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The Constitution of the British Virgin Islands is a predominantly
codified constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these pr ...
documented primarily within the Virgin Islands Constitution Order, 2007 a
statutory instrument In many countries, a statutory instrument is a form of delegated legislation. United Kingdom Statutory instruments are the principal form of delegated or secondary legislation in the United Kingdom. National government Statutory instrumen ...
of the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and ...
. The 2007 Constitution was the fourth written constitution of the
British Virgin Islands ) , anthem = "God Save the King" , song_type = Territorial song , song = "Oh, Beautiful Virgin Islands" , image_map = File:British Virgin Islands on the globe (Americas centered).svg , map_caption = , mapsize = 290px , image_map2 = Brit ...
, and superseded the 1976 constitution. In addition to the constitution itself, a number of the constitutional powers of the British Virgin Islands government are specified a " letter of entrustment" from the
Foreign and Commonwealth Office The Foreign, Commonwealth & Development Office (FCDO) is a department of the Government of the United Kingdom. Equivalent to other countries' ministries of foreign affairs, it was created on 2 September 2020 through the merger of the Foreig ...
which delegates powers to the British Virgin Islands government to represent itself in certain external affairs. The 2007 Constitution was adopted as part of a wider consultation between the United Kingdom and the
British Overseas Territories The British Overseas Territories (BOTs), also known as the United Kingdom Overseas Territories (UKOTs), are fourteen territories with a constitutional and historical link with the United Kingdom. They are the last remnants of the former Bri ...
. Accordingly, the Constitution is in substantially similar form to the constitutions of a number of other British dependent territories. The Constitution came into force immediately following the dissolution of the old Legislative Council prior to the 2007 general election. The new constitution adopted new nomenclature: the Chief Minister was renamed the
Premier Premier is a title for the head of government in central governments, state governments and local governments of some countries. A second in command to a premier is designated as a deputy premier. A premier will normally be a head of governm ...
, the Executive Council was renamed the
Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filin ...
, and the Legislative Council was renamed the
House of Assembly House of Assembly is a name given to the legislature or lower house of a bicameral parliament. In some countries this may be at a subnational level. Historically, in British Crown colonies A Crown colony or royal colony was a colony adm ...
. The Constitution is framed on the classic "
separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typi ...
" precept, although as with other Westminster system constitutions, there is a blurring of the distinctions between legislature and executive.


Constitutional history

The British Virgin Islands has had four written constitutions during its modern history. Although prior to 1954 various constitutional arrangements were made for the Territory in relation to its former colonial legislatures and executive councils, there are few direct records remaining in relation to those provisions. From 1901, when the original Legislative Council was formally dissolved, until 1950 the Territory was officially administered as part of the Leeward Islands Federation through the Governor of the Leeward Islands. Following civil unrest in 1947 the Territory was granted its first modern written constitution in 1950, although at this time it still remained part of the wider Federal Colony of the Leeward Islands. The main purpose of the 1950 Constitution was to re-devolve power back to the reformed Legislative Council in the British Virgin Islands from the Governor of the Leeward Islands. Historically it is regarded a holding measure. It was famously described by
McWelling Todman McWelling "Mac" Todman, (25 December 1923 - 7 March 1996) was a civil servant and lawyer from the British Virgin Islands who played an important role in the early political history of the Territory. Early life Mac Todman was born on Christmas ...
QC as "an instrument minimal in its intent and its effect." Historically it was a part of the process that eventually led to the more fundamental constitutional change. In 1954 the Constitution and Elections Act, 1954 was passed, which provided for universal adult suffrage for the first time in the Territory's history (the 1950 general election had been conducted on the basis of votes of landowners who were able to pass a literacy test – scarcely a representative sample of the population as a whole in 1950). The British Government had hoped that after the Leeward Islands Federation was abolished in 1956 the British Virgin Islands would join the new Federation of the West Indies, but there was little enthusiasm for that, and so eventually the 1967 Constitution was promulgated. The 1967 Constitution was eventually replaced by a revised and updated Constitution which came into force on 1 June 1977, and the 1976 Constitution was amended at various points, including in 1994 pursuant to the Elections Act, 1994 to introduce "at-large" representatives into the legislature. The 1976 constitution was in turn superseded in 2007 by the current form which came into force on 15 June 2007.


