Monday, June 26, 2006

Draft Agreed Report - Paragraphs 1-66

Dated 26 June 2006. [Fifth draft]
Mr Don Mitchell CBE QC – Chairman
Mr Stanley Reid – Secretary (Resigned 31 May 2006)
Rev Cecil Weekes
Ms Grace Carty
Mr Calvert Carty
Ms Chanelle Petty Barrett
Mr Claudel Romney
Ms Maria Reid – Executive Secretary

ommission’s website:
  1. The present Constitution of Anguilla is a Schedule to the Anguilla Constitution Order 1982[1]. The 1982 Order is the legal instrument signed by or on behalf of the Queen in Council. The 1982 Constitution is the contract approved by the people of Anguilla and which sets out the terms on which they agree to be governed by the executive.
  1. The 1982 Order is very unsatisfactory, and it is to be hoped that the faults that appear in it will not be repeated. For example, it contains certain provisions that must be read in conjunction with the Constitution before the terms of the Constitution can be understood[2]. The two documents have to be read side by side for certain provisions to be understood. This is perfectly sensible for a lawyer. It is not so for a layman. The Order contains provisions that do not even make sense[3].
  1. The Commission recommends that there should be no provision in the new Order placing a gloss or interpretation on any part of the Constitution: the Constitution should be self-contained, whole and entire.
  1. A suggested format for the Order is appended as Appendix 7.

  1. The Constitution of Anguilla presently lacks a Preamble. The Preamble should set out something about who the people of Anguilla are, and what they expect of both their Government and of the British Government. Such a Preamble is an essential part of a modern Constitution. The Commission recommends that there should be a Preamble to the Constitution.
  1. Two persons have submitted draft Preambles. Neither one has been agreed by the Commission as suitable, principally due to the lack of public comment. The Commission recommends that there be a public competition to come up with an acceptable draft.

