Last week we looked at some of the possible reasons behind this hare-brained scheme to pass a law stopping for a year the issuing of any new business licences except those approved by the Minister. This week we look at what is the effect of the new law.
As the lawyers are well aware, there are at least two issues bearing on the effect of the Moratorium Act. In the end, the law will be incapable of giving effect to the supposed policy decision of the government of Anguilla to limit the future start-up of new foreign-owned businesses.
The first issue is the principle of ‘ultra vires’. I will explain. The main Act, the Trades, Businesses, Occupations and Professions Licensing Act, at section 14 enables the Governor in Council to make regulations “prescribing anything required to be prescribed by this Act and generally for the better carrying out of the provisions thereof.”
This wording does not grant a power for the government to make Regulations as the Moratorium Act proclaims, “to regulate the grant of such licences in relation to clearly defined categories of enterprise and business activities having regard to the emerging needs of the economy of Anguilla and to protect and safeguard certain Anguilla businesses.” This wording is much wider than the principal Act allows. Regulations may be made only for the purposes set out at section 14. The principal Act does not permit or enable regulations to “define different business activities”, or to “take into account the emerging needs of the economy”, or “to protect Anguillian businesses.” The principal Act is purely a taxing Act. It is not one designed for regulating businesses, far less for regulating who can or cannot carry on any particular business.
The result is that any attempt by the government to make Regulations under the Trades, Businesses, Occupations and Professions Licensing Act to regulate the grant of Licences in relation to “clearly defined categories of enterprise and business activities (having regard to the emerging needs of the economy of Anguilla and to protect and safeguard certain Anguilla businesses)” will be illegal. In legal language the Regulations will be ultra vires, or outside the power, of the principal Act.
The second reason for the ineffectiveness of the Act, and the real issue, is the applicability of the Immigration Act. Under this Act, the government has all the powers it needs to regulate which non-Anguillians are permitted to enter Anguilla. This is the appropriate law for regulating which foreigners are allowed into Anguilla, and, in consequence, which of them can apply for a work permit or a Business Licence to be allowed to conduct business in Anguilla.
You may think it is perfectly appropriate for the government to determine that at this time in its history Anguilla has provided safe refuge for enough foreigners of a certain ethnicity, and to refuse to allow any more into the island to conduct business or otherwise. Immigration officers already issue all visiting foreign nationals with a tourist visa for a limited time. After that time is up, their continued presence on Anguilla is illegal.
Indeed, the Immigration Department can tomorrow send its officers around to every one of these business places in Anguilla, and round up and deport all of the many persons working illegally in them. All those ‘family members’ who have been granted work permits to be on the island for a year can be informed the permits will be rescinded when they expire. They do not have to wait for political instructions from the governor to carry out their duties. One has to wonder at the real reason for the failure to take this action.
If the Immigration Act is not strictly enforced, once the foreigner has been allowed into the island, he can easily arrange with his compatriots to pretend to be a cousin who is “helping out” in the shop. He does not need to apply for a Business Licence if he is merely a family member or an employee working in the shop. After a few years, when he has paid off his indentureship and learned some English, he can apply for his own work permit and Licence. With or without this Act, he will receive his Licence once he grants some favoured individual the usual pro bono publico 20% interest in the business. And, once he has resided here long enough to acquire local rights, he can close down his enforced partnership and start a new solely-owned business, free of its enforced partnership burden. He can apply for “belongership” and enjoy all Anguillian rights.
This Bill will be completely ineffective in stemming the flood of foreign entrepreneurs flowing unrestricted into Anguilla, if indeed that is the intention. We need to apply strictly the provisions of the existing Immigration Act. No new law is needed. We need to enforce the existing ones. Of course, this is a classic case of shutting the stable door after the horse has bolted.
The British Government has a fundamental objection to an Overseas Territory controlling immigration on the basis of race or religion. The result is that any local government which wants to protect local businesses from foreigners of a certain ethnicity will be obliged to find a way around British objections. There is no reason why they could not use the same techniques and procedures applied recently to stem the flow into Anguilla of Venezuelan and Santo Domingan businesswomen.
So, what is the reason for this legislative fiasco? It seems to me there are two explanations. First, the Bill was never previously published (other than on 13 February in the Official Gazette, which no one but a few lawyers reads) until it appeared on 18 February in the Order Paper for its second and third readings and passage into law in the House of Assembly two days later on 20 February. When the first reading of the Bill took place on 12 February 2019, there was no live link to the draft text on the Order Paper. Nor was the text of the Bill published anywhere else. No member of the public had any idea what was being proposed. This was highly unusual, and should have raised suspicions that something fundamentally wrong was being pursued.
Normally in Anguilla, a Bill is published long before it is passed into law. It is even circulated to the Bar for comment. This gives lawyers and members of the public a chance to make an input. Errors and omissions can be avoided. In this case, the text was published on the government website (by including a live link on the Order Paper) for the first time only two days before the debate and passage into law took place. No one outside the Executive Council knew in advance what was proposed so they could helpfully comment on it. No member of the public was afforded an opportunity to make any comment before it was rushed into law. This conduct was highly unusual, and gives rise to justifiable suspicion about the motives of the promoters of this Bill.
The second reason for the fiasco was that those responsible for the Bill waited until the Hon Pam Webster, the only member of the Opposition in the House, was absent from Anguilla. Since the text of the Bill was not published for the first reading, I doubt that she ever saw a copy prior to the passage of the Bill into law. This is more egregious conduct than giving members of the public no prior notice of the Bill. She sits as the sole member of the Opposition in the Anguilla House of Assembly, and was the only member of the House qualified or likely to speak in opposition. Where is the Accountability, Transparency and Integrity we were promised?
Will this prove to be a case of a lack of transparency being the petard upon which a Bill was hung? Or is this law merely an effort to put an even greater squeeze on foreign direct investment? With this law in place, maybe it becomes possible to demand a 30% shareholder interest from now on to ensure an exception is made.
For the complete article, see: https://donmitchellcbeqc.blogspot.com/2019/02/anguilla-business-licences.html