Framework

The constitution provides for a
unicameral Unicameralism (from ''uni''- "one" + Latin ''camera'' "chamber") is a type of legislature, which consists of one house or assembly, that legislates and votes as one. Unicameral legislatures exist when there is no widely perceived need for multi ...
House of Assembly House of Assembly is a name given to the legislature or lower house of a bicameral parliament. In some countries this may be at a subnational level. Historically, in British Crown colonies A Crown colony or royal colony was a colony adm ...
(legislature) based upon
representative democracy Representative democracy, also known as indirect democracy, is a type of democracy where elected people represent a group of people, in contrast to direct democracy. Nearly all modern Western-style democracies function as some type of represe ...
and a
multi-party system In political science, a multi-party system is a political system in which multiple political parties across the political spectrum run for national elections, and all have the capacity to gain control of government offices, separately or in ...
. The
head of state A head of state (or chief of state) is the public persona who officially embodies a state Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representatitve of its international persona." in its unity and ...
is the
British Monarch The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the constitutional form of government by which a hereditary sovereign reigns as the head of state of the United Kingdom, the Crown Dependencies (the Bailiw ...
, who is represented in the Territory by the
Governor A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...
. The Governor appoints as
Premier Premier is a title for the head of government in central governments, state governments and local governments of some countries. A second in command to a premier is designated as a deputy premier. A premier will normally be a head of governm ...
and
head of government The head of government is the highest or the second-highest official in the executive branch of a sovereign state, a federated state, or a self-governing colony, autonomous region, or other government who often presides over a cabinet, a ...
the leader of the party with the largest number of seats in the
House of Assembly House of Assembly is a name given to the legislature or lower house of a bicameral parliament. In some countries this may be at a subnational level. Historically, in British Crown colonies A Crown colony or royal colony was a colony adm ...
. Executive authority is vested in the
Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filin ...
which consists of the Premier, four other Ministers appointed by the Governor on the advice of the Premier, and the
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
, ''ex officio''.


Structure and provisions


Recitals

Prior to the commencement of Chapter I (but after the legal boilerplate Article 1) the Constitution contains a number of recitals relating to the heritage of the British Virgin Islands, which includes a professed national belief in God. The second paragraphs of the recitals contains the words: The recitals also contain an express statement: "the people of the territory of the Virgin Islands have over centuries evolved with a distinct
cultural identity Cultural identity is a part of a person's identity, or their self-conception and self-perception, and is related to nationality, ethnicity, religion, social class, generation, locality or any kind of social group that has its own distinct cultu ...
which is the essence of a Virgin Islander". This operates as a prelude to various provisions in the Constitution which reserve specific rights of privileges to Belongers. The remainder of the recitals are more generic and common in form to the constitutions of other British Overseas Territories, including "respect for fundamental rights and freedoms and the
rule of law The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannic ...
", the "quest for
social justice Social justice is justice in terms of the distribution of wealth, opportunities, and privileges within a society. In Western and Asian cultures, the concept of social justice has often referred to the process of ensuring that individuals ...
,
economic empowerment Empowerment is the degree of autonomy and self-determination in people and in communities. This enables them to represent their interests in a responsible and self-determined way, acting on their own authority. It is the process of becoming strong ...
and political advancement", governance based upon "based on adherence to well-established democratic principles and institutions" and " country based on qualities of honesty, integrity, mutual respect, ndself-reliance".


Chapter I: Interpretation

The first chapter of the Constitution simply sets out a number of defined terms and generally applicable principles. This includes the definition of "
belonger status Belonger status is a legal classification normally associated with British Overseas Territories. It refers to people who have close ties to a specific territory, normally by birth or ancestry. The requirements for belonger status, and the right ...
" under British Virgin Islands law.


Chapter II: Fundamental Rights and Freedoms of the Individual

The second chapter, which is made up of articles 9–34, lays out the fundamental rights and freedoms of those in the British Virgin Islands. The wording is broadly taken from documents such as the
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. Drafted by a UN committee chaired by Eleanor Roosevelt ...
and the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
, although there is a greater emphasis on the
right of self-determination The right of a people to self-determination is a cardinal principle in modern international law (commonly regarded as a ''jus cogens'' rule), binding, as such, on the United Nations as authoritative interpretation of the Charter's norms. It stat ...
. Chapter II expressly reserves the right to the British Virgin Islands Government to legislate in a way which is prejudicial to non-belongers. Article 27 permits the governor to declare a "state of emergency". The only time this power has ever been exercised was after
Hurricane Irma Hurricane Irma was an extremely powerful Cape Verde hurricane that caused widespread destruction across its path in September 2017. Irma was the first Category 5 hurricane to strike the Leeward Islands on record, followed by Maria two ...
in 2017. However the declaration is required to be either posted in the ''
Gazette A gazette is an official journal, a newspaper of record, or simply a newspaper. In English and French speaking countries, newspaper publishers have applied the name ''Gazette'' since the 17th century; today, numerous weekly and daily newspaper ...
'' or announced on radio – because of the devastation caused by the hurricane neither of those was possible. Accordingly, the declaration had to be "posted in public places".


