Found at: http://www.anguillaguide.com/article/articleprint/5997/-1/135/
|
Constitutional Meeting: ORDERS IN COUNCIL...Main Talking Point
|
For some reason, a press release from the Chief Minister’s Office stated that this week Monday’s second round of discussions in the current series of meet-the-people constitutional meetings at the Ronald Webster Park would focus on a string of matters. These were said to include the possible re-organisation of electoral boundaries, increasing the number of Government and Elected Members, the Public Service Commission and the Teachers Service Commission.
|
|
L-R: Dame Bernice Lake QC, Lawyer Lolita R’dson and CM Fleming
|
Instead, Chief Minister Osbourne Fleming, who chaired the meeting, said that in keeping with an undertaking at the previous meeting, the main subject for discussion was Orders-in-Council led by Dame Bernice Lake, QC. It was pointed out that these were the mechanisms through which the coming new Anguilla Constitution had to undergo in the British Parliament and it was therefore important, with a constitutional draft in progress, that Anguillians understand what those processes were.
Ms Lake prefaced her address by explaining that it was best to consider the functioning of “representative government in a democratic society in order to understand the nature and impact of what is called an Order-in-Council.” Among other matters, she referred to the passage of laws in the House of Assembly with the approval of the people of the island. “Briefly, that is how you expect a law-making power to be exercised and you will find that some of these provisions are provided for in our Constitution,” Ms Lake went on. “Against that kind of expectation that you will have a say in what policies are made and what law is passed, you come up against this thing which is called an Order-in-Council” which she said was derived from what was called “the Royal Prerogatives” in the old days. In a nutshell, according to Ms Lake, the absolute rule, which the Monarch once had, eventually gave way to rule by Parliament, but with some residual powers left in the hands of the Monarch and with most of the administering powers now vested in Parliament.
She stated that the residual powers were still in the hands of the Crown but were being exercised by Ministers of the British Government of the day instead. The draft document for an Order-in-Council was in fact done by Ministers and presented to the Queen for agreement and signature.
|
|
Don Mitchell, Hon. Evans Rogers, Hon. Edison Baird and Hon. Hubert Hughes
|
When you apply that kind of mechanism to a place like Anguilla, you can readily see that the democratic principle falls away because the Minister who has framed that policy in England is a Minister of the English Cabinet,” Ms Lake stated. “There is no election between the people of Anguilla and that Minister. What is more is that the document is agreed to by the Sovereign without the Parliament in England necessarily having to concur with it. It does not fall under parliamentary scrutiny as a rule.”
Ms Lake pointed out that there were two types of Orders-in-Council which may either be passed under the residual powers of the Monarch or under the provision of a statute. “If they are passed under the residual powers, we call them primary legislation. If they are passed under a statute, that means that the possibility of the Order-in-Council coming into effect, was already contemplated and Parliament had agreed that this power would be provided for,” she told her listeners.
“I will give you an example of an Order-in-Council coming into effect by means of a statute. Our very own Constitution has come into effect by reason of a provision of an Order-in-Council which was made for its passage in the Anguilla Act of 1980… It is a mechanism for bringing in a constitutional regiment but that mechanism was provided for in an Act already.
|
|
Members of the audience at the Ronald Webster Park Pavillion
|
“Where the Order-in-Council is not dependent on any provision in a statute, but by reason of the residual power of the Sovereign, it means that it is really a matter of primary legislation. It is passed by a Minister of the Crown in England framing a policy, putting it on a nice cushion, stepping up before the Sovereign and presenting whatever set of Orders-in-Council they have passed and intimating what they are, and she says: ‘I agree…’ They make their steps backwards before they turn their backs on her and proceed. There is no parliamentary oversight and needless to say we have no say, whatsoever, in the matter.”
Chief Minister Fleming said that one example was an Order-in-Council in which the Anguillians had no say about the abolition of capital punishment. “In other words, we used to have years ago a system of hanging people when they kill other persons and by an Order-in-Council no [murderer] in Anguilla can be executed,” Mr. Fleming stated. “That Order-in-Council was placed on us without us having any input in it. That is why Ms Lake made the point that once it is agreed under their statute they can do what they want.
