Empire and post-colonialism

Colonialism is one particular articulation and rendering of imperial power. As Edward Said explains, imperialism refers to ‘the practice, theory, and the attitudes of a dominating metropolitan centre ruling a distant territory’^{Footnote 18} though debates continue as to whether the compulsion was economistic, cultural or both.^{Footnote 19} As part of the typology of imperialism,^{Footnote 20} colonialism was initially ‘pragmatic and until the nineteenth century generally developed locally in a haphazard way’.^{Footnote 21} Establishing colonies were either for settlement or the exploitation of natural resources^{Footnote 22} and were usually vindicated by alarmist – though often empirically wanting – discourses of Malthusian logics of over-population, scarcity of resources and civilising narratives. With regard to the BOTs in particular, a common justification for their acquisition was the defence imperative. As Sir Ivor Jennings observed, ‘England acquired an Empire because her life was on the ocean wave; having an Empire, she found that her battle-line was more than ever the deep … Gibraltar, Malta, St. Helena … became units in a vast scheme of the protection of the lines of communication.’^{Footnote 23}

UK colonial law similarly reflected this irregular process by recognising four different methods in which territories were ‘acquired’ – as it was euphemistically referred to^{Footnote 24} – settlement, conquest, cession or annexation. The method of acquisition was determined by regular practice or by the courts, and once determined, could not be upended.^{Footnote 25} As two eminent colonial law scholars, Sir Ivor Jennings^{Footnote 26} and Arthur Keith^{Footnote 27} have pointed out, the method was important from the colonial law perspective for establishing which law prevailed at the point of acquisition, and the power of the Monarch to legislate for the territory.^{Footnote 28}

The interrogation of colonialism often dovetails into an ethical debate about the merits and demerits of the British Empire – a debate that has been persistent and divisive.^{Footnote 29} For some, Britain’s imperial past is a spectre that haunts (and taints) what contemporary protagonists perceive as its necessary and benevolent role in global affairs. The treatment for such resentment is often imperial amnesia that largely forgets the systematic transgressions of imperial rule. Others, however, revel in the glorious days of empire, a nostalgia that lionises British imperium that ‘developed’ the Global South, pulling it out from the dark ages and into the thralls of Enlightenment-fuelled progress. At the very least, this camp suggests that Britain ought to ‘moderate our post-imperial guilt’.^{Footnote 30} What purists from both schools share, however, is ‘a distinct temporal marker of the colonial process’^{Footnote 31} that delineates between the imperial era and contemporary ‘post-colonial’ politics.

Critics of the temporal marker of the colonial process would suggest that an imperial past is a misnomer, for it presupposes that Britain is ex post factum the supposed imperium sine fine. The contention here is that the ‘imperial or colonial’,^{Footnote 32} persists and that this break was either a political fiction or merely a rupture in the expression of a particular type of imperial or colonial power. A recent articulation which evidenced this persistence appeared in 2017 when Liam Fox, the UK Secretary of State for International Trade and Development, called for a boost in trade links with the African Commonwealth nations, dubbed ‘Empire 2.0’ by Whitehall officials.^{Footnote 33} It is with this; the persistence of colonialism and the insights it provides as to the constitutionalism of the BOTs, that this article is concerned.

The position that Britain is post-colonial therefore claims that the period of imperial governance is a relic – politically, economically, socially, culturally and constitutionally – of the past. On this view, ‘postcolonial’ Britain is a term which has ‘a clearly chronological meaning, designating the post-independence period’^{Footnote 34} typically referring to the period of rapid European decolonisation in the 1940s and 1950s. The ‘granting’ of independence, the creation of the Commonwealth of Nations and the United Nations, and the establishment of an international system predicated on sovereign equality evidence such a claim. While pondering the challenge of decolonisation and self-government in the British Empire at that time, Jennings offered the view that ‘Colonial peoples will not be satisfied with less than independence, and the only question may be whether it shall be independence inside or outside the British Commonwealth.’^{Footnote 35} This has, with hindsight, constituted valuable insight.

British Overseas Territories

The BOTs are remnants of British colonial and imperial exploits, though none were acquired by conquest^{Footnote 36} but variations or combinations of cession, settlement and annexation. The territories vary in their size, location and population and are constitutionally distinct from one another and the UK, having separate constitutions that reflect the specificities contingent to the circumstances and challenges confronting each territory^{Footnote 37} and the ‘complex history of the Empire’.^{Footnote 38} For example, some BOTs have very small populations^{Footnote 39} while others have no permanent population^{Footnote 40} and this invariably has an effect on the constitutional make-up of the specific BOT.

Some BOTs have high levels of self-government, akin to independent states. In addition, many of the BOTs are largely financially independent of the UK. For example, Gibraltar’s GDP for 2016/17^{Footnote 41} was higher than many Western European nations, in part, due to a flourishing tourism and gaming industry.^{Footnote 42} The constitutional development of each territory therefore has varied. Their continued status as BOTs has been either due to the inhabitants’ wishes to remain under the sovereignty of the UK, the non-viability of independence, or because of the territories strategic value to the UK.^{Footnote 43}

