen the independence of the judiciary. Section 81 of the Constitution of St Helena, Ascension and Tristan da Cunha provides: The judges and judicial officers appointed to preside or sit in any court of St Helena shall exercise their judicial functions independently from the legislative and executive branches of government.186

In addition, among the ‘partnership values’ set out in this Constitution, to which all organs of government in the territory are obliged to give effect, is ‘the impartial administration of justice’.187 In St Helena, the Governor may act otherwise than in accordance with the advice of the Executive Council, and must reserve a Bill for the signification of Her Majesty’s pleasure, in order to ensure consistency with any of the partnership values.188 Similarly, the Cayman Islands Constitution requires the Governor to reserve any Bill that appears to him or her to affect the integrity or independence of the administration of justice.189 Moreover, section 107 of that Constitution provides: The Legislature and the Cabinet shall uphold the rule of law and judicial independence, and shall ensure that adequate funds are provided to support the judicial administration in the Cayman Islands.

184

See ch 4 above. See ch 5 above. 186 Equivalent provision is made for Ascension and Tristan da Cunha (ss 154 and 219), and for Pitcairn: see Pitcairn Constitution s 44. 187 St Helena, Ascension and Tristan da Cunha Constitution ss 2 and 4(1), 121 and 186. The Pitcairn Constitution s 1, makes equivalent provision for Pitcairn. 188 St Helena, Ascension and Tristan da Cunha Constitution ss 43(5) and 74(3)(a). 189 Cayman Islands Constitution s 78(2)(f). See also, as regards ‘the efficiency of the judiciary’, Montserrat Constitution s 74(2)(b). 185

7 The Law Officers

T

HE LAW OFFICERS in the overseas territories are the principal legal advisers to the governments of the territories. In this respect the position is the same as in the United Kingdom. There is, however, no single method of appointment of law officers in the territories, and nowadays their titles and number vary according to the needs and preferences of the territory governments. There are ten Attorneys General resident in the overseas territories,1 nine of whom are public officers (and thus civil servants in the public service of their territories). This is a departure from the Westminster model where the Attorney General is politically appointed, in recent years often sitting as a member of the House of Lords. The exception among the overseas territories is Bermuda where for many years the Attorney General has been a political appointment, and is a member of the Senate or the House of Assembly. In most of the territories the Attorney General is the sole law officer,2 and some of the less populated territories have no resident Attorney General or no formal law officer, relying instead on a non-resident Attorney General or Legal Adviser for the government’s legal advice.3 The Attorney General of Ascension and Tristan da Cunha is the person for the time being holding or acting in the office of Attorney General of St Helena,4 and the Attorney General of the Falkland Islands is also appointed as the Attorney General of South Georgia and the South Sandwich Islands. The British Antarctic Territory and the British Indian Ocean Territory have a British-qualified Principal Legal Adviser who is resident in the United Kingdom, and these offices are established by, or referred to in, ordinary legislation.5 The Pitcairn Attorney General is a New Zealand lawyer resident in New Zealand, but there is no nationality requirement.6 The constitutions of Bermuda, the Cayman Islands, Montserrat and the Virgin Islands also provide for a Director of Public

1 There are Attorneys General in Anguilla, Bermuda, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, St Helena, the Sovereign Base Areas, the Turks and Caicos Islands and the Virgin Islands. In the Sovereign Base Areas the title of the office is ‘Attorney General and Legal Adviser’: see Officers of the Administration (Renaming of Posts) Ordinance 1992 (Laws of the Sovereign Base Areas, Ordinance 11 of 1992). 2 In Anguilla, the Falkland Islands, Gibraltar, Montserrat, Pitcairn, St Helena, the Turks and Caicos Islands, South Georgia and the South Sandwich Islands and the Sovereign Base Areas. 3 British Antarctic Territory, British Indian Ocean Territory, Pitcairn and South Georgia and the South Sandwich Islands. 4 St Helena, Ascension and Tristan da Cunha Constitution (SI 2009/1751) ss 150 and 215. 5 See eg Principal Legal Adviser Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 8 of 1990); Criminal Procedure Code 1986 (Laws of the British Indian Ocean Territory, Ordinance No 1 of 1986) s 73. 6 Pitcairn Constitution (SI 2010/244) s 35.

The Role of the Attorney General 125 Prosecutions. Bermuda and the Cayman Islands have in addition a Solicitor General who deals mainly with the civil work, though in the Cayman Islands the Solicitor General had considerable delegated responsibility for criminal litigation before the office of Director of Public Prosecutions was established by the new Constitution. In all cases where the additional posts of Director of Public Prosecutions and Solicitor General have been established, the holder is a public officer. Again, this differs from the Westminster model in respect of the Solicitor General who, in the United Kingdom, like the Attorney General, is politically appointed and a Member of Parliament. THE ROLE OF THE ATTORNEY GENERAL

The Attorney General is traditionally regarded as the principal legal adviser to the Government of the territory even where there is also a Director of Public Prosecutions. This status is confirmed in some territory constitutions.7 The Cayman Islands Constitution also confirms the Attorney General as the principal legal adviser to the Legislative Assembly.8 The Attorney General has a dual role, in that as well as advising the territory Government, of which the Governor is part, he or she must also separately advise the Governor as head of the territory Government and Her Majesty’s representative in the territory. This can sometimes be a slightly uncomfortable position for an Attorney General, especially when the Governor and the elected members of the Government are not in agreement on a particular matter, or where the Governor wishes to take a different course of action from the one that they advise. The Attorney General may have to advise the Governor whether he or she needs to consult the Cabinet or Executive Council on a particular matter, or on whether legally the Governor can act contrary to its advice, which may put the Attorney General in a position at odds with that of the political members. Just as the Governor can seek the advice of the Attorney General, so too can the elected members seek his or her advice. The advice of the Attorney General can also be sought by the departments or ministries of the territory Government. Therefore, the Attorney General might be regarded as wearing a number of different legal hats. And although there may sometimes be a perception that the Attorney General cannot effectively and impartially advise these different groups and individuals, that is not the case. It is incumbent on the Attorney General to give objective and professional legal advice to anyone in the Government who seeks it, and the different aspects of the role should not cause a problem for an Attorney General most of the time. If, however, an Attorney General feels, in a particular situation, that it is not possible to advise without being conflicted in some way, it is open to the Attorney General to use members of his or her chambers, or even instruct outside counsel, to advise one of the parties involved.

7 See eg Cayman Islands Constitution (SI 2009/1379) s 56(2), Virgin Islands Constitution (SI 2007/1678) s 58(2), St Helena, Ascension and Tristan da Cunha Constitution ss 46(1), 150(2) and 215(2). 8 Cayman Islands Constitution s 56(2).

126 The Law Officers Where there is no Director of Public Prosecutions, the Attorney General also performs the prosecutorial functions of that office, so the role of the Attorney General is broader in some territories than in others. Where a special prosecutor is appointed by the Governor in a territory in exceptional circumstances, constitutionally it is still the Attorney General, or the Director of Public Prosecutions as the case may be, who has responsibility for decisions relating to prosecutions. So even though the prosecutorial functions may be delegated to the special prosecutor in relation to the matters with which he or she is dealing on a day to day basis, the responsible law officer must retain general oversight and bears ultimate responsibility for the prosecutorial decisions and any prosecution resulting from the work of the special prosecutor. In most territories where the post exists the Attorney General is an ex officio member of both the Cabinet or Executive Council and the legislature.9 One exception to this is the Falkland Islands, where the Attorney General is not a member but has the right to take part in the proceedings of the Executive Council and the Legislative Assembly, in each case without the right to vote.10 Another exception is Bermuda where, when the Attorney General is politically appointed, he or she is a full member of the legislature and also, if the Premier decides and as has become the established practice, the Cabinet. If the Bermuda Attorney General were a public officer, which is also possible under the Constitution, he or she would be neither automatically a member of the Cabinet nor the legislature in either a full or an ex officio capacity. However, he or she could be summoned to Cabinet meetings as and when the Premier was of the opinion that his or her presence was desirable, which provision would allow attendance at every meeting.11 The other exception to the general rule is Gibraltar, where the Attorney General is not a member, either full or ex officio, of the Council of Ministers or the Gibraltar Parliament. In all cases, however, the Attorney General plays a central role in the government of the territory. Traditionally, where the Attorney General has been an ex officio member of the legislative body, he or she has had a vote there,12 and has been expected to exercise that vote in support of the Government except on matters of conscience. However, at the time of the recent constitutional review negotiations doubt was expressed by some Attorneys General and territory representatives about the desirability of involving the Attorney General in the political decision-making process. Therefore, in most constitutions which have come into force since 2006, the Attorney General,

9 See Anguilla Constitution (SI 1982/334, as amended by SI 1983/1108 and 1990/587) ss 23 and 35(2)(b); Cayman Islands Constitution ss 44(1)(c) and 60(1)(c); Montserrat Constitution (SI 2010/2474) ss 32(1) and 48(1); St Helena, Ascension and Tristan da Cunha Constitution ss 35(1)(b) and 48(b)(ii); Virgin Islands Constitution ss 47(1) and 63(1). See also Turks and Caicos Islands Constitution (SI 2006/1913) ss 27(1)(d) and 41(1)(d), but these provisions, along with all others dealing with ministerial government and the House of Assembly, were suspended by SI 2009/701. 10 Falkland Islands Constitution (SI 2008/2846) ss 41(2) and 61(1). Participation by the Attorney General in the Legislative Assembly requires the consent of the person presiding. 11 See Bermuda Constitution (SI 1968/182, as amended by SI 1968/463, 1968/726, 1973/233, 1979/452, 1979/1310, 1989/151, 2001/2579, 2003/456) s 67. 12 See eg Anguilla Constitution s 53(1), which refers to the votes of ‘the members’ without distinction.

Appointment and Security of Tenure 127 as with other ex officio members of the legislative body, does not now have the right to vote.13 An obviously important function of the Attorney General is the preparation of territory legislation and assistance in piloting Bills through the legislative body. In the larger territories the chambers include specialist legislative drafters, but in less populated ones there is no such luxury. In all cases the Attorney General is responsible for the final product. The Attorney General also traditionally has responsibility for the coherence of the territory’s statute book, and for arranging periodic updating and law revision exercises.14 The constitutions of some territories confer a further public interest function on the Attorney General, relating to the determination of questions as to membership of the elected legislative body. Usually the Supreme Court (or equivalent) of the territory is given jurisdiction to determine any question whether a person has been validly elected to the legislative body, or whether an elected member has vacated his or her seat in the legislative body as prescribed by the constitution. The Attorney General (among other specified interested parties) is given the right to apply to the Supreme Court to determine these questions, and if another person makes such an application the Attorney General is given the right to intervene and then appear or be represented in the proceedings.15 Clearly, in some circumstances this could prove a politically sensitive matter, which is yet another reason why the political independence of the Attorney General is vital. For several years now most of the Attorneys General have met annually at a conference devoted to their affairs chaired by one of the United Kingdom Law Officers. This has proved an invaluable forum for the exchange of information and experience, as well as the formulation and implementation of action plans of importance to the legal order of the territories. Moreover, given the inherent and peculiar difficulties of the role of Attorney General, the conference affords a significant and regular opportunity for mutual understanding and support, as well as advice from colleagues whose collective wisdom and experience are both extensive and unrivalled. APPOINTMENT AND SECURITY OF TENURE

Some of the older constitutions dealt only very briefly with the appointment and role of the Attorney General.16 However, the modern constitutions deal more extensively with the issue. They also provide for security of tenure for the holder of the office, something which is essential to an Attorney General if he or she is to fulfil

13 See eg Cayman Islands Constitution s 75(3); St Helena, Ascension and Tristan da Cunha Constitution s 67(5); Virgin Islands Constitution s 63(1). See also Falkland Islands Constitution s 41(2), under which the Attorney General has no vote when participating in proceedings of the Legislative Assembly. 14 Three Attorneys General are directors of the Regional Law Revision Centre in Anguilla. 15 See eg Anguilla Constitution s 41; Cayman Islands Constitution s 66; Falkland Islands Constitution s 36; St Helena, Ascension and Tristan da Cunha Constitution s 52; Virgin Islands Constitution s 87. 16 The Bermuda Constitution was the exception, having extensive provisions on the appointment and security of tenure of a public officer Attorney General: see s 86. While there is a political Attorney General, s 86 applies to the office of Director of Public Prosecutions: see s 71A(b).

128 The Law Officers the functions of the office without fear of political reprisal in an environment where his or her advice might not always be popular with local politicians.17 It is also especially important in territories where there is no Director of Public Prosecutions and the prosecutorial functions are vested in the Attorney General.

A. Appointment In some constitutions the power to appoint the Attorney General lies with the Governor acting in his or her discretion,18 although there may be an additional requirement to consult the Premier19 or to obtain the approval of the Secretary of State.20 This tends to be in the smaller territories, sometimes where there is no public service commission. But the approach of giving the Governor complete discretion in key appointments such as this is rather outdated and one which is now less common. In territories with a more sophisticated public appointments structure, an appointments commission is involved in the process of appointment of the Attorney General. In the Cayman Islands and the Virgin Islands, the Governor must in principle act in accordance with the advice of the Judicial and Legal Services Commission,21 and in Gibraltar the Governor must in principle act on the advice of the Specified Appointments Commission.22 But in each of these cases, the Governor may refuse to accept the advice of the relevant appointments commission. In the Virgin Islands and the Cayman Islands the Governor may ‘act otherwise than in accordance with’ the advice of the Judicial and Legal Services Commission if he or she determines, acting in his or her discretion, that compliance with the advice would prejudice Her Majesty’s service.23 In Gibraltar the Governor may ‘disregard’ the advice of the Specified Appointments Commission on the same ground, with the prior approval of a Secretary of State.24 The difference between the constitutions of the Cayman Islands and the Virgin Islands on the one hand and the Gibraltar Constitution on the other on this point is that, whereas the Governors of the Cayman Islands and the Virgin Islands may substitute their own appointment if they do not accept the advice of the Commission, in Gibraltar the matter would need to be referred back to the Commission for fresh advice because the power given to the Governor is a veto power only, not a power to substitute his or her own candidate for the one which the Commission has advised him or her to appoint. In theory the Governor (with the Secretary of State’s approval) could go on disregarding the advice of the Commission until it tenders advice to appoint a candidate with whom the Governor 17 It has not been unknown for a territory’s politicians simply to refuse to work with an Attorney General whose professional decision they disagreed with, making his or her position untenable. 18 See eg Falkland Islands Constitution s 84(4) and (5); Anguilla Constitution s 66(1). 19 Turks and Caicos Islands Constitution s 85(3); but this provision is temporarily suspended by SI 2009/701, and power to appoint the Attorney General vests in the Governor, acting in his or her discretion, by virtue of the Constitution s 85(1) and (2). 20 St Helena, Ascension and Tristan da Cunha Constitution s 46(2); Pitcairn Constitution s 35(2). 21 Cayman Islands Constitution s 106(1) and (4)(c); Virgin Islands Constitution s 95(1) and (4)(a). 22 Gibraltar Constitution (published in SI 2006, III, p 11503) s 56(2). 23 Cayman Islands Constitution s 106(1); Virgin Islands Constitution s 95(1). 24 Gibraltar Constitution s 56(4).

Appointment and Security of Tenure 129 is content. So ultimately the Governor’s view would prevail, provided the Secretary of State backed it. The Attorney General is one of the key public service positions in an overseas territory’s Government, and although the exact means by which he or she is appointed may vary in the detail, in all the territories25 the method of appointment provided for in the constitution is intended to ensure that the appointment of the Attorney General is free of political interference and that the person appointed is as politically neutral as possible. It is for this reason that ultimately the Governor must be able to make the decision concerning who is appointed to the office. The Bermuda Constitution is unique amongst the territory constitutions in the manner in which it deals with the appointment of the Attorney General, and it is a model to which some of the other territories have, without success, aspired for their own constitutions. Section 71(1) of the Bermuda Constitution establishes the office of Attorney General, and section 71(1A) provides that the Attorney General shall be a member of either the Senate or the House of Assembly who is entitled to practise as a barrister in Bermuda, or a public officer. Section 86(1) provides that the Governor has the power, acting in his discretion, to make appointments to the office of Attorney General, but section 71(1A), which did not appear in the original 1968 Constitution but was added in 1979,26 overrides this by providing that where the Attorney General is being appointed from either House, the Governor must act in accordance with the advice of the Premier. Although not entirely clear on the face of the text, the evident purpose of this amendment was to allow the elected Government (or, strictly speaking, the Premier) the option of having a politically chosen Attorney General drawn from the members of either House, provided that the person chosen is entitled to practise as a barrister in Bermuda. If that option is not exercised, the Attorney General is to be a public officer. In practice, while the United Bermuda Party was in power, the option was not exercised and the Attorney General continued to be a public officer. When the Progressive Labour Party won power in November 1998, the Governor, on the advice of the new Premier, appointed a legally qualified elected member of the House of Assembly as Attorney General,27 and since that time the Attorney General has always been a politician.28 There is no sign that this situation will change in the short term, but the constitutional possibility remains. Even if, in theory, it might be argued that the Constitution allows the Governor to revert to a public officer as Attorney General,29 as a matter of political reality a reversion to that situation is only likely to occur if the Premier so chose or if there were no member of either House entitled to practise as a barrister in Bermuda who was willing to accept the office of Attorney General. No other overseas territory constitution provides for the possibility of having a political Attorney General, and the United Kingdom Government made clear when 25

Except Bermuda, at times when there is a political Attorney General. See Bermuda Constitution (Amendment) (No 2) Order 1979 (SI 1979/1310). 27 Dame Lois Browne-Evans. For a biography of this remarkable woman, see J Randolf Williams, Lois: Bermuda’s Grande Dame of Politics (Hamilton, Camden Editions, 2001). 28 The Progressive Labour Party has remained in power since 1998, and the Attorney General also has ministerial responsibility for justice and legislative affairs. 29 This could only be on the basis of the Governor’s power under s 86(1) to make appointments to the office in his discretion. 26

130 The Law Officers it was raised by some territories at constitutional review negotiations that this was not an option on the table. Apart from the legal qualification required for a political Attorney General in Bermuda, only the Virgin Islands Constitution prescribes qualifications for appointment as Attorney General. To be appointed as Attorney General there a person must be qualified to be admitted in the Virgin Islands as a legal practitioner and must have had at least ten years’ practical experience as a legal practitioner. A further qualification for appointment is that a person must belong to the Virgin Islands unless, in the opinion of the Judicial and Legal Services Commission, there is no such person who is suitably qualified and able and willing to be appointed to the office.30

B. Security of Tenure The security of tenure of the Attorney General is provided for in a number of constitutions. In many territories the constitution vests the power of removal from office exclusively,31 or ultimately,32 in the Governor, putting the power beyond the control of local politicians. In most of these cases the Attorney General may only be removed from office for inability to perform the functions of the office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.33 Moreover, these are the only grounds for removal in the few territories where the Governor must establish an independent tribunal to advise on the question of removal and act in accordance with its advice.34 The grounds of inability and misbehaviour are the same as those applicable to the removal of a judge in several territory constitutions, and were considered in 2009 by the Judicial Committee of the Privy Council in the case of the Chief Justice of Gibraltar.35 None of the foregoing means that the Attorney General cannot be appointed on a contract for a specified term, which is expressly envisaged in a number of constitutions,36 but it means that within that contractual term he or she has security of

30 Virgin Islands Constitution s 95(5) and (6). The term ‘legal practitioner’, and who ‘belongs to the Virgin Islands’, are defined in s 2(1) and (2). 31 Anguilla Constitution s 66(1); Turks and Caicos Islands Constitution s 85(1) and (2). 32 Cayman Islands Constitution s 106(1) and (4)(c); Falkland Islands Constitution s 85(2); Gibraltar Constitution s 56(2) and (4); Montserrat Constitution s 85(2); Virgin Islands Constitution s 95(1) and (4)(a). 33 Cayman Islands Constitution s 106(7); Montserrat Constitution s 85(5); Turks and Caicos Islands Constitution s 85(4); Virgin Islands Constitution s 95(9). In Montserrat and the Turks and Caicos Islands removal also requires the prior approval of a Secretary of State. 34 St Helena, Ascension and Tristan da Cunha Constitution s 46(11) to (13); Pitcairn Constitution s 35(11) to (13); Bermuda Constitution s 86(3) to (5), applicable only when the Attorney General is a public officer. 35 Hearing on the Report of the Chief Justice of Gibraltar, referral under s 4 of the Judicial Committee Act 1833 [2009] UKPC 43. See further ch 6, pp 119–20 above. See also, in the context of the removal of the Director of Audit of Grenada for misbehaviour, Lawrence v Attorney General of Grenada [2007] UKPC 18, [2007] 1 WLR 1474 (PC). 36 See eg St Helena, Ascension and Tristan da Cunha Constitution s 46(3)(b).

Constitutional Independence 131 tenure and can only be removed from office (where the constitution so provides) for inability to perform the functions of the office or for misbehaviour.37 In the Falkland Islands, security of tenure is assured by constitutional requirements that removal from office must be in accordance with the Management Code for the time being in operation and that a final decision to remove may be appealed to the Governor.38 In Bermuda, a political Attorney General has no security of tenure, because the constitutional provisions providing security of tenure for the office of Attorney General apply only when the office is held by a public officer; otherwise they apply as if the references to the Attorney General were references to the Director of Public Prosecutions.39 CONSTITUTIONAL INDEPENDENCE

The constitutions of some territories make provision beyond security of tenure to support the independence of the Attorney General. In St Helena, Ascension and Tristan da Cunha and Pitcairn40 it is provided that the Attorney General, or any person acting under his or her authority, which would include the lawyers in the chambers, shall act independently in the exercise of the powers conferred on him or her by the Constitution and that he or she shall not be subject to the direction or control of the Governor, the Executive (or Island) Council or any other person or authority. The independence of the Attorney General or persons acting under his or her authority is therefore protected in relation to all of his or her functions, both advisory and prosecutorial. The constitutions of the Falkland Islands, Gibraltar and the Turks and Caicos Islands protect the independence of the Attorney General, but only in relation to his or her prosecutorial functions.41 Other constitutions, such as those of the Cayman Islands and the Virgin Islands, although they provide for the independence of the Director of Public Prosecutions in respect of his or her prosecutorial functions, contain no equivalent protection for the Attorney General in the performance of his or her functions. Financial protection for the Attorney General varies as between the territories with some offering protection only for the remuneration of the Attorney General, some only for his or her pension, and some for both. The constitutions of Anguilla, the Cayman Islands and the Turks and Caicos Islands provide protection for the pension, gratuity or other like allowance of the Attorney General, but not salary or other remuneration.42 The Virgin Islands and Montserrat constitutions provide the widest financial protection. They provide protection for the pension, gratuity

37

See eg ibid s 46(11); Cayman Islands Constitution s 106(7). Falkland Islands Constitution s 85(1) and (2). 39 Bermuda Constitution ss 86 and 71A. 40 See St Helena, Ascension and Tristan da Cunha Constitution ss 46(8), 150(9) and 215(8), and Pitcairn Constitution s 35(8). 41 See Falkland Islands Constitution s 72(4); Gibraltar Constitution s 59(5); Turks and Caicos Islands Constitution s 39(5), but here two other functions are specified. 42 See Anguilla Constitution ss 69–71; Cayman Islands Constitution s 110; Turks and Caicos Islands Constitution ss 89–91. 38

132 The Law Officers or other like allowance of the Attorney General,43 and for such remuneration and allowances as may be prescribed by or under any law enacted by the Legislature.44 The constitutions of Pitcairn and St Helena, Ascension and Tristan da Cunha provide no protection for the pension of their Attorneys General, instead providing that the remuneration of the Attorney General is to be determined by the Governor, acting in his or her discretion.45 The Pitcairn Constitution then goes on to provide that the remuneration and allowances and other terms and conditions of the Attorney General shall not be altered to the Attorney General’s disadvantage during his or her continuance in office,46 and the St Helena, Ascension and Tristan da Cunha Constitution provides that the remuneration of the Attorney General is not to be diminished during his or her continuance in office.47 These last provisions are again to avoid the Attorney General being driven from office through the actions of unscrupulous local politicians who might try to find inventive routes to secure his or her departure where they are not in agreement with his or her advice. DIRECTOR OF PUBLIC PROSECUTIONS

For many years Bermuda was the only territory with a Director of Public Prosecutions. Provision for the establishment of this office was inserted into the Constitution at the same time as the amendment allowing the possibility of having a political Attorney General. Section 71A of the Constitution requires that when the Attorney General is a member of either House, there must also be a Director of Public Prosecutions whose office shall be a public office. The reason for this requirement is to ensure that decisions relating to prosecutions are taken independently and that any such decisions are not politically motivated. This accords with the position in the United Kingdom. However, unlike in the United Kingdom, the Director of Public Prosecutions in Bermuda is not ultimately answerable to the politically appointed Attorney General. The Constitution provides that the Director of Public Prosecutions, when there is one, in the exercise of his or her functions is not subject to the direction or control of any other person or authority, and this includes the Attorney General.48 The constitutions of the Cayman Islands, Montserrat and the Virgin Islands also establish the office of Director of Public Prosecutions.49 But the position in these territories is different from that in Bermuda. Whereas the Bermuda Constitution only provides for the office of Director of Public Prosecutions whenever there is a political Attorney General, thus seeming to envisage that whenever the Attorney General is a public officer there is no need to appoint a Director of Public Prosecutions, in

43

See Virgin Islands Constitution ss 99–101; Montserrat Constitution ss 86–88. See Virgin Islands Constitution s 108; Montserrat Constitution s 97. 45 See Pitcairn Constitution s 35(9); St Helena, Ascension and Tristan da Cunha Constitution s 46(9). 46 Pitcairn Constitution s 35(10). 47 St Helena, Ascension and Tristan da Cunha Constitution s 46(10). 48 Bermuda Constitution s 71(6), read with s 71A(b). 49 Cayman Islands Constitution s 57(1); Montserrat Constitution s 46(1); Virgin Islands Constitution s 59(1). 44

Director of Public Prosecutions 133 the Cayman Islands, Montserrat and the Virgin Islands both of these offices are held by public officers and the Constitution clearly envisages both offices existing and being filled simultaneously.50 But as in the case of the Bermuda Director of Public Prosecutions, the Director of Public Prosecutions in each of these territories has his or her independence confirmed by the Constitution and is not subject to the direction or control of any other person or authority, including the Attorney General.51 This does not mean, however, that the Attorney General could not represent the Director of Public Prosecutions in the Cabinet or in the legislative body if the Director agreed, for example to answer questions relating to the carrying out of his or her functions. The constitutional functions of the Director of Public Prosecutions are set out in standard terms. A typical example is section 57(2) to (6) of the Cayman Islands Constitution, which provides: (2) The Director of Public Prosecutions shall have power, in any case in which he or she considers it desirable to do so— (a) to institute and undertake criminal proceedings against any person before any court in respect of any offence against any law in force in the Cayman Islands; (b) to take over and continue any such criminal proceedings that have been instituted by any other person or authority; (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or herself or any other person or authority. (3) The powers of the Director of Public Prosecutions under subsection (2) may be exercised by him or her in person or by officers subordinate to him or her acting under and in accordance with his or her general or special instructions. (4) The powers conferred on the Director of Public Prosecutions by subsection (2)(b) and (c) shall be vested in him or her to the exclusion of any other person or authority; but where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court. (5) For the purposes of this section, any appeal from any determination in any criminal proceedings before any court, or any case stated or question of law reserved for the purpose of any such proceedings, to any other court or to Her Majesty in Council shall be deemed to be part of those proceedings. (6) In the exercise of the powers conferred on him or her by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.

The Bermuda, Montserrat and Virgin Islands constitutions contain equivalent provisions.52 In territories without a Director of Public Prosecutions, there are 50 Cayman Islands Constitution ss 56, 57 and 106; Montserrat Constitution ss 32(1), 46 and 85; Virgin Islands Constitution ss 58, 59 and 95. 51 Cayman Islands Constitution s 57(6); Montserrat Constitution s 46(6); Virgin Islands Constitution s 59(6). 52 Bermuda Constitution s 71(2)–(6), read with s 71A(b); Montserrat Constitution s 46(2)–(6); Virgin Islands Constitution s 59(2)–(6).

134 The Law Officers equivalent provisions in several constitutions conferring these powers on the Attorney General.53 Otherwise prosecutorial powers are set out in ordinary legislation.54 In the Cayman Islands, Montserrat and the Virgin Islands, the Director of Public Prosecutions is appointed in the same way, has the same security of tenure, and enjoys the same constitutional protection for his or her pension, as the Attorney General.55 In Bermuda the Governor appoints the Director of Public Prosecutions in his or her discretion, may only remove the Director for inability or misbehaviour and on the advice of an independent tribunal, and there is constitutional protection for the Director’s remuneration and pension.56 These various provisions provide a high degree of constitutional independence for the Directors of Public Prosecutions in these territories, the importance of which cannot be overstated.

53 Anguilla Constitution s 34; Falkland Islands Constitution s 72; Gibraltar Constitution s 59(2)–(6); Pitcairn Constitution s 35(4)–(8); St Helena, Ascension and Tristan da Cunha Constitution ss 46(4)–(8), 150(5)–(9), 215(4)–(8); Turks and Caicos Islands Constitution s 39. 54 See eg Principal Legal Adviser Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 8 of 1990) s 7; Criminal Procedure Code 1986 (Laws of the British Indian Ocean Territory, Ordinance No 1 of 1986) ss 73–74. 55 Cayman Islands Constitution ss 106(1), (4)(d) and (7) and 110; Montserrat Constitution ss 85(2) and (5) and 86–88; Virgin Islands Constitution ss 95(1), (4)(b) and (9) and 99–101. There is also equivalent protection for remuneration in Montserrat (s 97) and the Virgin Islands (s 108). 56 Bermuda Constitution ss 86, 91–93, 100, read with s 71A.

8 Sources of Law

T

HE BODY OF law in force in each British overseas territory is distinct and unique to that territory. This chapter examines the sources of law in the territories in necessarily general terms. The Annex contains information about the sources of law in each individual territory. Broadly speaking, the law in force in each territory consists of statute law, whether made locally or in the United Kingdom (and exceptionally elsewhere), the common law and rules of equity of England to the extent applicable in the territory, and jurisprudence resulting from judicial decisions. Each of these sources of law is considered in turn. STATUTE LAW

The corpus of statute law in force in any territory consists of legislation enacted or made in the United Kingdom and legislation enacted by the local legislature of the territory, and exceptionally legislation made elsewhere. Some statutes apply directly, but others are incorporated or imported into the law of the territory by one means or another.

A. Legislation Enacted or Made in the United Kingdom 1. Acts of Parliament Acts of the United Kingdom Parliament may apply to a territory expressly or by necessary intendment. Otherwise they do not. Modern practice is to make express provision. It is therefore necessary to examine the terms of each Act to determine whether or not it extends to one or more territories. Few Acts of Parliament are in practice extended to the territories. Those that apply to all usually deal with matters that require uniform treatment throughout British territory. Some old Acts are still important and applied from time to time, such as the Colonial Prisoners Removal Act 1884.1 Recent important examples are the British Nationality Act 19812 and the British Overseas Territories Act 20023 which in part amends the 1981 Act.

1 2 3

1884 c 31. 1981 c 61: see s 53(5). 2002 c 8: see s 8(4).

136 Sources of Law 2. Orders in Council More often Acts of Parliament confer power to make subordinate legislation for the territories, usually by Order in Council. Of these the most fundamental are the Orders in Council establishing constitutions for the 12 territories whose constitutions derive from statutory powers.4 Another common use of such a power is to provide by Order in Council for the implementation of international obligations in the territories.5 Orders in Council may also be in force in any territory except Bermuda by virtue of the general power expressly reserved in the constitution Order to legislate for the territory in this way.6 So, the statute law in force in each territory includes some Acts of Parliament and Orders in Council made under them. It is important to bear in mind that these laws form part of the law of a territory by virtue of the Act or Order in question, by contrast with laws made in the United Kingdom that are incorporated (or ‘imported’) into the law of a territory by virtue of a locally enacted law. This is a vital distinction, because in the hierarchy of laws in force in any territory it is only the former that take precedence over locally enacted laws. This is the result of section 2 of the Colonial Laws Validity Act 1865.7 The latter, by contrast, have the same legal standing as other locally enacted laws, because their incorporation in the law of the territory is effected by locally enacted legislation. The same applies to ordinary legislation made for a territory by prerogative Order in Council, because such an Order is within the definition of ‘colonial law’ for the purposes of section 2 of the 1865 Act.8 But the prerogative Orders establishing constitutions for Gibraltar and the British Indian Ocean Territory provide, respectively, that the power of the territory legislature to make laws is ‘subject to this Constitution’ or ‘subject to the provisions of this Order’, thus giving these Orders a higher standing than locally enacted legislation.9

B. Locally Enacted Legislation Each territory has its own body of laws enacted by the local legislature of the territory. These local laws far outnumber, in each territory, the legislation made in the United Kingdom that applies to the territory. These locally enacted laws are made in exercise of the power, conferred on the territory legislature by the constitution of the

4 Anguilla, Bermuda, the British Antarctic Territory, the Cayman Islands, the Falkland Islands, Montserrat, Pitcairn, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, the Sovereign Base Areas, the Turks and Caicos Islands and the Virgin Islands. See further ch 2, pp 15–19 above. 5 Eg Orders in Council under the United Nations Act 1946 (1946 c 45). See further ch 4, p 56 above. 6 See further ch 4, pp 57–60 above. 7 1865 c 63. See further ch 4, pp 67–70 above. 8 See further ch 4, p 69 above. 9 Gibraltar Constitution (SI 2006, III, p 11503) s 32; British Indian Ocean Territory (Constitution) Order 2004 (see Annex, p 305 below) s 10(1).

Statute Law

137

territory, to make laws for the peace, order and good government of the territory. The scope of this very broad power is examined in chapter four.10 The nomenclature of primary legislation enacted by territory legislatures is not uniform. In Anguilla, Bermuda, Gibraltar, Montserrat and the Virgin Islands such laws are called Acts. In the Cayman Islands they are called Laws. In all other territories they are called Ordinances. In each territory there is also a body of subordinate legislation made in exercise of powers conferred by primary legislation enacted by the territory legislature. Laws made as subordinate legislation have various names, such as regulations, orders, rules and by-laws. There may also, at any particular time, be in force in a territory one or more proclamations having legislative effect made by the Governor, or emergency regulations made by the Governor.11 But in terms of volume the number of these in force at any time in any territory will be tiny. While the great majority of locally enacted laws are ‘autonomous’ in the sense of being devised for particular objects and purposes in a territory, some incorporate laws of the United Kingdom or other places as part of the law of a territory.

C. Incorporation of United Kingdom and Other Laws The incorporation of legislation made externally into the law of a territory can occur by the operation of common law rules, by means of locally enacted laws, and very occasionally by virtue of United Kingdom statutory provisions. 1. Incorporation by Operation of Common Law In a territory acquired by settlement that was not within the jurisdiction of any civilised power, the settlers took with them the law of England as in force at the time of settlement, so far as applicable to their new situation.12 This included the statute law in force at the time of settlement, but not statutes subsequently enacted unless specifically extended to them. But the extent of application of such statute law was limited; the settlers ‘carry with them only so much of the English law as is applicable to their own situation and the condition of an infant Colony’.13 Any statute in force in a territory by this means may, in its local application, be repealed or altered by the legislature of the territory. The operation of these common law rules would have provided the original basic law in force in the remaining overseas territories that were acquired by settlement: Anguilla, Bermuda, the Cayman Islands, the Falkland Islands, Montserrat, Pitcairn, 10

See ch 4, pp 61 and 66 above. See further ch 4, p 65 above, and ch 10, pp 191–96 below. Proclamations are sometimes used to determine maritime jurisdiction. Emergency regulations have remained in force for several years in Montserrat following the volcanic eruptions there beginning in 1995. 12 Blackstone, Commentaries on the Laws of England, 15th edn (London, T Cadell and W Davies, 1809) vol 1, pp 106–07; Blankard v Galdy (1693) 2 Salk 411; Roberdeau v Rous (1738) 1 Atk 543. Recently confirmed by the Privy Council in Christian v R [2006] UKPC 47, [2007] 2 AC 400 (PC). 13 Blackstone, n 12 above, p 106. 11

138 Sources of Law St Helena, Ascension and Tristan da Cunha, the Turks and Caicos Islands and the Virgin Islands.14 It would also have provided the basic law applicable in the British Antarctic Territory,15 where settlement in the normal sense was impracticable and which was formally acquired by annexation rather than settlement. As Roberts-Wray says: In particular, inhospitable tracts of country, like those in the Antarctic, have been annexed to Her Majesty’s dominions without settlement, cession or conquest; and if no express provision has been made, persons who happen to be there must be subject to the law of the administering country unless there is a legal vacuum.16

By contrast, in territories acquired by cession or conquest the law in force in the territory at the time of acquisition continued until altered or replaced by later legislation.17 But the assumption of British sovereignty over such a territory necessarily extended to it Acts of Parliament that applied to all British colonies, so that would have affected from the outset the existing law in force there.18 This would have been the position on the acquisition of Gibraltar by cession from Spain and of the British Indian Ocean Territory by cession (as part of Mauritius) from France. The practical result of the operation of these common law rules, in terms of the incorporation of United Kingdom statutes, is nowadays of limited effect, given the antiquity of the acquisition of most of the remaining overseas territories. In any case, the common law rules have in some territories been superseded by local legislation or, in the case of the Cayman Islands, by United Kingdom statute. This is considered further below. 2. Incorporation by Locally Enacted Legislation Locally enacted legislation occasionally incorporates into the law of the territory United Kingdom Acts of Parliament or subordinate legislation. When this is done it is normal, for obvious reasons, to incorporate the Act in question with adaptations and modifications to suit the local circumstances of the territory. This is permissible so long as the Act in question does not extend to the territory by virtue of its own provisions. The decision to incorporate the Act is a choice made by the territory legislature and not the United Kingdom Parliament, so it follows that the extent of incorporation is likewise a choice of the territory legislature. For the same reason, the territory legislature is free to incorporate, or not, later amendments to the Act made at Westminster, to modify further the terms of the Act incorporated, to terminate its incorporation, and to maintain its incorporation even if it is repealed by Parliament. Incorporation of United Kingdom enactments may be specific or general. A territory law may provide that a single Act of Parliament shall have effect in the territory, with or without adaptations and modifications. An alternative specific form of incorporation

14

And, at least partly, South Georgia and the South Sandwich Islands: see ch 1, n 17. And, at least partly, South Georgia and the South Sandwich Islands: see ch 1, p 7 above. 16 K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 543. 17 Blackstone, n 12 above; Campbell v Hall (1774) 1 Cowp 204. Recently confirmed in Christian v R, n 12 above, and by the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL). 18 Ruding v Smith (1821) 2 Hag Con 371, 382. 15

Statute Law 139 is a territory law which provides that a list of named United Kingdom statutes shall form part of the law of the territory, with or without modification or qualification. An example of a specific but thorough approach is the English Law (Application) Act 1962 (as amended) of Gibraltar.19 Section 3 of that Act provides (so far as material): (1) Subject to the provisions of this section and of any other Act, the law of England as set out in the following Acts shall be in force in Gibraltar— (a) the Acts listed in the Schedule, to the extent shown in the fourth column of each Part; ... (2) The Parliament may, by resolution, add to Part 1 of the Schedule any Act of the Parliament at Westminster passed before the 31st day of December 1883 or vary the extent of the application of any Act listed in that Part. (3) The Acts referred to in subsections (1) and (2) shall be read and construed with such formal alterations or modifications as to names, localities, courts, officers, persons or otherwise as may be necessary to make them applicable to the circumstances of Gibraltar.

The Schedule contains a lengthy list of United Kingdom statutes and specifies the extent of their application to Gibraltar. Section 4 deals with the application of amendments to the Acts scheduled, and section 5 enables the Gibraltar Parliament, by resolution, to delete any Act from Part 1 of the Schedule. Section 6 provides: The Acts referred to in section 3, as applied to Gibraltar, shall continue in force in Gibraltar notwithstanding that they may have been or may be repealed in whole or in part in England, unless and until disapplied under the provisions of this or any other Act.

A common technique for general incorporation is a territory law which provides that all ‘statutes of general application’ in force in England from time to time, or at a specified date, shall have effect in the territory, subject to stated qualifications. An old example, and now one of limited effect, is the Supreme Court Act 1905 (as amended) of Bermuda,20 section 15 of which provides, so far as material: Subject to the provisions of any Acts which have been passed in any way altering, amending or modifying the same ... the Acts of the Parliament of England of general application which were in force in England at the date when these Islands were settled, that is to say, on the eleventh day of July one thousand six hundred and twelve, shall be, and are hereby declared to be, in force within Bermuda.

This sort of provision reflects the common law rule applicable to a settled colony, such as Bermuda, described above, and has the effect of displacing the common law rule. A more recent example, and one which is worded in ambulatory terms rather than by reference to a particular date, is the Judicature (Courts) Ordinance 1999 (as amended) of Pitcairn,21 section 16 of which provides, so far as material: (1) Subject to the provisions of subsection (2), the ... statutes of general application as in force in and for England for the time being shall be in force in the Islands.

19 20 21

Laws of Gibraltar, 1962-17. Laws of Bermuda (1989 Revision), Title 8, Item 1. Laws of Pitcairn (2001 Revised Edition) Cap II.

140 Sources of Law (2) All the laws of England extended to the Islands by subsection (1) shall be in force therein so far only as the local circumstances and the limits of local jurisdiction permit and subject to any existing or future ordinance and for the purpose of facilitating the application of the said laws it shall be lawful to construe the same with such formal alterations not affecting the substance as to names, localities, courts, offices, persons, moneys, penalties and otherwise as may be necessary to render the same applicable to the circumstances.22

The qualifications in subsection (2) are typical of such provisions in (a) limiting the application of English statutes to the extent permitted by local circumstances, and (b) subjecting their application to any local legislation of the territory. An almost identical provision in the law of Pitcairn23 was considered recently by the Judicial Committee of the Privy Council in Christian v R.24 One question at issue was whether the general words incorporating English statutes of general application were clear enough to incorporate the Sexual Offences Act 1956,25 under which the applicants had been convicted by the Pitcairn Supreme Court of rape, indecent assault and incest. Lord Hoffmann, giving the judgment of the Board, said:26 12. Mr Cato submitted next for the appellants that the language of section 14 of the 1970 Ordinance was too imprecise to incorporate the 1956 Act as part of the law of Pitcairn. What was a statute ‘of general application’? And there could be much dispute over whether ‘local circumstances’ made it appropriate for the law to apply. But this language has been used in legislation for British overseas possessions for many years without causing any difficulty. As Sir Kenneth Roberts-Wray said in his book on Commonwealth and Colonial Law (1966), at p 545: ‘It has been in use for many decades, it has been the subject of judicial interpretation, it does not appear to have given the courts serious trouble, and it has much the same effect as the common law rule. So a change of formula may do more harm than good.’ 13. Similar language was considered by the Court of Appeal in Nyali Ltd v AttorneyGeneral [1956] 1 QB 1, where Denning LJ said (at p 17) that the task of making qualifications to English law to suit the circumstances of overseas territories called for wisdom on the part of their judges. But he described it (at p 16) as a ‘wise provision’ and did not suggest that it was incapable of application. Their Lordships think that there can be no doubt that the 1956 Act is an act of general application and that there are no local circumstances which make it inappropriate to apply the provisions about rape, indecent assault and incest.

The Judicial Committee also rejected arguments for the appellants that the phrase ‘statutes of general application’ did not incorporate the criminal law, and that the 1956 Act failed the test of suitability to local circumstances because until a Court of Appeal was created in 2000 there was no right of appeal against a conviction by the

22

These provisions are now repeated in the Pitcairn Constitution (SI 2010/244) s 42. Judicature Ordinance 1970 s 14, which preceded the 1999 Ordinance cited above. The only difference was that the 1970 Ordinance incorporated statutes in force in England ‘at the commencement of this Ordinance’. 24 Christian v R [2006] UKPC 47, [2007] 2 AC 400. For a series of essays stimulated by this case, see D Oliver (ed), Justice, Legality and the Rule of Law (Oxford, Oxford University Press, 2009). 25 1956 c 69. 26 Christian v R, n 24 above, paras 12–13. 23

Statute Law 141 Supreme Court.27 It also rejected the argument that the prosecutions were an abuse of process because the 1956 Act had not itself been published in Pitcairn. In doing so it relied on the finding of fact by the Pitcairn Supreme Court, which had been upheld by the Pitcairn Court of Appeal, that at all material times Pitcairn was a developed society in which rape and various sexual offending were known to be criminal, and the observation by the Court of Appeal that there was never any contention that the appellants did not or could not reasonably have known that the allegations against them constituted serious criminal offending.28 But on this point Lord Hope expressed considerable unease, on grounds of legal uncertainty, about the technique of incorporating English statutes by reference without publishing them in a small, isolated community such as Pitcairn. He would have found the prosecutions under the 1956 Act an abuse of process but for the fact that the offences charged were not created by the 1956 Act but had existed long before it as common law offences, and as such had formed part of the law of Pitcairn since its settlement.29 Lord Hope’s opinion is perhaps a salutary note of caution about this technique, at least in circumstances where it would be very difficult to determine the content of incorporated laws, especially criminal laws that create offences carrying substantial penalties. In general it must be preferable, in principle and in practice, for an overseas territory to enact its own criminal legislation without having to import it from outside. Territory laws incorporating United Kingdom statutes, either by means of a list or by a general reference (some referring to a date) are also in force in the British Antarctic Territory, the British Indian Ocean Territory, the Falkland Islands, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands and the Sovereign Base Areas.30 Locally enacted legislation of a territory may also incorporate as part of the law of the territory laws other than those of England or the United Kingdom. Instances of this are rare, but the cases of Gibraltar and the Sovereign Base Areas are important. These territories are, to a considerable extent, within the European Union, and it is necessary to incorporate as part of their laws directly applicable European Union rules, whether derived from the Treaties or secondary legislation. This is achieved in Gibraltar by section 3(1) of the (Gibraltar) European Communities Act 1972,31 and in the Sovereign Base Areas by section 3 of the European Community (Protocol Measures) Ordinance 2004.32 Each of these provisions has the effect of

27

Ibid paras 14–15. Ibid paras 18–24. 29 Ibid paras 79–86. 30 Administration of Justice Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 5 of 1990) ss 5–6; Courts Ordinance 1983 (Laws of the British Indian Ocean Territory, Ordinance No 3 of 1983) ss 3–4; Interpretation and General Clauses Ordinance (Laws of the Falkland Islands, Title 67) s 83; English Law (Application) Ordinance 2005 (Laws of St Helena, Ordinance No 10 of 2005) ss 2–6; Application of St Helena Law (Ascension) Ordinance 1987 (Laws of Ascension, Ordinance No 4 of 1987); Application of St Helena Law (Tristan da Cunha) Ordinance 1987 (Laws of Tristan da Cunha, Ordinance No 3 of 1987); Application of Colony Laws Ordinance 1977 (Laws of South Georgia and South Sandwich Islands, No DS1 of 1977); Courts (Constitution and Jurisdiction) Ordinance 2007 (Laws of the Sovereign Base Areas, Ordinance 5 of 2007) s 33. 31 Laws of Gibraltar, 1972-18. 32 Laws of the Sovereign Base Areas, Ordinance 11 of 2004. 28

142 Sources of Law incorporating, without further enactment, directly applicable European Union rules, in the same way as section 2(1) of the (United Kingdom) European Communities Act 197233 does. On a more local scale, the law of St Helena as in force from time to time (including English law incorporated by St Helena legislation) is imported into the law of Tristan da Cunha by the Application of St Helena Law (Tristan da Cunha) Ordinance 1987.34 But the Ordinance goes on to provide that St Helena law applies to Tristan da Cunha ‘only in so far as it is applicable and suitable to local circumstances, and subject to such modifications, adaptations, qualifications and exemptions as local circumstances render necessary’, and only in so far as it is not inconsistent with any United Kingdom Act or Order in Council that extends to Tristan da Cunha otherwise than by virtue of this Ordinance or with any provision made by or under any law enacted by a legislature of Tristan da Cunha.35 Similar provision is made for Ascension by an equivalent Ordinance of Ascension.36 Certain laws of South Georgia and the South Sandwich Islands incorporate specified Falkland Islands laws.37 3. Incorporation by Act of Parliament Such incorporation is unusual. But by section 5 of the Cayman Islands Act 1863,38 the laws then in force in Jamaica were applied generally to the Cayman Islands. By section 2(3) of the Cayman Islands and Turks and Caicos Islands Act 195839 (which repealed the 1863 Act) the continued operation of existing law was preserved. The 1958 Act was itself repealed by the West Indies Act 1962,40 but successive Orders in Council providing constitutions for the Cayman Islands contained similar saving provisions.41 The legislature of the Cayman Islands has power to amend or repeal any remaining imported Jamaican law. COMMON LAW AND RULES OF EQUITY

The incorporation of English common law and rules of equity into the law of an overseas territory may occur by the operation of common law rules or by virtue of statute.

33

1972 c 68. Laws of Tristan da Cunha, Ordinance No 3 of 1987. 35 See ss 2 and 3. 36 Application of St Helena Law (Ascension) Ordinance 1987 (Laws of Ascension, Ordinance No 4 of 1987). 37 Eg Application of Colony Laws Ordinance 1977 (Laws of South Georgia and South Sandwich Islands, No DS1 of 1977). This Ordinance incorporates (among others) the Interpretation and General Clauses Ordinance, which deals with the incorporation of English law into the law of the Falkland Islands. 38 1863 c 31. 39 1958 c 13. 40 1962 c 19. 41 Cayman Islands (Constitution) Order in Council 1962 (SI 1962/1646) s 56; Cayman Islands (Constitution) Order 1965 (SI 1965/1860) s 56; Cayman Islands (Constitution) Order 1972 (SI 1972/1101) s 57; Cayman Islands Constitution Order 2009 (SI 2009/1379) s 5. 34

Common Law and Rules of Equity 143 A. Incorporation by Operation of Common Law As noted above, in a territory acquired by settlement that was not within the jurisdiction of any civilised power, the settlers took with them the law of England as in force at the time of settlement, so far as applicable to their new situation. This included the rules of common law and equity. In their local application these rules could be altered subsequently by the legislature of the territory. Thus the common law and rules of equity in force at the time of settlement would have formed part of the original basic law of the remaining overseas territories that were acquired by settlement. The same applies to the British Antarctic Territory at the time of its annexation.42 In territories acquired by cession or conquest the law in force in the territory at the time of acquisition continued until altered or replaced by later legislation. This would have been the position on the acquisition of Gibraltar and the islands comprising the British Indian Ocean Territory. There is authority for the proposition that the Royal prerogative is as extensive in overseas possessions as in the United Kingdom.43 This means that the prerogative (as part of the common law) forms part of the law of all the remaining overseas territories.

B. Incorporation by Statute In several territories the incorporation of the common law and rules of equity has been expressly provided for by locally enacted legislation. Most of the relevant provisions are ambulatory in effect, rather than limiting incorporation by reference to a particular time. For example, section 2 of the English Law (Application) Act 1962 of Gibraltar44 provides: (1) The common law and the rules of equity from time to time in force in England shall be in force in Gibraltar, so far as they may be applicable to the circumstances of Gibraltar and subject to such modifications thereto as such circumstances may require, save to the extent to which the common law or any rule of equity may from time to time be modified or excluded by— (a) any Order of Her Majesty in Council which applies to Gibraltar; (b) any Act of the Parliament at Westminster which applies to Gibraltar, whether by express provision or by necessary implication; or (c) any Act.

42

And, at least partly, South Georgia and the South Sandwich Islands: see n 15 above. Lyons (Mayor) v East India Company (1836) 1 Moo PC 175, 274; Nyali v Attorney-General [1956] 1 QB 1; Ex p Mwenya [1960] 1 QB 241. See further Roberts-Wray, Commonwealth and Colonial Law, n 16 above, 557–61, who concludes that major prerogatives apply to every part of Her Majesty’s dominions. 44 Laws of Gibraltar, 1962-17. 43

144 Sources of Law (2) In all causes or matters in which there is any conflict or variance between the common law and the rules of equity with reference to the same subject, the rules of equity shall prevail.

These provisions are admirably clear. Common law and the rules of equity apply as from time to time in force, but subject to local circumstances and to any contrary statutory provision which applies in Gibraltar, whether made in the United Kingdom or by the Gibraltar Legislature.45 Subsection (2) even adds a rule for dealing with conflicts between the common law and the rules of equity. The Pitcairn example cited earlier in this chapter is also ambulatory. Section 16(1) of the Judicature (Courts) Ordinance 199946 provides: Subject to the provisions of subsection (2), the common law, the rules of equity and the statutes of general application as in force in and for England for the time being shall be in force in the Islands.47

So too, probably, is the Bermuda example cited earlier in this chapter. Section 15 of the Supreme Court Act 190548 provides: Subject to the provisions of any Acts which have been passed in any way altering, amending or modifying the same, and of this Act, the common law, the doctrines of equity, and the Acts of the Parliament of England of general application which were in force in England at the date when these Islands were settled, that is to say, on [11 July 1612], shall be, and are hereby declared to be, in force within Bermuda.

It is just conceivable that the application of the common law and the doctrines of equity is limited by the date specified, but the inclusion of a comma after the word ‘equity’ strongly suggests that it is not. The better view is therefore that there is no time limit on the incorporation of common law and equity in the law of Bermuda. Locally enacted laws incorporating the common law and the rules of equity into the law of the territory with ambulatory effect also exist in Anguilla, the British Antarctic Territory, the British Indian Ocean Territory, the Falkland Islands, Montserrat, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, the Sovereign Base Areas, the Turks and Caicos Islands and the Virgin Islands.49

45

The reference to ‘any Act’ in sub-s (1)(c) is to an Act of the Gibraltar Legislature. Now repeated in the Pitcairn Constitution s 42. 47 The limitations in sub-s (2) are set out on p 140 above. 48 Laws of Bermuda (1989 Revision), Title 8, Item 1. 49 Common Law (Declaration of Application) Act (Revised Statutes of Anguilla, Cap C60); Eastern Caribbean Supreme Court (Anguilla) Act (Revised Statutes of Anguilla, Cap E15) ss 16–18 and 20; Administration of Justice Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 5 of 1990) ss 5–6; Courts Ordinance 1983 (Laws of the British Indian Ocean Territory, Ordinance No 3 of 1983) ss 3–4; Interpretation and General Clauses Ordinance (Laws of the Falkland Islands, Title 67) s 84; Supreme Court Act (Laws of Montserrat, Cap 2.01) ss 13–17, 19 and 21; English Law (Application) Ordinance 2005 (Laws of St Helena, Ordinance No 10 of 2005) ss 2–6; Application of St Helena Law (Ascension) Ordinance 1987 (Laws of Ascension, Ordinance No 4 of 1987); Application of St Helena Law (Tristan da Cunha) Ordinance 1987 (Laws of Tristan da Cunha, Ordinance No 3 of 1987); Application of Colony Laws Ordinance 1977 (Laws of South Georgia and South Sandwich Islands, Ordinance No DS1 of 1977); Courts (Constitution and Jurisdiction) Ordinance 2007 (Laws of the Sovereign Base Areas, Ordinance 5 of 2007) s 33; Supreme Court Ordinance (Laws of the Turks and Caicos Islands (1998 Revision), Cap 11) s 3(4); Eastern Caribbean Supreme Court (Virgin Islands) Act (Laws of the Virgin Islands, Cap 80) ss 13–21. 46

Judicial Decisions 145 JUDICIAL DECISIONS

For each overseas territory Her Majesty in Council—that is to say the Queen advised by the Judicial Committee of the Privy Council—is the final court of appeal. Below that level each territory has its own system of courts, in a few cases shared with another territory or territories.50 It is important to bear in mind that the courts of each territory are in no sense inferior to, or dependent on, the courts of England or any other part of the United Kingdom. They derive their existence and jurisdiction from the respective constitutions and laws of the territories, and have no constitutional relationship with United Kingdom courts.

A. Decisions of Territory Courts It follows that in each territory the superior courts may and do build up a body of jurisprudence by virtue of their own decisions. Accordingly, the main source of judicial precedent for each territory in the interpretation and application of its law must be the superior courts of that territory. The position in Anguilla, Montserrat and the Virgin Islands may be a little more complicated, since these territories are within the jurisdiction of the Eastern Caribbean Supreme Court (consisting of a High Court and a Court of Appeal). They share this Court with six independent Caribbean States: Antigua and Barbuda, Dominica, Grenada, St Kitts and Nevis, St Lucia, and St Vincent and the Grenadines. It must be the case that decisions of the High Court or the Court of Appeal when exercising jurisdiction in relation to Anguilla, Montserrat or the Virgin Islands are binding on lower courts in the territory concerned. But what is the status of their decisions, in any of those three territories, when given in exercise of their jurisdiction in relation to another territory or one of the six independent States? In principle they should be persuasive rather than binding, because the Court in each case determines issues of the law of the territory or State in respect of which it is exercising jurisdiction, and in many cases a decision of the Court will have no relevance to the other territories or States. But there may be, and no doubt are, instances where the law to be interpreted or applied is the same, or is similar, in two or more of the territories and States subject to the Court’s jurisdiction. In those circumstances a decision of the Court will have wider relevance to other jurisdictions, and it could justifiably carry greater weight.

B. Decisions of the Privy Council As the Privy Council is the final court of appeal for each overseas territory, its decisions in appeals brought from any territory are binding on the courts of that territory. But are its decisions also binding on the courts of other overseas territories?

50

See ch 6 above.

146 Sources of Law There are statements in decisions of the Judicial Committee that suggest that they are so binding. In Fatuma binti Mohamed bin Salim Backhshuwen v Mohamed bin Salim Backhshuwen,51 Lord Simmonds, delivering the judgment of the Board, said: In Said bin Muhammad v Wakf Commissioner ... the experienced judges of the Court of Appeal for Eastern Africa did not doubt that on a question of Mohamedan law decisions of the Privy Council in appeals from India must bind them in appeals from the High Court of Zanzibar. Their Lordships are of the opinion that this was clearly the correct view and that it must prevail also in appeals from Kenya.

This makes sense, and, it is respectfully submitted, must be right in circumstances where the issues decided are of wide constitutional significance or where they are not peculiar to a particular territory and may therefore have wider application. The ultimate authority of the Privy Council throughout the territories is important to ensure legal coherence and consistency, especially in the formulation and application of common constitutional principles. For example, the fundamental rights provisions of many territory constitutions are in similar terms, as indeed are those of several independent Caribbean States for which the Privy Council remains the final court of appeal. But there may be other cases in which a Privy Council decision relates exclusively to a particular point of law in a particular territory. A decision of the Privy Council in the latter case can hardly have meaningful binding effect elsewhere, and would be of little relevance outside the territory concerned. There must therefore be room to consider the circumstances surrounding a particular decision. Roberts-Wray cites some cases in which Commonwealth courts have declined to follow Privy Council decisions given in appeals from other jurisdictions.52 One of these is Pesona v Babonchi Baas,53 in which the Supreme Court of Ceylon preferred one of its own previous decisions to a later decision of the Privy Council in an appeal from Burma, on the grounds that the former had not been formally overruled by the latter. He concludes that this may be a necessary exception to the statement of the Judicial Committee in the Backhshuwen case, assuming that statement has general validity.54 C. Decisions of United Kingdom Courts55 In principle the decisions of United Kingdom courts have no more than persuasive authority in the overseas territories. These courts do not form part of the judicial system of any of the territories. But their decisions, especially those of the Supreme Court (and previously the House of Lords) and the Court of Appeal, may be expected to be given considerable weight. However, there are some circumstances in which decisions of United Kingdom courts should be treated as binding in an overseas territory. The first is where the 51 Fatuma binti Mohamed bin Salim Backhshuwen v Mohamed bin Salim Backhshuwen [1952] AC 1 (PC), 14. See also Robins v National Trust Co [1927] AC 515 (PC), 519. 52 Commonwealth and Colonial Law, n 16 above, 573–74. 53 Pesona v Babonchi Baas (1948) 49 NLR (Ceylon) 442. 54 Commonwealth and Colonial Law, n 16 above, 575. 55 Ibid 563–75, where the authority of such decisions is discussed in some detail.

Judicial Decisions 147 common law and rules of equity for the time being in force in England have been incorporated into the law of a territory by legislation of that territory. The development of the common law and rules of equity by the decisions of English courts must inevitably form part of such incorporation into the territory’s law. The same applies where United Kingdom statutes from time to time in force in England are incorporated by territory legislation into that territory’s law.56 Decisions of United Kingdom courts that interpret and apply such statutes should, logically, be regarded as authoritative in the territory concerned as well as in the United Kingdom. But there is an important qualification. The laws of territories that incorporate the common law, rules of equity and statutes in force in England routinely subject such incorporation to local circumstances and to local inconsistent legislation. The decisions of United Kingdom courts, arrived at in the circumstances of the relevant United Kingdom jurisdiction, must in principle be qualified in the same way. Depending on the circumstances, this would allow the territory courts room to interpret and apply the common law, rules of equity and such statutes locally and autonomously, and in doing so to treat United Kingdom court decisions as persuasive authorities. The second situation is where a territory law incorporates statutes in force in England at a prescribed date.57 Decisions of United Kingdom courts interpreting and applying such statutes before the prescribed date should logically be treated as forming part of such incorporation. The same applies to United Kingdom statutes incorporated specifically, taking the date of incorporation as the equivalent prescribed date.58 Again, this is subject to the qualifications on incorporation imposed by the territory law in question. By contrast, there would appear to be no reason in principle why decisions of United Kingdom courts interpreting such statutes after the prescribed date should be treated as more than persuasive authorities. Once incorporated, such statutes form part of the law of the territory by virtue of a territory legislative act and, within the territory, are for the territory courts to interpret and apply autonomously. The same must apply, even more so, to territory legislation which is in similar terms to a United Kingdom statute but which does not amount to an incorporation of the equivalent United Kingdom statute.59 The third situation concerns the extension to an overseas territory of an Act of the United Kingdom Parliament by virtue of its own terms. The position here is fundamentally different, because the Act forms part of the law both of the United Kingdom and of the territory or territories to which it extends. As legislation applying principally to the United Kingdom, the decisions of the United Kingdom courts interpreting and applying such an Act must be treated as authoritative throughout the territories to which it extends. It would make no sense, for example, if the British Nationality Act 1981—which extends to the United Kingdom, the Channel Islands, the Isle of Man and all British overseas territories—were to be interpreted and applied differently in each jurisdiction to which it extends. The constitutions and ordinary laws of the overseas territories may make express provision regarding the effect of decisions of United Kingdom courts. The 56 57 58 59

See Pitcairn example described on pp 139–40 above. See Bermuda example described on p 139 above. See Gibraltar example described on p 139 above. Nadarajan Chettiar v Walauwa Mahatmee [1950] AC 481 (PC).

148 Sources of Law Constitution of the Falkland Islands60 provides that in determining any question arising in connection with the interpretation or application of its fundamental rights provisions, every court: shall take into account any ... judgment, decision or declaration of a superior court in the United Kingdom on the interpretation or application of the [European Convention on Human Rights], whenever made or given, so far as, in the opinion of the court, it is relevant to the proceedings in which that question has arisen.

A ‘superior court of the United Kingdom’ is defined as the High Court or the Court of Appeal in England, the High Court of Justiciary or the Court of Session in Scotland, the High Court or the Court of Appeal in Northern Ireland, the House of Lords, and the Judicial Committee of the Privy Council.61 The words ‘take into account’ clearly indicate something short of binding effect. The Pitcairn Constitution makes similar provision.62

D. Decisions of Other Courts There is nothing to prevent the courts of overseas territories, any more than United Kingdom courts, from seeking assistance from, and treating as persuasive authorities, the decisions of courts of other jurisdictions, especially those in other common law countries in the Commonwealth, Ireland and the United States of America. Indeed, for Bermuda and the five Caribbean territories it may reasonably be expected that their courts would look as readily to the independent Caribbean, Canada and the United States as to the United Kingdom. The provisions of the Falkland Islands Constitution cited above also require the local courts to ‘take into account’ decisions of the European Court of Human Rights in determining fundamental rights questions arising before them.63 The Pitcairn and Gibraltar constitutions do the same.64 Given their considerable integration in the European Union, special provision is made in the laws of Gibraltar and the Sovereign Base Areas to give effect to decisions of the European Court of Justice. In Gibraltar, section 6(1) of the European Communities Act 197265 provides: For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court [of Justice], be

60

SI 2008/2846. See s 19(6)(a) and (c). There is no reference to the Supreme Court, because this Constitution was made before its establishment, but the reference to the House of Lords can be expected to be interpreted as including a reference to the Supreme Court. 62 Pitcairn Constitution s 25(13)(e) and (15). In this instance, there is a reference to the Supreme Court as well as the House of Lords, this Constitution having been made after the establishment of the Supreme Court. 63 See s 19(6)(a). This broadly reflects the Human Rights Act 1998 (1998 c 42) s 2(1). 64 Pitcairn Constitution s 25(13)(a); Gibraltar Constitution s 18(8)(a). 65 Laws of Gibraltar, 1972-18. In the Sovereign Base Areas, almost identical provision is made in s 6(1) of the European Community (Protocol Measures) Ordinance 2004 (Ordinance 11 of 2004). These provisions reflect the (United Kingdom) European Communities Act 1972 (1972 c 68) s 3(1). 61

Existing Laws Provisions in Constitution Orders 149 for determination as such in accordance with the principles laid down by, and any relevant decision of, the European Court [of Justice] or any court attached thereto).

EXISTING LAWS PROVISIONS IN CONSTITUTION ORDERS

An important matter relating to the laws in force in the overseas territories is the provision routinely made in Orders in Council providing new constitutions for the territories concerning existing laws. These provisions are sometimes overlooked, but need to be borne constantly in mind because they have an effect on the interpretation and application of territory laws. Although the provisions in question are not worded in identical terms, their effect is substantially the same. A modern example is section 5 of the Cayman Islands Constitution Order 2009,66 which provides: (1) Subject to this section, the existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution and shall be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution. (2) The Legislature may by law make such amendments to any existing law as appear to it to be necessary or expedient for bringing that law into conformity with the Constitution or otherwise for giving effect to the Constitution; and any existing law shall have effect accordingly from such day, not being earlier than the appointed day, as may be specified in the law made by the Legislature. (3) In this section ‘existing laws’ means laws and instruments (other than Acts of Parliament of the United Kingdom and instruments made under them) having effect as part of the law of the Cayman Islands immediately before the appointed day.

By virtue of section 2, ‘the appointed day’ means the date of commencement of the Order, and ‘the Constitution’ means the new Constitution established by the Order. Subsection (1) has two effects. The first is to save existing laws in force in the Cayman Islands. As section 3 of the Order revokes the previous constitution Order, under which the existing laws had been made (or saved by a similar provision), it might otherwise be argued that those existing laws lost their force upon such revocation. The laws saved are not necessarily saved permanently. They continue to have effect as if made under the new Constitution. They may therefore be amended or repealed by the appropriate legislative authority in accordance with the new Constitution. The second effect is to require the existing laws to be construed with any changes necessary to make them conform to the new Constitution. Plainly, the first effect is a transitional precautionary measure, but the second is a continuing obligation. The need for such a continuing obligation may be reduced if the Cayman Islands Legislature enacts amending legislation as envisaged in subsection (2). But if it does not do so, or if it does so incompletely, the obligation continues as a qualification to all existing laws which the courts must implement to the best of their ability. The second limb of subsection (1) may therefore be seen as a permanent safeguard of the supremacy of the new Constitution over any existing law. 66

SI 2009/1379.

150 Sources of Law The definition of ‘existing laws’ in subsection (3) excludes Acts of Parliament and instruments made under them. There is no legal need to save them because their force does not depend on the previous (revoked) constitution Order, and there is no power to require their construction in conformity with the new Constitution. All Orders in Council providing new constitutions for the territories contain equivalent provisions.67

67 Anguilla Constitution Order 1982 (SI 1982/334) s 6; Bermuda Constitution Order 1968 (SI 1968/182) s 5; British Antarctic Territory Order 1989 (SI 1989/842) s 17; British Indian Ocean Territory (Constitution) Order 2004, s 3(2); Falkland Islands Constitution Order 2008 (SI 2008/2846) s 5; Gibraltar Constitution Order 2006, Annex 2, s 2; Montserrat Constitution Order 2010 (SI 2010/2474) s 117; Pitcairn Constitution Order 2010 (SI 2010/244) s 5; St Helena, Ascension and Tristan da Cunha Constitution Order 2009 (SI 2009/1751) s 5; South Georgia and South Sandwich Islands Order 1985 (SI 1985/449) s 12; Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 (SI 1960/1369) s 5; Turks and Caicos Islands Constitution Order 2006 (SI 2006/1913) s 5; Virgin Islands Constitution Order 2007 (SI 2007/1678) s 115.

9 Human Rights in the Territories

T

HE WHITE PAPER entitled ‘Partnership for Progress and Prosperity: Britain and the Overseas Territories’1 states that the United Kingdom’s objective is that those territories which choose to remain British should abide by the same basic standards of human rights, openness and good government as British people expect of their Government. The Paper goes on to say that territory legislation should comply with the same international obligations to which Britain is subject, such as the European Convention on Human Rights2 (‘the Convention’) and the United Nations International Covenant on Civil and Political Rights3 (‘the Covenant’). The White Paper therefore set the standard to which the United Kingdom aspires in the field of human rights for the overseas territories, and to which it is hoped that the territories themselves aspire. In the White Paper the British Government stated that there were three human rights issues in particular on which reform was necessary in some territories. These were judicial corporal punishment, which in 1999 remained on the statute books of two overseas territories,4 but which has since been abolished; capital punishment for murder, which at that time was still available to the courts of Bermuda, but which was subsequently abolished by the Bermuda legislature, and for treason and piracy which was available in several territories but which has also since been abolished; and the decriminalisation of homosexual acts between consenting adult males in private, which is considered further later in this chapter. The Human Rights Act 19985 does not extend to the overseas territories as part of their law.6 Instead, human rights protection is provided for in each territory’s law, whether by Order in Council or local legislation. Indeed, the constitutions of six territories had included enforceable fundamental rights provisions for many years before the enactment of the Human Rights Act in the United Kingdom.7 When the United Kingdom Government entered into constitutional review negotiations with several overseas territories following the White Paper, the United Kingdom’s position was that it would not agree to a new territory constitution which did not contain a fundamental rights chapter, and its objective was to ensure 1

Cm 4264. UKTS No 71 (1953); Cmd 8969. 3 UKTS No 6 (1977); Cmnd 6702. 4 The Virgin Islands and Bermuda. 5 1998 c 42. 6 R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529 (HL); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL). 7 Anguilla, Bermuda, the Falkland Islands, Gibraltar, Montserrat and the Turks and Caicos Islands. 2

152 Human Rights in the Territories that any new or updated chapter should give effect to the Convention and the Covenant to the extent that constitutional legislation was considered necessary. Therefore, the new constitutions of the Virgin Islands, the Cayman Islands, St Helena, Ascension and Tristan da Cunha, and Pitcairn contain for the first time a fundamental rights chapter, and the new constitutions of the Falkland Islands, the Turks and Caicos Islands, Gibraltar, and Montserrat contain an updated chapter. All of these chapters meet the United Kingdom’s stated objective, and some in fact go beyond it, including additional rights, such as the right to an environment that is generally not harmful to one’s health or wellbeing, as provided for in the Virgin Islands Constitution.8 In the case of the Cayman Islands, the fundamental rights chapter, which is called the Bill of Rights, Freedoms and Responsibilities, will not come into force until three years after the entry into force of the new Constitution on 6 November 2009, and the provisions on the segregation of unconvicted from convicted prisoners and juvenile prisoners from adult prisoners will not take effect until four years after the entry into force of the Constitution.9 These delays were intended to allow the necessary preparations for the introduction of constitutionally enshrined fundamental rights in the territory. CONSTITUTIONAL HUMAN RIGHTS PROVISIONS

In all of the new constitutions brought into force since 2006, and in most of the older constitutions, the fundamental rights chapter appears at the beginning. This is intended to highlight it and to reflect the importance which is attached by the territory and the United Kingdom Government to the rights it contains. It is not by chance that the fundamental rights and freedoms of the individual are enshrined in the constitution and are not simply set down in a law passed by the local legislature. Having these most basic of rights in the constitution ensures that they cannot be interfered with, weakened or withdrawn by the territory politicians of the day, thus securing them without threat for the territory’s people. It also means that all laws passed by the local legislature have to be in conformity with the constitution’s fundamental rights chapter.10 However, having a fundamental rights chapter in the constitution does not prevent the local legislature from passing local human rights legislation, as was done in Bermuda,11 to the extent that it does not conflict with the provisions of the constitution.

A. Older Fundamental Rights Chapters (pre-2006) The Constitution of Bermuda,12 which is the oldest amongst the territories’ constitutions, contains a fundamental rights chapter that has remained substantially 8

SI 2007/1678 s 29. See Cayman Islands Constitution Order 2009 (SI 2009/1379) s 4(2). 10 See further pp 167–68 below. 11 Human Rights Act 1981 (Laws of Bermuda (1989 Revision), Title 2, Item 23). See also Human Rights Ordinance (Laws of the Sovereign Base Areas, Ordinance 9 of 2004). 12 SI 1968/182, as amended by SI 1968/463, 1968/726, 1973/233, 1979/452, 1979/1310, 1989/151, 2001/2579 and 2003/456. 9

Constitutional Human Rights Provisions 153 unchanged since that constitution came into force in 1968. Consequently it is not as comprehensive as some of those in the most recent constitutions.13 The same is true of the fundamental rights chapter of the Constitution of Anguilla.14 Both of these chapters take the more old-fashioned approach favoured by Commonwealth drafters from the 1960s, when fundamental rights chapters were first included in constitutions, whereby the Convention rights were not simply transposed into the constitution, but were elaborated upon there. This had the result that some of the rights went further than the Convention, for example the prohibition of discrimination, where although the provision was often not open-ended and generally narrower than in the Convention,15 it was usually a free-standing provision not tied to the enjoyment of the other rights in the constitution in the same way that Article 14 of the Convention is tied to the other Convention rights. However, some of the rights in the Convention, such as the prohibition of torture, appear in almost identical form in these older constitutions. In addition, these two constitutions do not set out the full range of Convention rights. In particular, they do not provide the full right to respect for private and family life found in Article 8 of the Convention and in the more recent fundamental rights chapters in territory constitutions. Instead, both constitutions contain a more limited provision, referred to in the Anguilla Constitution as ‘Protection from arbitrary search and entry’16 and in the Bermuda Constitution as ‘Protection for privacy of home and other property’,17 which both provide that ‘[e]xcept with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises’. Both these provisions contain provisos, although not in identical terms. Interestingly the Constitution of Anguilla does provide in its section 1, which is an introduction to the fundamental rights chapter setting out generally the rights to which every person in Anguilla is entitled, that a person is entitled to ‘respect for his private and family life’. Section 1 makes clear that the subsequent provisions of the chapter will have effect for the purpose of affording protection to the rights mentioned in that section, subject to the limitations of that protection contained in those subsequent provisions.18 The right to private and family life is, however, not mentioned later in the chapter as one of the substantive rights. This construction is ambiguous at best, but there is a strong argument that the constitution as it currently stands does not provide the right to respect for private and family life. An introductory provision such as section 119 does not confer any separate and independent rights, the enforceable rights being those set out in

13

Those dating from 2006 onwards. SI 1982/334, as amended by SI 1983/1108 and 1990/587. 15 See the Bermuda Constitution s 12; Anguilla Constitution s 13. 16 Anguilla Constitution s 8. 17 Bermuda Constitution s 7. 18 Such limitations are not to be interpreted expansively: see Attorney General v Ryan [1980] AC 718 (PC). 19 Which is to be found in many other territory constitutions: see eg Bermuda Constitution s 1; Virgin Islands Constitution s 9; Falkland Islands Constitution s 1. As to the legal nature of such introductory provisions, see Grape Bay Ltd v Attorney General [2000] 1 WLR 574 (PC), and authorities there cited. 14

154 Human Rights in the Territories the subsequent provisions.20 For clarity, this kind of ambiguity was dealt with when the existing fundamental rights chapters were being reviewed. There are some other aspects of the older chapters which were the subject of discussion during constitutional review talks and which resulted in a less restrictive or updated approach, more closely in line with the Convention. Two examples of these are, firstly, in relation to the right to life and, secondly, in relation to freedom of movement. In relation to the former, the traditional version of the provision states that a person shall not be regarded as having been deprived of his life in contravention of the section if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable for the defence of property. This justification seems to have been based on the common law position. But modern English case law shows that it is not an acceptable defence to kill someone in defence of property.21 Also, the equivalent Convention provision, Article 2, does not contain this exception to the right to life and in relation to all the exceptions it uses the higher threshold of force which is ‘no more than absolutely necessary’ rather than ‘reasonably justifiable’. In the most recent constitutions the right to life provision has been drafted to reflect the position under the current English law and to bring it into line with the requirements of the Convention. As regards the second example, the older constitutions have a very broad exception to the right to freedom of movement for certain categories of persons, in particular public officers and persons who do not belong to the territory. It is questionable whether these would now be found to be reasonably justifiable in a democratic society because of their sweeping nature and, even though Protocol No 4 to the Convention has not been ratified by the United Kingdom or extended to any territory, it was felt that the provision should be drafted in a more measured way that would be more likely to be compatible with the Convention and Articles 12 and 13 of the Covenant. This is the approach taken in the more recent equivalent provisions. 1. Bermuda Human Rights Act 1981 The Bermuda Human Rights Act 1981,22 which supplements the fundamental rights chapter in the Bermuda Constitution but does not form part of it, is under review by the Bermudian authorities. As it stands the Act provides the legal basis for the establishment of the Bermuda Human Rights Commission,23 a matter on which the Constitution is silent, and makes discrimination unlawful in several situations. It prohibits discrimination in relation to public notices, disposal of premises, and the provision of goods, facilities and services. It also prohibits discrimination in relation to employment and discriminatory covenants, and discrimination by organisations, sexual harassment, racial incitement and the publication of racial material. The Act goes further than the Constitution by prohibiting discrimination by any person, not

20 Halsbury’s Laws of England, vol 13, 5th edn (London, LexisNexis, 2009) para 850; CampbellRodriques v Attorney General of Jamaica [2007] UKPC 65, para 12. 21 Martin v R [2001] EWCA 2245. 22 Laws of Bermuda (1989 Revision), Title 2, Item 23. 23 See further pp 170–71 below on Human Rights Commissions.

