Can money be levied or appropriated without the explicit authority of an elected body?
The basic case is?
April 2, 2014 at 8:10 am #48
In 2009 after the completion of a commission of inquiry lead by Sir Robin Auld, the UK government decided to temporarily amend the Turks and Caicos Constitution Order 2006 with the resulting in elected government be discontinued in the TCI. The effect of this amendment was to give full discretionary power to the Governor, both legislative and executive. There are a variety of legal issues or controversies in relation these events. However the question of “taxation without representation” goes tot he very heart of whether it was possible or legitimate to take direct control in this way.
In late 2012 new elections were held and elected government was resumed. However, all this was done under a new revised constitution. The Turks and Caicos Constitution Order 2011 gave wide ranging powers to the UK appointed Governor and Chief Financial Officer. These additional executive powers include discretion to change levies and taxation as well as authorize or unauthorized appropriation.
In the UK taxation and appropriation are exclusively reserved to Parliament. This is substantially as a result of provisions in English Bill of Rights 1689. The primary provision is “That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal” but it is also supported by the provision “That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal”. These provisions remain central to the necessary process adopted to authorize taxation and appropriation in the UK and is most evident in the parliamentary bill for the annual budget.
So the question is, do these laws have similar effect in the Turks and Caicos Islands? If there were not considerable reasons to believe that the English Bill of Rights 1689 was not in full force and effect in the Turks and Caicos Island, “Law Against Injustice” would not have come into existence. The principle reason for it’s birth is to comprehensively answer this question.
The principle reasons in favour of believing that the Bill of Rights is binding on the TCI are as follows…
While Parliamant’s statutory law is does not ordinarily extend beyond England & Wales or those jurisdictions that are explicitly provided for in each statute, there is also another alternative route to establish that a statute is in effect for a particular jurisdiction or jurisdictions. This is has been stated as being by “necessary intendment”. The Colonial Laws Validity Act 1865 is particularly helpful in determining the force and effect of laws in all the colonies.
There are two particularly relevant parts to the CLVA as follows:
“An Act of Parliament, or any provision thereof, shall, in construing this Act, be said toextend to any colony when it is made applicable to such colony by the express wordsor necessary intendment of any Act of Parliament”
“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.”
Therefore it is a matter of certainty that is the if the English Bill of Rights is necessarily intended for the Turks and Caicos Islands, any attempt to raise levies or appropriate funds for public use would be illegal without grant of Parliament. The real question is whether this Act was intended for the Turks and Caicos Islands? If it was, it would have similar effect as it does in the UK.
In order to establish the answer to this question it is useful to divide the Colonies into to two types. Colonies are either ceded or settled. The basis of law is quite different depending on how the colonies came into existence. In a ceded colony the law remains the law that which was in existence prior to being ceded until the law is changed by the head of State or Sovereign; this is known as a Prerogative act. However, in the case of a settled colony the law is said to follow the flag; meaning that without the law known and obeyed by the settlers there would be no law at all. As a result a settled colony can only change it’s laws if it becomes independent or has a devolved legislature.
The key difference is that if law was made by the King or Queen through the Prerogative, it must be capable of being unmade; although there is some controversy over whether this remains true. On the other hand, if law followed the flag the law can only be changed or made by Parliament itself. In the case of the Turks and Caicos, the UK considers it to be a settled colony. On that basis the law must have followed the flag until such time as a devolved legislature was formed.
There was no devolved legislature in 1689 or for some time afterwards. In fact the two English colonies of Bermuda and the Bahama Islands both claimed authority to the TCI and the dispute was not resolved until 1799 when the King annexed it the Bahama Islands. Therefore the TCI remained an unofficial distinct colony of England until 1799 but had no authority to make it’s own law. The only law was that which followed the flag.
The English Bill of Rights has a special status in the UK along with a number of other statutes. It is considered to be of fundamental constitution importance and is part of the English constitution itself. It not only resolves issue such a the limit of the Prerogative and the limit of the executive raising levies but also is the basis of the succession. It is for these reasons that the courts have maintained that it is incapable of amendment except explicitly to the Act itself.
It is inconceivable that the English Bill of Rights does not extend to and have territorial effect in all settled colonies. Without it the Crown would have no basis at all. It is even more inconceivable that it did not follow the flag.
Based on this brief analysis, it is reasonable to suggest that in any Act of Parliament it is implied that the provisions of the Bill of Rights are in effect. In the case of the TCI, the West Indies Act 1962 is the enabling Act for all administration, establishment of courts and the devolved legislature. There is absolutely nothing in this Act to suggest that the provisions of the English Bill of Rights were intended to be overridden or amended.
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