Chapter III: The Governor

The third chapter, which is made up of articles 35–45, states that there shall be a
Governor of the British Virgin Islands The Governor of the Virgin Islands is the representative of the British monarch in the United Kingdom's overseas territory of the British Virgin Islands. The governor is appointed by the monarch on the advice of the British government. The ...
and describes the appointment process for that office. The chapter also sets out how the duties and powers of the Governor are determined, making reference to the role of the Queen through her Secretary of State. Article 37 of the chapter describes the times when an Acting Governor is required and the appointment process for that position.


Chapter IV: The Executive

The fourth chapter, which is made up of articles 46–61, sets out the structure and composition of the Executive. Article 46 provides that executive authority is vested in the
British Monarch The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the constitutional form of government by which a hereditary sovereign reigns as the head of state of the United Kingdom, the Crown Dependencies (the Bailiw ...
, and exercised through the Governor. The remainder of the Chapter sets out the appointment of Cabinet, which is constituted by the Premier, four other Ministers, and the Attorney General ''ex officio''. The Premier is appointed by the Governor as the head of the largest party in the House of Assembly. Other Ministers are appointed by the Governor on the advice of the Premier.


Chapter V: The Legislature

The fifth chapter, which is made up of articles 62–88, sets out the regulation and procedures of the House of Assembly, giving the House of Assembly the power to make laws, describing the sittings, voting and the
quorum A quorum is the minimum number of members of a deliberative assembly (a body that uses parliamentary procedure, such as a legislature) necessary to conduct the business of that group. According to '' Robert's Rules of Order Newly Revised'', the ...
of the House of Assembly, as well as detailing the role and election of the Speaker of the Legislative Assembly. The House of Assembly is
unicameral Unicameralism (from ''uni''- "one" + Latin ''camera'' "chamber") is a type of legislature, which consists of one house or assembly, that legislates and votes as one. Unicameral legislatures exist when there is no widely perceived need for multi ...
. The Governor has reserve powers to disallow laws passed by the House of Assembly and (in an emergency) to declare laws to have been passed in accordance with the constitution. The Chapter sets out both the qualifications and disqualifications for elected membership. It also confirms that the Governor, acting on advice of the Premier, has power to prorogue and dissolve the House of Assembly. The House of Assembly must be dissolved within four years of first sitting, and fresh general elections held. General elections must be held within two months, but not earlier than 21 days, after dissolution. The Constitution does not make express provision for privileges and immunities of the House of Assembly, but permits the Legislature to make laws to determine the same, provided always that such laws do not exceed the position in relation to the
House of Commons of the United Kingdom The House of Commons is the lower house of the Parliament of the United Kingdom. Like the upper house, the House of Lords, it meets in the Palace of Westminster in London, England. The House of Commons is an elected body consisting of 650 ...
.


Chapter VI: The Judiciary

The sixth chapter, which is made up of articles 89 and 90, sets out the provisions relating to the judiciary. This simply provides for the continuing authority of the Eastern Caribbean Supreme Court in the British Virgin Islands.


Chapter VII: The Public Service

The seventh chapter, which is made up of articles 91–101, specifies that there shall be a Public Service Commission, a Teaching Service Commission, a Judicial and Legal Services Commission and a Police Service Commission. The power to appoint, remove and exercise disciplinary control over the public offices judiciary, the police force is vested in the Governor who shall ordinarily exercise that power on the advice of the relevant Commission (there is no equivalent power for teaching posts).


Chapter VIII: Finance

The eighth chapter, which is made up of articles 102–109, regulates the powers of the Government of the British Virgin Islands over the public finances. The chapter provides for the Consolidated Fund for the storage of public funds, and article 104 regulates the authorisation of expenditure. Article 106 creates a
Contingencies Fund A contingencies fund or contingency fund is a fund for emergencies or unexpected outflows, mainly economic crises. European Union The European Union created a vast contingency fund in 2010 to counteract the Great Recession. India The Constituti ...
, to be used in the event of an urgent and unforeseen need for expenditure. Use of the fund requires the approval of the House of an Assembly by way of an appropriation Bill.


Chapter IX: Complaints Commissioner

The ninth chapter, which is made up of articles 110–112, sets out the procedure for the appointment of a Complaints Commissioner and describes its process and function. The first Complaints Commissioner was the former Deputy Governor, Mr
Elton Georges Marvie Elton Georges (1 May 1943 – 5 April 2018) was a British Virgin Islander politician and businessman. Georges served in a number of public offices, but most notably as the Deputy Governor of the British Virgin Islands from 1983 to 2003, ...
. In May 2015 he was replaced by Sheila Brathwaite. The Complaints Commissioner appears to be the least well functioning part of the Constitution; although Complaints are reported and then investigated, the usual outcome is that the relevant Government department simply ignores the findings.