Constitutional Human Rights Provisions 155 just by public officials, and by having more grounds of discrimination than in the Constitution, such as disability, marital status and sex. While this Act therefore goes some way towards broadening the constitutional non-discrimination provision, the grounds of discrimination it contains are finite and, therefore, it still falls short of implementing the full effect of Article 14 of the Convention in Bermuda law in respect of the other Convention rights. Even the combined effect of the Act and the constitutional non-discrimination provision does not provide the same amount of protection for the individual as the Convention in every respect, for example where a person is being discriminated against on grounds of sexual orientation or language in respect of a Convention right.

B. Modern Fundamental Rights Chapters Since 2006 new constitutions have been agreed with eight overseas territories and brought into force as part of the constitutional review process. All of these contain fundamental rights chapters. The eight territories are: the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn, St Helena, Ascension and Tristan da Cunha, the Turks and Caicos Islands and the Virgin Islands. In reflecting provisions of the Convention and the Covenant, these chapters go further than the United Kingdom Human Rights Act 1998, which incorporates only the rights set out in the Convention and its Protocol No 1.24 But some chapters go even further and include additional rights or protections, such as in the Virgin Islands,25 Cayman Islands,26 Pitcairn27 and St Helena, Ascension and Tristan da Cunha constitutions.28 All of the chapters dating from 2006 onwards include provisions to give effect to the rights contained in Articles 2 to 14 of the Convention. In addition, most of them contain provisions on the right to education, drawn from Protocol No 1,29 the protection of freedom of movement, drawn from Articles 12 and 13 of the Covenant, and the right of prisoners to humane treatment, reflecting Article 10 of the Covenant. They also contain provisions on enforcement and remedies, which are discussed later in this chapter. Some of these provisions are worded in almost identical terms to the Convention or Covenant, and others are an elaboration of their provisions intended to have like effect. The drafting was the result of a process of negotiation, and the wording of each provision was accepted so long as it was deemed to give proper effect in domestic law to the corresponding Convention or Covenant provision. For those to whom it may seem odd not simply to reproduce the Convention provisions in the constitution, it has to be borne in mind that the vast majority of the territories concerned are situated outside Europe, 24

UKTS No 46 (1954); Cmd 9221. See s 29 on environmental protection. 26 See ss 17, 18 and 19 on protection of children, the environment and lawful administrative action. 27 SI 2010/244. See ss 3, 4, 16, 19 and 20 on physical and mental integrity, human dignity, children’s rights, environmental protection and just administrative action. 28 SI 2009/1751. See ss 14, 130 and 196 on protection of spouses’ and children’s rights. 29 As well as Article 13(2)(a) of the International Covenant on Economic, Social and Cultural Rights: UKTS No 6 (1977); Cmnd 6702. 25

156 Human Rights in the Territories and consequently there are often other influences and models30 which they wish to take into account when considering how fundamental rights provisions should be framed. However, the ultimate intention was to enable compliance through the territory courts with obligations under the Convention and the Covenant as they apply to the territory concerned. While several provisions in the fundamental rights chapters are largely uniform, such as the right to life and protection from inhuman treatment, some caused greater debate and discussion than others, although in each case the result appears to be satisfactory. The most controversial provision for each of the Caribbean territories is the right to marry. This is not because those territories are opposed to the institution of marriage—quite the reverse—but because they are unanimously opposed to same-sex marriages and marriages involving a transsexual marrying a person who is of the birth sex of the transsexual. To date the case law of the European Court of Human Rights has confirmed that the right to marry guaranteed by Article 12 of the Convention refers to a traditional marriage between two persons of opposite biological sex.31 And while the United Kingdom Parliament has legislated for same sex civil partnerships, same-sex marriage is not (yet) permitted in the United Kingdom.32 Despite the reference in Article 12 of the Convention to national law governing the exercise of the right, that wording does not, in the view of some territories, provide a clear enough steer on this issue, and therefore additional wording was agreed during the negotiations. For the Virgin Islands the solution comes with the wording: ‘Every man and woman of a marriageable age has the right to marry and found a family in accordance with laws enacted by the Legislature’,33 and for the Cayman Islands with: ‘Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family’.34 The Turks and Caicos Islands accepted the more straightforward formulation similar to the other, non-Caribbean, territories: ‘Every man and woman of marriageable age (as determined by or under any law) has the right to marry and found a family’.35 Several constitutions also provide for equal rights and responsibilities of spouses as regards their children, both during marriage and on and after any dissolution of the marriage,36 which goes beyond Article 12 of the Convention but reflects Article 23(4) of the Covenant. The right to marry was not included in the older constitutions, including those of Bermuda and Anguilla. It is therefore a significant development that this right is included in all the new constitutions.

30

Eg the fundamental rights chapter of the South African Constitution. See K Reid, A Practitioner’s Guide to the European Convention on Human Rights, 3rd edn (London, Sweet and Maxwell, 2009) 431, IIB-254, and, most recently, Application 30141/04 Schalk and Kopf v Austria (judgment delivered on 24 June 2010). 32 Civil Partnership Act 2004 (2004 c 33). 33 Virgin Islands Constitution s 20(1). 34 Cayman Islands Constitution s 14(1). For a similar formulation, see Montserrat Constitution (SI 2010/2474) s 10(1). 35 Turks and Caicos Islands Constitution s 9(1). 36 See eg Turks and Caicos Islands Constitution s 9(4). 31

Constitutional Human Rights Provisions 157 The right to education also caused considerable debate during negotiations with some territories, mainly because of the financial implications for the territory Government of guaranteeing the right in the terms set down in the International Covenant on Economic, Social and Cultural Rights and in the Convention on the Rights of the Child37 whereby primary education must be available free to all school age children. In the event, the provision, which does not appear in the constitutions of Bermuda and Anguilla, does appear in most of the new constitutions, but not in a standard form. The Montserrat Constitution guarantees the right to free primary and secondary education, while the Turks and Caicos Islands, St Helena, Ascension and Tristan da Cunha, the Falkland Islands, Pitcairn and the Virgin Islands accepted the standard right to free primary education.38 However, the Gibraltar Constitution does not guarantee the right to free education, but instead protects the freedom to establish privately funded schools,39 and the Cayman Islands Constitution merely obliges the Cayman Islands Government to seek reasonably to achieve the progressive realisation, within available resources, of providing every child with free primary and secondary education.40 Some territories accepting this right were concerned about the interaction of the right to free education with the right to freedom of conscience and religion because of their wish to teach Christianity in publicly funded schools, so as well as being subject to the normal qualifications, a number of the right to education provisions state that they are without prejudice to the provision on the right to freedom of conscience and religion. This was to make clear that parents are free to choose to have their child privately educated in a school which teaches the religion of their choice, but that there is no requirement on the territory Government to provide free education in religions other than the one that is taught in government-funded schools.41 A few constitutions, within the section securing the right to a fair trial, provide for the right to trial by jury in serious cases before the territory’s superior court of first instance.42 No such right exists in the Convention or Covenant, and the European Commission of Human Rights has stated that although the right to a jury trial may be one element in establishing a fair trial it is not a requirement of a fair trial.43 In R (Misick) v Secretary of State for Foreign and Commonwealth Affairs,44 the Administrative Court upheld as lawful the suspension, by Order in Council under the West Indies Act 1962,45 of the right to trial by jury in the Supreme Court of the

37

UKTS No 44 (1992); Cm 1976. Montserrat Constitution s 12(2); Turks and Caicos Islands Constitution s 11(2); St Helena, Ascension and Tristan da Cunha Constitution ss 16(2), 132(2) and 198(2); Falkland Islands Constitution s 12(2); Pitcairn Constitution s 17(1); Virgin Islands Constitution s 22(2). 39 Gibraltar Constitution (SI 2006, III, p 11503) s 12. 40 Cayman Islands Constitution s 20(2). 41 See eg Virgin Islands Constitution ss 22(1) and (4) and 21(3). 42 Bermuda Constitution s 6(2)(g); Falkland Islands Constitution s 6(2)(g); Virgin Islands Constitution s 16(2)(g). 43 Application 8299/78 X and Y v Ireland; Application 14739/89 Callaghan v United Kingdom. See also Reid, A Practitioner’s Guide, n 31 above, 143. 44 R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1039 (Admin), upheld by the Court of Appeal [2009] EWCA Civ 1549. 45 1962 c 19. The Order was SI 2009/701. 38

158 Human Rights in the Territories Turks and Caicos Islands guaranteed by the constitution of that territory, following the recommendation of a Commission of Inquiry. While trial by jury is regarded by many under the common law system as sacrosanct, it must also be recognised that the overseas territories, particularly because of their size and the small number of people eligible to sit on juries, present special problems when it comes to establishing juries. The issue is not as straightforward as it would be in a place the size of the United Kingdom where trials can be moved to another location to avoid issues such as intimidation of jurors. In general, it is recognised by the United Kingdom Government and increasingly the territory Governments that as serious crime increases in the territories, this is a matter which requires attention. After much deliberation, the Cayman Islands, recognising the practical difficulties of jury trials in certain cases, in particular those involving drugrelated gun crime, agreed that it should not be included in their new Constitution. Montserrat, faced with the problem of running jury trials in such a tiny jurisdiction, agreed that in its new Constitution the right is subject to local legislation. Therefore, no such right now exists in the new constitutions of the Cayman Islands, Gibraltar, Pitcairn, St Helena, Ascension and Tristan da Cunha, and the Turks and Caicos Islands, and in Montserrat the right is qualified.46 This does not mean that jury trials cannot take place in these territories. But there is no constitutionally guaranteed right to a trial by jury, thus leaving the local legislature the flexibility to decide whether there should be some other mode of trial where the interests of justice so require. One respect in which all of the recent chapters, except Gibraltar’s, go beyond the Convention is through the inclusion of a provision on the protection of the right of prisoners to humane treatment. This right, which has its origin in Article 10 of the Covenant, is not one that was traditionally contained in constitutions. Because of the small size of territories’ prisons and the increasing prison populations, housing prisoners is in itself a challenge and a significant financial burden for the territory authorities, and one which is added to by the requirement under the Covenant to segregate convicted from unconvicted prisoners and adult from juvenile prisoners, and also the need to segregate female from male prisoners. It was agreed between the United Kingdom and most territories that, as a minimum, the basic right of prisoners to be treated with humanity and with respect for the inherent dignity of the human person should be included in the constitution. This basic right can be found in the Falkland Islands Constitution.47 In all the other recent constitutions containing this provision the requirement to segregate juvenile from adult prisoners and convicted from unconvicted prisoners is included over and above the basic right.48 One important provision contained in all of the chapters is that on protection from discrimination. In the Convention the right not to be discriminated against is tied to the other Convention rights, which can be seen through the use of the words ‘[t]he enjoyment of the rights and freedoms set forth in this Convention shall be

46 47 48

Montserrat Constitution s 7(2)(g). Falkland Islands Constitution s 7. See eg Virgin Islands Constitution s 17.

Constitutional Human Rights Provisions 159 secured without discrimination ...’.49 With the exception of the Cayman Islands,50 where the non-discrimination provisions follow the Convention format in terms of content and effect, in all territory constitutions with a fundamental rights chapter there is a free-standing right not to be discriminated against.51 This is an important difference from the Convention, because pursuant to these free-standing provisions a person has the right not to be discriminated against by any law or by any person acting under a law or in the performance of the functions of any public office or public authority generally, and not just in relation to the other rights set out in the chapter. All of the provisions contain exceptions to what constitutes discriminatory action, but these are deliberately narrow with the intention of keeping them to what should be acceptable under the Convention, having regard to the requirement that different treatment must be capable of objective and reasonable justification and be within the margin of appreciation available to the government. Another way in which the non-discrimination provisions of some of the territories go beyond the Convention is that they are not limited to prohibiting discriminatory laws or discrimination by public officials and authorities, but also prohibit certain types of horizontal discrimination, that is discrimination between private individuals. Such a provision prohibits discrimination by anyone in respect of access to specified places to which the public have access such as shops, hotels and restaurants.52 The definition of ‘discriminatory’ differs between the constitutions, and the result is that even among the free-standing provisions, some offer greater protection from discrimination than others. The widest protection is probably to be found in section 26(1)(a) of the Virgin Islands Constitution where, as well as there being a free-standing non-discrimination provision, the definition of ‘discriminatory’ is open-ended in the same way as Article 14 of the Convention in that it sets out a list of grounds opening with the words ‘such as’ and concluding with ‘birth or other status’. Although the list as drafted would import grounds or statuses which are not specifically mentioned in the provision, section 26(1)(a) sets out a list of grounds which goes beyond the Article 14 list by including sexual orientation, ethnic origin, family relations, disability and age, as well as economic and marital status. The Falkland Islands and Montserrat have the Article 14 list of grounds with the addition of sexual orientation; Pitcairn and St Helena, Ascension and Tristan da Cunha add sexual orientation, age and disability to the Article 14 list; while the Turks and Caicos Islands opted for the Article 14 list without further emendation.53 The Gibraltar Constitution has an approach unique among the territories in that it has a list which differs from the Article 14 list (by adding caste, creed, political or other affiliation and place of origin to the grounds, but omitting association with

49

Art 14 ECHR. Cayman Islands Constitution s 16. 51 See eg Turks and Caicos Islands Constitution s 15. 52 See eg Turks and Caicos Islands Constitution s 15(7). The St Helena, Ascension and Tristan da Cunha Constitution also has this provision but qualifies it by requiring the proprietor of such a place to provide amenities and equipment facilitating the access of disabled persons only to the extent provided by law: see ss 21(5), 137(5) and 203(5). The Pitcairn Constitution makes equivalent provision: see s 23(5). 53 Falkland Islands Constitution s 16(3); Montserrat Constitution s 16(3); Pitcairn Constitution s 23(3); St Helena, Ascension and Tristan da Cunha Constitution ss 21(3), 137(3) and 203(3); Turks and Caicos Islands Constitution s 15(3). 50

160 Human Rights in the Territories a national minority, language, religion and national origin) and is not specifically open-ended except in relation to status, but then adds the words ‘or such other grounds as the European Court of Human Rights may, from time to time, determine to be discriminatory’.54 This would seem to have the effect not only of including the Article 14 grounds which have been omitted from the list, but potentially of adding an unlimited number of other grounds depending upon how the case law of the Court develops. One issue relating to discrimination which has been a long-running source of friction between a number of territories55 and the United Kingdom Government is the question of homosexual activity. In the 1999 White Paper on Britain and the Overseas Territories the United Kingdom raised with the territories the decriminalisation of homosexual acts between consenting adults in private.56 The United Kingdom had put its own house in order in 1967 in England and Wales and in 1981 in Scotland and, following the case of Dudgeon v United Kingdom57 in the European Court of Human Rights, in 1982 in Northern Ireland when it decriminalised homosexual acts between consenting parties of at least 21 years of age. The age of consent was subsequently lowered to 18 years in 1994. It was clear that the position in the territories, where territory Governments had taken no steps to decriminalise such homosexual acts, was contrary to the Convention, and the British Government, which would ultimately be held responsible for any breach of the Convention found in relation to an overseas territory Government, wanted the law brought into line. Some territories decriminalised such homosexual acts by local legislation, but the Caribbean territories refused to do so, making it clear that if London wanted the law changed they would have to take steps by Order in Council to do it. Thus followed one of the few examples in living memory of the United Kingdom legislating for a territory against the will of the territory Government.58 The Order59 decriminalised homosexual acts in private between two consenting parties of at least 18 years of age. It would seem fair to say that this action by the United Kingdom coloured relations with the territories for some time afterwards. DEROGATION FROM FUNDAMENTAL RIGHTS AND FREEDOMS UNDER EMERGENCY POWERS

The subject of emergency powers is dealt with in chapter ten below. However, as provisions relating to emergency powers appear in the fundamental rights chapters 54

Gibraltar Constitution s 14(3). In particular those in the Caribbean, Bermuda and Gibraltar. 56 The issue of concern related to male homosexual acts as it was these that were criminalised. As in the United Kingdom, the age of consent for sexual acts involving two females was the same as those involving a female and a male, so no issue of concern arose. It is not clear whether public decency laws were ever applied in a discriminatory manner to two females engaging in homosexual activities, but this was not highlighted as an issue of concern at the time by the British Government. 57 Dudgeon v United Kingdom Series A 45 (1982), [1982] 4 EHRR 149. 58 The other examples are the Caribbean Territories (Abolition of Death Penalty for Murder) Order 1991 (SI 1991/988) and the Order in Council suspending parts of the Constitution of the Turks and Caicos Islands: SI 2009/701. 59 Caribbean Territories (Criminal Law) Order 2000. This Order was not published among the prerogative instruments in the Statutory Instruments collection for 2000, but is accessible from the Privy Council Office. 55

Derogation from Fundamental Rights and Freedoms Under Emergency Powers 161 of territory constitutions, and as these provisions have an impact on the extent to which the rights under the chapters are applied, it is appropriate also to consider them in this chapter. The aspect of interest here is that each derogation provision provides that nothing done under the authority of any law shall, subject to certain exceptions, be held to be inconsistent with the provisions of the fundamental rights chapter to the extent that the law authorises the taking of certain measures during a period of emergency. These provisions do, however, differ in their details. The Convention, in Article 15, provides for derogations from the obligations under the Convention in ‘time of emergency’, which is defined as ‘time of war, or other public emergency threatening the life of the nation’. Derogations from the obligations under the Convention are permitted ‘where strictly required to deal with the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law’. Even in time of emergency no derogation is permitted under the Convention from Article 2 (right to life), except in respect of deaths resulting from lawful acts of war, Article 3 (prohibition of torture or inhuman and degrading treatment), Article 4(1) (prohibition on slavery or servitude) or Article 7 (no punishment without law). It is within this framework that the derogation provisions under the constitutions must operate. The Constitution of Anguilla has the narrowest derogation provision60 found in any of the fundamental rights chapters. It states that nothing done under the authority of any law shall be held to be inconsistent with section 3 (right to personal liberty) or section 13 (protection from discrimination) to the extent that the law authorises the taking of any measures during a period of public emergency that are reasonably justifiable for dealing with the situation that exists during that period. This provision is much more limited than the corresponding Convention provision which allows derogations from the wider range of Articles referred to above. This could have the effect of severely limiting the action which could be taken to deal with an emergency in Anguilla compared to that which it would be possible to take under the Convention. On the other hand the test which has to be applied under the Constitution before the derogations are permitted is one of ‘reasonable justification’, which is a lower threshold than the Article 15 one of ‘strictly required by the exigencies of the situation’. This approach is common among the territory constitutions, and needs to be carefully handled to avoid a situation where emergency action is taken that does not meet the Strasbourg standard, and therefore where an effective derogation under the Convention would not be possible and a breach of the Convention could be found in relation to the territory. Emergency powers are not frequently used in the territories, and when they have been in the last 25 years have related to natural disasters when the situation was extremely serious. Clearly the use of emergency powers in relation to the eruption of the volcano in Montserrat, which has rendered half of the island uninhabitable, met the requirements of Article 15. The terms in which the corresponding provision in the Bermuda fundamental rights chapter61 is framed are the same as in the Anguilla chapter, but the list of rights from which derogation is permitted is much broader, corresponding in effect

60 61

Anguilla Constitution s 14. Bermuda Constitution s 14(2).

162 Human Rights in the Territories to the Convention list except that derogation from the provisions prohibiting the trial of a person for a criminal offence for which he or she has been pardoned and the right to property is prohibited, which is not required under the Convention. The Falkland Islands and St Helena, Ascension and Tristan da Cunha Constitutions have provisions62 which are drafted in very similar terms, the main difference being that in the former no derogation is permitted from the whole of the section on slavery and forced labour whereas in the latter, derogation is only prohibited in respect of slavery, in line with the Convention. These two provisions are narrower than the corresponding Convention provision in that they prohibit derogation from the presumption of innocence, the rule on double jeopardy, the prohibition on retrial for a criminal offence where a person has been pardoned for that offence, and the right not to incriminate oneself at trial. The Pitcairn Constitution63 is drafted in similar terms, except that the provisions from which derogation is prohibited are limited to those in the Convention plus the rights to physical and mental integrity, human dignity and the presumption of innocence. Notably, while the St Helena, Ascension, Tristan da Cunha and Pitcairn provisions apply the standard in Article 15 of the Convention by providing that derogations are only permitted where the law authorises the taking of measures which are ‘strictly required for dealing with the situation that exists’ in the territory during the period of the public emergency, the Falkland Islands provision allows derogations where the measures in question are ‘reasonably justifiable’ for dealing with the situation, thus raising the issues discussed above. The Gibraltar Constitution takes a different approach in its derogation provision64 from most others, listing the sections of the fundamental rights chapter from which derogation is permitted, rather than those from which it is prohibited. But the result is that derogations are prohibited as in the Convention with the addition of a prohibition on derogation from any of the fair trial rights and the right to property, neither of which is required by the Convention. The Gibraltar provision applies the Strasbourg threshold of requiring that the regulation or law in question must only make provision, or authorise the doing of something, to the extent strictly required by the exigencies of the situation arising or existing during the period of emergency for the purpose of dealing with that situation. The Caribbean territories with new constitutions are a further illustration of the different approaches taken to prohibiting derogations in periods of emergency. What they have in common is that they all permit derogations where the law in question authorises the taking of measures which are ‘reasonably justifiable’ for dealing with the situation that exists in the territory during the period of public emergency. The Cayman Islands derogation provision65 is unique in prohibiting any derogation from the rights relating to the treatment of prisoners, meaning that even during an emergency the rules relating to segregation of juveniles from adults and convicted from unconvicted prisoners together with the general right of prisoners to be treated with humanity and respect for their inherent dignity may not be

62 Falkland Islands Constitution s 17; St Helena, Ascension and Tristan da Cunha Constitution ss 22, 138 and 204. 63 Pitcairn Constitution s 24(1). 64 Gibraltar Constitution s 17(1). 65 Cayman Islands Constitution s 21(5).

Detention Under Emergency Laws 163 derogated from. The other prohibitions from derogation follow the Convention except that they extend to the whole of the fair trial provision and to forced labour in addition to slavery. Montserrat and the Turks and Caicos Islands have identical provisions, prohibiting derogation from the right to life, protection from torture and inhuman and degrading treatment, slavery and forced labour, no punishment without law, double jeopardy, and the prohibition on retrial for a criminal offence where a person has been pardoned for that offence.66 The Virgin Islands approach is slightly different, prohibiting derogation from the right to life, protection from torture and inhuman and degrading treatment, slavery, the presumption of innocence, no punishment without law, double jeopardy, the right not to incriminate oneself at trial, and the prohibition on retrial for a criminal offence where a person has been pardoned for that offence.67 DETENTION UNDER EMERGENCY LAWS

Each of the fundamental rights chapters has provision relating to the protection of persons who have been detained under emergency laws, intended to ensure that detained persons are afforded proper human rights protection. The provisions vary, particularly in relation to the detail they contain and the timings of the right of the detained person to have his or her detention reviewed. Some go beyond what is required by the Convention and the Covenant. In general, they provide for a review of the detention and set up a quasi-judicial procedure whereby a detained person has the right to have his detention reviewed by an independent tribunal, presided over by a person appointed by the Chief Justice. That tribunal may make recommendations to the authority which ordered the detention concerning the necessity and expediency of continuing the person’s detention. These recommendations are, subject to a law providing otherwise, non-binding on that authority. The constitutions of the Falkland Islands,68 Cayman Islands,69 Montserrat70 and the Virgin Islands71 provide that the detention shall be reviewed not more than 30 days (one month in the case of the Falkland Islands) after its commencement and thereafter during the detention at intervals of not more than three months. The constitutions of Anguilla72 and St Helena, Ascension and Tristan da Cunha73 provide for review one month after commencement and thereafter at least every six months. All of these constitutions also have further detailed provisions on when a person is entitled to be informed of the grounds of detention in a language that he or she understands, which ranges from not more than two days in Montserrat to not more than seven days in the Falkland Islands and St Helena, Ascension and Tristan da Cunha; when details of the detention must be made public and gazetted, which

66 67 68 69 70 71 72 73

Montserrat Constitution s 18(9); Turks and Caicos Islands Constitution s 17(1). Virgin Islands Constitution s 27(5). Falkland Islands Constitution s 18. Cayman Islands Constitution s 22. Montserrat Constitution s 19. Virgin Islands Constitution s 28. Anguilla Constitution s 15. St Helena, Ascension and Tristan da Cunha ss 23, 139 and 205.

164 Human Rights in the Territories is not more than 10 days in Montserrat and the Virgin Islands and not more than 14 days in the rest; and legal representation and attendance at the hearings. In the Falkland Islands and St Helena, Ascension and Tristan da Cunha, due to difficulties associated with the remoteness of these territories, the constitutions entitle a detained person to have the grounds of detention explained in a language he or she understands, but the required written statement of the grounds may be provided in English only. The constitutions of the Turks and Caicos Islands,74 Bermuda,75 Gibraltar76 and Pitcairn77 provide for no automatic review after one month of the commencement of detention, or at regular intervals thereafter. Instead a detained person may request a review of the detention at any time, but where he or she has made such a request, no subsequent request may be made during the period of detention unless six months has expired from the making of the previous request. These constitutions do not set out any other rights to which the detained person is entitled. ENFORCEMENT OF PROTECTIVE PROVISIONS

Under all the fundamental rights chapters, if any person alleges that any of the provisions of the chapter has been, is being or is likely to be contravened in relation to him or her, then without prejudice to any other action with respect to the same matter which is available, the person may apply to the Supreme Court, or equivalent,78 for redress.79 The Supreme Court in each territory has original jurisdiction to hear and determine any such application, and to make such orders (and in some cases declarations) and issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the protective provisions contained in the chapter. It has been held that this includes an order for payment of compensation, that the court may fashion a new remedy if that would be necessary to give effective relief, and that historic common law doctrines restricting the liability of the Crown or its amenability to suit cannot stand in the way of effective protection of fundamental rights guaranteed in the constitution.80 But the Supreme Court must not,81 or may decline to,82 exercise these powers if it is satisfied that adequate means of redress are or have been available to the

74

Turks and Caicos Islands Constitution s 17(2) and (3). Bermuda Constitution s 14(7) and (8). 76 Gibraltar Constitution s 17(2) and (3). 77 Pitcairn Constitution s 24(2) and (3). 78 The Grand Court in the Cayman Islands and the High Court of the Eastern Caribbean Supreme Court in Anguilla, Montserrat and the Virgin Islands. 79 The enforcement provisions are set out in: Anguilla Constitution s 16; Bermuda Constitution s 15; Cayman Islands Constitution s 26; Falkland Islands Constitution s 19; Gibraltar Constitution s 16; Montserrat Constitution s 20; Pitcairn Constitution s 25; St Helena, Ascension and Tristan da Cunha Constitution ss 24, 140 and 206; Turks and Caicos Islands Constitution s 18; Virgin Islands Constitution s 31. 80 Maharaj v Attorney General of Trinidad and Tobago (No 2) [1979] AC 385 (PC); Societe United Docks v Government of Mauritius [1985] AC 585 (PC); Gairy v Attorney General of Grenada [2001] UKPC 30, [2002] 1 AC 167 (PC). 81 See eg Turks and Caicos Islands Constitution s 18(2). 82 See eg Virgin Islands Constitution s 31(3). 75

Enforcement of Protective Provisions 165 person concerned under any other law.83 In the case of a detained person, under the relevant provisions in most constitutions another person may allege a breach of the provisions in relation to the detained person.84 Except under the Gibraltar Constitution, the Supreme Court is also given original jurisdiction to determine any question arising in the case of any person which is referred to it from a subordinate court of the territory. In these lower courts, where any question arises in proceedings as to the contravention of any of the protective provisions of the chapter, that court is obliged to refer the question to the Supreme Court if any party to proceedings so requests unless, in its opinion, the raising of the question is merely frivolous or vexatious.85 The decision of the Supreme Court must then be acted upon by the lower court unless the point is appealed to the Court of Appeal or the Privy Council. A person has an automatic right of appeal to the Court of Appeal from any final determination of any application or question by the Supreme Court concerning any alleged contravention of a fundamental rights chapter. Thereafter, there is an automatic right of appeal to the Privy Council from a final determination of such an application or question by the Court of Appeal. However, there is no automatic right of appeal from the Supreme Court where that court has dismissed an application on the ground that it is frivolous or vexatious. Some of the enforcement provisions are more detailed than others. Uniquely among the constitutions those of St Helena, Ascension and Tristan da Cunha and Pitcairn provide that if the effect of a provision of the fundamental rights chapter is in issue in proceedings before the Supreme Court, the Court of Appeal or the Privy Council to which the Crown is not a party, the Attorney General may intervene, and the presiding judge must not hear and determine the proceedings until satisfied that the Attorney General has received notice of the proceedings and has had sufficient time to decide whether or not to intervene.86 Power is specifically given to the legislature under some of the provisions to confer on the Supreme Court such additional powers as may appear necessary and desirable to enable the Court more effectively to exercise the jurisdiction it has under the constitution for remedying breaches of the fundamental rights provisions.87 Most of the constitutions also authorise the legislature to legislate with respect to the practice and procedure of the Supreme Court in relation to the jurisdiction and powers conferred on it,88 of the Supreme Court and the Court of Appeal in relation to appeals from the Supreme Court or the Court of Appeal under the enforcement provision, and of other courts in the territory in relation to references 83 See further Halsbury’s Laws of England, vol 13, n 20 above, para 851, fn 5, and authorities there cited. 84 See eg St Helena, Ascension and Tristan da Cunha Constitution ss 24(1), 140(1) and 206(1); Falkland Islands Constitution s 19(1). 85 Except under the Pitcairn Constitution, where the lower court has discretion whether to refer a question to the Supreme Court: see s 25(7). 86 See St Helena, Ascension and Tristan da Cunha Constitution ss 24(8), 140(8) and 206(8); Pitcairn Constitution s 25(8). 87 See eg Montserrat Constitution s 20(5), and Pitcairn Constitution s 25(11) which refers to the Governor, who is the legislature for the territory. 88 The Gibraltar Constitution s 16(4), and Anguilla Constitution s 16(6), give this power to the Chief Justice along with the power to set time limits for making applications.

166 Human Rights in the Territories to the Supreme Court.89 The Cayman Islands Constitution90 states that proceedings under the enforcement provision must be commenced within one year of the decision or act that it is claimed breaches the Bill of Rights or from the date on which such decision or act could reasonably have been known to the person making the application, except that the Court may extend the time on the application of the person where it is of the opinion that to do so would be in the interests of justice. Other constitutions91 leave it to the local legislature to determine such time limits when dealing with the law on practice and procedure referred to above, or to the Chief Justice when making rules of court. Several of the enforcement provisions deal with damages,92 providing that the Supreme Court may, when it determines that one of the protective provisions of the chapter has been breached in relation to any person, order the award to that person of such damages as it considers just and appropriate or direct a court which made a reference to it to order the award of such damages as the referring court considers fair, within any limits that the Supreme Court declares. These provisions give effect to Article 13 of the Convention. Such a provision is sometimes stated to be without prejudice to the provision dealing with compensation for unlawful arrest or detention.93 Damages may not be awarded in respect of the making of any law (and in some cases the making under any such law of subordinate legislation94), but may be made in respect of anything done by any person95 acting in the performance of any public office or authority, or by virtue of any such law or subordinate legislation. As in other respects in relation to the enforcement of human rights, the Cayman Islands Constitution has a slightly different approach to damages from other constitutions, giving the court more guidance on when and how damages should be awarded. Section 27 provides that where the court finds that any decision or act of a public official is unlawful it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. But it then provides that no damages shall be awarded unless the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. In making a decision on damages, the court is bound to take into account all the circumstances of the case, including any other relief or remedies granted or orders made by that or any other court in relation to the act in question, and the consequences of any decision

89 The Constitution of St Helena, Ascension and Tristan da Cunha gives all of these powers and the power to set time limits to the Chief Justice or the President of the Court of Appeal, as the case requires, by rules of court: see ss 24(12), 140(12) and 206(12). Likewise the Pitcairn Constitution s 25(12). Even in the absence of supplementary legislation or rules of court, the substantive constitutional provisions create both a jurisdiction in the court and a right of access to it: Jaundoo v Attorney General of Guyana [1971] AC 972 (PC), 982. 90 Cayman Islands Constitution s 26(4). 91 See eg Constitutions of the Falkland Islands s 19(9), Bermuda s 15(6), and St Helena, Ascension and Tristan da Cunha ss 24(12), 140(12) and 206(12). 92 See eg Virgin Islands Constitution s 31(4)–(6). 93 See eg Falkland Islands Constitution s 19(3)(c). 94 See eg Virgin Islands Constitution s 31(5). 95 The Constitution of St Helena, Ascension and Tristan da Cunha also makes reference to anything done by any organ or officer of the executive or judicial branches of government: see ss 24(5), 140(5) and 206(5). Likewise the Pitcairn Constitution s 25(5).

Enforcement of Protective Provisions 167 of that or any other court in respect of the act. This reflects section 8(1) and (3) of the United Kingdom Human Rights Act 1998.96 The Judicial Committee of the Privy Council has in several recent cases addressed the approach a court should take in awarding damages in the exercise of its constitutional jurisdiction. In Durity v Attorney General of Trinidad and Tobago,97 Lord Hope (delivering the judgment of the Board) said:98 In most cases something more than a declaration that the Constitution has been infringed will be necessary. Compensation measured by the comparable common law measure of damages may be awarded if the person has suffered damage, but in principle this may not suffice as the fact that the right that has been violated was a constitutional right adds an extra dimension to the wrong. An additional award may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right that has been violated and to deter further breaches. As punishment in the strict sense is not its object, the expressions ‘punitive’, ‘aggravated’ or ‘exemplary’ damages are best avoided. The purpose of the award, whether it is made to redress the contravention or as relief, is to vindicate the right, not to punish the executive. Vindication involves an assertion that the right is a valuable one, as to whose enforcement the complainant herself has an interest: Inniss v Attorney General of St Christopher and Nevis [2008] UKPC 42, para 27.

Although it is not expressly stated in the relevant enforcement provisions or elsewhere in the constitutions, with the exception of the Grand Court in the Cayman Islands the Supreme Court of each of the territories has the authority, through its power to make orders and declarations for the purpose of enforcing the fundamental rights provisions, to strike down any local law which is incompatible with the fundamental rights chapter.99 The power of the local legislature to make laws for the territory is always stated to be subject to the constitution.100 Moreover, in those territories whose constitution is made under statutory powers,101 the effect of section 2 of the Colonial Laws Validity Act 1865102 is that any local law which is repugnant to the constitution, including one of its fundamental rights provisions, is void and inoperative to the extent of the repugnancy. By giving the Supreme Court such wide powers to enforce the fundamental rights chapters, the constitution gives the Court the power to find that any local law is incompatible with the constitution itself, including the fundamental rights chapter, and therefore that it is void to the extent of the incompatibility. There is a huge advantage to this approach in that it provides an instant remedy, for example by removing discriminatory legislation from the statute book. It goes further than the United Kingdom Human Rights Act 1998, which only permits a United Kingdom court to make a declaration of incompatibility thus leaving the offending Act in force until it is amended or repealed 96

1998 c 42. Durity v Attorney General of Trinidad and Tobago [2008] UKPC 59. See also Subiah v Attorney General of Trinidad and Tobago [2008] UKPC 47; Merson v Cartwright [2005] UKPC 38; Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2005] 1 AC 328 (PC). 98 Durity v Attorney General of Trinidad and Tobago, n 97 above, para 34. 99 The Grand Court of the Cayman Islands has the power, like the Supreme Court of all of the other territories, to find that a local law is incompatible with any provision of the constitution other than those of the Bill of Rights, and to the extent of the incompatibility is pro tanto invalid. 100 See eg Bermuda Constitution s 34; Gibraltar Constitution s 32. 101 All territories except Gibraltar and the British Indian Ocean Territory: see further ch 2 above. 102 1865 c 63. The Act is discussed in detail in ch 4 above. 97

168 Human Rights in the Territories by Parliament. But there is always the danger that the Supreme Court’s finding of invalidity could leave an awkward gap in the law which it could take some time for the local legislature to fill. The Judicial Committee of the Privy Council has held that, in relation to acts of a legislature, there is a presumption of constitutionality,103 that those parts of a constitution which protect fundamental rights and freedoms are to be given a construction which, though generous and purposive, is not distorted,104 and that the burden on a party seeking to prove invalidity is a heavy one.105 The presumption of constitutionality requires that, if it is possible to read statutory language as subject to an implied term which avoids conflict with constitutional limitations, the court should be very ready to make such an implication.106 Halsbury’s Laws of England points out that the cases in which the presumption of constitutionality has been held to exist concerned independent countries, but submits that it should in principle be equally applicable to the legislature of an overseas territory, ‘since its power is plenary and indeed sovereign within its limits’.107 This must be right. Unlike the other territories, the Constitution of the Cayman Islands takes the same approach as the United Kingdom Human Rights Act and does not permit the Cayman Islands courts to find primary local legislation invalid. Section 23(1) provides that if primary legislation108 is found to be incompatible with the Bill of Rights in any legal proceedings, the court must make a declaration recording that the legislation is incompatible with the relevant section or sections of the Bill and the nature of the incompatibility. Section 23(2) provides that a declaration of incompatibility shall not constitute repugnancy to the Order in Council containing the Constitution and shall not affect the continuation in force and operation of the primary legislation or the section or sections in question. The reference to ‘repugnancy’ in section 23(2) is there to ensure that section 2 of the Colonial Laws Validity Act 1865 is not activated, which it otherwise probably would if a provision were to be found by the court to be incompatible with the Constitution. This would in turn lead to the provision in question being void and inoperative. The intention is, as made clear by section 23(3), that it is for the Cayman Islands Legislature to decide how to remedy the incompatibility. The result of the application of section 23 is that a person may be left in a position where a local law is found by the court to be in breach of the Bill of Rights, but the law remains in force, leaving the person, while perhaps entitled to damages, in no better position legally until such time as the Legislative Assembly decides to change the law. The effectiveness of the remedy in the Cayman Islands is therefore liable to vary according to how the Legislature reacts to any findings of incompatibility by the court (as it does in the United Kingdom).

103 De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 (PC); Grant v R [2006] UKPC 2 para 15; [2007] 1 AC 1 (PC). 104 Campbell-Rodriques v Attorney General of Jamaica, n 20 above; Reyes v R [2002] UKPC 11 para 26; [2002] 2 AC 235. 105 Suratt v Attorney General of Trinidad and Tobago [2007] UKPC 55 para 45. 106 Hector v Attorney General of Antigua and Barbuda [1990] 2 AC 312 (PC), 319; Mootoo v Attorney General of Trinidad and Tobago [1979] 1 WLR 1334 (PC), 1338–39. 107 See Halsbury’s Laws of England, vol 13, n 20 above, para 850 and fn 15. 108 Defined as a Law enacted by the Legislature of the Cayman Islands: see s 28, read with the definition of ‘Legislature’ in s 124(1).

Enforcement of Protective Provisions 169 The Cayman Islands Constitution has another unique but interesting provision which relates to the duty of public officials. Section 24 provides that it is unlawful for a public official to make a decision or act in a way that is incompatible with the Bill of Rights unless he or she is required or authorised to do so by primary legislation. In that case the legislation is to be declared by the court to be incompatible with the Bill of Rights and the nature of the incompatibility specified. This action would signal to the Legislature that the law should be changed. A difficult situation would arise if the legislation in question were not changed soon after the finding of incompatibility, thus leaving the public officials in a situation where they would have no choice but to act in a way which they knew to be contrary to the Constitution. Perhaps curiously, section 25 requires primary or subordinate legislation, the compatibility of which with the Bill of Rights is unclear or ambiguous, so far as possible to be read and given effect to in a way which is compatible with the rights under the Bill. This does not apply where the legislation is clearly incompatible because the court has made a declaration to that effect. However, section 5(1) of the constitution Order,109 which requires laws existing at the date that the Constitution comes into force to be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution, seems to have the effect of requiring such a law which the court has found to be incompatible in the way envisaged by section 24 of the Constitution to be read, with such modifications as would cure the incompatibility, as being in conformity with the Constitution until such time as the Legislature changes that law. Thus the public official would not be forced knowingly to act contrary to the fundamental rights chapter. That does not, however, deal with the problem of an incompatible law enacted after the Constitution came into force, because section 5(1) of the Order does not apply to such a law. As stated at the outset of this chapter, one of the objectives in drafting new or updated fundamental rights chapters for territory constitutions was to bring them more closely into line with the Convention and the Covenant. One provision which is to be found only in the constitutions of the Falkland Islands,110 Gibraltar111 and Pitcairn112 which could assist with this is the requirement that, in determining any question in connection with the interpretation or application of the fundamental rights chapter, the court is obliged to take into account judgments, decisions, declarations and advisory opinions of the European Court of Human Rights, decisions and opinions of the European Commission of Human Rights, and decisions of the Committee of Ministers of the Council of Europe. In the Falkland Islands and Pitcairn,113 the courts must also take into account judgments, decisions and declarations of a superior court of the United Kingdom on the interpretation or application of the Convention. As regards territories whose constitution does not include such express provisions, the Judicial Committee has in any case held that it is appropriate to take into account, when interpreting constitutional fundamental

109 110 111 112 113

SI 2009/1379. Falkland Islands Constitution s 19(6). Gibraltar Constitution s 18(8). Pitcairn Constitution s 25(13)–(15). Falkland Islands Constitution s 19(6)(a)(v) and (c); Pitcairn Constitution s 25(13)(e) and (15).

170 Human Rights in the Territories rights provisions, the interpretation given to corresponding Convention rights by the European Court of Human Rights.114 HUMAN RIGHTS COMMISSIONS

Until the new constitutions came into force from 2006 onwards, only Bermuda had a formal Human Rights Commission established by Part III of the Bermuda Human Rights Act 1981.115 Some other territories116 had informally established Human Rights Committees, the main responsibility of which was to co-ordinate the preparation of the periodic reports to the United Nations required under the various UN human rights instruments which had been extended to the territory. These Committees achieved varying levels of success, which to some extent depended upon those who were members at any particular time, and some foundered completely. Although there is no international legal obligation on the territories to establish a Human Rights Commission, two territories decided to provide for such a commission in their new constitutions.117 The constitutional provisions are in the nature of a framework. Section 116 of the Cayman Islands Constitution contains the more detailed provisions, providing: for the composition of the Commission; that its primary function is ‘promoting understanding and observance of human rights’; specific powers of the Commission, including the power to receive and investigate complaints of breaches of the Bill of Rights and of international human rights treaties that have been extended to the Cayman Islands; and for it to contribute to public education about human rights. The Cayman Islands Legislature is authorised to confer functions additional to those in the Constitution on the Commission for the purpose of the fulfilment of its primary responsibility, as well as to legislate further for its establishment and operation on condition that such laws do not derogate from section 116 of the Constitution. Section 116 also provides that the Commission shall have no power to represent parties to litigation, to make binding determinations of human rights breaches or to compel a person to do anything against his or her will. Importantly, the Commission is not to be subject to the direction or control of any other person or authority, thus ensuring its independence. The corresponding Virgin Islands provision leaves the establishment, composition, powers and duties of a Human Rights Commission to local legislation, and sets down a list of powers and duties which ‘may’ be included in such legislation. Both the Cayman Islands and Virgin Islands constitutional provisions ensure that nothing contained in any law relating to the Commissions will oblige a person to refer a complaint of a breach of a human right under the Constitution to the Commission or prevent a person from seeking redress directly from the court in relation to any breach or infringement of any right or freedom referred to in the fundamental rights chapter.

114 115 116 117

Grant v R, n 103 above; Ford v Labrador [2003] UKPC 41 para 16. Laws of Bermuda (1989 Revision) Title 2, Item 23. Including the Cayman Islands, Montserrat and the Virgin Islands. See Cayman Islands Constitution s 116; Virgin Islands Constitution s 34.

Complaints Commissioners 171 The constitutions of Pitcairn, the Falkland Islands, Gibraltar, Montserrat, St Helena, Ascension and Tristan da Cunha and the Turks and Caicos Islands do not provide for a Human Rights Commission but, with the exception of Gibraltar, they do provide for an Ombudsman or Complaints Commissioner, or in the case of Montserrat a Complaints Commission,118 each of which could be given jurisdiction wide enough to cover the investigation of complaints into alleged breaches of human rights by the Government of the territory, including by any public officer. The Constitution of Bermuda, while making no provision for a Human Rights Commission, does provide for an Ombudsman.119 The Constitution of Anguilla provides for neither a Human Rights Commission nor a Complaints Commissioner, which is one reason why the fundamental rights chapter of that Constitution would benefit from updating. It would of course be open to the legislature of Anguilla to establish either or both by local legislation. While it is better to have the Human Rights Commission and the Complaints Commissioner provided for in local legislation than not at all, the better approach is to entrench the offices in the Constitution, which ensures that their establishment and independence supersede other local laws. Although the office of the Complaints Commissioner is not usually dealt with in the fundamental rights chapters, it is discussed here because of the overlap in the jurisdiction that may be conferred on it. COMPLAINTS COMMISSIONERS

The Complaints Commissioner, provided for in a number of territories’ constitutions, is referred to as an Ombudsman in some of them,120 but the intended purpose of the office is the same in the territories whatever the title used. The Commissioner must be independent of the government of the territory, and for this reason the constitutions of all the territories providing for a Commissioner or Ombudsman require that he or she shall not be subject to the direction or control of any other person or authority.121 Thus, through these provisions, the independence of the office, once established, should be ensured. None of the constitutions attempts to define the functions of the Complaints Commissioner except those of the Falkland Islands, Pitcairn and St Helena,

118 Pitcairn Constitution ss 59–60; Falkland Islands Constitution ss 95–96; Montserrat Constitution s 105; St Helena, Ascension and Tristan da Cunha Constitution ss 113–14; Turks and Caicos Islands Constitution ss 92–93. The constitutions of the Cayman Islands s 120, and the Virgin Islands ss 110–11, provide for a Complaints Commissioner in addition to a Human Rights Commission. 119 Bermuda Constitution ss 93A and 93B. 120 The constitutions of Bermuda and Pitcairn; the Constitution of the Cayman Islands acknowledges that the Complaints Commissioner may be otherwise called an Ombudsman. In Gibraltar the Public Services Ombudsman is established by local legislation, the Public Services Ombudsman Act 1998 (Laws of Gibraltar, 1998-48). The Montserrat Constitution establishes a Complaints Commission: see s 105. 121 Bermuda Constitution s 93B(2); Cayman Islands Constitution s 120(6); Falkland Islands Constitution s 96(2); Pitcairn Constitution s 60(2); St Helena, Ascension and Tristan da Cunha Constitution s 114(2); Turks and Caicos Islands Constitution s 93(2); Virgin Islands Constitution s 111(2). For a similar provision relating to the Montserrat Complaints Commission, see Montserrat Constitution s 105(3).

172 Human Rights in the Territories Ascension and Tristan da Cunha,122 where it is stated that the Commissioner is appointed to investigate maladministration in the government of the territory or such other matters as may be prescribed by the local law.123 Other constitutions leave the matter of the functions and jurisdiction of the Commissioner entirely to local legislation. The consequence of any finding by the Commissioner is also left to such legislation in all cases. The Falkland Islands, Pitcairn and St Helena, Ascension and Tristan da Cunha have adopted a novel approach to appointing a Complaints Commissioner by providing that he or she may be appointed by the Governor, acting in his or her discretion, ‘from time to time’.124 Therefore, the appointment of the Complaints Commissioner is on an ad hoc basis in these territories, meaning that the Governor may appoint a different person each time a complaint requires investigation, or to deal with different complaints, or may even appoint more than one Commissioner at any one time. The benefit is flexibility in an environment where human resources for this sort of appointment tend to be scarce, while allowing a person with the necessary expertise to deal with a particular case. The disadvantage could be that it detracts from the independence of the Commissioner, putting into the hands of the Governor the decision whether or not a complaint should be investigated. But any decision of the Governor not to appoint a Complaints Commissioner to look into a complaint would be subject to judicial review. These constitutions, as with the others where the office exists, prohibit members of the legislature and public officers from holding the office of Complaints Commissioner. The restriction is tougher in the Cayman Islands, Turks and Caicos Islands and Virgin Islands Constitutions, where no person who has been a member of the Legislature or the holder of any office in a political party within the preceding three years is qualified to be appointed as Complaints Commissioner. The aim of this is to try to ensure that the person holding the office is as politically neutral as possible, and has the appearance of being so. The Constitution of Bermuda is the only one which makes clear that the Ombudsman has no jurisdiction to inquire into any question relating to the exercise of any function by the Governor or the Deputy Governor.125 But this is limited to functions which under the Constitution cannot be inquired into by any court. This is in fact a very narrow exclusion, as there are few things under the Constitution which cannot be inquired into by a court, and those that there are tend to be procedural in nature. None of the other constitutions mentions whether the Governor is to be subject to the jurisdiction of the Commissioner, and therefore the matter is ultimately one for the local legislature, subject to the powers given to the Governor and the Secretary of State under the constitution. But given the status of the Governor as Her Majesty’s representative in the territory, it would seem inappropriate for the Commissioner to have jurisdiction to enquire into the exercise of 122 In the territory of St Helena, Ascension and Tristan da Cunha, only St Helena has a Complaints Commissioner. Ascension and Tristan da Cunha do not have one. See St Helena, Ascension and Tristan da Cunha Constitution s 113. 123 Falkland Islands Constitution s 95(1); Pitcairn Constitution s 59(1); St Helena, Ascension and Tristan da Cunha Constitution s 113(1). 124 Ibid. 125 Bermuda Constitution s 93B(3).

International Human Rights Instruments and the Overseas Territories 173 the functions of the Governor, whether or not they can be inquired into by a court, by way of judicial review or otherwise. INTERNATIONAL HUMAN RIGHTS INSTRUMENTS AND THE OVERSEAS TERRITORIES

The European Convention on Human Rights has been extended to all the overseas territories with the exception of Pitcairn, where the position is under review, the British Antarctic Territory and the British Indian Ocean Territory. The right of individual petition to the European Court of Human Rights has been accepted in respect of all territories to which the Convention has been extended. Protocol No 1 to the Convention126 has been extended to most of the substantially populated territories,127 and Protocol No 13 abolishing the death penalty in all circumstances128 was extended to most territories in 2007.129 In Quark Fishing Company v United Kingdom,130 the European Court of Human Rights confirmed that the Convention and Protocols can only apply to a British overseas territory by means of a declaration made by the United Kingdom Government expressly extending them to the territory.131 It also held that the United Kingdom is under no obligation to justify its failure to extend the Convention or any protocol to any overseas territory. It said:132 Since there is no dispute as to the status of South Georgia and the South Sandwich Islands as a territory for whose international relations the United Kingdom is responsible within the meaning of Article 56, the Court finds that the Convention and Protocols cannot apply unless expressly extended by declaration. The fact that the United Kingdom has extended the Convention itself to the territory gives no ground for finding that Protocol No 1 must also apply or for the Court to require the United Kingdom somehow to justify its failure to extend that Protocol. There is no obligation under the Convention for any Contracting State to ratify any particular protocol or to give reasons for its decisions in that regard concerning its national jurisdictions. Still less can there be any such obligation as regards the territories falling under the scope of Article 56 of the Convention.

By virtue of Article 56(3), the provisions of the Convention are to be applied to territories to which the Convention has been extended ‘with due regard to local requirements’. This extends to Protocol No 1 by virtue of the last sentence of Article 4 of that Protocol. This was considered by the European Court of Human Rights in Py v France,133 when it held that a 10-year residence requirement to qualify to vote

126

UKTS No 46 (1954); Cmd 9221. It has not been extended to Anguilla, the Falkland Islands, South Georgia and the South Sandwich Islands and Pitcairn. The application of Protocol 1, art 3 to the Turks and Caicos Islands was suspended in August 2009 when the House of Assembly and ministerial government were suspended by SI 2009/701 following the outcome of a commission of inquiry into corruption by elected members of the House of Assembly. 128 Misc No 3, Cm 5795. 129 But it was extended to the Sovereign Base Areas in 2004. 130 Quark Fishing Company v United Kingdom ECHR 2006-XIV, 44 EHRR SE4. 131 Under art 56 of the Convention, and under the equivalent provision of each Protocol. 132 Quark, n 130 above, para 19. 133 Py v France (2005) 42 EHRR 548. 127

174 Human Rights in the Territories in a referendum in New Caledonia was justified by local requirements and therefore compatible with Article 3 of that Protocol. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights have been extended for many years to all populated overseas territories, except Anguilla. The Government of Anguilla has agreed in principle to the extension. The United Kingdom Government has for several years been encouraging the governments of the populated territories to take steps, including legislating if necessary, to enable the core United Nations human rights instruments to be extended to them. The United Kingdom will not extend a treaty to a territory unless it is reasonably satisfied that the territory is in a position to implement the obligations under that treaty. The UN Convention against Torture134 and the UN Convention on the Elimination of all forms of Racial Discrimination135 have been extended to all the substantially populated territories, and the UN Convention on the Rights of the Child136 has been extended to all such territories except Gibraltar. The UN Convention on the Elimination of Discrimination against Women137 has so far been extended to the Virgin Islands, the Falkland Islands and the Turks and Caicos Islands. The United Kingdom Government is also working with the territories on the extension of the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO 182),138 which has so far only been extended to the Falkland Islands and St Helena, and has asked the territories if they wish to have the UN Convention on the Rights of Persons with Disabilities139 extended to them.

134 135 136 137 138 139

UKTS No 107 (1991); Cm 1775. UKTS No 77 (1969); Cmnd 4108. UKTS No 44 (1992); Cm 1976. UKTS No 2 (1989); Cm 643. UKTS No 37 (2001); Cm 5213. Misc Series No 2 (2009); Cm 7564.

10 Defence, Public Order and Security, and Emergency Powers

T

HE DEFENCE OF the British overseas territories, public order and security within them, and dealing with emergencies in the territories are important responsibilities of the United Kingdom. It is therefore unsurprising that constitutional responsibility for these matters is in each territory conferred on the Governor (or equivalent), although in some of the more substantially populated territories there are constitutional arrangements that recognise the interest local politicians naturally have in them. A few territories have their own local defence forces, and in some territories United Kingdom armed forces maintain a constant presence. In two territories United States armed forces maintain such a presence under treaties. All substantially populated territories have their own police forces, regulated by local legislation, which are separate from any United Kingdom police force. They also have their own prisons and prison officers. This chapter looks at various aspects of the arrangements for defence, public order and security in the territories, including extradition and the removal of prisoners. It also describes the legal basis for emergency powers. DEFENCE

A. Constitutional Responsibility In each territory, executive constitutional responsibility for defence is vested in the office of Governor (or its equivalent). This is not spelt out in the constitutional instruments of the sparsely populated territories that have no local executive body, because there is no need to do so; the Governor (or equivalent) has executive responsibility across the board. But it is expressly provided for in those territories with local executive bodies, usually by including ‘defence’ among the special responsibilities of the Governor.1 In consequence the Governor may not assign executive responsibility for defence to a local Minister or, in the case of St Helena,

1 Anguilla Constitution (SI 1982/334) s 28(2)(a); Bermuda Constitution (SI 1968/182) s 62(1)(b); Cayman Islands Constitution (SI 2009/1379) s 55(1)(a); Gibraltar Constitution (SI 2006, III, p 11503) s 47(1)(b); Montserrat Constitution (SI 2010/2474) s 39(1)(a); St Helena, Ascension and Tristan da Cunha Constitution (SI 2009/1751) s 44(1)(a); Turks and Caicos Islands Constitution (SI 2006/1913) s 33(1)(a); Virgin Islands Constitution (SI 2007/1678) s 60(1)(b).

176 Defence, Public Order and Security, and Emergency Powers to a Council Committee.2 However, in Bermuda and Montserrat the Governor has power, by directions in writing and with the prior approval of a Secretary of State, to delegate to a Minister such responsibility for defence as the Governor may think fit on such conditions as he or she may impose.3 In most of the territories with a local executive body the Governor is given power to assign to a member of that body (which need not necessarily be a Minister) responsibility for the conduct on behalf of the Governor of any defence business in the local legislative body.4 In some territories the Governor has power to give binding directions to any other person or authority (except the legislative body) if he or she determines that the exercise of a function conferred on that person or authority would involve or affect defence.5 In the Falkland Islands there are no ‘special responsibilities’ of the Governor as such, but the Governor may act against the advice of the Executive Council if in his or her judgement such advice would affect (among other things) defence.6 In most of these territories the Governor may exercise executive responsibility for defence in his or her discretion (although subject to instructions from London), and may act against any advice of the local executive body if that advice would affect defence.7 The Bermuda Constitution makes provision for a Governor’s Council, and the Montserrat Constitution provides for a National Advisory Council, in each case chaired by the Governor but involving local politicians, to give non-binding advice to the Governor on defence matters.8 However, in the Falkland Islands the Governor must consult the Commander British Forces9 before exercising any function that appears to the Governor to relate to defence, and must act in accordance with any advice the Commander British Forces then tenders; likewise, the Governor must act in accordance with the advice of the Commander British Forces on any matter on which the Commander considers it necessary in the interests of defence to give advice to the Governor.10 (An equivalent rule to the same effect applies in relation to South Georgia and the South Sandwich Islands, where the office of Commissioner has in practice been held by the Governor of the Falkland Islands.11) Another special feature of the Falkland Islands Constitution is that the Commander British Forces has the right to take 2 See eg Bermuda Constitution s 61(3)(a); Virgin Islands Constitution s 56(2); St Helena, Ascension and Tristan da Cunha Constitution s 58(2). 3 Bermuda Constitution s 62(2); Montserrat Constitution s 39(3). 4 Anguilla Constitution s 28(4); Bermuda Constitution s 61(3); Cayman Islands Constitution s 55(2); Montserrat Constitution s 39(2); St Helena, Ascension and Tristan da Cunha Constitution s 44(2); Virgin Islands Constitution s 60(2). 5 Anguilla Constitution s 28(6); Montserrat Constitution s 39(6); St Helena, Ascension and Tristan da Cunha Constitution s 44(3); Turks and Caicos Islands Constitution s 33(4); Virgin Islands Constitution s 60(8). 6 Falkland Islands Constitution (SI 2008/2846) s 67(1)(b) and (2)(b). 7 Anguilla Constitution s 28(2)(a); Bermuda Constitution s 21(2)(a); Cayman Islands Constitution ss 32(2)(c) and 33(2)(b); Gibraltar Constitution s 50(1); Montserrat Constitution s 26(2); St Helena, Ascension and Tristan da Cunha Constitution s 43(3); Virgin Islands Constitution s 40(1)(c) and (3). 8 Bermuda Constitution s 70, but in practice the Council has not met for several years; Montserrat Constitution s 45. 9 Defined as ‘the Officer for the time being commanding Her Majesty’s Forces in the Falkland Islands’: see Falkland Islands Constitution s 100(1). 10 Falkland Islands Constitution s 25. 11 South Georgia and South Sandwich Islands Order 1985 (SI 1985/449) s 5(2).

Defence

177

part in the proceedings of the Executive Council and the Legislative Assembly, but without the right to vote.12 All of these provisions are explained by the constant presence of a large British garrison in the Falkland Islands since the 1982 conflict with Argentina. Uniquely, the Administrator of the Sovereign Base Areas is required to be a serving officer of Her Majesty’s Forces,13 and in practice the office is held by the Commander British Forces Cyprus. In the constitutions of Bermuda and Gibraltar the Governor is given the title ‘Governor and Commander-in-Chief,14 the designation Commander-in-Chief being honorific in Bermuda.15 Several Governors of Gibraltar have been senior members of the armed forces. The Constitution of Gibraltar is the only territory constitution that mentions the United Kingdom Government’s ultimate responsibility for the defence of the territory. Section 47(4) provides: The exercise by the Governor of his responsibility for external affairs and defence is without prejudice to the overall responsibility of Her Majesty’s Government in the United Kingdom for these matters.

This is the position in relation to each overseas territory, and it hardly needed to be expressly stated. The provision has no more effect than to recognise an established fact.

B. Local Defence Forces and Garrisons of United Kingdom Forces There are local defence forces in Bermuda (the Bermuda Regiment), the Falkland Islands (the Falkland Islands Defence Force), Gibraltar (the Royal Gibraltar Regiment) and Montserrat (the Montserrat Defence Force). These forces are raised under, and regulated by, local legislation of each territory.16 The Armed Forces Act 200617 includes provisions that are relevant to defence forces raised in the territories. Section 357 provides: Where any of Her Majesty’s forces is raised under the law of a British overseas territory, any such law— (a) may make provision in relation to that force and its members so as to have effect when they are outside that territory (as well as when they are within it); and (b) may apply in relation to the force and its members all or any of the provisions of this Act, with or without modifications.

12

Falkland Islands Constitution ss 61(1) and 41(1). Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 (SI 1960/1369) s 1(1). 14 Bermuda Constitution s 17(1); Gibraltar Constitution s 19. 15 Except on special appointment from the Queen, a Governor is not invested with command of Her Majesty’s Regular Forces in the territory: Colonial Regulation 105. 16 Defence Act 1965 (Laws of Bermuda (1989 Revision), Title 7, Item 21); Falkland Islands Defence Force Ordinance (Laws of the Falkland Islands, Title 7.1); Gibraltar Regiment Act 1998 (Laws of Gibraltar, 1998-25); Defence Force Act 1954 (Laws of Montserrat, Cap 10.07). By local arrangement, some of these forces assist in times of emergency in other territories. 17 2006 c 52. 13

178 Defence, Public Order and Security, and Emergency Powers Section 369(1) of the Act disapplies section 357 in relation to a member of a British overseas territory force, and makes that member subject to service law for the purposes of the Act, while he is undertaking any duty with or training with a regular or reserve force. Section 369(3) enables the Secretary of State to modify by order any provision of the Act in its application to a member of a British overseas territory force who is or has been within section 369(1). There are garrisons of United Kingdom armed forces stationed in the Falkland Islands, the Sovereign Base Areas, Gibraltar, the British Indian Ocean Territory and Ascension. United Kingdom forces visit other territories from time to time, and may need to be stationed in any territory for its defence. The Armed Forces Act 2006 extends to the British overseas territories, subject to such modifications as may be specified by Order in Council.18 Subject to this and other Acts that extend to the territories, United Kingdom forces present in an overseas territory are subject to that territory’s law in the usual way. However, the United Kingdom Forces (Jurisdiction of Colonial Courts) Order 196519 makes detailed provision withdrawing jurisdiction from the civil courts of several territories in respect of offences against the law of the territory committed by members of United Kingdom forces (or of a civilian component of those forces) while on duty or, in respect of certain such offences, off duty. But the Order also provides that the territory courts have jurisdiction if no objection is made during the trial, or if the case is not going to be dealt with by a service court or has not been dealt with by such a court.

C. Forces of Other Countries in the Territories Under treaties between the United Kingdom and United States Governments, there are United States armed forces stationed in two territories: on the island of Diego Garcia in the British Indian Ocean Territory, and on Ascension Island. There are also occasional visits to overseas territories by non-British forces. 1. British Indian Ocean Territory This is the only British overseas territory whose constitution states that it was established for defence purposes. Section 9(1) of the British Indian Ocean Territory (Constitution) Order 200420 provides: Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory.

This reflects the Exchange of Notes between the Governments of the United Kingdom and the United States concerning the availability for defence purposes of

18 19 20

See s 384(2). SI 1965/1203, as amended by SI 1990/239, SI 1990/240 and SI 2009/2054. See Annex, p 305 below.

Defence 179 the British Indian Ocean Territory, dated 30 December 1966.21 Key provisions of this Agreement are: (a) the Territory shall remain under United Kingdom sovereignty: paragraph (1); (b) the islands shall be available to meet the needs of both Governments for defence, subject to the other provisions of the agreement: paragraph (2); (c) before either Government proceeds to construct or install any facility in the Territory, both Governments must first approve in principle the requirement for that facility: paragraph (2)(b); (d) the required sites are to be made available to the United States authorities free of charge: paragraph (4); (e) detailed provisions regarding the exercise of criminal jurisdiction and claims: paragraph (9) and Annex II.

The Agreement is expressed to last for 50 years, followed by a further period of 20 years unless, not more than two years before the end of the 50 year period, notice of termination has been given by either Government, in which case it shall terminate two years after the date of such notice.22 The 1966 Agreement was supplemented by an Exchange of Notes between the two Governments concerning a limited United States Naval Communications Facility on Diego Garcia, dated 24 October 1972.23 This was replaced by the Exchange of Notes between the two Governments concerning a United States Navy Support Facility on Diego Garcia, British Indian Ocean Territory, dated 25 February 1976 (the Diego Garcia Agreement 1976).24 This Agreement granted the United States the right to develop the limited naval communications facility on Diego Garcia as a support facility of the United States Navy and to maintain and operate it. The facility is described as consisting of an anchorage, airfield, support and supply elements and ancillary services, personnel accommodation, and transmitting and receiving services: paragraph (1)(a). The purpose of the facility is to ‘provide an improved link in United States defence communications, and furnish support for ships and aircraft owned or operated by or on behalf of either Government’: paragraph (2). Access to Diego Garcia is restricted to members of the Forces, and representatives of the Governments, of the United Kingdom and the United States, the Commissioner and public officers in the service of the British Indian Ocean Territory, contractor personnel in accordance with normal immigration requirements, and members of scientific parties to whom access is granted by the United Kingdom after consultation with the United States authorities; access must not be granted to any other person without prior consultation between the appropriate administrative authorities of the two Governments: paragraph (4). The 1976 Agreement provides for various other matters, and states that it supplements the 1966 Agreement, that it is to be construed in accordance with that Agreement, and that the 1966 Agreement prevails in the event of any conflict between the two Agreements: paragraph (20)(c). The 1976 Agreement is to continue 21 22 23 24

UKTS No 15 (1967); Cmnd 3231. See Exchange of Notes para (11). UKTS No 126 (1972); Cmnd 5160. UKTS No 19 (1976); Cmnd 6413.

180 Defence, Public Order and Security, and Emergency Powers in force for as long as the 1966 Agreement continues in force ‘or until such time as no part of Diego Garcia is any longer required for the purposes of the facility, whichever occurs first’: paragraph (22). Further Agreements have been concluded between the two Governments concerning operations and construction contracts on Diego Garcia,25 and the construction and operation of a hydroacoustic monitoring facility on Diego Garcia.26 Although Diego Garcia is the only island in the territory on which the United States has so far constructed and operated military facilities, the other islands forming part of the territory must remain available to meet the defence needs of the United Kingdom and the United States in accordance with the 1966 Agreement. There is a small Royal Navy detachment on Diego Garcia, called ‘the United Kingdom Service element’ in the 1976 Agreement. The Commanding Officer is the Commissioner’s Representative in the territory, and he and other members of the detachment hold various posts in the local administration of the territory. 2. Ascension The basic treaty governing United States military activities on Ascension is the Agreement between the Governments of the United Kingdom and the United States concerning the Extension of the Bahamas Long Range Proving Ground by the Establishment of Additional Sites in Ascension Island, dated 25 June 1956.27 This permitted the United States to operate from sites on Ascension to test the flight of guided missiles and associated equipment. The Agreement makes detailed provision regarding the presence of United States Forces on Ascension, including provisions on criminal jurisdiction, arrest and service of process, public services, shipping and aviation, immigration, taxation and customs duties, claims for compensation, and freedom from rents and charges. The Agreement was expressed to continue in force until 20 July 1975, and thereafter until one year after either Government gives notice of termination to the other. The 1956 Agreement was supplemented and amended by an Exchange of Notes regarding administrative arrangements, dated 24 and 25 August 1959,28 and by an Exchange of Notes regarding the use of Wideawake Airfield by United Kingdom military aircraft, dated 29 August 1962.29 A further Agreement, the Exchange of Notes concerning facilities for United States Forces on Ascension Island dated 30 March 1973,30 expanded the scope of United States activities on Ascension. That Agreement gave the United States the right to construct, operate and maintain facilities for non-Air Force Eastern Test Range activities of United States Forces, and to conduct such activities on Ascension under the terms and conditions provided by

25 26 27 28 29 30

Exchange of Notes of 16 November 1987: UKTS No 60 (1988); Cm 470. Exchange of Notes of 18 June and 21 July 1999: UKTS No 1 (2000); Cm 4582. UKTS No 25 (1956); Cmd 9810. UKTS No 77 (1959); Cmnd 867. UKTS No 71 (1962); Cmnd 1869. UKTS No 55 (1973); Cmnd 5311.

Defence 181 the 1956 Agreement, as supplemented and amended. United Kingdom agreement to flight operations and other activities by United States Forces is deemed to exist unless the Administrator of Ascension objects within stated time limits, in which case the matter may be taken up on diplomatic channels between the two Governments. There is a Royal Air Force contingent on Ascension, and Wideawake Airfield is used as a stopover for the regular flights flown or chartered by the Royal Air Force to and from the Falkland Islands. 3. Visits by non-British Armed Forces Any visit to an overseas territory by the armed forces of another country requires the consent of the United Kingdom Government or the Governor. The members of any such visiting party are subject to the law of the territory while in the territory. However, the Visiting Forces Act 195231 has been extended by Order in Council (with modifications) to some territories, in respect of visiting forces from Commonwealth countries and other countries designated under the Act.32 As a result the jurisdiction of the territory courts is excluded in respect of certain offences committed in those territories by members of such forces.

D. The Sovereign Base Areas The Sovereign Base Areas were retained under British sovereignty for defence purposes when Cyprus became independent in 1960, by virtue of Article 1 of the Treaty concerning the establishment of the Republic of Cyprus.33 In the accompanying Exchange of Notes and Declaration by the United Kingdom Government regarding the Administration of the Sovereign Base Areas (sometimes known as ‘Appendix O’), the United Kingdom Government declared one of the main objects of the administration of the Areas to be the effective use of the Areas as military bases. It also declared its intention not to develop the Areas other than for military purposes, and not to set up and administer ‘colonies’. About 14,000 people live in the Sovereign Base Areas, of whom about half are Cypriots who mainly work on the military bases or on farmland within the Areas, and the rest are British military and civilian personnel and their families. Principal responsibility in London for the administration of the Sovereign Base Areas lies with the Ministry of Defence.

31

1952 c 67. See Visiting Forces Act (Application to Colonies) Orders 1954 to 1990 (SI 1954/636, 1957/103, 1959/874, 1959/1979, 1960/1061, 1962/1638, 1967/811, 1967/1481, 1990/242); Visiting Forces (Designation) (Colonies) Orders 1954 to 1990 (SI 1954/637, 1954/1041, 1956/1368, 1958/1262, 1959/875, 1962/1639, 1967/812, 1967/1482, 1990/241); Visiting Forces Act (Application to Bermuda) Order 2001 (SI 2001/3922). 33 UKTS No 4 (1961); Cmnd 1252. 32

182 Defence, Public Order and Security, and Emergency Powers E. British Antarctic Territory The British Antarctic Territory lies south of 60 degrees South Latitude, and is therefore within the scope of application of the Antarctic Treaty of 1959.34 Article I of that Treaty provides: 1. Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measure of a military nature, such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapon. 2. The present Treaty shall not prevent the use of military personnel or equipment for scientific research or for any other peaceful purpose.