However, despite constitutional variances, there are common constitutional features that define the BOTs as such.^{Footnote 44} For example, though they are not constitutionally a part of the United Kingdom, they form part of the ‘Crown’s undivided realm’^{Footnote 45} ‘in the sense of government, power, ownership and belonging’.^{Footnote 46} To this effect, all BOTs have a Governor or equivalent as a representative of the Crown. The Governor will often have ‘special responsibilities’ which allow them to exercise exclusive executive and legislative power.^{Footnote 47} The Governor therefore ‘is appointed by the Crown, represents the Crown, and is responsible to the Crown’.^{Footnote 48} BOTs do not have a separate status from the UK for the purposes of international relations,^{Footnote 49} the Judicial Committee of the Privy Council sits as the apex court for all BOTs and, though unsettled, the Bancoult litigation left open the possibility that BOT local laws could be reviewed by UK domestic courts.^{Footnote 50} Further, the UK Parliament retains unlimited power to legislate for the territories^{Footnote 51} and any reforms to the constitutions of the BOTs require amendment by the UK either through an Order in Council or an Act of Parliament.^{Footnote 52} Additionally, the domestic laws of the BOTs are subject to the ‘repugnancy doctrine’ enacted by the Colonial Laws Validity Act 1865 (CLVA), which states that ‘colonial laws’^{Footnote 53} are void if they conflict with a UK Act of Parliament.^{Footnote 54}

UK policy toward the BOTs

In 1997, a root and branch effort to modernise the BOTs commenced under the Labour government with the publication of the 1999 White Paper, Partnership for Progress and Prosperity: Britain and the Overseas Territories. ^{Footnote 55} Its aim was to establish ‘a renewed contract between Britain and the Overseas Territories’^{Footnote 56} including a reform in its constitutional relations.^{Footnote 57} The paper set out four principles that sought to inform this modernisation process; self-determination, responsibilities and reciprocity, the encouragement of self-government and the provision of support for the BOTs in times of emergency. Part of this renewal had to do with contingent liabilities arising from the UK’s responsibilities for the BOTs’ external affairs under international law, but part also from a desire to address and rebalance its relationship with the BOTs. The paper concluded that the options of integration into the UK or Crown Dependency status^{Footnote 58} were not appropriate alternatives for the BOTs but that arrangements needed ‘to be revisited, reviewed and where necessary revised’.^{Footnote 59} It recognised that ‘each Overseas Territory is unique and needed a constitutional framework to suit its own circumstances’.^{Footnote 60} This White Paper may be likened to the BOTs’ equivalent of the ‘temporal marker’ from imperial governance, though certain territories – such as Bermuda – had experienced greater self-government from a far earlier period. In 2001, the British Government invited the BOTs to review their constitutions and submit proposals.^{Footnote 61} In 2002, a shift in Whitehall parlance heralded a legislative change in their names from ‘Dependent Territories’, to their current appellation, with a nod to the UK Government’s commitment to self-determination.

As recently as 2017, the UK has maintained that self-determination has and continues to form the basis of its relationship with all its BOTs. In the most recent annual meeting of the Joint Ministerial Council for the Overseas Territories, which gathers heads of the BOTs and the UK Government, the communiqué stated:

It is also salient to note that many of the BOTs have not expressed a wish for independence from the UK. Indeed, some, like Bermuda and Gibraltar have often articulated this through referenda. There is a larger question which ought to examine the reasons for this – ranging from the strategic value of alliances with the UK to stave off hostile neighbours (as with Gibraltar and Spain; the Falklands and Argentina), the non-viability of independence because of a colonial-induced material and political dependency on the UK^{Footnote 63} (as is the case with the smaller populated BOTs), to the values certain BOTs have to British geopolitical interests in different parts of the world (military bases in Gibraltar, the Sovereign Base Areas and a US military base in the BIOT).

Self-determination and the UN

Self-Determination^{Footnote 64} is the pre-eminent term in understanding the process toward decolonisation. It is mentioned several times in the UN Charter, including Article 1(2), which proclaims the ‘respect for the principle of equal rights and self-determination of peoples’ and Article 55 where it promotes international economic and social co-operation on the basis of ‘equal rights and self-determination of peoples’. It is also recognised in common Article 1 of the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966.^{Footnote 65} Importantly, UN General Assembly Resolution 1514(XV) focussed self-determination as part of the international law applicable to colonised territories (or Non-Self-Governing Territories as the UN refers to them as). Thus, it can be understood that decolonisation is effected through self-determination. Indeed, in the Namibia Advisory Opinion,^{Footnote 66} the International Court of Justice held that self-determination applied to all peoples in colonial territories and was further recognised as part of customary international law in the Western Sahara Case.^{Footnote 67} Consistent state practice from colonial powers^{Footnote 68} and the absence of denial or contrary practice have, for some commentators, confirmed^{Footnote 69} that self-determination is jus cogens.

While self-determination and decolonisation may be considered as coterminous, self-determination can more accurately be described as the umbrella term that captures the different modus operandi of decolonisation. Resolution 1541(XV) recognised the three different modus operandi of decolonisation, which are each examples of self-determination – free association, integration and independence. In October 1970, the UN General Assembly adopted Resolution 2625(XXV),^{Footnote 70} which reaffirmed the three conventional categories for decolonisation but importantly added the possibility that ‘the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people’. This ‘fourth option’^{Footnote 71} has opened up the possibilities of decolonisation beyond the three categories in Resolution 1514(XV), including the provision for a closer relationship with the metropolitan power,^{Footnote 72} presenting ‘more flexible options set out in Resolution 1541(XV)’.^{Footnote 73}

As stated earlier, despite the UK’s expressed policy commitments to self-determination, ten out of the 14 BOTs are on the UN’s List of Non-Self-Governing Territories and have been so since 1946. They are therefore the target of decolonisation efforts and, under Article 73(e) UN Charter, the UK is obliged to submit reports to the UN Secretariat on the economic, social and political configurations of the listed territories. Indeed, according to Minty’s popular classification of colonies, many of the BOTs may be likened to ‘colonies which possess responsible government subject to a reservation of certain matters for the legislation of the Imperial Government’. ^{Footnote 74} This is particularly telling in reconciling high levels of self-government under a colonial governance structure – something which we later refer to.