“My personal feeling is that an Order-in-Council might be okay, but the people of Anguilla must agree with it first. It must not just be pitched on us whether we like it or not.”
|
|
Members of the audience at the Ronald Webster Park Pavillion
|
Don Mitchell, a member of the constitutional negotiating team, said the Chief Minister had “hit on the crux of an Order-in-Council.” He said, however: “Anguilla is of course not an independent country. The Constitution of an independent country is one that cannot be interfered with by the British Government…Once you are a colony it means that you are subject to laws that are made both by your own parliament and by the British Minister or British Parliament. Remember the Anguilla Act of 1980 which provides constitutional Government in Anguilla is an Act of the British Parliament. It was that Act that gave the power to the Queen to make a Constitution for Anguilla so the Anguilla Constitution starts off by saying that the Queen ‘by virtue of the powers vested in her by the Anguilla Act is pleased to make this Constitution.’ There is nothing unique or peculiar about it…[as all other constitutions] are made by Orders-in-Council by the Queen-in-Council; so an Order-in-Council, as the Chief Minister says, which is one negotiated by the people, is a sensible way to make some laws.”
Mr. Mitchell said that some Orders-in-Council could be made very badly and he cited an example in the Chagos Island which the court deemed to have been illegal. “In the olden days the Monarch had absolute power, but we are in a constitutional regime now and an Order-in-Council is not allowed to be made in that way any longer,” he stated. “So long as the British make an Order-in-Council in relation to Anguilla with the agreement of the Government and people of Anguilla, then that is a good use of an Order-in-Council and none of us would have any objection to it.
“We have had Orders-in-Council made recently that have been very sensible for Anguilla: for example, technical laws dealing with civil aviation or with smuggling goods to Iraq or nuclear waste. Those are made applicable to Anguilla by way of an Order-in-Council after the Anguilla Government says ‘go ahead and do it.”’
|
|
Members of the audience at the Ronald Webster Park Pavillion
|
Mr. Mitchell further said: “An Order-in-Council can be and must be done in a very good way and was a proper way of making laws for a colony that is about to go independent…My view about an Order-in-Council is neutral. It is the same way that I view an Act of our House of Assembly. Just because the Planning Act had some mistakes in it, and you could say that it was a bad Act, doesn’t mean that every Act of the Anguilla House of Assembly is a bad Act.
“I know Dame Bernice is not trying to suggest that. She was giving you the history. She was showing you that Orders-in-Council originated in a period of absolute rule when the King did not even consult the people in England, far less people outside of England. We now know from the Court of Appeal in England which has ruled that this prerogative of power to make Orders-in-Council can no longer be misused in the 21st century to take advantage of people. It must be done in their best interest and, in the case of a constitutional instrument, after consultation with, and agreement by, the people; so I am all in favour of Orders-in-Council.
“An Order-in-Council saves us time and money. If the Anguilla Government were to hire lawyers in the Attorney General’s department who had the skill, training and background to be able to draft and design a Nuclear Waste Act and an International Anti-Terrorism Act, then we could pass all those laws for ourselves. If we don’t want to have that kind of top heavy infrastructure in Anguilla, we could use the British expertise… and ask them to draft the laws for us.”
In clarifying the matter, Ms Lake pointed out: “There are two distinct Orders-in-Council. “There is the one that brings your constitution into effect under statute and that is a regulatory matter. But there is the other Order-in-Council which behooves Anguillians to take a very critical look and that is the Order-in-Council which is exercised as part of the Royal Prerogative and not by reference to any statute and which is a means of making laws for Anguilla by a British Minister without any oversight, scrutiny or input so that democracy has had a blow hit at it. That distinction must be clearly drawn and marked into your minds.”
The outspoken Anguillian jurist added: “We must ask ourselves in this day and age if Anguillians, as human beings, should be exposed to such an undemocratic process of Government; and let it be clear: we cannot say, with absolute resolve, that the courts will find that kind of Order-in-Council to which Mr. Mitchell referred, abusive...The Government in England is not satisfied with that and they are taking it to the House of Lords to ensure that this residual power to make a law for you by an Order-in-Council in pursuit of their interest and the interest of their allies without reference to their parliament or to ours, is exercisable. Only when that decision is finalised would we really know on what side of the line the court will finally come down on.”
Lawyer Lolita Richardson, who is involved in the drafting of the new Constitution and Opposition Member, Hubert Hughes, also spoke on Orders-in-Council as well as on matters related to full internal self-government which Anguilla is now seeking.
There were several questions from among the audience, some of which, perhaps the most vociferous, came from Brent Davis who has political interest in the island’s affairs. He expressed concern over the continuing dialogue on constitutional development which he thought was not going anywhere. He was of the view that Government should take a bolder step towards achieving a more advanced status of autonomy even to the level of independence. Some of his remarks were not in keeping with those of Chief Minister Fleming who stressed that independence was not now on the cards but rather full internal self-government to which Anguilla was in fact aspiring.