This clearly prohibits military activity in the British Antarctic Territory. PUBLIC ORDER AND SECURITY

A. Constitutional Responsibility In each territory executive constitutional responsibility for internal security, including the police, is vested in the Governor. In the sparsely populated territories this is not expressly stated, the Governor (or equivalent) having executive responsibility across the board. But it is expressly provided for in those territories with local executive bodies, usually by including internal security and the police among the special responsibilities of the Governor.35 In consequence the Governor may not assign executive responsibility for internal security or the police to a local Minister or, in the case of St Helena, to a Council Committee.36 However, in Anguilla, Bermuda, Montserrat and the Virgin Islands the Governor may, by directions in writing and with the prior approval of a Secretary of State, delegate to a Minister such responsibility for these matters as the Governor may think fit on such conditions as he or she may impose.37 In most of the territories with a local executive body the Governor has power to assign or delegate to a member of that body responsibility for the conduct on behalf of the Governor of any internal security or police business in the local legislative body.38 In some territories the Governor is given power to give binding directions to any other person or authority (except the legislative body) if he or

34

UKTS No 97 (1961); Cmnd 1535. See art VI. Anguilla Constitution s 28(2)(a); Bermuda Constitution s 62(1)(c) and (d); Cayman Islands Constitution s 55(1)(c); Gibraltar Constitution s 47(1)(c); Montserrat Constitution s 39(1)(d); St Helena, Ascension and Tristan da Cunha Constitution s 44(1)(c); Turks and Caicos Islands Constitution s 33(1)(d); Virgin Islands Constitution s 60(1)(c). 36 See eg Bermuda Constitution s 61(3)(a); Virgin Islands Constitution s 56(2); St Helena, Ascension and Tristan da Cunha Constitution s 58(2). 37 Anguilla Constitution s 28(5); Bermuda Constitution s 62(2); Montserrat Constitution s 39(3); Virgin Islands Constitution s 60(3). 38 Anguilla Constitution s 28(4); Bermuda Constitution s 61(3); Cayman Islands Constitution s 55(2); Montserrat Constitution s 39(2); St Helena, Ascension and Tristan da Cunha Constitution s 44(2); Virgin Islands Constitution s 60(2). 35

Public Order and Security 183 she determines that the exercise of a function conferred on that person or authority would involve or affect internal security or the police.39 In the Falkland Islands the Governor may act against the advice of the Executive Council if in his or her judgement such advice would affect internal security, including the police.40 In most territories the Governor may exercise executive responsibility for internal security and the police in his or her discretion (although subject to instructions from London), and may act against any advice of the local executive body if that advice would affect internal security or the police.41 However, in the Cayman Islands and the Virgin Islands there is a National Security Council to advise the Governor on matters relating to internal security (with the exception, in the Cayman Islands, of operational and staffing matters). The Governor is obliged to act in accordance with the advice of the Council unless he or she considers that giving effect to the advice would adversely affect Her Majesty’s interest, whether in respect of the United Kingdom or the territory.42 The National Security Council in the Cayman Islands consists of the Governor, as Chairman, the Premier, two other Ministers, the Leader of the Opposition or his or her designate, two persons representative of civil society, the Deputy Governor, the Attorney General and the Commissioner of Police.43 In the Virgin Islands the National Security Council is smaller, consisting of the Governor, as Chairman, the Premier, one other Minister, the Attorney General and the Commissioner of Police.44 The Bermuda Constitution provides for a Governor’s Council, and the Montserrat Constitution establishes a National Advisory Council, to give non-binding advice to the Governor on internal security and police matters.45 In the Falkland Islands the Governor must consult the Commander British Forces46 before exercising any function that appears to the Governor to relate to internal security (with the exception of the police), and must act in accordance with any advice the Commander British Forces then tenders; likewise, the Governor must act in accordance with the advice of the Commander British Forces on any matter on which the Commander considers it necessary in the interests of internal security (with the exception of the police) to give advice to the Governor.47 An equivalent rule to the same effect applies in relation to South Georgia and the South Sandwich Islands, where the office of Commissioner has in practice been held by the

39 Anguilla Constitution s 28(6); Montserrat Constitution s 39(6); St Helena, Ascension and Tristan da Cunha Constitution s 44(3); Turks and Caicos Islands Constitution s 33(4); Virgin Islands Constitution s 60(8). 40 Falkland Islands Constitution s 67(1)(b) and (2)(c). 41 Anguilla Constitution s 28(2)(a); Bermuda Constitution s 21(2)(a); Cayman Islands Constitution s 32(2)(c) and 33(2)(b); Gibraltar Constitution s 50(1); Montserrat Constitution s 26(2); St Helena, Ascension and Tristan da Cunha Constitution s 43(3); Virgin Islands Constitution s 40(1)(c) and (3). 42 Cayman Islands Constitution s 58(4); Virgin Islands Constitution s 57(3). 43 Cayman Islands Constitution s 58(1). Provision is made to protect information acquired by members of the Council: see s 58(6) and (7). 44 Virgin Islands Constitution s 57(1). 45 See n 8 above. 46 Defined as ‘the Officer for the time being commanding Her Majesty’s Forces in the Falkland Islands’: see Falkland Islands Constitution s 100(1). 47 Falkland Islands Constitution s 25.

184 Defence, Public Order and Security, and Emergency Powers Governor of the Falkland Islands.48 The express exclusion of police matters from these provisions means that the Governor or Commissioner may exercise executive responsibility for police matters in his or her discretion.

B. Police Forces in the Territories Each substantially populated territory has its own police force, which is regulated by legislation of the territory and is independent of any police force in the United Kingdom.49 The powers of a territory’s police officers are prescribed in the legislation of that territory. Occasionally, police officers are drafted in to assist the local police force. In the absence of special legislative provision, for example in emergency regulations, if a police officer from an outside force is to be given police powers in a territory it will be necessary to appoint that officer as a local police officer. The constitutional executive powers of the Governor (or equivalent) in relation to the territory police must be exercised in accordance with the law of the territory. Governors are careful not to trespass on the operational independence of the police forces of their territories, and those police forces are correspondingly jealous to preserve that independence. The funding of each police force depends on appropriations approved by the territory legislature. For the purposes of the territory constitutions, police officers are treated as members of the public service of each territory, and paid officers hold public office and are public officers. The term ‘the public service’ is commonly defined as the service of the Crown in a civil capacity in respect of the government of the territory, ‘public office’ is defined as an office of emolument in the public service, and ‘public officer’ as a person who holds or acts in any public office.50 In most constitutions those definitions are taken to include police officers by implication, but in some they are included expressly.51 The constitutions of some territories vest in the Governor, acting in his or her discretion, the power to appoint, discipline and remove the most senior police officer of the territory.52 In Anguilla and Bermuda the Governor must exercise these powers after consultation with the local Public Service Commission, and in Montserrat after consultation with the Premier.53 In Gibraltar the Constitution establishes an independent Police Authority,54 and requires the Governor to appoint

48

South Georgia and South Sandwich Islands Order 1985, s 5(2). See eg Police Act 2006 (Laws of Gibraltar, 2006-20); Police Act 1974 (Laws of Bermuda (1989 Revision), Title 10, Item 21). In the British Antarctic Territory, Falkland Islands police officers are authorised to exercise police powers: Police Powers Ordinance 1991 (Laws of the British Antarctic Territory, Ordinance No 2 of 1991). 50 See eg Constitution of Bermuda, s 102(1); Cayman Islands Constitution s 124(1). 51 See eg Falkland Islands Constitution s 100(1); Gibraltar Constitution s 79(1)(a). 52 Cayman Islands Constitution s 109(1) and (4); Falkland Islands Constitution s 84(4); St Helena, Ascension and Tristan da Cunha Constitution ss 95(1), 163(1) and 226(1); Turks and Caicos Islands Constitution s 85(2). But in the Falkland Islands, discipline and removal of the Chief of Police must be in accordance with the Management Code: see Falkland Islands Constitution s 85. 53 Anguilla Constitution s 66(1); Bermuda Constitution s 87; Montserrat Constitution s 85(4). 54 Implemented in detail by the Police Act 2006 (Laws of Gibraltar, 2006-20). 49

Public Order and Security 185 the Commissioner of Police in accordance with the advice of the Gibraltar Police Authority, unless the Governor judges that accepting that advice would prejudice Her Majesty’s service.55 In the Virgin Islands there is an independent Police Service Commission, consisting of two members appointed by the Governor in his or her discretion, one member appointed by the Governor on the advice of the Premier and one on the advice of the Leader of the Opposition, and one member appointed by the Governor after consultation with the Police Welfare Association.56 In general, power to appoint police officers and to discipline and remove them vests in the Governor, acting in accordance with the advice of the Police Service Commission; but the Governor may act otherwise if he or she determines that compliance with that advice would prejudice Her Majesty’s service.57 Where the Commission advises that a person should be appointed to a rank senior to Chief Inspector, that advice requires the approval of the National Security Council; but the Governor may act without the approval of the Council if he or she determines that to do otherwise would prejudice Her Majesty’s service.58 In the Cayman Islands the Commissioner of Police has express constitutional duties: (a) to provide regular briefings to the National Security Council on matters of internal security, including the police force ‘save insofar as to do so would prejudice current operations’; (b) to have responsibility for the day to day operation of the police force and to report regularly on such operation to the Governor; and (c) to inform the Premier of any significant security developments in the territory, including the occurrence of any significant criminal activity.59

The Virgin Islands Constitution contains identical provisions, except for the saving for current operations quoted above.60 Even without that express saving, however, common sense demands that it is an implied limit on the duty to provide briefings to the National Security Council. These provisions, and the establishment of National Security Councils in the Cayman Islands and the Virgin Islands and a National Advisory Council in Montserrat, demonstrate a growing concern by elected politicians in these territories to play a greater role in security, public order and policing matters. The same could be said of the establishment of a Police Authority in Gibraltar. The result is, in these territories, a more even balance between the ultimate constitutional responsibility of the Governor and the legitimate interest of elected politicians, bearing in mind also the power of the territory legislature to debate and legislate in these fields, on matters that are of obvious concern to the public.

55 56 57 58 59 60

Gibraltar Constitution s 48. Virgin Islands Constitution s 96. Ibid s 97(1). Ibid s 97(2). Cayman Islands Constitution s 58(5). Virgin Islands Constitution s 57(4).

186 Defence, Public Order and Security, and Emergency Powers C. Territory Prisons Each substantially populated territory has its own prison and prison officers.61 They are regulated by territory legislation. Subject to such legislation, in territories with ministerial systems general executive responsibility for prisons is often assigned to a local Minister, not being viewed as a matter of internal security or the police. However, again subject to such legislation, certain aspects of a prison or its regime and certain types of prisoner could raise issues of internal security falling within the special responsibility of the Governor.

D. Removal of Prisoners The removal of prisoners out of or into a territory is governed by United Kingdom legislation extended to the territories. Territory legislation may also deal with this matter. 1. Colonial Prisoners Removal Act 186962 Under the Colonial Prisoners Removal Act 1869, which applies to all overseas territories, a prisoner may be removed from one territory to another for the purpose of undergoing his or her punishment, and for the return of that prisoner, pursuant to an agreement between the governments of the two territories. Any such agreement must be sanctioned by Order in Council. Such an Order is made on an address by the legislative body of a territory or, if there is no such body, of the Governor, and takes effect on publication in the territory. The agreement must be testified under the hand of the Governor.63 The prisoner is removed under a warrant signed by the Governor of the removing territory, which authorises the addressee of the warrant to convey the prisoner to the other territory and deliver the prisoner to the person authorised to receive him or her by that warrant or by the Governor of the receiving territory.64 The prisoner is then dealt with as if he or she had been sentenced in the receiving territory.65 During removal the prisoner is deemed to be in prison, and any escape or attempt to escape is treated as if it were an escape or attempt to escape from prison.66 The operation of this Act was considered by the Privy Council in Al Baker v Alford,67 an appeal arising out of the transfer of a prisoner from the Protected State of Bahrain to St Helena. The Judicial Committee held that the request for sanction of the agreement between the two territories need not be received in England before

61 For the British Antarctic Territory, provision is made for the appointment of premises as a prison and of an officer in charge and staff of a prison: Prisons Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 10 of 1990) ss 3–4. 62 1869 c 10. 63 Colonial Prisoners Removal Act 1869 s 4. 64 Ibid s 5. 65 Ibid s 6. 66 Ibid s 7. 67 Al Baker v Alford [1960] AC 786 (PC).

Public Order and Security 187 the sanctioning Order is made; that such sanction may be requested and given before the conviction of the prisoner removed, and an agreement and sanction need not relate to particular individuals; and that the warrant for removal may be made, but may not be put into operation, before the sanctioning Order has taken effect by publication in the removing territory. 2. Colonial Prisoners Removal Act 188468 The Colonial Prisoners Removal Act 1884 applies to all overseas territories. It provides for a system by which a prisoner serving a sentence in one territory may be removed to another territory or to the United Kingdom69 to complete his or her sentence, but not for removal from the United Kingdom to any territory. Removal must be on one or more of the following grounds prescribed in section 2 of the Act: (a) that the prisoner’s life may be endangered, or the prisoner’s health permanently injured, by imprisonment where sentenced; (b) that the prisoner belonged to the Royal Air Force or to Her Majesty’s regular military or naval forces when the offence was committed;70 (c) that the offence was committed wholly or partly outside the removing territory; (d) that there is no proper prison in the removing territory in which the prisoner can serve his or her sentence; (e) that the prisoner is one of a class of persons who, by the law of the territory, is subject to removal.

Except in the case of removal on ground (b), a Secretary of State or the government of the receiving territory may order the prisoner to be returned to the first territory to complete his or her sentence or for discharge. If discharged in the receiving territory the prisoner is entitled to be returned to the first territory free of charge.71 The procedure for removal is set out in sections 7 and 8 and Regulations made under the Act.72 For a removal to the United Kingdom, the Secretary of State makes an Order for Removal, and sends a copy to the Governor of the removing territory; the Governor signs a notification of concurrence; the Governor sends two copies of the notification of concurrence to the Secretary of State, who forwards one copy to the Justice Secretary. For a removal from one territory to another, the Secretary of State makes an Order for Removal, and sends one copy to the Governor of each territory; the two Governors sign notifications of concurrence; each Governor sends copies of the notification of concurrence to the Secretary of State and the Governor of the other territory. A removal warrant is then signed by the Governor of the removing territory and handed over with the prisoner to every person authorised to receive the prisoner in custody for the purposes of his or her removal. A form 68

1884 c 31. The Act extends to the Channel Islands and the Isle of Man as if they were part of England and the United Kingdom: s 14. 70 This provision of s 2 is amended by the Armed Forces Act 1981 (1981 c 55) sch 3 para 4, and the Air Force (Application of Enactments) Order 1945 (SR & O 1945/1275) art 1 and sch. 71 Colonial Prisoners Removal Act 1884 s 3. 72 Colonial Prisoners Removal Order in Council 1907 (SR & O 1907/742), which includes a schedule of forms; Colonial Prisoners Removal Order in Council 1913 (SR & O 1913/484), for removal to Northern Ireland. 69

188 Defence, Public Order and Security, and Emergency Powers of warrant of reception for use in the place the prisoner is sent, and forms of order and warrant for the prisoner’s return to the removing territory, are prescribed in the Regulations. A prisoner removed under the Act is dealt with as if he or she had been sentenced in the receiving country or territory. If the conditions are more severe than in the removing territory, part of the sentence may be remitted. The prisoner’s conviction and sentence may be questioned, and the sentence may be remitted, in the same manner as if the prisoner had not been removed.73 The Act applies to ‘criminal lunatics’, defined as persons charged with an offence who are found to be insane at the time or to be unfit to be tried on the ground of insanity, and prisoners certified or lawfully proved to be insane after conviction.74 New provisions have been added to the Act by more modern legislation regarding the treatment of criminal lunatics returned to the United Kingdom.75 The Act also makes provision for evidence, escapes, costs, and laws made by territory legislatures to give effect to the Act.76 Agreements made under the Colonial Prisoners Removal Act 1869 are not affected by the 1884 Act.77 3. Compatibility of Removal with the European Human Rights Convention The removal of a prisoner without his or her consent from one territory to another or to the United Kingdom may be a prima facie interference with the prisoner’s right to a family life under Article 8(1) of the European Convention on Human Rights,78 because if the prisoner has a family the removal necessarily makes family visits much more difficult or even impossible. In X v The United Kingdom,79 the European Commission of Human Rights considered this issue in relation to a violent prisoner suffering from mental illness who had been removed to the United Kingdom from the Bahamas under the Colonial Prisoners Removal Act 1884, on the ground that there was no suitable prison in the Bahamas to detain the prisoner. The Commission started from the premise that a prisoner has no right under Article 8 to choose the place of confinement and that separation from family and the hardship that causes inevitably flow from imprisonment. Given the impossibility of family visits, the Commission found a prima facie interference with the applicant’s family life but considered that on the facts it was justified under Article 8(2) as being necessary in a democratic society for the prevention of disorder or crime and for the protection of the rights and freedoms of others. Noting that if the applicant stayed in the Bahamas it would be necessary to build a special place of detention for him, the Commission 73

Colonial Prisoners Removal Act 1884 ss 4 and 8; regs 1 and 2. Ibid ss 10 and 18. 75 For removals to England and Wales, see s 10(3), added by Mental Health Act 1959 (1959 c 72) sch 7 pt 1, amended by Mental Health Act 1983 (1983 c 20) sch 4 para 3, Domestic Violence, Crime and Victims Act 2004 (2004 c 28) sch 10 para 1, and Mental Health Act 2007 (2007 c 12) s 40(3)(c) sch 11 pt 8; for removals to Scotland, see s 10(4), added by Mental Health (Scotland) Act 1960 (1960 c 61) sch 4, amended by Mental Health (Scotland) Act 1984 (1984 c 36) sch 3 para 2. 76 Colonial Prisoners Removal Act 1884 ss 6, 7, 9, 11 and 12. 77 Ibid s 16(2). 78 UKTS No 71 (1953); Cmd 8969. The Convention has been extended to all territories except the British Antarctic Territory, the British Indian Ocean Territory, and Pitcairn. 79 Application 5712/72 X v United Kingdom. 74

Public Order and Security 189 stated that the question becomes one of ‘balance and reasonableness’. As the applicant was detained in the United Kingdom in an institution designed to cater for mentally unbalanced criminals, the Commission considered that ‘it may on balance be less inhuman’ to keep him there, even though it was 3,000 miles from his home. The Commission has rejected applications in other cases not involving either of the Colonial Prisoners Removal Acts, holding in McCotter v The United Kingdom80 that although Article 8 requires the State to assist prisoners as far as possible to create and sustain ties with people outside prison in order to facilitate prisoners’ social rehabilitation, only in exceptional circumstances will the detention of a prisoner a long way from his or her home and family infringe the requirements of Article 8. 4. Repatriation of Prisoners Act 198481 The Repatriation of Prisoners Act 1984 has been extended, with modifications, to all territories except Bermuda, the British Antarctic Territory, South Georgia and the South Sandwich Islands, the Turks and Caicos Islands and the Virgin Islands.82 Under this Act, as so extended, certain categories of consenting prisoners may be transferred between one territory and another territory, or between a territory and the United Kingdom or certain other States, pursuant to international arrangements that apply to the territory, including the Council of Europe Convention on the Transfer of Sentenced Persons.83 5. Territory Legislation The Colonial Prisoners Removal Act 1884 envisages that territory legislation may be enacted to give effect to the Act. But each territory also has power to legislate autonomously to provide for the removal of prisoners, provided that such legislation does not offend against extraterritoriality limitations and is not repugnant to United Kingdom Acts (or instruments made under them) that extend to the territory. The Repatriation of Prisoners Act 2002 of Bermuda is a local equivalent of the (United Kingdom) Repatriation of Prisoners Act 1984.84

E. Extradition Extradition as between all British overseas territories (except Gibraltar) and the United Kingdom, Ireland, Commonwealth countries and other British overseas

80 McCotter v United Kingdom (1993) 15 EHRR CD 98. See also Application 33830/96 Venetucci v Italy; Application 15817/89 Wakefield v United Kingdom. 81 1984 c 47. 82 Repatriation of Prisoners (Overseas Territories) Order 1986 (SI 1986/2226), amended by SI 1987/1828. 83 UKTS No 51 (1985); Cmnd 9617. The Convention has been extended to Anguilla, Bermuda, the British Indian Ocean Territory, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn, St Helena, Ascension and Tristan da Cunha, the Sovereign Base Areas and the Virgin Islands. 84 Laws of Bermuda, 2002:9. See also, eg, the Repatriation of Prisoners Act of the Virgin Islands (Laws of the Virgin Islands, Cap 123).

190 Defence, Public Order and Security, and Emergency Powers territories is governed by the Extradition (Overseas Territories) Order 2002.85 That Order extends to all territories except Gibraltar the main provisions of the Extradition Act 1989,86 with modifications and, in the case of the British Antarctic Territory and the British Indian Ocean Territory, with further modifications and adaptations. Although the Extradition Act 1989 was repealed for the purposes of English law by the Extradition Act 2003,87 the repeal does not apply for the purposes of any British overseas territory except Gibraltar until provision has been made for, or by, the territory in question for replacing the provisions of the 1989 Act.88 Such provision may be made by Order in Council under section 177 or 178 of the 2003 Act or by the legislature of a territory. Gibraltar has enacted its own extradition legislation.89 By section 30 of the Extradition Act 1989, where an Order in Council is made under section 4 of the Act applying provisions of the Act to a foreign State, the provisions of the Act extend to every British overseas territory subject to any limitations specified in the Order and to the following modifications: (a) such modifications as to procedure as may be prescribed by the law of the territory; references to the territory are substituted for references to the United Kingdom; (b) an extradition request may be made to the Governor, and the Governor may exercise the powers of the Secretary of State; (c) extradition requests may be made by a consular representative recognised by the Governor; and (d) references to magistrates, courts or judges are construed as references to such judicial authority as the law of the territory provides.

Orders made under section 30 remain in force insofar as they form part of the law of any territory (other than Gibraltar), despite the repeal of that section for the purposes of English law.90 Orders in Council extending to overseas territories have been made under the 1989 Act to deal with extradition in implementation of various multilateral conventions.91

85 SI 2002/1823. Extradition as between the territories (except Gibraltar) and the Hong Kong Special Administrative Region is governed by the Extradition (Overseas Territories) (Application to Hong Kong) Order 2002 (SI 2002/1825). 86 1989 c 33. 87 2003 c 41. 88 Extradition Act 2003 (Commencement and Savings) Order 2003 (SI 2003/3103), art 5 (substituted by SI 2003/3258). 89 Fugitive Offenders Act 2002 (Laws of Gibraltar, 2002-15); European Arrest Warrant Act 2004 (Laws of Gibraltar, 2004-04). 90 Extradition Act 2003 (Commencement and Savings) Order 2003, n 88 above. 91 European Convention on Extradition (Dependent Territories) Order 1996 (SI 1996/2875); Extradition (Aviation Security) Order 1997 (SI 1997/1760); Extradition (Drug Trafficking) Order 1997 (SI 1997/1762); Extradition (Hijacking) Order 1997 (SI 1997/1763); Extradition (Internationally Protected Persons) Order 1997 (SI 1997/1764); Extradition (Protection of Nuclear Material) Order 1997 (SI 1997/1765); Extradition (Safety of Maritime Navigation) Order 1997 (SI 1997/1766); Extradition (Taking of Hostages) Order 1997 (SI 1997/1767); Extradition (Tokyo Convention) Order 1997 (SI 1997/1768); Extradition (Torture) Order 1997 (SI 1997/1769); Extradition (Terrorist Bombings) Order 2002 (SI 2002/1831).

Emergency Powers 191 In several territories there remain in force some Orders in Council applying the Extradition Act 187092 to foreign States.93 These Orders were saved by section 37(3) of the Extradition Act 1989, notwithstanding the repeal of the 1870 Act by the 1989 Act. The procedure to be followed in relation to such Orders is set out in Schedule 1 to the 1989 Act.

F. Anti-Terrorism Measures Several United Kingdom Acts designed to counter various aspects of terrorism have been extended, with modifications, to overseas territories by Order in Council.94 Similarly, Orders in Council made under the United Nations Act 194695 that implement United Nations Security Council resolutions dealing with terrorist activities have been extended to overseas territories.96 Some territories have enacted their own counter-terrorism legislation.97

G. Disarmament and Humanitarian Law Measures Various United Kingdom Acts dealing with aspects of disarmament and humanitarian law have been extended, with modifications, to overseas territories.98 EMERGENCY POWERS

In all overseas territories emergency powers are vested in Governors (or their equivalents), but the legal basis for the exercise of emergency powers is not uniform throughout the territories.

92

1870 c 52. See eg The United States of America (Extradition) Order 1976 (SI 1976/2144, as amended by SI 1986/2020); Spain (Extradition) (Dependent Territories) Order 1991 (SI 1991/997). 94 See eg Tokyo Convention Act 1967 (Overseas Territories) Order 1968 (SI 1968/1864); Protection of Aircraft Act 1973 (Overseas Territories) Order 1973 (SI 1973/1757); Internationally Protected Persons Act 1978 (Overseas Territories) Order 1979 (SI 1979/456); Taking of Hostages Act 1982 (Overseas Territories) Order 1982 (SI 1982/1540); Suppression of Terrorism Act 1978 (Overseas Territories) Order 1986 (SI 1986/2019); Aviation Security and Piracy (Overseas Territories) Order 2000 (SI 2000/3059); Anti-Terrorism (Financial and Other Measures) (Overseas Territories) Order 2002 (SI 2002/1822); Chemical Weapons (Overseas Territories) Order 2005 (SI 2005/854). 95 1946 c 45. 96 See eg Terrorism (United Nations Measures) (Overseas Territories) Order 2001 (SI 2001/3366); Al-Qa’ida and Taliban (United Nations Measures) (Overseas Territories) Order 2002 (SI 2002/112). 97 See eg Terrorism Act 2005 (Laws of Gibraltar, 2005-43); Anti-Terrorism (Financial and Other Measures) Act 2004 (Laws of Bermuda, 2004:31). 98 See eg Geneva Conventions Act (Colonial Territories) Order in Council 1959 (SI 1959/1301); Biological Weapons Act 1974 (Overseas Territories) Order 1975 (SI 1975/240); Criminal Justice Act 1988 (Torture) (Overseas Territories) Order 1988 (SI 1988/2242); Landmines Act 1998 (Overseas Territories) Order 2001 (SI 2001/3499); Geneva Conventions (Amendment) Act (Overseas Territories) Order 2002 (SI 2002/1076); Chemical Weapons (Overseas Territories) Order 2005 (SI 2005/854); International Criminal Court Act 2001 (Overseas Territories) Order 2009 (SI 2009/1738, as amended by SI 2010/763). 93

192 Defence, Public Order and Security, and Emergency Powers A. The Emergency Powers Order in Council 193999 The Emergency Powers Order in Council 1939 applies to the territories listed in the First Schedule, and thus to all British overseas territories except Anguilla, Bermuda, Montserrat and the Virgin Islands. The term ‘the Governor’ is defined in section 2(1) so as to include the Commissioner in the cases of the British Antarctic Territory, the British Indian Ocean Territory and South Georgia and the South Sandwich Islands, and the Administrator of the Sovereign Base Areas.100 Accordingly references in the Order to ‘the Governor’ include these Commissioners and that Administrator. Section 2(2) makes clear that, unless the context otherwise requires, a reference to ‘the Governor’ includes, to the extent of his or her authority, any person who is for the time being authorised to perform the functions of that office. The term ‘territory’ means any territory specified in the First Schedule and includes any territorial waters adjacent thereto.101 Section 3 enables the Governor, if he or she is satisfied that a public emergency102 exists, to issue a Proclamation putting Part II of the Order into operation, in the whole or any part of the territory, until he or she directs, by further Proclamation, that it shall cease to have effect. Under Part II of the Order, section 6 enables the Governor to make such Regulations as appear to him or her to be necessary or expedient for securing the public safety, the defence of the territory, the maintenance of public order and the suppression of mutiny, rebellion and riot, and for maintaining supplies and services essential to the life of the community.103 In particular, such Regulations may make provision for: (a) the detention of persons and the deportation and exclusion of persons from the territory; (b) taking possession or control of, or acquiring, property on behalf of Her Majesty; entering and searching any premises; (c) amending any law,104 suspending the operation of any law, and applying any law with or without modification; (d) charging fees in respect of the grant or issue of any licence, permit, certificate or other document for the purposes of the Regulations;

99 SI 1952/2031 (see SI 1952, I, p 621), as amended by SI 1956/731, 1963/88, 1963/1633, 1964/267, 1964/1199, 1965/131, 1968/724, 1973/759. The 1939 Order and amending Orders are sometimes referred to collectively as the Emergency Powers Orders in Council 1939 to 1973: see eg Turks and Caicos Islands Constitution s 17(1). 100 The Order applies to South Georgia and the South Sandwich Islands, and to the Commissioner for that territory, by virtue of the South Georgia and South Sandwich Islands Order 1985 s 12 (continuation of existing laws), the 1939 Order having originally listed in the First Schedule ‘Falkland Islands (Colony and Dependencies)’. 101 Emergency Powers Order in Council 1939, n 99 above, s 2(1). 102 A public emergency is a state of affairs calling for drastic action: see Bhagat Singh v King-Emperor (1931) LR 58 Ind App 169 (PC); Ningkan v Government of Malaysia [1970] AC 379 (PC), 390. 103 The Governor does not have unlimited discretion; any Regulations must be capable of relating to one or more of the prescribed purposes: Attorney-General for Canada v Hallett and Carey Ltd [1952] AC 427 (PC), 450. The imposition of a collective fine or punishment on all inhabitants of an area is capable of being related to ‘securing the public safety’ and to ‘the maintenance of public order’: RossClunis v Papadopoullos [1958] 1 WLR 546 (PC). 104 The term ‘law’ is defined in section 2(1) as meaning, in relation to any territory, any law made by any legislature established for the territory, including any instrument having the force of law made under any such law.

Emergency Powers 193 (e) the payment of compensation and remuneration to persons affected by the Regulations; and (f) the apprehension, trial and punishment of persons offending against the Regulations (but not trial by Military Courts).

By section 7, Regulations may provide for empowering such authorities or persons as may be specified in the Regulations to make orders and rules for any of the purposes for which such Regulations are authorised by the Order to be made. Section 8 provides that any Regulation, or any order or rule made under such a Regulation, shall have effect notwithstanding anything inconsistent with it contained in any law,105 and that any provision of a law which is so inconsistent shall, to the extent of the inconsistency, have no effect so long as such Regulation, order or rule remains in force. This provision, being in an Order in Council, could not apply to an Act of Parliament that extends to the territory as part of its law.106 Emergency regulations may also be constrained by subsequent Orders in Council that extend to the territory as part of its law. In some territories the constitution, which is set out in a subsequent Order in Council, operates to constrain the effect of emergency regulations. For example, section 17(1) of the Turks and Caicos Islands Constitution enables any Regulation made under the 1939 Order during a proclaimed period of public emergency to derogate from most, but not all, of the fundamental rights provisions of the Constitution to the extent ‘reasonably justifiable in the circumstances of any situation arising or existing during that period for the purpose of dealing with that situation’.107 Accordingly, the effect of section 8 of the 1939 Order is qualified to that extent. Moreover, no derogation is permitted by such Regulations from certain fundamental rights enshrined in the Constitution, such as the right to life, protection from torture and inhuman treatment, and protection from slavery and forced labour.108 B. The Leeward Islands (Emergency Powers) Order in Council 1959109 The Leeward Islands (Emergency Powers) Order in Council 1959 applies to Anguilla and used to apply to Montserrat. It makes provision broadly similar to the Emergency Powers Order in Council 1939. But it does not itself provide that Regulations made by the Governor under it have effect notwithstanding any other law in force in the territory. Accordingly, the Regulations need to make appropriate provision in this regard, as was done, for example, in the Emergency Powers Regulations 1996 made by the Governor of Montserrat in response to volcanic

105

For the definition of ‘law’, see n 104 above. Roberts-Wray is unequivocal about this: see K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 642. Halsbury’s Laws of England, vol 13, 5th edn (London, LexisNexis, 2009), considers it unlikely that Regulations would prevail against a subsequent Act of Parliament extending to the territory as part of its law (see para 819, fn 10). But there is no reason in principle why Regulations should prevail against any such Act, whenever enacted. 107 For provisions to similar effect, see Falkland Islands Constitution s 17; Gibraltar Constitution s 17(1); St Helena, Ascension and Tristan da Cunha Constitution ss 22, 138 and 204. 108 See further ch 9 above. 109 SI 1959/2206. 106

194 Defence, Public Order and Security, and Emergency Powers activity on the island.110 The Order specifies that in making Regulations the Governor need not consult the Executive Council of the territory. The Anguilla Constitution includes provisions permitting emergency regulations to derogate from some, but not all, of the fundamental rights provisions of the constitution.111

C. The Virgin Islands In the Virgin Islands, the exercise of emergency powers is governed by section 27 of the Constitution.112 The Governor may declare a period of public emergency by proclamation when the well-being or security of the Virgin Islands is threatened by war, invasion, general insurrection, public disorder, natural disaster or other public emergency, and the declaration is considered necessary by the Governor to maintain or restore peace and order. During a period of public emergency the Governor may make such regulations as appear to him or her necessary or expedient for securing the public safety, the defence of the Virgin Islands or the maintenance of public order, or for maintaining supplies and services essential to the life of the community. Such regulations shall have effect only prospectively; shall have effect (subject to section 27 itself) notwithstanding the provisions of any other law in the territory or any rule of law having effect there;113 and, unless sooner revoked, shall expire at the end of the period of public emergency during which they were made unless the Legislature provides for their continuance in force. In exercising these powers the Governor must consult the Cabinet or, if that is not practicable, the Premier, but if the Governor judges it impracticable to consult either the Cabinet or the Premier, the Governor may act in his or her discretion. Where the Cabinet or the Premier has been consulted, the Governor must act in accordance with any advice they give him, except in matters falling within the Governor’s special responsibilities prescribed in the Constitution or where instructed otherwise by a Secretary of State. Any proclamation of emergency must be laid before and debated in the House of Assembly as soon as practicable, and expires after 14 days unless sooner revoked or extended by resolution of the House of Assembly, but a new proclamation may be made at or before the end of the 14-day period. Section 27(5) permits emergency regulations to derogate from some, but not all, of the fundamental rights provisions of the Constitution. Section 27(3) expressly saves the power of the Legislature of the Virgin Islands to make laws under the Constitution, thus recognising that the normal legislative power remains even during a period of public emergency.

110

See Laws of Montserrat, Cap 10.08. Anguilla Constitution s 14. 112 SI 2007/1678. This Order in Council revoked the Virgin Islands (Emergency Powers) Order 1967 (SI 1967/472) which had previously regulated this subject in the territory. 113 As with s 8 of the 1939 Order, this cannot apply to an Act of Parliament that extends to the Virgin Islands as part of its law. 111

Emergency Powers 195 D. The Cayman Islands Section 21 of the Cayman Islands Constitution is in almost identical terms to section 27 of the Virgin Islands Constitution, but the Governor is not obliged to act in accordance with the advice of the Cabinet or the Premier in exercising emergency powers. Section 21, as part of the Bill of Rights, Freedoms and Responsibilities set out in Part I of the Constitution, is to come into force three years after the rest of the Constitution came into force.114 In the meantime, the Emergency Powers Order in Council 1939 remains available as it extends to the Cayman Islands.

E. Montserrat Section 18 of the Montserrat Constitution is in similar terms to section 21 of the Cayman Islands Constitution, and the Leeward Islands (Emergency Powers) Order in Council 1959 no longer applies to Montserrat.115

F. Bermuda None of the Orders in Council mentioned above applies to Bermuda. Instead there is in force there a locally enacted statute, the Emergency Powers Act 1963.116 This is modelled closely on the Emergency Powers Order in Council 1939, but Regulations made by the Governor under the Act must be laid before both Houses of the Legislature, and either the House of Assembly or the Senate may within ten sitting days require the Regulations to be annulled in whole or in part. Further, the power of the Governor to issue a proclamation of public emergency is regulated by section 14 of the Bermuda Constitution. The Governor must act after consultation with the Premier, but may act in his or her discretion if he or she judges such consultation to be impracticable. A proclamation of emergency must be laid before both Houses of the Legislature, and expires after 14 days unless sooner revoked or extended by resolution of each House, but a new proclamation may be made at or before the end of the 14-day period. Section 14(2) permits emergency laws to derogate from some, but not all, of the fundamental rights provisions of the Constitution.

G. Other Local Legislation There is nothing to prevent the legislature of a territory from enacting laws to deal with emergencies, either by providing an anticipatory framework such as the Orders

114 115 116

See s 4(2) of the Order. The rest of the Constitution came into force on 6 November 2009. See Montserrat Constitution s 116(2). Laws of Bermuda (1989 Revision), Title 10, Item 2.

196 Defence, Public Order and Security, and Emergency Powers in Council or the Bermuda Act117 described above or by addressing particular emergencies as they arise. Framework legislation could provide an alternative legal basis for emergency regulations to that provided by the relevant Order in Council applicable to the territory described above. Any such legislation must, of course, be in accordance with the constitution of the territory and must not be repugnant to any Act of Parliament (or subordinate legislation) that extends to the territory.118 It is of course important that those taking emergency measures are clear about the legislation under which they are operating.

117 Anguilla, the Cayman Islands, St Helena and the Turks and Caicos Islands have enacted emergency powers legislation similar to the Bermuda Act. 118 Colonial Laws Validity Act 1865 (1865 c 63) s 2.

11 Nationality and Belonger Status

I

N ANY BRITISH overseas territory most of the population have some form of British nationality, although at any time there are also a number of residents and visitors of other nationalities. British nationality is a matter exclusively for determination and regulation by United Kingdom Act of Parliament, and is accordingly a subject over which the Governments of the overseas territories have limited influence. By contrast, in most overseas territories there is also a local status, which is commonly called ‘belonger status’ or ‘belongership’, which is determined by the constitution or ordinary legislation of the territory concerned and not by Act of Parliament.1 In essence this status is accorded to those people considered by the legislator to have connections close enough with the territory to merit a privileged position within the territory. In some territories belongership is not confined to persons who have British nationality. This chapter examines the personal status of the people of the overseas territories in terms both of nationality and belongership. NATIONALITY

The people of the remaining 14 overseas territories have experienced a chequered history as regards British nationality. It may be helpful briefly to recount this history as background to the current position.

A. History Before 1949 people with defined connections with the overseas territories had the status of British subject, as did people with defined connections with the United Kingdom.2 This common national status was retained, but with an additional new title, by the British Nationality Act 1948,3 which came into force on 1 January 1949.4 That Act created the status of citizen of the United Kingdom and Colonies, which was acquired by persons born after 1 January 1949 by virtue of birth, 1 These terms are used in a generic sense. In some territories different terminology is used, such as ‘Caymanian’ in the Cayman Islands, ‘Montserratian’ in Montserrat, and ‘Bermudian status’ in Bermuda. 2 British Nationality and Status of Aliens Acts 1914 to 1943 (1914 c 17, 1918 c 38, 1922 c 44, 1933 c 49, 1943 c 14). 3 1948 c 56. 4 British Nationality Act 1948, n 3 above, s 34(2).

198 Nationality and Belonger Status registration or naturalisation in the United Kingdom or one of the colonies, or by descent.5 Thus the United Kingdom and the colonies, within which term all of the present 14 overseas territories fell, were treated as a single unit. As for people born before 1 January 1949, those who were British subjects by virtue of defined connections with the United Kingdom and the colonies before 1 January 1949 became citizens of the United Kingdom and Colonies on that date.6 Furthermore, the Act accorded the status of British subject to every citizen of the United Kingdom and Colonies, and provided that such a person may be known either as a British subject or as a Commonwealth citizen.7 So, after 1 January 1949 the people of the overseas territories, like those of the United Kingdom, had the national status of citizen of the United Kingdom and Colonies as well as that of British subject and Commonwealth citizen. As such they had, at least initially, the right to come and go from the United Kingdom in the same way as other citizens of the United Kingdom and Colonies. But this common status was seriously qualified by immigration restrictions imposed on people from the overseas territories by the Commonwealth Immigrants Acts 1962 and 1968.8 Then the Immigration Act 19719 confined the right of abode in the United Kingdom to those citizens of the United Kingdom and Colonies who had defined connections with the United Kingdom, the Channel Islands and the Isle of Man.10 Other citizens of the United Kingdom and Colonies required leave to enter or remain in the United Kingdom, unless otherwise provided by or under the Act.11 This division of citizenship of the United Kingdom and Colonies for immigration purposes was reflected in nationality law a few years later by the passage of the British Nationality Act 1981,12 which came into force on 1 January 1983.13 That Act abolished the status of citizenship of the United Kingdom and Colonies. Instead it created three categories of British nationality: British citizenship, British Dependent Territories citizenship, and British Overseas citizenship. People with defined connections with the United Kingdom, the Channel Islands or the Isle of Man could acquire British citizenship,14 whereas people that only had defined connections with a ‘dependent territory’ could acquire British Dependent Territories citizenship but not British citizenship.15 As well as dealing with the circumstances in which a person born after 1 January 1983 could acquire British Dependent Territories citizenship, the Act conferred that citizenship on citizens 5

Ibid ss 4 to 10. Ibid s 12. 7 Ibid s 1(1) and (2). 8 1962 c 21 and 1968 c 9. 9 1971 c 77. 10 Immigration Act 1971, n 9 above, ss 1 and 2. 11 Ibid s 3. 12 1981 c 61. 13 British Nationality Act 1981, n 12 above, s 53(2) and SI 1982/933. 14 See pt I (as originally enacted), read with definitions of ‘the Islands’ and ‘the United Kingdom’ in s 50(1). 15 See pt II and definition of ‘dependent territory’ in s 50(1) and sch 6 (as originally enacted). The definition included all the remaining 14 overseas territories (with South Georgia and the South Sandwich Islands originally being covered by the listing in sch 6 of ‘Falkland Islands and Dependencies’, and Ascension and Tristan da Cunha originally being covered by the listing there of ‘St Helena and Dependencies’). 6

Nationality 199 of the United Kingdom and Colonies who had that status before that date by virtue of defined connections with a territory.16 Thus, for the first time, people whose British nationality derived from a connection solely with a British overseas territory (then called a ‘dependent territory’) fell within a category of citizenship different from that of people whose nationality derived from a connection with the United Kingdom. The privileged immigration status of the latter group, which had been conferred by the Immigration Act 1971, was confirmed by the 1981 Act. Section 39(2) amended section 2 of the Immigration Act 1971 to read (so far as material): (1) A person is under this Act to have the right of abode in the United Kingdom if— (a) he is a British citizen; or (b) …

Thus the 1981 Act in general turned the people of the overseas territories into British Dependent Territories citizens and confirmed that they had no right of abode in the United Kingdom. But there were two exceptions. First, section 5 of the 1981 Act gave a right to registration as a British citizen, upon application, to a British Dependent Territories citizen ‘who falls to be treated as a national of the United Kingdom for the purposes of the Community Treaties’. This right was available only to British Dependent Territories citizens whose status as such derived from a connection with Gibraltar.17 Secondly, following the 1982 Falklands conflict Parliament enacted the British Nationality (Falkland Islands) Act 1983.18 This Act granted British citizenship to people who became British Dependent Territories citizens on the commencement of the 1981 Act and had defined connections with the Falkland Islands, and to people born after 1 January 1983 who had a specified connection with the Islands by birth, adoption or descent.19 It also provided for discretionary registration as British citizens of people with certain other connections with the Islands.20 The result of these various provisions was that among the overseas territories Gibraltar and the Falkland Islands were placed in a privileged position, both as regards nationality and, in consequence, as regards United Kingdom immigration law. Unsurprisingly, the situation produced by the 1981 Act, and the exceptions for Gibraltar and the Falkland Islands, caused resentment in some of the other territories. In particular St Helena, whose people are especially proud of their loyalty to the Crown, campaigned tirelessly for the restoration of ‘full citizenship’ and set up a Citizenship Commission to that end.21

16

s 23. By virtue of the Declaration by the United Kingdom on the meaning of the term ‘nationals’ (Rome, 31 December 1982; UKTS No 67 (1983); [1983] OJ C23/1). 18 1983 c 6. 19 British Nationality (Falkland Islands) Act 1983, n 18 above, s 1. 20 Ibid s 2. 21 See 1999 White Paper ‘Partnership for Progress and Prosperity: Britain and the Overseas Territories’ (Cm 4264) p 17. 17

200 Nationality and Belonger Status B. British Overseas Territories Act 2002: The Grant of British Citizenship The campaigning efforts of the people of St Helena were eventually rewarded with the enactment of the British Overseas Territories Act 2002,22 which implemented important features of the 1999 White Paper entitled ‘Partnership for Progress and Prosperity: Britain and the Overseas Territories’.23 By this time the total number of British Dependent Territories citizens was around 200,000.24 Hong Kong had reverted to China in 1997, thus reducing the numbers dramatically.25 Quite apart from the point of principle of restoring the pre-1983 situation, any argument against it on immigration grounds had virtually disappeared or was considered manageable, as the White Paper acknowledged.26 Before dealing substantively with nationality, the 2002 Act amended the British Nationality Act 1981 by introducing the term ‘British overseas territory’ (defined as ‘a territory mentioned in Schedule 6’) in place of ‘dependent territory’.27 It renamed British Dependent Territories citizenship as ‘British overseas territories citizenship’ and British Dependent Territories citizen as ‘British overseas territories citizen’, and required references to the old terms in previous legislation to be read as the new terms.28 It also amended the Interpretation Act 197829 by inserting in Schedule 1 a definition of the term ‘British overseas territory’ by reference to its meaning in the 1981 Act.30 These provisions came into force on Royal Assent (26 February 2002). The 2002 Act then made substantive amendments and additions to the British Nationality Act 1981 in sections 3 to 6 and Schedule 1, which came into force on 21 May 2002.31 Section 3 provides: (1) Any person who, immediately before the commencement of this section, is a British overseas territories citizen shall, on the commencement of this section, become a British citizen. (2) Subsection (1) does not apply to a person who is a British overseas territories citizen by virtue only of a connection with the Sovereign Base Areas of Akrotiri and Dhekelia. (3) A person who is a British citizen by virtue of this section is a British citizen by descent for the purposes of the British Nationality Act 1981 if, and only if— (a) he was a British overseas territories citizen by descent immediately before the commencement of this section, and (b) if at that time he was a British citizen as well as a British overseas territories citizen, he was a British citizen by descent.

22

2002 c 8. Cm 4264. 24 See Explanatory Notes for the 2002 Act para 5. 25 The British Nationality (Hong Kong) Act 1997 (1997 c 20) had conferred British citizenship on certain British nationals in Hong Kong. 26 See ‘Partnership for Progress and Prosperity’, n 21 above, para 3.9. 27 British Overseas Territories Act 2002, n 22 above, s 1. See further ch 1 above. 28 British Overseas Territories Act 2002, n 22 above, s 2. See further ch 1 above. 29 1978 c 30. 30 British Overseas Territories Act 2002, n 22 above, s 1(3). See further ch 1 above. 31 British Overseas Territories Act 2002, n 22 above, s 8(2) and SI 2002/1252. The commencement date was the 500th anniversary of the discovery of St Helena. 23

Nationality 201 Section 3 therefore granted British citizenship to all who were British overseas territories citizens32 on 21 May 2002, with the exception of those who were British overseas territories citizens by virtue only of a connection with the Sovereign Base Areas. This exception is explained as being ‘because of the special position of this territory as a military base’.33 Section 3(3) defines which of the persons who became British citizens under subsection (1) are to be treated as British citizens by descent for the purposes of the 1981 Act. This matters, because under that Act British citizenship can in general only be passed by descent to one generation; so British citizens by descent cannot normally pass their citizenship on to their children automatically. Section 4 of the 2002 Act inserted into the 1981 Act a new section 4A, which gives the Secretary of State discretion to register a British overseas territories citizen, upon application, as a British citizen. But this does not apply in the case of a British overseas territories citizen who (a) is such a citizen by virtue only of a connection with the Sovereign Base Areas, or (b) has ceased to be a British citizen as a result of a declaration of renunciation. A person aged at least 10 at the date of application may not now be registered unless the Secretary of State is satisfied that he or she is ‘of good character’.34 Section 5 and Schedule 1 made a number of further amendments to the 1981 Act to deal with the acquisition of British citizenship after 21 May 2002 by reference to the overseas territories. The amendments introduced two new terms into the 1981 Act: ‘the appointed day’, being the date of commencement of Schedule 1 (21 May 2002), and ‘qualifying territory’, being a British overseas territory other than the Sovereign Base Areas.35 Schedule 1, paragraph 1 deals with acquisition of British citizenship by birth or adoption. It amended section 1 of the 1981 Act so as to put the qualifying territories in the same position as the United Kingdom. By paragraph 1(2) a person born on or after 21 May 2002 in a qualifying territory becomes a British citizen if at the time of the birth his or her father or mother is either a British citizen or settled in the territory.36 This reflects the basic rule on acquisition of British citizenship by birth in the United Kingdom. Paragraph 1(3) provides for foundlings. A new-born infant who is found on or after 21 May 2002 abandoned in a qualifying territory is, unless the contrary is shown, to be deemed to have been born in that territory on or after that date to a parent who at the time of the birth was a British citizen or settled in that territory. Such a foundling would therefore acquire British citizenship in the same way as a new-born infant found abandoned in the United Kingdom in similar circumstances. Paragraph 1(4) deals with adoption. A minor adopted on or after 21 May 2002 by order of a court in a qualifying territory becomes a British citizen if the adopter

32

Having become so by virtue of s 2, which came into force on 26 February 2002. See Explanatory Notes for the Act para 6. In any case most of the local inhabitants of the Sovereign Base Areas are also citizens of the Republic of Cyprus. 34 Immigration, Asylum and Nationality Act 2006 (2006 c 13) s 58. 35 See British Overseas Territories Act 2002, n 22 above, sch 1 para 5(1) and (2). 36 The term ‘settled’ is defined in detail in s 50 of the 1981 Act. 33

202 Nationality and Belonger Status is a British citizen or, in the case of a joint adoption, one of the adopters is a British citizen.37 Schedule 1, paragraph 2 deals with citizenship by descent. It amended section 2 of the 1981 Act to assimilate the qualifying territories to the United Kingdom for the purpose of acquisition of British citizenship by descent. A person born outside the United Kingdom and the qualifying territories on or after 21 May 2002 becomes a British citizen if at the time of the birth his or her father or mother is either (a) a British citizen otherwise than by descent; or (b) a British citizen serving abroad in Crown service under the Government of the United Kingdom or of a qualifying territory having been recruited in the United Kingdom or a qualifying territory; or (c) a British citizen serving abroad in service designated under section 2(3) of the 1981 Act by the Secretary of State (service closely associated with the activities outside the United Kingdom of Her Majesty’s Government in the United Kingdom or a qualifying territory) having been recruited in the United Kingdom or a qualifying territory; or (d) a British citizen serving abroad in service under a European Union institution, having been recruited in a European Union Member State.

Schedule 1, paragraph 3 amended section 3 of the 1981 Act, which deals with the registration of minors as British citizens. The effect is to assimilate the qualifying territories with the United Kingdom for the purpose of calculating periods of presence which would entitle an infant or a minor, who was born outside the United Kingdom or the qualifying territories on or after 21 May 2002, to be registered as a British citizen. Schedule 1, paragraph 5 amended section 50 of the 1981 Act, both to include the new terms mentioned above but also to make equivalent provision as between the United Kingdom and the qualifying territories for determining when a person born aboard a ship or aircraft is to be deemed born in the United Kingdom or a qualifying territory. Schedule 1, paragraphs 4 and 6 made consequential amendments to the 1981 Act to take account of the acquisition of British citizenship by virtue of the 2002 Act, in particular to ensure that those acquiring such citizenship become ‘Commonwealth citizens’. Section 6 of the 2002 Act made special provision for the ‘Ilois’.38 It conferred British citizenship and/or British overseas territories citizenship, with effect from 21 May 2002, on persons connected by descent with the British Indian Ocean Territory who fulfilled certain conditions. The conditions for conferral of British citizenship were that the person (a) was born on or after 26 April 1969 and before 1 January 1983; (b) was born to a woman who at the time was a citizen of the United Kingdom and Colonies by virtue of her birth in the British Indian Ocean Territory; and

37 Provision has since been made regarding adoptions under the Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29 May 1993: see amendments to ss 1 and 50 of the 1981 Act made by the Adoption and Children Act 2002 (2002 c 38). 38 ‘Ilois’ was the name by which the former inhabitants of the British Indian Ocean Territory and their descendants were known. The term now more commonly used is ‘Chagossian’.

Nationality 203 (c) immediately before 21 May 2002 was neither a British citizen nor a British overseas territories citizen.

The conditions for conferral of British overseas territories citizenship were the same except for the third, which was that the person was not a British overseas territories citizen immediately before 21 May 2002. Persons who became British citizens or British overseas territories citizens by virtue of this section are such citizens by descent for the purposes of the 1981 Act. The reason for these special provisions is that, because of the progressive evacuation of the British Indian Ocean Territory in the late 1960s and early 1970s, many children of mothers born there were necessarily born outside the Territory and, before the 1981 Act came into force on 1 January 1983, could only acquire citizenship by descent through their fathers. Where a father did not have British nationality his child could not, under the law then in force, acquire it from him by descent. Section 6 of the 2002 Act corrected that anomaly. Section 7 and Schedule 2 repealed some otiose provisions of the 1981 Act and most of the British Nationality (Falkland Islands) Act 1983, which had been superseded by the 2002 Act.

C. Retention of British Overseas Territories Citizenship The British Overseas Territories Act 2002 did not substantively disturb the provisions of the British Nationality Act 1981 relating to the acquisition of British overseas territories citizenship. These are set out in Part II of the 1981 Act, and broadly reflect the means of acquisition of British citizenship. Thus, British overseas territories citizenship may be acquired by birth or adoption in a territory,39 by registration40 or naturalisation41 in a territory, or by descent from a British overseas territories citizen.42 As regards registration and naturalisation, the functions of the Secretary of State under the Act are delegated to Governors pursuant to arrangements made by the Home Secretary under section 43 of the Act.43 There would seem to be no obstacle in principle to the acquisition of British overseas territories citizenship in more than one territory, nor to a British citizen acquiring British overseas territories citizenship in a territory.44 The British Overseas Territories Act 2002 did not substitute British citizenship for British overseas territories citizenship in the case of any person. Nor did it affect the provisions of the 1981 Act enabling any person to renounce his or her British citizenship or British overseas territories citizenship.45 The result is that most of the inhabitants of the overseas territories (other than the Sovereign Base Areas) have both British citizenship and British overseas territories citizenship, but they may 39

British Nationality Act 1981, n 12 above, s 15. Ibid ss 17 and 22. Former ss 19, 20 and 21 were repealed by virtue of the Nationality, Immigration and Asylum Act 2002 (2002 c 41). 41 British Nationality Act 1981, n 12 above, s 18. 42 Ibid ss 16 and 25. 43 Home Office letters of 19 March and 1 July 2004 to all Governors. 44 This may be useful, or essential, as a step to acquiring belongership of a territory. 45 British Nationality Act 1981, n 12 above, ss 12 and 24. 40

204 Nationality and Belonger Status renounce either (or both). While British citizenship carries with it the right of abode in the United Kingdom, British overseas territories citizenship (alone) does not. This is because section 2 of the Immigration Act 1971 (as amended by section 39(2) of the 1981 Act) continues to grant the right of abode in the United Kingdom to British citizens but not to British overseas territories citizens. British citizenship acquired by virtue of a connection with the United Kingdom does not carry with it automatic right of abode in any territory.

D. Summary of Present Position In light of the foregoing, the present position may be summarised as follows. The great majority of the inhabitants of the overseas territories have both British citizenship and British overseas territories citizenship. Either or both of these citizenships may be renounced. Only British citizenship confers the right of abode in the United Kingdom. In the Sovereign Base Areas, however, most of the local inhabitants have British overseas territories citizenship but not British citizenship. In other territories there are likely at any time to be a number of people who possess British overseas territories citizenship but not British citizenship, because they have been naturalised or registered as British overseas territories citizens since 21 May 2002. To acquire British citizenship as well they must apply to the Secretary of State under the British Nationality Act 1981.46 Governors have no power to naturalise or register persons as British citizens. There may also, at any time, be persons in the territories who are either British citizens or British overseas territories citizens because they have renounced one status or the other. There are also in the territories some residents or visitors who are British citizens only, because they acquired that status solely by virtue of a connection with the United Kingdom, the Channel Islands or the Isle of Man and have not been naturalised or registered locally as British overseas territories citizens. BELONGER STATUS

In most of the overseas territories there has been established a local status, commonly known as ‘belonger status’ or ‘belongership’,47 which is held by persons on whom it is conferred by or pursuant to the constitution or local legislation. But no such status has been so established in Ascension, the British Antarctic Territory, South Georgia and the South Sandwich Islands, or the Sovereign Base Areas. Nor has it in Pitcairn and Tristan da Cunha in terms of general belonger status, but certain persons have the right of abode in those islands by virtue of local legislation.48

46

Including, but not exclusively, under s 4A inserted by the British Overseas Territories Act 2002. These terms are used in a generic sense. See n 1. 48 Right of Abode Ordinance (Laws of Pitcairn, Ordinance No 1 of 2010); Entry Control Ordinance (Laws of Tristan da Cunha, Ordinance No 1 of 1967). 47

Belonger Status 205 Exceptionally, in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)49 the House of Lords appeared to proceed on the basis that the Chagossians (the former inhabitants of the British Indian Ocean Territory and their descendants) could be regarded as ‘belongers’ of that territory even though no legislation granted them that status. While this might be understandable as regards the applicant Bancoult, who was born in the territory, an obvious difficulty with such a judicial determination is to know precisely who else would count as a ‘belonger’ in the absence of a legislative definition. For example, would the grandchild or greatgrandchild of a person born in the territory be a ‘belonger’? The circumstances might also be considered exceptional because an Immigration Ordinance of the British Indian Ocean Territory made in 2000 (and revoked in 2004) had granted access to certain islands to anyone who was a British Dependent Territories citizen by virtue of his or her connection with the territory.50 Although not called ‘belongers’ in the Ordinance, this came close to a legislative definition of those considered sufficiently closely connected with the territory to be regarded as belonging to it for immigration purposes. It is important to distinguish belonger status from nationality or citizenship; no overseas territory has its own nationality or citizenship. But belonger status can fairly be described as the equivalent of a local ‘citizenship’ of an overseas territory, in the sense that it is granted to those who are regarded as having connections with a territory close enough to ‘belong’ to the territory. There is no uniformity in the various provisions of territories that define who is, or may become, a ‘belonger’. The general pattern is that belongers fall into two broad categories: (1) those who are regarded as sufficiently indigenous to the territory and are thus belongers by operation of the relevant legislation; and (2) those who have been granted belonger status by means of a process and machinery established by the legislation. Into the second category commonly fall outsiders who have resided in the territory for a certain period and who have applied for belonger status, and in some cases outsiders who have married belongers. Nor is there uniformity as to where the provisions defining belongers may be found. Some are set out in the constitution of the territory, some in ordinary local legislation. But even in cases where the definition is contained in ordinary legislation, some of the incidents of belonger status are enshrined in the constitution of the territory concerned.

A. Constitutional Definitions The constitutions of Anguilla, Montserrat, the Falkland Islands and the Virgin Islands51 define who is a belonger for the purposes of the constitution, and in doing

49 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL). 50 See judgment of Lord Hoffmann, ibid para 18. 51 Anguilla Constitution Order 1982 (SI 1982/334, as amended by SI 1983/1108 and 1990/587); Montserrat Constitution Order 2010 (SI 2010/2474); Falkland Islands Constitution Order 2008 (SI 2008/2846); Virgin Islands Constitution Order 2007 (SI 2007/1678).

206 Nationality and Belonger Status so they provide convenient vehicles for establishing belonger status in the law of these territories. In Anguilla, section 80 of the Constitution establishes an Anguilla Belonger Commission and defines in detail who is to be regarded as belonging to Anguilla for the purposes of the Constitution. Some categories of people falling within the definition are automatically belongers by virtue of its terms, whereas others become belongers if granted that status by the Commission. It is clear from the definition that belonger status is not confined to persons with British nationality.52 Section 107(2) of the Montserrat Constitution defines the term ‘Montserratian’ for the purposes of the Constitution in similar terms and according to the same pattern, except that it does not establish a Commission. Section 22(5) of the Falkland Islands Constitution defines who has ‘Falkland Islands status’ and is therefore regarded as belonging to the Falkland Islands for the purposes of the fundamental rights chapter of the Constitution. As in Anguilla, some categories of people automatically have status by virtue of the definition, while others only come within the definition if they have been granted Falkland Islands status under an Ordinance providing for the grant of that status in defined circumstances. Other categories of people are given a constitutional right to apply for Falkland Islands status under such an Ordinance.53 In the Virgin Islands, section 2(2) of the Constitution defines who belongs to the Virgin Islands for the purposes of the Constitution. The pattern is similar to that in Anguilla, Montserrat and the Falkland Islands, with some automatic belongers and some requiring a grant under local legislation. Belonger status is not confined to British nationals, and a constitutional right to apply for that status is granted to any British overseas territories citizen by virtue of naturalisation in the Virgin Islands. By contrast with those territories, the constitutions of Bermuda,54 the Cayman Islands,55 Gibraltar,56 St Helena, Ascension and Tristan da Cunha57 and the Turks and Caicos Islands58 define belongers by reference to local legislation. This obviously allows more flexibility to adjust the definition in the light of changing circumstances.

B. Definitions in Local Legislation In Gibraltar there is specific legislation which defines who has ‘Gibraltarian status’: the Gibraltarian Status Act 1962.59 In Bermuda, Bermudian status is determined

52

See the distinction between sub-s (2)(a) and sub-s (2)(b) to (f) of the Anguilla Constitution. Falkland Islands Constitution s 22(7). 54 Bermuda Constitution (SI 1968/182, as amended by SI 1968/463, 1968/726, 1973/233, 1979/452, 1979/1310, 1989/151, 2001/2579, 2003/456) s 102(3) (definition of ‘Bermudian status’). 55 Cayman Islands Constitution (SI 2009/1379) ss 28 and 124(1) (definition of ‘Caymanian’). 56 Gibraltar Constitution (SI 2006, III, p 11503) s 18(3). 57 St Helena, Ascension and Tristan da Cunha Constitution (SI 2009/1751) s 115 (definition of ‘St Helenian status’). 58 Turks and Caicos Islands Constitution (SI 2006/1913) s 99(1) (definition of ‘Belonger’). 59 Laws of Gibraltar, 1962-13. 53

Belonger Status 207 according to the Immigration and Protection Act 195660 and the Bermudian Status by Birth or Grant Register Act 1992.61 In other territories the definition of belonger in local legislation frequently occurs in immigration legislation. Recent examples are Part 3 of the Immigration Control Ordinance 2008 of St Helena,62 which defines who has ‘St Helenian status’, and Part III of the Immigration Law of the Cayman Islands,63 which defines who is a ‘Caymanian’.

C. Incidents of Belonger Status In practice the main incident of belonger status is a right of abode in the territory. Immigration is a matter which is regulated by the legislatures of the overseas territories, and each territory has its own immigration legislation. Whereas most people arriving in a territory require leave to enter, belongers (and any others who have been granted a right of abode) do not. The result is that a British citizen who is a belonger of an overseas territory has the right of abode in the United Kingdom by virtue of possessing British citizenship and a right of abode in the territory by virtue of possessing belonger status there. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)64 the House of Lords had to consider whether a provision of an Order in Council denying anyone the right of abode in a territory was unlawful. Section 9 of the British Indian Ocean Territory (Constitution) Order 200465 provides: (1) Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory. (2) Accordingly, no person is entitled to enter or be present in the Territory except as authorised by or under this Order or any other law for the time being in force in the Territory.

While apparently proceeding on the basis that the former inhabitants of the territory could be regarded as its ‘belongers’, the majority of their Lordships held that section 9 of the 2004 Order was lawful. They rejected the argument that a right of abode was so sacred and fundamental that the Crown had no power to remove it, and that only an Act of Parliament could do so. As Lord Hoffmann said:66 [T]he right of abode is a creature of the law. The law gives it and the law may take it away. In this context I do not think that it assists the argument to call it a constitutional right. The constitution of BIOT denies the existence of such a right. I quite accept that the right of abode, the right not to be expelled from one’s country or even one’s home, is an important right. General or ambiguous words in legislation will not readily be construed as intended to remove such a right: see R v Secretary of State for the Home Department, Ex p 60 61 62 63 64 65 66

Laws of Bermuda (1989 Revision), Title 5, Item 16. Laws of Bermuda (1989 Revision), Title 5, Item 2. Laws of St Helena, Ordinance No 9 of 2008. Laws of the Cayman Islands, Law 34 of 2003 (2009 Revision). Bancoult (No 2), n 49 above. See Annex, p 305 below. Bancoult (No 2), n 49 above, para 45.

208 Nationality and Belonger Status Simms [2000] 2 AC 115, 131–132. But no such question arises in this case. The language of section 9 could hardly be clearer.

The majority also held that the exercise of the Crown’s legislative power in making the 2004 Order for the ‘peace, order and good government of the territory’ was not justiciable as failing to achieve those purposes. The House of Lords was, however, prepared to consider whether section 9 of the Order was invalid on grounds of irrationality or procedural impropriety. The majority held that in the circumstances of the case it was not. Apart from the right of abode, there are various incidents of belonger status which vary according to the legislation of different territories. But it is common to find that belongers are accorded privileged status as regards such matters as employment, business activities and property rights. They also often enjoy privileges in the political life of the territory, such as the right to vote and to stand as a candidate for election. In some territories the latter privileges are enshrined in the constitution, usually with additional residence requirements.67 At the same time, the constitutions of several territories restrict the extent to which privileged treatment may be accorded to belongers. For example, section 26(4)(b) of the Virgin Islands Constitution permits discriminatory legislation: with respect to the entry into or exclusion from, or the employment, engaging in any business or profession, movement or residence within, the Virgin Islands of persons who do not belong to the Virgin Islands, or for any other purpose with respect to such persons to the extent that the provision is reasonably justifiable in a democratic society.

Equivalent provision is made in section 16(4)(a) of the Falkland Islands Constitution, and, without the last two lines, in the constitutions of Bermuda,68 the Cayman Islands,69 Montserrat70 and the Turks and Caicos Islands.71 The Constitution of St Helena, Ascension and Tristan da Cunha adopts a different approach, permitting discriminatory legislation or action to the extent that it has an objective and reasonable justification and there is a reasonable proportion between the provision of law in question or, as the case may be, the thing done under it and the aim which that provision or the thing done under it seeks to realise.72

D. The Relationship with British Nationality It might be thought that anyone who is a British citizen or a British overseas territories citizen by virtue only of a connection with a particular overseas territory would have belonger status in that territory. But that is not necessarily so. It depends on the 67 Eg Cayman Islands Constitution ss 61 and 90; Falkland Islands Constitution ss 28 and 32; Virgin Islands Constitution ss 65 and 68 (but to be qualified for election a person must be a ‘Virgin Islander’ as defined in s 65(2), which is a restricted category of Virgin Islands belongers). 68 Bermuda Constitution s 12(4)(b). 69 Cayman Islands Constitution s 16(4)(b). 70 Montserrat Constitution s 16(5)(b). 71 Turks and Caicos Islands Constitution s 15(4)(b). 72 St Helena, Ascension and Tristan da Cunha Constitution ss 21(4), 137(4) and 203(4). Similarly, see Pitcairn Constitution (SI 2010/244) s 23(4). By contrast, the Anguilla Constitution s 13(4)(a), and the Gibraltar Constitution s 14(4)(b), allow far greater scope to discriminate in favour of belongers.

Belonger Status 209 constitution or other legislation in force in each territory. As far as the right of abode is concerned, there would have been a tidy logic in the British Nationality Act 1981 providing that (a) a British citizen has the right of abode in the United Kingdom, and (b) a British overseas territories citizen by virtue of a connection with a particular overseas territory has the right of abode in that territory. But while it provided for the former,73 it did not provide for the latter, and nor has any other Act of Parliament done so. Accordingly, the policy of Parliament has been to leave the determination of the right of abode in the overseas territories to the territory legislatures (whether local or Her Majesty in Council), and the same applies to the determination of belonger status, of which the right of abode is the principal incident. The result is that in several territories there is no right of abode there for a number of people who have British citizenship or British overseas territories citizenship by virtue only of a connection with the territory in question. Those who have British citizenship have the right of abode in the United Kingdom. And those who also have the citizenship of another country may well have the right of abode in that country. But there remains a disjunction between British nationality and belonger status in a number of cases. This is a consequence of nationality remaining a matter for the United Kingdom Parliament and belonger status and local immigration being left to each territory. In the substantially populated territories there is hardly a more sensitive local political issue than belonger status and immigration. In the exceptional cases where the United Kingdom Government has intervened to determine immigration law and policy for a territory, this has proved highly controversial, as the Bancoult litigation discussed earlier in this chapter shows.74

E. Constitutional Protection The St Helena, Ascension and Tristan da Cunha Constitution provides express protection against arbitrary deprivation of St Helenian status in the cases of St Helena and Ascension,75 and against arbitrary deprivation of the right of abode for those who possess it under local law in the case of Tristan da Cunha.76 Moreover, it provides constitutional protection against arbitrary deprivation of British citizenship in all three islands.77 The legal efficacy of the latter provisions is limited, given the power of Parliament to determine British citizenship, which is unaffected by the Order in Council conferring the Constitution. But they send a powerful political message, expressing the continuing strength of feeling in St Helena about the period between 1983 and 2002 during which its people were deprived of full citizenship and the rights that went with it. At the request of the people of Pitcairn, equivalent provisions are contained in the Pitcairn Constitution.78 73

British Nationality Act 1981, n 12 above, s 39(2). Bancoult (No 2), n 49 above, and earlier litigation there described. 75 St Helena, Ascension and Tristan da Cunha Constitution ss 20(1) (St Helena) and 136(1) (Ascension). The latter provision is explained by the fact that many St Helenians live on Ascension, but there is no belonger status or right of abode for anyone on Ascension. 76 Ibid s 202(1). 77 Ibid ss 20(2) (St Helena), 136(2) (Ascension) and 202(2) (Tristan da Cunha). 78 Pitcairn Constitution s 22. 74

12 Public Finance

E

ACH OVERSEAS TERRITORY has its own public funds, rules for the raising of revenue and public expenditure, and audit arrangements. The United Kingdom Government has traditionally expected each territory to be financially self-sufficient, and continues to do so, but provides assistance where it considers it necessary or appropriate. Several territories also benefit from financial assistance from the European Union. Within this framework, the territories have a large degree of autonomy in financing themselves. This chapter looks at a variety of aspects of the arrangements for public finance in the territories. CONSTITUTIONAL RESPONSIBILITY

In the less populated territories, executive constitutional responsibility for finance lies with the Governor (or equivalent), as part of his or her general executive responsibilities.1 In territories with ministerial systems of government, there is a Minister responsible for finance. This is expressly required in the Constitution of Bermuda,2 section 61(1) of which provides (so far as material) that a Minister appointed from among the members of the House of Assembly shall be charged with responsibility for finance and shall be styled ‘Minister of Finance’.

One purpose of this provision, in the only territory with a bicameral legislature, is to ensure that the Minister of Finance is in the elected House of Assembly rather than the appointed Senate. By contrast, in Anguilla there is no constitutional requirement for a finance Minister, and the appointment of such a Minister is a matter for the Governor, acting in accordance with the advice of the Chief Minister.3 The same applies in other territories, but in those cases ministerial responsibility for finance can be deduced from constitutional provisions referring to, or conferring functions on, the Minister responsible for finance. For example, Chapter 8 (entitled ‘Finance’) 1 British Antarctic Territory, British Indian Ocean Territory, Pitcairn, South Georgia and the South Sandwich Islands, Sovereign Base Areas. The Governor is also temporarily responsible for finance in the Turks and Caicos Islands, by virtue of the Turks and Caicos Islands (Interim Amendment) Order 2009 (SI 2009/701), although normally there is a Minister responsible for finance in that territory: see Turks and Caicos Islands Constitution (SI 2006/1913) s 38(1)(d). 2 SI 1968/182, as amended by SI 1968/463, 1968/726, 1973/233, 1979/452, 1979/1310, 1989/151, 2001/2579, 2003/456. 3 Anguilla Constitution (SI 1982/334, as amended by SI 1983/1108 and 1990/587) ss 24(2) and 27(1). But the Governor has special responsibility for ‘international financial services or any directly related aspect of finance’: see s 28(2)(a).

Constitutional Responsibility 211 of the Virgin Islands Constitution4 confers various functions on the ‘Minister charged with responsibility for finance’, not least the duty to cause to be prepared and laid before the House of Assembly estimates of revenue and expenditure before each financial year.5 The constitutions of Bermuda, Gibraltar and Montserrat contain finance chapters that confer equivalent functions on the Ministers responsible for finance in those territories.6 In some of these territories the office of the senior public officer with responsibility for finance is a constitutional office. In the Cayman Islands the Constitution establishes the office of Financial Secretary as the principal adviser to the finance Minister.7 In Montserrat the Financial Secretary is an ex officio member of the Cabinet and the Legislative Assembly.8 In the Turks and Caicos Islands the Permanent Secretary, Finance is fourth in line to act as Governor and, for the time being, is an ex officio member of the Advisory Council and the Consultative Forum.9 The division of statutory functions between a finance Minister and the senior finance official is regulated by the ordinary legislation of a territory.10 In St Helena, finance remains one of the special executive responsibilities of the Governor, but the Governor may charge a Council Committee with responsibility for financial matters.11 The office of Financial Secretary is a constitutional office, the Financial Secretary being an ex officio member of the Executive Council and the Legislative Council and having functions under the finance chapter of the Constitution equivalent to, but exceeding, those conferred on the finance Minister in territories with a ministerial system.12 In Ascension, similar functions are conferred on the Director of Financial Services.13 Otherwise, the Governor has executive constitutional responsibility for finance in Ascension, as well as in Tristan da Cunha, as part of his or her general executive responsibilities, subject to any legislation of those islands. Finally, in the Falkland Islands the Governor has no express constitutional responsibility for finance, but may act against the advice of the Executive Council if, in his or her judgement, such advice would affect audit.14 The office of Director of Finance is a constitutional office, the Director of Finance being an ex officio member of the Legislative Assembly and the Executive Council and having the traditional functions under the finance chapter of the Constitution.15

4 Virgin Islands Constitution (SI 2007/1678). See also Cayman Islands Constitution (SI 2009/1379) s 115. 5 Virgin Islands Constitution s 104, and ss 103, 105, 106 and 109. 6 Bermuda Constitution ss 95–98; Gibraltar Constitution (SI 2006, III, p 11503) ss 69–71; Montserrat Constitution (SI 2010/2474) ss 91–93, 95, 98 and 100. 7 Cayman Islands Constitution s 115. 8 Montserrat Constitution ss 32(1) and 48(1). 9 Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (SI 2009/701) sch 2 paras 1(1), 5(1) and 9(2). This is intended to be a temporary arrangement, while ministerial government and the House of Assembly are suspended by that Order. 10 See eg Public Finance (Control and Audit) Act 1977 (Laws of Gibraltar, 1977–09); Public Finance (Borrowing Powers) Act 2008 (Laws of Gibraltar, 2008–13). 11 St Helena, Ascension and Tristan da Cunha Constitution (SI 2009/1751) ss 44(1)(f) and 58(2). 12 Ibid ss 35(1), 48, 100–05, 109 and 112. 13 Ibid ss 168–174, 177 and 179. 14 Falkland Islands Constitution (SI 2008/2846) s 67(1)(b) and (2)(e). 15 Ibid ss 26(2), 57(1) and 76–78.

212 Public Finance REVENUE

The legislature of each territory has power to make laws for ‘the peace, order and good government of the territory’. This allows each territory to legislate to raise revenue for the territory, subject to there being a sufficient connection between the territory and those from whom revenue is raised.16 The same limitation should in principle apply to the reserved power to legislate for each territory except Bermuda by Order in Council, as the power is in each case expressed to be for the peace, order and good government of the territory. No such limitation applies to the power of the United Kingdom Parliament to legislate for any territory. In practice, however, the raising of revenue in the territories has been left to their local legislatures. In all territories the raising of revenue requires the authority of a legislative act. No territory constitution confers power on an executive authority to raise revenue. The Constitution of St Helena, Ascension and Tristan da Cunha expressly requires the authority of legislation. Section 97(1) provides (in relation to St Helena): No tax, rate or other similar levy shall be imposed except under the authority of an Ordinance.

Section 165(1) makes equivalent provision in respect of Ascension. The Montserrat Constitution has an almost identical provision.17 To similar effect, section 111(1) of the Cayman Islands Constitution provides: The Legislature shall have the authority to levy or change the rates of revenue unless otherwise provided by law.

In other territories there is no such constitutional provision, but the need for legislative authority to raise revenue is necessarily implied. In territories with elected legislative bodies, it is common to find in their constitutions a requirement that revenue-raising bills must be recommended by the Government. So, for example, section 35(1) of the Gibraltar Constitution provides: Except on the recommendation of the Minister with responsibility for finance, the Parliament shall not— (a) proceed upon any bill (including any amendment to a bill) that, in the opinion of the person presiding in the Parliament, makes provision for imposing or increasing any tax, rate or duty, for imposing or increasing any charge on the revenues or other funds of Gibraltar, or for altering any such charge otherwise than by reducing it, or for compounding or remitting any debt due to Gibraltar; or (b) proceed upon any motion (including any amendment to a motion) the effect of which, in the opinion of the person presiding in the Parliament, would be to make provision for any of the purposes aforesaid.

16 See Jersey Fishermen’s Association v States of Guernsey [2007] UKPC 30, [2007] All ER (D) 39 (May) (PC), Broken Hill South Ltd v Commissioner for Taxation (New South Wales) (1937) 56 CLR 337, and Johnson v Stamp Duties Commissioner [1956] AC 331 (PC), referred to in ch 4, pp 70–71 above. 17 Montserrat Constitution s 89.

Expenditure 213 There are similar provisions in several other territory constitutions.18 In Bermuda there are also constitutional restrictions on the powers of the Senate with regard to taxation bills.19 CONSOLIDATED FUND AND OTHER FUNDS

In most of the larger territories the constitution establishes a Consolidated Fund into which most Government revenue is to be paid. For example, section 67 of the Gibraltar Constitution provides: All revenues or other moneys raised or received for the purposes of the Government of Gibraltar (not being revenues or other moneys that are payable by or under any Act into some other fund established for a specific purpose or that may under any such law be retained by the authority that received them for the purposes of defraying the expenses of that authority) shall be paid into and form one Consolidated Fund.