While it prima facie appears that the BOTs are colonies according to the United Nations (and as will be later discussed, UK domestic law), the constitutional, political and economic realities among some of the BOTs reveal a complexity that counters an over-reductionist picture of territories under the yoke of brutal and imperial impositions. Therefore, a normative assessment of the claim that they are colonies requires a method of analysis that unravels this complexity.

The persistence of colonial constitutionalism

In the same way that Berman talks about international law and the UN wittingly or unwittingly lending itself to the designs of colonialism, there is in the circumstance of BOTs, the persistence of colonial constitutionalism. The idea of the persistence of colonial constitutionalism may be likened to the sense in which Chaterjee describes post-colonial legalism as ‘the extent to which a set of precommitted foundational laws bind the transformative acts of the new regime’.^{Footnote 92} Laws and legal systems continue to be used as an instrument of control in the post-colonial milieu.^{Footnote 93} Specifically, this framework begins to identify the persistence of provisions of colonial governance in the different constitutions of the BOTs drawing from archival, scholarly and legal materials.

The persistence of colonial constitutionalism refers to the structural continuities of colonial constitutional provisions from the colonial era into the post-colony, using Labour’s ’99 White Paper, with its exaltations of self-determination, as the ‘temporal marker’ from which to distinguish the contemporary period from the period of British imperial governance. Provisions of colonial governance refer to laws or conventions that enable the United Kingdom to intervene in the domestic and external affairs of its overseas territories. It must also be added that the exercise of such interventions can vary as to their content – from the practically conscientious, whereby the UK will consult the locally elected government in the exercise of ‘colonial laws’, to the malignant, such was the case in the British Indian Ocean Territory.

The framework is modest in its articulation, predicating itself only on a conception of colonial and imperial power that concerns itself with constitutional provisions rather than the multiplicity of sites and channels through which colonial power may materialise^{Footnote 94} and, as mentioned earlier, how the BOTs service British power in the world. Thus, it does not focus on those issues concomitant at the international law level or those concerning political economy which implicates neo-colonialism in the nature of Nkrumah’s analyses. The strength of this conceptual analysis, ‘the persistence of colonial constitutionalism’, ‘lies not in its historical foundations, but in its enormous potential as a set of theoretical and methodological tools for deconstructing the colonial foundations of contemporary power structures’.^{Footnote 95} As a prolegomenon, this analysis reveals the subtle and elusive expressions of colonial power that are often obscured by policies and provisions that proclaim greater self-determination.

BOTs, colonies and the courts

The question of whether BOTs are political continuations of the colonies that preceded them has been considered in both Bancoult (No 2),^{Footnote 97} with the ‘new political entity test’ established by Lord Hoffman, and the Bashir litigation.^{Footnote 98} The facts of Bancoult (No 2) have been well rehearsed elsewhere,^{Footnote 99} but involved the forced expulsion of the Chagossians from the BOT known as the British Indian Ocean Territory (BIOT). The BIOT was formed from the Chagos Archipelago, situated in the middle of the Indian Ocean, along with Mauritius and was ceded by France to Great Britain in 1814. The Archipelago was governed until 1965 as part of the British colony of Mauritius though Mauritius was some 1000 miles away from the main collection of Islands. The biggest of the Islands, Diego Garcia, had been home to the Chagossians for some 200 years. With Mauritius independence looming in 1965, the British government separated it from the archipelago (including Diego Garcia), with the former creating the BIOT. The core issue in the litigation was the legality of the expulsion of the Chagossians by the UK when it leased parts of the BIOT to the United States for military purposes. Part of the submissions made was whether a declaration made in 1953 to extend the European Convention on Human Rights (ECHR) to the Colony of Mauritius (the antecedent to the BIOT), carried on to the BIOT in 1965. Lord Hoffman ruled that it did not, arguing that such an international obligation only attaches to a ‘political entity’ or a state and not to the land of the territory. Where a part of a territory has been reconstituted into a new political entity, existing legal obligations do not attach to that new entity. Following the independence of Mauritius and the excision of the BIOT,^{Footnote 100} the BIOT constituted a distinct, new political entity and thus, the ECHR no longer applied there.^{Footnote 101}

Most recently, the application of this test formed the basis of litigation in another BOT, the Sovereign Base Areas (SBAs).^{Footnote 102} The question was whether the Refugee Convention, which was extended to the Colony of Cyprus, extended to the SBAs which had been part of the Colony of Cyprus before the creation of the now Republic of Cyprus. In a judicial review in the SBA Senior Judges’ Court (SBA court),^{Footnote 103} Collender J looked at the Treaty of Establishment of the Republic of Cyprus^{Footnote 104} and the enabling UK statute, the Cyprus Act 1960^{Footnote 105} and concluded the SBAs were not a new political entity distinguishable from the former Colony of Cyprus and resultantly, the Refugee Convention did apply to it. He stated that such a question could not be answered ‘by changes in nomenclature or administrative changes but the origins and nature of the political entity’. Collender J made important factual distinctions with Bancoult (No2)^{Footnote 106} in that the SBAs were remnants of the land that now constituted the Republic of Cyprus. However, Rumbelow and Whitburn JJ in the majority concluded that the SBAs were new political entities, each given a new system of government^{Footnote 107} as well as ‘fundamental changes in the purpose, nature and governance of the SBAs from those operating within the old colony’^{Footnote 108} (including harmonisation of laws with the new Republic of Cyprus). In an appeal in the SBA court, that court unanimously upheld the decision of the lower court, stating that looking at relevant documents, the SBAs were new political entities.^{Footnote 109}

