The British Empire and the rule of law

Tom WickerMonday 21 March 2022

Following Britain’s exit from the European Union, the UK is reshaping its relationship with the rest of the world. That includes the Commonwealth countries, British protectorates and crown dependencies.

Since the UK left the European Union in January 2020, commentators have turned a spotlight on its other alliance of jurisdictions: the political association of 54 member states comprising the Commonwealth. Nearly all of these states are former colonies of the British Empire.

The Commonwealth dates to 1949 and its formal constitution by the London Declaration. This followed the decolonisation of the British Empire, superseding its original creation as the Commonwealth of Nations, and established the member states as ‘free and equal’.

The UK’s Queen Elizabeth II is the head of state of 15 of the Commonwealth member states, while 34 other members are republics and five more have other monarchs. Member states have no legal ties, but must agree to shared values of democracy, human rights and the rule of law.

The decision by Barbados in 2021 to become a republic and cut ties with the UK’s monarchy made it the fourth Caribbean country to break away from what many see as a discomfiting colonial reminder. There are also fierce debates over the value of the UK’s judicial oversight in connection with key issues, such as the constitutionality of the death penalty, as seen most recently in regard to Trinidad.

What, then, is the practical reality – and, most importantly, the future – of the Commonwealth, as well as the British Overseas Territories and crown dependencies? Does it mean anything more substantial than coming together for the Commonwealth Games every four years?

A law in common

Javier Canosa is Co-Chair of the IBA International Commerce and Distribution Committee and a corporate and M&A partner at Canosa Abogados in Argentina. His clients ‘feel more secure when they need to regulate a relationship between partners’, he says, when their relationship is regulated in the Commonwealth. ‘In established Commonwealth jurisdictions, they know the rules and standards – what their rights are’, he explains. ‘Whereas, in some continental countries, you never know.’

Indeed, reflecting on the tax haven reputations acquired by jurisdictions such as the British Virgin Islands or the Cayman Islands, which are both British Overseas Territories, Canosa says they’ve become popular low-tax destinations precisely because international entities are familiar with – and reassured by – their legal systems. He contrasts this with other jurisdictions, which ‘would like to be in that sector, and the rule of law is lacking’.

Paul Usoro is Secretary of the IBA Rule of Law Forum and a prominent litigator with his law firm Paul Usoro & Co, and was President of the Nigerian Bar Association between 2018 and 2020. Nigeria became a republic in the early 1960s but remains a member of the Commonwealth. Simply by dint of the colonial history of the association, ‘we all operate under the common law system’, Usoro says. ‘Which means most issues of the rule of law are the same for countries throughout the Commonwealth.’

Where he sees problems arising is in the disparity in resources between the UK and some of the Commonwealth member states. This ranges from a lack of access to – and training in – technology for virtual hearings, to the more complex question of who controls the funds for a judiciary. ‘In some instances, you find that it’s the executive branch that controls the purse,’ he says, ‘and their priorities don’t always align with those of an independent judiciary’.

Usoro does note, however, that the pandemic has accelerated developments such as fast-tracking cases, even if Nigeria’s infrastructure still heavily relies on time-consuming manual applications for hearings. Even with a shared rule of law, a basic lack of funding and technology can still hinder proceedings. ‘And Nigeria is much better than some places’, he adds.

The UK’s continued role

But beyond a shared history, how much active involvement does the UK have in the rule of law in Commonwealth member states? How much sway does it have when allegations of corruption arise?

That’s tricky, says Mutembo Nchito, a former Zambian Director of Public Prosecutions and a partner at Nchito & Nchito Advocates in Lusaka. ‘Contact with the UK legal system tends to be more “collaborative”’, he says. In practice, he explains, this has seen the UK running anti-corruption training over the years, ‘to support local efforts’.

However, reflecting on his time as a Director of Public Prosecutions, Nchito says that when prosecuting one of Zambia’s former presidents for corruption and abuse of office, ‘we were able to retain counsel in the UK’. This was very useful, he says, ‘because it would probably have been difficult, if not impossible, to bring a civil action here against a former head of state’.

In his experience, he has also found it ‘relatively easier’ to obtain case evidence and details from the UK than elsewhere.