There are provisions to the same effect in the constitutions of Bermuda, the Falkland Islands, Montserrat and the Virgin Islands.20 These provisions permit only two exceptions to the requirement that Government revenue must be paid into the Consolidated Fund: (1) where by law revenue is to be paid into another fund established ‘for a specific purpose’, and (2) where an authority is allowed by law to keep money received by it to defray its expenses. In St Helena and Ascension, where there are separate Consolidated Funds, only the first of these exceptions is constitutionally permitted.21 But in each of these territories a fund other than the Consolidated Fund must be established by law for a specific purpose, and in practice other funds have been established for purposes such as development, pensions, contingencies, and the service of debt.22 Some constitutions expressly authorise the legislature of the territory to establish a Contingencies Fund.23 In the other territories the establishment of consolidated funds and other funds, and the rules regarding payments into and out of such funds, are provided for in ordinary legislation.24 EXPENDITURE

The expenditure of public funds in most of the substantially populated territories is regulated by standard provisions in the constitution. 18 Anguilla Constitution s 55(2); Bermuda Constitution s 36(3); Cayman Islands Constitution s 77(3); Falkland Islands Constitution s 51(2); Montserrat Constitution s 70(2); St Helena, Ascension and Tristan da Cunha Constitution s 73(2); Virgin Islands Constitution s 78(2). 19 Bermuda Constitution ss 36 and 39. These restrictions are broadly based on those applicable to the House of Lords in the United Kingdom Parliament. 20 Bermuda Constitution s 94; Falkland Islands Constitution s 74; Montserrat Constitution s 90; Virgin Islands Constitution s 102. 21 St Helena, Ascension and Tristan da Cunha Constitution ss 98 and 166. 22 See eg Public Finance (Control and Audit) Act (Laws of Gibraltar, 1977-09); Virgin Islands Constitution ss 100 and 107. 23 Bermuda Constitution s 98; Falkland Islands Constitution s 78; Gibraltar Constitution s 71; Virgin Islands Constitution s 106. 24 See eg Public Funds (Procedures) Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 12 of 1990) ss 2–4 and 7.

214 Public Finance The practice in this regard is curiously inconsistent as between the territories, bearing in mind the importance of properly regulating public expenditure. There is an obvious advantage in prescribing the rules in the constitution, so that any ordinary legislation of the territory must conform to them. This is less important in the sparsely populated territories, where the Governor (or equivalent) is constituted as the legislature. But in Anguilla and the Turks and Caicos Islands, which include no constitutional provisions regulating public expenditure, the adequacy of ordinary legislation dealing with the matter needs to be kept under close review.25 As an example of constitutional provisions regulating public expenditure, section 68(1) to (3) of the Gibraltar Constitution provides: (1) No moneys shall be withdrawn from the Consolidated Fund except— (a) to meet expenditure that is charged upon the Fund by this Constitution or any other law; or (b) where the issue of those moneys has been authorised by an appropriation law or in such manner, and subject to such conditions, as may be prescribed in pursuance of section 70.26 (2) No money shall be withdrawn from any public fund of Gibraltar other than the Consolidated Fund unless the issue of those moneys has been authorised by or under an Act. (3) No moneys shall be withdrawn from the Consolidated Fund except in such manner as may be prescribed by the Legislature.

There are provisions to similar effect in the constitutions of Bermuda, the Falkland Islands, Montserrat, St Helena, Ascension and Tristan da Cunha, and the Virgin Islands.27 By contrast, the Cayman Islands Constitution is much more concise, providing in section 111(2): All Government expenses, assets and the incurrence of liabilities shall require appropriation by the Legislature, unless otherwise provided by law.

This simply throws the ball into the court of the Legislature, and is thus ultimately subject to ordinary legislation. As such it is of little value as a constitutional safeguard. In Bermuda and the Virgin Islands there is provision to allow the withdrawal of money from the Consolidated Fund, at the behest of the Governor, to enable the Governor to discharge the special executive responsibilities imposed on the Governor by the constitution.28 This is in the nature of a safeguard and power of last resort, and it has rarely been necessary to invoke it. Its absence in the other constitutions means that (short of the use of reserved legislative powers) the Governor

25 At the time of writing the Governor is the sole legislative authority in the Turks and Caicos Islands, but this is a temporary arrangement: see SI 2009/701. This is a matter that would merit attention in any future review of the constitutions of the Turks and Caicos Islands and Anguilla. 26 Gibraltar Constitution s 70 deals with the authorisation of expenditure in advance of appropriation. 27 Bermuda Constitution s 95; Falkland Islands Constitution s 75; Montserrat Constitution s 91(1) and (2); St Helena, Ascension and Tristan da Cunha Constitution ss 99 and 167; Virgin Islands Constitution s 103. 28 See Bermuda Constitution s 95(1); Virgin Islands Constitution s103(1). The ‘special responsibilities’ of the Governor are discussed in chs 3 and 5 above.

Expenditure 215 must rely on the legislative body to vote the funds required for the proper discharge of his or her constitutional responsibilities. Leaving aside those safeguard provisions, the effect of the constitutional rules of the Gibraltar model is that withdrawal from the Consolidated Fund is permitted in only three circumstances: (1) to meet statutory expenditure, that is to say expenditure expressly charged on the Fund by the Constitution or any other law of the territory, and which therefore does not have to be appropriated annually; (2) where the expenditure is authorised by an appropriation (or supplementary appropriation) enactment;29 or (3) when authorised in advance of an appropriation enactment.

A. Statutory Expenditure It is common to find the salaries and pensions of certain officers charged on the Consolidated Fund by territory constitutions.30 This affords them protection from the vagaries of the annual appropriation process. Ordinary legislation of the territories may also charge specified expenditure on the Consolidated Fund, with the same effect.31 The constitutions of several territories charge on the Consolidated Fund the public debt of the territory. For example, section 73 of the Gibraltar Constitution provides: (1) All debt charges for which Gibraltar is liable shall be a charge on the Consolidated Fund. (2) For the purposes of this section debt charges include interest, sinking fund charges, the repayment or amortisation of debt, and all expenditure in connection with the raising of loans on the security of the revenues of Gibraltar or the Consolidated Fund and the service and redemption of debt thereby created.

There are similar provisions in some other territory constitutions.32

B. Appropriation Legislation The appropriation of funds by specific legislation is the principal vehicle for public expenditure during each financial year. Where the appropriation Act or Ordinance proves insufficient during a particular financial year, supplementary appropriation

29 In St Helena and Ascension, moneys may be withdrawn pursuant to a Special Warrant, where the Governor is satisfied that an urgent and unforeseen need for expenditure exists, and such a Warrant constitutes an appropriation: see St Helena, Ascension and Tristan da Cunha Constitution ss 103 and 171. 30 See eg Bermuda Constitution ss 20(2), 92 and 100(2); Gibraltar Constitution s 72(2); Montserrat Constitution ss 87 and 97(2); St Helena, Ascension and Tristan da Cunha Constitution ss 46(9), 92(1), 110(10), 161(9); Virgin Islands Constitution ss 100 and 108. 31 See eg Ombudsman Act 2004 (Laws of Bermuda, 2004:32) s 4(3); Public Services Ombudsman Act 1998 (Laws of Gibraltar, 1998-48) s 4(2). 32 See Bermuda Constitution s 99; Falkland Islands Constitution s 79; Montserrat Constitution s 99; St Helena, Ascension and Tristan da Cunha Constitution ss 108 and 176; Virgin Islands Constitution s 107 (which charges public debt on the Consolidated Fund or the ‘Debt Service Fund’).

216 Public Finance legislation may be enacted. In several territories the procedure is prescribed in the constitution. Section 69 of the Gibraltar Constitution is typical, and provides: (1) The Minister with responsibility for finance shall cause to be prepared and laid before the Parliament, before or not later than thirty days after the commencement of each financial year, estimates of the revenues and expenditure of Gibraltar for that year. (2) The heads of expenditure contained in the estimates for a financial year (other than expenditure charged upon the Consolidated Fund by this Constitution or any other law) shall be included in a bill, to be known as an appropriation bill, introduced into the Parliament to provide for the issue from the Consolidated Fund and other public funds of Gibraltar of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified in the bill. (3) If in any financial year it is found— (a) that the amount appropriated by the appropriation law for the purposes included in any head of expenditure is insufficient or that a need has arisen for expenditure for a purpose for which no amount has been appropriated by the appropriation law; or (b) that any moneys have been expended on any head of expenditure in excess of the amount appropriated for the purposes included in that head by the appropriation law or for a purpose for which no amount has been appropriated by the appropriation law, the Minister with responsibility for finance shall cause a supplementary estimate showing the sums required or spent to be prepared and laid before the Parliament and the heads of expenditure shall be included in a supplementary appropriation bill introduced in the Parliament to provide for the appropriation of those sums.

Provisions to similar effect are included in some other constitutions.33 In other territories the procedure is prescribed in ordinary legislation.34

C. Expenditure Authorised in Advance of Appropriation When there is a delay in the enactment of the appropriation law, provision needs to be made for public expenditure to carry on government. Authorisation for expenditure in such circumstances is usually time-limited and, in some cases, subject to a prescribed amount. Section 70 of the Gibraltar Constitution provides: If the appropriation law in respect of any financial year has not come into operation by the beginning of that financial year, the Minister with responsibility for finance may, to such extent and subject to such conditions as may be prescribed by the Legislature, authorise the withdrawal of moneys from the Consolidated Fund and other public funds of Gibraltar for the purpose of meeting expenditure necessary to carry on the services of the Government until the expiration of four months from the beginning of that financial year or the coming into operation of the appropriation law, whichever is the earlier.

33 Bermuda Constitution s 96; Falkland Islands Constitution s 76; Montserrat Constitution ss 92 and 93; St Helena, Ascension and Tristan da Cunha Constitution ss 100, 101, 105, 168, 169 and 173; Virgin Islands Constitution s 104. 34 See eg Public Finance (Procedures) Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 12 of 1990) s 5.

Audit 217 Similar provisions are contained in some other constitutions.35 In other territories provisions to similar effect may be made by ordinary legislation.36 BORROWING AND LENDING

The territories have substantial autonomy to borrow or lend money. In practice the United Kingdom Government has agreed borrowing guidelines with several territories, which operate as political rather than legal measures. But in the Cayman Islands the guidelines are reflected in local legislation,37 and in Montserrat, St Helena and Ascension the guidelines have acquired a measure of legal force by virtue of the constitution. Section 112(2) of the St Helena, Ascension and Tristan da Cunha Constitution provides: The Government of St Helena shall not issue a guarantee or indemnity nor raise a loan on behalf of itself or any other public institution, authority or person except— (a) as authorised by or under an Ordinance; and (b) in accordance with any borrowing guidelines agreed with Her Majesty’s Government in the United Kingdom.

Section 179(2) makes equivalent provision for Ascension, and there are similar provisions applicable to Montserrat.38 The constitutions of these territories also expressly authorise borrowing by the Government, and make detailed provision for the involvement of the local legislative body (or, in Ascension, the Island Council) in borrowing decisions.39 Uniquely among the territories, the Cayman Islands Constitution imposes a limit on total Government borrowing for each financial year, according to a formula involving a percentage of Government revenue set out in law and agreed with a Secretary of State.40 Borrowing limits and procedures may also be provided by ordinary legislation.41 AUDIT

The importance of independent audit of the public accounts of a territory hardly needs emphasis. For that reason, in most of the more populated territories audit

35 Bermuda Constitution s 97; Falkland Islands Constitution s 77; Montserrat Constitution s 91(3) and (4); St Helena, Ascension and Tristan da Cunha Constitution ss 102 and 170; Virgin Islands Constitution s 105. All these provisions allow authorisation for up to four months, and those applying to St Helena, Ascension and Montserrat are subject to a prescribed amount. 36 See eg Public Funds (Procedures) Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 12 of 1990) s 6. 37 Public Management and Finance Law (Laws of the Cayman Islands, Law 25 of 2001 (2005 Revision)). 38 Montserrat Constitution s 98(2). Montserrat and St Helena receive budgetary aid from the United Kingdom. 39 St Helena, Ascension and Tristan da Cunha Constitution ss 112 and 179; Montserrat Constitution s 98. 40 Cayman Islands Constitution s 113. This section was included at the request of the Cayman Islands Government. 41 See eg Public Finance (Borrowing Powers) Act 2008 (Laws of Gibraltar, 2008-13).

218 Public Finance arrangements form part of the constitution, with standard provisions that give the official auditor access to all documents relating to public accounts and require the auditor’s reports to be laid before the legislative body. They also provide expressly for the independence of the auditor in the exercise of his or her functions. As a typical example, section 74 of the Gibraltar Constitution provides: (1) The public accounts of Gibraltar and of all courts of law and all authorities and offices of the Government shall be audited and reported on by the Principal Auditor and for that purpose the Principal Auditor or any person authorised by him in that behalf shall have access to all books, records, reports and other documents relating to those accounts. (2) The Principal Auditor shall submit and lay his reports before the Parliament. (3) In the exercise of his functions under this Constitution the Principal Auditor shall not be subject to the direction or control of any other person or authority.

There are provisions along these lines in the constitutions of Anguilla, Bermuda, the Cayman Islands, the Falkland Islands, Montserrat, Pitcairn, St Helena, Ascension and Tristan da Cunha, and the Virgin Islands.42 The functions of the auditor may be elaborated in ordinary legislation.43 In some of the most recent constitutions the auditor has enhanced constitutional functions. In the Cayman Islands the Auditor General has express power to conduct value for money investigations in respect of the activities of all Government authorities, offices and departments, and is answerable to the Public Accounts Committee.44 In St Helena the Chief Auditor has the additional functions of promoting public accountability in the public administration of St Helena, and acting as adviser to the Public Accounts Committee.45 In Montserrat the remit of the AuditorGeneral extends beyond Government and court accounts to those of ‘universities and higher education institutions, and any public corporations or other bodies or organisations established by an Act of the Legislature’, and the Auditor-General may conduct ‘financial and value for money audits in respect of any project involving public funds’.46 Moreover, provision for the independent audit of the accounts of Ascension, Tristan da Cunha and Pitcairn were included for the first time in their new constitutions.47 In most territories the office of the official auditor, the title of which varies as between the territories concerned, is a constitutional office.48 Usually it is specified

42 Anguilla Constitution s 79; Bermuda Constitution s 101; Cayman Islands Constitution s 114; Falkland Islands Constitution s 80; Montserrat Constitution s 103; Pitcairn Constitution (SI 2010/244) s 58; St Helena, Ascension and Tristan da Cunha Constitution ss 109, 111, 177, 178 and 228; Virgin Islands Constitution s 109. A notable absentee from this list is the Turks and Caicos Islands. 43 See eg Public Finance (Control and Audit) Act (Laws of Gibraltar, 1977-09), pts VIII and IX. 44 Cayman Islands Constitution s 114(3) and (6). 45 St Helena, Ascension and Tristan da Cunha Constitution s 111(1). 46 Montserrat Constitution s 103(1). 47 St Helena, Ascension and Tristan da Cunha Constitution ss 177, 178 and 228; Pitcairn Constitution s 58. 48 See Anguilla Constitution s 79(1) (Chief Auditor); Bermuda Constitution s 101(1) (Auditor General); Cayman Islands Constitution s 114 (Auditor General); Gibraltar Constitution ss 56(2) and 74 (Principal Auditor); Montserrat Constitution s 101(1) (Auditor-General); St Helena, Ascension and Tristan da Cunha Constitution s 110(1) (Chief Auditor); Turks and Caicos Islands Constitution s 85 (Chief Auditor); Virgin Islands Constitution s 109(1) (Auditor General).

Audit 219 that the office of auditor is a public office,49 thus making the auditor part of the territory’s public service. But this is not so in Montserrat, where the Auditor-General is expressly stated to be an officer of the Legislative Assembly, and whose terms of employment, including remuneration, are set by resolution of the Legislative Assembly.50 In St Helena the position is similar, except that there is no express statement that the Chief Auditor is an officer of the Legislative Council.51 In these two territories the constitution makes extensive further provision for the independence of the auditor. The auditor is appointed by the Governor, in Montserrat after consultation with the Public Accounts Committee of the Legislative Assembly, and in St Helena with the approval of a Secretary of State.52 In both territories the power to remove the auditor from office is strictly circumscribed. The Governor is obliged to remove the auditor if the auditor is found guilty of a criminal offence carrying a penalty of more than six months’ imprisonment, or if the auditor becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors, or otherwise makes an assignment of remuneration for the benefit of creditors. Otherwise the auditor may only be removed by the Governor following (a) a resolution by the legislative body that the auditor is unable to perform the functions of the office due to misconduct, incapacity or incompetence and (b) advice from an independent tribunal, at least two of whose members are serving or former senior Commonwealth or Irish judges, that the auditor should be removed on any of those grounds.53 Moreover, the remuneration of the auditor is charged on the Consolidated Fund, and in St Helena it may not be diminished during his or her continuance in office.54 In other territories the independence of the auditor is secured by the constitution in less detail. In Bermuda, the Auditor General is appointed by the Governor, acting in his discretion, has a term of office until a specific retiring age, and may only be removed by the Governor, acting in his discretion, for inability to discharge the functions of his office (whether arising from inability of body or mind or any other cause) or for misbehaviour.55 The Auditor General’s remuneration is charged on the Consolidated Fund and is protected from diminution during tenure of office, and the Auditor General’s pension is also constitutionally protected.56 Collectively these provisions afford a high degree of independence for the Auditor General. In Anguilla, the Cayman Islands, Gibraltar, the Turks and Caicos Islands, and the Virgin Islands the constitution contains some, but not all, of these elements to secure

49

See eg Bermuda Constitution s 101(1). Montserrat Constitution s 102. 51 St Helena, Ascension and Tristan da Cunha Constitution s 110(9). 52 Montserrat Constitution s 101(2); St Helena, Ascension and Tristan da Cunha Constitution s 110(2). 53 Montserrat Constitution s 101(3)–(6); St Helena, Ascension and Tristan da Cunha Constitution s 110(4)–(7). 54 Montserrat Constitution s 102(3); St Helena, Ascension and Tristan da Cunha Constitution s 110(10). 55 Bermuda Constitution s 88. The removal of the Director of Audit of Grenada for misbehaviour was considered by the Judicial Committee of the Privy Council in Lawrence v Attorney General of Grenada [2007] UKPC 18, [2007] 1 WLR 1474 (PC). 56 Bermuda Constitution ss 100 and 93. 50

220 Public Finance the independence of the auditor.57 Unusually, in Gibraltar the appointment and removal of the Principal Auditor is a matter for the Governor, acting on the advice of the Specified Appointments Commission, and in the Virgin Islands the Governor exercises these powers on the advice of the Public Service Commission. But in each case the Governor has a reserved power to reject such advice if he or she determines that it would prejudice Her Majesty’s service.58 The recent constitutions for the Falkland Islands, Ascension, Tristan da Cunha and Pitcairn require the Governor to ‘make appropriate arrangements’ for the audit of public accounts. This deliberately allows scope for flexibility with respect to these remote islands, but it places the burden squarely on the Governor to ensure proper independent audit, backed by an express constitutional requirement that any person or authority conducting an audit shall not be subject to the direction or control of any other person or authority.59 The inclusion of such provisions in these constitutions, as well as the extensive constitutional audit provisions applicable to Montserrat and St Helena, demonstrate the concern of both the territories themselves and the United Kingdom Government to ensure the effective audit of public accounts, however small and remote the territory. PUBLIC ACCOUNTS COMMITTEES

In territories with an elected legislative body, it is open to that body to establish as one of its committees a Public Accounts Committee, and some have done so. In four territories there is constitutional provision for such a committee.60 In the Cayman Islands, the Public Accounts Committee of the Legislative Assembly is established by the Constitution, with wide powers to examine ‘the accounts and financial dealings of all authorities, offices and departments of Government, of all courts, and of all Government-owned companies’. Its members, and any person authorised by it to act on its behalf, are to have access to all books, records, reports and other documents relating to such accounts. The Auditor General reports to the Committee, and must attend upon the Committee at its request.61 The Cayman Islands Constitution also requires the establishment of a Finance Committee, consisting of all the elected members of the Legislative Assembly, to consider financial bills and the estimates of revenue and expenditure laid before the Assembly.62

57 Anguilla Constitution ss 66, 69 and 71 (power to appoint and remove in Governor’s discretion, pension protected); Cayman Islands Constitution ss 114 and 110 (power to appoint and remove in Governor’s discretion, may only be removed for inability or misbehaviour, pension protected); Gibraltar Constitution s 72 (remuneration protected); Turks and Caicos Islands Constitution ss 85, 89 and 91 (power to appoint and remove in Governor’s discretion, may only be removed for inability or misbehaviour and with prior approval of Secretary of State, pension protected); Virgin Islands Constitution ss 99, 101 and 108 (pension and remuneration protected). 58 Gibraltar Constitution s 56; Virgin Islands Constitution s 92(1), read with s 109(1). In Gibraltar the Governor may only exercise the reserved power with the prior approval of a Secretary of State. 59 See Falkland Islands Constitution s 80; St Helena, Ascension and Tristan da Cunha Constitution ss 178 and 228; Pitcairn Constitution s 58. 60 The Cayman Islands, the Falkland Islands, Montserrat and St Helena. 61 Cayman Islands Constitution ss 87 and 114(6) and (7). 62 Ibid s 71(6) and (7).

Assistance to the Territories 221 The Montserrat Constitution requires the Legislative Assembly to establish at least two Standing Committees, one of which is to be called the Public Accounts Committee and is charged with responsibility for monitoring the public accounts. It must consist of members of the Assembly who are not members of the Cabinet, and has power to summon any Minister, or any public officer of a department for which a Minister is responsible, to appear before it and answer questions. The Committee must report to the Assembly at least annually, and the Assembly must publish the Committee’s reports.63 Of particular interest are the Public Accounts Committees of the Falkland Islands and St Helena established by their current constitutions.64 In the first place, these Committees are not composed only of members of the local legislative body, and so cannot be described as committees of those bodies. Each Committee has five members. In the Falkland Islands, three members (including the chairman) of the Committee must not be members of the Legislative Assembly, with two members being elected members of the Assembly. In St Helena, three members of the Committee are elected members of the Legislative Council, while two members (including the chairman) must not be members of that Council. In each case there is provision to replace a member temporarily to avoid a conflict of interests. Secondly, each Committee has constitutional functions which extend beyond the examination of public accounts and audit reports to ‘such other functions as may be prescribed’ by Ordinance (or, in St Helena, by Standing Orders of the Legislative Council). Each Committee has power to summon ‘any person’ to appear before it and, subject to any law, to require any person so summoned to answer questions and to provide information to the Committee. Each Committee reports to the respective legislative body, and there is an express requirement that it shall act independently. Clearly these Committees are different in nature from the traditional Public Accounts Committees based on the House of Commons model. Their composition is broader, and their remit is potentially wider. Their constitutional independence means that they are not subject to direction or control by any other person or authority, including the legislative body. They were in fact deliberately designed thus, in territories with no party political system and therefore no formal opposition, in order to enhance the political accountability of the Government. The extent to which they fulfil that objective depends naturally on their composition and industry, and the breadth of the remit they are given by local legislation over time. ASSISTANCE TO THE TERRITORIES

Assistance to the overseas territories from the United Kingdom Government is predominantly governed by the International Development Act 2002.65 Section 1(1) enables the Secretary of State to provide any person or body with development

63 64

Montserrat Constitution s 63. See Falkland Islands Constitution s 81; St Helena, Ascension and Tristan da Cunha Constitution

s 69. 65 2002 c 1. This Act repealed and replaced the Overseas Development and Co-operation Act 1980 (1980 c 63), which had consolidated and replaced several previous enactments.

222 Public Finance assistance if he is satisfied that the provision of the assistance is likely to contribute to a reduction of poverty. Section 1(2) defines ‘development assistance’ in the Act as assistance provided for the purpose of (a) furthering sustainable development in one or more countries outside the United Kingdom, or (b) improving the welfare of the population of one or more such countries. The term ‘sustainable development’ is defined in section 1(3) as including any development that is, in the opinion of the Secretary of State, prudent having regard to the likelihood of its generating lasting benefits for the population of the country or countries in relation to which it is provided. The term ‘country’ includes any territory or region, and references to the population of a country include references to any future population of the country and to any part of the population (present or future).66 Section 2 makes special provision for assistance to the overseas territories, which is not limited by the ‘reduction in poverty’ requirement of section 1(1). It provides: The Secretary of State may also provide any person or body with development assistance where the requirement of section 1(1) is not met, if the assistance is provided in relation to one or more of the territories for the time being mentioned in Schedule 6 to the British Nationality Act 1981 (c 61) (British overseas territories).

Section 3 deals with the special case of humanitarian assistance. It enables the Secretary of State to provide any person or body with assistance for the purpose of alleviating the effects of a natural or man-made disaster or other emergency on the population of one or more countries outside the United Kingdom. The definition of ‘development assistance’ in section 1(2) applies to section 2 but not to section 3, which simply refers to ‘assistance’. Section 4 confers various supplementary powers on the Secretary of State, and section 5(1) defines the term ‘assistance’ in a non-exhaustive way. For the purposes of the Act, ‘assistance’ means assistance in any form or of any nature, including financial or technical assistance and assistance consisting in a supply of materials. The term ‘technical assistance’ includes assistance that consists in know-how in the form of personnel, training or the provision of the results of research, or assistance that is provided in the form of a scholarship. By section 6, financial assistance may be provided under the Act by way of grant or loan, in the form of a guarantee, or by the Secretary of State acquiring securities in a company, and more than one form of financial assistance may be provided in any case.67 Financial assistance other than a grant may only be provided if the Treasury have approved the terms and conditions on which it is provided.68 There are further provisions of the Act, but those just described provide wide powers to the United Kingdom Government to assist the overseas territories in a variety of ways. The Act is administered primarily by the Department for International Development,69 which in consequence makes an important contribution to the administration of the territories. In practice, most of the Department’s financial assistance to the territories has in recent years been used in budgetary aid 66

International Development Act 2002, n 65 above, s 17. The terms ‘company’ and ‘securities’ are defined in ibid s 6(3). 68 Ibid ss 6(4) and 7(3). 69 But the Act enables certain statutory bodies to make and carry out agreements to provide assistance other than financial assistance: ibid ss 9 and 10 and sch 1. 67

Financial Liability 223 and development assistance to Montserrat, St Helena and Pitcairn, and it maintains local offices in Montserrat and St Helena.70 The Foreign and Commonwealth Office also provides regular assistance to the territories, but with far more limited funds, as occasionally have other Departments for specific projects, notably the Department of Transport.71 Assistance is also available to several territories from the European Union under the Overseas Association Decision,72 and to Gibraltar under the Treaty on the Functioning of the European Union73 in the same way as to the United Kingdom. FINANCIAL LIABILITY

The liabilities incurred by the Government of any particular territory can be satisfied only out of the revenues, and by the authority of the legislature, of that territory.74 As the Government of each territory is distinct from the United Kingdom Government,75 the financial liabilities undertaken by each territory Government are, in the generality of cases, the legal responsibility of that Government alone. This remains so even in cases where a territory Government undertakes liabilities with the approval of, or in accordance with instructions given by, a Secretary of State. This flows from the finding in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs76 that in giving instructions the Secretary of State acts on behalf of the Crown in right of the territory, not of the United Kingdom. But in any case, as a matter of principle the giving of approval or instructions cannot, in the absence of an express assumption of liability by the Secretary of State, transfer to the Secretary of State a liability undertaken by a territory Government; the identity of the legal entity incurring the liability remains unchanged. It is possible for the United Kingdom Government voluntarily to assume liability for a debt or other financial commitment of a territory as a matter of municipal law, for example by guaranteeing a loan or undertaking other contractual obligations to do so. Such liability may also arise as a matter of international law, where a debt or other financial commitment of a territory results from a treaty binding the United Kingdom. As the United Kingdom is internationally responsible for the overseas

70 See National Audit Office Report ‘Managing risk in the Overseas Territories’, Report by the Comptroller and Auditor General, HC 4 Session 2007–08, 16 November 2007, paras 2.8, 2.9 and 2.13. 71 Ibid paras 2.15 and 1.39. 72 Decision 2001/822/EC: [2001] OJ L214/1, as amended by Decision 2007/249/EC [2007] OJ L109/33. See further ch 15 below. 73 A consolidated version of this Treaty is published in [2008] OJ C115/1 and Cm 7310. 74 R v Secretary of State for Foreign and Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892, 918 and 921; Attorney-General v Great Southern & Western Railway Co of Ireland [1925] AC 754 (PC), 779; Doss v Secretary of State for India in Council [1875] LR 19 Eq 509, 535; Dominion of Canada v Province of Ontario [1910] AC 637 (PC), 644–45; Halsbury’s Laws of England, vol 13, 5th edn (London, LexisNexis, 2009) para 717. See further ch 2 above. 75 R v Secretary of State for the Home Department, ex p Shadeo Bhurosah [1968] 1 QB 266, [1967] 3 All ER 831; Tito v Waddell (No 2) [1977] Ch 106; Ex p Indian Association of Alberta, n 74 above; confirmed in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529 (HL). See also Mutasa v Attorney-General [1980] QB 114. 76 Quark, n 75 above.

224 Public Finance territories, it is legally responsible for ensuring compliance with treaty obligations by territories to which the treaty extends. Thus, for example, the United Kingdom Government is responsible for financial obligations incurred by territories under the European Union treaties and in satisfying adverse judgments under the European Convention on Human Rights. It remains open, of course, for arrangements to be made between the United Kingdom Government and territory Governments for reimbursement, in whole or in part, of the cost to the United Kingdom of meeting such commitments incurred by the territories. In some cases constitutional authority has been granted to territory Governments to exercise functions in the external field, subject to the proviso that any resulting costs will be borne by the territory Government.77 It is sometimes said that the United Kingdom Government has a moral or political contingent liability for the overseas territories, such that it would have to assist them in the event of severe financial difficulties or a major default on their financial obligations even if there were no legal liability to do so. Inevitably, the extent of such a moral or political liability is a matter of political choice, and in practice the United Kingdom Government has assisted the territories in a variety of ways and circumstances.78 It could be argued that the basis for such a moral or political obligation, as a matter of international law, is the duty of the United Kingdom under Article 73 of the United Nations Charter79 to promote to the utmost the well-being of the inhabitants of territories and to this end to ensure (among other things) their economic advancement and just treatment.80 But this is not a duty that is enforceable in the courts of the United Kingdom, since it has not been incorporated into the law of the United Kingdom. The political or moral imperative is in practice rather dictated by the responsibility of the United Kingdom Government to Parliament.

77 See Cayman Islands Constitution s 55(4) and (5)(d); Virgin Islands Constitution s 60(4) and (5)(d). See further ch 13 below. 78 See, for many examples and concerns, the National Audit Office Report, ‘Managing Risk in the Overseas Territories’, n 70 above. 79 UKTS No 67 (1946); Cmd 7015. 80 See eg National Audit Office Report, n 70 above, p 9.

13 External Relations CONSTITUTIONAL RESPONSIBILITY

U

NDER THE CONSTITUTIONS of all overseas territories, the Governor retains responsibility for external affairs. That is to say, the Governor is responsible for the conduct of any business of Government1 relating to external affairs, subject to the constitution and any other law. The term ‘external affairs’, which is common to territory constitutions, might just as easily have been ‘external relations’, ‘international relations’ or ‘international affairs’ of the territory. The effect of assigning responsibility for external affairs to the Governor is that the Governor acts in relation to it in his or her discretion rather than on the advice of local Ministers. However, as the Governor in the exercise of his or her functions has to act in accordance with any instructions from Her Majesty,2 this in practice puts ultimate control of the territory’s external affairs in the hands of the Secretary of State. The reason for reserving responsibility for external affairs to the Governor stems partly from the fact that it is a matter of the Royal prerogative and that, because the territories have no international legal personality separate from that of the United Kingdom, it is necessary for the United Kingdom Government to act internationally for them at times, and partly because historically it would simply not have been expected that they would themselves have significant dealings with foreign countries or territories. However, times have changed, and especially in the Caribbean, where the territories are historically and geographically very close to neighbouring countries, it would be unrealistic not to expect that there should be some degree of direct interaction with them, especially taking into account the integration which has been underway in the region for many years. Therefore, the most modern Caribbean territories’ constitutions, while leaving the overall responsibility for external affairs in the hands of the Governor, have evolved to reflect the reality of the situation by requiring the Governor to delegate or assign certain powers relating to external affairs to locally elected politicians. Provision is also made for the involvement of local politicians in the Bermuda and Gibraltar constitutions. The Falkland Islands, St Helena, Ascension and Tristan da Cunha and Pitcairn, on the other hand, do not particularly strive to achieve greater independence in the field of external affairs. Their constitutions therefore tend to reflect the traditional approach to the matter.

1 This is sometimes stated also to include the administration of any department of government: see eg Virgin Islands Constitution (SI 2007/1678) s 60(1). 2 See eg Virgin Islands Constitution s 35(3).

226 External Relations The current Constitution of the Turks and Caicos Islands3 gives the Governor responsibility for all matters, including external affairs. The focus of this chapter is on the constitutional position in relation to external affairs, but not everything the territories do in relation to external affairs falls neatly within the constitutional provisions. In general it is accepted by the United Kingdom Government that the territories will attend international meetings and have contact with officials and politicians from other countries, and it is not expected that permission should be sought for every single contact. However, it is expected that the territory Government will keep the Governor informed of significant international contacts and meetings, and that there will be respect for and compliance with the general principle that the Governor is responsible for external relations and with any delegated authority which it is given for external affairs. It is also expected that the position of the Governor as Her Majesty’s representative and head of the territory Government will be respected by the territory Government in dealings with heads of state and government of other countries.

A. Territories with No Substantial Population and the Sovereign Base Areas The constitutions of the territories which are not substantially populated4 and the constitution of the Sovereign Base Areas5 do not deal with the issue of where responsibility for external affairs lies. This is because there is no elected Government in these territories and therefore all matters, including external affairs, fall automatically within the responsibilities of the Commissioner6 or Administrator.7 There is no need to state in the constitution that this is the case.

B. Pitcairn, Ascension and Tristan da Cunha Similarly, neither the Constitution of Pitcairn8 nor the chapters of the St Helena, Ascension and Tristan da Cunha Constitution9 relating to Ascension and Tristan da Cunha make any reference to external affairs. This is because in each of these islands, although there is an Island Council, the Governor, on behalf of Her Majesty, has full executive authority10 and is not obliged to consult or act on the advice of

3

Turks and Caicos Islands Constitution (SI 2006/1913, as amended by SI 2009/701). South Georgia and South Sandwich Islands Order 1985 (SI 1985/449, as amended by SI 1995/1621); British Antarctic Territory Order 1989 (SI 1989/842); British Indian Ocean Territory (Constitution) Order 2004 (see Annex, p 305 below). 5 Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 (SI 1960/1369, as amended by SI 1966/1415). 6 South Georgia and the South Sandwich Islands, British Antarctic Territory, British Indian Ocean Territory. 7 The Sovereign Base Areas. 8 Pitcairn Constitution Order 2010 (SI 2010/244). 9 St Helena, Ascension and Tristan da Cunha Constitution Order 2009 (SI 2009/1751). 10 In each island, this authority can be exercised through officers subordinate to the Governor. In the case of Ascension and Tristan da Cunha that specifically includes the Administrator of each island: see St Helena, Ascension and Tristan da Cunha Constitution ss 148(2) and 213(2). 4

Constitutional Responsibility 227 the Island Council in the exercise of that authority, except to the extent required by any ordinary legislation in force in each island. No such legislation requires the Governor to consult or act in accordance with the advice of the Island Council in respect of external affairs. The result is that the Governor acts in his or her discretion in relation to external affairs, although there is nothing to prevent the Governor consulting the Island Council voluntarily.

C. St Helena The St Helena, Ascension and Tristan da Cunha Constitution (in chapter 1, relating to St Helena) provides that the Governor is responsible for the conduct of any business of the Government of St Helena, including the general direction and policy control of any department of government, with respect inter alia to external affairs.11 It gives the Governor discretion to assign to any member of the Executive Council responsibility for the conduct on his or her behalf of any business in the Legislative Council with respect to external affairs.12 Where the Governor, acting in his or her discretion, determines that any person or authority other than the Legislative Council is exercising any function which would involve or affect external affairs, the Governor can direct the person or authority to exercise the function in accordance with his or her directions.13 The Governor is obliged by the Constitution to consult the Executive Council on external affairs matters, but is not obliged to act in accordance with its advice in any case which the Governor judges involves an external affairs matter.14 This gives the Governor ultimate control over the exercise of external affairs, subject only to instructions from Her Majesty or on Her behalf. However, as the Governor does not attend the Legislative Council, it would be normal practice for him or her to use the power to assign responsibility for dealing with external affairs business in the Legislative Council to a member of the Executive Council.

D. The Falkland Islands The Falkland Islands Constitution15 is structured differently in that it does not confer on the Governor any special responsibilities as such. The Governor must in general consult the Executive Council on external affairs matters,16 but may act against any advice given by the Council if, in his or her judgement, such advice would affect external affairs.17 This in effect gives the Governor ultimate control over external affairs, subject only to instructions from Her Majesty. There is no express provision 11

Ibid s 44(1). Ibid s 44(2). 13 Ibid s 44(3). 14 Ibid s 43(1) and (3). 15 Falkland Islands Constitution Order 2008 (SI 2008/2846). 16 Ibid s 66(1), subject to any of the cases listed in s 66(2) that may excuse the Governor from consulting the Council. 17 Ibid s 67(1)(b) and (2)(a). 12

228 External Relations in the Constitution for assigning responsibility for external affairs to any other person. In practice matters involving the external affairs of the Falkland Islands are dealt with almost exclusively by the United Kingdom through the Foreign and Commonwealth Office in London, consulting the Governor as necessary. But where external affairs are discussed in the Legislative Assembly, there is nothing to prevent the Governor from asking the Chief Executive or an elected member to speak on his or her behalf.

E. Gibraltar The Gibraltar Constitution18 has a unique approach to the matter of external affairs, partly due to Gibraltar’s status within the European Union.19 The Constitution states that the Governor, acting in his discretion, shall be responsible in Gibraltar for the conduct (subject to this Constitution and any other law) of ... external affairs

––but then goes on to provide that in respect of external affairs the Governor shall act as far as practicable in consultation with the Chief Minister.20 This is different from almost all other constitutions where, when there is a requirement for the Governor to consult in the exercise of external affairs functions, it is with the Cabinet or Executive Council as a whole rather than with just the Chief Minister or Premier that the Governor must consult.21 This requirement gives the Chief Minister of Gibraltar an integral role to play in matters concerning Gibraltar’s external affairs, even though the Governor is not bound by his or her advice. Whether or not the Chief Minister must act with the authority of the Gibraltar Council of Ministers the Constitution does not say. The Constitution makes clear that the exercise by the Governor of his or her responsibility for external affairs is without prejudice to the overall responsibility of the United Kingdom Government for these matters.22 This provision certainly makes the situation clear, although it is not strictly necessary as the United Kingdom’s over-arching responsibility for external affairs, which flows from its responsibilities under international law for the overseas territories, is constitutionally and as a matter of international law beyond doubt. The Constitution also seeks to put the relationship between the United Kingdom and Gibraltar in relation to the European Union beyond doubt. It states that, without prejudice to the United Kingdom’s responsibility for Gibraltar’s compliance with European Union law, matters which are the responsibility of local Ministers under the Constitution shall not cease to be their responsibility even though they arise in

18

Gibraltar Constitution (SI 2006, III, p 11503). See further ch 15 below. 20 Ibid s 47(1). 21 Eg. the Governor of the Virgin Islands has to consult with and keep the Premier fully informed concerning the general conduct of external affairs (Virgin Islands Constitution ss 40(1) and 60(1)), while the Governor of the Cayman Islands has to consult the Cabinet on external affairs matters (Cayman Islands Constitution (SI 2009/1379) s 32(2)(c)). 22 Gibraltar Constitution s 47(4). 19

Constitutional Responsibility 229 the context of the European Union.23 Although straightforward enough in its terms, the operation of this provision (which has no equivalent provision relating to international law other than European Union law) is in practice likely to be fraught with difficulties as the dividing line between the United Kingdom’s responsibilities and those of Gibraltar in relation to the European Union is not quite so simply drawn, and there is inevitable overlap in responsibilities and interests. For example, were a question to arise in relation to compliance with European Union law in respect of a matter which falls within the responsibility of Gibraltar Ministers, such as shipping or the environment, questions could arise where the United Kingdom had an interest and wished to intervene, particularly if legal proceedings were involved or relationships with neighbouring countries affected.

F. Anguilla and Bermuda The Governor of Anguilla has powers similar to those of the Governor of St Helena, but does not need to consult or act on the advice of the Executive Council with respect to external affairs.24 In addition to being able to assign responsibility to any member of the Executive Council for the conduct on behalf of the Governor of any business in the House of Assembly with respect to external affairs, the Anguilla Governor also has discretion, with the prior approval of the Secretary of State, to delegate to the Chief Minister or another Minister, by directions in writing, more general responsibility for such matters relating to external affairs as the Governor thinks fit on such conditions as he or she may impose.25 Like the Anguilla Constitution, the Bermuda Constitution does not require the Governor to consult or act in accordance with the advice of the Cabinet (or a Minister acting under the authority of the Cabinet) in relation to external affairs.26 There is no mention in the Bermuda Constitution of assigning responsibility to a member of the Cabinet for the conduct of external affairs business in the legislature, but the Governor has discretion in the same terms as the Governor of Anguilla to delegate by directions in writing responsibility for external affairs to the Premier or another Minister.27 The constitutions of Anguilla and Bermuda, which have not been comprehensively reviewed since the 1999 White Paper,28 reflect the general position in the Caribbean before the constitutional reforms following the White Paper. Thus, traditionally, the matter of external affairs was treated, like other special responsibilities of the Governor, as being entirely the responsibility of the Governor with a discretionary power to assign it for practical purposes and to delegate it in special circumstances. However, Bermuda has for many years had responsibilities relating 23

Gibraltar Constitution s 47(3). Anguilla Constitution (SI 1982/334, as amended by SI 1983/1108 and 1990/587) s 28(2)(a). 25 Anguilla Constitution s 28(4) to (6); sub-ss (5) and (6) were added by SI 1990/587. 26 Bermuda Constitution (SI 1968/182, as amended by SI 1968/463, 1968/726, 1973/233, 1979/452, 1979/1310, 1989/151, 2001/2579, 2003/456) s 21(2)(a), read with s 62(1)(a). 27 See Bermuda Constitution s 62(2). In practice the Premier deals with external affairs matters in the Cabinet and the House of Assembly, while a Government Senator does so in the Senate. 28 ‘Partnership for Progress and Prosperity: Britain and the Overseas Territories’ (Cm 4264). 24

230 External Relations to external affairs delegated to it by the United Kingdom Government by letter of entrustment, and that is discussed later in this chapter.

G. The Cayman Islands, the Virgin Islands and Montserrat Among the older Caribbean constitutions, the 1972 Cayman Islands Constitution29 was the most restrictive as it contained no Governor’s discretionary power to assign or delegate responsibility for external affairs. However, the 2009 Cayman Islands Constitution, the 2007 Virgin Islands Constitution and the 2010 Montserrat Constitution now provide for the greatest degree of devolved responsibility for external affairs. These constitutions contain the traditional provision giving the Governor responsibility for the conduct of Government business in relation to external affairs (and in the case of the Virgin Islands this is stated specifically to include the administration of any department of government).30 As to the involvement of elected Ministers in the exercise of the Governor’s responsibilities for external affairs, these constitutions take a slightly different approach. In the Virgin Islands the Governor need not consult the Cabinet on external affairs matters but must consult the Premier and keep the Premier fully informed concerning the general conduct of external affairs, and the Premier is entitled to request information on a particular matter.31 In Montserrat the Governor must, subject to stated exceptions, consult the Cabinet before exercising his or her external affairs responsibilities, and must keep the Premier fully informed concerning their general conduct.32 In the Cayman Islands, the Governor is obliged to consult the Cabinet in the exercise of his or her external affairs responsibilities and to keep it informed concerning the general conduct of external affairs.33 But, in addition, the Governor must not enter, agree or give final approval to any international agreement, treaty or instrument that would affect internal policy or require implementation by legislation in the Cayman Islands without first obtaining the agreement of the Cabinet, unless instructed otherwise by a Secretary of State.34 The effect of this requirement in practice is that the United Kingdom Government would normally not take the action mentioned without consulting the Cayman Islands Government. But this simply reflects the established practice of the United Kingdom over many years in relation to all the overseas territories with an elected government, and it is only in an exceptional case that such action would be taken without consultation. In each of these territories the Governor may act against the advice of the Cabinet in any case which, in his or her judgement, involves or affects external affairs.35

29

SI 1972/1101. Virgin Islands Constitution s 60(1); Cayman Islands Constitution s 55(1); Montserrat Constitution (SI 2010/2474) s 39(1). 31 Virgin Islands Constitution ss 40(1) and 60(1). 32 Montserrat Constitution s 39(1) and (7). 33 Cayman Islands Constitution s 32(2)(c) and (3). 34 Ibid s 55(3). 35 Virgin Islands Constitution s 40(3); Cayman Islands Constitution s 33(2)(b), which uses the words ‘adversely affect’; Montserrat Constitution s 26(2). 30

Constitutional Responsibility 231 Each constitution contains the familiar provisions giving the Governor power, firstly, after consulting the Premier, to assign conduct of business in the legislature relating to external affairs to a member of the Cabinet and, secondly, by directions in writing, with the prior approval of the Secretary of State, to delegate to the Premier or another minister such matters relating to external affairs as the Governor thinks fit and on such conditions as he or she may impose.36 The Virgin Islands and Montserrat constitutions also enable the Governor to direct a person or authority (other than the legislative body) in the exercise of a function if the Governor determines, acting in his or her discretion, that it would involve or affect a matter for which the Governor has special responsibility.37 However, in relation to the Governor’s responsibility for external affairs, this provision must necessarily be read subject to the provisions relating to the obligatory delegation by the Governor of responsibility for aspects of that matter to local Ministers, discussed below. A very significant difference between the Cayman Islands, Virgin Islands and Montserrat constitutions and all the others is that these three contain the provisions one would expect to see, referred to above, plus they impose a requirement on the Governor to delegate some of his or her responsibility for the conduct of external affairs. Under the relevant constitutional provisions,38 the Governor of the Cayman Islands (acting after consultation with the Premier) and of the Virgin Islands is required to delegate (or assign),39 by directions in writing, to the Premier or another Minister,40 on the terms and conditions set out in the constitution,41 responsibility for the conduct of external affairs insofar as they relate to any matters that fall within the portfolios of Ministers. Each constitution sets out a non-exhaustive list of the matters which must be included in the Governor’s directions. This list provides for delegation (or assignment) in relation to regional organisations and institutions including, specifically, the Caribbean Community (CARICOM), the Association of Caribbean States (ACS), the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) and, in the case of the Virgin Islands, the Organisation of Eastern Caribbean States (OECS), these being the main organisations in the region of which these territories have membership42 and with which, therefore, they have regular dealings. The other external affairs matters which must be delegated or assigned in both territories are other Caribbean regional affairs relating specifically to issues that are of interest to or affect the territory, tourism and tourism-related

36 Cayman Islands Constitution s 55(2) and (7); Virgin Islands Constitution s 60(2) and (3); Montserrat Constitution s 39(2) and (3). The use of the terms ‘assign’ and ‘delegate’ in relation to the responsibilities varies between the Virgin Islands, Montserrat and Cayman Islands provisions. In the first two, the traditional approach is followed whereas in the last, it was felt to be better to give the Governor the option whether to assign or delegate his or her responsibilities in each case. 37 Virgin Islands Constitution s 60(8); Montserrat Constitution s 39(6). 38 Cayman Islands Constitution s 55(4); Virgin Islands Constitution s 60(4). 39 The Governor of the Cayman Islands may delegate or assign. 40 In the Virgin Islands, the other Minister is to be designated by the Governor on the advice of the Premier. 41 See Cayman Islands Constitution s 55(5); Virgin Islands Constitution s 60(5). 42 Montserrat is a full member of CARICOM and the OECS while the Virgin Islands are an associate member of each. The Cayman Islands are an associate member of CARICOM. All three territories are associate members of ECLAC and the ACS.

232 External Relations matters, taxation and the regulation of finance and financial services, and European Union matters directly affecting the interests of the territory. The terms and conditions applicable to the delegation or assignment of external affairs responsibilities to a Minister are almost identical in each constitution,43 and are: (1) a requirement that separate authority be obtained from or on behalf of the Secretary of State for the commencement of the formal negotiation and the conclusion of any treaty or other international agreement by the territory Government (provided, in the case of the Virgin Islands,44 that general authority may be granted in specified matters to commence the negotiation of, and where it is deemed appropriate,45 to conclude any such treaty or international agreement);46 (2) that no political declaration, understanding or arrangement in the field of foreign policy shall be signed or supported in the name of the Government of the territory without the prior approval of the Secretary of State; (3) that a formal invitation to a member of the government or Head of State of another country to visit the territory shall not be issued without prior consultation with the Governor; (4) that the costs of any activities relating to foreign affairs under the delegated or assigned responsibilities shall be borne by the Government of the territory; (5) that the Premier or other Minister shall keep the Governor fully informed of any activities under the delegated or assigned responsibilities; and (6) that the Premier or other Minister shall provide the Governor on request with all papers and information, including the text of any instrument under negotiation, available to the Premier or other Minister with respect to any activities under the delegated responsibilities. The Cayman Islands Constitution has a seventh condition, which is that any directions given by the Governor on any matter which in his or her judgement might affect defence or security must be complied with. The terms and conditions mean that the Premier or other Minister must still seek authority from the Secretary of State to negotiate and conclude a binding international agreement unless prior specific or general authority to do one or both of these things has been given by the Secretary of State. The effect of this is to keep ultimate control of treaty-making in the hands of the United Kingdom. Other conditions make sure that the Governor is not side-lined in relation to external affairs matters, and that the financial liabilities arising out of the exercise of the delegated or assigned responsibilities by the territory Premier or other Minister fall to the territory Government and not the United Kingdom Government. Although instruments of a non-binding nature such as those mentioned in condition (2) above should be of less concern to the United Kingdom Government than agreements binding under international law, there are occasions when instruments purporting

43

See Cayman Islands Constitution s 55(5); Virgin Islands Constitution s 60(5). See Virgin Islands Constitution s 60(5)(a). 45 It is the United Kingdom Government which would deem it appropriate to give authority to conclude a treaty or an international agreement. 46 The difference in the drafting of these two provisions has no practical effect, as the separate authority granted by the Secretary of State (known as an ‘entrustment’) can be either specific or general in nature. General authority has already been given to the Virgin Islands, the Cayman Islands and several other territories for the negotiation of Tax Information Exchange Agreements with European Union Member States, Organisation for Economic Cooperation and Development Member States, and some other States. On entrustments more generally, see ch 14 below. 44

Constitutional Responsibility 233 to be memoranda of understanding or similar are drafted in treaty language thus putting their status, and their effect under international law, in doubt. In addition, where a political commitment has been entered into, this tends to be treated in practice as being as binding as a treaty, often making extrication from it politically, if not legally, very difficult. It is therefore understandable that the United Kingdom Government wants to ensure that the territories do not enter into political commitments of which it is unaware before it is too late to take action on them. The effect of delegating responsibility to territory Ministers while retaining overall control is to give the territories a greater degree of freedom, particularly to interact with their regional neighbours at a time when there is continuous movement towards greater integration in the region, while ensuring that the United Kingdom’s ultimate responsibility for international relations and compliance with international obligations in respect of the territories can be safeguarded. In addition to the terms and conditions discussed above, the Virgin Islands Constitution requires the Premier or other Minister to perform any of the external affairs matters delegated in a manner that is in the best interests of the Virgin Islands and not prejudicial to the interests of Her Majesty, and requires the Governor and the Premier to hold conference from time to time to ensure that these interests are properly safeguarded.47 It is not specified whether the reference to Her Majesty’s interests is a reference to Her interests in right of the Government of the Virgin Islands, of the Government of the United Kingdom, or both, or of any other of Her Majesty’s Governments. But there is no legal reason why it should be read as being limited to one set of interests or another. The prior reference to the best interests of the Virgin Islands suggests that it is not confined to Her Majesty’s interests in respect of the Virgin Islands, and indeed that action must not prejudice any other of Her Majesty’s interests. The position in Montserrat is slightly different. Section 39(4) of the Constitution requires the Governor, by directions in writing, to delegate to a Minister responsibility for the conduct within Caribbean regional organisations of external affairs affecting Montserrat, and other Caribbean regional affairs of interest to or affecting Montserrat, on the terms and conditions set out in those directions. So in that case the terms and conditions are not set out in the Constitution, but instead form part of the Governor’s directions, which were agreed as part of the constitutional package. In substance they follow the terms and conditions set out in the Cayman Islands and Virgin Islands constitutions. The Governor’s obligation to delegate in section 39(4) is stated to be ‘without prejudice to any authority previously granted by or on behalf of a Secretary of State’. This saving was designed to reassure Montserrat that important authorities long ago granted to it by the United Kingdom Government regarding Montserrat’s membership of certain Caribbean regional organisations would not be affected. Under each constitution, where any disagreement arises regarding the exercise of the delegated or assigned authority, there is a requirement to refer the disagreement

47

Virgin Islands Constitution s 60(6).

234 External Relations to the Secretary of State whose decision on the matter is final and whose directions relating to it must be complied with.48 GENERAL ENTRUSTMENTS

A. The Cayman Islands, the Virgin Islands and Montserrat At the conclusion of the constitutional review negotiations between the United Kingdom Government and the representatives of the Cayman Islands, the Virgin Islands and Montserrat respectively, it was agreed that a general letter of authority (also known as a letter of entrustment) should be issued by the United Kingdom Minister for the Overseas Territories on behalf of the Secretary of State to the territory Government49 to complement the directions to the territory Premier or other Minister by the Governor delegating responsibilities for external affairs. Such general authority would enable each territory Government to act in relation to external affairs in the areas provided for in the constitution, as envisaged by the first condition attached to the mandatory delegation of responsibility by the Governor under the constitution. The issue of entrustments is dealt with more generally in chapter fourteen below, where the status of the territories under international law is considered in detail. But the general entrustments issued to the Governments of the Cayman Islands, the Virgin Islands and Montserrat are considered here because of their relationship with the constitutional provisions just described, along with a similar general entrustment issued to the Government of Bermuda. The letters issued to the Premier of the Cayman Islands and the Chief Minister of the Virgin Islands50 are in virtually identical terms. The only substantive differences between the two are that, in addition to the authority given to both Governments, the Virgin Islands letter permits the Virgin Islands Government to deal with the Governments of the United States Virgin Islands and Puerto Rico with respect to political, economic, social, cultural and immigration matters, reflecting the closer dealings that the Virgin Islands have with these United States territories, and with the Organisation of Eastern Caribbean States, of which the Cayman Islands is not a member. Each letter came into effect on the date of the reply.51 The text of the letter to the Virgin Islands Chief Minister is reproduced at Appendix 1 to this chapter. 48 Cayman Islands Constitution s 55(6); Virgin Islands Constitution s 60(7); Montserrat Constitution s 39(5). 49 A letter was sent to the Chief Minister of the Virgin Islands by Lord Triesman of Tottenham, then Minister for the Overseas Territories in the Foreign and Commonwealth Office, dated 13 June 2007. The Chief Minister, Dr Orlando Smith, replied on 19 June accepting the content of the letter of entrustment. A letter in similar terms was sent to the Premier of the Cayman Islands by Gillian Merron, then Minister for the Overseas Territories in the Foreign and Commonwealth Office, dated 10 June 2009. The Premier, Mr McKeeva Bush, replied on 14 April 2010. A letter was sent to the Chief Minister of Montserrat by Henry Bellingham, then Minister for the Overseas Territories in the Foreign and Commonwealth Office, on 20 October 2010, and the Chief Minister replied on 3 November 2010. 50 At the time the letter was issued, the office of Chief Minister still existed in the Virgin Islands. The new Constitution changed the title of that office to Premier. The same applies in the case of Montserrat. 51 See n 49.

General Entrustments 235 Each letter recognises that in general the United Kingdom will continue to be responsible for the external affairs of the territory, but that in carrying out this responsibility it will, wherever practicable, seek the fullest consultation with the territory Government and will at all times have special regard to the wishes52 of the territory. This reflects the position of the United Kingdom in respect of its territories under international law while also setting out what has become the established practice of the United Kingdom Government in its handling of matters relating to the external affairs of the territories. Paragraph 3 of each letter gives authority to the territory Government to commence formal negotiations and conclude multilateral and bilateral international agreements (which term is intended to include treaties and similar instruments binding under international law) insofar as they relate to matters that fall within the portfolios of local Ministers. This last part reflects the language in each constitution.53 In addition to the issues mentioned above in relation to the Virgin Islands, the letters of entrustment cover agreements relating to trade, binding and non-binding instruments relating to taxation, finance and financial services, agreements relating to tourism affecting the territory, agreements within the ambit of regional organisations, agreements with overseas territories of the United Kingdom, the Netherlands and France, and other territories of foreign States approved by the United Kingdom, and technical agreements with the United States, independent Commonwealth members and bodies or institutions of which the territory is a member.54 Although this paragraph seems to give carte blanche treaty-making powers to the territory Government, it is important to read carefully paragraphs 5 and 6 of each letter in conjunction with this paragraph. They contain detailed provisions which curtail the effect of paragraph 3 and ensure that the United Kingdom Government retains ultimate control of the treaty-making process. Paragraph 5 of each letter specifically carves out agreements relating to civil aviation, defence and internal security (including aviation and maritime security) affecting the territory, making absolutely clear that the territory Government must seek the prior approval of the United Kingdom Government before commencing the negotiation of or concluding an agreement in any of these areas. With the exception of civil aviation, all the areas mentioned come directly within the special responsibilities of the Governor. Civil aviation, although not listed as a special responsibility in any constitution, involves elements of internal security and external affairs and, because of its nature, is regarded by the United Kingdom Government as an important matter over which it wishes to retain treaty-making control unless it decides otherwise in a particular case.55 The United Kingdom Government does, however, undertake––where practicable––to involve the territory in full consultation whenever it engages in discussion of any of the matters listed in paragraph 5 52

The word ‘interests’ is used instead of ‘wishes’ in the letter to the Cayman Islands Premier. See Cayman Islands Constitution s 55(4), and Virgin Islands Constitution s 60(4). 54 This would include associate membership. 55 Eg in 2006 the Cayman Islands Government was granted an entrustment to sign an Agreement between the Cayman Islands Civil Aviation Authority and the Kingdom of Saudi Arabia General Civil Aviation Authority Concerning the Transfer of Regulatory Oversight Functions and Duties, pursuant to Article 83bis of the Chicago Convention on International Civil Aviation. Bermuda was granted a similar entrustment relating to such an agreement with Austria on the same date. 53

236 External Relations which affects the territory, thus displaying a willingness to be open with the territory Government even where it wishes to remain in control. With one eye on the United Kingdom’s contingent liability for the overseas territories, paragraph 5 also prohibits the territories from engaging the United Kingdom Government in any financial commitments or obligations, and makes clear that any such commitments or obligations arising from any agreement concluded by the territory Government will be the responsibility of the territory Government alone unless the United Kingdom Government agrees otherwise. Paragraph 6 is crucial when determining the extent to which responsibility for external affairs has been handed over to the territory Governments. It again emphasises the United Kingdom Government’s ongoing responsibility for the external affairs of the territory, and requires the territory Government to inform the United Kingdom prior to the commencement of any formal negotiation, to keep it informed of progress thereafter, and finally to consult it on the text of any proposed agreement or other instrument in good time before it is to be concluded. The reference to ‘formal’ negotiation is to obviate the need for the territory Government to inform the Governor and United Kingdom of every informal contact or discussion they may have with the authorities or government of another country which have not reached the stage of a decision to start negotiation of an agreement. But the requirement to inform the United Kingdom Government, through the Governor, of the commencement of a formal negotiation of any instrument, and thereafter to keep them informed, is intended to ensure that both the Governor and the United Kingdom are fully in the picture concerning the territory’s activities in the field of treaty negotiations, and it enables them to take early action to intervene if necessary. However, this requirement is only as effective as the territory Government’s compliance with it.56 The thinking behind the requirement to show the United Kingdom the text of any agreement or other instrument in good time prior to its conclusion is to enable the United Kingdom Government to consider the text itself along with any other wider policy or legal issues. Considerations might be, for example, whether the proposed agreement would in any way damage the United Kingdom’s relations with another country more generally, or whether the text is drafted in appropriate language. It is at this point that the United Kingdom can stop the process for any reason. However, if the United Kingdom Government does have any legal or policy concerns, there is a commitment to discuss these with the territory Government and to advise it as to how matters might be taken forward. But the territory Government is bound to abide by the decision of the United Kingdom Government and, if necessary in the case of disagreement, the Secretary of State can issue a direction to ensure compliance by the territory Government with such a decision.57 In an extreme case this might be that the proposed agreement should not be concluded.

56 In a letter to the Virgin Islands Chief Minister of 13 June 2007, accompanying the entrustment letter, the Minister for the Overseas Territories, Lord Triesman, stressed the importance of paragraphs 5 and 6 of the entrustment letter and emphasised that it was crucial that the Virgin Islands Government adhered fully to the conditions set out therein. 57 Para 6 of the Cayman Islands letter refers to the Cayman Islands Constitution s 55(6), and the Virgin Islands letter refers to the Virgin Islands Constitution s 60(7).

General Entrustments 237 The Montserrat letter is virtually identical to the Cayman Islands and Virgin Islands letters, but the categories of international agreement specified reflect the more general terms of section 39(4) of the Montserrat Constitution. So, although the delegation of responsibility to the Governments of the Cayman Islands, the Virgin Islands and Montserrat, particularly because of its obligatory constitutional nature, combined with the general entrustments accompanying it, moves matters forward a long way in terms of giving these territory Governments responsibility for conducting external affairs on behalf of the territory and the Crown, the ultimate decision-making responsibility with regard to whether the territory should conclude an international agreement or other instrument necessarily remains with the United Kingdom Government. What has changed significantly is that under the letters of entrustment the decision whether to enter formal negotiations now rests with the territory Government, which need only inform the United Kingdom that such formal negotiations are taking place rather than having to seek authority to commence them as was previously the case.

B. Bermuda On 12 September 1968, about seven months after the Bermuda Constitution came into force,58 the United Kingdom Government issued a general letter of entrustment to the Governor of Bermuda authorising the Government of Bermuda to undertake a variety of external affairs activities, subject to prescribed controls by the United Kingdom Government. This was done pursuant to an undertaking given at the Constitutional Conference held in London in November 1966.59 The letter stated that it would become effective on the date the Governor confirmed that the Bermuda Government accepted the authority delegated by the letter subject to the understandings and stipulations set out in it. The acknowledgement was not given by Bermuda until 1 February 1972. This letter of entrustment was amended in 2005 to add authority to negotiate and conclude bilateral agreements with other countries relating to tourism and remained in place until 2009 when, following certain events relating to the external affairs of Bermuda, the Foreign and Commonwealth Office decided to review the external affairs matters that had been delegated to the Government of Bermuda. Until the Virgin Islands received their general entrustment letter in 2007, Bermuda had been the only territory to have been given a broad general entrustment to conduct external affairs. The only other general entrustments issued prior to 2007 concerned Tax Information Exchange Agreements with specified countries.60 The purpose of the review of Bermuda’s delegated responsibilities for external affairs was to decide whether the general entrustment should be modernised and brought more closely into line with the newer general entrustments issued to the Cayman Islands and Virgin Islands Governments.

58 59 60

The Constitution came into force on 21 February 1968. According to para 1 of the entrustment letter of 12 September 1968. See n 46 above.

238 External Relations The result of the review was that a revised general letter of entrustment was sent by the Secretary of State for Foreign and Commonwealth Affairs to the Governor of Bermuda on 30 September 2009, which came into effect on 1 December 2009 (the date on which the Government of Bermuda confirmed acceptance of its terms).61 The 1968 and 2005 letters ceased to have effect on the same date. The text of the 2009 letter is reproduced at Appendix 2 to this chapter. The new entrustment letter is in some respects similar to the old one, emphasising the United Kingdom Government’s continuing responsibility for the external affairs of Bermuda and undertaking to seek the fullest consultation with the Bermuda Government and to have special regard to the interests of Bermuda in carrying out its general responsibility. The areas in which Bermuda can negotiate bilateral and multilateral agreements are limited to trade agreements relating to the treatment of goods and services, agreements relating to tourism as it affects Bermuda, agreements for technical assistance or of a cultural or scientific nature with Commonwealth members, the United States and such other authorities as the United Kingdom Government may approve, and agreements relating to emigration from Bermuda and emigrant labour schemes. The Bermuda Government may also arrange trade or commercial visits to or from other countries, but it is made clear that questions relating to the establishment of temporary or permanent representation for consular or other purposes in or by Bermuda are for the United Kingdom Government albeit in consultation with the Bermuda Government. The delegated areas of external affairs are more limited than in the 1968 letter, but the new letter provides clearer parameters within which the Bermuda Government has to operate. In particular, an ambiguous reference to ‘agreements of purely local concern’, which had caused some confusion in the past, has been removed. The 2009 letter sets out at some length conditions on which Bermuda may operate the delegated responsibilities, and it is emphasised that although the United Kingdom Government will consider granting authority to act in other areas not covered by the entrustment, the Government of Bermuda should not assume that such authority will be automatic or that the United Kingdom will approve every request for authority. The conditions are largely the same as those applicable to the Virgin Islands and Cayman Islands, such as the carving out of civil aviation, defence and internal security (including aviation and maritime security),62 although shipping is also excepted. But unlike in the Cayman Islands and Virgin Islands entrustments, the United Kingdom Government undertakes to consider the inclusion of a delegate from Bermuda, in the capacity as an adviser, observer or similar, at international discussions attended by the United Kingdom about civil aviation, shipping and finance in which Bermuda’s interests are materially involved. The provisions about financial obligations discussed above in the Cayman Islands and Virgin Islands letters are also included. Paragraph 6 of the Bermuda letter is in identical terms to paragraph 6 of the Virgin Islands and Cayman Islands letters, but the Bermuda letter contains an additional 61 By its terms the letter of entrustment would have come into effect on this date even if the Government of Bermuda had not confirmed acceptance of it. 62 Contained in para 5 of the Cayman Islands and Virgin Islands letters, discussed above.

Legislative Action and Controls 239 requirement that the Bermuda Government will provide an annual written report to the United Kingdom Government summarising activities under the terms of the entrustment during the preceding year, and will, through the Governor, make it aware of any memorandum of understanding or similar instrument being negotiated whether or not relating to one of the areas delegated by the letter of entrustment. The restrictions applicable to the Bermuda Government by this letter of entrustment are therefore now greater than those that apply to the Cayman Islands and Virgin Islands Governments, and the areas in which the Bermuda Government has been given authority to deal with the negotiation and conclusion of agreements are also narrower. But none of these letters of entrustment is set in stone, and each can be modified in the future should circumstances or policy change. LEGISLATIVE ACTION AND CONTROLS

For the most part the territories legislate locally to give effect to international obligations that extend to them or to deal with other aspects of external affairs that require legislation. Territory legislatures are competent to do so, subject only to the limits imposed by their constitutions, the Colonial Laws Validity Act 186563 and relating to extraterritoriality and major prerogatives.64 There are, however, some constitutional controls on local legislation affecting external affairs. In the constitutions of several territories, there is special provision relating to external affairs in the section on assent to Bills.65 Under these constitutions the Governor is required to reserve for the signification of Her Majesty’s pleasure certain Bills unless he or she has already been authorised to assent to such a Bill by a Secretary of State. Under the Bermuda, Cayman Islands, St Helena, Montserrat and Virgin Islands constitutions such Bills include those which appear to the Governor, acting in his or her discretion, to be inconsistent with any international obligation of the United Kingdom Government.66 The Bermuda, Montserrat and Cayman Islands constitutions also require such action where a Bill affects any matter for which the Governor has special responsibility under the constitution, which includes external affairs.67 The Gibraltar Constitution empowers the Governor to withhold assent to a bill which is incompatible with any international obligation unless he or she has been authorised by a Secretary of State to assent to it.68 In the Falkland Islands the Governor must not, without having previously obtained instructions through a Secretary of State, assent to any Bill that appears to the Governor to be inconsistent with United Kingdom treaty obligations, unless the Bill contains a clause suspending

63

1865 c 63. See further ch 4 above. 65 On assent generally, see ch 4 above. 66 Bermuda Constitution s 35(2)(a); Cayman Islands Constitution s 78(2)(c); St Helena, Ascension and Tristan da Cunha Constitution s 74(3)(a), read with s 2(h); Montserrat Constitution, s 74(2)(a); Virgin Islands Constitution s 79(2)(a). 67 Bermuda Constitution s 35(2)(d); Montserrat Constitution s 74(2)(b); Cayman Islands Constitution s 78(2)(e). 68 Gibraltar Constitution s 33(2)(b). 64

240 External Relations its operation until the signification of Her Majesty’s pleasure on the Bill.69 The effect of all these provisions is to take the decision whether to assent to such Bills out of the hands of the local politicians and to give it to the Secretary of State. While other constitutions do not have such limitations on the power of assent, they are not required in territories (or parts of territories) where the Governor (or equivalent) is the legislative authority.70 But in most of them there are limits on the Governor’s power to legislate, equivalent to that in the Falkland Islands described above, either in the constitution or in Royal Instructions.71 In Anguilla, the Cayman Islands, the Falkland Islands and Gibraltar the Governor has a reserved legislative power which could be used, if necessary, in the interests of external affairs. In the Virgin Islands the Governor’s reserved legislative power is available only if the Governor considers it urgently necessary for the purpose of complying with an international obligation.72 Also, the Gibraltar Parliament must not proceed without the Governor’s consent on any Bill that, in the opinion of the Governor, concerns a matter for which he or she has special responsibility under the Constitution, including external affairs.73 Ultimately, the power of disallowance is available regarding local legislation affecting external affairs in all territories except Bermuda and Gibraltar.74 Legislation is also from time to time made in the United Kingdom relating to the external affairs of the territories, most often to give effect in the territories to international obligations that will extend to them. Such legislation may be in the form of an Act of Parliament, or more frequently an Order in Council made under specific statutory powers or (except in the case of Bermuda) in exercise of the general reserved legislative power of Her Majesty.75 CONSULAR RELATIONS AND EXTERNAL REPRESENTATION

The overseas territories, not being sovereign States, do not have diplomatic relations separate from those of the United Kingdom, and thus do not host diplomatic missions. Other States are permitted by the United Kingdom to perform consular functions within the overseas territories. There is currently only one permanent consular mission within an overseas territory and that is the United States Consulate-General in Bermuda. Otherwise, consular functions are performed by persons accredited to another country as High Commissioner or Ambassador (or their staff), by honorary 69

Falkland Islands Constitution, Annex A para 5(d). British Antarctic Territory, British Indian Ocean Territory, Pitcairn, Ascension, Tristan da Cunha, South Georgia and the South Sandwich Islands, Sovereign Base Areas and (for the time being) the Turks and Caicos Islands. 71 Pitcairn Constitution s 38(c); South Georgia and South Sandwich Islands Order 1985 s 9(2) and Annex para 6(f); Royal Instructions for the British Antarctic Territory, the British Indian Ocean Territory, St Helena, Ascension and Tristan da Cunha, the Turks and Caicos Islands and Anguilla (where the Instructions limit the Governor’s power of assent as in the Falkland Islands). 72 See Anguilla Constitution s 56; Cayman Islands Constitution s 81; Falkland Islands Constitution s 55; Gibraltar Constitution s 34; Virgin Islands Constitution s 81. As to procedure, see ch 4 above. 73 Gibraltar Constitution s 35(2). 74 On disallowance generally, see ch 4 above. 75 Eg Orders are regularly made to implement in the territories sanctions regimes imposed by the UN Security Council or the European Union. 70

Appendix 1 241 consuls, who are usually nationals of the country they are representing resident within the territory, or by ‘wardens’ in the territory who are persons, again usually nationals of the country they act for, who liaise with their country’s consular or diplomatic representatives accredited in other countries but who themselves have no consular status. Some overseas territories have local consular relations legislation76 and some also have diplomatic privileges legislation77 which enables privileges and immunities to be given if necessary to certain persons and organisations at the discretion of the Governor. Some territories have representation in other countries, but this generally takes the form of a tourist or trade office and is usually set up in consultation with the Governor and the United Kingdom Government, which deal with the authorities of the receiving country via the British Embassy on behalf of, or in conjunction with, the territory. Several territories maintain offices in London. EXTRADITION

Extradition, while involving external relations, is principally a matter of territory criminal law. Extradition is dealt with in detail in chapter ten. It is sufficient to mention here that decisions relating to extradition to another country are made by the Governor acting in his or her discretion since under the relevant extradition legislation the Governor exercises the functions conferred on the Secretary of State by the equivalent United Kingdom legislation. APPENDIX 1

Letter from Minister for the Overseas Territories to Chief Minister of the Virgin Islands 13 June 2007 The Hon Dr Orlando Smith Chief Minister British Virgin Islands Dear Dr Smith 1.

76

I have the honour, pursuant to the undertaking given at the recently concluded constitutional negotiations in London for a new modern Constitution of the Virgin Islands, to address you on the subject of the external affairs matters that are to be delegated to the Government of the Virgin Islands under the Constitution.

See eg Consular Relations Act 1971 (Laws of Bermuda (1989 Revision) Title 6, Item 1). See eg International Organizations Etc (Privileges and Immunities) Act 1948 and Diplomatic Privileges Act 1980 (Laws of Bermuda (1989 Revision) Title 6, Items 6 and 5). 77

242 External Relations 2.

3.

It was decided during the negotiations that certain external affairs matters would be delegated to the Government of the Virgin Islands, while recognising that the United Kingdom Government will in general continue to be responsible for the external affairs of the Virgin Islands. However, in carrying out their responsibility the United Kingdom Government will, whenever practicable, seek the fullest consultation with the Government of the Virgin Islands, and will at all times have special regard to the wishes of the Virgin Islands. Thus in accordance with section 60(5)(a) of the Constitution, the United Kingdom Government hereby grant general authority to the Government of the Virgin Islands to commence formal negotiations and to conclude agreements, whether bilateral or multilateral, in the following areas of external affairs, in so far as they relate to any matters that fall under the portfolios of Virgin Islands Ministers, subject to paragraphs 5 and 6 below: (a) trade agreements with other Caribbean countries and institutions, relating to the treatment of goods and services; (b) agreements, arrangements, memoranda of understanding or similar instruments relating to taxation, and the regulation, supervision and promotion of finance and financial services; (c) agreements relating to tourism as it affects the Virgin Islands; (d) agreements between the Virgin Islands and the United States Virgin Islands and Puerto Rico with respect to political, economic, social, cultural and immigration matters; (e) agreements within the ambit of the Caribbean Community and Common Market (CARICOM), the Organisation of Eastern Caribbean States (OECS), the United Nations Economic Commission for Latin America and the Caribbean (UNECLAC), the Association of Caribbean States (ACS) or any other Caribbean regional organisation or institution of which the Virgin Islands is a member or an associate member as they relate to the Virgin Islands; (f) agreements or arrangements with any other British Overseas Territory or Crown Dependency, with the overseas territories of The Netherlands and France in the Caribbean region, and with any overseas territory of another State as the Virgin Islands Government may request and the United Kingdom Government approve; (g) agreements for technical assistance of a cultural, educational, social, scientific, environmental or other natural resource nature with the United States, and any independent member of the Commonwealth, or institutions or bodies of which the Virgin Islands is a member or associate member.

4.