In a further appeal to the Court of Appeal of England and Wales, again in a unanimous decision, Lord Irwin (with Lord Justices Jackson and Briggs) stated that the ‘new political entity’ test was not easy in its application.^{Footnote 110} A territory may undergo substantial internal change with its metropolitan power not shedding its obligations for it under international law.^{Footnote 111} Interestingly, Lord Irwin noted the post-hearing submissions of the Secretary of State that the colonial institutions of the Colony of Cyprus (Executive Council, Village Commissions, and Municipal Corporations) no longer existed, but clarified that these were not markers of a different political entity.^{Footnote 112} Lord Irwin held that the legal context was the most important consideration and that despite the significant changes in the size and internal arrangements of the SBAs, they were ‘constitutionally and politically … a continuation of what had gone before’ and thus were fundamentally different from the BIOT.^{Footnote 113} As a result, the UK’s obligations under the Refugee Convention continued.^{Footnote 114} This was recently affirmed in 2018 by the UK Supreme Court.^{Footnote 115}

There are several important points to take from this judgment. The first is that Lord Hoffman’s test is not presumed to have been defeated in the face of the metropolitan’s continuing obligations for the territory under international law.^{Footnote 116} Second, new political institutions do not amount to satisfaction of the test. As Lord Irwin stated ‘even very major constitutional or political changes cannot be said automatically to create a new political entity’.^{Footnote 117} The majority and minority rulings in the SBA Senior Judges Court were arguably analogous but focussed on different facts that produced different conclusions. Thirdly, and perhaps most relevantly, the judgment appears to be a tacit admission that colonial governance structures persist in at least some of the BOTs and demonstrates the UK courts’ willingness, albeit indirectly, to deal with the question of whether BOTs are modern-day colonies.

Colonial governance: Provisions illustrating the persistence of colonial constitutionalism in the BOTs

Identifying the persistence of colonial constitutionalism involves tracking specific markers in constitutional developments in the BOTS from the imperial era to the post-colonial period to consider whether they further the design of colonial governance. There are several types of constitutional provisions and conventions that demonstrate colonial governance. In other words, they enable the United Kingdom to intervene in the domestic and external affairs of its overseas territories. While the following is not an exhaustive list,^{Footnote 118} they identify some of the archetypal provisions of colonial constitutional intervention.

As this is only intended as an inauguration of post-colonial constitutional theory as applied to BOTs, there is a concentrated focus on Gibraltar and the historical development of such types of provisions in the territory, with occasional references to other territories. Among the 14 BOTs, Gibraltar is the only one that is a member of the European Union and exhibits – perhaps beside some of the Caribbean-based BOTs – one of the highest levels of self-government and financial independence. It is one of only two European BOTs and so intuitively, appears to be anathema to the notion of a post-colonial Europe (which undertook rapid decolonisation in the 1940s, 1950s and 1960s). Further, notwithstanding their desire for greater constitutional reform, elected officials in Gibraltar have often strongly contested at the United Nations that the territory is governed by a colonial relationship. In this vein, after the passing of United Nations General Assembly Resolution 1541(XV),^{Footnote 119} a former Chief Minister of Gibraltar, Joshua Hassan, emphasised that the relationship between the UK and Gibraltar was not a colonial one.^{Footnote 120} Over the years, Gibraltar has made persistent representations at the UN to secure recognition of its right to self-determination.^{Footnote 121} Indeed, it has a high GDP, a diverse economy and the scope of ministerial powers is broad. Moreover, political conventions mean that, despite not being able to commence, negotiate and conclude international treaties, the UK will typically consult Gibraltar on such matters.^{Footnote 122} However, the provisions of colonial governance, as evidence of the persistence of colonial constitutionalism, are prevalent in all BOT constitutions and have endured since the time of their initial acquisition by Great Britain.

Powers of the monarch: Prerogative instruments, POGG powers, disallowance and royal assent

The powers of the Monarch in the BOTs are a major mode of colonial governance which demonstrates the persistence of the colonial. They are manifested in a series of prerogative instruments – in particular, the Peace, Order and Good Government (POGG)^{Footnote 123} provisions – the powers to disallow local legislation, the power of the Governor to reserve bills ‘for HM signification’, and various land acquisition powers.

Firstly, it is important to briefly outline how the Monarch’s powers operate over their territories. In the BOTs, HM would retain general legislative and executive powers to act for those territories through the Royal Prerogative. However, if the Royal Prerogative is used to establish a representative assembly,^{Footnote 124} such general legislative power is displaced, unless that power is then expressly reserved.^{Footnote 125} This is the case for instance, in eight out of the 14 BOTs,^{Footnote 126} which have representative assemblies. The Royal Prerogative can be used to issue a range of different types of prerogative instruments. These may include proclamations, letters patent or Royal Instructions issued to the Governor to perform a particular set of tasks. However, the obligation upon the Governor to exercise the powers of his office in accordance with instructions issued by her Majesty^{Footnote 127} persists till today.^{Footnote 128} Bermuda^{Footnote 129} and Pitcairn Islands^{Footnote 130} for example, provide for the Governor to act subject to such instructions as may be issued by HM.