Prince Charles at Presidential Inauguration Ceremony as Barbados becomes a republic, in Bridgetown. 30 November 2021. REUTERS/Jonathan Brady/Pool

The primary way in which the UK still becomes involved in disputes and investigations in Commonwealth jurisdictions is via the Judicial Committee of the Privy Council. It shares its judges and administrative functions with the UK Supreme Court. A legacy of the British Empire, it hears judicial appeals, and is sometimes the court of last resort for the Commonwealth, crown dependencies and British Overseas Territories.

In November 2021, the Privy Council heard an appeal challenging the constitutionality of mandatory death sentences in Trinidad and Tobago. Elsewhere, the UK established an inquiry in January 2021 into allegations of long-running, widespread corruption and intimidation in the British Virgin Islands. In both instances, the UK has been criticised for previously not doing enough to uphold human rights and the rule of law – key values enshrined in the Commonwealth charter – in these places.

John Almeida has first-hand experience of these issues. As well as being Legal Director at UK-headquartered law firm Charles Russell Speechlys, he is Vice-President, Europe, of the Commonwealth Lawyers Association. He specialises in constitutional, administrative and public law and has particular experience in human rights.

During his career, Almeida has appeared in many Commonwealth courts and been part of the Judicial Committee of the Privy Council. He became involved with the Privy Council in the late 1970s, when it was still the final court for Malaysia and Singapore. He has since seen those jurisdictions and successive other member states sever their links with the Privy Council as the highest court of appeal, in favour of their own high courts.

‘We’ve reached a situation where, apart from the dependent territories, you have the Caribbean using [the Privy Council]’, he says. However, even before Barbados became a republic in 2021, it had replaced the Privy Council with the Caribbean Court of Justice, based in Trinidad. ‘In effect, this sits alongside the Privy Council’, says Almeida.

The Caribbean Court of Justice, he says, ‘acts as Original Jurisdiction in relation to CARICOM intergovernmental disputes’. CARICOM is an intergovernmental organisation of 15 member states throughout the Caribbean, with the primary objectives of promoting economic integration and cooperation, in ways not dissimilar to the EU.

With ever fewer countries using it as their final court of appeal, what does the future hold for the Privy Council? Almeida’s answer is surprising. ‘Over the years, I kept being told that its days were marked because of how the world has changed’, he says. ‘But although the Caribbean’s independent territories have evolved and become more economically self-sufficient, the people in these jurisdictions maintain the need to keep links with the Privy Council. The number of cases from some of these jurisdictions has increased.’

He points out that so far, only three Caribbean jurisdictions have made the Caribbean Court of Justice their final court. This, he suggests, is because most jurisdictions require a change on law and referendums. And, at the 22nd Commonwealth Lawyers Association conference last year in Nassau, he says it was clear that the tendency to still turn to the Privy Council is a source of irritation for judges in the Caribbean Court of Justice.

The Commonwealth in a post-Brexit world

However, Almeida is also clear that the relationship between the UK and the Commonwealth states isn’t ‘as strong as it could be’. He says this is due to how, historically, the UK had, as it became a member of the EU, moved away from and ‘ignored, to a large extent, the Caribbean and smaller countries in favour of the big jurisdictions, where there’s always enticement of their large economies and economic potential’.

Javier Canosa is blunt about the prospects of the UK forming an alternative to the EU with Commonwealth jurisdictions. ‘It depends on what’s going [on] in politics there’, he says. If a post-Brexit UK can maintain a voice independent from Europe, the Organisation for Economic Co-operation and Development (OECD) and even the US, ‘I think the Crown Dependencies and Commonwealth will be happy to be in that club’.

However, he asks, ‘if the UK becomes closer to France or the OECD, will those jurisdictions feel orphaned? Bermuda isn’t Germany. It doesn’t make BMWs and the English like to drive their BMWs’, Canosa says.

Canosa still sees this as an opportunity for the UK to open itself up to the wider world commercially and legally. ‘Its best export is still its legal system’, he says.

Now in a post-Brexit world, Almeida says that while the UK government would deny that it’s been challenging, privately ‘its attempts to reconnect’ with these jurisdictions ‘haven’t gone down well at all’. ‘Because the UK is no longer part of the EU, it’s seen as trying to make deals and rebuild relationships with countries that it wasn’t previously interested in’, he says.