In addition, the United Kingdom Government will give sympathetic consideration to any request by the Virgin Islands Government for authority to take action on individual questions of external affairs not covered by this letter. 5. Nothing contained in this letter authorises the commencement of the negotiation or conclusion of any agreement relating to civil aviation, defence, or internal security, including aviation and maritime security, affecting the Virgin Islands without prior approval from the United Kingdom Government. Where the United Kingdom Government engages in any discussion relating to these matters as they affect the Virgin Islands, they will, where practicable, engage the Virgin Islands Government in full consultation. In addition, nothing contained in this letter authorises the Government of the Virgin Islands to negotiate or conclude any agreement that would give rise to any financial commitment or obligation for the United Kingdom Government. All financial obligations and commitments

Appendix 2 243

6.

7.

arising from any agreement concluded by the Government of the Virgin Islands will be the sole responsibility of the Government of the Virgin Islands, unless agreed otherwise with the United Kingdom Government. In view of the general responsibility of the United Kingdom Government for the external affairs of the Virgin Islands, the Government of the Virgin Islands will inform the United Kingdom Government, through the Governor, prior to the commencement of any formal negotiation and, thereafter, will keep them informed of the progress thereof, and will consult the United Kingdom Government on the text of any proposed agreement or other instrument in good time before the agreement or other instrument is to be concluded. The United Kingdom Government will inform the Virgin Islands Government if it should appear that any action or proposal of the Virgin Islands Government in any of the fields outlined in paragraph 3 conflicts, or is likely to conflict, with the international commitments or obligations, or any policies, of the United Kingdom Government. In that event the United Kingdom Government will advise the Virgin Islands Government as regards those commitments, obligations or policies and, so far as possible, further advise how best the intentions and proposals of the Virgin Islands Government might be carried into effect. But it will be necessary for the Virgin Islands Government to abide by the decision of the United Kingdom Government. Section 60(7) of the Constitution will apply. The Government of the Virgin Islands will supply to the United Kingdom Government a certified copy of any agreement it concludes for the purpose of United Kingdom treaty registration. I should be grateful if you would acknowledge receipt of this letter and confirm that the Government of the Virgin Islands accept the authority delegated above, subject to the understandings and conditions set out in paragraphs 5 and 6 in relation to such delegation, which will come into effect on the date of your letter confirming acceptance thereof or the date of the coming into force of the Virgin Islands Constitution Order 2007, whichever is later. Yours truly The Lord Triesman of Tottenham

APPENDIX 2

Letter from Secretary of State to Governor of Bermuda 30 September 2009 Sir Richard Gozney KCMG Governor Bermuda Dear Sir Richard, 1. I have the honour to refer to the review of the external affairs matters that are delegated to the Government of Bermuda. This letter revises and replaces the letters of 12 September 1968 and 27 July 2005, which previously addressed this subject.

244 External Relations 2.

The Government of the United Kingdom must continue to be responsible for the external relations of Bermuda. In carrying out their general responsibility, however, the Government of the United Kingdom will, whenever practicable, seek the fullest consultation with the Government of Bermuda and will at all times have special regard to the interests of Bermuda. In addition, subject to the stipulations set out in paragraphs 3 to 8 of this letter, the Government of the United Kingdom hereby grant general authority to the Government of Bermuda to commence formal negotiations and to conclude agreements, whether bilateral or multilateral, in the following areas of external affairs: (a) trade agreements with other countries relating to the treatment of goods and services; (b) agreements with other countries relating to tourism as it affects Bermuda; (c) agreements for technical assistance or of a cultural or scientific nature with any independent member or members of the Commonwealth or the United States of America or such other authorities as the Government of Bermuda may request and the Government of the United Kingdom may approve; (d) agreements with other countries relating to emigration from Bermuda to those countries and to emigrant labour schemes.

Authority is also delegated to the Government of Bermuda to arrange visits for trade or commercial purposes by representatives or residents of Bermuda to any other country, and by representatives or residents of any other country to Bermuda. But questions relating to the establishment of permanent or temporary representation of other countries in Bermuda and of Bermuda in other countries, whether for consular or other purposes, will be determined by the United Kingdom after consultation with the Government of Bermuda. 3.

4.

The Government of the United Kingdom will look carefully at each proposal by the Government of Bermuda to conclude an agreement or arrange a visit under the general authority granted in paragraph 2, and will give sympathetic consideration to any request by the Government of Bermuda for authority to take action on individual questions of external relations not covered by this letter. However, there may be occasions where a proposal conflicts with the UK’s international policies or obligations and, therefore, the Government of Bermuda should not assume that the United Kingdom will agree with every proposal to conclude an agreement or otherwise to act in the field of external affairs—authority will not be automatic. Nothing contained in this letter authorises the commencement of the negotiation or conclusion of any agreement relating to civil aviation, shipping, defence, or internal security, including aviation and maritime security, affecting Bermuda without prior approval from the Government of the United Kingdom. Where the Government of the United Kingdom engages in any discussion relating to these matters as they affect Bermuda, they will, whenever practicable, engage the Government of Bermuda in full consultation. The United Kingdom will also consider the inclusion of a representative of the Government of Bermuda, where that would be practicable, either as an adviser or as an observer or in some similar capacity, in any United Kingdom delegation attending international discussions about civil aviation, shipping or finance in which the interests of Bermuda are materially involved.

Appendix 2 245 5.

Nothing contained in this letter authorises the Government of Bermuda to negotiate or conclude any agreement that would give rise to any financial commitment or obligation for the Government of the United Kingdom. All financial obligations and commitments arising from any agreement concluded by the Government of Bermuda will be the sole responsibility of the Government of Bermuda, unless agreed otherwise with the Government of the United Kingdom. 6. In view of the general responsibility of the Government of the United Kingdom for the external affairs of Bermuda, the Government of Bermuda will inform the Government of the United Kingdom, through the Governor, prior to the commencement of any formal negotiations delegated to the Government of Bermuda by paragraph 2 of this letter and, thereafter, will keep them informed of the progress of any such negotiations, and will consult the Government of the United Kingdom on the text of any proposed agreement or other instrument in good time before the agreement or other instrument is to be concluded. The Government of the United Kingdom will inform the Government of Bermuda if it should appear that the actions or proposals of the Government of Bermuda conflict with, or are likely to lead to conflict with the international commitments or obligations, the responsibilities or any policies of the Government of the United Kingdom. In that event the Government of the United Kingdom will advise the Government of Bermuda as regards those commitments, obligations or policies and, so far as possible, further advise how best the intentions and proposals of the Government of Bermuda might be carried into effect. But it will be necessary for the Government of Bermuda to abide by the decision of the Government of the United Kingdom. 7. In addition to the requirements of paragraph 6, the Government of Bermuda will: (1) provide annually a written report to the Government of the United Kingdom through the Governor summarising the activities which have taken place under the terms of this entrustment during the preceding year; and (2) make the Government of the United Kingdom aware, through the Governor, of any arrangement, memorandum of understanding or other similar instrument that they are negotiating with other countries or with institutions, whether relating to the subject areas covered by paragraph 2 of this entrustment letter or not, and should forward a copy of the text thereof for consideration and comment by the Government of the United Kingdom in good time before signature. 8. The Government of Bermuda will supply to the Government of the United Kingdom a certified copy of any agreement it concludes under the terms of this letter of entrustment for the purpose of United Kingdom treaty registration. 9. I should be grateful if you would acknowledge receipt of this letter and confirm that the Government of Bermuda accept the authority delegated in paragraph 2 above, subject to the understandings and stipulations set out in paragraphs 3 to 8 in relation to such delegation, which will come into effect on the date of your letter confirming acceptance thereof or on 1 December 2009, whichever is sooner. The delegations of authority in the letters of 12 September 1968 and 27 July 2005 will cease to have effect on the date that the delegation in this letter comes into effect. Yours sincerely David Miliband

14 The Territories in International Law

T

HIS CHAPTER CONSIDERS the position of the British overseas territories and their peoples under international law, and the international responsibility of the United Kingdom for them. THE CHARTER OF THE UNITED NATIONS

The United Kingdom’s primary responsibility under international law for its overseas territories flows from Article 73 of the Charter of the United Nations,1 which provides: Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the wellbeing of the inhabitants of these territories, and, to this end: a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses; b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement; c. to further international peace and security; d. to promote constructive measures of development, to encourage research, and to cooperate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and e. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.

This Article, which is contained in Chapter XI of the Charter entitled ‘Declaration Regarding Non-Self-Governing Territories’, provided for the first time a status in international law for the territories which had not achieved independence. The 1

UKTS No 67 (1946); Cmd 7015.

The Charter of the United Nations 247 language of Article 73 is slightly convoluted talking of the acceptance as ‘a sacred trust’ the obligation to ensure the well-being of the inhabitants of the territories, and the title of the Chapter within which it is contained is also potentially misleading. For this provision is not simply a political declaration, but has binding force under international law and it makes clear that the interests of the people of these territories are paramount and that the responsible States (referred to by the United Nations as ‘the Administering Powers’) must promote to the utmost their well-being. The Article does not make any reference to the principle of equal rights and selfdetermination of peoples as mentioned in Article 1 of the Charter, or of independence being an objective for the territories. But it obliges responsible States to develop selfgovernment, to take account of the political aspirations of the people and to assist them in the progressive development of their free political institutions, according to the particular circumstances of the territory. So the principle of self-determination is implicitly acknowledged. There is no right to respect for human rights and fundamental freedoms guaranteed for the territories’ people, but responsible States are obliged to ensure their ‘just treatment’ and ‘protection against abuses’, although this puts a less onerous requirement on those States. However, the Charter was followed several years later by the Universal Declaration of Human Rights2 and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights,3 the latter two of which have been extended to almost all of the substantially populated British territories and some of the provisions of which, like some of those of the Declaration, represent customary international law. The basic obligation set out in the United Nations Charter may, for political reasons, have fallen short of what might have been expected for the territories, particularly given that the objectives of the United Nations’ trusteeship system provided for in Article 76 of the Charter went further by including as basic objectives progressive development towards independence and encouragement of respect for human rights and fundamental freedoms for all without distinction. But there was political pressure from the United Kingdom and other powerful States with overseas territories, which regarded the administration of those territories as a domestic matter, and the result was still an important first step in recognising the separate status of the territories. The reporting requirement in Article 73(e) imposed on responsible States, although obligatory, was limited to statistical information of a technical nature relating to economic, social and educational conditions and was subject to such limitation as security and constitutional considerations required. In addition, responsible States were only required to transmit such information to the SecretaryGeneral ‘regularly’ without any indication of what this meant. It was therefore not an onerous requirement.4 However, the General Assembly saw a role for itself in relation to this reporting requirement and in 19465 called on the Secretary-General to include a summary

2

UNGA Res 217A(III) (10 December 1948). UKTS No 6 (1977); Cmnd 6702. 4 In UNGA Res 66(I) (14 December 1946), the General Assembly invited the Administering Powers to transmit the most recent information at their disposal to the Secretary General by 30 June each year. 5 UNGA Res 9(I) (19 February 1946). 3

248 The Territories in International Law of the information received in Article 73(e) reports in his annual report to the Assembly. This enabled the General Assembly to examine and debate the information submitted by the responsible States. The General Assembly first set up an ad hoc committee,6 but thereafter a Special Committee, named ‘the Committee on Information on Non-Self-Governing Territories’,7 was established8 to assist it in the preparation of its sessions. Because of the resistance of States responsible for territories to interference by the United Nations in their governance of them, this Committee only made general recommendations having considered the SecretaryGeneral’s report, and did not comment on individual territories. However, in 1960 the General Assembly adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples,9 which led it to play a more direct monitoring role in relation to Non-Self-Governing Territories, and in 1961 the Special Committee on the Situation with regard to the Declaration on the Granting of Independence to Colonial Countries and Peoples (the ‘Decolonisation Committee’), which still exists today, was established.10 The Decolonisation Committee originally had 17 members but in 1962 that was increased to 24,11 leading to it becoming known as the ‘C24’ or ‘the Committee of 24’.12 The same Resolution that established the Decolonisation Committee also requested other committees, including the Committee on Information on Non-Self-Governing Territories, to assist the Decolonisation Committee in its work in their respective fields. In 1963, by General Assembly Resolution 1970 (XVIII)13 the Committee on Information on Non-Self-Governing Territories was dissolved and the Decolonisation Committee was requested by the General Assembly to study the reports submitted to the Secretary-General under Article 73(e) of the Charter and take them into account in examining the situation with regard to the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. It was also requested to undertake any special study and prepare any special report it considered necessary in addition to the activities already assigned to it.14 In the same resolution the General Assembly invited responsible States to transmit the information required by Article 73(e) of the Charter as well as ‘the fullest possible information on political and constitutional development’ of their territories.15 This was an invitation which had become increasingly stronger over the years as some of the responsible States, including the United Kingdom, had refused to cooperate voluntarily early on, particularly in relation to political information.16 In 1960 the absence of information of a political and constitutional character being transmitted

6

UNGA Res 66(I) (14 December 1946). By UNGA Res 569 (IV). 8 B Simma et al (eds), The Charter of the United Nations: A Commentary, vol 2, 2nd edn (Oxford, Oxford University Press, 2002) 1091 fn 16. 9 UNGA Res 1514 (XV) (14 December 1960). 10 UNGA Res 1654 (XVI) (27 November 1961). 11 UNGA Res 1810 (XVII) (17 December 1962). 12 The name persists, although as of 2010 the Committee had 29 members and 14 observers. 13 UNGA Res 1970 (XVIII) (16 December 1963). 14 Under UNGA Res 1654 (XVI) and 1810 (XVII); see nn 10 and 11 above. 15 See operative para 4. 16 See eg UNGA Res 327 (IV) (2 December 1949); UNGA Res 1468 (XIV) (12 December 1959). 7

The Charter of the United Nations 249 was noted with regret.17 In 1961 the General Assembly decided that the Committee on Information would examine political and constitutional information transmitted by the responsible States as well as information relating to the functional fields and submit its observations and conclusions thereon to the General Assembly.18 So gradually the General Assembly had achieved substantive oversight of the administration by responsible States of their overseas territories, and responsible States were by now reporting to the Secretary-General on their listed territories19 in terms which clearly went beyond the requirements of Article 73(e),20 a position which continues today. The Decolonisation Committee also expanded its remit by starting to go on missions to the Non-Self-Governing Territories, and by accepting petitions from their populations. In 1967, during the height of the problems with St Kitts and Anguilla, there was a meeting between Anguilla representatives and the Decolonisation Committee. The United Kingdom did not participate in this meeting as in its view the Committee was not competent to discuss the affairs of an Associated State. The Committee decided to send a mission to Anguilla, but this was blocked by the United Kingdom Government which refused to consent to the visit.21 But there have been visits to some territories since that time;22 and a Committee Caribbean regional seminar was held in Anguilla in 2003, the first time such a seminar had been held in a Non-Self-Governing Territory.23 The United Kingdom’s relationship with the Decolonisation Committee has never run very smoothly, as the British Government has never regarded it as the business of the Committee to inquire into the way in which it administers its overseas territories. Although France apparently succeeded in unilaterally removing some of its territories from the Committee’s list of Non-Self-Governing territories, the Committee has also unilaterally added territories to its list, thus expecting responsible States to submit reports on them.24 United Kingdom territories were removed from the list at the time of their independence. But the United Kingdom has never attempted unilaterally to remove territories from the list as it seems to have accepted that if territories are put on the list by a General Assembly resolution, the same would be required formally to remove them from it, and until then there is an obligation under the Charter in respect of them. The United Kingdom therefore still provides information annually on its listed territories. This information is supplied by the territories themselves to the United Kingdom for onward transmission. In addition, representatives from Gibraltar and the Falkland Islands established a practice

17

UNGA Res 1535 (XV) (15 December 1960). UNGA Res 1654 (XVI) (27 November 1961). 19 The United Kingdom territories currently on the Decolonisation Committee’s list are Anguilla, Bermuda, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn, St Helena, the Virgin Islands and the Turks and Caicos Islands. 20 The United Kingdom announced in September 1961 that it would in future transmit political and constitutional information on its listed territories: see Goodrich, Hambro and Simons, Charter of the United Nations, 3rd and rev edn (New York and London, Columbia University Press, 1969) 455. 21 See Report of the Anguilla Constitutional and Electoral Reform Commission, p 11. 22 Eg to Montserrat in 1982 and the Turks and Caicos Islands in 2006. 23 See UNGA Res 61/128 (14 December 2006). 24 Southern Rhodesia, which the United Kingdom regarded as self-governing, was unilaterally added to the list in 1962. 18

250 The Territories in International Law of attending the Committee of 24 as ‘petitioners’, officially to provide first hand information on developments in their territories relevant to decolonisation, but Gibraltar has recently ceased to do so. In 1985 the United Kingdom Government decided, with effect from 1 January 1986, to stop cooperating with the Committee while retaining the right to participate in the Falkland Islands debates. The then Permanent Representative of the United Kingdom to the United Nations wrote to the chairman of the Committee stating that as far as the United Kingdom and its remaining non-self-governing territories were concerned, the colonial era was over and there seemed no need for the United Nations to devote time and resources to the special study of the affairs of the territories which had decided to retain an association with the United Kingdom. He went on to explain that the United Kingdom would continue to fulfil its obligations under Article 73(e) of the Charter, and would transmit information on the listed territories to the United Nations Secretary-General.25 The United Kingdom’s decision to withdraw cooperation was criticised by the Committee26 and the General Assembly.27 In its explanation of vote on Resolution 41/41B the United Kingdom said that no useful purpose would be served by the United Kingdom continuing to take part in the activities of the Special Committee28 and that there was no need for the United Nations to devote time and resources to the special studies of the affairs of British territories. In 1999 the United Kingdom position seemingly thawed a bit, and the United Nations’ summary record of the General Assembly Fourth Committee meeting29 states that the United Kingdom ‘warmly welcomed the Special Committee’s decision to undertake a critical review of its programme of work and methods and in particular its steps to re-open a process of informal consultation with the Administering Powers’ and went on to argue that ‘as the Committee explored more directly the position of the [territories] and the views of their people, it would become clear that ‘colonial’ status was no longer an accurate description of their status’. It was also made clear to territory Governments around the same time that the United Kingdom had long supported the principle of delisting and considered it an anachronism that its territories remained on the list. The United Kingdom’s informal cooperation with the Committee of 24 has continued since. But the United Kingdom Government has regularly continued to make its position on the Committee and the listing of its territories clear. In 2008 it made clear that it ‘considers the existence of the Committee of 24 and the list of NonSelf-Governing territories to be outdated and remains of the view that none of its overseas territories should remain on the list’.30

25 The letter is referred to in the Committee’s 1986 annual report: see A/41/23, paras 76 and 77 and elsewhere. 26 A/AC 109/875. 27 UNGA Res 41/41B (2 December 1986), which the United Kingdom voted against. 28 The Committee of 24. 29 A/C 4/54/SR 5, para 94. 30 In a paper presented by the Foreign and Commonwealth Office at the Pacific Regional Seminar on the Implementation of the Second International Decade for the Eradication of Colonialism: Priorities for the remainder of the Decade, Bandung, Indonesia, 14–16 May 2008: UN Doc PRS/2008/CPR.9.

Self-determination 251 SELF-DETERMINATION

The United Kingdom’s relationship with its territories is based on the principle of self-determination as enshrined in the Charter of the United Nations.31 Early on the United Kingdom regarded the principle as enunciated in the Charter as ‘a political principle’ with ‘strong moral force’ only.32 However, in 1960 the Declaration on the Granting of Independence to Colonial Countries and Peoples,33 which was adopted overwhelmingly in the General Assembly,34 built on the principle contained in the Charter and declared that all peoples ‘have the right to self-determination’. This resolution was not legally binding and it is doubtful that it could be regarded as reflecting a principle of customary international law given the abstentions by the United Kingdom and eight others, and the resistance around that time by the United Kingdom and others to including the right of self-determination in the instruments which would eventually became the Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights in 1966. The Declaration was, however, significant since it recognised expressly the right to self-determination, whereas the Charter recognised only the principle of self-determination. The day after the adoption of the Declaration, the General Assembly adopted Resolution 1541 (XV)35 entitled ‘Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter’. The United Kingdom did not regard these Principles as legally binding and abstained in the voting on this Resolution. The Resolution set out circumstances in which the Decolonisation Committee would regard a Non-Self-Governing territory as having reached a ‘full measure of self-government’ and therefore when the obligation on the responsible State to submit reports under Article 73(e) of the Charter would cease. There were three possible scenarios for the territories: (1) emergence as a sovereign independent State; (2) free association with an independent State; and (3) integration with an independent State. There was, however, no recognition that any other constitutional relationship, even if it was the choice of the people of the territory, could be accepted as the exercise by the people of a territory of their right to self-determination, which would allow the territory to be removed from the list of Non-Self-Governing Territories. It was this limited approach by the General Assembly to the acceptable options, and indeed the options themselves, that led the United Kingdom to abstain. The Principles elaborated the meaning of free association and integration with an independent State. In the case of the former, the associated territory had to ‘determine its internal constitution without outside interference’, and in the case of the latter, integration had to be on the basis of ‘complete equality between the peoples of the [territory] and those of the independent country with which it [was] integrated’. The United Kingdom is of the view that the guiding principles for its relationship with its overseas territories are to be found in the United Nations Charter itself, which

31 32 33 34 35

Arts 1.2 and 55. Statement by United Kingdom representative in UNGA, 1955. UNGA Res 1514 (XV) (14 December 1960). By 89–0 votes, with 9 abstentions, one of which was the United Kingdom. UNGA Res 1541 (XV) (15 December 1960).

252 The Territories in International Law requires the administering power to take due account of the political aspirations of the peoples of its territories, and assist them in the progressive development of their free political institutions according to the particular circumstances of each territory and its peoples and their varying stages of development.36 These principles, to which the United Kingdom attaches the utmost importance, are largely ignored by Resolution 1541(XV). In 1966 the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were adopted by the General Assembly. Both of these are binding treaties, and both provide that ‘all peoples have the right to self-determination’ and that ‘by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. The United Kingdom, although it had earlier resisted the inclusion of the right to self-determination in the Covenants (which right was eventually included by majority decision), voted in favour of the adoption of both. In 1970 the General Assembly adopted, by acclamation, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (the Friendly Relations Declaration).37 In that Declaration the principle of equal rights and selfdetermination, whereby people had the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, was once again stated, this time without the dissenting voice of any State, including the United Kingdom. However, and perhaps most importantly for the United Kingdom, in that part of the Declaration it was also expressly recognised that ‘the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of selfdetermination by that people’. Thus, for the first time, the General Assembly had acknowledged that the people of a territory could exercise their right to self-determination other than by choosing independence, free association or integration. It was therefore possible for a territory to be in another political status of its people’s choosing which would satisfactorily fulfil the exercise of the right to self-determination. It may well have been this advance in the definition of what amounted to selfdetermination that enabled the United Kingdom in 1976 to become a party to the Covenants and at the same time extend them to some of its territories, thereby accepting the right to self-determination as a binding obligation both in relation to its own people and those of some of its overseas territories. It is the ‘other political status’ freely determined by the people of the territory referred to in the 1970 Declaration which the United Kingdom Government considers has been reached by all the substantially populated territories in the exercise of their peoples’ right to self-determination. In particular, the territories which have constitutions which post-date the 1999 White Paper38 are all in a constitutional arrangement with the United Kingdom to which their people have agreed. 36 United Kingdom statement to UNGA Fourth Committee, 2009: UNGA Doc GA/SPD//422 (5 October 2009). 37 UNGA Res 2625 (XXV) (24 October 1970). 38 ‘Partnership for Progress and Prosperity: Britain and the Overseas Territories’ (Cm 4264).

Treaties 253 In Gibraltar and the Cayman Islands, the people of the territory supported the draft constitution in a referendum, thus exercising directly their right to self-determination. In the case of the other territories, the elected representatives of the people in each territory debated and approved the adoption of the draft constitution in the form that it was subsequently brought into force. This also amounts to an exercise of selfdetermination by the people of the territory through their elected representatives. Overall, no substantially populated British overseas territory has a political status which is not acceptable to its inhabitants. The right to self-determination is mentioned in some territory constitutions, often using language drawn from the International Covenants.39 As a matter of English law, it has been held that the right to self-determination under international law cannot affect the power to make constitutional provision for an overseas territory by Order in Council, because the right has not been incorporated into domestic law.40 TREATIES

The United Kingdom is responsible for compliance by the overseas territories with obligations arising under international law, whether deriving from customary international law or from applicable treaties. In practice, this responsibility arises far more often in respect of obligations under treaties and other international agreements that have been applied to the territories by the United Kingdom Government. The territories themselves have no international legal personality and no international legal treaty-making capacity separate from that of the United Kingdom. The United Kingdom is therefore, as a matter of international law, responsible for the external relations of the territories, which includes responsibility for concluding treaties and for compliance with the international obligations under them. As a matter of constitutional law, treaty-making is an aspect of the Royal prerogative in the field of foreign affairs, and is therefore a matter for the United Kingdom. This is not to say that it is necessarily the United Kingdom which implements the territories’ treaty obligations in practice. As in the United Kingdom, under each territory’s law international agreements do not automatically become part of the law of the land as soon as they are extended to the territory; to become so they have to be implemented by legislation. This might involve giving part or all of the treaty the force of law in the territory,41 but this approach is not very common and more frequently it involves passing the legislation necessary to give effect to the treaty, or parts of it, in the local law. Although in some cases the United Kingdom legislates

39 Falkland Islands Constitution (SI 2008/2846) s 1(a) and (b); Cayman Islands Constitution (SI 2009/1379) s 1, preamble; Gibraltar Constitution (SI 2006, III, p 11503) ch 1, preamble; St Helena, Ascension and Tristan da Cunha Constitution (SI 2009/1751) preamble, para (g); Montserrat Constitution (SI 2010/2474) preamble and s 2. 40 R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549. See also R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL) paras 64, 66, 116 and 120. 41 See eg Consular Relations Act 1971 (Laws of Bermuda (1989 Revision) Title 6, Item 1), which gives the force of law in Bermuda to certain provisions of the Vienna Convention on Consular Relations.

254 The Territories in International Law for the territories, by primary legislation or Order in Council, to give effect to treaty obligations in territory law,42 more often locally enacted legislation implements applicable treaty obligations. In addition, it is up to the territory Government to take any practical steps, such as implementing appropriate policies, practices, guidelines or other non-legislative steps, required to give effect to treaty obligations applicable to the territory. In practice, under current constitutional arrangements, it would be extremely difficult, if not impossible, for the United Kingdom to take some of these practical steps on behalf of most of the territories, or to force territory Governments to take them, except through negotiation. The United Kingdom Government does, however, pay close attention to the way in which the territories implement treaty obligations because, ultimately, it is the United Kingdom which could be held responsible if the territory violates the obligations under a treaty. It is the United Kingdom which would have to answer to any case brought before an international tribunal such as the European Court of Human Rights43 or the International Court of Justice in respect of an alleged violation by a territory Government, or which would have to answer to another State if it complained directly to the United Kingdom Government about non-compliance with a treaty obligation by a territory. As a last resort, assuming that it is possible under the treaty, it would be open to the United Kingdom to decide unilaterally to withdraw the application of a treaty to a territory if it was clear that the territory was unable or unwilling to comply with it.44 A treaty is often extended to one or more overseas territories at the time that the United Kingdom consents to be bound by it, usually by ratification or accession, or at a later date, by making a territorial application declaration. Such a declaration can also be made at the time of signature, but this tends to be less common, and would anyway usually have to be reconfirmed at the time of ratification. Although it is possible to extend a treaty to different territories at different times, the United Kingdom’s usual practice is to extend it to a group of territories where possible. But there are times when circumstances require a case by case approach. Most treaties nowadays are silent on territorial application, sometimes due to the sensitivities of certain States about the continuing existence of overseas territories, and this has been the case with treaties concluded within the auspices of United Nations for many years. By contrast, Council of Europe conventions usually still contain a territorial application provision, a reflection of the fact that a number of the Member States of that organisation have overseas territories. Some other organisations, such as The Hague Conference on Private International Law and the International Labour Organisation, also have territorial application provisions in their treaties. The fact that a treaty is silent on territorial application does not, however, mean that it is not permissible for a State to extend it to its overseas territories, and this routinely happens. The State is also free to decide not to extend 42

See eg European Convention on Extradition (Dependent Territories) Order 1996 (SI 1996/2875). See eg Application 36822/06 Ebanks v United Kingdom (in respect of the Cayman Islands), judgment delivered 26 January 2010. 44 The United Kingdom Government took a unilateral decision temporarily to withdraw the application of art 3, First Protocol to the European Convention on Human Rights (the right to free elections) in respect of the Turks and Caicos Islands from 14 August 2009, the date of suspension of the House of Assembly in the territory. 43

Treaties 255 such a treaty to its overseas territories. Consideration does of course have to be given to whether there is anything in the treaty which would prohibit such action. But when the United Kingdom and other States with overseas territories negotiate treaties they endeavour to ensure that their interests in relation to those territories are not prejudiced by the drafting of the treaty. The United Kingdom Government does not accept that a territorial declaration in relation to a treaty which is silent on territorial application amounts to a reservation to the treaty. The Vienna Convention on the Law of Treaties 1969,45 Article 29, which concerns the territorial scope of treaties, provides that ‘unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory’. Although the provision was drafted without specific reference to overseas territories, its effect seems to be clear enough—that unless a different intention can be determined, either from the treaty itself or otherwise, a State is bound by a treaty to which it becomes party in respect of both its metropolitan and its non-metropolitan territory. This reflects the position under customary international law. In relation to the United Kingdom, without establishing a different intention, this provision could have the effect of binding the United Kingdom also in respect of the overseas territories and the Crown Dependencies when it becomes party to a treaty. Beyond considering the terms of a treaty the Vienna Convention does not specify how the different intention might be established, so in addition to considering the implications of the content or the character of a treaty one needs to consider such things as statements made by a State during negotiations, or at the time of signing, ratifying or acceding to a treaty, and a State’s practice in relation to the application of treaties to its territory. Where a treaty has no express provision on territorial application, the practice of the United Kingdom is to state in its instrument of ratification46 to which, if any, overseas territories the treaty is to apply. In the past instruments sometimes referred only to ‘territories under the territorial sovereignty of the United Kingdom’ where all territories were to be covered. But the practice developed of naming individual territories in the instrument of ratification when some but not all of them wished to be included in the ratification. Nowadays an instrument usually names the territories individually even where all territories are to be covered, but it is also possible to use a formula such as ‘the territories for the international relations of which the United Kingdom is responsible’ in the instrument to achieve this effect. A later notification may also be sent to a depositary naming further territories if necessary. If the instrument states that the treaty is being ratified in the name of ‘the United Kingdom of Great Britain and Northern Ireland’ it is the practice of the United Kingdom, in the absence of any contrary indication, to regard the treaty as not applying to any of its territories. This approach to treaty ratification has been applied consistently since 1967, and thus in the United Kingdom Government’s view meets the requirement in Article 29 of the Vienna Convention to establish a different intention, and is one

45 UKTS No 58 (1980); Cmnd 4818. The United Kingdom ratified it on 25 June 1971 and it came into force on 27 January 1980. 46 While the term ‘ratification’ is used, the practice applies equally to any other means of consenting to be bound by a treaty, eg accession, which is the other method most frequently used by the United Kingdom.

256 The Territories in International Law with which international organisations and other States seem content. The United Kingdom’s practice in relation to the overseas territories has also been applied in relation to the Channel Islands and the Isle of Man since 1950. As a matter of constitutional law it is open to the United Kingdom to apply treaties to (or to withdraw their application from) the territories without any consultation with them because the application of treaties falls wholly within the responsibilities of the Government of the United Kingdom, not those of the territory Governments. This is the case whether or not the subject-matter of the treaty has been devolved to the territory Government. However, it has long been the practice of the United Kingdom Government to consult territory Governments before taking a decision on extending the application of a treaty to them and, certainly nowadays, it would only be in an exceptional case that the United Kingdom would act against the wishes of a territory Government. This can be seen from the fact that there are many treaties which apply to some territories but not others, even if one looks at older treaties.47 The Cayman Islands Constitution is unique in addressing this issue by making it a constitutional requirement that the Governor, unless instructed otherwise by a Secretary of State, obtain the agreement of the Cabinet before he or she enters into, agrees or gives final approval to any international agreement, treaty or instrument that would affect internal policy or require implementation by legislation in the Cayman Islands.48 One occasion when the United Kingdom Government might need to impose the extension of a treaty against the will of the territory Government is in order to comply with an international obligation, for example, where it is required by European Union law, and there is nothing to prevent it from doing that. There are treaties which apply to territories to which the United Kingdom is not itself a party. These tend to be regional treaties, such as the treaties establishing the Caribbean Community and the Organisation of Eastern Caribbean States, but there are also rare examples of a treaty being extended to territories before the United Kingdom later becomes a party to it. One example is the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, commonly known as the Straddling Stocks Agreement.49 There was mixed European Community and Member State competence in relation to this Agreement and therefore both the Community and the Member States had to become parties simultaneously. There was a delay within the Community and the United Kingdom took the decision that certain territories50 which wanted the Agreement extended and would benefit from its application, and which were outside the European Community, should not be deprived of that benefit any longer. The United Kingdom therefore ratified the Agreement in respect of those territories on 10 December 2001, before ratifying in respect of the United 47 See eg the Convention relating to the Status of Refugees, UKTS No 39 (1954); Cmd 9171, which was extended to certain overseas territories at different times but which at the time of writing had not been extended to all of them. 48 Cayman Islands Constitution s 55(3). 49 UKTS No 19 (2004); Cm 6176. 50 Anguilla, Bermuda, the British Indian Ocean Territory, the Falkland Islands, Pitcairn, South Georgia and South Sandwich Islands, the Turks and Caicos Islands and the Virgin Islands.

Entrustments 257 Kingdom of Great Britain and Northern Ireland on 19 December 2003, the date that the European Community also became a party. ENTRUSTMENTS

It is open to the United Kingdom Government to grant authority to an overseas territory to conduct external relations on its own behalf. Such authority is in practice usually granted by letter to the territory Government, and is commonly called an ‘entrustment’. There are two categories of entrustment: (1) general entrustments, covering all treaties within certain categories, although these may also only permit action in relation to specified organisations or countries; and (2) ad hoc, or one-off, entrustments, relating to a particular treaty, and in relation to a specified organisation or country. Most entrustments are granted in relation to the negotiation and conclusion of an instrument binding under international law. This includes instruments called treaties, agreements, conventions, exchanges of notes or letters, or any other instrument of a binding nature, all of which are referred to below simply as treaties. Some countries refer to an instrument which the United Kingdom would regard as binding under international law as a memorandum of understanding. So while non-binding memoranda of understanding tend not to require an entrustment for their negotiation and conclusion, there could be cases when a memorandum of understanding would be regarded as requiring an entrustment, either because it constituted a binding agreement or because of its subject-matter (for example setting up a joint organisation with another country giving rise to financial liabilities). Some general entrustments issued to territories also cover memoranda of understanding.51 Where an overseas territory wants to join a regional or international organisation, as a member or an associate member, and prefers to make the application for membership and negotiate entry into the organisation itself, which would usually involve it becoming party to the treaty establishing the organisation, an entrustment is required. Where an overseas territory Government wishes to invite a Head of State or Government or other member of a foreign government or royal family to the territory in an official capacity, the Governor should always be consulted.52 While the view might be taken in London that a formal entrustment is not required, as this matter falls within the Governor’s special responsibility for external affairs, he or she should be consulted before any invitation is issued. The Governor may take the view that the invitation should issue jointly from the Governor and the Premier, and it is within his or her power to do so. But, strictly, as engagement with a foreign Head of State or Government does involve external affairs, the United Kingdom Government could require the territory Government to seek an entrustment prior to approaching the other country.

51

See Virgin Islands and Bermuda letters of entrustment: ch 13, apps 1 and 2. This is expressly required in the Cayman Islands and Virgin Islands constitutions: see ch 13 above. 52

258 The Territories in International Law As noted above, the overseas territories have no international legal capacity of their own to conclude treaties. Such capacity must be conferred by the United Kingdom on a territory. Where the United Kingdom intends to become party to a treaty in respect of its metropolitan territory, the British Government invariably concludes it and extends its application, either at the time of ratification or later, to overseas territories. But there are some occasions on which the United Kingdom decides that an overseas territory should conclude a treaty itself. This is usually where the treaty does not, and will not, apply to the metropolitan territory, often because the treaty is a regional one, to which the United Kingdom itself is not eligible to be a party in respect of its metropolitan territory, or because it relates to a bilateral matter concerning only the overseas territory and another country. In such cases it is, of course, still possible for the United Kingdom to conclude the treaty on behalf of the territory, or alongside the territory53 if that is the United Kingdom’s (or the territory’s) preference. It is also open to the other State or States involved to request conclusion of a treaty with the United Kingdom rather than with a territory even where the treaty relates only to the territory. Even if the other party is willing to sign or conclude a treaty with the territory, it is still entitled to ask the United Kingdom or the territory to show evidence that the territory has authority to act, and such evidence will normally take the form of the letter of entrustment. Where a letter of entrustment has been issued to the territory, it would be highly unusual for the United Kingdom Government also to issue full powers, as the entrustment is the equivalent of full powers where the territory is going to act. But it would not be impossible if another State or an international organisation required it, either as well as or instead of the entrustment. Where the United Kingdom has issued an entrustment it should only sign the treaty on behalf of the territory if the territory agrees or if it first revokes the entrustment. Where it is agreed that a territory should conclude a treaty itself, the United Kingdom gives the territory capacity to enter into the treaty in question by granting an entrustment. The United Kingdom Government also requires an entrustment, in the sense of authority, to be sought by a territory wanting to begin negotiation of a treaty. Because the treaty-making power is part of the Royal prerogative in the United Kingdom and the Governor is the Queen’s representative in the overseas territory it is normal for the letter of entrustment to be addressed to the Governor and the power to conclude a treaty to be entrusted to him or her. As treaty-making is a matter of external affairs, it is also logical that it should be entrusted to the Governor who has responsibility for external affairs in all territories. In practice the entrustment letter is usually signed by a minister or senior official on behalf of the Secretary of State, but constitutionally it is the Crown which is conferring its treatymaking capacity on the Governor. Once the entrustment letter is received the territory has treaty-making capacity in the person of its Governor. However, if it is the intention that someone other than the Governor should sign a treaty on behalf of the territory, the usual practice is for the Governor to be authorised by the Secretary 53 See eg Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland including the Cayman Islands and the Government of the United States of America for the Exchange of Information relating to Taxes (Cm 6628). This was signed by the British Ambassador in Washington for the United Kingdom and the Governor for the Government of the Cayman Islands.

Entrustments 259 of State to delegate the authority that he or she has been given to conclude the treaty to someone else, usually a local minister. The Governor has specific power to delegate his authority for external affairs with the prior approval of a Secretary of State to a local minister in a number of constitutions.54 But even where such power is not provided by the constitution, the Secretary of State can still instruct, or authorise, the Governor to delegate his or her authority to conclude a treaty to another person. In practice the authority to delegate is usually, but not always, included in the wording of the entrustment. Sometimes an entrustment letter authorises the Government, rather than the Governor, of the territory to conclude a treaty.55 The effect of this seems to be that any member of the territory Government, whether the Governor, the Premier or another minister, is authorised by the Secretary of State to conclude the treaty, and it has certainly been interpreted by territory ministers as entrusting them directly to conclude treaties, an approach which has been accepted by Governors and the Foreign and Commonwealth Office. It is questionable, however, whether this shorthand route is desirable, as it is less clear constitutionally and could result in confusion about exactly who has been entrusted to conclude the treaty, and therefore where the treaty-making capacity lies, were a dispute to arise between the Governor and the local ministers. However, even when this approach has been taken, with certain notable exceptions,56 the letter of entrustment has still invariably been addressed to the Governor, and it seems to be generally accepted that the territory ministers would conclude the treaty only with the agreement of the Governor. Where an entrustment is granted to a territory by the United Kingdom to conclude a treaty this does not contain any implied grant of a right to undertake any other action in relation to treaties, such as to sign related instruments or to terminate the treaty in respect of which the entrustment is granted. The territory, having no international legal personality or capacity of its own in respect of treaties, only has authority to act in relation to them to the extent specifically entrusted to it by the United Kingdom. The number of entrustments granted has increased significantly in recent years. Between 1980 and 1993 around a dozen entrustments were granted, between 1993 and 2007 more than three times that number were granted, and in 2009 alone, 13 were granted. The majority of entrustments are granted to Caribbean territories and Bermuda, which is mainly a reflection of the extent of integration and cooperation in the region. From 1968 until 2003 Bermuda was the only territory with a general entrustment.57 But in 2003 general entrustments were granted to the Caribbean territories, Bermuda and Gibraltar to negotiate tax information exchange agreements

54

See eg Virgin Islands Constitution (SI 2007/1678) s 60(3); Cayman Islands Constitution s 55(7). This is the approach taken in the general entrustments granted to the Caribbean territories, Bermuda and Gibraltar to conclude tax information exchange agreements with specified countries. 56 The general letters of entrustment granted to the Cayman Islands, Montserrat and the Virgin Islands (see ch 13, app 1 above) at the conclusion of negotiations for their new constitutions. But these were part of a constitutional package agreed between the United Kingdom Minister and the territory Governments, which probably explains the difference of approach. 57 Bermuda’s general entrustment granted in 1968 came into effect on 1 February 1972 and was amended to include bilateral agreements relating to tourism in 2005. 55

260 The Territories in International Law with European Union and OECD58 countries.59 In 2007 the Virgin Islands were granted a general entrustment relating to a range of issues as part of their constitutional settlement, in 2009 the Cayman Islands were granted one in almost identical terms when their new Constitution was agreed, and in 2010 Montserrat was granted one in similar terms on conclusion of its new Constitution.60 Also, following a review by the Foreign and Commonwealth Office, Bermuda was granted a new general entrustment in December 2009 to replace its 1968 one.61 But, in general, entrustments still tend to be ad hoc in nature, relating to the conclusion of a specific treaty.62 There have been several occasions when agreements have been negotiated and signed by overseas territories without entrustments first being sought. The signature of these agreements is not legally valid unless the conclusion of the treaty is retrospectively authorised by the British Government. It is also open to the British Government to advise the other party or the depositary of the treaty that the territory representative’s signature was unauthorised, and therefore invalid, and should be disregarded. But, where possible, steps are usually taken to rectify the situation. However, disregard by an overseas territory of the need to seek an entrustment can be embarrassing for both the territory Government and the United Kingdom Government, and therefore it is important that territory Governments recognise the limits of their powers in the conduct of external affairs and the conclusion of treaties, and act accordingly. Where a territory concludes a treaty having been granted an entrustment, the question may arise whether the territory is the party to the treaty and, if relevant, the member (or associate member) of the organisation to which the treaty relates, or whether the United Kingdom is the party (or member or associate member of the organisation) in respect of the territory. What is beyond doubt is that the United Kingdom Government is responsible under international law for compliance with the obligations under a treaty in respect of a territory, whether the United Kingdom extends the treaty to the territory or the territory concludes the treaty itself under an entrustment. Whichever approach is used, any other party to a treaty is entitled to look to the United Kingdom for redress should the territory violate the treaty provisions. However, who is actually a party to the treaty is not so straightforward. On one view the territory acts as the agent of the United Kingdom in concluding a treaty in its own name.63 But a few treaties expressly allow non-State entities such as some

58

Organisation for Economic Cooperation and Development. These entrustments were replaced for the Caribbean territories (except the Virgin Islands) and Bermuda in September 2009 by new entrustment letters which broadened the scope of the 2003 letters to include two additional types of tax agreement, and additional countries with which agreements could be negotiated and concluded. The Virgin Islands did not require a new letter as paragraph 3(b) of their general letter of entrustment, dated 13 June 2007 (see ch 13, app 1 above), covered such agreements. A letter in similar terms was issued to Gibraltar in March 2010. 60 See ch 13 above. 61 Ibid. 62 For example, Bermuda was granted an entrustment on 5 February 2009 to sign and conclude an agreement with the United States on immigration preclearance procedures. This subject was regarded as falling outside the scope of Bermuda’s general entrustment. 63 See A Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press, 2007) 72. 59

Maritime Areas and Airspace 261 overseas territories to become contracting parties.64 In practice this is of importance in the case of international organisations, such as the Caribbean Community (CARICOM), where an overseas territory such as Montserrat is a full member of the organisation in accordance with its constitutive treaty. AGREEMENTS BETWEEN TERRITORIES OR BETWEEN A TERRITORY AND THE UNITED KINGDOM

It is not possible for overseas territories to conclude an agreement binding under international law with another overseas territory or for one or more overseas territories to conclude such an agreement with the United Kingdom. This is because internationally the territories are not legal entities separate from each other or from the United Kingdom. Therefore where an instrument is to be signed between territories themselves or between territories and the United Kingdom it is better practice for it to be drafted in language which makes clear that it is a memorandum of understanding or arrangement rather than in treaty language which could lead to confusion. However, although the entrustments issued to the Caribbean territories, Bermuda and Gibraltar concerning tax agreements are not intended to apply to arrangements between those territories and the United Kingdom (or between territories), several of the instruments entered into between the territories and the United Kingdom are drafted in treaty form.65 A reference is, however, usually made in the agreement itself66 or in a covering exchange of letters67 to ‘respecting the constitutional relationship’ between them, which is designed to show that the instruments are not intended to be treaties. The instrument concluded between the United Kingdom and Bermuda takes the form of an ‘Arrangement’.68 Even so it still contains some treaty language. To draft an instrument between the United Kingdom and an overseas territory in the form of an international agreement is very unusual and not desirable as it leads to confusion and uncertainty, not just between the participants, but for others too. But regardless of the form they take, probably the most that these instruments could be is a contract binding upon the parties under domestic law. MARITIME AREAS AND AIRSPACE

Each overseas territory generates maritime areas over which the United Kingdom has sovereignty or jurisdiction in accordance with international law. The delimitation of such areas is in practice effected either by Order in Council, local legislation 64 United Nations Convention on the Law of the Sea: UKTS No 81 (1999); Cm 4524; Treaty establishing the Caribbean Community: UNTS vol 946, p 18 (1974); Treaty establishing the Organisation of Eastern Caribbean States: UNTS vol 1338, p 98 (1983). 65 Often because they followed a model instrument prepared by the OECD. 66 See the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Gibraltar for the Exchange of Information Relating to Taxes, dated 27 August 2009 (www.hmrc.gov.uk/international/gibraltar-eol.pdf). 67 www.hmrc.gov.uk/international/bvi-eol.pdf. 68 www.oecd.org/dataoecd/60/4/39727096.pdf.

262 The Territories in International Law or proclamation of the Governor.69 Each territory also has its own airspace in respect of which the United Kingdom has sovereignty in accordance with international law. SOVEREIGNTY CLAIMS

There are a number of countries which make sovereignty claims to United Kingdom territory in the British overseas territories. It is not the purpose of this text to make an assessment of those claims, but simply to point out that such claims exist. The most well-known claims to British territory are by Spain to Gibraltar, and by Argentina to the Falkland Islands. But there are also claims by Argentina over South Georgia and the South Sandwich Islands and parts of the British Antarctic Territory. Chile also claims parts of the British Antarctic Territory.70 Mauritius lays claim to the islands constituting the British Indian Ocean Territory. The United Kingdom’s position on sovereignty of the territories to which others make a claim is that it has no doubt about its sovereignty over these territories. This certainty as to sovereignty extends to the airspace over the territories and the maritime areas generated by them. Argentina regularly objects through circulars or diplomatic notes, written declarations or statements to the United Kingdom extending treaties to the Falkland Islands, South Georgia and the South Sandwich Islands and the British Antarctic Territory and to references to these territories made in statements or documents of the British Government and the European Union. Objections are sometimes also made orally at international meetings. These objections are invariably rebuffed, on a reactive basis, by circular or bilaterally, as appropriate, by the United Kingdom Government or through the presidency of the European Union, in which the United Kingdom Government rejects all claims, stating, as appropriate, that the United Kingdom has no doubt about its sovereignty over these territories and their maritime areas. In relation to protests by Argentina concerning the Falkland Islands, the United Kingdom usually also states that the principle of self-determination enshrined in the United Nations Charter underlies its position on the sovereignty of the Falkland Islands and that there can be no negotiation unless and until such time as the Falkland Islanders so wish. In relation to Argentine protests relating to the British Antarctic Territory, in the context of sovereignty the United Kingdom draws attention to Article IV of the Antarctic Treaty71 to which both the United Kingdom and Argentina are parties. Except in the United Nations Decolonisation Committee, Spain and the United Kingdom generally do not enter into discussion of Gibraltar in international fora. The United Kingdom accepts the condition in the Treaty of Utrecht 171372 that 69 See eg Turks and Caicos Islands (Territorial Sea) Order 1989 (SI 1989/1996, as amended by SI 1998/1260); Fishery Limits (Turks and Caicos Islands) Ordinance (Laws of the Turks and Caicos Islands (1998 Revision), Cap 105); Montserrat Exclusive Fisheries Zone Proclamation No 4 of 1983. 70 All territorial sovereignty disputes in Antarctica are held in abeyance by the Antarctic Treaty, 1959, art IV (UKTS No 97 (1961); Cmnd 1535). 71 UKTS No 97 (1961); Cmnd 1535. 72 British and Foreign State Papers, vol I, pt I, p 613.

Sovereignty Claims 263 should the United Kingdom wish to dispose of Gibraltar it must first be offered to Spain, and the United Kingdom considers that the right to self-determination of the people of Gibraltar is subject to this treaty obligation. However, the United Kingdom Government has repeatedly made clear that it will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another State against their freely and democratically expressed wishes and this position is expressed in the opening preambular paragraph of the current Gibraltar Constitution,73 having first appeared in the previous one.74 Mauritius claims that the British Indian Ocean Territory was unlawfully excised by the United Kingdom from Mauritius prior to its independence from the United Kingdom, a claim the United Kingdom firmly rejects. Although successive British Governments have given undertakings to Mauritius that the Territory will be ceded to Mauritius when it is no longer required for defence purposes,75 the Government of Mauritius continues to pursue the matter through diplomatic channels demanding the islands’ return to Mauritius, and regularly makes public statements to this effect. Although there have been United Nations General Assembly resolutions concerning sovereignty claims by other States over British territory, to date no case has been brought in an international tribunal by any of the States claiming sovereignty over British territory in order to test its claim. In 1955 the United Kingdom referred to the International Court of Justice the sovereignty disputes with Argentina and Chile concerning areas now forming parts of the British Antarctic Territory and South Georgia and the South Sandwich Islands, but these cases were not determined because neither Argentina nor Chile accepted the jurisdiction of the Court.76

73

SI 2006, III, p 11503. SI 1969, II, p 3602. ‘Partnership for Progress and Prosperity: Britain and the Overseas Territories’ (Cm 4264) p 51. 76 See ICJ Pleadings, Antarctica Cases (United Kingdom v Argentina; United Kingdom v Chile) 1955. 74 75

15 The Territories and the European Union

T

HE RELATIONSHIP OF the British overseas territories with the European Union is not uniform. The European territories of Gibraltar and the Sovereign Base Areas are within the European Union for certain purposes. The other territories have the status of ‘overseas countries and territories’ in association with the European Union. This chapter examines the relationship of the territories with the European Union according to the relevant treaty provisions. THE TREATY OF LISBON

The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on 13 December 2007,1 entered into force on 1 December 2009. The Treaty of Lisbon made numerous amendments to the two basic treaties mentioned in its title, and renamed the Treaty establishing the European Community as the Treaty on the Functioning of the European Union. Consolidated versions of the two treaties as amended by the Treaty of Lisbon have been published in the Official Journal of the European Union2 and as a United Kingdom Command Paper.3 THE TREATY ON EUROPEAN UNION

Article 52 of the Treaty on European Union provides, in paragraph 1, that the Treaty applies to the 27 Member States, and in paragraph 2 that: The territorial scope of the Treaties is specified in Article 355 of the Treaty on the Functioning of the European Union.

The reference to ‘the Treaties’ in paragraph 2 means the Treaty on European Union itself and the Treaty on the Functioning of the European Union. Article 1 includes the following sentence: The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).

1 2 3

[2007] OJ C306/1; UKTS EC Series No 13 (2007), Cm 7294. [2008] OJ C115/1. Cm 7310.

The Treaty on the Functioning of the European Union 265 Accordingly, Article 355 of the Treaty on the Functioning of the European Union determines the territorial scope of both treaties. The application of common foreign and security policy measures adopted under the Treaty on European Union is considered at the end of this chapter. THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

So far as material, Article 355 of this Treaty provides: In addition to the provisions of Article 52 of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply. 2. The special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II. The Treaties shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not in the aforementioned list. 3. The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible. … 5. Notwithstanding Article 52 of the Treaty on European Union and paragraphs 1 to 4 of this Article: (b) the Treaties shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of [the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia] to the European Union and in accordance with the terms of that Protocol.

All the British overseas territories except Gibraltar and the Sovereign Base Areas are listed in Annex II and therefore fall within the first sentence of paragraph 2.4 As such they are ‘overseas countries and territories’ (OCTs) for the purposes of the Treaties. The second sentence of paragraph 2 does not at present apply to any British overseas territory,5 but it would apply to any territory that may be omitted from Annex II in the future.

4 Para 2 is in the same terms as the former art 299(3) of the Treaty establishing the European Community. Annex II to the Treaty establishing the European Community was not amended by the Treaty of Lisbon, and now forms Annex II to the Treaty on the Functioning of the European Union. Apart from the 12 British overseas territories, Annex II lists various OCTs connected with Denmark, France and the Netherlands. 5 This sentence, which is unchanged from art 299 of the Treaty establishing the European Community, applied to Hong Kong before its transfer to China in 1997.

266 The Territories and the European Union Paragraph 3 applies to Gibraltar.6 A joint Declaration by Spain and the United Kingdom made at the time of signature of the Lisbon Treaty7 states: The Treaties apply to Gibraltar as a European territory for whose international relations a Member State is responsible. This does not imply changes in the respective positions of the Member States concerned.

As is clear from its wording, paragraph 5(b) applies to the Sovereign Base Areas.8 There are therefore three different territorial application provisions relevant to the British overseas territories, and each will be considered in turn.

A. Overseas Countries and Territories 1. The Territorial Application of the Treaty The European Court of Justice has confirmed that the overseas countries and territories are subject to the special association arrangements set out in Part Four of the Treaty with the result that, failing express reference, the general provisions of the Treaty do not apply to them.9 However, it has also held that the Court has jurisdiction to give a preliminary ruling on a question referred to it by a court in an OCT under the procedure now set out in Article 267 of the Treaty.10 The ‘special arrangements for association set out in Part Four’ that apply to the OCTs consist of Articles 198 to 204 of the Treaty on the Functioning of the European Union. Of these, Article 204 applies only to Greenland. Article 198 describes the purpose of association as ‘to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union as a whole’. The third paragraph of Article 198 provides: In accordance with the principles set out in the preamble to this Treaty, association shall serve primarily to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire.

Article 199 sets out five objectives of the association, the predominant theme of which is non-discrimination.11 The first two relate to trade. Member States must 6 Para 3 is in the same terms as the former art 299(4) of the Treaty establishing the European Community. 7 See Declaration 55 annexed to the Final Act of the Intergovernmental Conference: [2007] OJ C306/268. 8 Para 5(b) is in the same terms as the former art 299(6)(b) of the Treaty establishing the European Community. 9 Case C-260/90 Leplat [1992] ECR I-643 para 10; Case C-110/97 Netherlands v Council [2001] ECR I-8763 para 49; Case C-300/04 Eman and Sevinger [2006] ECR I-8055 para 46. 10 Cases C-100 and C-101 Kaefer and Procacci v French State [1990] ECR I-4647 paras 6–10. 11 The European Court of Justice stated in 1997 and 1999 that association of the OCTs is to be achieved by a dynamic and progressive process which may necessitate the adoption of a number of measures in order to attain all the objectives of the previous version of this Article, having regard to the experience acquired through the Council’s previous decisions. Although the OCTs have special links with the Community they do not form part of it, and free movement of goods between the OCTs and the Community does not exist unrestrictedly at this stage: see Case C-310/95 Road Air v Inspecteur

The Treaty on the Functioning of the European Union 267 apply to their trade with the OCTs the same treatment as they accord each other pursuant to the Treaties. Each OCT must apply to its trade with Member States and with other OCTs the same treatment as that which it applies to the European State with which it has special relations.12 The third and fourth objectives relate to investments in the OCTs. The fifth concerns the right of establishment. In relations between Member States and the OCTs the right of establishment is to be regulated in accordance with the provisions and procedures of the Treaty chapter on the right of establishment13 and on a non-discriminatory basis, subject to any special provisions laid down in a Council decision adopted under Article 203.14 Article 200 deals with customs duties.15 Member States are prohibited from imposing customs duties on imports of goods originating in the OCTs.16 Similarly, customs duties on imports into each OCT from Member States and the OCTs are in principle prohibited. But the OCTs may levy customs duties which meet the needs of their development and industrialisation or produce revenue for their budgets, provided these duties do not exceed the level of those imposed on imports of products from the Member State with which each OCT has special relations. Moreover, the introduction of or any change in customs duties imposed on goods imported into the OCTs must not, either in law or in fact, give rise to any direct or indirect discrimination between imports from the various Member States.17 Article 201 provides that, if the level of duties applicable to goods from a third country on entry into an OCT is liable, when Article 200(1) has been applied, to cause deflections of trade to the detriment of any Member State, the latter may request the Commission to propose to the other Member States the measures needed to remedy the situation. Article 202 deals with the free movement of workers. Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from an OCT, and within an OCT for workers from Member States, is to be regulated by acts adopted in accordance with Article 203. No such act has so far regulated this matter. In previous versions of Article 202,18 free movement of workers was to be governed by agreements to be concluded with the unanimous approval of Member States. No such agreements were ever concluded. Accordingly nationals of Member States may not rely on European Union

der Invoerrechten en Accijnzen [1997] ECR I-2229 para 40; Case C-390/95 P Antillean Rice Mills v Commission [1999] ECR I-769 para 36. 12

That is, as regards the 12 British overseas territories that are OCTs, the United Kingdom. Title IV, Chapter 2. On the equivalent rule in the Treaty establishing the European Community, see Cases C-100 and C-101/89 Kaefer and Procacci v French State [1990] ECR I-4647. 15 Though not stated expressly, the references to customs duties in art 200 include measures having equivalent effect: Case C-260/90 Leplat [1992] ECR I-643. 16 But the application of a safeguard rule included in a Council decision to the importation of agricultural products from the OCTs has been upheld as lawful: see Case C-390/95 P Antillean Rice Mills v Commission [1999] ECR I-769 paras 36–39. 17 On the equivalent rules in the Treaty establishing the European Community, see Case C-260/90 Leplat [1992] ECR I-643. 18 Art 186 (and, before the Treaty of Amsterdam, art 135) of the Treaty establishing the European Community. 13 14

268 The Territories and the European Union law to claim the right to enter and reside in an OCT to obtain and pursue salaried employment there.19 Article 203 requires the Council, on the basis of the experience acquired under the association of the OCTs with the Union and of the principles set out in the Treaties, to lay down provisions as regards the detailed rules and the procedure for the association of the OCTs with the Union.20 The Council is to act unanimously on a proposal from the Commission and after consulting the European Parliament.21 Originally, the detailed provisions for the association had been contained in an Implementing Convention annexed to the Treaty of Rome, which lasted until 31 December 1962. Thereafter, Council Decisions lasting five years were adopted in 1964, 1970, 1976, 1980 and 1986. In 1991 a Council Decision lasting 10 years was adopted, and this was replaced in 2001 by the current 10-year Council Decision, the Overseas Association Decision of 27 January 2001.22 This Decision was amended in 2007 to extend its validity to 31 December 2013.23 2. The Overseas Association Decision The Overseas Association Decision does not apply to Bermuda ‘in accordance with the wishes of the Government of Bermuda’, but it does apply to the other 11 British territories that are OCTs.24 Bermuda is therefore an OCT for the purposes of Part Four of the Treaty but not the Overseas Association Decision.25 The Overseas Association Decision is divided into four Parts. Part One contains general provisions of the association, including stating its purpose, objectives and principles in accordance with Part Four of the Treaty and with a focus on the reduction, prevention and eventual eradication of poverty and on sustainable development.26 The association is to be based on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. Discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation is prohibited in the areas of cooperation referred to in the Decision.27 Part One also establishes a consultation procedure to ‘deal with any issue arising’ in relations between the OCTs and the Union. An OCT-EU Forum is to meet annually to bring together OCT authorities, representatives of the Member States 19

Cases C-100 and C-101 Kaefer and Procacci v French State [1990] ECR I-4647 para 13. When adopting these decisions the Council must take account not only of the principles in Part Four of the Treaty but also of the other principles of European Union law: see Case C-390/95 P Antillean Rice Mills v Commission [1999] ECR I-769 para 37. Individual provisions of these decisions may have direct effect if they impose unconditional and sufficiently clear and precise obligations on Member States: Cases C-100 and C-101 Kaefer and Procacci v French State [1990] ECR I-4647 paras 24–28. 21 The formal involvement of the Commission and the European Parliament was introduced by the Treaty of Lisbon, although in practice the Commission had been involved for many years. 22 Decision 2001/822/EC: [2001] OJ L314/1. 23 Decision 2007/249/EC: [2007] OJ L109/33. This Decision and the 2001 Decision were adopted under art 187 of the Treaty establishing the European Community, the predecessor of art 203. 24 See recital (23), and art 1(2) and Annex IA. 25 Nor did any of the previous Overseas Association Decisions apply to Bermuda, in accordance with the wishes of its Government. 26 Art 1. 27 Art 2. 20

The Treaty on the Functioning of the European Union 269 with which they are linked,28 and the Commission. Partnership working parties are established for each OCT, consisting of that OCT, the Member State with which it is linked, and the Commission. The opinions of the Forum and the working parties are, where appropriate, to be the subject of Commission decisions, within the limits of its powers, or of proposals from the Commission to the Council to implement new elements of the association or the amendment of the Decision.29 In practice, there are also regular informal meetings between the Commission, the Member States with which the OCTs are linked, and the OCTs represented by the Brusselsbased ‘OCT Association’. Part Two lists in some detail but in general terms the areas of cooperation: productive sectors, trade development, trade in services, trade-related areas, social sectors, regional cooperation, and social and cultural cooperation.30 Part Three contains the main substantive provisions of the Decision. Title I (Articles 18 to 33) prescribes the rules for development finance cooperation with the OCTs, financed from the European Development Fund. Apart from financial support for development projects, there are provisions for private sector investment support, additional support in the event of fluctuations in export earnings, and support for humanitarian and emergency aid.31 Title II (Articles 34 to 60) of Part Three deals with economic and trade cooperation. The OCTs are granted favourable trading arrangements. With very limited exceptions, all products originating in the OCTs32 must be imported into the Union free of import duties, quotas or measures having equivalent effect.33 The OCTs may retain or introduce such duties or quotas as they consider necessary in respect of products imported from the Union, provided that the resulting trade arrangements do not give rise to any discrimination between Member States and are not less favourable than most-favoured-nation treatment, unless another OCT or a developing country is involved.34 As regards trade in services and rules of establishment, the OCTs enjoy in the Union a liberal regime across service sectors and modes of supply, including commercial establishment. For their part the OCTs must grant most-favoured-nation and non-discriminatory treatment to Member States, but they may, with a view to promoting or supporting local employment, adopt regulations to aid their inhabitants and local activities.35 There are also provisions on current payments and capital movements, competition policies, protection of intellectual property rights, trade and the environment, trade and labour standards, tax matters and vocational training.36

28

Denmark, France, the Netherlands and the United Kingdom. Art 7. 30 Arts 10–17. 31 Arts 26–28 and 30. 32 Annex III to the Decision defines ‘products originating in the OCTs’ in a way that provides favourable rules of origin. 33 Arts 35 and 38. art 38(2) allows prohibitions or restrictions in defined circumstances, and art 42 prescribes a procedure for safeguard measures if serious disturbances occur in a sector of the economy of the Union or a Member State, or their external financial stability is jeopardised, or if difficulties arise that may result in a deterioration of a sector of the Union’s activity or in a region of the Union. 34 Art 40. 35 Art 45. 36 Arts 47, 48–49, 51, 52, 55–57. 29

270 The Territories and the European Union Part Four of the Decision contains its final provisions, including that it shall be applicable until 31 December 2013.37 The Decision contains no provisions for the free movement of workers between the OCTs and the Member States. It remains to be seen whether a future Overseas Association Decision for the period after 2013 deals with this matter. 3. Citizenship of the Union So far this chapter has considered the limited territorial application of the Treaty to the OCTs. As to the application of the Treaty ratione personae, the European Court of Justice has held that persons who possess the nationality of a Member State and who reside or live in a territory which is one of the OCTs may rely on the rights conferred on citizens of the Union in Part Two of the Treaty.38 This flows from Article 20(1) of the Treaty on the Functioning of the European Union, which confers Union citizenship on every person holding the nationality of a Member State, and Article 20(2), which provides that citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties.39 The citizenship rights are summarised in Article 20(2) and set out in detail in Articles 21 to 24 of the Treaty. These include the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.40 British citizens who reside or live in the British overseas territories that are OCTs therefore enjoy the citizenship rights conferred by the Treaty, because they are nationals of the United Kingdom for the purposes of the European Union Treaties. In a Declaration made in 1982, the United Kingdom defined its nationals, for the purposes of the Treaties and acts deriving from the Treaties, as British citizens, British subjects by virtue of Part IV of the British Nationality Act 1981 and who have the right of abode in the United Kingdom, and British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar.41 At the time of signature of the Treaty of Lisbon on 13 December 2007, the United Kingdom made the following Declaration: In respect of the Treaties and the Treaty on the European Atomic Energy Community, and in any of the acts deriving from those Treaties or continued in force by those Treaties, the United Kingdom reiterates the Declaration it made on 31 December 1982 on the

37 Art 63, as amended by the 2007 Decision (see n 23 above). On 25 June 2008 the Commission issued a Green Paper on future relations between the European Union and the OCTs: COM (2008) 383 final; on 6 November 2009 the Commission issued a Communication ‘Elements for a New Partnership between the European Union and the Overseas Countries and Territories’: COM (2009) 623 final. 38 Case C-300/04 Eman and Sevinger [2006] ECR I-8055 para 29. 39 Ibid paras 27–28. 40 Art 21(1). 41 Declaration by the United Kingdom on the meaning of the term ‘nationals’ (Rome, 31 December 1982; UKTS No 67 (1983); [1983] OJ C23/1). This Declaration, made to take account of the commencement of the British Nationality Act 1981 (1981 c 61), replaced a similar Declaration made at the time of accession of the United Kingdom to the European Communities.

The Treaty on the Functioning of the European Union 271 definition of the term ‘nationals’ with the exception that the reference to British Dependent Territories citizens shall be read as meaning British overseas territories citizens.42

The validity of the 1982 Declaration has been upheld by the European Court of Justice, which held that for the determination of who is a United Kingdom national for the purposes of Community law it is necessary to refer to that Declaration.43 The amendment made by the 2007 Declaration merely reflects the change of terminology made by the British Overseas Territories Act 2002.44 But the result of these Declarations is that persons who are solely British overseas territories citizens, other than those who derive that status from a connection with Gibraltar, are not United Kingdom nationals for the purposes of the Treaties and are therefore not citizens of the Union. The vast majority of the British inhabitants of the OCTs are, however, British citizens as well as British overseas territories citizens45 and are therefore citizens of the Union.

B. Gibraltar By contrast with the OCTs, the Treaties apply to Gibraltar subject to specific exceptions. These exceptions derive from Articles 28 to 30 of the Act of Accession of the United Kingdom to the Communities,46 which provide: Article 28 Acts of the institutions of the Community relating to the products in Annex II to the EEC Treaty and the products subject, on importation into the Community, to specific rules as a result of the implementation of the common agricultural policy, as well as the acts on the harmonisation of legislation of the Member States concerning turnover taxes, shall not apply to Gibraltar unless the Council, acting unanimously on a proposal from the Commission, provides otherwise.47 Article 29 The acts listed in Annex I to this Act shall be adapted as specified in that Annex. Article 30 The adaptations to the acts listed in Annex II to this Act made necessary by accession shall be drawn up in conformity with the guidelines set out in that Annex and in accordance with and under the conditions laid down in Article 153.

Among the acts listed in Annex I that were adapted in accordance with Article 29 was Council Regulation (EEC) 1496/6848 on the definition of the customs territory 42 See Declaration 63 annexed to the Final Act of the Intergovernmental Conference: [2007] OJ C306/270. 43 Case C-192/99 Kaur [2001] ECR I-1237. 44 2002 c 8. 45 See ch 11 above. 46 Act concerning the conditions of accession for the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, 1972: UKTS No 16 (1979), Cmnd 5179, 7461; [1972] OJ L73/14. 47 No Council decision providing otherwise has been adopted. 48 [1968] OJ L238/1.

272 The Territories and the European Union of the Community. The Regulation was amended to define the customs territory of the Community so as to include the United Kingdom, the Channel Islands and the Isle of Man but not Gibraltar. Regulations succeeding Regulation 1496/68 have continued to exclude Gibraltar from the customs territory of the Community.49 Annex I also provided for the deletion of Gibraltar from the list of countries in Annex II to Council Regulation (EEC) 1025/7050 establishing common rules for imports from third countries. Annex II, point VI to the Act of Accession states: The problem created by the deletion of the reference to Gibraltar in Annex II is to be solved in such a way as to ensure that Gibraltar is in the same position with regard to the Community’s import liberalisation system as it was before accession.

The result of the operation of these provisions can be summarised as follows: (a) Gibraltar does not form part of the customs territory of the Union, and in consequence the Treaty provisions and secondary legislation relating to the free movement of goods do not apply to Gibraltar; (b) Gibraltar is treated as a third country for the purposes of the common commercial policy of the Union (but subject to the requirement in Annex II, point VI cited above); (c) Gibraltar is excluded from the common agricultural policy of the Union; (d) Gibraltar is excluded from the Union rules on value added tax and other turnover taxes; and (e) Gibraltar makes no contribution to the Union budget. In Commission v United Kingdom,51 the Commission argued that a number of Directives adopted under Articles 100 and 100a of the Treaty establishing the European Community52 approximating the laws of the Member States applied to Gibraltar. Although these Directives were intended to remove barriers to trade in goods between the Member States, they did not provide for the exclusion of Gibraltar from their application, and the Commission argued that the exceptions for Gibraltar deriving from the Act of Accession did not include Community legislation on the approximation of laws. The European Court of Justice held, however, that the Directives did not apply to Gibraltar, stating that the exclusion of Gibraltar from the customs territory of the Community implies that neither the Treaty rules on free movement of goods nor the rules of secondary Community legislation intended, as regards free circulation of goods, to ensure approximation of the laws, regulations and administrative provisions of the Member States pursuant to Articles 94 EC and 95 EC are applicable to it.53

49 Council Regulation (EEC) 2151/84: [1984] OJ L197/1; Council Regulation (EEC) 2913/92: [1992] OJ L302/1. Most recently, Council and European Parliament Regulation (EC) 450/08 laying down the Community Customs Code art 3: [2008] OJ L145/1. 50 Now revoked. Common import rules are governed by Council Regulation 3285/94 [1994] OJ L349/53. 51 Case C-30/01 Commission v United Kingdom [2003] ECR I-9481. 52 Arts 100 and 100a were renumbered arts 94 and 95 by the Treaty of Amsterdam. The equivalent provisions in the Treaty on the Functioning of the European Union are arts 114 and 115. 53 Commission v United Kingdom, n 51 above, para 59 of judgment.

The Treaty on the Functioning of the European Union 273 This important judgment clarified the scope of Gibraltar’s exclusion from the Treaty provisions and secondary legislation on the free movement of goods, about which there had previously been some uncertainty. Apart from the exceptions deriving from the Act of Accession, Gibraltar is within the European Union and subject to Union law. But as regards the area of freedom, security and justice dealt with in Title V of Part Three of the Treaty on the Functioning of the European Union, Gibraltar is covered by the Protocol allowing the United Kingdom and Ireland to opt into measures adopted pursuant to that Title.54 It is therefore only bound by such measures that the United Kingdom has opted into in respect of Gibraltar in accordance with that Protocol. The same applies to the Schengen Protocol.55 Accordingly Gibraltar, like the United Kingdom and Ireland, is outside the Schengen area and is bound by the rules of the Schengen acquis only to the extent that it takes part in them in accordance with that Protocol. Furthermore Gibraltar, like the United Kingdom and Ireland, is entitled to exercise at its frontiers controls on persons seeking to enter Gibraltar for the purpose: (a) of verifying the right to enter Gibraltar of citizens of Member States and their dependants exercising Union law rights, as well as citizens of other States on whom such rights have been conferred by an agreement binding Gibraltar; and (b) of determining whether or not to grant other persons permission to enter Gibraltar.56

The other Member States are entitled to exercise at their frontiers or at any point of entry into their territory such controls on persons seeking to enter their territory from Gibraltar for the same purposes.57 Gibraltar is covered by the Protocol dealing with the United Kingdom’s nonparticipation in the third stage of economic and monetary union.58 It also benefits from the Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom.59 Alone among the British overseas territories, Gibraltar takes part in elections to the European Parliament.60 Arrangements for this were put in place to comply with the judgment of the European Court of Human Rights in Matthews v United Kingdom.61 Gibraltar forms part of a combined electoral region of the United Kingdom and Gibraltar, the South West region.62 In Spain v United Kingdom,63 the European Court of Justice upheld these arrangements as well as the right to vote in

54 Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice: Cm 7310, p 292; [2008] OJ C115/295. 55 Protocol on the Schengen acquis integrated into the framework of the European Union: Cm 7310, p 286; [2008] OJ C115/290. 56 See Protocol on the application of certain aspects of Article 26 of the Treaty on the Functioning of the European Union, art 1: Cm 7310, p 290; [2008] OJ C115/293. 57 Ibid art 3. 58 Protocol on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland: Cm 7310, p 283; [2008] OJ C115/284. 59 Cm 7310, p 310; [2008] OJ C115/313. 60 In Case C-300/04 Eman and Sevinger, the European Court of Justice held that the Member States are not required to hold elections to the European Parliament in the OCTs: see [2006] ECR I-8055 para 47. 61 Matthews v United Kingdom ECHR 1999-I, (1999) 28 EHRR 361. 62 See further European Parliament (Representation) Act 2003 (2003 c 7), European Parliamentary Elections Act 2002 (2002 c 24), and SI 2003/1887, 2004/366, 2004/293, 2009/185 and 2009/186. 63 Case C-145/04 Spain v United Kingdom [2006] ECR I-7917.

274 The Territories and the European Union Gibraltar at European Parliament elections of certain Commonwealth citizens who are not citizens of the European Union. British citizens, and British overseas territories citizens who acquire that citizenship from a connection with Gibraltar, are United Kingdom nationals for the purposes of European Union law.64 Although most Gibraltarians are British citizens as well as British overseas territories citizens,65 those who are only British overseas territories citizens by virtue of a connection with Gibraltar fall within the definition of United Kingdom nationals for these purposes and are the only British overseas territories citizens to do so. As the Member State responsible for Gibraltar’s external relations, the United Kingdom is ultimately responsible for compliance by Gibraltar with European Union law that applies to it. Whilst the United Kingdom has power to legislate for Gibraltar by Act of Parliament or Order in Council, in practice Union law is implemented in Gibraltar by or under Acts of the Gibraltar Legislature. Directly applicable rules of European Union law are incorporated into Gibraltar law by section 3(1) of the (Gibraltar) European Communities Act 1972.66 Measures that are not directly applicable are implemented in Gibraltar by regulations made under section 4 of that Act or by separate legislation.