The royal prerogative and the peace, order and good government power

The ‘peace, order and good government’ (POGG) power is a major expression of the prerogative powers enshrined in the constitutions of the BOTs. The POGG powers are as old as British colonialisation efforts^{Footnote 131} and are constitutional provisions that confer large, plenary legislative powers on the grantee.^{Footnote 132} As the House of Lords affirmed in Bancoult No. 2,^{Footnote 133}

The POGG powers have a chequered history in Gibraltar. They first appeared in 1830 with the issuing of the Fifth Charter of Justice ^{Footnote 135} which effectively gave the Crown exclusive legislative powers which were to be exercised on the ‘advice and consent’ of the Westminster Parliament, HM Privy Council or the Governor of Gibraltar.^{Footnote 136} The POGG power also appeared in Letters Patent issued in 1910.^{Footnote 137} Here, the power was bifurcated between the Governor, who exercised the primary ‘day-to-day’ POGG powers (‘primary POGG’), and residual or reserve POGG powers apportioned to the Crown (‘HM residual POGG’) with accompanying Royal Instructions^{Footnote 138} setting limitations on the exercise of the Governor’s POGG powers.

The bifurcation of the POGG power persisted in the Gibraltar (Legislative Council) Order in Council 1950. However, there were two important changes to the primary POGG power. First, the establishment of a newly created Legislative Council meant the Governor lost exclusivity. Instead, the power had to be exercised on the ‘advice and consent’ of the partially elected Legislative Council, a moderate concession to self-government. Second, the drafters built in a contingency provision into the primary POGG power^{Footnote 139} in providing the Governor with a reserve power to enact bills in the ‘interests of peace, order and good government’ should the Legislative Council fail to do so. Though this came attached with an obligation to notify the Secretary of State for the Colonies and members of the Council could voice objections, it fundamentally gave the governor (as the representative of the Crown) considerably wide legislative scope to usurp the power of the legislative council.^{Footnote 140} This bifurcation followed the line of classic colonial constitutional law described by Keith thus:

In the 1969 Constitution, the newly created Legislature exercised the primary POGG power but this consisted of ‘the Governor and the Assembly’.^{Footnote 142} Further, the exercise of the primary POGG power was still ‘subject to the provisions of the constitution’. In 2006, the primary POGG and HM residual POGG remained largely unchanged from the 1969 Constitution except that ‘the Legislature’ had been redefined to ‘consist of Her Majesty and the Gibraltar Parliament’.^{Footnote 143} This means the Governor is no longer constitutionally a part of the newly named legislature presaging a greater advance toward self-government. However, unusually, a new, third POGG-related contingency power is given to the Governor to withhold assent or reserve bills for the signification of HM’s pleasure if they are repugnant to ‘good government’.^{Footnote 144}

Further, a fourth POGG power is established under section 38(3) allowing the Governor to ignore the advice of the Chief Minister to dissolve Parliament or do so in the absence of such advice ‘if he considers that the good government of Gibraltar requires him to do so’. Given the manner in which this has been judicially interpreted – to give the appointee plenary powers – this opens up the possibility of the Governor to dissolve the Gibraltar Parliament for a potentially broad and wide-ranging number of reasons. Further, and perhaps most importantly, all these observations must be coupled with the fact that the most enduring feature of Gibraltarian constitutionalism is, without question, HM residual POGG power; the pristine form of colonial governance,^{Footnote 145} which has persisted largely unchanged from 1830. The nature of reform therefore, may be likened to constitutional somersaulting whereby concurrent advances in self-government are undermined by constitutional provisions of colonial governance. This tension, symptomatic of BOT constitutional reform across the board, is well captured thus:

Constantine’s observations here reflect the core issue with the governance and status of the BOTs in how they illustrate the persistence of the colonial.

Moreover, HM reserve POGG powers exist in every single constitution of the BOTs except for Bermuda which only has a primary POGG power that underwrites the legislative power of its Parliament.^{Footnote 147} The use of the reserve POGG powers have also been the source of much litigation. For example, in the Turks and Caicos Islands, HM reserve POGG powers^{Footnote 148} were used by the UK government to exercise direct rule, through the Governor, after allegations of corruption levelled by the Auld Report.^{Footnote 149} Challenges to the legality of HM POGG began on behalf of the former Premier of the Turks and Caicos, pending implementation of one of the recommendations of the report.

In R (on the Application of Misick) v Secretary of State for Foreign and Common Wealth Affairs,^{Footnote 150} the former Premier sought permission for judicial review pertaining to the legality of the Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (2009 Order).^{Footnote 151} This would have the effect of temporarily suspending parts of the Territory’s constitution, including removing the right to trial by jury, enshrined in section 6(g) of the Turks and Caicos 2006 Constitution and replacing the representative government by a system of direct administration by the Governor of the territory. Indeed, the UK government used this power of direct rule on Turks and Caicos from 2009 to 2012. The 2009 Order was made pursuant to the HM POGG powers in section 5(1) West Indies Act 1962 (which also provided the basis for the territory’s constitution).