  1. Unlike the British Virgin Islands and the Cayman Islands, Anguilla enjoys an advanced provision for the protection of fundamental rights and freedoms in Chapter 1 of the present Constitution. The issue of such a provision is therefore not as urgent as it is in those territories.
  1. The Commission considered the Model[4] prepared by Mr Henry Steel for the Overseas Territories. A copy is appended hereto as Appendix 8. Mr Steel also supplied Explanatory Notes. A copy is found at Appendix 9. The Commission also considered the recommendations of the Montserrat[5], BVI[6], and Cayman[7] Commissioners; the suggestions coming out of the town hall meetings held by the Constitutional Reform Committee during the period 2001-2003; and the various suggestions and comments made at public meetings, on radio and television, and in meetings with various NGOs, and on the Commission’s website during the period of the work of the Commission.
  1. The Commission concluded that the Model was not suitable for adoption in Anguilla for a number of reasons. First, the present Anguilla Constitution already has an advanced Chapter dealing with Fundamental Rights. Members see no reason to confuse citizens by recommending the adoption of an entirely new Chapter. Second, in the aftermath of the United Kingdom’s imposition of a law repealing offences relating to homosexual acts among men, there are in the Anguillian community doubts about the bona fides of those recommending the adoption of an entirely new Chapter: there are serious concerns that the urge to review the Human Rights aspects of the Constitution is prompted by a European desire to impose foreign and unacceptable social norms. The Model attempts to introduce “rights” that are objectionable to a majority of Anguillians. Examples are sections 10 [Protection of the Right to Marry]; and 12 [Protection of the Right to Education]. The Right to Marry appears to be worded in language intended to introduce a right for members of the same sex to marry each other, a notion which is objectionable to a majority. The Right to Education as proposed would impose an obligation to provide free primary education for the children of all persons living in Anguilla. That is a right that a majority would want to see extended only to Anguillians. Anguilla cannot afford to provide free education to the children of all the temporary residents of Anguilla. Third, there have been pleas made that both the present Constitution and the Model Draft[8] are written in dense and incomprehensible language not suited to be understood by the man in the street. In this respect, the Model will do nothing to improve public appreciation and knowledge of the fundamental rights enjoyed by Anguillians; it is written in even denser and more incomprehensible language than the present Chapter 1. In the circumstances, the Commission recommends the rejection of the proposed draft Model Chapter on Fundamental Rights. All that is required is the amendment of a few of the sections of the present Chapter 1 to make them more reflective of modern norms and expectations.
  1. Similarly, the remainder of the Constitution, Chapters II to VII, does not need fundamental change, or replacement by a completely new form. The Commission will recommend that the other Chapters of the Constitution remain, but with the various amendments indicated. We now look at the various sections of the Constitution one by one.
  1. Section 1: Fundamental Rights and Freedoms of the Individual. There is no Preamble to the present Constitution. This section commences the Chapter. Strictly, its contents belong, if anywhere, in such a preamble, and the Commission recommends that the section not be reproduced in any new Chapter I.
  1. Section 2: Protection of Right to Life. Sub-section (1) as presently worded[9] is out of date. Its wording precedes the abolition of the death penalty for murder in Anguilla. To the extent that the death penalty still exists for such offences as treason or intentionally burning one of Her Majesty’s ships, it is archaic and should be abolished. During the review process the Commission received no representation that the penalty should be retained. The Commission recommends that the section should be amended to now read simply, “No person shall be deprived of his life intentionally.”
  1. Section 3: Protection of Right to Personal Liberty. The present section is defective in that it does not provide that a person who is arrested is entitled to be told of his rights. It has been left to the courts to interpret this common-law entitlement. The Commission is satisfied that modern practice and a proper understanding of the practical application of this right requires that a person arrested is entitled immediately upon his arrest, and not after he has been brought to a police station, to be told of his rights[10]. The Commission recommends that should be a new sub-section setting out this right in the clearest language.
  1. The present sub-section (3) provides that a person arrested shall be brought before a court “without delay.” This phrase is ambiguous and has caused much distress in the past. It is not the wording found in more advanced Commonwealth Caribbean Constitutions[11]. “Without delay” should be replaced by “within forty eight hours” and the Commission so recommends.