C. The Sovereign Base Areas The position of the Sovereign Base Areas is regulated by a special Protocol concluded at the time of the accession of the Republic of Cyprus,67 to which all European Union Member States are parties. The Treaties do not apply to the Sovereign Base Areas except to the extent necessary to ensure the implementation of the arrangements set out in this Protocol, and in accordance with the terms of the Protocol.68 The preamble to the Protocol refers to the Treaty concerning the Establishment of the Republic of Cyprus (and associated Exchanges of Notes) of 16 August 1960,69 and confirms that ‘the accession of the Republic of Cyprus to the European Union should not affect the rights and obligations of the parties to the Treaty of Establishment’. The preamble also states that persons resident or working

64 Declaration by the United Kingdom on the meaning of the term ‘nationals’ (Rome, 31 December 1982; UKTS No 67 (1983); [1983] OJ C23/1, as amended by Declaration 63 annexed to the Final Act of the Intergovernmental Conference adopting the Treaty of Lisbon: [2007] OJ C306/270. 65 By virtue of the British Overseas Territories Act 2002 (2002 c 8). See further ch 11 above. 66 Laws of Gibraltar, 1972-18. 67 Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union: UKTS No 32 (2004), Cm 6312; [2003] OJ L236/940. This Protocol is sometimes referred to as Protocol No 3. 68 Treaty on the Functioning of the European Union art 355(5)(b). This replaced art 299(6)(b) of the Treaty establishing the European Community, the language of which had been established by art 1 of the Protocol. 69 UKTS No 4 (1961); Cmnd 1252. The contracting parties are the United Kingdom, Greece and Turkey of the one part, and the Republic of Cyprus of the other part.

The Treaty on the Functioning of the European Union 275 in the Sovereign Base Areas should have, to the extent possible, the same treatment as those resident or working in the Republic of Cyprus. Article 2(1) of the Protocol includes the Sovereign Base Areas within the customs territory of the Union70 and applies to the Areas the European Union customs and common commercial policy measures listed in Part One of the Annex to the Protocol, with the amendments there set out. Article 2(2) applies to the Sovereign Base Areas the Union acts on turnover taxes, excise duties and other forms of indirect taxation listed in Part Two of the Annex, with the amendments there set out, as well as the relevant provisions applying to Cyprus in the Act of Accession. Article 2(3) amends three Union measures to enable the United Kingdom to maintain the reliefs and exemptions from duties and taxes on supplies to its forces and associated personnel which are granted by the Treaty of Establishment. Article 3(a) of the Protocol applies to the Sovereign Base Areas the articles of the Treaty on agriculture and provisions adopted on the basis of those articles,71 and Article 3(b) applies to the Areas measures in the veterinary and phytosanitary field which have as their direct objective the protection of public health.72 In a Declaration published with the Protocol73 the European Commission confirms its understanding that two specific Regulations are included within the provisions referred to in Article 3(a).74 Article 4 of the Protocol assimilates persons resident or employed in the Sovereign Base Areas, who under the Treaty of Establishment are subject to the social security legislation of the Republic of Cyprus, to persons resident or employed in the Republic for the purposes of Council Regulation (EEC) 1408/71.75 Article 5 of the Protocol deals with border controls, reflecting the absence of such controls between the Sovereign Base Areas and the Republic of Cyprus. Article 5(1) provides that the Republic is not required to carry out checks on persons crossing their land and seas boundaries with the Sovereign Base Areas, and that any Union restrictions on the crossing of external borders shall not apply in relation to such persons. Article 5(2) requires the United Kingdom to exercise controls on persons crossing the external borders of the Sovereign Base Areas in accordance with Part Four of the Annex to the Protocol. Part Four of the Annex defines the external borders of the Sovereign Base Areas as ‘their sea boundaries and their airports and

70 The inclusion of the Sovereign Base Areas in the customs territory of the Union is now set out in art 3(2)(b) of Council and European Parliament Regulation (EC) 450/08: [2008] OJ L145/1. 71 Art 3(a) refers to Title II of Part Three of the EC Treaty, on agriculture. The equivalent provisions in the Treaty on the Functioning of the European Union are arts 38–44. 72 Art 3(b) refers to art 152(4)(b) of the EC Treaty as the legal basis for these measures. The equivalent provision in the Treaty on the Functioning of the European Union is art 168(4)(b). 73 [2003] OJ L236/944. 74 Council Regulation (EC) 3448/93 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products: [1993] OJ L318/18; Council Regulation (EC) 1260/1999 laying down general provisions on the Structural Funds: [1999] OJ L161/1, to the extent required by Council Regulation (EC) 1257/1999 on support for rural development from the European Agriculture Guidance and Guarantee Fund (EAGGF): [1999] OJ L160/80, for the purpose of financing rural development measures in the Sovereign Base Areas under the EAGGF Guarantee Section. 75 Council Regulation (EEC) 1408/71 on the application of social security schemes to employed persons, to self employed persons and to members of their families moving within the Community: [1971] OJ L149/2.

276 The Territories and the European Union seaports, but not their land or sea boundaries with the Republic of Cyprus’.76 The United Kingdom must only allow the external borders of the Areas to be crossed at crossing points, and crossing points are defined as ‘any crossing point authorised by the competent authorities of the United Kingdom for the crossing of external borders’.77 Nationals of third countries must only be permitted to cross the external borders of the Areas if they possess a valid travel document and, if required, a valid visa for the Republic of Cyprus,78 if they are engaged in defence-related activity or are family members of persons engaged in such activity, and if they are not a threat to national security.79 The United Kingdom may only derogate from these conditions on humanitarian grounds, on grounds of national interest or in order to comply with its international obligations.80 Part Four of the Annex also sets out rules concerning the nature of external border checks and surveillance, cooperation between the authorities of the United Kingdom and the Republic of Cyprus, and the treatment of asylum seekers and illegal migrants.81 Article 6 of the Protocol enables the Council, acting unanimously on a proposal from the Commission, to amend Articles 2 to 5 and the Annex, or apply other provisions of the Treaty and related secondary legislation to the Sovereign Base Areas on such terms and subject to such conditions as it may specify, ‘in order to ensure the effective implementation of the objectives of this Protocol’. The Commission must consult the United Kingdom and the Republic of Cyprus before bringing forward a proposal under this Article. Article 7 of the Protocol prescribes the respective responsibilities of the United Kingdom and the Republic of Cyprus for the implementation of the Protocol.82 It also enables the United Kingdom to delegate to the competent authorities of the Republic the performance of any functions imposed on a Member State by or under any provision referred to in Articles 2 to 5, in accordance with arrangements made under the Treaty of Establishment.83 Finally, it requires cooperation between the United Kingdom and the Republic to ensure the effective implementation of the Protocol in the Sovereign Base Areas, and, where appropriate, to conclude further delegation arrangements.84 Article 8 of the Protocol stresses the particularity of the arrangements it prescribes, and states that they shall not apply to any other territory of the Union, nor serve as a precedent, in whole or in part, for any other special arrangements for another European territory provided for in Article 299 of the EC Treaty.85 Article 9 requires the Commission to report to the European Parliament and the Council every five years on the implementation of the Protocol.

76

Para 1(a). See also Protocol on Cyprus art 2(2): p 277 and n 86 below. Paras 2 and 1(b). 78 Members of a force, civilian component and dependants, as defined in Annex C to the Treaty of Establishment, must be treated as not requiring a visa for the Republic of Cyprus: para 3(c). 79 Para 3(a). 80 Para 3(b). 81 Paras 4–7. 82 Art 7(1) and (2). 83 Art 7(3). 84 Art 7(4). 85 The equivalent provision in the Treaty on the Functioning of the European Union is art 355. 77

Common Foreign and Security Policy 277 Another Protocol concluded at the time of the accession of Cyprus to the European Union is relevant to the position of the Sovereign Base Areas. This is the Protocol on Cyprus,86 Article 1 of which suspends the application of the European Union acquis in those areas of the Republic of Cyprus in which the Government of the Republic does not exercise effective control. This refers to the areas under Turkish Cypriot control. Article 2(2) of this Protocol provides that the boundary between the Eastern Sovereign Base Area and those areas referred to in Article 1 shall be treated as part of the external borders of the Sovereign Base Areas, for the purposes of Part Four of the Annex to the Protocol on the Sovereign Base Areas, for the duration of the suspension of the application of the acquis according to Article 1. Furthermore, pursuant to this Protocol the Council adopted a Regulation (known as ‘the Green Line Regulation’) that establishes rules regarding the crossing of persons and goods between the Turkish Cypriot controlled areas and both the areas of the Republic of Cyprus under the effective control of the Government of the Republic and the Eastern Sovereign Base Area.87 The United Kingdom is responsible for compliance in the Sovereign Base Areas with those parts of European Union law that apply there, and has power to legislate for the Sovereign Base Areas by Act of Parliament or Order in Council. In practice, however, Union law is implemented in the Sovereign Base Areas by or under a local Ordinance. Directly applicable rules of European Union law are incorporated into the law of the Sovereign Base Areas by section 3 of the European Community (Protocol Measures) Ordinance 2004.88 Measures that are not directly applicable are implemented in the Sovereign Base Areas by regulations made under section 4 of that Ordinance, or by or under separate legislation.89 The delegation of functions to officers of the Republic of Cyprus, envisaged in Article 7 of Protocol No 3, is dealt with in the Delegation of Functions to the Republic Ordinance 2007.90 COMMON FOREIGN AND SECURITY POLICY

It might be deduced from the foregoing that only Gibraltar would be within the scope of the common foreign and security policy (CFSP) measures adopted by the European Union. These measures are now adopted under Chapter 2 of Title V of the Treaty on European Union.91 However, the United Kingdom Government has always regarded the Treaty provisions on the CFSP as a framework which, in itself, is not susceptible to territorial application. CFSP action, and measures adopted by the Union to implement the CFSP, have been regarded as forming part of a single United Kingdom foreign policy for all territories under United Kingdom sovereignty.

86

See [2003] OJ L236/955. This Protocol is sometimes referred to as Protocol No 10. See Council Regulation (EC) 866/2004: [2004] OJ L161/128, corrected by [2004] OJ L206/51, as amended by Council Regulation (EC) 587/2008 [2008] OJ L163/1. 88 Laws of the Sovereign Base Areas, Ordinance 11 of 2004. 89 See in particular European Community (Specified Measures) Ordinance 2005 (Laws of the Sovereign Base Areas, Ordinance 24 of 2005). 90 Laws of the Sovereign Base Areas, Ordinance 17 of 2007. 91 Before the entry into force of the Treaty of Lisbon, they were adopted on the basis of Title V of the Treaty on European Union. 87

278 The Territories and the European Union Accordingly, CFSP measures are treated as applicable to all of the overseas territories, unless the contrary is expressly stated. In consequence, CFSP measures that require implementation in national law, for example those imposing sanctions regimes, have been extended to all overseas territories except Bermuda and Gibraltar by Order in Council.92 The implementation of such measures in Bermuda is effected under local legislation.93 The same applies to Gibraltar,94 to which legislation adopted by the Council, following such CFSP measures, under Article 215 of the Treaty on the Functioning of the European Union applies (in the absence of any applicable derogation) as it does to the United Kingdom. THE EURATOM TREATY

The Treaty establishing the European Atomic Energy Community95 (the Euratom Treaty) remains separate from the Treaty on European Union and the Treaty on the Functioning of the European Union, although it was amended by the Treaty of Lisbon.96 By virtue of Article 198, the Euratom Treaty applies to all British overseas territories except the Sovereign Base Areas.

92 See eg Uzbekistan (Restrictive Measures) (Overseas Territories) Order 2006 (SI 2006/310); Belarus (Restrictive Measures) (Overseas Territories) Order 2006 (SI 2006/1909). 93 International Sanctions Act 2003 (Laws of Bermuda, 2003: 6), and see eg International Sanctions (Burma) (Restrictive Measures) (Overseas Territories) Regulations 2006 (Laws of Bermuda BR 80/2006). 94 Export Control Act 2005 (Laws of Gibraltar, 2005-33), and see eg Export Control (Sanctions etc) Order 2006 (Laws of Gibraltar, Subsidiary 2006/028). 95 UKTS No 17 (1979); Cmnd 7462. 96 See Protocol No 2 amending the Treaty establishing the European Atomic Energy Community: [2007] OJ C309/199.

16 Termination of British Sovereignty

A

T THE TIME of writing there is no prospect of the termination of United Kingdom sovereignty over any of the 14 British overseas territories. But the continuation of that position cannot be taken for granted. Independence is a viable option for several territories, should their peoples so wish in exercise of their right of self-determination. Another option is the transfer of sovereignty to another State, or shared sovereignty with another State, again subject to the right of self-determination of the peoples concerned. In recent years there has been occasional, though infrequent, consideration of such options. After the Argentine invasion of the Falkland Islands in April 1982, the United States Government tried to mediate a solution to the sovereignty dispute with ideas that included a United Nations administration, joint British and Argentine sovereignty, and a transfer of sovereignty to Argentina with a lengthy ‘leaseback’ to the United Kingdom. None of these ideas came to fruition, and the Argentine military occupation was ended by force of arms in June 1982. In 2002, a form of joint sovereignty over Gibraltar was considered by the British and Spanish Governments, but that too came to nothing when the people of Gibraltar overwhelmingly rejected the plan in a referendum organised by the Gibraltar Government.1 The people of Gibraltar had earlier, in 1967, decisively rejected in a referendum any transfer of sovereignty to Spain.2 As for independence, a referendum was held in Bermuda on the question in 1995. The independence option was rejected. The governing Progressive Labour Party in Bermuda continues to advocate independence but has not put the question to a public vote. In Anguilla, as part of its struggle to separate from the associated State of St Christopher, Nevis and Anguilla, the people of Anguilla voted for independence in a locally organised referendum in February 1969. This may have contributed to the eventual formal separation of Anguilla from the associated State in 1980, after a period of de facto separation and direct administration by the United Kingdom. There has been little pressure in Anguilla for independence from the United Kingdom, and no popular vote on the issue. In the Turks and Caicos Islands there was a period of interest in independence in the late 1970s, but the political party advocating independence was soundly defeated in the ensuing general election in 1980 and the issue has not been put before the voters since then. In Montserrat leading politicians have from time to time advocated independence, but the issue has never been put to a popular vote, either at a general election or by referendum.

1 2

17,900 voted no; 187 voted yes. 12,138 voters favoured continued British sovereignty, while 44 voted against.

280 Termination of British Sovereignty Nor has the question of independence been strongly advocated or publicly tested in the Cayman Islands, St Helena or the Virgin Islands.3 This chapter considers the law and practice, in the light of numerous precedents, relating to the termination of United Kingdom sovereignty over an overseas territory. INDEPENDENCE

The consistent practice in the post-Second World War decolonisation process was to ensure that independence had the support of the people of a territory either by referendum or by means of a general election at which independence formed part of the winning party’s mandate. In this way the principle of self-determination was regarded as satisfied. In post-war practice, once a decision to move to independence had been thus taken, a target date for independence was agreed between the Government of the United Kingdom and the Government of the territory concerned. In the lead-up to that date all the necessary preparations had to be made. This frequently involved a final, pre-independence stage of constitutional advancement, sometimes called ‘full internal self-government’. While the United Kingdom’s ultimate legislative powers, as well as some controls on local legislative power, remained, the reserved executive powers of the Governor (and, indirectly, of the United Kingdom) were reduced to the minimum of external affairs, defence and internal security. This was regarded as politically and legally acceptable by the United Kingdom for a relatively short interim period. The key legal steps in the granting of independence consisted of the passage of the necessary United Kingdom legislation and the negotiation and formal making of the independence constitution of the territory concerned. But there were other consequences of a move to independence, especially in the external field.

A. Independence Legislation In the great majority of cases the necessary United Kingdom legislation consisted of an Act of Parliament.4 In the case of the independence of the six associated states, the legislation granting independence consisted of an Order in Council made in exercise of powers conferred by the West Indies Act 1967, read in conjunction with certain provisions of that Act.5 3 For a summary of the interest in independence in Bermuda, Montserrat and the Turks and Caicos Islands, and the contrasting lack of interest in Anguilla, the Cayman Islands, St Helena and the Virgin Islands, see R Aldrich and J Connell, The Last Colonies (Cambridge, Cambridge University Press, 1998) 125–31, 138–40 and 141–43. 4 Starting with the Statute of Westminster 1931 (1931 c 4), which formally confirmed the independence of the ‘Dominions’ of Australia, Canada, New Zealand, South Africa, the Irish Free State and Newfoundland. The latest independence Act was the Belize Act 1981 (1981 c 52). 5 1967 c 4. s 10(2) provided for termination of the status of association by Order in Council, s 11 provided for the effects of termination by divesting the United Kingdom Government of responsibility, and the United Kingdom Parliament of power, in respect of the associated State, and ss 13 to 15

Independence 281 The key legislative provisions to grant independence had the effect of removing the executive and legislative marks of dependence on the United Kingdom. They followed a standard form. First, the responsibility of the United Kingdom Government for the government of the territory concerned was terminated. The standard language was: ‘On and after Independence Day Her Majesty’s Government in the United Kingdom shall have no responsibility for the government of’ the territory.6 The effect of this was to remove both executive responsibility and any power of the United Kingdom Government to advise the sovereign on legislative or executive action in the territory concerned. Secondly, the power of the United Kingdom Parliament to legislate for the territory concerned was removed. This surrender of Parliament’s power clearly required an Act of Parliament. The standard language was: ‘No Act of the Parliament of the United Kingdom passed on or after Independence Day shall extend, or be deemed to extend, to [the territory] as part of its law’.7 Thirdly, as regards territories which on independence retained the British sovereign as Head of State (and therefore remained within Her Majesty’s dominions), the inhibitions on the legislative power of the territory’s legislature were removed.8 Clearly, the grant of independence must involve the grant of unlimited power to the territory’s legislature. These provisions involved the disapplication to the territory of the Colonial Laws Validity Act 1865,9 the removal of any rule prohibiting repugnancy to the law of England, and the removal of any inhibition on the enactment of laws having extraterritorial operation. Schedule 1 to the Belize Act 1981 sets out the standard language on these matters: 1. The Colonial Laws Validity Act 1865 shall not apply to any law made on or after Independence Day by the legislature of Belize. 2. No law and no provision of any law made on or after Independence Day by that legislature shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any Act of the Parliament of the United Kingdom, including this Act, or to any order, rule or regulation made under any such Act, and accordingly the powers of that legislature shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of Belize. 3. The legislature of Belize shall have full power to make laws having extraterritorial operation.10

The disapplication of the 1865 Act was necessary because that Act applies to ‘all of Her Majesty’s Possessions abroad’ in which there is a legislature separate from the United Kingdom Parliament and Her Majesty in Council, with the exception only

enabled various consequential provisions to be made by Order in Council. s 17(2) required an Order under s 10(2) terminating the status of association to be approved in draft by resolution of each House of Parliament. 6 Eg Belize Act 1981 s 1(1). This language was not included in the Statute of Westminster 1931 because by that time the ‘Dominions’ had full executive responsibility. 7 Eg Belize Act 1981 s 1(2). This language is an abbreviated version of the Statute of Westminster 1931 s 4. 8 These inhibitions are described in ch 4 above. 9 1865 c 63. 10 These provisions reflect the Statute of Westminster 1931 ss 2 and 3.

282 Termination of British Sovereignty of the Channel Islands, the Isle of Man and certain Indian territories.11 A territory that remained within Her Majesty’s dominions on independence remained one of ‘Her Majesty’s Possessions abroad’. To disapply the Act clearly required an Act of Parliament. The disapplication of any rule prohibiting repugnancy to the law of England was a precaution against the common law rule to that effect before the 1865 Act (to the extent that it existed) being held to revive upon the disapplication of the 1865 Act. The provision removing any inhibition on legislation having extraterritorial operation was arguably unnecessary, since its effect could be implied by the grant of independence itself. It was probably included as a sensible precaution.12 These provisions removing inhibitions on legislative power were not included in the independence Acts of territories which, on independence, did not have as their Head of State the British sovereign, either because they had their own monarchs or because they became republics.13 Such countries were not, on independence, among ‘Her Majesty’s Possessions abroad’ and the Colonial Laws Validity Act 1865 could therefore not apply to them. Evidently no precautionary provision regarding extraterritorial legislation was considered necessary. The other provisions of independence Acts dealt with the consequences of independence in the law of the United Kingdom. The most important of these related to British nationality. Part of the independence settlement would be the definition of who would become nationals of the new State, and this definition could be included in the independence constitution or in ordinary legislation of the new State. The interest of the United Kingdom was to ensure that all those with a proper connection with the territory becoming independent should obtain the nationality of the new State, and that no-one would be left stateless. The independence Act provided as a general rule that anyone who at independence became a national of the new State ceased to have British nationality. But it went on to prescribe those categories of people who, by virtue of defined connections with the United Kingdom or a remaining overseas territory, retained British nationality even if they became nationals of the new State.14 Provisions were also sometimes included to avoid statelessness.15 There is no automaticity in these provisions. The determination of who loses and who retains British nationality on the independence of a territory is a matter of policy for the United Kingdom Government and, ultimately, for Parliament. Other provisions made consequential changes to United Kingdom legislation to reflect the change of status of the territory concerned, for example to make nationals of the new State Commonwealth citizens in United Kingdom law and to include the new State in the definitions of ‘Commonwealth force’ and ‘Commonwealth country’ in the Acts regulating the armed forces.16 It is clear from this brief survey that the approval of the United Kingdom Parliament would be legally required if any of the remaining British overseas territories wished to move to independence. For any of those territories except Anguilla, an Act of 11

See definitions of ‘Colony’, ‘Legislature’ and ‘Colonial Legislature’ in s 1. That is the conclusion in K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 262. 13 See, eg Kiribati Act 1979 (1979 c 27); Kiribati became a republic on independence. 14 Eg Belize Act 1981 ss 4 and 5. 15 Eg Solomon Islands Act 1978 (1978 c 15) ss 2(4) and 4(2). 16 Eg Belize Act 1981 ss 3(4) and 4(1), and sch 2. 12

Independence 283 Parliament would be necessary to confer independence, because Parliament has so far made no provision for that eventuality. By contrast, Parliament has already made provision for Anguilla to be granted independence by Order in Council. Section 1(3) of the Anguilla Act 198017 includes the following: (3) Her Majesty may by Order in Council make provision— (a) for and in connection with the attainment by Anguilla of fully responsible status; (b) for and in connection with the establishment of Anguilla as an independent republic; or (c) after such provision as is mentioned in paragraph (a) has been made, in connection with Anguilla becoming a republic; and an Order so made may make such modifications of any enactment of the Parliament of the United Kingdom or of any instrument having effect by virtue of such an enactment, and such transitional or other incidental and supplementary provisions, as appear to Her Majesty to be necessary or expedient.

By virtue of this power, all the provisions traditionally included in an independence Act may be included in an Order in Council conferring independence on Anguilla, whether as a monarchy under Her Majesty or as a republic. Section 1(4) of the Act requires any such Order to be approved in draft by resolution of each House of Parliament. So a debate and approval would be required in each House.

B. Independence Constitution The constitution a territory will have on achieving independence has normally been set out in an Order in Council. Such an Order has been made using the powers available while the territory was dependent18 or on the basis of a specific power provided in the independence Act.19 While the Order (or parts of it) might be expressed to come into force earlier than the date of independence to allow transitional measures to be taken, the constitution itself would not take effect until independence day. The terms of an independence constitution need to be agreed between the United Kingdom Government and the territory concerned. The practice has been to agree the broad lines of the constitution at a constitutional conference involving delegates of the territory and the United Kingdom, followed by detailed drafting by legal advisers. A key point in the process was the determination of whether the territory would at independence be a monarchy, with either Her Majesty or a different monarch as Head of State, or become a republic (and if so what powers the head of the republic would have). The choice was for the territory concerned.

17

1980 c 67. Eg Bahamas Independence Order 1973 (SI 1973/1080), made under the Bahama Islands (Constitution) Act 1963 (1963 c 56) s 1; Solomon Islands Independence Order 1978 (SI 1978/783), made under the Foreign Jurisdiction Act 1890 (1890 c 37). 19 Eg Kiribati Act 1979 s 2, which enabled Her Majesty by Order in Council to make provision for a constitution of Kiribati as a republic on Independence Day; Belize Act 1981 s 2, which enabled Her Majesty by Order in Council made before Independence Day to provide a constitution for Belize to come into effect on that day, including provision for the manner in which the legislature of Belize may alter that Order or the constitution. 18

284 Termination of British Sovereignty An independence constitution did not of course contain any of the executive or legislative controls which are common in pre-independence constitutions. As for judicial control, it was a matter for the territory concerned to choose whether to continue to have as its final court of appeal the Judicial Committee of the Privy Council.20 An important issue for an independence constitution is the procedure for its future amendment. As the territory will become sovereign, there will be no power to amend the constitution by a further Order in Council. The independence constitution must therefore include provision for its own amendment. This may involve procedures of varying complexity, with certain provisions being more firmly entrenched and difficult to change than others. Among the many transitional provisions contained in the Order in Council by which the independence constitution was granted, a crucial one maintained in force as part of the law of the new State all the laws that had been in force there immediately before independence (with the exception of those revoked by the Order, such as the previous constitution). This saving was expressed to be without prejudice to the power of any authority under the new constitution to amend or revoke any such existing law.21 In this way there were saved not only the local laws made under (or saved by) the old constitution, but also any laws made by the United Kingdom Parliament or by Order in Council which formed part of the law of the territory immediately before independence. After independence the legislature of the new State had full power to amend or revoke any such laws so saved. Where a territory became a republic on independence, the independence Order in Council transferred to the republic the property and assets, and the rights, liabilities and obligations under the law of the territory, of the Crown in right of the Government of the territory; this was not necessary where the territory continued under the Crown after independence.22

C. Other Consequences of Independence, especially in the External Field A variety of other consequences were considered in the run-up to independence. Some of these related to the continuing relationship with the United Kingdom, and in many cases the assistance the United Kingdom would provide to the new State, which might include financial or technical assistance, defence arrangements or help with consular representation in third countries. Independence involved the territory concerned becoming a sovereign State, and thus an international legal person in its own right. It therefore acquired full treatymaking capacity, the power of legation and responsibility for its own actions under international law. 20 Where a territory became a republic on independence, provision for appeals to the Privy Council was made in the independence Act: eg Kiribati Act 1979 s 6. This was unnecessary if the territory retained Her Majesty as sovereign after independence. 21 Eg Solomon Islands Independence Order 1978 s 5. 22 Contrast eg Kiribati Independence Order 1979 (SI 1979/719), ss 9 and 10, with Solomon Islands Independence Order 1978, which includes no such provisions. Kiribati became a republic on independence, whereas Solomon Islands retained Her Majesty as Head of State.

Transfer of Territory 285 Membership of the Commonwealth did not follow automatically on independence. The membership of the new State was a matter for the existing members of the Commonwealth. The custom was for the United Kingdom to support and try to facilitate membership for the new State, if it wished to join. In fact all who wished to join became members. Membership of other international organisations was also an important matter, not least the United Nations. Most territories achieving independence applied for United Nations membership and were admitted. In practice this admission amounted to recognition of the new member as a State by the international community, membership of the United Nations being open only to States under Article 4 of the United Nations Charter.23 As regards succession to treaties, the practice varied, and the matter was made no easier by this being a notoriously uncertain and controversial area of international law. With several territories approaching independence, the United Kingdom exchanged letters passing to the new State the rights and obligations of the United Kingdom under pre-existing treaties in so far as those treaties ‘may be held to have application’ to the new State. While such exchanges of letters could not bind third States, they served to put those States on notice of the intentions of the United Kingdom and the new State. They reflected too the position that, after the independence of the new State, the United Kingdom would no longer be internationally responsible for them. However, some States (starting with Tanganyika) did not conclude such an exchange of letters, and instead notified the Secretary-General of the United Nations that they would review treaties applicable to them before independence with a view to taking a position in relation to them, and that in the meantime those treaties would continue to apply on a basis of reciprocity. The United Kingdom, for its part, unilaterally disclaimed for the future their rights and obligations under treaties applicable to the new State concerned.24 All of these matters could be expected to arise if any of the remaining British overseas territories were to move to independence. Each case would need to be treated individually, taking into account the particular wishes of the territory concerned. TRANSFER OF TERRITORY

The key legal and constitutional question surrounding a transfer of territory under British sovereignty to another State is whether the approval of Parliament is required. If sovereignty over any of the remaining British overseas territories were to be transferred to another State, would an Act of Parliament first be necessary? Would it make a difference if such a transfer were to another State within Her Majesty’s dominions, or to a State of which Her Majesty is not the monarch? It is considered that, in modern circumstances, an Act of Parliament would be required in either case.

23

UKTS No 67 (1946); Cmd 7015. The practice on this matter is described in detail by Roberts-Wray in Commonwealth and Colonial Law, n 12 above, 267–79. 24

286 Termination of British Sovereignty A. Transfer to Another State within Her Majesty’s Dominions Writing in 1966, Roberts-Wray states: Subject to any indication to the contrary in particular Acts of Parliament, transfer by the United Kingdom to some other Commonwealth country which is within Her Majesty’s dominions can be carried out by virtue of the Royal Prerogative. If there is a prerogative power to transfer title to parts of Her Majesty’s dominions to foreign states, a fortiori there must be a like power to transfer control of part of Her Majesty’s dominions from one of Her Governments to another. It is a constitutional convention that cession to a foreign state should be submitted to Parliament for approval, but there is no apparent reason why the convention should extend to a transfer to some part of Her Majesty’s dominions unless there are citizenship difficulties, and they are unlikely.25

Roberts-Wray follows that statement with a survey of precedents involving transfers of territory to Australia and New Zealand.26 Of the transfers to Australia, those of Norfolk Island, Cocos (Keeling) Islands and Christmas Island were carried out (on the British side) pursuant to an Act of Parliament,27 whereas those of Ashmore and Cartier Islands, the Australian Antarctic Territory and Heard Island and McDonald Islands were completed without a United Kingdom Act of Parliament.28 The three transfers to New Zealand, involving the Cook Islands, the Tokelau (or Union) Islands and the Ross Dependency (in Antarctica) involved no United Kingdom Act of Parliament specific to each transfer and were all carried out by Order in Council.29 The first two Orders were made under the Colonial Boundaries Act 1895,30 while the Order relating to the Ross Dependency was made under the British Settlements Act 188731 and the Royal prerogative. While these precedents show that some transfers were carried out without specific parliamentary approval in the United Kingdom, they are now of some antiquity. In modern conditions it is difficult to imagine that Parliament would tolerate a transfer of sovereignty, even to another part of Her Majesty’s dominions, without having given its express approval to the transfer. Accordingly it would be a brave British Government that attempted to do so. But there are other reasons why an Act of Parliament would be necessary. In the passage quoted above Roberts-Wray thought that ‘citizenship difficulties’ would be unlikely. That may be so if, on the transfer of any British overseas territory to another State within Her Majesty’s dominions, the policy were that no-one whose British nationality derived from a connection with that territory were to lose their British nationality. There would be no objection in principle to the people concerned 25

Commonwealth and Colonial Law, 131. Ibid 132–37. 27 Australian Waste Lands Act 1855 (1855 c 56), Cocos Islands Act 1955 (1955 c 5), Christmas Island Act 1958 (1958 c 25). 28 Transfer of the former two was effected by Order in Council (SRO & SI Rev II, p 1033: Ashmore and Cartier Islands; SRO & SI Rev II, p 1034: Australian Antarctic Territory), while the latter was effected by exchange of letters between the United Kingdom and Australian Governments (Australian Treaty Series 1951 No 3). 29 SRO 1901 No 531, SRO & SI Rev XVI, p 862 (Cook Islands); the Union Islands Orders in Council Nos. 1 and 2, SRO 1925, pp 511 and 1768; SRO 1923, p 712 (Ross Dependency). 30 1895 c 34. 31 1887 c 54. 26

Transfer of Territory 287 remaining British nationals while also acquiring the nationality of the transferee State, provided that was acceptable to both States. But if the policy were to take away the British nationality of any such people, primary legislation would be required to achieve that, as occurred in the series of independence Acts discussed above. Moreover, the 14 remaining British overseas territories are listed in Schedule 6 to the British Nationality Act 1981,32 and these are the British overseas territories for the purposes of that Act. By virtue of section 1(3) of the British Overseas Territories Act 2002,33 Schedule 1 to the Interpretation Act 197834 includes the following definition: ‘British overseas territory’ has the same meaning as in the British Nationality Act 1981.

The transfer of a British overseas territory to any other State would require the amendment of Schedule 6 to the British Nationality Act 1981 to remove that territory from the list. Section 50(13) of the 1981 Act allows Schedule 6 to be amended by Order in Council: [I]n any of the following circumstances, namely— (a) where the name of any territory mentioned in it is altered; or (b) where any territory mentioned in it is divided into two or more territories.

Plainly it would be beyond the powers provided by section 50(13) to amend Schedule 6 to remove a territory in the different circumstance of a transfer of that territory to another State. To do that an Act of Parliament would be required.

B. Transfer to a State outside Her Majesty’s Dominions The same need for an Act of Parliament, to deal with nationality consequences and to amend Schedule 6 to the British Nationality Act 1981, would arise if one of the remaining British overseas territories were to be transferred to a State outside Her Majesty’s dominions. In this case Roberts-Wray describes as ‘the strict legal position’ the Royal prerogative power to acquire territory and, in logic, a like power to dispose of what has been acquired.35 But he continues: It is, however, the present general practice in the United Kingdom for Parliament to be consulted before territory is ceded; a practice that is so well established that it may be regarded as having become a constitutional convention. It would probably suffice for Parliament to be consulted and given an opportunity to debate, but modern practice is to introduce a Bill.36

32

1981 c 61. 2002 c 8. 34 1978 c 30. 35 Supported by Privy Council authority in Damodhar Gordhan v Deoram Kanji (1875) 1 App Cas 332. 36 Roberts-Wray, Commonwealth and Colonial Law, n 12 above, 118. 33

288 Termination of British Sovereignty Roberts-Wray was writing in 1966, and if it was ‘modern practice’ to proceed by Act of Parliament at that time, it is inconceivable that any transfer would be effected without an Act of Parliament more than 40 years later. Roberts-Wray discusses a lengthy list of precedents, in which the procedure followed was inconsistent.37 The most recent precedent, which occurred since he was writing, is the transfer of Hong Kong to China. In that case the surrender of sovereignty was the subject of the Hong Kong Act 1985.38 Section 1(1) provides: As from 1st July 1997 Her Majesty shall no longer have sovereignty or jurisdiction over any part of Hong Kong.

The Schedule to the Act deals with consequential matters, including nationality and the adaptation of enactments forming part of the law of Hong Kong or part of the law of the United Kingdom or of any British possession other than Hong Kong. It should also be noted that both the Gibraltar Constitution Order 1969 and the Gibraltar Constitution Order 200639 (which revoked and replaced the 1969 Order) include the following preambular language: Whereas Gibraltar is part of Her Majesty’s dominions and Her Majesty’s Government have given assurances to the people of Gibraltar that Gibraltar will remain part of Her Majesty’s dominions unless and until an Act of Parliament otherwise provides, and furthermore that Her Majesty’s Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes.

The first part of this statement unambiguously confirms the convention that an Act of Parliament must approve any cession to a State outside Her Majesty’s dominions. It can reasonably be concluded that assurances on this matter given to the people of Gibraltar hold good for the people of any other British overseas territory.

C. Transfer of Only Part of a Territory Would it make any difference if sovereignty over only a part or parts of a remaining British overseas territory were transferred to another State? There is no reason to believe so if an inhabited part or parts were transferred. Issues of nationality might in that case just as well arise, although Schedule 6 to the British Nationality Act 1981 would not require amendment. It is perhaps arguable that Parliament need not be concerned with the transfer of an uninhabited island forming part of an overseas territory to another State. But it would be a bold British Government that made that assumption. After all, the principle of the matter is the same: the cession of a piece of territory under United Kingdom sovereignty to another State. It is difficult to believe that in the modern era Parliament would tolerate such a cession, however small, without its express approval being required.

37 38 39

Ibid 119–26. 1985 c 15. SI 2006, III, p 11503.

Shared Sovereignty 289 SHARED SOVEREIGNTY

The same principle applies to any arrangement for sharing sovereignty over any of the remaining overseas territories. Exclusive British sovereignty over the territory would be surrendered in favour of sovereignty shared with another State. Although possible arrangements for shared sovereignty over the Falkland Islands and Gibraltar (mentioned at the beginning of this chapter) never got past the discussion stage, it is inconceivable that either would have been implemented without the prior approval of Parliament. Moreover, it is probable that an Act of Parliament would be required to make provision for the government of the territory, as far as the United Kingdom was concerned.

Annex ANGUILLA

A

NGUILLA, WHICH IS in the eastern Caribbean Sea, is the most northerly of the Leeward Islands, lying about 112 kilometres north of St Kitts and 6 kilometres from the island comprising the Dutch and French territories of Sint Maarten and Saint-Martin. Anguilla derives its name from the Spanish for ‘eel’ because of its shape, but was originally called Malliouhana by the Arawak Indians, meaning ‘arrowshape’. It is 26 kilometres long and 5 kilometres at its widest and covers a total area of 91 square kilometres. The capital is The Valley. The population is 14,436 (July 2009 estimate).

History Anguilla was discovered and settled by English settlers from St Kitts in 1650 and has been in English, then British, possession ever since. The first settlement was without official encouragement1 and for many years there was no local government of any type. In 1667 the inhabitants elected local settler, Abraham Howell, as their first Deputy Governor. It appears that the imperial Government paid very little attention to Anguilla for its first 175 years, and the locals elected their own Deputy Governor from 1667 until 1825 when the island was absorbed into St Kitts. Anguilla was described by various officials in less than flattering terms: ‘’Tis fit for little but goats’,2 ‘the men of Anguilla are perfect outlaws’,3 and ‘They live like so many bandits, in open defiance of the laws of God and men’.4 During this period, while there was an unofficial executive council headed by the Deputy Governor, no assembly was ever established in Anguilla to pass laws as had been done in other colonies in the Leeward Islands, and the laws of the other islands did not apply to Anguilla. In the eighteenth century a Council of Anguilla, which acted as legislature, executive and judiciary, was established but abolished in 1825 when it was agreed that laws should be made for Anguilla by the Assembly of St Kitts. Anguilla was given the right to send a representative to that Assembly and St Kitts became known as St Christopher and Anguilla. The Anguilla representative had no authority in 1 Report of the Anguilla Constitutional and Electoral Reform Commission 2006 p 1, referring to Robert Southey, Chronological History of the West Indies (London, Longman, Rees, Orme, Brown, and Green, 1827; facsimile reprint London, Cass, 1968) vol 1 p 328. Much of the history of Anguilla in this Annex is drawn from this Report. 2 Governor William Stapleton in 1683. 3 Governor Christopher Codrington, Governor in Chief of the Leeward Islands, in 1701. 4 Governor William Matthew in 1734.

Anguilla 291 relation to St Kitts5 but had to be present in the Assembly before any law could be passed there for Anguilla. It appears that no Governor in Chief (of the Leeward Islands) visited Anguilla until 1724 and then not again until around 1776. The first judge came to Anguilla in 1825 from St Kitts, after which a judge came on circuit to conduct criminal trials. At the same time, Anguilla stopped appointing its own Deputy Governor and officials were appointed from St Kitts. Relations between St Kitts and Anguilla were strained from the start, and as early as 1827 the people of Anguilla were complaining about their treatment at the hands of the St Kitts Assembly. Anguillians were granted local government by the establishment of the Vestry, consisting of eleven elected members and two ex officio members. In 1871 the Anguillian people petitioned the Secretary of State for the Colonies against entering the Leeward Islands Federation with St Kitts, but this happened anyway. They next petitioned the Colonial Office in 1872 about the damage that being administered by the St Kitts Assembly was doing to them. However, matters got worse for Anguilla when in 1882 Nevis was absorbed into St Kitts with the colony becoming known as St Christopher and Nevis without mention of Anguilla (a situation which existed until 1951), and local government in Anguilla was ended with the abolition of the Vestry. In 1956 the Leeward Islands Federation was abolished and the presidencies within it reverted to the status of colonies, with Anguilla being included within the colony of St Christopher, Nevis and Anguilla. In 1957 that colony became part of the West Indies Federation.6 In 1958 the Anguillians petitioned the Governor of the Leeward Islands asking him to try to persuade London to have them separated from St Kitts and constituted as a grant-aided colony. This plea was fruitless and Anguilla remained in the West Indies Federation along with St Kitts and Nevis until that Federation was dissolved in 1962, at which point Anguilla again became part of the colony of St Kitts, Nevis and Anguilla. Despite more Anguillian objections, St Kitts, Nevis and Anguilla became an Associated State in February 1967.7 Anguilla’s refusal to go into the Associated State and dissatisfaction with the constitutional arrangements whereby Anguilla had minimal representation in the St Kitts, Nevis and Anguilla House of Assembly, which meant that they could be controlled by St Kitts, led to what is known as ‘the Anguilla Revolution’.8 In March 1967 Government House was burned down. On 29 May 1967 St Kitts policemen on Anguilla were expelled and on 31 May that year the Anguillians formed a PeaceKeeping Committee to administer local government. A delegation went the same day to St Kitts asking the Governor for separation from St Kitts and an eventual status of ‘State in Association with Britain’. This led to the declaration of a state of emergency by the Prime Minister of St Kitts, Nevis and Anguilla, who called upon the British Government and the Prime Ministers of Jamaica, Barbados, Guyana, and 5 According to the Report of the Constitutional and Electoral Reform Commission 2006, the first Anguillian representative, Dr Benjamin Hodge-Gumbs, was forced to sign away his right to be President of the St Kitts Assembly should he ever become the most senior representative there. 6 Constituted by the West Indies (Federation) Order 1957 (SI 1957/1364), made under the British Caribbean Federation Act 1956 (1956 c 63). 7 Under the West Indies Act 1967 (1967 c 4). 8 The Constitution was contained in the St Christopher, Nevis and Anguilla Constitution Order 1967 (SI 1967/228), which came into force on 27 February 1967.

292 Annex Trinidad and Tobago for military assistance.9 This then led to attacks on strategic points in St Kitts by Anguillians on 10 June 1967, but no lives were lost. The United Kingdom Government tried over the next four years to persuade Anguilla to stay in the Associated State, but to no avail. There was a referendum on 11 July 1967 favouring secession from St Kitts by 1,813 votes to 5. Britain and St Kitts refused to recognise the legality of the referendum. But Anguilla forged ahead with an election under a new constitution10 which returned five elected councillors, who were joined by two appointed members. Six months later, with the agreement of the St Kitts Government and the consent of the Anguilla Council, the United Kingdom sent an Administrator, Mr Tony Lee, on an interim basis to try to agree a solution to the problem. He was unsuccessful as Anguilla would agree only to complete separation from St Kitts, which the United Kingdom Government said was not possible without the request and consent of the legislature of the Associated State, and that was not forthcoming. Another referendum was held on 6 February 1969 with 1,739 people voting in favour of independence under a new constitution,11 and 4 voting against. This led to Anguilla declaring itself to be a republic. On 19 March 1969, following the expulsion on 11 March of a British Minister12 who had been sent to Anguilla to mediate between it and St Kitts, the United Kingdom sent paratroopers and Metropolitan Police officers to Anguilla in what became known as ‘the British invasion’. They were accompanied by Tony Lee who was installed this time as Commissioner.13 On 18 December a Commission of Inquiry under Sir Hugh Wooding was appointed to make recommendations on a solution to the Anguilla problem.14 The Commission found that return to colonial status was out of the question and independence was unrealistic, so the only option was to revert to the Associated State with a greater degree of local control for Anguilla. The Anguilla Council immediately rejected the report. Stuck between the wish of St Kitts to keep Anguilla within the Associated State and Anguilla’s demand for complete separation from St Kitts, the United Kingdom eventually took unilateral steps to administer Anguilla by passing the Anguilla Act 1971.15 New constitutions followed for Anguilla in 1971 and 1976.16 Each kept Anguilla within the Associated State but the 1976 Constitution provided for Anguilla to be administered separately from the State by the United Kingdom until the constitutional problems within the State were resolved. In 1980 a new St Kitts Government made clear that Anguilla could leave the Associated State. This led the United Kingdom to enact the Anguilla Act 198017 enabling Her Majesty by Order in Council to appoint a day on which Anguilla would cease to be part of the Associated State of St Christopher, Nevis and Anguilla. The day appointed was 9 E Davies, The Legal Status of British Dependent Territories (Cambridge, Cambridge University Press, 1995) 311, fn 129, quoting the Wooding Commission Report (Cmnd 4510) ch 4 para 58. 10 Drafted by Harvard University professor of law, Dr Roger Fisher. 11 Drafted by US businessman Jack Holcomb. 12 William Whitlock, Parliamentary Under-Secretary for Foreign and Commonwealth Affairs. 13 The legal authority for doing this was the Anguilla (Temporary Provisions) Order 1969 (SI 1969/371), made under the West Indies Act 1967 following consultation with the Government of the Associated State. 14 Report of the Commission of Inquiry to Examine the Anguilla Problem (Cmnd 4510). 15 1971 c 63. 16 SI 1971/1235 and SI 1976/50. 17 1980 c 67.

Anguilla 293 19 December 1980, nearly 14 years after Anguilla went into the Associated State. The current Constitution was made in 1982 when there was a push for constitutional advancement from the Anguilla Government elected in June 1981. But for some the outcome was still not the advance towards full internal self-government that they had been hoping for.

Status Anguilla is a British overseas territory, acquired by settlement. Anguilla is not a British settlement for the purposes of the British Settlements Acts 1887 and 1945,18 having previously come under the legislature of St Kitts. Power to provide for the government of Anguilla by Order in Council is conferred by the Anguilla Act 1980.19

Constitution The current Constitution of Anguilla is set out in the Schedule to the Anguilla Constitution Order 1982.20 The Constitution has not yet been updated as part of the 1999 White Paper21 constitutional review process. But a Constitutional and Electoral Reform Commission, chaired by Mr Don Mitchell CBE QC, reported on 25 August 2006 recommending a number of constitutional reforms. The Constitution contains a chapter on the protection of fundamental rights and freedoms of the individual, which are enforceable in the High Court of the Eastern Caribbean Supreme Court. The Queen is represented in Anguilla by the Governor, who is assisted by a Deputy Governor. There is an Executive Council and a House of Assembly, and there are political parties. The executive authority of Anguilla is vested in Her Majesty the Queen, and is exercised on Her behalf by the Governor, shared with the Executive Council and Ministers. The Governor has special responsibility for defence, external affairs, international financial services or any directly related aspect of finance, internal security (including the police), and the appointment, discipline and removal of public officers and the application to public officers of the terms and conditions of the public service for which financial provision has been made. Subject to the specified occasions when the Governor is not required to act on the advice of Ministers, other matters are devolved to them. Subject to the Constitution, the Governor must consult and act in accordance with the advice of the Executive Council in the formulation of policy and the exercise of all powers conferred on him or her by the Constitution or any other law of Anguilla. The Governor is not required to consult or act on the advice of the Executive Council in certain circumstances, including with respect to any matter which in the Governor’s opinion relates to one of his or her special responsibilities, or where the Governor 18 19 20 21

1887 c 54 and 1945 c 7. 1980 c 67. SI 1982/334, as amended by SI 1983/1108 and 1990/587. Partnership for Progress and Prosperity: Britain and the Overseas Territories (Cm 4264).

294 Annex is acting in pursuance of instructions from Her Majesty. With the prior approval of a Secretary of State the Governor may also act contrary to the advice of the Executive Council if in his or her opinion it would be inexpedient in the interests of public order or public faith to act in accordance with that advice. With the prior approval of a Secretary of State, the Governor may by written directions delegate to the Chief Minister or any other Minister responsibility for external affairs, international financial services and internal security on such conditions as the Governor may impose. The Executive Council consists of the Chief Minister, not more than three other Ministers, and two ex officio members, namely the Deputy Governor and the AttorneyGeneral. The Governor presides over Executive Council meetings, which entitles him or her to participate fully in them. The Governor appoints as Chief Minister the member of the House of Assembly whom he or she judges is likely to command the support of the majority of its elected members. Other Ministers are appointed by the Governor on the advice of the Chief Minister from among the elected members. The Governor may also appoint a Parliamentary Secretary from among the members of the Assembly in accordance with the advice of the Chief Minister. The Governor must appoint as Leader of the Opposition the person who in his or her judgement is the leader of the opposition party whose numerical strength in the House of Assembly is greater than that of any other opposition party, or if there is no such party, the member of the Assembly who in the Governor’s judgement is most likely to command the support of the opposition members of the Assembly. The House of Assembly consists of a Speaker, the Attorney-General and the Deputy Governor as ex officio members, not less than seven elected members, and two nominated members.22 The elected members are currently elected from seven single-member electoral districts.23 The Speaker is elected by the Assembly from among persons who are qualified for election to the Assembly but who are not members of the Executive Council. There is also a Deputy Speaker of the Assembly who is elected from among its non-elected members. The maximum parliamentary term is five years. Subject to the Constitution, the Governor, with the advice and consent of the House of Assembly, has the power to make laws for the peace, order and good government of Anguilla. The Governor also has reserved legislative powers to push through a Bill if he or she considers it expedient in the interests of public order or public faith. To become law all Bills must be assented to by Her Majesty or the Governor on Her behalf. The Governor must, subject to any instructions, assent to a Bill or reserve it for the signification of Her Majesty’s pleasure, and the Governor is required to reserve certain Bills unless authorised by a Secretary of State to assent to them. Any law to which the Governor has assented may be disallowed by Her Majesty through a Secretary of State. Power is reserved to Her Majesty to legislate by Order in Council for the peace, order and good government of Anguilla.

22 The nominated members have to be Anguillians of at least 21 years of age. One is appointed by the Governor acting in accordance with the advice of the Chief Minister, the other by the Governor acting after consultation with the Chief Minister and the Leader of the Opposition. 23 See Anguilla Elections Act (Revised Statutes of Anguilla, Cap E30) s 2.

Anguilla 295 The Constitution also provides for a Public Service Commission, a Judicial Service Commission, the office of Chief Auditor, and the Attorney-General’s powers and independence in relation to prosecutions. Courts The High Court and the Court of Appeal of the Eastern Caribbean Supreme Court have jurisdiction in Anguilla.24 The Court of Appeal is itinerant and sits in the island as necessary. A High Court judge is resident in Anguilla. The Magistrate’s Court is established by local Act.25 Magistrates are appointed by the Governor after consultation with the Judicial Service Commission. Final appeal lies to the Judicial Committee of the Privy Council. The Constitution provides for the cases in which final appeals may be brought to the Privy Council, including fundamental rights cases, and such appeals are also regulated by separate Order in Council.26 Law Most law in force in Anguilla consists of Acts enacted by the local legislature of Anguilla together with subordinate legislation made under these Acts. Local legislation is supplemented by certain Acts of the United Kingdom Parliament and Orders in Council (which include the Constitution) that have been extended to Anguilla. The Common Law (Declaration of Application) Act27 and the Eastern Caribbean Supreme Court (Anguilla) Act28 incorporate the rules of common law and equity from time to time in force in England. Economy The economy of Anguilla depends heavily on luxury tourism, although there is also some banking and a small international financial services industry. Some income is also derived from lobster fishing. The currency in Anguilla is the Eastern Caribbean dollar, although the US dollar is also widely used. Regional Integration Anguilla is an associate member of the Caribbean Community (CARICOM) and the Organisation of Eastern Caribbean States. It is also a member or associate member of a number of other regional organisations.

24

See Supreme Court Order 1967 (SI 1967/223, as amended by SI 1983/1108 and 2000/3060). Magistrate’s Code of Procedure Act (Revised Statutes of Anguilla, Cap M5). 26 Anguilla Constitution s 72; Anguilla (Appeals to Privy Council) Order 1983 (SI 1983/1109, as amended by SI 2009/224). 27 Revised Statutes of Anguilla Cap C60. 28 Revised Statutes of Anguilla Cap E15: see ss 16–18 and 20. 25

296 Annex BERMUDA

Bermuda is a group of about 150 islands and islets. It lies 917 kilometres east of the coast of North Carolina. The total land area is 53.33 square kilometres. The mainland consists of seven islands linked by bridges, and is 35 kilometres long and almost 2.5 kilometres at its widest. The capital is Hamilton. The population is 63,800 (2009), the ethnic make-up being about 58 per cent black and 35 per cent white, and including about 10 per cent of Portuguese descent.

History The first British settlers landed in Bermuda when their ship the Sea Venture was wrecked on a sunken reef surrounding the islands on 28 July 1609. The ship was carrying colonists to Virginia, and Bermuda takes its alternative name of ‘Somers Islands’ from the leader of the expedition, Sir George Somers. In 1610 all but three of those who landed sailed for Virginia. In 1612 James I extended the charter of the Virginia Company to include Bermuda, and the Company sent more settlers to the islands. In 1615 the King granted a new charter to the Governor and Company of the City of London for the plantation of the Somers Islands. In 1619 the Governor, Captain Nathaniel Butler, was appointed with instructions to establish an elected General Assembly with power to make laws. The first General Assembly met on 1 August 1620. The government of the colony passed to the Crown in 1684. There has been a representative system of government in Bermuda since 1620. In 1888 a bicameral legislature was established: a Legislative Council comprising official and nominated members, and an elected House of Assembly. Executive government was carried out by the Governor, with an advisory Executive Council. There were no political parties until 1963, when the (predominantly black) Progressive Labour Party was formed, followed by the United Bermuda Party, which held power until November 1998, when the Progressive Labour Party won a general election for the first time. In 1966 a Constitutional Conference in London prepared for constitutional reform, which was given effect by the enactment of the Bermuda Constitution Act 1967 and the promulgation of the current Constitution in 1968. Several constitutional amendments have been made since, most notably in 1979 and 2003. In 1995 a referendum was held in Bermuda on the question of independence, at which the independence option was rejected. Bermuda has been in continuous British occupation since the first landing in 1609. It is therefore the oldest British overseas territory.

Status Bermuda is a British overseas territory acquired by settlement, but it is not a British settlement for the purposes of the British Settlements Acts 1887 and 1945.29 Power

29

1887 c 54 and 1945 c 7.

Bermuda 297 to provide for the government of Bermuda by Order in Council is conferred by the Bermuda Constitution Act 1967.30

Constitution The current Constitution is set out in Schedule 2 to the Bermuda Constitution Order 1968, as amended.31 It contains a bill of fundamental rights and freedoms, which are enforceable in the courts of Bermuda. The Queen is represented by a Governor, who is assisted by a Deputy Governor. There is a Cabinet, and a bicameral Legislature with a Senate and a House of Assembly. There are political parties, the Progressive Labour Party and the United Bermuda Party, and the system has many features of the Westminster model. Executive government is shared between the Governor and the Cabinet and Ministers. The Governor has special responsibility for external affairs, defence (including armed forces), internal security and the police. Other matters are devolved to Ministers, with specified exceptions for judicial, prosecutorial, audit and public service functions. The Cabinet consists of the Premier and not less than six other Ministers. Junior Ministers may also be appointed. At least one but no more than two Ministers must come from the Senate, and the number of Ministers and Junior Ministers who are members of the House of Assembly must at no time exceed 12. The Governor appoints as Premier the member of the House of Assembly who appears to him or her best able to command the confidence of a majority of the members of the House. The other Ministers are appointed by the Governor on the advice of the Premier. The Cabinet is collectively responsible to the Legislature. There is an Opposition Leader. The Governor appoints as Opposition Leader the member of the House of Assembly who is the leader of the opposition party with the most seats in the House, or if there is no such party the member who would be acceptable as Opposition Leader to a majority of members in opposition to the Government. The Legislature consists of Her Majesty, the Senate and the House of Assembly. The Senate consists of 11 members appointed by the Governor, 5 of whom are appointed on the advice of the Premier, 3 on the advice of the Opposition Leader, and 3 in the Governor’s own discretion. The House of Assembly consists of 36 members elected from single-member constituencies. The Senate elects a President and a Vice-President from among its members, and the House of Assembly elects a Speaker and a Deputy Speaker from among its members. The maximum parliamentary term is five years. The Legislature has power, subject to the Constitution, to make laws for the peace, order and good government of Bermuda. Bills normally have to be passed by both the Senate and the House of Assembly, but there are restrictions on the powers of the Senate regarding certain financial measures and the Senate cannot block any Bill that has been passed by the House of Assembly in two successive sessions. 30

1967 c 63. SI 1968/182, as amended by SI 1968/463, 1968/726, 1973/233, 1979/452, 1979/1310, 1989/151, 2001/2579, 2003/456. 31

298 Annex To become law Bills require the assent of Her Majesty or the Governor on Her behalf. The Governor may assent to a Bill, withhold assent or reserve it for the signification of Her Majesty’s pleasure, but is required to reserve certain Bills unless he or she has been authorised by a Secretary of State to assent to them. The Governor has no reserved legislative power, and the power of disallowance is limited to laws relating to Government stock. There is no reserved power of Her Majesty to legislate for Bermuda by Order in Council. The Constitution also makes provision for the public service, an Ombudsman, and public finance including independent audit.

Courts The Constitution establishes a Supreme Court and a Court of Appeal. The Supreme Court consists of a Chief Justice and such number of Puisne Judges as may be prescribed by law. The judges of the Court of Appeal are a President and such number of Justices of Appeal, not being less than two, as may be prescribed by law. Final appeal lies to the Judicial Committee of the Privy Council. Appeals to the Privy Council are dealt with in local legislation, apart from a right of final appeal in fundamental rights cases brought under the Constitution.32 Courts of summary jurisdiction are established by local legislation.33

Law The law in force in Bermuda consists predominantly of local Acts enacted by the legislature of Bermuda, and subordinate legislation made under such Acts. This local ‘statute book’ is supplemented by certain Acts of the United Kingdom Parliament and Orders in Council (including the Constitution) made under United Kingdom Acts that have been extended to Bermuda. Local legislation may also incorporate United Kingdom laws as part of the law of Bermuda. A general statutory provision incorporating English law is section 15 of the Supreme Court Act 1905,34 which provides: Subject to the provisions of any Acts which have been passed in any way altering, amending or modifying the same, and of this Act, the common law, the doctrines of equity, and the Acts of the Parliament of England of general application which were in force in England at the date when these Islands were settled, that is to say, on the eleventh day of July one thousand six hundred and twelve, shall be, and are hereby declared to be, in force within Bermuda.

32 Appeals Act 1911 (Laws of Bermuda (1989 Revision) Title 8, Item 86); Bermuda Constitution s 15(4). 33 Magistrates Act 1948 (Laws of Bermuda (1989 Revision) Title 8 Item 15). 34 Laws of Bermuda (1989 Revision) Title 8 Item 1.

British Antarctic Territory 299 Economy The main pillars of the economy are financial services, especially insurance and reinsurance, and tourism. The currency is the Bermuda dollar, which has parity with the US dollar.

Regional Integration Bermuda is an associate member of the Caribbean Community (CARICOM). BRITISH ANTARCTIC TERRITORY

The British Antarctic Territory consists of all islands and territories between the 20th degree of west longitude and the 80th degree of west longitude which are situated south of the 60th parallel of south latitude.35 The main island groups are the South Orkney Islands and the South Shetland Islands. As the territory includes a sector of mainland Antarctica, including Graham Land in the Antarctic Peninsula, it is the largest British overseas territory, covering some 1,709,400 square kilometres. It has no indigenous population. The British Antarctic Survey maintains a permanent presence at two scientific research stations in the Territory (Halley and Rothera), and a summer-only presence at Signy station in the South Orkney Islands, numbering from 40 personnel in the austral winter to about 250 in summer. Several other States also operate scientific stations in the Territory in accordance with the Antarctic Treaty, 1959.36 Although most of the Territory is claimed by both Argentina and Chile, these claims are rejected by the United Kingdom and all territorial sovereignty disputes in Antarctica are held in abeyance by the Antarctic Treaty.

History Graham Land was first sighted by Edward Bransfield RN in 1820 and was taken into British possession by John Biscoe in 1832. The South Orkneys were discovered in 1821 by a British Captain Powell, who landed and took possession on behalf of the Crown. Another British Captain W Smith discovered, and took possession of, the South Shetland Islands in 1819. The territories now known as the British Antarctic Territory and South Georgia and the South Sandwich Islands were previously administered as the Falkland Islands Dependencies pursuant to Letters Patent of 1843, 1876 and 1892, and were defined in Letters Patent of 21 July 1908 and 28 March 1917.37 Most British acts of occupation and administration during the late nineteenth century and the early twentieth century related to meteorological and other scientific activities, and to whaling, including the granting of leases and 35 36 37

British Antarctic Territory Order 1989 (SI 1989/842) s 2. UKTS No 97 (1961); Cmnd 1535. SRO & SI Rev VII 583 and 585.

300 Annex licences to whaling companies. The Falkland Islands Dependencies Survey, since 1962 called the British Antarctic Survey, started operations in 1943, when the first of its bases was established.38 The British Antarctic Territory was legally established as a separate colony in 1962 by the British Antarctic Territory Order in Council 1962.39

Status The British Antarctic Territory is a British overseas territory acquired by annexation, but it is treated as a British settlement for the purposes of the British Settlements Acts 1887 and 1945.40 Power to provide for the government of the British Antarctic Territory by Order in Council is conferred by those Acts.

Constitution The current Constitution of the British Antarctic Territory is contained in the British Antarctic Territory Order 1989.41 It establishes the office of Commissioner for the Territory, who is appointed by the Queen. In practice the office of Commissioner is held by a senior official in the Foreign and Commonwealth Office. The Commissioner exercises executive authority, may appoint a deputy to exercise functions on his or her behalf, and may constitute offices for the Territory and make appointments to them. The Commissioner may make laws, styled Ordinances, for the peace, order and good government of the Territory. Any Ordinance made by the Commissioner may be disallowed by Her Majesty through a Secretary of State. The Commissioner is given express power to establish, by Ordinance, courts for the Territory, to constitute judgeships and other related offices and to make appointments to such offices. Power is reserved to Her Majesty to legislate by Order in Council for the peace, order and good government of the Territory.

Courts The British Antarctic Territory Order 1989 does not itself establish any courts. The Supreme Court and Magistrate’s Court are established by Ordinance.42 The

38 The history of British occupation and administration of the Falkland Islands Dependencies is set out in detail in the UK Applications instituting proceedings against Argentina and Chile at the International Court of Justice in May 1955: see ICJ Pleadings, Antarctica Cases (United Kingdom v Argentina; United Kingdom v Chile), 1955. The cases were not determined because neither Argentina nor Chile accepted the jurisdiction of the Court. 39 SI 1962/400, amended by SI 1964/1396. 40 1887 c 54 and 1945 c 7. 41 SI 1989/842. This Order revoked the Orders of 1962 and 1964 referred to in n 39 above. 42 Administration of Justice Ordinance 1990 (Laws of the British Antarctic Territory, Ordinance No 5 of 1990).

British Indian Ocean Territory 301 British Antarctic Territory Order 1989 enables courts established by Ordinance to sit within the Territory or in the United Kingdom or ‘any other colony’ with the concurrence of the Governor of such colony. By virtue of the Falkland Islands Courts (Overseas Jurisdiction) Order 1989,43 the Supreme Court and Magistrate’s Court of the Falkland Islands respectively have jurisdiction to hear and determine any civil or criminal proceedings in respect of matters arising under the law of the British Antarctic Territory which are within the jurisdiction of the Supreme Court or the Magistrate’s Court of the Territory. Local magistrates are appointed from among the British Antarctic Survey personnel serving at the scientific stations in the Territory. There is a Court of Appeal for the Territory, established by Order in Council, which may sit outside the Territory.44 Final appeal lies to the Judicial Committee of the Privy Council.45

Law The statute law in force in the British Antarctic Territory mainly comprises Ordinances enacted by the Commissioner and instruments made under them. These local laws are supplemented by certain Acts of the United Kingdom Parliament and Orders in Council that have been extended to the Territory. The incorporation of English statutes, common law and rules of equity is provided for in detail in sections 5 and 6 of the Administration of Justice Ordinance 1990.46

Economy The main source of income is the sale of postage stamps and local tax paid by overwintering scientists. Tourism is a growing industry, mostly ship-based. The currency is the pound sterling. BRITISH INDIAN OCEAN TERRITORY

The British Indian Ocean Territory is a group of islands lying about 1,770 kilometres east of Mahe in Seychelles. It comprises the following islands, known collectively as the Chagos Archipelago: Diego Garcia; Egmont or Six Islands; Peros Banhos; Salomon Islands; Three Brothers Islands; Nelson or Legour Island; Eagle Islands; and Danger Islands.47 While the Territory covers about 54,400 square kilometres of sea, the total land area is 60 square kilometres, the largest island, Diego 43

SI 1989/2399, as amended by SI 2009/1737. British Antarctic Territory Court of Appeal Order 1965 (SI 1965/590, as amended by SI 1989/2399). 45 British Antarctic Territory Court of Appeal (Appeal to Privy Council) Order 1965 (SI 1965/592, as amended by SI 2009/224). 46 Laws of the British Antarctic Territory, Ordinance No 5 of 1990. 47 British Indian Ocean Territory (Constitution) Order 2004 (see n 58 below) s 2(2) and sch. 44

302 Annex Garcia, being 44 square kilometres. The Territory was constituted and is set aside for the defence purposes of the United Kingdom and the United States of America,48 and has no permanent population. The temporary inhabitants are the armed forces at the United States defence facility on Diego Garcia, civilian employees of contractors to the United States military, and a small Royal Navy contingent. All of these reside on Diego Garcia, the other islands (sometimes called ‘the outer islands’) being uninhabited. Mauritius has asserted a sovereignty claim to the Territory since 1980. While the United Kingdom rejects this claim, successive British Governments have given undertakings to the Government of Mauritius that the Territory will be ceded to Mauritius when it is no longer required for defence purposes.49 History The islands of the Chagos Archipelago were charted by Vasco da Gama in the early sixteenth century, and Portuguese seafarers named the archipelago and some of the atolls. The islands were administered by France from Mauritius during the late eighteenth century. France ceded the islands to the United Kingdom, along with Mauritius and Seychelles, by the Treaty of Paris, 1814.50 They were administered as a dependency of the colony of Mauritius until 1965 when, with the agreement of the Mauritius Council of Ministers, they were detached to form the major part of a new colony called the British Indian Ocean Territory. The United Kingdom Government paid the Government of Mauritius £3 million in consideration of the detachment of the islands. Three other island groups,51 previously part of the colony of Seychelles, made up the Territory as originally constituted,52 but these were returned to Seychelles when that country became independent in 1976.53 The new colony was established for the defence purposes of the United Kingdom and the United States, as provided for in an Exchange of Notes between their two Governments of 30 December 1966.54 This agreement is expressed to last for 50 years, followed by a further period of 20 years unless, not more than two years before the end of the 50 year period, notice of termination has been given by either Government, in which case it shall terminate two years after the date of such notice.55 Further Exchanges of Notes were concluded between the United Kingdom and United States Governments on 24 October 1972 and 25 February 1976 relating to the United States naval facility on Diego Garcia.56 48

British Indian Ocean Territory (Constitution) Order 2004 s 9(1). UK White Paper ‘Partnership for Progress and Prosperity, Britain and the Overseas Territories’ (Cm 4264) p 51. 50 State Papers vol 1 pt 1 p 151. 51 The Farquar Islands, the Aldabra Group and the Island of Desroches. 52 British Indian Ocean Territory Order 1965 (SI 1965/1920), amended by SI 1968/111. These Orders recited powers granted by the Colonial Boundaries Act 1895 (1895 c 34) as well as prerogative powers. 53 British Indian Ocean Territory Order 1976 (SI 1976/893) s 14. This Order also recited the Colonial Boundaries Act 1895 and prerogative powers. 54 UKTS No 15 (1967); Cmnd 3231. 55 See paragraph (11). 56 UKTS No 126 (1972); Cmnd 5160 and UKTS No 19 (1976); Cmnd 6413. The 1976 agreement replaced the 1972 agreement. 49

British Indian Ocean Territory 303 The Chagos islands had been exploited for copra from the late eighteenth century. After emancipation in the nineteenth century the former slaves on the islands became contract employees working the copra plantations, and some chose to remain on the islands, having children who also stayed there. Following the 1966 Exchange of Notes, in 1967 the Crown purchased the freehold title to all land in the islands that was not already Crown land. The copra plantations were run down as they had become commercially unviable. The plantation workers were progressively relocated, mostly to Mauritius and Seychelles, and the last of them left the Territory in 1973. The United Kingdom Government paid the Government of Mauritius £650,000 in 1973, and a further £4 million in 1982 into a Trust Fund, to assist in the resettlement of the workers in Mauritius. Attempts by the former inhabitants, originally called ‘Ilois’ but now more commonly called ‘Chagossians’, to win the right to return to the islands or to obtain further compensation in the English courts have been ultimately unsuccessful.57

Status The British Indian Ocean Territory is a British overseas territory, the islands comprising which were acquired by cession. The government of the Territory is provided for by Royal prerogative powers.

Constitution The current Constitution of the Territory is set out in the British Indian Ocean Territory (Constitution) Order 2004.58 This establishes the office of Commissioner, who is appointed by the Queen. In practice the office of Commissioner is held by a senior official in the Foreign and Commonwealth Office. The Commissioner exercises executive powers, may constitute offices for the Territory and make appointments to such offices. In practice the Commissioner is assisted by an Administrator, resident in London, and by the Commissioner’s Representative, who is the officer in charge of the Royal Navy contingent on Diego Garcia. The Commissioner may make laws for the peace, order and good government of the Territory. Exceptionally, section 10(2) of the Order declares, without prejudice to the generality of the provision granting legislative power and ‘for the avoidance of doubt’, that the Commissioner may make any such provision as he considers expedient for or in connection with the administration of the Territory, and no such provision shall be deemed to be invalid

57 See R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067; Chagos Islanders v Attorney General [2003] EWHC 2222 (QB); [2003] All ER (D) 166; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL). The history is recounted most comprehensively and authoritatively, on the basis of extensive documentary and oral evidence, in the judgment of Ouseley J in Chagos Islanders v Attorney General (above). 58 This is a prerogative Order, and therefore not a statutory instrument. It was published in the (2004) 36(1) British Indian Ocean Territory Official Gazette. For convenience it is reproduced at pp 305–10 below.

304 Annex except to the extent that it is inconsistent with the status of the Territory as a British overseas territory or with this Order or with any other Order of Her Majesty in Council extending to the Territory or otherwise as provided by the Colonial Laws Validity Act 1865.

Any law made by the Commissioner may be disallowed by Her Majesty through a Secretary of State. Power to legislate for the Territory by Order in Council is reserved in unusual detail, and power is also expressly reserved to Her Majesty to amend or revoke the 2004 Order.59 The 2004 Order also expressly provides in section 9: (1) Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory. (2) Accordingly, no person is entitled to enter or be present in the Territory except as authorised by or under this Order or any other law for the time being in force in the Territory.60

Courts The Territory has a Supreme Court and a Magistrates’ Court established by Ordinance.61 The Supreme Court consists of a Chief Justice, and the British Indian Ocean Territory (Constitution) Order 2004 makes provision for the Court to sit in the United Kingdom ‘as the Chief Justice may direct’.62 There is a legally qualified, but non-resident, Senior Magistrate, and the officer in charge of the Royal Navy component on Diego Garcia is in practice appointed as a local magistrate. The Territory has a Court of Appeal, established by Order in Council.63 Final appeal lies to the Judicial Committee of the Privy Council.64 Law The statute law in force in the British Indian Ocean Territory comprises Ordinances made by the Commissioner and instruments made under them, and certain Acts of the United Kingdom Parliament and Orders in Council that have been extended to

59 See s 15. The detail of these provisions, and the exceptional provision in s 10(2), were occasioned by the judgment in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067, which had held that the power to legislate for ‘peace, order and good government’ was not unlimited, a finding later overruled by the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL). 60 The validity of this section was challenged, and upheld by the majority in the House of Lords, in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (HL). 61 Courts Ordinance 1983, Parts II and III (Laws of the British Indian Ocean Territory, Ordinance No 3 of 1983). 62 See s 13(4) and (5)–(8). 63 British Indian Ocean Territory (Court of Appeal) Order 1976 (published in SI 1976, II, p 3815). 64 British Indian Ocean Territory (Appeals to Privy Council) Order 1983 (SI 1983/1888, as amended by SI 2009/224).

British Indian Ocean Territory 305 the Territory. The incorporation of English statutes, common law and rules of equity is provided for in detail by sections 3 to 5 of the Courts Ordinance 1983.65 Economy There are no commercial, industrial or agricultural activities in the Territory, the population being solely military personnel and people employed to support the defence facility. The currency in use is the US dollar.

*********** BRITISH INDIAN OCEAN TERRITORY (CONSTITUTION) ORDER 2004 At the Court at Buckingham Palace THE 10th DAY OF JUNE 2004 PRESENT, THE QUEEN’S MOST EXCELLENT MAJESTY IN COUNCIL

Her Majesty, by virtue and in exercise of all the powers in Her Majesty vested, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:— Citation and Commencement

1. This Order may be cited as the British Indian Ocean Territory (Constitution) Order 2004 and shall come into force forthwith. Interpretation 2.—(1) The Interpretation Act 1978 shall apply, with the necessary modifications, for the purpose of interpreting this Order, and otherwise in relation thereto, as it applies for the purpose of interpreting, and otherwise in relation to, Acts of Parliament. (2) In this Order, unless the contrary intention appears— ‘the Commissioner’ means the Commissioner for the Territory and includes any person for the time being lawfully performing the functions of the office of Commissioner; 65 Laws of the British Indian Ocean Territory, Ordinance No 3 of 1983. These provisions need to be read with section 3(2) of the British Indian Ocean Territory (Constitution) Order 2004.

306 Annex

‘the Gazette’ means the Official Gazette of the Territory; ‘the Territory’ means the British Indian Ocean Territory specified in the Schedule. Revocation

3.— (1) The British Indian Ocean Territory Orders 1976 to 1994 (‘the existing Orders’) are revoked. (2) Without prejudice to the generality of sections 15, 16 and 17 of the Interpretation Act 1978 (as applied by section 2(1) of this Order)— (a) the revocation of the existing Orders does not affect the continuing operation of any law made, or having effect as if made, under the existing Orders and having effect as part of the law of the Territory immediately before the commencement of this Order; but any such law shall thereafter, without prejudice to its amendment or repeal by any authority competent in that behalf, have effect as if made under this Order and be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Order; (b) the revocation of the existing Orders does not affect the continuing validity of any appointment made, or having effect as if made, or other thing done, or having effect as if done, under the existing Orders and having effect immediately before the commencement of this Order; but any such appointment made or thing done shall, without prejudice to its revocation or variation by any authority competent in that behalf, continue to have effect thereafter as if made or done under this Order. Establishment of Office of Commissioner 4.—(1) There shall be a Commissioner for the Territory who shall be appointed by Her Majesty by instructions given through a Secretary of State and who shall hold office during Her Majesty’s pleasure.

(2) During any period when the office of Commissioner is vacant or the holder thereof is for any reason unable to perform the functions of his office those functions shall, during Her Majesty’s pleasure, be assumed and performed by such person as Her Majesty may designate in that behalf by instructions given through a Secretary of State. Powers and Duties of Commissioner 5. The Commissioner shall have such powers and duties as are conferred or imposed on him by or under this Order or any other law and such other functions as Her Majesty may from time to time be pleased to assign to him and, subject to the provisions of this Order and of any other law, shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him.

British Indian Ocean Territory 307 Official Stamp

6. There shall be an Official Stamp for the Territory which the Commissioner shall keep and use for stamping all such documents as may be required by any law to be stamped therewith. Constitution of Offices

7. The Commissioner, in Her Majesty’s name and on Her Majesty’s behalf, may constitute such offices for the Territory as may lawfully be constituted by Her Majesty and, subject to the provisions of any law for the time being in force in the Territory and to such instructions as may from time to time be given to him by Her Majesty through a Secretary of State, the Commissioner may likewise— (a) make appointments, to be held during Her Majesty’s pleasure, to any office so constituted; and (b) terminate any such appointment, or dismiss any person so appointed or take such other disciplinary action in relation to him as the Commissioner may think fit. Concurrent Appointments

8. Whenever the substantive holder of any office constituted by or under this Order is on leave of absence pending relinquishment of his office— (a) another person may be appointed substantively to that office; and (b) that person shall, for the purposes of any functions attaching to that office, be deemed to be the sole holder of that office. No Right of Abode in the Territory

9.—(1) Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory. (2) Accordingly, no person is entitled to enter or be present in the Territory except as authorised by or under this Order or any other law for the time being in force in the Territory. Commissioner’s Powers to Make Laws

10. —(1) Subject to the provisions of this Order, the Commissioner may make laws for the peace, order and good government of the Territory. (2) It is hereby declared, without prejudice to the generality of subsection (1) but for the avoidance of doubt, that, in the exercise of his powers under subsection (1), the Commissioner may make any such provision as he considers expedient for or in connection with the administration of the Territory, and no such provision shall be deemed to be invalid except to the extent that it is inconsistent with the status of the Territory as a British overseas territory or with this Order or with any other Order of Her Majesty in Council extending to the Territory or otherwise as provided by the Colonial Laws Validity Act 1865.