Similarly, HM POGG powers were at the centre of the Bancoult litigation following the forced expulsion of the Chagossians in Diego Garcia. This expulsion was done under the Immigration Ordinance 1971 made by the Commissioner purportedly acting under powers conferred on him to make laws for the peace, order and good government of the BIOT.^{Footnote 152}

Disallowance of, and assent to legislation

In addition, the Crown also has the power of disallowance that enables it to nullify locally enacted legislation. This is a significant colonial governance mechanism though it is used rarely and, ostensibly, exists primarily to disincentivise objectionable local laws such as those which may be unconstitutional or those that might undermine international obligations.^{Footnote 153} Gibraltar once again is an interesting case among the BOTs on this issue. It has had powers of disallowance codified in its various constitutional instruments since antiquity including section 24 Gibraltar (Legislative Council) Order 1950 and section 37, 1969 Constitution. However, in the 1999 consultation, the Gibraltar Assembly’s Select Committee on Constitutional Reform suggested the removal of this provision.^{Footnote 154} Now, Gibraltar stands as the only BOT among the 14 where the Crown has no power of disallowance – a significant advancement toward self-government.

In the Bermudian constitution, the powers of disallowance are uniquely narrow.^{Footnote 155} Nonetheless, a typical disallowance provision in the other BOTs’ constitutions, say for example in the BIOT^{Footnote 156} or St Helena, Ascension and Tristan da Cunha,^{Footnote 157} confers power on the Crown to disallow any law which the Governor has assented to and the notice of disallowance – significant for the courts – comes into effect the moment it is published in the Gazette. Note here how the justification for the disallowance powers speaks to the persistence of colonial constitutionalism, namely that the peoples of the BOTs are perceived to lack the maturity to be entrusted with their own affairs, even in the context of a democratic polity. The propriety of this justification can only stand in the context of imperial paternalism that substantially foregrounded the colonial enterprise from centuries ago.

Relatedly, each territory with a legislative assembly will require assent by or on behalf of HM. However, there are variations among the BOTs that outline the circumstances in which the Governor may give or withhold assent or the instances in which they may or must reserve a bill ‘for the signification of Her Majesty’s pleasure’. This stock phrase requires bills to be sent to London for assent by HM on the advice of her UK government ministers (rather than those of the territory). In Gibraltar’s current 2006 Constitution for example, the Governor may only reserve assent for HM signification if a bill appears to be ‘repugnant to or inconsistent with the constitution’^{Footnote 158} and may only withhold assent, if it is incompatible with any international legal obligation or repugnant to good government^{Footnote 159} – though the latter, as a lexical variation of POGG powers, may have plenary scope.^{Footnote 160} This situation is in contrast to that in the British Virgin Islands where, for example, the Governor has no power to withhold assent but only a limited choice of assent or reservation for HM signification in certain scenarios.^{Footnote 161} Still, whether it is the former or the latter of these variations, the presence of these provisions emphasises the persistence of the colonial in the political, social and legal structures of governance in the BOTs.

The role of the Governor

The existence of the office of Governors^{Footnote 162} and more fundamentally, their powers, is a clear signifier of the persistence of colonial constitutionalism in the BOTs. Governors serve as the Crown’s representative and head of government in the Territories, and are significant vestiges of colonial governance. Though Governors may be considered to wear two hats – as a voice of the territory to the UK government and as the Crown’s representative in the territory – constitutionally, their role is very much the latter. Given that their office flows from its position as representative of the Queen, the Governor is the head of government of the BOT,^{Footnote 163} and generally exercises varying levels of both executive^{Footnote 164} and legislative functions.

Governors’ executive powers

Commonly, Governors’ executive functions include responsibility for external affairs, defence, internal security and responsibility for the public service, assignment of responsibilities of local Ministers, proroguing powers, powers of appointment, and powers to constitute offices, powers of pardon, powers to dispose of Crown Land and emergency powers among others. In BOTs with permanent populations, the tendency is for the Governor to share powers with the local executive and legislative institutions. In BOTs with no permanent population (and thus in the absence of any locally elected governmental body), the Governor (or Commissioner/Administrator) will effectively^{Footnote 165} be the principal executive authority. For example, in the BIOT, the Commissioner has exclusive executive powers.^{Footnote 166} Similarly, the Commissioner in the British Antarctic Territory (BAT) has exclusive executive authority.^{Footnote 167} In the Pitcairn Islands, with a population of around 50 and which does have an elected Island Council,^{Footnote 168} the Governor exercises executive authority on behalf of the Crown.^{Footnote 169}

The demands for self-determination by peoples of various BOTs as well as the UK government’s declared policy recognising the legitimacy of such demands has led to significant changes in the Governors’ powers compared with those during the colonial period. Still, a careful examination of the changes demonstrates the persistence of colonial constitutionalism. This is particularly evident in Gibraltar despite significant changes in the local governance. Indeed, the Gibraltar experience is arguably a poignant representation of Lord Irwin’s view in the Bashir case^{Footnote 170} (stated earlier) that even major constitutional or political changes do not automatically create a new political entity. Primary executive power was vested in the Governor in its 1969 constitution^{Footnote 171} though the partially elected Gibraltar Council^{Footnote 172} were consulted in the formation of policy, with several broad exemptions.^{Footnote 173} Further, the Governor was obliged to act in accordance with the advice of a locally elected body – effectively a quasi-government – called the Council of Ministers^{Footnote 174} in defined domestic matters,^{Footnote 175} albeit with copious exceptions.^{Footnote 176}

The circumscription of the powers of the Council of Ministers as ‘defined domestic matters’ was scrapped in the 2006 Constitution. Instead, the Constitution outlines the Governor’s executive powers under ‘Special Responsibilities’^{Footnote 177} which includes external affairs, defence, internal security and such functions relating to public appointments. These powers must be exercised in consultation with the Chief Minister ‘as far as is practicable’. Positive though this is, to all intents and purposes, the Government of Gibraltar still has no constitutionally recognised right to conduct executive affairs which fall under the Governor’s ‘Special Responsibilities’. In other words, though this creates an obligation to consult the Chief Minister on such a broad range of governance issues, the Governor is not obliged to accept or implement the outcome of such consultation. It is important to keep in mind that these powers include negotiating international treaties and control of the police force which are significant.