And the relationship between the UK and the Commonwealth is likely to always be shadowed by its colonial past. Bruce Ian Macallum is Secretary-Treasurer of the IBA Poverty and Social Development Committee and a barrister-solicitor in Victoria, Canada. ‘British common law has often been touted as an ideal system’, he says. However, he points to the tensions in British Columbia, between the government and the Indigenous peoples. ‘Colonialism includes legal colonialism in terms of the harms that have taken place with the assertion of British law in British Columbia.’

On a more positive note, he highlights the ‘reconciliation developing in the common law, between aboriginal rights and title with the assertion of Crown sovereignty’.

One possible Commonwealth development that particularly interests Macallum is the prospect of aligning labour rights. He attended a meeting of the Commonwealth Lawyers Association in which the subject under discussion was an attempt to ‘reach a common strategy in terms of protecting workers’ rights’, he says. He suspects that those rights are far less robust in some of the developing Commonwealth countries than in the UK.

‘The challenge with alleviating poverty is that the application and enforcement of norms leaves a lot to be desired’, says Macallum. His guess is that the ‘purported benefits of membership’ in the Commonwealth are ‘more at the political allegiance level’, which goes to the heart of the limits of an association that generally lacks any rigorous legal ties or obligations – even if there may be preferential treatment between members.

Strengthening the bonds

So, if the Commonwealth exists more at the symbolic rather than practical level, what, if anything, would improve it? Paul Usoro would like to see those involved in governance in the member states engage more formally and regularly with each other, ‘because I see the Commonwealth as a kind of peer review group’, he says.

As far as the rule of law goes, he says this ‘would make its members be far more conscious of the need for compliance’. While this wouldn’t force mandatory behaviour, he adds ‘it could act as a check’.

‘Look at the United Nations’, he says. ‘It is a voluntary association; it doesn’t supersede the sovereignty of any country. And yet it passes resolutions. Yes, some people might break ranks, but even in breaking those ranks, they attract opprobrium.’

Nchito, meanwhile, advocates strongly for a sustained crackdown on offshore tax havens. ‘For those – for want of a better term – poorer countries,’ he says, ‘whose resources end up in those jurisdictions, it’s just immoral’. This is, he says, ‘a global financial issue’. And he hasn’t seen any substantial benefits, in this regard, to Zambia’s Commonwealth membership.

Almeida says that one stride forward would be for the more developed, prosperous Commonwealth countries to commit to a role of ‘properly supporting the governments and administrations of the smaller jurisdictions economically – to help with things like infrastructure and training’.

‘Remember how much we were paying the EU? It would be brilliant if the Commonwealth began to work like that. It would become a membership of a club that actually achieved’, he says. ‘It would mean that countries like the UK, Canada, Australia and New Zealand being more proactive in assisting the smaller nations’ development.’ He acknowledges the various Commonwealth committees, ‘but they don’t do nearly as much as they could if there was political will’.

Macallum echoes this position, but from the vantage point of his ongoing work as part of the IBA Poverty and Social Development Committee. ‘Overcoming global inequalities in terms of wealth distribution is a major challenge that the world is attempting to come to grips with’, he says. ‘And when you’re dealing with poverty in the Commonwealth, you’ve got the less developed nations.’ Wealthier countries, he adds, should focus on levelling up the poorer ones.

Ultimately, in terms of the wider meaning of the Commonwealth, ‘if you ask the average person on the street, they don’t really know what it’s about’, says Nchito. ‘We are the generation that came after Zambia’s independence. The same is probably as true in the UK as it is elsewhere.’

Whatever the previous generation’s views on the Empire may be, he says, ‘for me, it’s about a collaboration that offers benefits to a country like mine’.

This is arguably key. What the collaboration can offer to member states that are no longer willing to be tied to the UK, simply because of a complex history, may decide whether the Commonwealth finds renewed purpose or fades from view in the future. The various jurisdictions that form its membership are going to need something more concrete than shared values.

Tom Wicker is a freelance journalist and can be contacted at tomw@tomwicker.org