308 Annex

(3) All laws made by the Commissioner in exercise of the powers conferred by subsection (1) shall be published in the Gazette in such manner as the Commissioner may direct. (4) Every law made by the Commissioner under subsection (1) shall come into force on the date on which it is published in accordance with subsection (3) unless it is provided, either in that law or in some other such law, that it shall come into operation on some other date, in which case it shall come into force on that other date. Disallowance of Laws

11.—(1) Any law made by the Commissioner in exercise of the powers conferred on him by this Order may be disallowed by Her Majesty through a Secretary of State. (2) Whenever any law has been disallowed by Her Majesty, the Commissioner shall cause notice of the disallowance to be published in the Gazette in such manner as he may direct, and the law shall be annulled with effect from the date of that publication. (3) Section 16(1) of the Interpretation Act 1978 shall apply to the annulment of a law under this section as it applies to the repeal of an Act of Parliament, save that a law repealed or amended by or in pursuance of the annulled law shall have effect as from the date of the annulment as if the annulled law had not been made. Commissioner’s Powers of Pardon, etc

12. The Commissioner may, in Her Majesty’s name and on Her Majesty’s behalf— (a) grant to any person concerned in or convicted of any offence against the law of the Territory a pardon, free or subject to lawful conditions; or (b) grant to any person a respite, either indefinite or for a specified period, of the execution of any sentence passed on that person for any such offence; or (c) substitute a less severe form of punishment for any punishment imposed by any such sentence; or (d) remit the whole or any part of any such sentence or of any penalty or forfeiture otherwise due to Her Majesty on account of any such offence. Courts and Judicial Proceedings

13.—(1) Without prejudice to the generality of section 3(2), all courts established for the Territory by or under a law made under the existing Orders and in existence immediately before the commencement of this Order shall continue in existence thereafter as if established by or under a law made under this Order. (2) All proceedings that, immediately before the commencement of this Order, are pending before any such court may be continued and concluded before that court thereafter.

British Indian Ocean Territory 309

(3) Without prejudice to the generality of section 3(2), the provisions of any law in force in the Territory as from the commencement of this Order that relate to the enforcement of decisions of courts established for the Territory or to appeals from such decisions shall apply to such decisions given before the commencement of this Order in the same way as they apply to such decisions given thereafter. (4) The Supreme Court may, as the Chief Justice may direct, sit in the United Kingdom and there exercise all or any of its powers or jurisdiction in any civil or criminal proceedings. (5) Subject to subsection (6), the Chief Justice may make a direction under subsection (4) where it appears to him, having regard to all the circumstances of the case, that to do so would be in the interests of the proper and efficient administration of justice and would not impose an unfair burden on any party to the proceedings. (6) A direction under subsection (4) may be made at any stage of the proceedings or when it is sought to institute the proceedings and may be made on the application of any party to the proceedings or of any person who seeks to be or whom it is sought to make such a party or of the Chief Justice’s own motion. (7) Subject to any law made under section 10 (and without prejudice to the operation of section 3(2)), the Chief Justice may make rules of court for the purpose of regulating the practice and procedure of the Supreme Court with respect to the exercise of the Court’s powers and jurisdiction in the United Kingdom. (8) Without prejudice to the operation of section 3(2), a sub-registry may be established in the United Kingdom for the filing, sealing and issue of such documents relating to proceedings in the Supreme Court (whether or not they are proceedings in which the Court exercises its powers and jurisdiction in the United Kingdom) as may be prescribed by rules of court made by the Chief Justice. (9) Anything done in the United Kingdom by virtue of subsections (4) to (8) shall have, and have only, the same validity and effect as if done in the Territory. (10) In this section, ‘the Supreme Court’ means the Supreme Court of the Territory as established by or under a law made, or having effect as if made, under section 10 and ‘the Chief Justice’ means the Judge (or, if there is more than one, the presiding Judge) of that Court. Disposal of Land 14. Subject to any law for the time being in force in the Territory and to any instructions given to the Commissioner by Her Majesty through a Secretary of State, the Commissioner, in Her Majesty’s name and on Her Majesty’s behalf, may make and execute grants and dispositions of any land or other immovable property within the Territory that may lawfully be granted or disposed of by Her Majesty. Powers Reserved to Her Majesty

15.—(1) There is hereby reserved to Her Majesty full power to make laws for the peace, order and good government of the Territory, and it is hereby declared, without prejudice to the generality of that expression but for the avoidance of doubt, that—

310 Annex

(a) any law made by Her Majesty in the exercise of that power may make any such provision as Her Majesty considers expedient for or in connection with the administration of the Territory; and (b) no such provision shall be deemed to be invalid except to the extent that it is inconsistent with the status of the Territory as a British overseas territory or otherwise as provided by the Colonial Laws Validity Act 1865. (2) Without prejudice to the generality of the power to make laws reserved to Her Majesty by subsection (1), any such law may make such provision as Her Majesty considers expedient for the purposes for which the Territory was constituted and is set aside, and accordingly and in particular, to give effect to section 9(1) and to secure compliance with section 9(2), including provision for the prohibition and punishment of unauthorised entry into, or unauthorised presence in, the Territory, for the prevention of such unauthorised entry and the removal from the Territory of persons whose presence in the Territory is unauthorised, and for empowering public officers to effect such prevention or, as the case may be, such removal (including by the use of such force as is reasonable in the circumstances). (3) In this section— (a) ‘public officer’ means a person holding or acting in an office under the Government of the Territory; and (b) for the avoidance of doubt, references in this section to the prevention of unauthorised entry into the Territory include references to the prevention of entry into the territorial sea of the Territory with a view to effecting such unauthorised entry and references to the removal from the Territory of persons whose presence there is unauthorised include references to the removal from the territorial sea of the Territory of persons who either have effected an unauthorised entry into the Territory or have entered the territorial sea with a view to effecting such an unauthorised entry. (4) There is hereby reserved to Her Majesty full power to amend or revoke this Order.

THE SCHEDULE

Section 2(2)

Diego Garcia

Three Brothers Islands

Egmont or Six Islands

Nelson or Legour Island

Peros Banhos

Eagle Islands

Salomon Islands

Danger Islands EXPLANATORY NOTE (This note is not part of the Order)

This Order makes new provision for the Constitution and administration of the British Indian Ocean Territory.

Cayman Islands 311 CAYMAN ISLANDS

The Cayman Islands consist of three islands, Grand Cayman, Cayman Brac and Little Cayman, and are situated in the Caribbean Sea. The largest island, Grand Cayman, with the capital George Town, lies approximately 320 kilometres northwest of Jamaica and 240 kilometres south of Cuba. Together the three islands cover an area of around 260 square kilometres. The population is 57,000 (2008 estimate). The name ‘Cayman’ (originally ‘Caymanas’) comes from the Carib word for the marine crocodiles once found on the islands’ shores. The islands were originally called Las Tortugas after the ‘tortoises’, in fact turtles, spotted by the first sailors which appeared to them like little rocks in the water. At one stage soon after their discovery, the islands also appear to have been called ‘Lagortas’ but this was replaced by Caymanas by 1530.66

History Christopher Columbus discovered the Cayman Islands in 1503 during his fourth and last voyage when he was searching for a route to India,67 and he was probably heading for Hispaniola. They appear to have remained unsettled for many years, but an Anglo-French treaty of 1686 which granted permission to French fishermen to catch turtles in Cayman waters shows that the islands were already considered to be under British occupation at that time. It appears that significant settlement began in the eighteenth century with the first record of a grant of Crown land being recorded in 1734. Cayman Brac and Little Cayman were not permanently populated until 1833. The islands have almost from the outset had a close connection with Jamaica. At first they were administered by Justices of the Peace appointed by the Governor of Jamaica and then in 1832 the government was expanded to include elected members, known as ‘Vestrymen’. The Cayman Islands Act 186368 gave the Governor, legislature and courts of Jamaica extensive powers in relation to the Cayman Islands, and in effect gave the Governor the same powers in relation to the Cayman Islands as if they had been part of Jamaica. Unlike the Turks and Caicos Islands, they were never annexed to, and made part of, Jamaica, but were instead a dependency of it. But the legislature of Jamaica had the power to make laws for the peace, order and good government of the islands. Under the 1863 Act the Justices of the Peace and Vestrymen were permitted to continue to legislate but the Governor of Jamaica had to assent to any such legislation. Locally, from 1957 to 1962, the Islands were governed by a Commissioner,69 who was selected by the Secretary of State and appointed by and acted under the authority of the Governor of Jamaica. The Commissioner, as President, together with the Justices of the Peace and the Vestrymen,70 formed the legislature of the islands. It was as a dependency

66 67 68 69 70

See Cayman Islands Government website at www.gocayman.ky/history.html. Hansard, HC Deb 21 January 1958 vol 580 cc 907-24, 907. 1863 c 31. The first Commissioner was Frederick Sanguinetti, an official of the Jamaican Government. The Vestrymen numbered 27 in 1957.

312 Annex of Jamaica that the Islands became part of the Federation of the West Indies in 1957. The Cayman Islands and Turks and Caicos Islands Act 195871 repealed the 1863 Act, and separated the Cayman Islands from Jamaica. However, the powers under the 1958 Act were exercised in 1959 to provide for the Cayman Islands to continue to be governed from Jamaica, and the Cayman Islands remained within the Federation of the West Indies under the umbrella of Jamaica until the West Indies Act 196272 was used to dissolve the Federation in that year. When Jamaica obtained independence from the United Kingdom in 1962, the Jamaica Independence Act 196273 made clear that ‘Jamaica’ did not include the Cayman Islands, and since 1962 the Cayman Islands have been administered as a separate territory.

Status The Cayman Islands are a British overseas territory, acquired by settlement. But they are not a British settlement for the purposes of the British Settlements Acts 1887 and 1945,74 having been brought under the jurisdiction of the legislature of Jamaica by the Cayman Islands Act 1863.75 The current power to provide for the government of the Cayman Islands by Order in Council is conferred by the West Indies Act 1962.76 The official language of the Cayman Islands, provided for in the Constitution, is English.77

Constitution The Cayman Islands Constitution is contained in Schedule 2 to the Cayman Islands Constitution Order 2009.78 With the exception of Part I, dealing with Fundamental Rights, Freedoms and Responsibilities, which has a later entry into force date, the Constitution came into force on 6 November 2009.79 It was the result of several years of negotiations between representatives of the Cayman Islands, including from the Government and Opposition, the Human Rights Committee,80 the churches and civil society, and representatives of the British Government. For the first time, the Cayman Islands Constitution contains a Bill of Rights, Freedoms and Responsibilities for the people of the islands, enforceable in the Grand Court. 71

1958 c 13. 1962 c 19. 73 1962 c 40. 74 1887 c 54 and 1945 c 7. 75 1863 c 31. 76 1962 c 19. 77 See Cayman Islands Constitution (SI 2009/1379) s 123. 78 SI 2009/1379. 79 In accordance with section 4(2) of the Constitution Order, the Bill of Rights, Freedoms and Responsibilities contained in Part I of the Constitution will come into force three years after the Constitution comes into force (ie on 6 November 2012), with the exception of section 6(2) and (3) thereof concerning certain rights of prisoners, which will come into force one year after that (ie on 6 November 2013). 80 Under the 2009 Constitution, the Human Rights Committee was replaced by the Human Rights Commission: see s 116(5). 72

Cayman Islands 313 The Queen is represented in the islands by the Governor who is assisted by a Deputy Governor. The Deputy Governor must be a Caymanian.81 There is a Cabinet and a Legislative Assembly and political parties. The executive authority of the islands is vested in Her Majesty the Queen. This authority is exercised on behalf of Her Majesty by the Government of the Cayman Islands which consists of the Governor and the Cabinet, and may be exercised directly by them or through public officers. The Governor presides at Cabinet meetings, which entitles him or her to participate fully in them. The Governor has special responsibility for the conduct of the business of government with respect to defence, external relations, internal security (including the police), the appointment, dismissal and discipline of public officers and, subject to financial constraints, application of their terms and conditions of employment and the organisation of the public service. In the field of external relations the Governor may not conclude any international agreement that would affect internal policy or require to be implemented by local legislation without first obtaining the agreement of the Cabinet unless he or she is instructed to do otherwise by a Secretary of State. The Governor must also, acting after consultation with the Premier, assign or delegate to the Premier or another Minister responsibility for defined aspects of external affairs.82 The Governor’s responsibility for internal security and the police is without prejudice to the role of the National Security Council established by the Constitution. Other matters not specifically reserved to the Governor are devolved to Ministers, subject to the occasions specified (in the Constitution or other laws) on which the Governor is not required to act on the advice of Ministers, including when so instructed through a Secretary of State and when such advice would adversely affect the Governor’s special responsibilities. The Cabinet consists of the Premier and six other Ministers,83 one of whom is the Deputy Premier, together with the Deputy Governor and the Attorney General, both of whom are ex officio members. A local law may increase the number of Ministers so long as that number never exceeds two-fifths of the total number of elected members of the Legislative Assembly. The Cabinet has responsibility for the formulation and implementation of policy as it relates to every aspect of government except matters for which the Governor has special responsibility under the Constitution. The Cabinet is collectively responsible to the Legislative Assembly for its policies and their implementation. The Governor appoints as Premier the elected member of the Legislative Assembly recommended by a majority of the elected members who are members of the party which gains the majority of the seats of elected members of the Assembly. Where no party gains such a majority, or there is no recommendation, the Speaker organises a ballot among the elected members and the Governor appoints as Premier the person who obtains a majority of the votes of those members. A person may not

81 The term ‘Caymanian’ has the meaning ascribed to it in the laws of the Cayman Islands for the time being in force: see Constitution s 124(1). In general, Caymanians are those most closely connected with the Islands, often, but not exclusively, by birth. 82 See further ch 13 above. 83 Until the Legislative Assembly is next dissolved after the commencement of the Constitution, the maximum number of other Ministers is four: see Constitution Order s 4(3)(a).

314 Annex be appointed as Premier for more than two consecutive parliamentary terms unless at least one parliamentary term has expired since he or she last held office. The maximum parliamentary term is four years. Other Ministers, including the Deputy Premier, are appointed by the Governor acting on the advice of the Premier. There is a Leader of the Opposition appointed by the Governor. The Governor appoints as Leader of the Opposition the person recommended by a majority of the elected members of the Assembly who are members of any opposition political party whose numerical strength is greater than any other opposition political party. If it appears to the Governor that there is no such party but there is an elected member who would be acceptable as Leader of the Opposition to a majority of members of the Assembly in opposition to the Government, the Governor will appoint that person. If there is no such person, the Governor will appoint the person who in his or her opinion would be acceptable to the greatest number of members of the Assembly in opposition to the Government. The Legislature consists of Her Majesty and the Legislative Assembly. The Legislative Assembly consists of the Speaker, 18 elected members84 and two ex officio members, the Deputy Governor and the Attorney General. The ex officio members are not entitled to vote, and the Speaker only has a casting vote. The elected members of the Assembly are elected in accordance with local legislation on elections. The Speaker is elected by the elected members of the Assembly from among the elected members or persons who are qualified to be elected as members, other than Ministers. The Deputy Speaker is elected by the elected members of the Assembly from among the elected members other than Ministers. The Legislature has power, subject to the Constitution, to make laws for the peace, order and good government of the Cayman Islands. To become law Bills passed by the Legislative Assembly require the assent of Her Majesty or the Governor on Her behalf. Subject to any instructions, the Governor may assent or refuse assent to a Bill, or reserve it for the signification of Her Majesty’s pleasure, but is required to reserve certain Bills unless he or she has been authorised by a Secretary of State to assent to them. Laws to which the Governor has assented may be disallowed by Her Majesty through a Secretary of State, but the Legislative Assembly must be given time to reconsider a law, with an explanation of the difficulties perceived by the Secretary of State, before disallowance. The Governor has a reserved legislative power with respect to, or in the interests of, matters for which he or she has special responsibility. Power is reserved to Her Majesty to legislate by Order in Council for the peace, order and good government of the Cayman Islands. The constitution also contains provisions relating to the public service, and establishes a Judicial and Legal Services Commission and ‘institutions supporting democracy’, namely a Human Rights Commission, a Commission for Standards in Public Life, a Constitutional Commission, a Complaints Commissioner and a Register of Interests.

84 Until the Legislative Assembly is next dissolved after commencement, the number of elected members is 15: see Constitution Order s 4(3)(c). Thereafter a local law may, subject to specified conditions, increase the number of elected members: see Cayman Constitution s 60(2), read with Constitution Order s 4(3)(d).

Cayman Islands 315 Courts The Constitution establishes a Grand Court and a Court of Appeal for the Cayman Islands. The Grand Court, which is the superior court of first instance, consists of a Chief Justice and such number of other judges (if any) as may be prescribed by a local law. The Court of Appeal consists of a President and not less than two Justices of Appeal, and usually sits for three sessions of three weeks each year. The Constitution also provides for courts subordinate to the Grand Court to be established by local law and gives the Grand Court jurisdiction to supervise the proceedings of such courts. A Summary Court, presided over by a magistrate, has been established by local law.85 The Summary Court also sits as the Coroner’s Court with a magistrate sitting as the coroner with a jury. Final appeal lies to the Judicial Committee of the Privy Council. Appeals to the Privy Council are provided for in a separate Order in Council,86 apart from the final right of appeal in fundamental rights cases brought under the Constitution.87

Law Most law in force in the Cayman Islands is constituted by legislation, called Laws, enacted by the local Legislature of the Cayman Islands, and subordinate legislation made under such Laws. The local legislation is supplemented by certain Acts of the United Kingdom Parliament and Orders in Council (including the Constitution) that have been extended to the Islands. United Kingdom legislation which has not been extended to the Islands may be incorporated by local law and English common law forms part of the law of the Cayman Islands.88 Certain Jamaican laws may still be in force by virtue of the Cayman Islands Act 1863 and successive provisions preserving the force of existing laws.89

Economy The economy is based on tourism, banking and international finance with several hundred banks having a presence there. The main income source of the islanders therefore comes from the service industry. Although the Cayman Islands have one of the highest standards of living in the world, almost all of its food and consumer goods have to be imported. The Cayman Islands use Cayman Islands dollars, tied to the US dollar at US$1.00=CI$0.80, but US dollars are also widely used on the islands.

85

Summary Jurisdiction Law (Laws of the Cayman Islands, Law 10 of 1975 (2006 Revision)). Cayman Islands (Appeals to Privy Council) Order 1984 (SI 1984/1151, as amended by SI 2009/224 and 2009/3206). 87 See s 26(3). 88 See eg Penal Code (Laws of the Cayman Islands, Law 12 of 1975 (2007 Revision)) s 2(a). 89 See further ch 8 above. 86

316 Annex Regional Integration The Cayman Islands are an associate member of the Caribbean Community (CARICOM) and are a member or associate member of a number of other Caribbean regional organisations.

FALKLAND ISLANDS

The Falkland Islands are an archipelago consisting of around 750 islands situated in the South Atlantic approximately 650 kilometres from the south-eastern tip of South America and 770 kilometres north-east of Cape Horn. They have a total land area of approximately 12,000 square kilometres. The two main islands are East Falkland, where the capital, Stanley, is situated, and West Falkland. All land outside of Stanley is referred to as ‘Camp’, which derives from the Spanish for countryside (campo). The local population is 2,478 (2006 census). There is also a substantial garrison of British armed forces and civilian support staff.

History The first recorded sighting of the Falkland Islands was in 1592 by the English explorer John Davis, captain of the ship Desire, and the first recorded English landing was made in 1690 by Captain John Strong, who named the channel dividing the two main islands ‘Falkland Sound’ after Viscount Falkland who was at that time the Treasurer of the Royal Navy. In 1764 a French settlement was established at Port Louis on East Falkland by Louis Antoine de Bougainville and formal possession was taken of the Islands on behalf of the French King, Louis XV. In 1765 Captain John Byron led an expedition on behalf of the British Admiralty which landed at Port Egmont on West Falkland; he took possession of it and of ‘all the neighbouring Islands’ in the name of the British Crown. In 1766 Captain John McBride led a second expedition, established a settlement at Port Egmont and discovered the French settlement at Port Louis on East Falkland. He warned the French to leave but they refused. Around this time the Spanish became involved and bought the French settlement, renaming it Puerto de la Soledad. It was put under the jurisdiction of the Captain-General of Buenos Aires, which was then a Spanish colony. In June 1770 the Spanish expelled the British from Port Egmont, but it was restored to Britain in 1771 following bilateral negotiations between Britain and Spain. However, in 1774 the British settlers left the Islands as an economy measure, leaving only a plaque recording Britain’s continuing sovereignty over them. A Spanish garrison withdrew from Puerto de la Soledad in 1811, leaving the Islands without inhabitants or any form of administration. The Government of Buenos Aires declared its independence from Spain in 1816. In 1820 an American national, Jewett, landed at Puerto de la Soledad and claimed possession in the name of the Government of Buenos Aires; he returned to Buenos Aires after a few days and his visit was not followed up with any settlement. The Islands remained without effective government. In 1823 the Buenos Aires Government appointed a Governor to the Islands but he never visited them. In 1826 Louis Vernet, who had apparently been a

Falkland Islands 317 naturalised Buenos Aires citizen but a long-time resident of America originally from Germany (perhaps with French origins),90 undertook a private venture to establish a new settlement at Puerto de la Soledad with the paper backing of the Government of Buenos Aires. In 1829 the Government of Buenos Aires, which claimed the rights in the region exercised by Spain prior to its independence, appointed Vernet as Political and Military Governor of the Islands (although he received no assistance from the Buenos Aires Government). Britain protested, asserting its own sovereignty.91 In 1831 Vernet seized three American vessels and in retaliation the Americans destroyed Port Louis/Puerto de la Soledad and proclaimed the Islands to be free of all government. In September 1832 the Government of Buenos Aires appointed Mestivier as Civil and Military Governor of the Islands. The British Government objected, repeating the terms of its 1829 protest. On 30 November 1832, soon after landing on East Falkland, Mestivier was murdered by his own soldiers. In December 1832 Britain sent out an expedition to exercise Britain’s rights of sovereignty. On 23 December 1832 Captain Onslow of HMS Clio arrived at Port Egmont and put up a signal post stating that the Islands belonged to Great Britain. In January 1833 Onslow arrived at Puerto de la Soledad and the Commander of the Argentine garrison was ordered to leave. He and the garrison did so, the British flag replaced the Argentine one and British presence in and administration of the Islands resumed. Buenos Aires protested, but was apparently told: ‘The British Government upon this occasion has only exercised its full and undoubted right ... The British Government at one time thought it inexpedient to maintain any Garrison in those Islands: It has now altered its views, and has deemed it proper to establish a Post there’.92 The Islands have been in the uninterrupted possession of the United Kingdom since that time. However, on 2 April 1982 Argentine military forces invaded and illegally occupied the Falkland Islands. The United Kingdom responded by launching a task force on 5 April. The Argentine forces surrendered on 14 June 1982 when Stanley was liberated. Over 1,000 British and Argentine lives were lost during the conflict. The Argentine claim to the Falkland Islands continues, but is firmly resisted by the United Kingdom, which has maintained a deterrence force on the Islands since 1982.

Status The Falkland Islands are a British overseas territory, acquired by settlement. It is treated as a British Settlement for the purposes of the British Settlements Acts 1887 and 1945.93 Power to provide for the government of the Falkland Islands by Order in Council is conferred by the 1887 and 1945 Acts.

90 See the Falkland Islands Government website: www.falklands.gov.fk (Historical Dates), and K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens, 1966) 866. 91 The formal protest noted that ‘the Argentine Republic, in issuing this Decree, [has] assumed authority incompatible with His Britannick Majesty’s rights of sovereignty over the Falkland Islands’, and cited British rights from discovery and the restoration of occupation in 1771: see L Freedman, The Official History of the Falkland Islands Campaign. Vol 1: The Origins of the Falklands War (Abingdon, Routledge, 2005) 7. 92 See n 90 above. 93 1887 c 54 and 1945 c 7.

318 Annex Constitution The current Constitution of the Falkland Islands is contained in the Schedule to the Falkland Islands Constitution Order 2008.94 It was negotiated between representatives of the British Government and the Falkland Islands legislature. The Constitution contains a chapter on the protection of fundamental rights and freedoms of the individual enforceable in the territory’s Supreme Court. It establishes the office of Governor who is the Queen’s representative in the territory. There is no Deputy Governor, but the Governor is assisted by a Chief Executive who, under the authority of the Governor, is the head of the territory’s public service.95 There is an Executive Council and a Legislative Assembly, but there are no political parties. The executive authority of the Islands is exercised by the Governor on behalf of Her Majesty the Queen. Executive government is shared between the Governor and the Executive Council and elected members serving in that Council. Although not described as ‘special responsibilities’, in effect the Governor has ultimate responsibility for external affairs, defence, internal security (including the police), the administration of justice, audit and appointments to the public service, the discipline and removal from office of public officers, and the management of the public service, because on these matters the Governor may act against the advice of the Executive Council. However, the Governor must consult the Commander British Forces96 before exercising any function which appears to the Governor to relate to defence or internal security (except the police) and act in accordance with the Commander’s advice. The Governor must also act in accordance with the advice of the Commander on any matter on which the latter considers it necessary in the interests of defence or internal security (except the police) to give advice to the Governor. Subject to the specified occasions when the Governor may act against the advice of the Executive Council, other matters are devolved to it. Subject to specified exceptions, the Governor must consult the Executive Council in the formulation of policy and in the exercise of the Governor’s functions conferred by the Constitution or any other law. The Governor need not consult the Council in several situations, including when acting on instructions from Her Majesty through a Secretary of State, when the matter is one on which the Governor is required to consult the Commander British Forces or where the Commander has given the Governor advice, and when in the Governor’s judgement the service of Her Majesty would sustain material prejudice by such consultation. Where the Governor does consult the Executive Council he or she may act against its advice only if it would affect any of the Governor’s responsibilities described above or if, in his or her judgement, it would be right to do so in the interests of good governance. The Executive Council consists of three of the elected members of the Legislative Assembly, who are elected to the Council by the elected members of the Legislative Assembly for a period of 12 months and may be re-elected. The Chief Executive and the Director of Finance are ex officio members without voting rights. The Council 94

SI 2008/2846, which came into force on 1 January 2009. See Falklands Islands Constitution s 83. 96 The ‘Commander British Forces’ is the Officer for the time being commanding Her Majesty’s Forces in the Falkland Islands: s 100(1). 95

Falkland Islands 319 must always have at least one member representing the Stanley constituency and one member representing the Camp constituency. The Commander British Forces and the Attorney General are entitled to attend and participate in Council meetings, but may not vote. The Council may delegate any of its functions to a Committee established under its authority, but anything done by a Committee must be reconsidered by the Council if any of its members, or the Governor, considers that appropriate. The Governor, while not a member of the Executive Council, chairs its meetings and thereby has a full right of participation in it. There is no position equivalent to a Chief Minister or Premier in the Council. The Legislative Assembly consists of eight elected members, the Chief Executive and the Director of Finance as non-voting ex officio members, and the Speaker. Three elected members represent the Camp constituency and five represent the Stanley constituency.97 The Commander British Forces and the Attorney General have the right to take part in the proceedings of the Legislative Assembly, the latter with the consent of the person presiding. Neither has the right to vote. Subject to the Constitution, the Governor, with the advice and consent of the Legislative Assembly, has the power to make laws for the peace, order and good government of the Falkland Islands. Acting with prior instructions from a Secretary of State, the Governor also has a reserved legislative power to push through a Bill if he or she considers it necessary. To become law all Bills must be assented to by Her Majesty or the Governor on Her behalf. The Governor, acting in his or her discretion but subject to the Constitution or any instructions given through a Secretary of State, may assent or refuse assent to a Bill or may reserve it for the signification of Her Majesty’s pleasure. But the Governor is required to reserve any Bill which in the Governor’s judgement is in any way repugnant to, or inconsistent with, the Constitution.98 Any law to which the Governor has assented may be disallowed by Her Majesty through a Secretary of State. Power is reserved to Her Majesty to legislate by Order in Council for the peace, order and good government of the Falkland Islands.

Courts The Constitution establishes a Supreme Court and a Court of Appeal for the Falkland Islands. The Supreme Court has unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law of the Islands. It consists of one judge, the Chief Justice. The Chief Justice is not resident in the Islands but visits as necessary. The Court of Appeal, which convenes as necessary, consists of a President, at least two Justices of Appeal, and the Chief Justice as an ex officio member of the Court, but the Chief Justice may not sit for the hearing and determination of an appeal against his or her own decision. Subordinate courts are established by

97

This may be altered by Ordinance, following a referendum in each constituency: see s 27(3). Unless instructed otherwise by a Secretary of State, the Governor must also not assent to certain classes of Bill unless the Bill includes a clause suspending its operation pending signification of Her Majesty’s pleasure: see Annex, para 5. 98

320 Annex local legislation,99 although the appointment of the Senior Magistrate is dealt with in the Constitution. Final appeal lies to the Judicial Committee of the Privy Council. Appeals to the Privy Council are provided for in a separate Order in Council,100 apart from the final right of appeal in fundamental rights cases brought under the Constitution.101 The courts of the Falkland Islands also have jurisdiction to deal with certain civil and criminal proceedings in respect of matters arising under the law of the British Antarctic Territory and South Georgia and the South Sandwich Islands.102

Law Most law in force in the Falkland Islands consists of legislation called Ordinances enacted by the local legislature, together with subordinate legislation made under them. The local legislation is supplemented by certain Acts of the United Kingdom Parliament and Orders in Council (including the Constitution) which have been extended to the Falkland Islands. In addition, the incorporation into the law of the territory of certain United Kingdom statutes and the common law and rules of equity for the time being applicable in England is provided for by sections 83 and 84 of the Interpretation and General Clauses Ordinance.103

Economy For a long time the Falkland Islands economy relied on wool production, and while farming is still important fisheries licensing is currently the main source of income for the Falkland Islands Government and provides stability for the economy. Exploratory drilling for hydrocarbons in Falkland Islands waters resumed in February 2010. The currency is the Falkland Islands pound, which has parity with the pound sterling. GIBRALTAR

Gibraltar is a rocky peninsula which adjoins the southern coast of Spain by a narrow sandy isthmus. It has a total land area of 5.8 square kilometres, and is nearly 5 kilometres from north to south. Across the Bay of Gibraltar lies the Spanish port of Algeciras, and the African coast is 32 kilometres across the Strait of Gibraltar. The highest point of the Rock of Gibraltar is 426 metres. The population is about 29,286 (2008 estimate), mostly of British, Genoese, Maltese, Spanish, Portuguese 99

Administration of Justice Ordinance (Laws of the Falkland Islands, Title 22). Falkland Islands (Appeals to Privy Council) Order 1985 (SI 1985/445, as amended by SI 2009/224 and 2009/3205). 101 Constitution s 19(7). 102 See Falkland Islands Courts (Overseas Jurisdiction) Order 1989 (SI 1989/2399, as amended by SI 2009/1737). 103 Laws of the Falkland Islands, Title 67. 100

Gibraltar 321 or Jewish descent. While English is the official language, Spanish is widely spoken. The famous Barbary macaques abound on the Rock. History In 711 the Berber commander Tariq ibn-Ziyad captured the Rock and built the Moorish Castle, part of which remains. (Gibraltar derives its name from the Arabic Jabal Tariq, meaning the mountain of Tariq.) Gibraltar was occupied by the Moors until 1462, when it was captured by Spain. In 1704 it was surrendered to a landing force of British and Dutch troops under the command of British Admiral Rooke. The first British Governor was appointed in 1707. In 1713 Gibraltar was ceded to Great Britain by Article X of the Treaty of Utrecht,104 and has been under British sovereignty ever since. Spain mounted several sieges of Gibraltar during the eighteenth century, culminating in the Great Siege of 1779–83, but all were successfully resisted. In 1922 a City Council was established and the first elections were held in Gibraltar. Until 1950, when the first Legislative Council was established, the Governor alone made local legislation, and until 1969 the Governor was not obliged to accept the advice of the local Executive Council on executive matters. The 1969 Constitution divided executive responsibility between the Governor and Gibraltar Ministers, the latter having responsibility for what were called ‘defined domestic matters’. The 1969 Constitution was replaced by the current Constitution in 2006. Under the Treaty of Utrecht Spain has a right of ‘first refusal’ should Britain decide to relinquish sovereignty over Gibraltar. Spain has campaigned vigorously over the years for the return of Gibraltar. In 1969 General Franco closed the frontier between Spain and Gibraltar, and it was only reopened in 1983 to pedestrians and in 1985 fully. The United Kingdom Government has stood by the commitment first enshrined in the preamble to the 1969 Constitution (and repeated in the current Constitution), that ‘Her Majesty’s Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes’. In referendums held in 1967 and 2002 the people of Gibraltar decisively rejected any transfer of sovereignty. Status Gibraltar is a British overseas territory acquired by cession. The government of Gibraltar is provided for by Royal prerogative powers. Constitution The current Constitution of Gibraltar is set out in Annex 1 to the Gibraltar Constitution Order 2006,105 and came into force on 1 January 2007. It was 104

British and Foreign State Papers vol I pt I p 613. Published in Supplement to the Gibraltar Gazette, No 3,574 (28 December 2006). Also published (though not itself a statutory instrument) under Selected Instruments in SI 2006, III, p 11503. 105

322 Annex negotiated between representatives of the British Government and the Gibraltar legislature. Section 2(a) of the Order provides for the Constitution to ‘have effect in Gibraltar, a part of Her Majesty’s dominions, known as the City of Gibraltar’. The Constitution contains a bill of fundamental rights and freedoms, which are enforceable in the courts of Gibraltar. The Queen is represented by a Governor. There is a Council of Ministers, and a legislative body called the Gibraltar Parliament. There are political parties, and the system has many features of the Westminster model. Executive authority is vested in Her Majesty the Queen, and is exercised on Her behalf by the Government of Gibraltar. Executive government is shared between the Governor and the Council of Ministers and individual Ministers. The Governor has special executive responsibility for external affairs, defence, internal security and the police, and such functions in relation to appointments to public offices and related matters as are conferred on him or her by the Constitution. Other matters are devolved to Ministers, except for any function the Constitution or any other law requires the Governor to exercise in his or her discretion. Matters which under the Constitution are the responsibility of Ministers do not cease to be so even though they arise in the context of the European Union, but the United Kingdom’s responsibility for compliance by Gibraltar with European Union law is expressly preserved. The Council of Ministers consists of a Chief Minister and a number of other Ministers prescribed by the Chief Minister, subject to a minimum of four and prescribed maxima depending on the number of Elected Members of the Parliament. The Governor appoints as Chief Minister the Elected Member of the Parliament who in his or her judgement is most likely to command the greatest measure of confidence among the Elected Members of the Parliament. The other Ministers are appointed by the Governor on the advice of the Chief Minister from among the Elected Members of the Parliament. Ministers are collectively responsible to the Parliament with respect to any matter for which a Minister has been charged with responsibility. The Legislature consists of Her Majesty and the Gibraltar Parliament. The Parliament consists of a Speaker and at least 17 Elected Members.106 The Speaker is appointed by the Parliament by resolution passed by a simple majority of its Members. The maximum parliamentary term is four years. The Legislature has power, subject to the Constitution, to make laws for the peace, order and good government of Gibraltar. To become law bills passed by the Parliament require the assent of Her Majesty or the Governor on Her behalf. The Governor may assent or withhold assent to a Bill or reserve it for the signification of Her Majesty’s pleasure. But unless authorised to assent by a Secretary of State, the Governor may only reserve any Bill which appears to him or her to be repugnant to or inconsistent with the Constitution, and may only withhold assent to any Bill which appears to him or her to be repugnant to good government or incompatible with any international legal obligation. The Parliament must not proceed on a Bill until six weeks after it has been published in the Gazette, unless the Chief Minister certifies that the Bill is too urgent to permit such a delay. Except with the

106 A number in excess of 17 may be prescribed by a law if approved by a two-thirds majority of the Members of the Parliament.

Gibraltar 323 consent of the Governor, the Parliament must not proceed on any Bill (including any amendment to a Bill) that, in the opinion of the Governor, concerns a matter for which he or she has special executive responsibility. The Governor also has a reserved legislative power with respect to matters for which he or she has special executive responsibility. There is no power of disallowance. Her Majesty retains power to legislate by Order in Council for the peace, order and good government of Gibraltar, including the amendment or revocation of the Constitution. The Constitution makes provision for the public service, and establishes a Public Service Commission, a Specified Appointments Commission, a Judicial Service Commission, and a Gibraltar Police Authority. It also makes provision for public finance, including independent audit, and for Crown Lands and a Mayor of Gibraltar. Following the judgment of the European Court of Human Rights in Matthews v United Kingdom,107 Gibraltar takes part in elections to the European Parliament, forming part of a combined electoral region of the United Kingdom and Gibraltar, the South West region.108

Courts The Constitution establishes a Supreme Court and a Court of Appeal. The Supreme Court consists of a Chief Justice and such number of Puisne Judges as may be prescribed by law. The Court of Appeal consists of a President, at least two Justices of Appeal, and the Chief Justice as an ex officio member for all purposes except in appeals from his own decisions. The Constitution provides for the circumstances in which final appeals may be brought to the Privy Council,109 and such appeals are also regulated by a separate Order in Council.110 Courts of summary jurisdiction are established by local legislation.111

Law Most of the law in force in Gibraltar consists of local Acts (before 2006 called Ordinances) enacted by the legislature of Gibraltar, and subordinate legislation made under such Acts. This body of local legislation is supplemented by certain Acts of the United Kingdom Parliament and Orders in Council that have been extended to Gibraltar. Local legislation also provides for the incorporation into Gibraltar law of a list of United Kingdom statutes; it also incorporates the common law and the rules of equity from time to time in force in England, so far as they may be applicable to the circumstances of Gibraltar and subject to such modifications thereto 107

Matthews v United Kingdom ECHR 1999-I, (1999) 28 EHRR 361. See further European Parliament (Representation) Act 2003 (2003 c 7), European Parliamentary Elections Act 2002 (2002 c 24) and SI 2003/1887, 2004/366, 2004/293, 2009/185 and 2009/186. 109 See Gibraltar Constitution s 66. 110 Gibraltar (Appeals to Privy Council) Order 1985 (SI 1985/1199, as amended by SI 2009/224 and 2009/3207). 111 Magistrates’ Court Act 1961 (Laws of Gibraltar, 1961-23). 108

324 Annex as such circumstances may require, save to the extent to which the common law or any rule of equity may from time to time be modified or excluded by any Order in Council or United Kingdom Act that applies to Gibraltar or any local Act.112 The incorporation of directly applicable European Union rules is provided for by section 3(1) of the (Gibraltar) European Communities Act 1972.113

Economy The main sectors of the economy are tourism, shipping and port services, financial services, gaming, e-commerce and British military contributions. The currency is the Gibraltar pound, which has parity with the pound sterling.

Regional Integration The United Kingdom’s accession to the European Communities in 1973 included Gibraltar, subject to several exceptions prescribed in or derived from the Treaty of Accession. Gibraltar is within the European Union subject to those exceptions.114 MONTSERRAT

Montserrat, which is one of the Leeward Islands in the Lesser Antilles island chain, is situated in the eastern Caribbean Sea 43 kilometres south-west of Antigua and 64 kilometres north-west of Guadeloupe. The island, which is volcanic, is 17 kilometres long and 11 kilometres wide, covering a total area of 102 square kilometres. Since the Soufriere Hills volcano began erupting in July 1995 the southern half of the island, including the former capital Plymouth, has become uninhabitable. All residents now live in the northern part of the island. The current population is about 5,000 (compared with about 13,000 before the volcano erupted). The island has always been rocky and mountainous with little in the way of beaches. Parts of it were, and still are, very green and tropical, one of the reasons for it being known as ‘the Emerald Isle’ of the Caribbean. The Government is currently based in the village of Brades, and a new capital is being developed at Little Bay, which hosts the island’s harbour.

History Although it was inhabited by Carib Indians at one time, Montserrat was discovered uninhabited by Christopher Columbus in 1493 and named after a monastery in Spain. The first settlers were English and Irish Catholics who came from St Kitts in 1632. 112 113 114

English Law (Application) Act 1962 (Laws of Gibraltar, 1962-17). See further ch 8 above. Laws of Gibraltar, 1972-18. See further ch 15 above.

Montserrat 325 They were followed by Catholics from among the early settlers in Virginia, and Oliver Cromwell sent some Irish political prisoners in 1649.115 The Irish link continues to this day as St Patrick’s Day is a public holiday in Montserrat. The island was captured twice by the French, in 1666 when it was restored to Britain by the Treaty of Breda, and again in 1782, when it was restored finally to Britain in 1783 by the Treaty of Versailles. British occupation of the island has been continuous since that time. In 1816 Montserrat was given a single government with Antigua and Barbados. In 1871 Montserrat became one of the five Presidencies within the newly-created Leeward Islands Federation. That Federation was dissolved,116 with each member becoming a separate colony, and in 1957 Montserrat became a colony within the Federation of the West Indies.117 When the West Indies Federation was dissolved in 1962,118 Montserrat was again governed as a separate colony, which it has been ever since. Montserrat gained some fame in 1979 when the Beatles producer, George Martin, opened the AIR recording studios there and many famous recording artists came to the island. And in the 1980s Montserrat was enjoying economic growth. There was some discussion of independence from the United Kingdom, and Montserrat’s 1989 Constitution119 contained recognition in its preamble that ‘the realisation of the right to self-determination must be promoted and respected in conformity with the provisions of the Charter of the United Nations’, at Montserrat’s request.120 However disaster struck in 1989 in the form of Hurricane Hugo, a force five hurricane which devastated 90 per cent of the island’s structures. Recovery was good but then fate struck again in 1995 when the Soufriere Hills volcano, which had no recorded history of activity, suddenly began to erupt. It erupted several times in the 1990s, most notably in 1997, with devastating social and economic consequences, and remains active. Reconstruction continues undeterred, demonstrating the strong and determined spirit of the people of this small, charming island which has had more than its fair share of misfortune over the last two decades.

Status Montserrat is a British overseas territory, acquired by settlement. The temporary interruption of British control by France, followed by restoration, does not affect the original title by settlement.121 Montserrat is not a British settlement for the purposes of the British Settlements Acts 1887 and 1945,122 having had a legislature otherwise than by virtue of those Acts. Power to provide for the government of Montserrat by Order in Council is conferred by the West Indies Act 1962.123 115

Davies, The Legal Status of British Dependent Territories, n 9 above, 38. Leeward Islands Act 1956 (1956 c 23). 117 For its Constitution see West Indies (Federation) Order 1957 (SI 1957/1364), made under the British Caribbean Federation Act 1956 (1956 c 63). 118 See West Indies Act 1962 (1962 c 19). 119 Montserrat Constitution Order 1989 (SI 1989/2401). 120 See Davies, The Legal Status of British Dependent Territories, n 115 above, 43; L Lewis, Fight for the Constitution of Montserrat (s.l., L Lewis, 1995; ISBN 976-8001-90-9) 28. 121 K Roberts-Wray, Commonwealth and Colonial Law, n 90 above, 855. 122 1887 c 54 and 1945 c 7. 123 1962 c 19. 116

326 Annex Constitution The current Constitution of Montserrat is contained in the Montserrat Constitution Order 2010.124 It was negotiated between representatives of the British Government and the Montserrat legislature, following a report by local Constitutional Commissioners. It contains a chapter on the fundamental rights and freedoms of the individual, enforceable in the High Court of the Eastern Caribbean Supreme Court. The Queen is represented in Montserrat by a Governor, who is assisted by a Deputy Governor who must be a Montserratian.125 There is a Cabinet and a Legislative Assembly, and there are political parties. Executive authority is exercised by the Governor on behalf of Her Majesty the Queen, and executive government is shared between the Governor, the Cabinet and Ministers. The Governor attends and presides at Cabinet meetings, which entitles him or her to participate fully at such meetings. The Governor has special responsibility for the conduct of any business of the Government with respect to defence, external affairs, the regulation of international financial services, internal security (including the police), and such functions as are conferred by the Constitution or any other law in relation to the public service. The Governor must keep the Premier fully informed concerning the general conduct of the Governor’s special responsibilities and the Premier may request information in respect of any particular matter related to them. The Governor, acting in his or her discretion and with the prior approval of a Secretary of State, may delegate responsibility for any of his or her special responsibilities, except for functions in relation to the public service, to the Premier or another Minister. But the Governor must delegate to a Minister responsibility for the conduct of external affairs within Caribbean regional organisations affecting Montserrat and other Caribbean regional affairs affecting, or of interest to, Montserrat. Other matters not specifically reserved to the Governor or another authority under the Constitution or any other law are devolved to Ministers, subject to the occasions specified, in either the Constitution or another law, on which the Governor is not required to act in accordance with the advice of Ministers. These include cases where the Governor is acting under instructions from Her Majesty through a Secretary of State, and any case which, in the Governor’s judgement, involves any of the Governor’s special responsibilities. The Cabinet consists of the Premier, three other Ministers, and the AttorneyGeneral and the Financial Secretary as ex officio members. The number of Ministers may be increased by a local law, but their number must never exceed that arrived at by subtracting one from the total number of elected members of the Legislative Assembly and then dividing by two. The Cabinet has the general direction and control of the government of Montserrat and is collectively responsible for it to the Legislative Assembly. The Deputy Governor has the right to attend and take part in meetings of the Cabinet but with no right to vote. The Governor appoints as Premier the elected member who demonstrates to the Governor’s satisfaction that he or she commands the confidence of the majority of the elected members of the Legislative Assembly. The other Ministers are appointed

124 125

SI 2010/2474. The term ‘Montserratian’ is defined in the Constitution s 107(2).

Montserrat 327 by the Governor on the advice of the Premier from among the elected members of the Assembly. There is a Leader of the Opposition appointed by the Governor, who is the member of the Legislative Assembly who in the Governor’s judgement is best able to command the support of the members of the Assembly in opposition to the Government. The Legislature consists of Her Majesty and the Legislative Assembly. The Legislative Assembly consists of nine elected members, and the Attorney-General and the Financial Secretary as ex officio members. The number of elected members may be increased by a local law. The Deputy Governor may attend and take part in meetings of the Assembly but may not vote. The Speaker is elected by the Legislative Assembly either from among the elected members other than members of the Cabinet or from among persons outside the Assembly who are qualified for elected membership. The Deputy Speaker is elected from among the elected members who are not members of the Cabinet. The Governor has a constitutional right to address the Assembly. The maximum parliamentary term is five years. Subject to the Constitution, the Legislature has power to make laws for the peace, order and good government of Montserrat. In order to become law Bills passed by the Legislative Assembly must be assented to by Her Majesty or the Governor on Her behalf. The Governor may assent or refuse to assent to a Bill or reserve it for the signification of Her Majesty’s pleasure, but is required to reserve certain Bills unless he or she has been authorised by a Secretary of State to assent to them. Any law assented to by the Governor may be disallowed by Her Majesty through a Secretary of State. But before any law is disallowed, a Secretary of State must notify the Governor (who will in turn notify the Speaker) of a period during which the law will not be disallowed to enable the Legislative Assembly to reconsider it. The Governor has no reserved legislative power. Power is reserved to Her Majesty to legislate by Order in Council for the peace, order and good government of Montserrat. The Constitution also contains extensive provisions relating to public finance, including independent audit, and the public service. It provides for the establishment of a Public Service Commission, an Electoral Commission and a Complaints Commission, and for standards in public life. It establishes a National Advisory Council to make recommendations to the Governor on defence, external affairs and internal security (including the police), and the exercise of emergency powers. The post of Director of Public Prosecutions is created for the first time. It requires the Premier, if authorised by a two-thirds majority in the Legislative Assembly, to ask the British Government to discuss amendment of the Constitution.

Courts The Constitution provides for the High Court and the Court of Appeal of the Eastern Caribbean Supreme Court to continue to have jurisdiction in Montserrat.126 The Court of Appeal is itinerant and sits in the island as necessary. Montserrat shares

126 Montserrat Constitution s 80 and Supreme Court Order 1967 (SI 1967/223, as amended by SI 1983/1108 and 2000/3060).

328 Annex a non-resident High Court judge with two other countries within the jurisdiction of the Eastern Caribbean Supreme Court. The Constitution also provides for the establishment by law of courts and tribunals subordinate to the Supreme Court. The Magistrate’s Court is established by local Act.127 Final appeal in civil and criminal matters lies to the Judicial Committee of the Privy Council. Appeals to the Privy Council are dealt with by special Order in Council,128 apart from the final appeal in fundamental rights cases brought under the Constitution.129

Law Most law in force in Montserrat is constituted by legislation, called Acts, enacted by the local Legislature of Montserrat, and subordinate legislation made under such Acts. The local legislation is supplemented by certain Acts of the United Kingdom Parliament and Orders in Council (which include the Constitution) that have been extended to Montserrat. United Kingdom legislation which has not been extended to Montserrat may be incorporated by local Act, and English common law and rules of equity from time to time in force in England form part of the law of Montserrat.130

Economy Montserrat’s economy has been badly affected by the volcano which has been erupting since the mid-1990s making the southern half of the island uninhabitable while destroying much of its remaining agricultural land and its high-end resident tourism. Montserrat depends heavily on financial assistance from the United Kingdom. It has some limited tourist activity. Its economic development will depend greatly upon future volcanic activity. The currency is the Eastern Caribbean dollar.

Regional Integration Montserrat is the only overseas territory which is a full member of both the Caribbean Community (CARICOM) and the Organisation of Eastern Caribbean States, some others being associate members. It is a member or associate member of a number of other Caribbean regional organisations. PITCAIRN, HENDERSON, DUCIE AND OENO ISLANDS

These islands form the only British overseas territory in the Pacific Ocean. Pitcairn Island is approximately 3 kilometres long and 1.5 kilometres wide, with a total 127

Magistrate’s Court Act (Laws of Montserrat, Cap 2.02). Montserrat (Appeals to Privy Council) Order 1967 (SI 1967/233, as amended by SI 1983/1108 and 2009/224). 129 Montserrat Constitution s 20(4). 130 Supreme Court Act (Laws of Montserrat, Cap 2.01) ss 13–17, 19 and 21. 128

Pitcairn, Henderson, Ducie and Oeno Islands 329 land area of 4.6 square kilometres. It is situated midway between New Zealand and Peru, at latitude 25.04 south and longitude 130.06 west, about 2,170 kilometres east south-east of Tahiti. Its population is around 50, all of whom live in the only settlement, Adamstown. The only means of access to the island is Bounty Bay, via longboats plying to and from ships moored offshore. There is no access by air. The official languages are English and Pitkern, a mixture of English and Tahitian. Henderson, Ducie and Oeno are uninhabited, but are occasionally visited. Henderson, the best example in the Pacific of an uplifted coral island, has a total land area of 37.3 square kilometres and is a UNESCO World Heritage Site. Ducie and Oeno are coral atolls.

History Pitcairn was discovered in 1767 by Captain Carteret of HMS Swallow, and named after Midshipman Robert Pitcairn, a 15-year-old crew member who first sighted the island. It was secretly settled in 1790 by Fletcher Christian and some other Bounty mutineers and the Polynesian men and women they brought with them from Tahiti, who found evidence of much earlier, but long abandoned, Polynesian settlement. British naval officers found the island in 1814, and the settlers were removed to Tahiti in 1831 but returned the same year. In 1838 Captain Elliot of HMS Fly visited Pitcairn and, as recorded in the ‘Register of Pitcairn’s Island’, took possession on behalf of the Crown. The island was uninhabited between 1856 and 1859 when the entire population was resettled on Norfolk Island. Not content to remain on Norfolk Island, two parties returned to Pitcairn in 1859 and 1864, since when the island has been continuously occupied. Ducie was discovered by Captain Edwards in 1791, Henderson by Captain Henderson in 1819, and Oeno in 1824 by Captain Worth of the whaler Oeno. In 1902 Captain Jones placed a board on each island stating that they were dependencies of Pitcairn and the property of the British Government, and British sovereignty was reaffirmed in a similar way in 1937. In the nineteenth century the settlers governed themselves in rudimentary fashion, with assistance from the captains of visiting Royal Navy vessels. Captain Elliot of HMS Fly drew up a form of constitution and a body of written laws which were adopted in November 1838, and the islanders established an elected magistrate and a Council. In 1892 this was replaced by a ‘Parliament’, which in turn was replaced by a Chief Magistrate, two committees and a Council in 1904. In 1898, the Pacific Order in Council 1893131 was applied to Pitcairn by direction of the Secretary of State under its article 6(2), thus bringing Pitcairn under the executive and legislative authority of the High Commissioner for the Western Pacific. The application of the 1893 Order to Pitcairn was revoked by the Pitcairn Order in Council 1952,132 which provided that the Governor of Fiji would also be Governor of Pitcairn and its dependencies, in place of the High Commissioner. On the independence of

131 132

SRO & SI Rev VIII, 597. SI 1952/459.

330 Annex Fiji in 1970, the 1952 Order was replaced by the Pitcairn Order 1970,133 which established the separate office of Governor of Pitcairn, Henderson, Ducie and Oeno Islands with power to make laws for the peace, order and good government of the islands. In 1964 the Local Government Ordinance134 established the current Island Council, presided over by a Mayor, with power to make regulations in certain fields, subject to alteration or revocation by the Governor.135

Status Pitcairn, Henderson, Ducie and Oeno Islands constitute a British overseas territory acquired by settlement.136 The territory is treated as a British settlement for the purposes of the British Settlements Acts 1887 and 1945,137 and power to provide for its government is conferred by those Acts.

Constitution The current Constitution is set out in Schedule 2 to the Pitcairn Constitution Order 2010.138 It was negotiated between representatives of the British Government and the Pitcairn Island Council. It starts with a set of ‘partnership values’, including the rule of law, good government and sound financial management, on which the partnership with the United Kingdom is to be based. It then sets out a catalogue of fundamental rights and freedoms of the individual, which are enforceable by the courts of the territory. The Constitution establishes the office of Governor, who is appointed by the Queen and exercises executive authority on Her behalf. In practice the office of Governor is held by the British High Commissioner in Wellington, New Zealand, and the Governor is assisted by staff in Wellington, Auckland and on Pitcairn. The Constitution formally establishes the Island Council, which is to be composed and have such functions in relation to the government of the islands as may be prescribed by any law, and requires the members of the Council to be elected in free and fair elections at regular intervals in such manner as may be prescribed by any law.139 There is also provision for an Attorney General of Pitcairn. The Governor has power, subject to the Constitution, to make laws (called Ordinances) for the peace, order and good government of the islands, normally acting after consultation with the Island Council. In doing so the Governor is not 133

SI 1970/1434. Laws of Pitcairn (2001 Revision), Cap XI. 135 For an interesting historical account, see D McLoughlin, Law and Order on Pitcairn’s Island: The Development of the System of Government and Laws of Pitcairn Island from 1791 to 1971, printed in the Laws of Pitcairn, rev edn 1971, available online at library.pnc.edu/pitcairn/pitcairn/govt-history15. shtml–United States. The author was at that time the Legal Adviser to the Governor of Pitcairn. 136 This was confirmed by the Judicial Committee of the Privy Council in Christian v R [2006] UKPC 47, [2007] 2 AC 400 (PC). 137 1887 c 54 and 1945 c 7. 138 SI 2010/244. This Order revoked the Pitcairn Order 1970 (SI 1970/1434, as amended by SI 2000/1340 and 2002/2638). 139 See Local Government Ordinance (Laws of Pitcairn (2001 Revision), Cap XI). 134

Pitcairn, Henderson, Ducie and Oeno Islands 331 obliged to act in accordance with the Council’s advice, but in any case where the Governor does not do so any member of the Council has the right to submit his or her views on the matter to a Secretary of State. The Governor also has an exceptional power to legislate without consulting the Council when instructed to do so by Her Majesty through a Secretary of State. Certain Ordinances must include a suspending clause until the signification of Her Majesty’s pleasure, unless approved in advance by a Secretary of State. Any Ordinance may be disallowed by Her Majesty through a Secretary of State. Power is reserved to Her Majesty to legislate by Order in Council for the peace, order and good government of the islands. Provision is also made for the Pitcairn Public Service, for independent audit of the public accounts of Pitcairn, and for an Ombudsman.

Courts The Constitution provides for the Pitcairn Supreme Court, consisting of a Chief Justice and such number (if any) of other judges as may be prescribed by law, and the Pitcairn Court of Appeal, composed of a President, two or more Justices of Appeal and the Chief Justice. None of the judges of these courts is resident in the territory, and they visit as necessary. Final appeal lies to the Judicial Committee of the Privy Council.140 The Magistrate’s Court is established by Ordinance, with provision for an Island Magistrate, who need not be legally qualified but must have resided on Pitcairn for at least five years, and other magistrates who must be legally qualified.141 The magistrates are appointed and have security of tenure under the Constitution.

Law Pitcairn has its own statute book of Ordinances and subordinate legislation made under them, in particular regulations made by the Island Council. Certain Acts of Parliament and Orders in Council have been extended to the islands. In addition, the Constitution provides that the common law, the rules of equity and the statutes of general application as in force in and for England for the time being are in force in Pitcairn, so far as local circumstances and the limits of local jurisdiction permit and subject to any existing or future Ordinance.142

Economy The economy of Pitcairn depends on subsistence farming and fishing, with income derived chiefly from the sale of postage stamps to collectors and honey and

140 Pitcairn (Appeals to Privy Council) Order 2000 (SI 2000/1816, as amended by SI 2009/224 and 2010/244). See also Pitcairn Constitution s 25(10), conferring a right of appeal in fundamental rights cases. 141 Judicature (Courts) Ordinance ss 10 and 11 (Laws of Pitcairn (2001 Revision), Cap II). 142 Pitcairn Constitution s 42. Identical provision was made by the Judicature (Courts) Ordinance s 16.

332 Annex handicrafts to passing ships. There is development assistance from the United Kingdom. The currency is the New Zealand dollar. ST HELENA, ASCENSION AND TRISTAN DA CUNHA

St Helena, Ascension and Tristan da Cunha is the name of the British overseas territory that until 2009 was known as ‘St Helena and Dependencies’.143 It consists of the South Atlantic islands of St Helena, Ascension and, in the Tristan da Cunha Group, Tristan da Cunha, Gough Island, Nightingale Island and Inaccessible Island. St Helena has an area of 122 square kilometres, and lies 1,930 kilometres from the west coast of Africa and 2,900 kilometres from South America. The population is 4,084 (2008 census). The capital is Jamestown. It is accessible only by sea, by the Royal Mail Ship St Helena, but the construction of an airport has been under discussion for some years. Ascension covers an area of 90 square kilometres, and lies 1,125 kilometres north-west of St Helena. The population is about 880, around 90 per cent of them from St Helena, though there are no permanent residents. The temporary inhabitants consist of British and American Air Force personnel, government officials, contract employees of the organisations established on the island, and their families. The administrative centre is Georgetown. Ascension is accessible by air, the United States Government having built Wideawake Airfield on the island during the Second World War. Tristan da Cunha has an area of 98 square kilometres, and lies 2,173 kilometres south of St Helena and 2,400 kilometres west of Cape Town. The population is 246 (2009). The only settlement is Edinburgh of the Seven Seas. The neighbouring islands of Nightingale and Inaccessible are uninhabited, while a team of South African meteorologists live on Gough Island. The Tristan da Cunha Group is accessible only by sea, and is the most remote inhabited archipelago in the world.

History St Helena was discovered by the Portuguese navigator Juan de Nova on 21 May 1502. The Portuguese used it as a port of call but kept its existence secret until a British captain, Thomas Cavendish, found it in 1588. It was then visited frequently by English and Dutch ships, and the Dutch formally claimed the island in 1633 but did not occupy it. In 1659 the East India Company took possession of the island and fortified it, authorised by a Charter granted by the Lord Protector, Richard Cromwell. The Dutch captured the island in 1673 but it was recaptured by the English four months later. In the same year a Royal Charter granted by Charles II confirmed the rights of the East India Company, and the Company held the island

143 The name change was effected by the St Helena, Ascension and Tristan da Cunha Constitution Order 2009 (SI 2009/1751) s 4(a). This Order established a new constitution for the territory. See also SI 2009/2744, which amends the British Nationality Act 1981 sch 6 to list the territory with its new name.

St Helena, Ascension and Tristan Da Cunha 333 until it was vested in the Crown by the Government of India Act 1833.144 Napoleon Bonaparte was exiled on St Helena from 1815 until his death there in 1821. Ascension was discovered by the Portuguese in 1501 and named by Alphonse d’Albuquerque who found it on Ascension Day 1503. It was uninhabited until a British garrison was stationed there to deny it to the French in 1815, when Napoleon was sent to St Helena. The island remained under Admiralty supervision until it was made a dependency of St Helena by Letters Patent in 1922.145 This status continued until a new constitution came into force on 1 September 2009.146 Tristan da Cunha was discovered and named in 1506 by the Portuguese navigator Tristao da Cunha. It was formally claimed by a British garrison stationed there in 1816. After the garrison was withdrawn in 1817 three men, one with his wife and children, chose to remain and founded the colony. The settlers ran the island themselves for over 100 years as an egalitarian community with local de facto leaders, first William Glass and then Peter Green. An Island Council was established in the 1930s and an Administrator was appointed in 1948. All of the islands in the archipelago were made dependencies of St Helena by Letters Patent in 1938.147 This status continued until a new constitution came into force on 1 September 2009.148

Status St Helena, Ascension and Tristan da Cunha now constitute a single British overseas territory under that name, with none of the other islands being dependencies of St Helena.149 All of the islands were originally colonies acquired by settlement. Ascension and Tristan da Cunha are British settlements for the purposes of the British Settlements Acts 1887 and 1945,150 and power to provide for their government by Order in Council is conferred by those Acts. St Helena is not a British settlement for the purposes of those Acts, power to provide for its government by Order in Council being conferred by the Saint Helena Act 1833.151

Constitution The current Constitution is set out in the Schedule to the St Helena, Ascension and Tristan da Cunha Constitution Order 2009.152 It was negotiated between representatives of the British Government and the St Helena Legislative Council and the 144

1833 c 85 s 112. Now called the Saint Helena Act 1833: see Statute Law Revision Act 1948 (1948

c 62). 145

SRO & SI Rev XX, 552. Superseded by St Helena Order in Council 1956 (SI 1956/414). See n 143 above. 147 SRO & SI Rev XX, 554. Superseded by St Helena Order in Council 1956 (above). 148 See n 143 above. 149 The 2009 Constitution states: ‘mindful of the fact that, while separate territories, St Helena, Ascension and Tristan da Cunha form a single territorial grouping under the Crown’; preamble, para (j). The islands are listed as a single British overseas territory in the British Nationality Act 1981, sch 6. 150 1887 c 54 and 1945 c 7. 151 1833 c 85. 152 SI 2009/1751. 146

334 Annex Ascension and Tristan da Cunha Island Councils. The three parts of the territory share the same Governor, Attorney General, Supreme Court and Court of Appeal. The Governor is appointed by the Queen, and exercises executive authority in each island on Her behalf. But otherwise the Constitution makes separate provision for the government of each part: Chapter 1 deals with St Helena, Chapter 2 Ascension, and Chapter 3 Tristan da Cunha. Each chapter starts with a common set of ‘partnership values’, including the rule of law, good government and sound financial management, on which the partnership of each island with the United Kingdom, and the relationship between each of the islands, is to ‘continue to be based’. Each chapter then sets out, in similar but not identical terms, a catalogue of fundamental rights and freedoms of the individual, which are enforceable by the superior courts of the territory. Thereafter the three chapters diverge in providing for the government of each part of the territory. In St Helena, the Governor chairs and is advised by an Executive Council, consisting of five members elected by the Elected Members of the Legislative Council from among their number, and the Chief Secretary, the Financial Secretary and the Attorney General as non-voting ex officio members. Subject to stated exceptions (including Ascension and Tristan da Cunha matters) the Governor must consult and act in accordance with the Council’s advice in exercising his or her functions under the Constitution or any other law. The Governor has special responsibility for defence, external affairs, internal security (including the police), defined public service matters, the administration of justice, finance and shipping. The Governor may act against the advice of the Council in cases involving these matters, and when he or she judges that the advice would involve an inconsistency with any of the ‘partnership values’. There are no Ministers, and no political parties. Instead there are ‘Council Committees’ (committees of the Legislative Council), to assist with executive government. Each Committee is chaired by an Elected Member of the Legislative Council, and may consist of Members and non-Members of that Council. The Governor, with the advice of the Executive Council, decides the number of Council Committees and their functions. The Legislature for St Helena consists of Her Majesty and the Legislative Council. The Legislative Council comprises a Speaker and a Deputy Speaker, twelve Elected Members, and the Chief Secretary, the Financial Secretary and the Attorney General as non-voting ex officio Members. The Legislature has power, subject to the Constitution, to make laws for the peace, order and good government of St Helena. (It therefore has no power to legislate for Ascension or Tristan da Cunha.) To become law Bills passed by the Legislative Council require the assent of Her Majesty or the Governor on Her behalf. The Governor, acting in his or her discretion, must either assent to a Bill or reserve it for the signification of Her Majesty’s pleasure, but the Governor must reserve certain Bills unless he or she has been authorised by a Secretary of State to assent to them. Any law to which the Governor has assented may be disallowed by Her Majesty through a Secretary of State. The Governor has no reserved legislative power. Chapter 1 of the Constitution also makes provision for a Public Accounts Committee, public finance including independent audit, the St Helena public service, and a Complaints Commissioner.

St Helena, Ascension and Tristan Da Cunha 335 In Ascension, the Governor (resident in St Helena) exercises executive power with the assistance of a resident Administrator and an elected Island Council. The Island Council is composed and has such functions in relation to the government of Ascension as may be prescribed by law.153 While Ascension shares with St Helena an Attorney General, who is resident on St Helena, the Attorney General is assisted by a Crown Counsel resident on Ascension. Subject to the Constitution the Governor, acting after consultation with the Island Council, may make laws for the peace, order and good government of Ascension. In doing so the Governor is not obliged to act in accordance with the Council’s advice, but in any case where the Governor does not do so any Council member has the right to submit his or her views on the matter to a Secretary of State. Any law enacted by the Governor may be disallowed by Her Majesty through a Secretary of State. Chapter 2 also makes provision for the Ascension public service and for public finance including independent audit. In Tristan da Cunha the Governor (resident in St Helena) exercises executive power with the assistance of a resident Administrator and an elected Island Council. The Island Council is composed and has such functions in relation to the government of Tristan da Cunha as may be prescribed by law.154 Subject to the Constitution the Governor, acting after consultation with the Island Council, may make laws for the peace, order and good government of Tristan da Cunha. In doing so the Governor is not obliged to act in accordance with the Council’s advice, but in any case where the Governor does not do so any Council member has the right to submit his or her views on the matter to a Secretary of State. Any law enacted by the Governor may be disallowed by Her Majesty through a Secretary of State. Chapter 3 also makes provision for the Tristan da Cunha public service and for independent audit of the public accounts. Power is reserved to Her Majesty to legislate by Order in Council for the peace, order and good government of St Helena, Ascension and Tristan da Cunha.

Courts The Constitution establishes a Supreme Court of St Helena, consisting of a Chief Justice and such number (if any) of other judges as may be prescribed by law, and a Court of Appeal of St Helena, composed of a President and two or more Justices of Appeal. It provides that these courts are also the Supreme Court and Court of Appeal for Ascension and Tristan da Cunha. Provision is made for these courts to sit within or outside the islands. None of the judges of these courts is resident in the territory, and they visit as necessary. Final appeal lies to the Judicial Committee of the Privy Council.155 There are separate magistrates’ courts for each of the islands, in practice staffed by local lay magistrates. The (legally qualified) Senior Magistrate in the Falkland Islands is also appointed as a magistrate for Ascension. The Constitution establishes

153

See Island Government (Ascension) Ordinance 2008 (Laws of Ascension, Ordinance No 7 of 2008). See Island Council Ordinance 1985 (Laws of Tristan da Cunha, Ordinance No 1 of 1985). 155 St Helena Court of Appeal (Appeal to Privy Council) Order 1964 (SI 1964/1846, as amended by SI 1990/991, 2009/224 and 2009/3204). See also Constitution ss 24(10), 140(10) and 206(10), conferring a right of appeal in fundamental rights cases. 154

336 Annex separate Judicial Service Commissions for St Helena and Ascension to give binding advice to the Governor on the appointment and removal of magistrates.

Law Apart from certain Acts of the United Kingdom Parliament and Orders in Council that extend to the territory (or to any part of it), the statute law in force consists of separate laws, called Ordinances, enacted for each of St Helena, Ascension and Tristan da Cunha. The incorporation into the law of St Helena of English statutes, common law and rules of equity is provided for in detail by sections 2 to 5 of the English Law (Application) Ordinance 2005.156 In turn, the incorporation of St Helena law into the law of Ascension and the law of Tristan da Cunha (including English law incorporated by the St Helena Ordinance of 2005) is provided for by the Application of St Helena Law (Ascension) Ordinance 1987157 and the Application of St Helena Law (Tristan da Cunha) Ordinance 1987.158

Economy In St Helena, the economy is supported by fisheries, agriculture, construction, tourism, and remittances from the many St Helenians working abroad, but about 60 per cent of the employment on the island is in the public service and the United Kingdom provides substantial budgetary aid and development assistance. The currency is the St Helena pound, which has parity with the pound sterling. Ascension is principally used by the United States Air Force as a missile tracking station, as an intermediate stop for Royal Air Force flights to the Falkland Islands, and by Cable and Wireless, the BBC, the Composite Signals Organisation and the European Space Agency. Most of the temporary inhabitants are employees of these ‘User’ organisations and their families. There is limited tourism. There is no aid from the United Kingdom. The currency is the St Helena pound. The economy of Tristan da Cunha relies chiefly on income from crayfishing, the sale of postage stamps and coins, and limited tourism. The island is largely self-sufficient, and there is modest development assistance from the United Kingdom. The currency is the pound sterling. SOUTH GEORGIA AND THE SOUTH SANDWICH ISLANDS

The territory of South Georgia and the South Sandwich Islands consists of ‘all islands and territories whatsoever between the 20th degree of west longitude and the 50th degree of west longitude which are situated between the 50th parallel of

156 157 158

Laws of St Helena, Ordinance No 10 of 2005. Laws of Ascension, Ordinance No 4 of 1987. Laws of Tristan da Cunha, Ordinance No 3 of 1987.

South Georgia and the South Sandwich Islands 337 south latitude and the 60th parallel of south latitude’.159 South Georgia lies 1,290 kilometres east-south-east of the Falkland Islands. It has a land area of 3,755 square kilometres, and is about 160 kilometres long with a maximum breadth of 32 kilometres. The terrain is mountainous, rising to 2,933 metres, with glacier-filled valleys. The mountains are largely covered by ice and snow throughout the year. The South Sandwich Islands are a chain of active volcanic islands about 240 kilometres long. The climate is Antarctic. The territory has no indigenous population, but the British Antarctic Survey maintains a permanent presence at a scientific research station on South Georgia. Argentina asserts a claim to sovereignty over the territory. The United Kingdom rejects this claim.

History South Georgia was probably discovered by de la Roche, a London merchant, in 1675. In 1775 Captain James Cook made the first landing on South Georgia and explored it, discovered the South Sandwich Islands, and formally took possession of both. Together with the British Antarctic Territory, South Georgia and the South Sandwich Islands were previously administered as the Falkland Islands Dependencies pursuant to Letters Patent of 1843, 1876 and 1892, and were defined in Letters Patent of 21 July 1908 and 28 March 1917.160 Most British acts of occupation and administration during the late nineteenth century and the early twentieth century related to meteorological and other scientific activities, and to whaling, including the granting of leases and licences to whaling companies.161 South Georgia became the centre for land-based whaling in the Southern Hemisphere, and the remains of whaling stations still exist, although commercial whaling ended in the 1960s. South Georgia and the South Sandwich Islands were legally established as a separate colony in 1985 by the South Georgia and South Sandwich Islands Order 1985.162

Status South Georgia and the South Sandwich Islands are a British overseas territory, the territories comprising which were acquired by settlement and annexation.163 It is

159

South Georgia and South Sandwich Islands Order 1985 (SI 1985/449) s 3. SRO & SI Rev VII 583 and 585. 161 The history of British occupation and administration of the Falkland Islands Dependencies is set out in detail in the UK Applications instituting proceedings against Argentina and Chile at the International Court of Justice in May 1955: see ICJ Pleadings, Antarctica Cases (United Kingdom v Argentina; United Kingdom v Chile), 1955. The cases were not determined because neither Argentina nor Chile accepted the jurisdiction of the Court. 162 SI 1985/449 s 3. As a result, presumably, of an oversight, it was not listed as a separate British overseas territory in the British Nationality Act 1981 (1981 c 6), sch 6, until 2001: see British Nationality Act 1981 (Amendment of Schedule 6) Order 2001 (SI 2001/3497). 163 In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529, Lord Bingham states (at para 2): ‘SGSSI was acquired by the Crown by settlement. Its government was established under the British Settlements Acts 1887 and 1945.’ Halsbury’s 160

338 Annex treated as a British settlement for the purposes of the British Settlements Acts 1887 and 1945,164 and power to provide for the government of the territory by Order in Council is conferred by those Acts.

Constitution The current Constitution of South Georgia and the South Sandwich Islands is contained in the South Georgia and South Sandwich Islands Order 1985.165 It establishes the office of Commissioner for the territory, who is appointed by the Queen. In practice the office of Commissioner has been held by the person for the time being holding the office of Governor of the Falkland Islands. The Commissioner exercises executive authority, and may constitute offices for the territory and make appointments to them. The Commissioner must consult and act in accordance with the advice of the Officer commanding Her Majesty’s Forces in the South Atlantic on matters relating to defence or internal security (except the police). The Commissioner must, whenever practicable, consult the Executive Council of the Falkland Islands before exercising any function that might affect the Falkland Islands, and must take account of such views as the Council may then express. The Commissioner may make laws, styled Ordinances, for the peace, order and good government of the territory. Any law made by the Commissioner may be disallowed by Her Majesty through a Secretary of State. The Commissioner is given express power to establish by Ordinance a Supreme Court and other courts for the territory, to constitute judgeships and other related offices and to make appointments to such offices. Power is reserved to Her Majesty to legislate by Order in Council for the peace, order and good government of the territory.