  1. Section 4: Protection from Slavery and Forced Labour. During the review process no comment was received from the public and in our view the section does not require amendment.
  1. Section 5: Protection of Freedom of Movement. Section 5(3)(c) permits the House of Assembly to pass a law allowing for the arbitrary expulsion from Anguilla of any non-Anguillian who is otherwise lawfully present on the island. This Act is the Undesirable Persons Expulsion Act[12]. It permits the authorities to pick up any non-belonger and deport him or her from the island without any judicial process of any kind. While it is recognised that the authorities would prefer not to have to submit their deportation decisions to any scrutiny, the present procedure is inherently unjust and subject to possible abuse. The Commission recommends that the words “or expulsion” be removed from any future draft of the Constitution.
  1. Section 6: Protection from Inhuman Treatment. During the review process no comment was received from the public and in our view the section does not require amendment.
  1. Section 7: Protection from Deprivation of Property. The section is in the time-honoured language of such sections. The only improvement that might be made to it is to alter sub-section (1)(c) to provide that the compensation is required to be paid in cash. The Commission so recommends.
  1. Section 8: Protection from Arbitrary Search or Entry. During the review process no comment was received from the public and in our view the section does not require amendment.
  1. Section 9: Provisions to Secure Protection of Law. Sub-section (4)(a) permits a court blanket powers to exclude persons other than the parties to litigation from interlocutory civil proceedings, ie, Chamber hearings. It has been suggested to the Commission that many important issues of public interest are concluded in Chambers. The public should have a right to be present, particularly through the press, at such hearings unless there are other special circumstances that make it desirable for the hearing to be heard in camera. Sub-section (4)(c) permits a court to exclude members of the public from any proceeding where the court considers that publicity would prejudice the interests of justice, or in the interests of defence, public safety, public order, public morality, or the welfare of children. The Commission considers this provision more than adequate to permit the court in suitable Chambers hearings to exclude members of the public, including the press. The Commission recommends the deletion of sub-section (4)(a).
  1. Section 10: Protection of Freedom of Conscience. During the review process no comment was received from the public and in our view the section does not require amendment.
  1. Section 11: Protection of Freedom of Expression. During the review process no comment was received from the public and in our view the section does not require amendment.
  1. Section 12: Protection of Freedom of Assembly and Association. During the review process no comment was received from the public and in our view the section does not require amendment.
  1. Section 13: Protection from Discrimination on the Grounds of Race, etc. During the review process there was much discussion on Mr Henry Steel’s draft Model Chapter 1. In particular, there was a wide consensus that under no circumstances would the people of Anguilla accept any proposal to prevent discrimination on the grounds of sexual orientation. As a result, the section does not require amendment.
  1. Section 14. Derogations from Fundamental Rights and Freedoms under Emergency Laws. During the review process no comment was received from the public and in our view the section does not require amendment.
  1. Section 15: Protection of Persons Detained under Emergency Laws. During the review process no comment was received from the public and in our view the section does not require amendment.
  1. Section 16: Enforcement of Protective Provisions. Sub-section (1) provides that anyone who alleges that the Constitution has been, or is being contravened in relation to him may apply to the High Court for redress. In more modern Caribbean constitutions the phrase “or is likely to be” is also to be found. It was agreed that the phrase “or is likely to be” be inserted after the phrase “or is being”.
  1. Sub-section (2) contains a proviso that the High Court may decline to exercise its powers if other means of redress existed. It has been argued by many persons that this proviso unnecessarily derogates from the right of a citizen to seek the enhanced protection of the court by way of an administrative or constitutional action. The Commission recommends that the proviso to sub-section (2) should be deleted.
  1. Section 17: Declaration of Emergency. Sub-section (1) provides that the Governor declares a state of emergency. Section 28(1) suggests that he does so in consultation with Cabinet and act in accordance with their advice. For the avoidance of any doubt, the Commission recommends that sub-section (1) expressly states “in consultation with Cabinet and acting on its advice”.
  1. Section 18. Interpretation and Savings. This section does not belong at the end of this Chapter. It should either be placed at the beginning of the Chapter or, where convenient, its provisions should be placed in the relevant section of the Constitution and the Commission so recommends.

