British Overseas Territories Law Second Edition Ian Hendry and Susan Dickson HART PUBLISHING Bloomsbury Publishing Plc Kemp House , Chawley Park, Cumnor Hill, Oxford , OX2 9PH , UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 First edition published in 2011 Copyright © Ian Hendry and Susan Dickson , 2018 Ian Hendry and Susan Dickson have asserted their right under the Copyright, Designs and Patents Act 1988 to be identifi ed as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. 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Description: Second edition. | Oxford, UK ; Portland, Oregon : Hart Publishing, an imprint of Bloomsbury, 2018. | Includes bibliographical references and index. Identifi ers: LCCN 2018011241 (print) | LCCN 2018013645 (ebook) | ISBN 9781509918720 (Epub) | ISBN 9781509918706 (hardback : alk. paper) | ISBN 9781509918713 (ePDF) Subjects: LCSH: Law—Great Britain—Colonies. | Constitutional law— Great Britain—Colonies. | Great Britain—Colonies—Administration. Classifi cation: LCC KD5020 (ebook) | LCC KD5020 .H46 2018 (print) | DDC 349/.11241—dc23 LC record available at https://lccn.loc.gov/2018011241 ISBN: HB: 978-1-50991-870-6 ePDF: 978-1-50991-871-3 ePub: 978-1-50991-872-0 Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY To fi nd out more about our authors and books visit www.hartpublishing.co.uk . Here you will fi nd extracts, author information, details of forthcoming events and the option to sign up for our newsletters. 2 Constitutional Arrangements ACH BRITISH OVERSEAS territory is a separate constitutional unit, and accordingly is a distinct legal jurisdiction. None is constitutionally a part of Ethe United Kingdom. Each territory has its own constitution and is adminis- tered separately from the others. But at the same time each territory has a constitu- tional 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 UK Parliament and the position of the Crown. This chapter also discusses the powers and procedure for constitutional amend- ment and review, describes the substance of recent constitutional reforms, and considers future developments. 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; some provisions are even worded identically. The Constitution of each territory is contained in an Order in Council. It is legally enacted by Her Majesty the Queen, by and with the advice of Her Privy Council, acting on the recommendation of UK 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 1 Phillips v Eyre ( 1870 ) LR 6 QB 1 . 2 Eg British Antarctic Territory Order 1989 (SI 1989/842). Legal Basis for the Territories’ Constitutions 15 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 required citation of prerogative powers. In any case the practice has been generally consist- ent. 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 (unspecifi ed) powers of Her Majesty. 4 A. Constitutions Made under Statutory Powers The Constitutions of 12 British overseas territories are made under powers granted by Acts of the UK Parliament. The Acts in question are the following. 1. British Settlements Acts 1887 and 1945 These Acts 5 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 defi nition 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 defi nition and are treated as ‘ British settlements’ for the purposes of the Acts. Most of the territories acquired by settlement fall outside the defi nition, 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. 3 Eg Falkland Islands Constitution Order 2008 (SI 2008/2846). 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 Chapter 1, p 7. 16 Constitutional Arrangements 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 offi cers, and make such pro- visions 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 specifi ed 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 condi- tions, provisions, and limitations as may be specifi ed 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 instruc- tion 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 2009 9 (for Ascension and Tristan da Cunha); the British Antarctic Territory Order 1989; 10 the Falkland Islands Constitution Order 2008, as amended; 11 the Pitcairn Constitution Order 2010; 12 and the South Georgia and South Sandwich Islands Order 1985, as amended.