The persistence of the colonial in this regard is even more marked in Bermuda. The Bermuda Constitution^{Footnote 178} does not obligate the Governor to either consult or act in accordance with advice from the Cabinet or minister in relation to external affairs^{Footnote 179} though it does provide the Governor with a discretionary power to delegate special responsibilities, including external affairs, to the Premier or other minister.^{Footnote 180} Even if, as Hendry and Dickson point out, the practice has been that of partial delegation of those powers,^{Footnote 181} the critical point is that the Governor is under no obligation to do so and thus, unlike the Gibraltar situation, a case cannot be sustained for even the need for consultation. The practice is mostly then a matter of the Governor’s political preferences (and by direct extension, the UK government) rather than a matter of constitutional obligation that advances self-government in that BOT.

Furthermore, in relation to the external affairs component of the Special Responsibilities of the Governor, the picture is rather different in some of the other BOTs. While leaving overall responsibility for external affairs to the Governor, there are constitutional provisions that involve locally elected ministers in the exercise of these powers. The Constitutions of the British Virgin Islands (BVI), Montserrat and Cayman Islands provide for even greater degrees of devolved responsibility pertaining to external affairs. Thus, there is a mandatory requirement for the Governor to delegate responsibility to ministers for the conduct of external affairs that fall within their portfolios in the BVI,^{Footnote 182} Cayman Islands^{Footnote 183} and Montserrat.^{Footnote 184} In addition, in the Cayman Islands, the Governor is obliged to consult the Cabinet in the exercise of external affairs insofar as it is reasonably practicable to do so and unless the matter is not materially significant such as to require consultation.^{Footnote 185} This ordinarily makes the provisions similar to that of Gibraltar. However, virtually uniquely, the Governor cannot commence, negotiate or approve a treaty or any international agreement that would affect internal policy or require implementing legislation without obtaining the agreement of the cabinet, unless instructed otherwise by the Secretary of State.^{Footnote 186} Thus, the external affairs provisions provide an interesting focal point to observe the tensions between persistent colonial governance and the advance toward self-government. ^{Footnote 187}

Governors’ legislative powers

The delineation of the Governor’s legislative powers, like the executive powers, are also contingent on whether there are locally elected ministers or not and, relatedly, whether the BOT has a permanent or substantial population. In six out of the 14 BOTs,^{Footnote 188} the Governor or variations thereof^{Footnote 189} are the principal legislative authority with varying obligations to consult, though not necessarily to follow, a local quasi-legislature/executive body.^{Footnote 190} These BOTs are those with either no permanent population or where the population is not substantial.

In those BOTs with a substantial population, there are variations too of the legislative powers of the Governor. The variations notwithstanding, the persistence of colonial constitutionalism are evident. Governors may have reserve powers that enable them to pass through legislation that may not be passed by the local democratic assembly, however defined. In Gibraltar, the Governor previously had plenary legislative powers,^{Footnote 191} subject only to limitations by the Crown (rather than any domestic government or legislature) up until the mid-twentieth century. However, the introduction of the Gibraltar (Legislative Council) Order in Council 1950 required the Governor to make laws ‘with the advice and consent of the council’, referring to a newly created, partially democratic legislative assembly into the law-making process. Nonetheless, this was subject to a reserve power^{Footnote 192} that enabled the Governor to enact bills in the ‘interests of peace, order and good government’ should the Legislative Council fail to do so. The Gibraltar Constitution Order 1969 subsequently removed this reserve power. The exercise of the newly formed Legislature’s^{Footnote 193} law-making power, however, was still ‘subject to the provisions of the constitution’. This included the Crown’s powers of disallowing legislation,^{Footnote 194} the Governor’s powers of withholding assent or reserving signification of bills for Her Majesty (HM)^{Footnote 195} and the Governor’s exclusive legislative power for matters outside ‘defined domestic matters’.^{Footnote 196}

Further, despite not having a blanket reserve power, the Governor could enact bills outside ‘defined domestic matters’^{Footnote 197} if it was unlikely to be passed by the Assembly or introduced by the Gibraltar Council^{Footnote 198} or in a limited number of areas within defined domestic matters in the interests of the ‘financial and economic stability of Gibraltar’.^{Footnote 199} Relatedly, an ouster clause precluded the possibility of review by the courts on ‘any question whether a matter is a defined domestic matter’ thus protecting imperial interests by empowering the Governor to have the final say.^{Footnote 200}

Therefore, while advances toward self-government were made in some respects by partially devolving the Governor’s legislative powers in Gibraltar, there were several imperial contingencies that ensured stop-gap measures for the Governor and, by extension, the UK metropole to maintain power. In the Gibraltar Constitution Order 2006, the Governor was removed from the Legislature, and the categorisation of defined domestic matters for law-making was removed. However, in a somersault that demonstrates again the persistence of colonial constitutionalism, the Governor was given the power to withhold assent or reserve bills for the signification of HM’s pleasure if they were repugnant to ‘good government’.^{Footnote 201} Similarly, in Anguilla, the Cayman Islands, and the Falkland Islands, their constitutions also provide the Governor with a reserve legislative power which may be invoked to enact a bill in prescribed areas or to push through bills they anticipate won’t be passed by the local legislature.^{Footnote 202}

The persistence of colonial constitutionalism framework of analyses reveals a spectrum of coloniality which discloses varying degrees of executive and legislative power exercised by the Governor (and de facto the metropolitan centre). Some BOTs evince greater advancement toward self-determination and self-rule, while others are governed almost entirely by the UK metropole through the Governor.

