British Virgin Islands Cannabis: Trouble in Paradise

According to the UK government, “the BVI [British Virgin Islands] is a separate legal jurisdiction to the United Kingdom and has its own laws.” This being the case, one would think that a medical cannabis bill passed unanimously by the BVI’s legislature would have no problem becoming law. However, the territory’s governor—a British civil servant appointed by the Queen—has not yet assented to the Cannabis Licensing Act 2020, despite its approval by the legislature in June 2020. Assent is also being withheld to a separate bill to decriminalize possession of small amounts of cannabis.

If approved, the Act would allow possession of medical cannabis by adults. Depending on the amount, a different regulatory framework would apply. For possession of between one and 50 grams, a self-declaration form would suffice, while medical approval would be necessary for quantities exceeding that range. Possession of one gram or less would essentially be unregulated. Visitors to the BVI would be able to possess cannabis under these conditions, a nod to the BVI’s tourist industry. The Act also envisions a more permissive framework for CBD.

While under the BVI Constitution the governor has the power to deny assent to bills (in his role as the Queen’s representative), this power is not wielded lightly. According to the speaker of the local legislature, “in modern times, the monarch, governor-generals, or governors always assent to a bill passed by the People’s House, on the advice of the government of the day, as the royal assent is considered a formality.” According to the speaker, the last time royal assent was denied in the UK was in 1708.

On December 10, Governor Augustus Jaspert explained that he “may only assent to a bill if it is fully compliant with international regulations,” such as the 1961 Single Convention on Narcotic Drugs. For this reason, the Act has received “extensive line-by-line scrutiny in the UK,” to ensure compliance with the country’s international obligations. Jasper added that, as a precondition to assent, the BVI and UK governments must enter into an MOU to transfer relevant powers from the Home Office in London (analogous to the DOJ in the United States) to a new BVI Cannabis Licensing Authority.

Some of Jasper’s comments on the issue suggest he has personal concerns about both proposed cannabis bills (“I would not be doing my duty if I didn’t consider them fully”). Given the governor’s background, strong views regarding cannabis use would not be surprising. According to the BVI government, Jaspert “served in the UK Home Office as a Deputy Director, leading local policing and improving the public’s confidence in the police and the Government’s strategies to reduce harm from the misuse of alcohol and illegal drugs from 2007-2009. During this time, he also served as a Magistrate in a criminal court in South West London.”

This all said, Jasper’s recent statement made it sound as if it is not really his call, pointing to concerns back home. Moreover, it may be the case that his hesitation regarding the bill is due to flak from Home Office mandarins, rather than personal views about cannabis.

For Virgin Islanders, this would be cold comfort: Either way, people for whom they did not vote are holding up legislation approved by their elected representatives. It would also mean the problems for the measure would not end with Jaspert’s departure at the end of this year. And hostility to cannabis legalization in London would bode ill for efforts in other British territories, such as a recently introduced bill in Bermuda (which would legalize recreational use).

Understandably, Virgin Islanders are not reacting well to the governor’s unprecedented holdup. The legislature’s speaker has characterized the denial of assent as an “insult,” adding that the legislature should have the power “to override an unelected governor when he refuses to assent to a bill.” For his part, BVI Premier Andrew Fahie said, “We were proactive and diligent that all the measures in the bill met what the United Nations stated and beyond so we are not in violation. And we kept saying that all the time. There is no legal violation so we couldn’t understand why it was not being assented to,” adding he hopes “this is not something done to stall” the legislation. In any case, the delay in assent to the Act is leading to a loss of interest by investors, according to Fahie.

Having grown up in a neighboring Caribbean island that has had its own issues with outside powers (Puerto Rico), the story of the BVI’s cannabis bill has a sadly familiar ring. It would be hyperbole to evoke colonialism: The Act was passed by an elected legislature and the discontent over the denial of assent highlights how rare such interventions are. It is true the BVI’s status as a British territory places limits on what it can do, but the territory would presumably be free to follow the example of other Caribbean islands who obtained independence from the UK. Yet the legacies of the Caribbean’s complicated past still echo.

If this is somehow lost on Jaspert or the UK government, it surely is not on Virgin Islanders. Whoever is at fault for the holdup of the Act—the governor, London, or both—should heed the words of a statesman from another Caribbean nation, who said, “the people of this great little democracy have spoken in a most dignified and eloquent manner [and] the voice of the people, is the voice of God.”

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