Courts The South Georgia and South Sandwich Islands Order 1985 does not itself establish any courts. The Supreme Court and Magistrate’s Court are established by Ordinances.166 The 1985 Order enables courts established by Ordinance to sit within the territory or elsewhere. By virtue of the Falkland Islands Courts (Overseas Jurisdiction) Order 1989,167 the Supreme Court and the Magistrate’s Court of the Falkland Islands respectively have jurisdiction to hear and determine any civil or criminal proceedings

Laws of England, Vol 13 (2009) 5th edn, para 863 states: ‘The territories of South Georgia and South Sandwich Islands were acquired by the Crown by annexation and settlement dating from the late eighteenth and early nineteenth centuries ...’. 164

1887 c 54 and 1945 c 7. SI 1985/449, as amended by SI 1995/1621. 166 Administration of Justice Ordinance 1949 (Laws of the Falkland Islands, Ordinance No 1 of 1949) s 69 of which extends the Ordinance to South Georgia and the South Sandwich Islands; Application of Colony Laws (No 2) Ordinance 1970 (Laws of South Georgia and the South Sandwich Islands, Ordinance No DS3 of 1970), which incorporates the Administration of Justice (Amendment) Ordinance 1970 (Laws of the Falkland Islands, Ordinance No 1 of 1970). 167 SI 1989/2399, as amended by SI 2009/1737. 165

Sovereign Base Areas of Akrotiri and Dhekelia 339 in respect of matters arising under the law of South Georgia and the South Sandwich Islands which are within the jurisdiction of the Supreme Court or the Magistrate’s Court of South Georgia and the South Sandwich Islands. A local magistrate is appointed from among the British Antarctic Survey staff serving on South Georgia. There is no Court of Appeal for South Georgia and the South Sandwich Islands. Instead the territory shares a Court of Appeal with the Falkland Islands.168 Final appeal lies to the Judicial Committee of the Privy Council.169

Law The statute law in force in South Georgia and the South Sandwich Islands mainly comprises Ordinances enacted by the Commissioner, and instruments made under them. These local laws are supplemented by certain Acts of the United Kingdom Parliament and Orders in Council that have been extended to the territory. Local legislation has incorporated English statutes, common law and rules of equity to the same extent as the Falkland Islands.170

Economy The main sources of revenue are fishing licences, the sale of stamps, customs and harbour dues, landing fees and trans-shipment fees. Tourism is increasing. The currency is the pound sterling. SOVEREIGN BASE AREAS OF AKROTIRI AND DHEKELIA

The Sovereign Base Areas of Akrotiri and Dhekelia are situated in the island of Cyprus. Their boundaries were determined by commissioners whose demarcation is given effect, under section 2(3) of the Cyprus Act 1960,171 by Order in Council.172 They were retained under British sovereignty for defence purposes when Cyprus became independent in 1960, by virtue of Article 1 of the Treaty concerning the establishment of the Republic of Cyprus.173 In the accompanying Exchange of Notes and Declaration by the United Kingdom Government regarding

168

Ibid s 9(1). Falkland Islands (Appeals to Privy Council) Order 1985 (SI 1985/445, as amended by SI 2009/224 and 2009/3205). 170 Application of Colony Laws Ordinance 1977 (Laws of South Georgia and the South Sandwich Islands, Ordinance No DS1 of 1977), which incorporates the Interpretation and General Clauses Ordinance (Laws of the Falkland Islands, Title 67) ss 83 and 84 of which deal with the incorporation of English law. 171 1960 c 52. 172 Sovereign Base Areas of Akrotiri and Dhekelia (Boundaries) Order in Council 1962 (SI 1962/396). 173 UKTS No 4 (1961); Cmnd 1252. The contracting parties are the United Kingdom, Greece and Turkey of the one part, and the Republic of Cyprus of the other part. This treaty is often called the Treaty of Establishment. 169

340 Annex the Administration of the Sovereign Base Areas (sometimes known as ‘Appendix O’), the United Kingdom Government declared the main objects of the administration of the Areas to be: (1) the effective use of the Areas as military bases, (2) full cooperation with the Republic of Cyprus, and (3) protection of the interests of those resident or working in the Areas. It also declared its intention (among others) not to develop the Areas for other than military purposes, and not to set up and administer ‘colonies’. Akrotiri is in the south of the island, near Limassol. Dhekelia is in the southeast, near Larnaca. The total land area is 254 square kilometres, with 123 square kilometres at Akrotiri and 131 square kilometres at Dhekelia. Both Areas include military bases, as well as farmland and residential land. The administrative centre is at Episkopi, in Akrotiri. About 14,000 people live in the Sovereign Base Areas. Of these, about 7,000 are Cypriots who mainly work on the military bases or on farmland within the Areas. The remainder are British military and civilian personnel and their families. While the Foreign and Commonwealth Office has principal responsibility in London for the administration of all the other British overseas territories, for the Sovereign Base Areas it is the Ministry of Defence.

History In 1878, the Sultan of Turkey agreed by treaty ‘to assign the Island of Cyprus to be occupied and administered by England’.174 While the United Kingdom was at war with Turkey in 1914 Cyprus was annexed by Order in Council.175 In 1923 the annexation was recognised by the Treaty of Lausanne,176 and provision was made for its government as the Colony of Cyprus by the Cyprus Letters Patent 1925 and the Cyprus (Legislative Council) Order in Council 1925.177 Pursuant to section 1 of the Cyprus Act 1960,178 Cyprus became an independent Republic on 16 August 1960.179 The Republic is defined in section 2 of the Act so as to exclude the Sovereign Base Areas, in accordance with the Treaty concerning the establishment of the Republic of Cyprus by which British sovereignty was retained over those Areas. Section 2(1) of the Act provides that nothing in section 1 shall affect Her Majesty’s sovereignty or jurisdiction over the Sovereign Base Areas. Section 2(1)(b) provides: [T]he power of Her Majesty to make or provide for the making of laws for the said areas shall include power to make such laws (relating to persons or things either within or outside the areas) and such provisions for the making of laws (relating as aforesaid) as appear to Her Majesty requisite for giving effect to arrangements with the authorities of the Republic of Cyprus.

174 175 176 177 178 179

Convention of Defensive Alliance, Hertslet’s Treaties, Vol 14, p 1170. Cyprus (Annexation) Order in Council 1914 (SRO 1914 No 1629, SRO & SI Rev, 577). Cmd 1929. SRO & SI Rev V, 582, and SRO 1925, 1719. 1960 c 52. Republic of Cyprus Order in Council 1960 (SI 1960/1368).

Sovereign Base Areas of Akrotiri and Dhekelia 341 Status The Sovereign Base Areas of Akrotiri and Dhekelia constitute a British overseas territory which, before 16 August 1960, formed part of the colony of Cyprus acquired by annexation or possibly by conquest or cession.180 Power to provide for the government of the Sovereign Base Areas is the Royal prerogative, supplemented by section 2(1)(b) of the Cyprus Act 1960.

Constitution The current Constitution of the Sovereign Base Areas is set out in the Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960.181 It establishes the office of Administrator, who is appointed by Her Majesty and must be a serving officer of Her Majesty’s Forces. In practice the office of Administrator is held by the Commander British Forces Cyprus. The Administrator exercises executive authority, may appoint a Deputy, and may constitute offices and make appointments to them. The Administrator may make laws for the peace, order and good government of the Sovereign Base Areas. This power is expressed to include power to make laws, relating to persons or things either within or outside the Sovereign Base Areas, for the purpose of giving effect to defined types of arrangements with the authorities of the Republic of Cyprus. Any law made by the Administrator may be disallowed by Her Majesty through a Secretary of State. The power of Her Majesty to legislate for the Sovereign Base Areas was confirmed and amplified by section 2(1)(b) of the Cyprus Act 1960, so it was unnecessary to reserve this power in the 1960 Order in Council.

Courts The Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 does not itself establish any courts. Local legislation establishes as first instance courts a Resident Judge’s Court with exclusive original jurisdiction in criminal and some civil cases, and a Senior Judges’ Court with exclusive original jurisdiction in certain civil matters.182 The Senior Judges’ Court also has jurisdiction to hear and determine appeals from decisions of the Resident Judge’s Court and (though it must be differently constituted when doing so) from its own first instance decisions. The Resident Judge resides in the territory, and there are no local magistrates. The judges of the

180

See Roberts-Wray, Commonwealth and Colonial Law, n 90 above, 108–10. SI 1960/1369, as amended by SI 1966/1415. 182 Courts (Constitution and Jurisdiction) Ordinance 2007 (Laws of the Sovereign Base Areas, Ordinance 5 of 2007). 181

342 Annex Senior Judges’ Court visit as and when required. Final appeal lies to the Judicial Committee of the Privy Council.183

Law The statute law in force in the Sovereign Base Areas consists mainly of Ordinances enacted by the Administrator, together with laws of the former colony of Cyprus (some since amended by Ordinance) that were in force in the Areas immediately before 16 August 1960 and have not been repealed since that date.184 These local laws are supplemented by certain Acts of the United Kingdom Parliament and Orders in Council that have been extended to the Sovereign Base Areas. The incorporation of English statutes, common law and rules of equity is provided for in section 33 of the Courts (Constitution and Jurisdiction) Ordinance 2007.185 The incorporation of directly applicable European Union rules is provided for by section 3 of the European Community (Protocol Measures) Ordinance 2004.186 In paragraph 3(2) of the Exchange of Notes and Declaration regarding the Administration of the Sovereign Base Areas, the United Kingdom Government declared: ‘The laws applicable to the Cypriot population of the Sovereign Base Areas will be as far as possible the same as the laws of the Republic’.

Economy The principal economic activities are agriculture and the provision of services to the military. The currency is the euro,187 as in the Republic of Cyprus.

Regional Integration The Sovereign Base Areas are within the European Union to the extent set out in a Protocol agreed at the time of the accession of the Republic of Cyprus to the Union.188 TURKS AND CAICOS ISLANDS

The Turks and Caicos Islands are situated in the Atlantic Ocean and lie at the southeast tip of the Bahamas island chain about 145 kilometres north of the island forming

183 Sovereign Base Areas of Akrotiri and Dhekelia (Appeals to Privy Council) Order in Council 1961 (SI 1961/59, as amended by SI 2009/224). 184 See the provisions for the continuation of ‘existing law’ in the Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 s 5. 185 See n 182 above. 186 Laws of the Sovereign Base Areas, Ordinance 11 of 2004. 187 Euro Ordinance 2007 (Laws of the Sovereign Base Areas, Ordinance 18 of 2007). 188 Protocol No 3. See further ch 15 above.

Turks and Caicos Islands 343 Haiti and the Dominican Republic and 925 kilometres south-east of Miami. They consist of some 40 islands and cays, which are split by a deep water channel. To the north-west of the channel lie the Caicos Islands, which include North, West, Middle and South Caicos and Providenciales (of which all but West Caicos are permanently inhabited), and to the south-east lie the Turks Islands, which include Grand Turk, where the territory’s capital Cockburn Town is situated, and Salt Cay. Although most of the population lives on Providenciales, and the commercial and tourist centres of the territory are based there, the seat of government is Grand Turk. But there are also government offices on Providenciales. Together the islands and cays of the territory cover an area in the region of 430 square kilometres and include significant wetland and reef habitats and over 300 kilometres of pristine white beach. The population is about 36,605 (2008 estimate).

History The Turks and Caicos Islands were discovered in 1512 by Juan Ponce de Leon, although some claim Columbus made landfall there in 1492. They appear originally to have been inhabited by Taino Indians189 but by 1512 were apparently uninhabited. Visitors started coming regularly to the islands from Bermuda in 1678 to collect salt, and some settled there. (The salt traders created the salt pans that can still be seen on some of the islands.) British occupation of the islands has been largely continuous since then although the Spanish and later the French took an interest in the islands in the 1700s with the latter apparently occupying Grand Turk more than once, most recently in 1783 before it was restored to Britain. In 1766 a King’s Agent (Andrew Symmer) was appointed to reside in the islands to ensure the rights of the British Crown. Following the American war of independence colonial loyalists began to settle in the islands, but most had moved on by 1820.190 According to Roberts-Wray191 ‘[t]he exercise of authority in the early days is not easy to understand’. He goes on to say that ‘it appears that regulations for the management of salt ponds and the preservation of order, approved by the Crown in 1781 in the face of objections from Bermuda, were made in Bahamas; but it was not until 1799 that, despite protests by the Bermudians, the islands were placed under the Government of the Bahamas’. In 1848 Queen Victoria granted a constitution by Royal Charter and the islands became a separate colony with their own Legislative Council and President who administered the Government. By Order in Council made under the Turks and Caicos Islands Act 1873192 the islands were annexed to, and became part of, Jamaica (unlike the Cayman Islands which were a dependency of Jamaica). The effect of the Order was that the Governor and Legislature of Jamaica had the same jurisdiction, powers and authority over the Turks and Caicos Islands as they each did over Jamaica. It was with Jamaica that the islands became part of the Federation of the West Indies in 1957. 189 190 191 192

See www.turksandcaicos.tc/history/index.htm. See www.tcimall.tc. See Roberts-Wray, Commonwealth and Colonial Law, n 90 above, 862. 1873 c 6; and see SRO & SI Rev XI, 107.

344 Annex The Cayman Islands and Turks and Caicos Islands Act 1958193 repealed the 1873 Act, and separated the Turks and Caicos Islands from Jamaica, also conferring a power on Her Majesty to create a separate Government and legislature for the territory. The powers under the 1958 Act were exercised in 1959 to provide for the Turks and Caicos Islands to have their own administrator under the authority of the Governor of Jamaica.194 The islands remained within the Federation of the West Indies by virtue of the 1958 Act until the West Indies Act 1962195 was used to dissolve the Federation and give the islands a new constitution in 1962.196 The 1962 Constitution (as re-made in 1965)197 continued in force until it was replaced by a new constitution in 1976,198 which remained in force until 1986. In July 1986 a Commission of Inquiry, chaired by Sir Louis Blom-Cooper QC, concluded that the Chief Minister and two other Ministers had engaged in ‘unconstitutional behaviour, political discrimination and administrative malpractice’ and were ‘unfit to hold ministerial office’. It also found that ‘the Leader of the Opposition party and a senior Opposition figure have been involved in a conspiracy to commit public order offences in order to overthrow the Government’.199 A year earlier, a previous Chief Minister and another Minister had been convicted of drug offences in Miami and sentenced to several years’ imprisonment. The British Government responded by suspending ministerial government in the islands200 and conferring enhanced powers on the Governor.201 Following a constitutional review a new constitution was put in place in 1988.202 This restored ministerial government to the islands and remained in place until it was replaced by the 2006 Constitution.203

Status The Turks and Caicos Islands are a British overseas territory, acquired by settlement. But they are not a British settlement for the purposes of the British Settlements Acts

193

1958 c 13. See the Turks and Caicos Islands (Constitution) Order 1959 (SI 1959/864, as amended by SI 1959/1046). 195 1962 c 19. 196 The Turks and Caicos Islands (Constitution) Order 1962 (SI 1962/1649). 197 The 1962 Order, n 196 above which purported to come into force on 6 August 1962, was inadvertently not laid before Parliament. It was therefore revoked and its provisions reproduced in the Turks and Caicos Islands (Constitution) Order 1965 (SI 1965/1861) with retrospective effect to 6 August 1962. The 1965 Order made certain amendments to the 1962 Constitution, effective from the commencement date of that Order, including conferring certain functions on the Governor of the Bahamas, in particular the power to instruct the Administrator of the Turks and Caicos Islands, and providing that appeals from the courts of the islands would lie to the Court of Appeal of the Bahamas instead of the Court of Appeal of Jamaica. 198 See SI 1976/1156, as amended by SI 1979/919 and 1982/1075. 199 Report of Commission of Inquiry, Cm 21 (1986-87). 200 See SI 1986/1157, 1986/1158, 1987/934, 1987/1271 and 1987/1829. 201 Michael Bradley CMG, QC, who had previously served as an Attorney General in several territories, was appointed as Governor in 1987 to oversee the situation and, following a constitutional review, the reintroduction in the islands of representative government under new, stricter, constitutional conditions. 202 See SI 1988/247, as amended by SI 1993/1248 and 2002/2637. 203 See SI 2006/1913, as amended by SI 2009/701. 194

Turks and Caicos Islands 345 1887 and 1945,204 having been brought under the jurisdiction of the legislature of Jamaica by the Turks and Caicos Islands Act 1873.205 The current power to provide for the government of the Turks and Caicos Islands by Order in Council is conferred by the West Indies Act 1962.206

Constitution The Turks and Caicos Islands Constitution is contained in Schedule 2 to the Turks and Caicos Islands Constitution Order 2006.207 It was negotiated between representatives of the British Government and the Turks and Caicos Islands legislature following a report by a local Constitutional Review Commission. When brought into force, that Constitution originally provided for ministerial government through a Cabinet and a House of Assembly to exercise legislative powers. However, following a Commission of Inquiry conducted by Sir Robin Auld, which issued its report on 31 May 2009208 and concluded that there was a high probability of systemic corruption in government and the legislature and among public officers in the islands, parts of that Constitution were suspended. This was done by the Turks and Caicos Islands Constitution (Interim Amendment) Order 2009209 which came into force on 14 August 2009. That Order suspended ministerial government and dissolved the House of Assembly, and provided instead for the temporary governance of the territory by the Governor. The 2009 Order expires after two years, ie on 14 August 2011, unless it is continued in force or revoked sooner by Order in Council. The United Kingdom Government intends to restore the principles of good government and sound financial management to the Islands before elections are held. It has stated that there will be no simple return to the status quo ante, and that the end result must be a system of government which gives the people of the Turks and Caicos Islands, the United Kingdom Government and the international community confidence that the basic principles of good governance will be upheld, and that this will mean a greater degree of oversight by the United Kingdom Government than existed before August 2009. The United Kingdom has also engaged a constitutional and electoral reform expert to look at issues relating to the constitution and the electoral system. Further comment in this Annex on the constitution refers to the position under the 2009 Order unless otherwise stated. The executive authority of the Turks and Caicos Islands is vested in Her Majesty and is exercised on Her behalf by the Governor, either directly or through subordinate officers. All powers, duties and functions of government which previously lay with the Cabinet, the Premier or any other Minister, the Leader of the Opposition, the Cabinet Secretary, the Speaker or Deputy Speaker or the House of Assembly, under the Constitution or any other law are temporarily vested in the Governor, 204

1887 c 54 and 1945 c 7. 1873 c 6. 206 1962 c 19. 207 SI 2006/1913. 208 The Report had not been published in full at the time of writing. A redacted version of the Report can be found on the website of the United Kingdom Foreign and Commonwealth Office. 209 SI 2009/701, as amended by SI 2009/1755. 205

346 Annex acting in his or her discretion. The Governor can be instructed by the Secretary of State in the exercise of any of his or her functions. The Governor may consult an Advisory Council and a Consultative Forum established by the 2009 Order, but is not bound by their advice. The Governor, acting in his or her discretion, may make laws for the peace, order and good government of the Turks and Caicos Islands. Any law made by the Governor may be disallowed by Her Majesty through a Secretary of State. Power is reserved to Her Majesty to legislate by Order in Council for the peace, order and good government of the territory. The Governor is assisted by a Deputy Governor,210 appointed in pursuance of instructions given by Her Majesty through a Secretary of State, and a Chief Executive,211 who is appointed by the Governor acting in his or her discretion, and who, under the authority of the Governor, is the head of the public service. The 2006 Constitution established a Public Service Commission, a Judicial Service Commission and the office of Complaints Commissioner. With the exception of the Chairmen, the offices of all members of the Public Service Commission and the Judicial Service Commission, as well as the office of Complaints Commissioner, were rendered vacant by the 2009 Order.212 Persons have since been appointed to fill these vacancies. There is also provision in the Constitution for the establishment by law of a Register of Interests.213 The 2006 Constitution contains a chapter on fundamental rights and freedoms of the individual which are enforceable by the courts of the territory. These were unaffected by the 2009 Order, except that it suspended section 6(2)(g) which gave every person charged with a criminal offence when charged on information in the Supreme Court the right to trial by jury.

Courts The 2006 Constitution (as amended) establishes a Supreme Court and a Court of Appeal for the Turks and Caicos Islands. The Supreme Court consists of a Chief Justice and such number of other judges as may be determined by the Governor, acting in his or her discretion. The Court of Appeal consists of a President and two Justices of Appeal, or such other number of Justices of Appeal, not being less than two, as may be determined by the Governor, acting in his or her discretion. Subordinate courts are established by ordinary legislation.214 Final appeal lies to the Judicial Committee of the Privy Council. Appeals to the Privy Council are provided for in a separate Order in Council,215 apart from the final right of appeal in fundamental rights cases brought under the Constitution.216

210 Since the suspension of parts of the Constitution, this office was left vacant after the retirement of the previous Deputy Governor (who was a Belonger as previously required by the Constitution). 211 See SI 2009/701 sch 2 s 4, which created this office. 212 See SI 2009/701 s 4. 213 Turks and Caicos Islands Constitution s 98, as amended by SI 2009/701, sch 2 s 12. 214 Magistrates Courts Ordinance (Laws of the Turks and Caicos Islands (1998 Revision), Cap 12). 215 Turks and Caicos Islands (Appeal to Privy Council) Order 1965 (SI 1965/1863, as amended by SI 1973/1084 and 2009/224). 216 Turks and Caicos Islands Constitution s 18(4).

Virgin Islands 347 Law Most law in force in the Turks and Caicos Islands is constituted by legislation, called Ordinances, enacted by the territory legislature, and subordinate legislation made under such Ordinances. The local legislation is supplemented by certain Acts of the United Kingdom Parliament and Orders in Council (including the Constitution) that have been extended to the islands. United Kingdom legislation which has not been extended to the Islands may be incorporated by local law, and the common law and rules of equity form part of the law of the Turks and Caicos Islands.217 Some laws of the Bahamas and Jamaica still form part of the law of the islands.

Economy The economy of the Turks and Caicos Islands is based mainly on tourism, although there is also an international financial services industry. The islands use the US dollar.

Regional Integration The Turks and Caicos Islands are an associate member of the Caribbean Community (CARICOM) and are a member or associate member of a number of other Caribbean regional organisations. VIRGIN ISLANDS

The Virgin Islands, which are often referred to as the British Virgin Islands to distinguish them from the neighbouring United States Virgin Islands, lie 145 kilometres east of Puerto Rico. They comprise around 60 islands, islets and cays. Their total land area is only 153 square kilometres, but they cover around 3,445 square kilometres of sea. The most populated island is Tortola, covering 54 square kilometres, and the territory’s capital, Road Town, is situated there. The Islands’ population is approximately 28,000 (2008 estimate), with most inhabitants living on the largest islands of Tortola, Virgin Gorda, Anegada and Jost van Dyke.

History The Virgin Islands were discovered by Christopher Columbus in 1493. In 1672 the British Governor of the Leeward Islands annexed Tortola for the Crown. In 1680 English planters settled on Virgin Gorda, and that island and Anegada were annexed to the Crown. Following petitions from the settlers in 1756 and 1773, an ‘Assembly

217

Supreme Court Ordinance (Laws of the Turks and Caicos Islands (1998 Revision) Cap 11 s 3(4).

348 Annex and House of Representatives’ was created for the Islands by a Proclamation issued by the Captain-General of the ‘Leeward Charibee Islands’ pursuant to Letters Patent issued by the King. A Constitution Ordinance in 1867 abolished the original Assembly, created a new Legislative Council, and authorised the Governor to make laws with the advice of the Legislative Council.218 In 1902 the Islands’ Legislature empowered the General Legislature of the Leeward Islands to make constitutional laws for the Virgin Islands, and in 1927 a Leeward Islands Act abolished the Virgin Islands Legislative Council and vested legislative authority in the Leeward Islands Governor.219 Legislative power was only restored to the Virgin Islands in 1953.220

Status The Virgin Islands are a British overseas territory acquired by settlement, but are not a British settlement for the purposes of the British Settlements Acts 1887 and 1945.221 Power to provide for the government of the Virgin Islands by Order in Council is conferred by the West Indies Act 1962.222

Constitution The current Constitution of the Virgin Islands is set out in the Virgin Islands Constitution Order 2007.223 It is the result of negotiations between representatives of the British Government and the Virgin Islands, following the report of a Constitutional Review Commission established within the Virgin Islands. It contains a chapter on the fundamental rights and freedoms of the individual, which are enforceable by the High Court of the Eastern Caribbean Supreme Court. The Queen is represented in the Islands by a Governor, who is assisted by a Deputy Governor. There is a Cabinet and a House of Assembly, and political parties. Executive authority is exercised by the Governor on behalf of the Queen. Executive government is shared between the Governor and the Cabinet. The Governor presides at Cabinet meetings and may therefore participate fully in them. The Governor has special responsibility for external affairs, defence (including the armed forces), internal security (including the police), the administration of the courts and, subject to the Constitution, the terms and conditions of service of public officers. Other matters are devolved to Ministers, subject to the specified occasions on which the Governor is not required to act on the advice of Ministers. These occasions include cases where the Governor is acting under instructions from Her Majesty through a Secretary of State, and any case which, in the Governor’s opinion, involves any 218

Virgin Islands Ordinance No 5 of 1867. Constitution Ordinance 1902 (Virgin Islands Ordinance No 1 of 1902); Constitution (Virgin Islands) Act 1927 (Leeward Islands Revised Laws, 1927, Cap 82). 220 General Legislative Council (Revocation of Competency) Ordinance 1953 (Virgin Islands Ordinance No 7 of 1953). 221 1887 c 54 and 1945 c 7. 222 1962 c 19. 223 SI 2007/1678. 219

Virgin Islands 349 of the Governor’s special responsibilities. Defined aspects of external affairs are delegated to Ministers.224 The Cabinet consists of a Premier, four other Ministers, and the Attorney General as an ex officio member. The number of Ministers in the Cabinet may be increased by a local law if the number of elected members of the House of Assembly is correspondingly increased. The Cabinet has responsibility for formulating and directing the implementation of policy relating to every aspect of government except for those matters which are the responsibility of the Governor under the Constitution, and the Cabinet is collectively responsible to the House of Assembly for its policies and their implementation. The Governor appoints as Premier the person recommended by the majority of elected members of the House of Assembly from the party holding the majority of the seats of elected members. If there is no such party or recommendation the Governor, acting in his or her discretion, appoints the person he or she thinks is best able to command the support of a majority of the elected members of the House. Other Ministers, one of whom is appointed as Deputy Premier, are appointed by the Governor on the advice of the Premier. There is a Leader of the Opposition. The Governor appoints to this position the person recommended by a majority of the members of the opposition party with most seats in the House. If there is no such party or recommendation, the Governor appoints the person who, in his or her judgement, is best able to command the support of the members of the House in opposition to the Government. The Legislature consists of Her Majesty and the House of Assembly. The House of Assembly consists of a Speaker, 13 elected members, and the Attorney General as an ex officio member without a vote. Nine of the elected members are elected from single-member constituencies, and four are elected from a single electoral district consisting of the Islands as a whole. The Speaker is elected by the elected members of the House from among its elected members or persons qualified to be elected members, other than Ministers. The Deputy Speaker is elected by the elected members of the House from among those of its members who are not members of the Cabinet. The maximum parliamentary term is four years. The Legislature has power, subject to the Constitution, to make laws for the peace, order and good government of the Virgin Islands. To become law Bills passed by the House of Assembly require the assent of Her Majesty or the Governor on Her behalf. The Governor may assent to a Bill or reserve it for the signification of Her Majesty’s pleasure, but is required to reserve certain Bills unless he or she has been authorised by a Secretary of State to assent to them. Laws to which the Governor has assented may be disallowed by Her Majesty through a Secretary of State, but the House of Assembly must be given time to reconsider a law before disallowance. The Governor has a reserved legislative power in case of urgent necessity to comply with any international obligation applicable to the Virgin Islands. Power is reserved to Her Majesty to legislate by Order in Council for the peace, order and good government of the territory. The Constitution also makes provision for public finance and the public service, and establishes a Public Service Commission, a Teaching Service Commission,

224

See further ch 13 above.

350 Annex a Judicial and Legal Services Commission, a Human Rights Commission, a National Security Council, a Complaints Commissioner and a Register of Interests.

Courts The Constitution provides for the High Court and the Court of Appeal of the Eastern Caribbean Supreme Court225 to continue to have jurisdiction in the Virgin Islands. The Court of Appeal is itinerant and sits in the Islands as necessary. Two High Court judges are resident in the Virgin Islands. The Commercial Division of the High Court, which opened in 2009, is based in the Virgin Islands. The Constitution also provides for the establishment by law of courts and tribunals subordinate to the Supreme Court. Magistrates’ courts are established by local Act.226 Final appeal in civil and criminal matters lies to the Judicial Committee of the Privy Council. Appeals to the Privy Council are mainly dealt with by special Order in Council,227 apart from the final right of appeal in fundamental rights cases brought under the Constitution.228

Law Most law in force in the Virgin Islands is constituted by legislation, called Acts, enacted by the local legislature of the Virgin Islands, and subordinate legislation made under such Acts. This local legislation is supplemented by certain Acts of the United Kingdom Parliament and Orders in Council (including the Constitution) that have been extended to the Virgin Islands. Local laws may also incorporate United Kingdom legislation, and the common law and rules of equity, as part of the law of the Virgin Islands. Sections 13 to 21 of the Eastern Caribbean Supreme Court (Virgin Islands) Act229 incorporate the rules of common law and equity from time to time in force in England.

Economy The economy of the Virgin Islands depends on tourism and international financial services. The establishment of international business companies is a specialisation of the Islands, and more than 500,000 of them are registered there. The Islanders’ income derives very largely from the service industry. The currency used in the Virgin Islands is the US dollar (unlike other members and associate members of the Organisation of Eastern Caribbean States, which use the Eastern Caribbean dollar). 225 Established by the Supreme Court Order 1967 (SI 1967/223, as amended by SI 1983/1108 and 2000/3060). 226 Magistrate’s Code of Procedure Act (Laws of the Virgin Islands, Cap 44). 227 Virgin Islands (Appeals to Privy Council) Order 1967 (SI 1967/234, as amended by SI 1983/1108 and 2009/224). 228 See s 31(9). 229 Laws of the Virgin Islands, Cap 80.

Virgin Islands 351 Regional Integration The Virgin Islands are an associate member of the Caribbean Community (CARICOM) and the Organisation of Eastern Caribbean States. They are also a member or associate member of a number of other Caribbean regional organisations.

Index acquisition of territories, 6–8 acting Governors, 48–49 affirmations of Governors, 50 age of consent, homosexual, 151, 160 airspace, 262 Akrotiri see Sovereign Base Areas of Akrotiri and Dhekelia amendments to territories’ constitutions see under constitutional arrangements Anguilla, 1, 2, 6, 290 acquired by settlement, 7 constitution, 59–60, 293–95 constituent powers, 14–15, 18 constitutional review negotiations, 34 courts, 295 Decolonisation Committee, and, 249 economy, 295 executive authority, 82–86 external affairs, 225, 229–30, 240 Governor, 35, 37, 43, 47 Deputy Governor, 53–54 emergency powers, 192, 193–94, 195–96 external affairs, 229 instructions, 86 powers to act against advice, 91 public order and security, 182, 184 reserved legislative power, 64–65 special responsibilities, 87–89 history, 290–93 human rights, 153, 156, 171, 173–74 derogation during emergencies, 161 detention under emergency laws, 163–64 independence, 279, 282–83 judicial authority, 99, 102, 105–106, 108 Judicial Service Commission, 95–96, 111 judiciary, 114, 116,118, 121–22 law, 137, 144–45, 148, 295 legislative body, 62–63 nationality and belonger status, 205–6 public finance, 210, 214, 218–20 public service, 95–96 regional integration, 295 status, 293 see also British overseas territories (‘the territories’) annexation, acquisition by, 6, 7 prerogative power, and see prerogative powers appeals see under judicial authority appointment: Attorney-General, 95, 128–30 Complaints Commissioners, 93, 172 Deputy Governors, 53 Governor’s powers of, 44–45, 94, 184–85 of Governors, 36

Argentina sovereignty claims by see under British Antarctic Territory; Falkland Islands; South Georgia and the South Sandwich Islands armed forces, 11, 177–81, 302 Ascension see St Helena, Ascension and Tristan da Cunha assent, 47, 73–75 assistance to the territories: financial assistance: from the EU, 12, 210, 223, 269 from the UK, 12, 210, 221–23 humanitarian assistance, 221–23, 269 Association of Caribbean States (ACS), 231 Attorney-General, role of see under Law Officers audit, 217–20 see also public finance Australia, 5, 286 belongers and belonger status see nationality and belonger status Bermuda, 1, 2, 296 acquired by settlement, 7 constitution, 29–30, 60–61, 297–98 constituent powers, 14–15, 18 constitutional review negotiations, 34 courts, 298 disallowance limited, 75 economy, 299 EU, and, 268, 278 executive authority, 82–86 external affairs, 225, 229–30, 237–39, 240, 243–45 general entrustments, 229–30, 237–39, 243–45, 259–61 Governor and Commander-in-Chief, 35, 37, 177 consultation, 86 defence, 176 Deputy Governor, 53 emergency powers, 192, 195–96 external affairs, 229 public order and security, 182–84 special responsibilities, 87–89 history, 296 human rights, 151–55, 156, 173–74 Bermuda Human Rights Act (1981), 154–55, 170 derogation during emergencies, 161–62 detention under emergency laws, 164 Human Rights Commission, 154, 170–71 Ombudsman, 93, 171, 172–73

Index 353 independence, 279 judicial authority, 103–4, 107, judiciary, 114, 115–16, 118, 121 law, 136, 137, 139, 144, 148, 298 legislative body, 62–63 Law Officers, 124–26, 129–34 local defence forces, 177 nationality and belonger status, 206–7, 208 population, 1 public finance, 210–15, 218 public service, 95 regional integration, 299 status, 296–97 see also British overseas territories (‘the territories’) borrowing and lending see under public finance British Antarctic Territory, 1, 2, 299 acquisition by annexation, 7 Commissioner, 35, 46 emergency powers, 192–93, 195–96 executive authority, 81–82 legislative authority, 62 constitution, 59, 300 constituent powers, 14–16 courts, 300–301 defence, 182 ECHR not extended to, 11 economy, 301 executive authority, 81–82 external affairs, 225–26 extradition, 189–90 history, 299–300 human rights, 173 judicial authority, 99, 106, 108–10 law, 136, 137–38, 141, 143–44, 301 Law Officers, 124 nationality and belonger status, 204 size, 1 sovereignty claims by Argentina and Chile, 1, 262–63 status, 300 see also British overseas territories (‘the territories’) British Indian Ocean Territory, 1, 2, 301–2 acquired by cession from France, 7, 138 armed forces stationed in, 11, 178 US forces, 11, 178 Commissioner, 35, 46 emergency powers, 192–93, 195–96 executive authority, 81–82 legislative authority, 62 constitution, 59–60, 303–4, 305–10 prerogative power, and, 14, 19–20, 22, 57, 68–69 UK taking close control, 32 courts, 304 defence, 11, 178–80 Diego Garcia, armed forces stationed on, 11, 178–80, 302 ECHR not extended to, 11 economy, 305 executive authority, 81–82 extradition, 189–90 history, 302–3

human rights, 173 judicial authority, 98, 100, 106, 108–10 law, 136, 138, 141, 143–44, 304–5 Law Officers, 124 nationality and belonger status, 202–3, 205 public finance, 210 sovereignty claim by Mauritius, 1, 262–63 status, 303 see also British overseas territories (‘the territories’) British Islands, the, 5 British overseas territories (‘the territories’): boundaries, 8–9 colonies, as see colonies Commonwealth, and see Commonwealth constitutional arrangements see constitutional arrangements courts see judicial authority; judicial review; sources of law defence and security see defence, public order and security and emergency powers executive authority and controls see executive authority and controls extent and nature of, 2–6 external affairs and relations see external relations EU, and see European Union (EU) and the territories Governors see Governor, office of human rights protection see human rights in the territories international law, and see external relations; territories in international law judicial authority and systems see judicial authority law see judicial authority; legislative authority and controls; sources of law Law Officers see Law Officers laws see legislative authority and controls; sources of law local political control, 91–92 means of acquisition, 6–8 importance of manner of acquisition, 7–8 statements of the executive conclusive as to Crown territory, 8 nationality see nationality and belonger status prerogative power, and see prerogative powers public finance see public finance termination of British sovereignty see termination of British sovereignty British possessions, the territories as, 5 British settlements: British Settlements Acts (1887 and 1945), 15–16, 19, 20 territories acquired by settlement, and, 7 territories, as, 7 British Virgin Islands see Virgin Islands Canada, 5, 148 Caribbean Community (CARICOM), 231, 242, 256, 261, 295, 299, 316, 328, 347, 351

354 Index Cayman Islands, 1, 2, 311 acquired by settlement, 7 Complaints Commissioners, 93 constitution, 58–59, 312–14 constituent powers, 14–15, 17–18 constitutional review negotiations, 32–33 referendum, 31 courts, 315 economy, 315 executive authority, 81, 82–86 external affairs, 225, 230–37, 239–40 general entrustments, 234–37, 241–43, 260 Governor, 35, 37, 38–39, 43, 47 consultation, 89–90, 256 Deputy Governor, 53–54 emergency powers, 192, 195–96 external affairs, 230–34 instructions, 89–90 public order and security, 183, 185 reserved legislative power, 64–65 special responsibilities, 88–89, 90 history, 311–12 human rights, 152, 173–74 Complaints Commissioner, 172 derogation during emergencies, 162–63 detention under emergency laws, 163–64 enforcement of protective provisions, 166–69 Human Rights Commission, 170 new constitution containing fundamental rights chapter, 155–60 hurricanes, 11 independence, 280 judicial authority, 99–100, 104–5, 107 Judicial and Legal Services Commission, 95–96, 112–13 judiciary, 114–15, 118–19, 121, 123 law, 137–38, 142, 148–49, 315 legislative body, 63 Law Officers, 124–25, 128, 131–34 nationality and belonger status, 206–8 public finance, 210–11, 214, 217–20 public service, 95–96 regional integration, 316 status, 312 see also British overseas territories (‘the territories’) cession, acquisition by, 6, 7, 19, 138, 143 courts, establishing, 98 prerogative power, and see prerogative powers Channel Islands and Isle of Man, 5–6, 93, 204, 256, 272, 282 Charter of Fundamental Rights of the EU, 273 Chief Executive, 54 Chile, sovereignty claim by see under British Antarctic Territory Citizenship see Nationality and Belonger Status colonies, 5, 6, 137–38 colonial boundaries, 8–9 Colonial Laws Validity Act (1865), 67–70, 72, 78, 99–100 Colonial Regulations, 42 petitions, 52 territories as, 4, 68

Committee of 24 (C24) see Decolonisation Committee Committee system, territories with, 84 common law, incorporation by operation of, 137–38, 143 Commonwealth, 9, 23, 148 citizens voting in European Parliament elections, 274 extradition, 189–90 independence, and, 282, 285 Complaints Commissioners, 93, 171–73 see also human rights in the territories conquest, acquisition by, 6, 7, 58, 138, 143 courts, establishing, 98 prerogative power, and see prerogative powers constitution Orders, 20 constitutional arrangements, 9–10, 14–34, 290–351 constitutional amendment and review, 29–34 procedure, 31–32 provisions for local amendment, 29–30 substance of recent constitutional reforms, 32–34 constitutional relationship between the territories and the UK, 22–28 courts, 28 Crown as undivided realm, 23–24 Crown in right of different governments, 24–28 Parliament and the territories, 22–23 government, 9–10 executive authority and controls see executive authority and controls Governors see Governor, office of separate legal entities, 24–28 legal basis for territories’ constitutions, 14–21 Anguilla Act (1980), 18 Bermuda Constitution Act (1967), 18 British Settlements Acts (1887 and 1945), 15–16 Order in Council, 14, 19–20 prerogative powers only, 19–20 statutory powers, 15–19 Cyprus Act (1960), 19 judicial control of constitution Orders, 20–21 Parliamentary scrutiny of constitution Orders, 20 Saint Helena Act (1833), 16–17 West Indies Act (1962), 17–18 legislative authority and controls see legislative authority and controls separate constitutional units, 9, 14, 24–28 consular relations and external representation, 240–41 see also external relations consultation: Governors see under Governor, office of treaties, on, 256 controls: executive see executive authority and controls informal means of control, 94

Index 355 judicial controls see under judicial authority legislative see legislative authority and controls local political control, 91–92 Conventions, UN, 157, 174 Council of Europe, 169 territorial application provisions in Conventions, 254 courts see judicial authority; judicial review Crown: Crown as undivided realm, 23–24 Crown Dependencies, 6 Crown in right of different governments, 24–28 different capacities of the Crown, 24–26 government of overseas territories distinct from that of UK, 27–28 Crown land, 27, 303, 311, 323 power to dispose of, 45 see also prerogative powers; sovereignty; United Kingdom (UK) Cyprus, 19, 277 EU and Sovereign Base Areas, 274–77 means of acquisition, 7 see also Sovereign Base Areas of Akrotiri and Dhekelia Declarations, UN, 248, 251, 252 decolonisation after Second World War, 1, 280 Decolonisation Committee (Committee of 24/C24), 248–51, 262 defence, public order and security and emergency powers, 175–96 defence, 11, 175–82 Ascension, 180–81 British Antarctic Territory, 182 British Indian Ocean Territory, 178–80 constitutional responsibility of Governors, 175–77 forces of other countries in the territories, 178–81 local defence forces and garrisons of UK forces, 177–78 Sovereign Base Areas, 181 visits by non-British armed forces, 181 emergency powers see under emergencies and natural disasters Governor’s roles see under Governor, office of public order and security see public order and security police forces, 11 retention of territories for, 1 dependent territories, 3–4 Deputy Governors see under Governor, office of derogation from fundamental rights and freedoms under emergency powers, 160–63 see also human rights in the territories detention under emergency laws, 163–64 see also human rights in the territories Dhekelia see Sovereign Base Areas of Akrotiri and Dhekelia Diego Garcia see under British Indian Ocean Territory

Director of Public Prosecutions see under Law Officers disallowance, 75–76 disarmament and humanitarian law measures, 191 discrimination, 159–60 Eastern Caribbean Supreme Court: Court of Appeal, 105–6, 295, 327–28, 350 establishment, 105, 122 High Court of Justice, 108, 293, 295, 326, 327–28, 348, 350 judges, 105, 108, 114, 116, 118, 121–22 Judicial and Legal Service Commissions, and, 111, 112, 113 jurisdiction: Anguilla, 105–6, 108, 114, 116, 118, 121–22, 145, 293, 295 Montserrat, 105–6, 108, 114, 116, 118, 121–22, 145, 326, 327–28 Virgin Islands, 105–6, 108, 114, 116, 118, 121–22, 145, 348, 350 education, 157 emergencies and natural disasters: derogation from fundamental rights and freedoms under emergency powers, 160–63 detention under emergency laws, 163–64 emergency powers of Governors, 11, 47, 65–66, 137, 191–96 Bermuda, 195 Cayman Islands, 195 Emergency Powers Order in Council (1939), 192–93 Leeward Islands (Emergency Powers) Order in Council (1959), 193–94 Montserrat, 193–94, 195 other local legislation, 195–96 Virgin Islands, 194 humanitarian assistance, 221–23 EU, from, 269 hurricanes on Cayman Islands, 11 volcanic eruptions on Montserrat, 11, 161, 193–94 entrustments, 234–39, 257–61 ad hoc entrustments, 257, 260 categories of entrustment, 257 general entrustments, 234–39, 257–61 Bermuda, 229–30, 237–39, 243–45, 259–60 Cayman Islands, Virgin Islands and Montserrat, 234–37, 241–43, 259–260 Gibraltar, Anguilla, Turks and Caicos Islands 259–60 increase in, 259 parties to treaties, 260–61 territories joining international organisations, 257 treaties, concluding, 258–61 Tax Information Exchange Agreements (TIEAs), 259–260 visits by foreign Heads of State, 257 European Atomic Energy Community (Euratom Treaty), 278 European Commission, 267–70, 272, 276

356 Index European Commission on Human Rights, 157, 169 European Convention on Human Rights (ECHR), 11, 148, 151–52 Bermuda Human Rights Act (1981), and, 154–55 derogation during emergencies, 161–62 detention under emergency laws, 163 enforcement of protective provisions, and, 166, 169 judicial review, and, 92–93 liability of the UK for adverse judgments, 224 modern fundamental rights chapters, and, 155–60 older fundamental rights chapters, and, 152–54 prisoners and compatibility of removal with ECHR, 188–89 territories, application to, 173–74 see also human rights in the territories European Court of Human Rights, 148, 160, 169–70, 173, 254, 273, 323 petitions to, 173 see also human rights in the territories European Court of Justice, 148, 266, 270–74 European Development Fund, 269 European Parliament, 268, 273–74, 276 European Union (EU) and the territories, 13, 264–78 Cayman Islands, Virgin Islands and Montserrat, and, 232 common foreign and security policy, 277–78 Council of the European Union, 268, 276 Euratom Treaty, 278 financial assistance to the territories, 12, 210, 223, 269 financial liability, 224 Gibraltar see under Gibraltar ‘overseas countries and territories’ under TFEU, 13, 265–70 Sovereign Base Areas see under Sovereign Base Areas of Akrotiri and Dhekelia Treaty of Lisbon, 264, 277 Treaty on European Union, 264–65, 277 Treaty on the Functioning of the European Union (TFEU), 265–78 Gibraltar, 271–74 overseas countries and territories, 266–71 citizenship of the EU, 270–71 Overseas Association Decision, 268–70 territorial application of the treaty, 264–66 Sovereign Base Areas, 274–77 treaty-making, and, 256–57, 259–60 executive authority and controls, 10, 79–97 controls over executive government, 89–94 Complaints Commissioners, 93 controls in the legislative field, 89 informal means of control, 94 instructions, 89–90 judicial control, 92–93 local political control, 91–92 other powers to act against advice, 90–91 special responsibilities, 87–89, 90

executive government in the territories, 79–89 executive powers typically reserved to the Governor, 86–87 exercise of executive powers, 84–86 power to exercise executive authority, 79–81 principal executive authorities, 81–84 special responsibilities of Governors, 87–89 executive powers reserved to the Crown, 24 locally-enacted legislation, controls on see under legislative authority and controls principal executive authorities, 81–84 territories with a Committee system, 84 territories with a Ministerial system, 82–84 territories without a local executive body, 81–82 public service, the, 94–97 executive statements conclusive as to Crown territory, 8 expenditure see under public finance external relations, 12, 225–45, 253 constitutional responsibility, 225–34 Anguilla and Bermuda, 229–30 Cayman Islands, Virgin Islands and Montserrat, 230–34 Falklands Islands, 227–28 Gibraltar, 228–29 Pitcairn, Ascension and Tristan da Cunha, 226–27 St Helena, 227 territories with no substantial population and the Sovereign Base Areas, 226 consular relations and external representation, 240–41 extradition see extradition general entrustments, 234–39, 257–61 Bermuda, 229–30, 237–39, 243–45, 259–60 Cayman Islands, Virgin Islands and Montserrat, 234–37, 241–43, 259–60 Gibraltar, 259–60 legislative action and controls, 239–40 see also territories in international law extradition, 189–91 external relations, and, 241 extraterritoriality, 70–71, 78 Falkland Islands, 1, 2, 316 acquired by settlement, 7 armed forces stationed in, 11, 177–78 constitution, 29, 58, 59, 73, 318–19 constituent powers, 14–16 constitutional review negotiations, 32–33 new constitution containing fundamental rights chapter, 155–60 public consultation, 31 courts, 319–20 Decolonisation Committee, and, 249–50 economy, 320 executive authority, 79–80, 84–86 external affairs, 225–28, 239–40 Governor, 35, 37, 47, 48–49 assent, 74 Chief Executive, 54

Index 357 Complaints Commissioner appointing, 93, 172 consultation, 89 , 183, 227 defence, 176–77 emergency powers, 192–93, 195–96 external affairs, 227–28 powers to act against advice, 90–91, 176, 183, 227 public order and security, 183–84 reserved legislative power, 64–65 special responsibilities, 88–89, 176 history, 316–17 human rights, 152 , 173–74 Complaints Commissioner, 171–72 derogations during emergencies, 162 detention under emergency laws, 163–64 enforcement of protective provisions, 169 new constitution containing fundamental rights chapter, 155–60 invasion, 279 judicial authority, 99–100, 104–11 judiciary, 116, 118, 121 law, 137, 141, 144, 148, 320 legislative body, 63 Law Officers, 124, 126, 131 local defence forces and garrisons of UK forces, 177–78 local political control, 91–92 nationality and belonger status, 199, 205–6, 208 public finance, 210–11, 213–14, 218, 220–21 public service, 96–97 sovereignty claim by Argentina, 1, 262 shared sovereignty, 279, 289 transfer of UK sovereignty, 279 status, 317 see also British overseas territories (‘the territories’) France, 6, 7, 138, 249 general entrustments see entrustments Gibraltar, 1, 2, 320–321 acquired by cession from Spain, 7, 138 armed forces stationed in, 11, 178 constitution, 29, 59–60, 321–23 constitutional review negotiations, 32–33 new constitution containing fundamental rights chapter, 155–60 prerogative power, and, 14, 19–20, 22, 57, 68–69 referendum, 31 courts, 323 Decolonisation Committee, and, 249–50 disallowance, no power of, 75, 77 economy, 324 EU, and, 13, 56, 141–42, 148–49, 199, 264–66, 270–74, 277–78 external relations, and, 228–29 financial assistance, 223 nationality and citizenship, 270–71, 274 executive authority, 80–86 external affairs, 225, 228–29, 239–40, 274 general entrustments, 259–61 extradition, 189–90

Governor and Commander-in-Chief, 35, 37, 45, 47, 177 assent, 74 defence, 177 emergency powers, 192–93, 195–96 external affairs, 228 office of Deputy Governor discontinued, 54 public order and security, 184–85, 189–90 reserved legislative power, 64–65 history, 321 human rights, 152, 171, 173–74 derogation during emergencies, 162 detention under emergency laws, 164 enforcement of protective provisions, 165, 169 new constitution containing fundamental rights chapter, 155–60 judicial authority, 98, 102–5, 108 Judicial Service Commission, 95–96, 111–12 judiciary, 115, 117–19, 121–22 law, 136, 137, 139, 141–44, 148, 323–24 EU legislation, 274, 324 legislative body, 62–63 local defence forces and garrisons of UK forces, 177–78 nationality and belonger status, 199, 206, 270–71, 274 public finance, 210–16, 218–20 public service, 95–96 regional integration, 324 sovereignty claim by Spain, 1, 262–63, 266 termination of UK sovereignty, 279, 288–89 status, 321 see also British overseas territories (‘the territories’) government see constitutional arrangements Governor, office of, 9, 35–54 acting Governors, 48–49 authority of the office of Governor, 38–39 constrained by constitution of the territory, 38, 43 colonial regulations, 42 constitutional review negotiations, 32–33 consultation, 81–82, 86–87 appointments, 95, 96, 184–85 defence, 176, 183 instructions, and, 89–90, 91, 96 other powers to act against advice, 90–91 visits by foreign Heads of State, 257 defence, 11 constitutional responsibility for, 175–77 emergency powers see under emergencies and natural disasters deputies, 49–50, 51 Deputy Governors, 48, 49, 53–54 appointments, 53, 94 belonger status, 53 purposes and functions , 53–54 emergency powers see under emergencies and natural disasters executive functions, 43–46, 81–82, 84 assignment of responsibilities to Ministers, 44 constrained by constitution of the territory, 38, 43

358 Index executive powers typically reserved to the Governor, 86–87 judicially reviewable 38, 50–51, 92 power to constitute offices, 45 power to dispose of Crown land, 45 power to prorogue or dissolve the legislative body, 44 powers of appointment, 44–45 powers of pardon, 46 powers to act against advice, 90–91 responsibility for the public service, 44 special responsibilities, 43–44 see also executive authority and controls external affairs and relations, 225–26 see also external relations Governors’ deputies, 49–50, 51 Her Majesty’s Representative, 9, 35, 36–37 instructions to Governors, 39–42 controls over executive government, 89–90, 91 defence and security, 176, 183 executive controls on locally-enacted legislation, 72–73 external relations, 225 instructions from a Secretary of State, 40–42, 72, 73, 86, 89–90, 96, 225 judicial review of giving of instructions, 92 public service, and, 94 Royal Instructions, 39–40, 72–73, 86 seeking instructions, 91 judicial functions, 38, 47–48 see also judicial authority judicial review, exercise of functions subject to, 38, 50–51, 92 exceptions, 51 legal liability, 50–52 civil liability, 51 criminal liability, 52 judicially reviewable, 38, 50–51 privilege, 51–52 legislative functions, 46–47 Governor as legislature, 10, 37, 46, 62, 214 power of assent, 47, 73–75 reserved legislative powers, 47, 64–65 see also legislative authority and controls less populated territories: exercising executive power in, 10, 81–82, 84, 89, 94, 182 exercising legislative powers, 10, 37, 46, 214 public finance, 210, 214 nationality and citizenship, 204 oaths or affirmations, 50 permanently populated territories: advised by elected executive bodies, 10, 37 bound by advice from elected executive bodies, 10 petitions, 52–53 position and status, 36–38 appointments, 36 executive authority, 37 head of government, 9, 37, 54

powers: to act against advice, 90–91, 176, 183, 227 of appointment, 44–45 of assent, 47, 73–75 to constitute offices, 45 to dispose of Crown land, 45 of pardon, 46 to prorogue or dissolve the legislative body, 44 public finance, 210–11, 214–15 see also public finance public order and security, 11, 182–84 emergency powers see under emergencies and natural disasters police forces, and, 184 public service, and, 94–97 appointments to, 94 delegation of powers of appointment, 94–95 police as members of, 184 reserved powers: executive powers, 86–87 legislative powers, 47, 64–65 role and functions, 37–38 executive functions, 43–46 judicial functions, 47–48 legislative functions, 10, 37, 46–47 special responsibilities, 87–89, 90 staff, 54 title of the office of Governor, 35–36 visits by foreign Heads of State, 257 Hague Conference on Private International Law, 254 Her Majesty in Council, 22, 57–61 appeals, 28 Judicial Committee of the Privy Council see Privy Council judicial review, 61–62, 92 legislation, 57–61, 69 Her Majesty’s dominions, the territories as part of, 4–5 Her Majesty’s Representatives, 9, 35, 36–37 see also Governor, office of Hong Kong, 200, 288 human rights in the territories, 11, 22, 151–74 Charter of Fundamental Rights of the EU, 273 Complaints Commissioners, 93, 171–73 constitutional human rights provisions, 152–60 Bermuda Human Rights Act (1981), and, 154–55 modern fundamental rights chapters, 155–60 older fundamental rights chapters (pre-2006), 152–54 constitutional review negotiations and human rights, 151–52 Crown in right of different governments, and, 25–26, 42 derogation from fundamental rights and freedoms under emergency powers, 160–63 detention under emergency laws, 163–64 enforcement of protective provisions, 164–70 appeals, 165–66 applications to courts in territories, 164–70

Index 359 damages, 166–67 presumption of constitutionality, 168 Human Rights Commissions, 33, 170–71 international human rights instruments and the territories, 173–74 jurisdiction, 25–26 justiciability, 24, 92–93 Ombudsman, 171, 172–73 reforms required, 151 see also European Convention on Human Rights (ECHR); International Covenant on Civil and Political Rights; European Court of Human Rights humanitarian law measures and disarmament, 191 humanitarian assistance, 221–23, 269 independence, 280–85 absence of wish for, 1 Crown in right of different governments, and, 25 decolonisation after Second World War, 1, 280 independence constitution, 283–84 independence legislation, 280–83 other consequences of independence, 284–85 self-determination see under territories in international law see also termination of British sovereignty; territories in international law instructions to Governors see under Governor, office of International Court of Justice, 254, 263 International Covenant on Civil and Political Rights, UN, 151–52, 169, 174, 247 detention under emergency laws, 163 modern fundamental rights chapters, and, 155–58 older fundamental rights chapters, and, 154 self-determination, and, 251–53 International Covenant on Economic, Social and Cultural Rights, 157, 174, 247 self-determination, and, 251–53 international human rights instruments and the territories, 173–74 International Labour Organisation, 254 international law see territories in international law international organisations, membership of, 12, 23, 257, 285 Ireland, 148, 189–90, 273 Isle of Man and Channel Islands, 5–6, 93, 204, 256, 272, 282 judicial authority, 10, 98–123 arrangements in the territories, 98 court decisions other than of territory or UK as sources of law, 148–49 courts of the territories, 100–111 courts of appeal, 104–7 decisions as sources of law, 145 Judicial Committee of the Privy Council, 100–104 magistrates’ courts, 110–11 superior courts of first instance, 107–110

courts of the UK, 28, 32 decisions as sources of law, 146–48 Governors, 47–48 role in judicial appointments, 38, 47 Judicial Committee of the Privy Council see Privy Council judicial controls: constitutional Orders, of, 20–21 executive government, over, 92–93 legislation, over, 77–78 Judicial Service Commissions, 33, 95–96, 111–14, 128, 130 judiciary see judiciary juries, 157–58 Law Officers see Law Officers legal basis for establishment of courts, 98–100 Colonial Courts of Admiralty Act (1890), 100 sources of law, and: decisions of other courts, 148–49 decisions of territory courts, 145 decisions of the Privy Council, 145–46 decisions of UK courts, 146–48 see also judicial review; sources of law Judicial Committee of the Privy Council see Privy Council judicial controls see under judicial authority judicial review: Complaints Commissioners, appointment of, 172 executive government, and, 92–93 exercise of Governors’ functions, 38, 50–51 exceptions, 51 instructions to Governors, 92 human rights, and, 92–93 legislative authority, and, 61–62, 77–78 see also judicial authority Judicial Service Commissions, 33, 95–96, 111–14, 128, 130 judiciary: appointments, 38, 47, 104, 107, 114 independence, 123 security of tenure, 107, 115–23 assured term of office, 115–16 protection from abolition of office, 121–22 protection from arbitrary removal from office, 117–21 protection of remuneration, 122–23 juries, 157–58 law see judicial authority; legislative authority and controls; sources of law Law Officers, 120, 124–134 Attorney-General’s appointment and security of tenure, 127–31 appointment, 95, 128–30 security of tenure, 130–31 Attorney-General’s role, 125–27 constitutional independence, 131–32 Director of Public Prosecutions, 124–26, 128, 131, 132–34 see also judicial authority; sources of law

360 Index legal liability of Governors see under Governor, office of, legislative authority and controls, 55–78 appropriation legislation, 215–16 controls over executive government, and, 89 executive controls on locally-enacted legislation, 72–77 assent, 73–75 disallowance, 75–76 instructions to Governors, 39–42, 72–73 other controls, 76–77 reserving Bills, 74 Governors, 46–47 assent, power of, 47, 73–75 Governor as legislature, 10, 37, 46, 62 instructions to, 72–73 power to prorogue or dissolve the legislative body, 44 reserved legislative powers, 47, 64–65 legislative authorities in the territories, 62–66 emergency regulations, 65–66 local legislatures, 62–64 nomenclature of local legislation, 66 proclamations, 65 reserved legislative power of the Governor, 47, 64–65 scope of local legislative authority, 66–72 subordinate legislation, 65 legislative authorities in the UK, 55–62 Her Majesty in Council, 42, 57–61 Parliament, 55–57 scope of legislative authority, 61–62 local legislation: appropriation legislation, 215–16 belonger status 206–7 external affairs, 239–40 local legislatures, 62–64 meaning, 55 prisoners, removal of, 189 Royal Instructions, 39, 72–73 Royal prerogative, affecting, 72, 78 treaty obligations, 254 scope of local legislative authority, 66–72 Colonial Laws Validity Act (1865), 67–70, 72, 78 constitutional limits, 66–67 extraterritoriality, 70–71, 78 local legislation affecting the Royal prerogative, 72, 78 special responsibilities of Governors, and, 88–89 treaties, 253–54 see also sources of law local defence forces and garrisons of UK forces, 177–78 local legislation see under legislative authority and controls; sources of law maritime areas and airspace, 261–62 marriage, 156 Mauritius, 138 sovereignty claim by see under British Indian Ocean Territory

Ministerial systems, territories with, 82–84 Montserrat, 1, 2, 324 acquired by settlement, 7 CARICOM, 261 constitution, 59, 326–27 constituent powers, 14–15, 17–18 constitutional review negotiations, 32–33 new constitution containing fundamental rights chapter, 155–60 public consultation, 31 courts, 327–28 economy, 328 executive authority, 82–86 external affairs, 225, 230–37, 239 Governor, 35, 37, 43, 47 consultation, 89 defence, 176 Deputy Governor, 53–54, 94 emergency powers, 192, 193–94, 195–96 external affairs, 230–34 public order and security, 182–83 special responsibilities, 87–89 history, 324–25 human rights, 152, 173–74 Complaints Commission, 93, 171 derogation during emergencies, 161, 162–63 detention under emergency laws, 163–64 new constitution containing fundamental rights chapter, 155–60 independence, 279 judicial authority, 99–100, 105–6, 108, judiciary, 114, 116, 118, 121–22 law, 137, 144–45, 148, 328 legislative body, 63 Law Officers, 124 –25, 131 –34 local defence forces, 177–78 nationality and belonger status, 205–6, 208 public finance, 210–11, 213–14, 217–19, 221–23 regional integration, 328 status, 325 volcanic eruptions, 11, 161, 193–94 see also British overseas territories (‘the territories’) nationality and belonger status, 11–12, 56, 197–209 belonger status, 12, 197, 204–9 constitutional definitions, 205–6 constitutional protection, 209 definitions in local legislation, 206–7 incidents of belonger status, 207–8 relationship with British nationality, 208–9 Deputy Governors, and, 53 nationality, 11–12, 197–204 British Overseas Territories Act (2002): grant of British citizenship, 200–203 EU, and, 270–71, 274 history, 197–99 retention of British Overseas Territories Citizenship, 203–4 termination of British sovereignty, and, 282, 286–88 summary of present position, 204

Index 361 natural disasters see emergencies and natural disasters New Zealand, 5, 286 High Commissioner as Governor of Pitcairn, 35, 62 oaths or affirmations of Governors, 50 OECD, 260 Ombudsman, 171, 172–73 see also human rights in the territories Organisation of Eastern Caribbean States (OECS), 231, 234, 256, 295, 328, 351 Overseas Territories Consultative Council, 94 pardon, powers of , 46 Parliament (UK): constitutional amendment and review, 29–30 constitutional relationship between the territories and the UK, 22–23 legislative authority, as, 22–23, 55–57 consultation with the territories, 57 independence legislation, 280–83 scope of legislative authority, 61 political responsibility, 32 scrutiny of constitution Orders, 20 shared sovereignty, 289 source of law in the territories, and, 22–23, 135, 136 incorporation of law by Act of Parliament, 142 incorporation of UK and other laws, 137–42 supremacy of, 22, 23, 55 transfer of territory, 285–88 Partnership for Progress and Prosperity: Britain and the Overseas Territories (White Paper), 151–52, 160, 200, 229, 252 petitions, 52–53 Pitcairn, Henderson, Ducie and Oeno Islands (‘Pitcairn’), 1, 2, 328–29 acquired by settlement, 7 constitution, 31, 59, 73, 330–31 constituent powers, 14–16 constitutional review negotiations, 32–33 new constitution containing fundamental rights chapter, 155–60 courts, 331 ECHR not extended to, 11 economy, 331–32 executive authority, 82, 84 external affairs, 225–27 Governor, 35, 46–47 Complaints Commissioner appointing, 93, 172 emergency powers, 192–93, 195–96 executive authority, 82 external affairs, 226–27 legislative authority, 62 history, 329–30 human rights, 152, 173–74 Complaints Commissioner, 171–72 derogations during emergencies, 162 detention under emergency laws, 164

enforcement of protective provisions, 165, 169 new constitution containing fundamental rights chapter, 155–60 judicial authority, 99–100 judiciary, 116, 118, 121–22 law, 137, 139–41, 144, 148, 331 Law Officers, 124, 131–32, 165 nationality and belonger status, 204, 209 population, 1 public finance, 210, 218, 220, 222–23 public service, 97 status, 330 see also British overseas territories (‘the territories’) police forces see under public order and security prerogative powers: constitutions, establishing, 14, 19–20, 22, 57–58 courts, establishing, 98 external affairs, 225 Governors’ executive or ceremonial functions exercised locally as, 38 Her Majesty in Council, appeals to, 101 judicial control of constitutional Orders, 20–21 legislation, 23–24 local legislation affecting the Royal prerogative, 72, 78 Orders in Council made by Royal prerogative, 57, 69 Parliamentary scrutiny of constitution Orders, 20 Royal Instructions, 39–40, 72–73 Royal prerogative as extensive in overseas territories as in UK, 143 Royal prerogative of mercy, 46 treaties, 253, 258 where territory acquired by cession, conquest, annexation, 7–8 Privy Council, 100–104 appeals to, 10, 28, 100–104, 145, 165, 284 decisions as sources of law, 145–46 Royal Instructions, 40 separation of powers, 67 prisons see under public order and security proclamations, 65 see also legislative authority and controls protectorates, protected states and associated states, 6 public accounts committees, 220–21 public finance, 210–24 audit, 217–20 borrowing and lending, 217 consolidated fund and other funds, 213 constitutional responsibility, 210–11 expenditure, 213–17 appropriation legislation, 215–16 expenditure authorised in advance of appropriation, 216–17 statutory expenditure, 215 financial assistance: from the EU, 12, 210, 223, 269 from the UK, 12, 210, 221–23

362 Index financial liability, 223–24 public accounts committees, 220–21 revenue, 212–13 public order and security, 182–91 anti-terrorism measures, 191 constitutional responsibility of Governors, 182–84 disarmament and humanitarian law measures, 191 extradition, 189–191 police forces in the territories, 11, 184–85 prisons, 186 prisoners, removal of, 186–89 compatibility of removal with ECHR, 188–89 Colonial Prisoners Removal Act (1869), 186–87, 188, 189 Colonial Prisoners Removal Act (1884), 56, 135, 187–89 Repatriation of Prisoners Act (1984), 189 territory legislation, 189 prisoners, treatment of, 94, 152, 155, 158, 163–64 public service, the, 94–97 definition, 184 Governors’ power of appointment, 94–95 delegation of power, 94–95 police as members of, 184 public officials and human rights, 169 Public Service Commissions, 95 specialised Commissions, 95–96 reform, substance of recent constitutional, 32–34 reserved general power to Legislate by Order in Council, 57–61 reserved powers of Governors see under Governors, office of revenue see under public finance Roberts-Wray, K, 4–5, 99, 138, 146, 286, 287 Royal Instructions, 39–40, 72–73, 86 binding on Governors, 39 local legislation in a territory, and, 39, 72–73 part of the law of the territory, 39–40 Royal prerogative see prerogative powers St Helena, Ascension and Tristan da Cunha, 1, 2, 332 acquired by settlement, 7 Ascension, garrisons of UK forces on, 11, 178 US forces stationed on, 11, 178, 180–81 constitution, 31, 59–60, 75, 333–35 constituent powers, 14–17 constitutional review negotiations, 32–33 new constitution containing fundamental rights chapters, 155–60 Saint Helena Act (1833), 16–17 courts, 335–36 economy, 336 executive authority, 82, 84–86 external affairs, 225–27, 239

Governor, 35, 36, 37, 43, 46 Administrators of Ascension and Tristan da Cunha, 54, 82 Chief Secretary of St Helena, 54 Complaints Commissioner appointing, 93, 172 consultation, 82, 89 defence, 175–76 emergency powers, 192–93, 195–96 executive authority, 82 external affairs, 226–27 legislative authority, 62 powers to act against advice, 91 public order and security, 182 public service, 97 special responsibilities, 87–89 history, 332–33 human rights, 152, 173–74 Complaints Commissioner, 171–72 derogations during emergencies, 162 detention under emergency laws, 163–64 enforcement of protective provisions, 165 new constitution containing fundamental rights chapters, 155–60 independence, 280 judicial authority, 99–100, 104–5, 107–10 Judicial Service Commission, 95–96, 113 judiciary, 114, 116, 118, 121–23 law, 137–38, 141–42, 144, 336 legislative body, 63 Law Officers, 124, 131–32, 165 local political control, 91–92 nationality and belonger status, 199, 200, 204, 206–9 public finance, 210–14, 217–23 public service, 95–97 status, 333 see also British overseas territories (‘the territories’) Second World War, 1, 280 self-determination see under territories in international law separation of powers, 67 settlement, acquisition by, 6–7, 137–38 courts, establishing, 98 prerogative power, and see prerogative powers sources of law, 10, 135–50 common law and rules of equity, 142–44 incorporation by operation of common law, 143 incorporation by statute, 143–44 existing laws provisions in constitution orders, 149–50 incorporation of UK and other laws, 137–42 incorporation by Act of Parliament, 142 incorporation by locally enacted legislation, 138–42 incorporation by operation of common law, 137–38 judicial decisions, 145–49 decisions of other courts, 148–49 decisions of territory courts, 145

Index 363 decisions of the Privy Council, 145–46 decisions of UK courts, 146–48 law originally in force in British overseas territories: ceded or conquered territories, 8, 138, 143 territories acquired by settlement, 8, 137, 143 legislation enacted or made in the UK, 22–23, 135–36 Acts of Parliament, 135, 136 Orders in Council, 136 statute law, 22–23, 135–42 Acts of Parliament, 135, 136 incorporation of UK and other laws, 137–42 legislation enacted or made in the UK, 135–36 locally enacted legislation, 136–37 Orders in Council, 136 see also judicial authority; legislative authority and controls South Georgia and the South Sandwich Islands, 1, 2, 336–37 acquisition by annexation, 7 acquired by settlement, 7 Commissioner, 35–36, 46 consultation, 81–82, 183–4 defence, 176 emergency powers, 192–93, 195–96 executive authority, 81–82 legislative authority, 62 public order and security, 183–84 constitution, 59, 73, 338 constituent powers, 14–16 courts, 338–39 economy, 339 executive authority, 81–82 external affairs, 225–26 history, 337 human rights, 173 judicial authority,100, 106, 108–11 law, 137, 141–42, 144, 339 Law Officers, 124 nationality and belonger status, 204 public finance, 210 sovereignty claim by Argentina, 1, 262–63 status, 337–38 see also British overseas territories (‘the territories’) South Sandwich Islands see South Georgia and the South Sandwich Islands Sovereign Base Areas of Akrotiri and Dhekelia (‘Sovereign Base Areas’), 1, 2, 339–40 Administrator, 36, 46, 177 emergency powers, 192–93, 195–96 executive authority, 81–82 legislative authority, 62 armed forces stationed in, 11, 178 constitution, 60, 341 constituent powers, 14–15, 19 courts, 341–42 defence, 181 economy, 342 EU, and, 13, 141–42, 148, 264–65, 274–78

executive authority, 81–82, 84 external affairs, 225–26 garrisons of UK forces, 178 history, 340 human rights, 152, 173 judicial authority, 98, 106, 109–10 law, 137, 141–42, 144, 342 nationality and belonger status, 12, 201, 203, 204 public finance, 210 regional integration, 342 status, 341 see also British overseas territories (‘the territories’) sovereignty: claims, 262–63, 266 shared sovereignty, 279, 289 termination see termination of British sovereignty transfer of territory, 285–88 transfer of only part of a territory, 288 transfer to a State outside Her Majesty’s Dominions, 287–88 transfer to another State within Her Majesty’s Dominions, 286–87 see also independence; territories in international law Spain, 7, 138, 266 sovereignty claim by see under Gibraltar subordinate legislation, 65, 137 see also legislative authority and controls termination of British sovereignty, 279–89 independence see independence territories’ attitude towards independence, 279–80 transfer of territory, 285–88 transfer of only part of a territory, 288 transfer to a State outside Her Majesty’s Dominions, 287–88 transfer to another State within Her Majesty’s Dominions, 286–87 see also independence; territories in international law territories in international law, 12, 23, 246–63 agreements between territories or between a territory and the UK, 261 authority to conduct external relations, 12 Charter of the UN, 246–53 Decolonisation Committee and the UK, 248–50, 262 General Assembly’s role, 247–50 UK’s international responsibilities, 24, 246–47, 260 entrustments, 257–61 ad hoc entrustments, 257, 260 Bermuda, 229–30, 237–39, 243–45, 259–61 categories of entrustment, 257 Cayman Islands, Virgin Islands and Montserrat, 234–37, 241–43, 260 general entrustments, 234–39, 257–61

364 Index Gibraltar, 259–61 increase in, 259 parties to treaties, 260–61 territories joining international organisations, 257 treaties, concluding, 258–61 visits by foreign Heads of State, 257 financial liability, 223–24 maritime areas and airspace, 261–62 self-determination, 1, 251–53, 280 constitutional arrangements agreed by territories, 252–53 Falkland Islands sovereignty, 262 Gibraltar sovereignty, 263 limitations of General Assembly approach, 251–52 see also independence; termination of British sovereignty sovereignty claims, 262–63 treaties, 12, 253–57 EU, and, 256–57, 259–60 extension to the territories, 254–56 independence, and, 285 regional, 256 territorial scope, 254–56 UK responsible for compliance by territories, 253–54 see also external relations terrorism measures, 191 transfer of territory see under termination of British sovereignty treaties see under territories in international law Treaty of Lisbon, 277 Treaty on European Union, 264–65, 277 Treaty on the Functioning of the European Union (TFEU) see under European Union (EU) and the territories Tristan da Cunha see St Helena, Ascension and Tristan da Cunha Turks and Caicos Islands, 1, 2, 342–43 acquired by settlement, 7 constitution, 59, 345–46 constituent powers, 14–15, 17–18 constitutional review negotiations, 32–33 new constitution containing fundamental rights chapter, 155–60 suspension of parts of Constitution, 32, 345 corruption allegations, 32, 345 courts, 346 economy, 347 external affairs, 225–26 Governor, 35, 43, 47 Deputy Governor, 53 emergency powers, 192–93, 195–96 external affairs, 226 special responsibilities, 87–89 history, 343–44 human rights, 152, 173–74 Complaints Commissioners, 93, 171 derogation during emergencies, 162–63 detention under emergency laws, 164 new constitution containing fundamental rights chapter, 155–60

independence, 279 judicial authority, 99–100, 104–5, 107 Judicial Service Commission, 95–96, 111 judiciary, 114–15, 118, 121 law, 137–38, 144, 148, 347 Law officers, 131 nationality and belonger status, 206, 208 public finance, 210–11, 214, , 219–20 public service, 95–96 regional integration, 347 status, 344–45 see also British overseas territories (‘the territories’) United Kingdom (UK), 5–6 constitutional relationship with the territories see under constitutional arrangements courts see under judicial authority Crown see Crown EU, and see European Union (EU) and the territories external relations of the territories see external relations extradition, 189–90 financial assistance to British overseas territories see under public finance garrisons of UK forces, 177–78 interests of, 24 judicial control of constitutional Orders, 20–21 Law Officers, 125, 127 legislation enacted or made in the UK, sources of law, and, 135–36 Acts of Parliament, 135, 136 incorporation of UK and other laws, 137–42 Orders in Council, 136 legislative authorities see under legislative authority and controls liability for the territories, 223–24 nationality, and see nationality and belonger status Ombudsman, 93 Parliament see Parliament (UK) responsibility for the territories see external relations; territories in international law sovereignty claims, and see sovereignty claims territories not part of, 5 treaties with US, 178–81 United Nations (UN), 170 Charter and UK responsibility see under territories in international law Conventions, 157, 174 Declarations, 248, 251, 252 independence, and, 285 international human rights instruments and the territories, 173–74 United Nations Economic Commission for Latin America and the Caribbean (ECLAC), 231 United States (US), 148 armed forces stationed on Ascension, 11, 178, 180–81 armed forces stationed on Diego Garcia, 11, 178–80 Falklands Islands sovereignty, 279 Universal Declaration of Human Rights, 247

Index 365 Virgin Islands, 1, 2, 347 acquired by settlement, 7 Complaints Commissioners, 93 constitution, 59, 67, 80, 348–50 constituent powers, 14–15, 17–18 constitutional review negotiations, 32–33 new constitution containing fundamental rights chapter, 155–60 public consultation, 31 courts, 350 economy, 350 executive authority, 80, 82–87 external affairs, 225, 230–37, 239–43 general entrustments, 234–37, 241–43, 260 Governor, 35, 36, 37, 38, 39, 43, 47, 48–50, 51 assent, 73–75 consultation, 87, 89, 90 Deputy Governor, 53 emergency powers, 192, 194, 195–96 external affairs, 230–34 public order and security,182–83, 185 reserved legislative power, 64–65 special responsibilities, 88–89, 90

history, 347–48 human rights, 152, 173–74 derogation during emergencies, 162–63 detention under emergency laws, 163–64 Human Rights Commission, 170 new constitution containing fundamental rights chapter, 155–60 independence, 280 judicial authority, 99–100, 105–6, 108 Judicial and Legal Services Commission, 95–96, 112, 130 judiciary, 114, 116, 118, 121–22 law, 137–38, 144–45, 148, 350 legislative body, 62–63 Law Officers, 124 –25, 128, 130–34 nationality and belonger status, 205–6 public finance, 210–11, 213–14, 219–20 public service, 95–96 regional integration, 351 status, 348 see also British overseas territories (‘the territories’) visits by foreign Heads of State, 257