Chapter X: Miscellaneous

The tenth and final chapter, which is made up of articles 113–119, deals principally with revocations and the continuing validity of existing laws and offices and officers. Article 119, the final article, provides:


Public offices

The Constitution provides for various public offices in the British Virgin Islands. These include: *
Governor A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...
* Deputy Governor *
Premier Premier is a title for the head of government in central governments, state governments and local governments of some countries. A second in command to a premier is designated as a deputy premier. A premier will normally be a head of governm ...
* Ministers of Government *
Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filin ...
Secretary *
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
* Director of Public Prosecutions * Speaker of the House of Assembly * Deputy Speaker of the House of Assembly *
Leader of the Opposition The Leader of the Opposition is a title traditionally held by the leader of the largest political party not in government, typical in countries utilizing the parliamentary system form of government. The leader of the opposition is typically se ...
*
Auditor General An auditor general, also known in some countries as a comptroller general or comptroller and auditor general, is a senior civil servant charged with improving government accountability by auditing and reporting on the government's operations. Freq ...
* Complaints Commissioner


Commissions, councils and committees

The Constitution also provides for various public commissions and committees. These include: * a human rights commission * an advisory committee on the
prerogative of mercy In the English and British tradition, the royal prerogative of mercy is one of the historic royal prerogatives of the British monarch, by which they can grant pardons (informally known as a royal pardon) to convicted persons. The royal prero ...
* a National Security Council * a Public Service Commission * a Teaching Service Commission * a Judicial and Legal Services Commission * a Police Services Commission


Amendments

The 2007 constitution has never been amended (although previous constitutions had been), nor have any of the letters delegating authority to the Territory to manage its external affairs. However, in 2010 the Premier at the time, Ralph O'Neal, publicly stated that the constitution may soon have to be amended to delegate further powers to the Territory from the United Kingdom. In 2016 the subsequent Premier, Orlando Smith, also called for further constitutional review.


External Affairs

Under the Constitution the Governor is given responsibility for all external affairs, and in practice this power is exercised by or under the direction of the Foreign and Commonwealth Office. However, the Constitution also provides that this power is then to be delegated by the Governor either to the Premier or a Minister of Government in relation to a number of specific areas: # the Caribbean Community, the Organisation of Eastern Caribbean States, the Association of Caribbean States, the
United Nations Economic Commission for Latin America and the Caribbean The United Nations Economic Commission for Latin America and the Caribbean, known as ECLAC, UNECLAC or in Spanish and Portuguese CEPAL, is a United Nations regional commission to encourage economic cooperation. ECLAC includes 46 member States (2 ...
, or any other Caribbean regional organisation or institution; # other Caribbean regional affairs relating specifically to issues that are of interest to or affect the Virgin Islands; # the relationship between the British Virgin Islands and the
United States Virgin Islands The United States Virgin Islands,. Also called the ''American Virgin Islands'' and the ''U.S. Virgin Islands''. officially the Virgin Islands of the United States, are a group of Caribbean islands and an unincorporated and organized territory ...
in matters of mutual interest; # tourism and tourism-related matters; #
taxation A tax is a compulsory financial charge or some other type of levy imposed on a taxpayer (an individual or legal entity) by a governmental organization in order to fund government spending and various public expenditures (regional, local, o ...
and the regulation of finance and financial services; and #
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
matters directly affecting the interests of the British Virgin Islands. Pursuant to a "letter of entrustment" dated 13 June 2007 the British Government has devolved wide discretion to the Government of the Territory to manage its own external affairs, and adds that the British Government would give "sympathetic consideration" for requests to take action on other matters.


Constitutional challenges

In the comparatively brief history of the 2007 constitution, there has only been one legal challenge brought against it to date. In 2012 two police officers brought proceedings against the Acting Chief of Police, David Morris, and the Governor, Boyd McCleary, alleging that the Police Service (Delegation of Powers) Regulations, 2012 were unlawful under article 97(5) of the Constitution. Their claim eventually failed.


Hickinbottom Report

In the
British Virgin Islands 2021 Commission of Inquiry The British Virgin Islands 2021 Commission of Inquiry was a public inquiry commissioned by the then Governor of the British Virgin Islands, Augustus Jaspert. The terms of reference were to make "a full, faithful and impartial inquiry into whether ...
, Sir Gary Hickinbottom recommended that the Territory's constitution be suspended and reviewed.


Footnotes


External links


Virgin Islands Constitution Order, 2007 (SI No 1678 of 2007)
{{Americas topic, Constitution of, title=Constitutions of states and dependencies in the Americas 2007 in law 2007 in the British Virgin Islands
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these pr ...
British Virgin Islands ) , anthem = "God Save the King" , song_type = Territorial song , song = "Oh, Beautiful Virgin Islands" , image_map = File:British Virgin Islands on the globe (Americas centered).svg , map_caption = , mapsize = 290px , image_map2 = Brit ...