Colonial Laws Validity Act 1865 and the Interpretation Act 1978

As will become clear, it remains striking that the Colonial Laws Validity Act 1865 (CLVA) and the Interpretation Act 1978 have not been amended or even repealed altogether given their legal definitions that essentially class BOTs as colonies. These two important pieces of colonial legislation ought at least to have been amended since 1999 when the government formally set into motion its policy of self-determination for the BOTs and at the latest, by 2002 when the British Overseas Territories Act was enacted. Specifically, considering its visibility in the arguments of the UK government in two important recent cases involving BOTs; Bancoult No.2 and Misick ^{Footnote 203} it is telling that the government has proceeded with its declared policy of ‘partnership’ and commitment to self-governance and self-determination in the BOTs without efforts to repeal the CLVA as a whole or at least certain parts of it as well as Schedule I of the Interpretation Act 1978.

The common constitutional provisions of all 14 BOTs, such as the unlimited power of the UK Parliament to legislate for the BOTs, and the UK’s overall responsibility for their external affairs, effectively class them as colonies under Schedule 1, Interpretation Act 1978. The Interpretation Act provides that ‘colony’ means

Similarly, the CLVA would deem the BOTs as colonies despite the nomenclatural change from ‘dependent territories’^{Footnote 205} because Section 1 provides that

Further, Section 1 of the Act also defines ‘colonial law’ as laws made for any colony either by a colonial legislature^{Footnote 206} or by Her Majesty in Council.^{Footnote 207} Section 2 states that colonial laws are subject to the ‘repugnancy doctrine’. The repugnancy doctrine means ‘colonial laws’ so-defined are void and inoperative if they are counter to any Westminster Act of Parliament which extends to the BOTs, either expressly or by necessary intendment.^{Footnote 208} For the purposes of the CLVA therefore, all local laws (as colonial laws) made by the Legislatures of the BOTs are vulnerable to the repugnancy doctrine.

Importantly, Gibraltar and BIOT, who have Prerogative Orders in Council, rather than a Westminster Act of Parliament, as the legal bases of their constitutions (as is the case with the other 12 BOTs), are also considered colonial laws. This means their constitutions are vulnerable to the repugnancy doctrine and are only superior to local laws as a matter of statutory construction, namely that judges in the domestic jurisdictions will interpret provisions of the constitution as such. Contrastingly, the constitutions of the other 12 BOTs, whose legal bases are Westminster Acts of Parliament, are not colonial laws vis-à-vis Section 1 CLVA, are immune to the repugnancy doctrine, and importantly, are supreme over local laws. However, while this may seem like a qualitative distinction, it must be noted that the 12 BOTs whose constitutions are superior over local laws are only so by virtue of what is foundationally an imperial imposition by the Westminster Parliament. In other words, the supremacy of these constitutions derives from the UK rather from the domestic constitutional principles of sovereignty or supremacy; a classic case of the persistence of colonial constitutionalism.

BOTs and Westminster Parliament’s legislative supremacy

Another of the multiple mechanisms of colonial governance is the UK Parliament’s legislative supremacy, which also extends to all BOTs and provides Westminster with unlimited power to make laws for them.^{Footnote 209} Indeed, ‘there is no such thing as an illegal act of the Imperial Parliament; its power of legislation is plenary, and its edicts must be enforced in every court of law throughout the British Dominions, Possessions, and Protectorates’.^{Footnote 210} In contemporary practice, Acts of Parliament will often explicitly extend to the BOTs but will sometimes apply through necessary intendment. As stated earlier, the recent Sanctions and Anti-Money Laundering Act 2018, is a model reference point in this issue. A long-standing example is the equally controversial Colonial Prisoners Removal Act 1884 which requires the BOTs to extradite convicted criminals to the UK at their request to serve their sentences which was in fact used as recently as 2017.^{Footnote 211} As is typically the case, however, UK Acts of Parliament will usually confer power on a UK Government Minister to legislate for the BOT through an Order in Council.^{Footnote 212} One particularly telling example is the Emergency Powers (Overseas Territories) Order 2017^{Footnote 213} made in exercise of several Acts of Parliament.^{Footnote 214} This provides the Governor or equivalent administrator of the nine of the BOTs with broad intrusive powers which include proclaiming a public emergency and the ability to make regulations to restore order that range from detaining individuals,^{Footnote 215} requisitioning civilian property^{Footnote 216} to limiting the free movement of its inhabitants.^{Footnote 217}

Moreover, there is no constitutional obligation upon the UK Parliament to consult the BOTs, though ‘consultation is normally undertaken where practicable’ on laws that extend to them. Indeed, there is a general reluctance to use Westminster Acts of Parliaments to legislate on certain issues in the BOTs.^{Footnote 218} Fundamentally, however, though there may be a reluctance to legislate for the territories through Westminster Acts of Parliament – along with a convention of consultation with the BOTs if they do so, the principal criticism with this governance mechanism is, to put it mildly, a ‘democratic deficit’. BOTs are not constitutionally a part of the UK and have no representation in the Westminster Parliament. They are therefore subject to laws over which they have no constitutionally recognised role in. This is another enduring feature of colonial governance that has persisted since antiquity.