  1. Section 19: The Governor. Representations have been made to the Commission that the Premier and the Leader of the Opposition should have the right to be consulted prior to the appointment of a Governor or Deputy Governor. The Commission considers this to be an essential means of facilitating good government and in keeping with the promise of partnership. The Commission recommends that the Constitution be amended to provide that the Premier and the Leader of the Opposition will be consulted prior to the appointment of a Governor or Deputy Governor.
  1. Section 19A: The Deputy Governor. The British government has indicated its intention in future to ensure that this office is filled by persons who are Anguillian. The Anguilla public has welcomed this development. It is appropriate that declared intent should not be left to chance implementation, but that it should be entrenched in the Constitution. this section should be amended to add a sub-section to that effect, and the Commission so recommends.
  1. Section 20: Acting Governor. This section merely provides for the appointment of an acting governor in the absence of the governor. During the review process no comments were received from the public and in our view does not require any amendment.
  1. Section 21: Governor’s Deputy. This section provides for the Governor to appoint a deputy in the absence of the Deputy Governor to act for him when he is ill or absent from the island. During the review process no comments were received from the public and in our view does not require any amendment.

  1. Section 22: Executive Authority for Anguilla. This section provides that executive authority is vested in Her Majesty. During the review process no comments were received from the public and in our view does not require any amendment.
  1. Section 23: Executive Council. This section establishes the Executive Council. There is general consensus that the term “Executive Council” has become outmoded and the preferred term is “Cabinet”. The Commission recommends that the Constitution be amended to use the term Cabinet in place of Executive Council. In this Report, wherever it is necessary to refer to the Executive Council the alternative term “Cabinet” will be used.
  1. Name of Chief Minister. Further, there is general agreement that the leader of government, or “Chief Minister”, should in future be referred to as the “Premier” and the Commission so recommends. Whenever it is necessary to refer to the Chief Minister hereafter in this Report, the alternative term “Premier” will be used.
  1. Number of Ministers. This section of the Constitution presently provides that there should be no more than three Ministers besides the Premier. Of the present 7 elected members of the Assembly, 4 are members of Cabinet, and in addition one of the other members of the Assembly is appointed as Parliamentary Secretary with Ministerial responsibilities. In representations made to the Commission, there was consensus that there are too few Ministers to perform the functions of government efficiently, and that the maximum number of Ministers needs to be increased. Most have urged that they be increased to at least 5 besides the Premier. A few have argued that there needs to be at least 6 besides the Premier. The Commission has recommended that the size of the Assembly be increased from the present 7 elected persons to a total of 13 elected persons. The Commission recommends that the maximum number of Ministers besides the Premier be increased from 3 to 5, which, in an Assembly of 13, will leave 7 elected representatives who are non-Ministers. In the event that the number of Ministers is to be increased to 7 besides the Premier, the Assembly should consist of at least 15 elected members to ensure a proper balance.
  1. Ex-officio Members. The Constitution provides that there shall be two ex-officio members of Cabinet, the Deputy Governor and the Attorney-General. There have been recommendations made to the Commission to exclude these officers from Cabinet as they are not elected and it is anti-democratic for them to continue to sit and vote in Cabinet. However, the Commission is persuaded by the arguments of Ministers that they value the advice of these officers at Cabinet meetings and that they should remain, especially as they do not normally vote at Cabinet meetings. The Commission recommends that they stay as ex-officio members of Cabinet, but without vote, and that the Constitution should say so.
  1. Section 24: Appointment of Ministers. This section and section 25 when read together provide that the Governor appoints as Premier the person who commands the support of a majority of the elected members of the Assembly. There is no limitation to this power. The section does not say that it only applies after a general election. Nor is this a reasonable interpretation of the section. Some persons making representations to the Commission appear to be confused as to whether this power of appointment applies when the Premier resigns or dies in office. They have suggested that there is an ambiguity and that the Constitution is silent on the point. They have even suggested that a proper interpretation of the two sections when read together is that they require that the Governor call a general election whenever the Premier dies or otherwise vacates his office. Although the Commission does not believe that there is any ambiguity in the present provision, for the avoidance of any doubt, the Commission recommends that section 24(1) be amended by the addition of words that will ensure that all readers of the Constitution can be in no doubt that the Governor has the discretion whether or not to call a general election on the death or resignation of the Premier, based on his assessment of whether there is a person in the Assembly who commands majority support, eg, by adding the words, “whether after a general election or at any time thereafter if it shall become necessary,” after the words “acting in his discretion”.
  1. Governor’s Discretion to Appoint the Premier. Some persons have represented that at no time subsequent to the immediate aftermath of a general election should the Governor have any discretion to appoint a new Premier; that, whatever the Constitution presently says, it should in future be made clear that if the Premier dies or otherwise vacates his office the Governor shall be obliged to call general elections. The argument is based on a call for increased democracy and an assumption that it is the people who elect the Premier and his government and that, when they fall, for whatever reason, it is only the people who should have any say in who the new Premier and his government is to be. The consequences of such a constitutional provision will be far-reaching, eg, the Premier would be deprived of his present discretion to resign early and to permit his chosen successor to serve in office for the remaining period of the existing term. Also, if the Premier were to die a short while after a general election, the people would have to be put through the trauma of general elections even though the majority of the elected Members of the Assembly have a leader they are prepared to support. The Commission is not satisfied that so radical a change in the present constitutional arrangements is desirable and does not recommend this proposed change.
  1. Section 24A: Appointment of Parliamentary Secretary. This provision was made at a time when Cabinet was very limited in size and it was thought necessary to share the burden of office of Minister with a fifth elected member. With the increase in size of Cabinet from 4 to 6 as recommended above, the Commission doubts that this provision is necessary, and recommends its removal from the Constitution.
  1. Section 25: Tenure of Office of Members. Section 25 consists of four sub-sections. It deals with the different circumstances in which the office of Minister is vacated.
  1. Vote of No Confidence. Sub-section (1) provides for the Governor to be obliged to call a general election in the event of a vote of no-confidence succeeding in the House of Assembly. A two-thirds vote is required for such a motion to succeed.
  1. It has been recommended to the Commission by several persons that when Cabinet Ministers join in a vote of no confidence in their own government, they betray the Premier who selected them for appointment, and their action should automatically trigger a general election as sub-section (1) presently provides. This principle, it is argued, applies equally to back-benchers who have probably won their seat by the support of their party leader. However, the Commission is persuaded by the contrary view that it is essential for Ministers and members of the Assembly to be free to act on their conscience and to join in a vote of no confidence if they consider it proper to do so, and for the Governor, acting in his discretion as the Constitution prior to 1982 previously provided, to have the choice of either calling a general election or appointing some other person commanding the majority support of the Assembly to be the Premier, and the Commission so recommends.
  1. A majority of persons making representations to the Commission on the effect of sub-section (1) were of the view that if a Government has lost the support of the majority of the Assembly there was no reason why that Government should not fall. That is, a vote of no-confidence should succeed on a vote of a simple majority. This view accords with that of the Commission which recommends that the requirement should be amended to a simple majority.
  1. Sub-sections (2), (3), and (4) deal with the vacating of the office of Premier and Minister in various circumstances. No representations have been made to the Commission for any alteration and none is recommended.
  1. Section 26: Performance of Functions of Chief Minister in Certain Events. This section authorises the Governor to appoint any Minister to perform the functions of the Premier in his absence from Anguilla or illness. The Governor is required to make the appointment acting on the advice of the Premier unless it is impracticable. This post can be described as that of Acting Premier.
  1. Deputy Premier. There is no provision in the section or elsewhere in the Constitution for the post of Deputy Premier. Representations have been made to the Commission that the Constitution should provide for such a post. That would permit the Premier to nominate the person who will normally act for him in his illness or absence. The Commission is of the view that this add certainty to the Constitution, and the Commission recommends that the section be amended to provide for the post of Deputy Premier.
  1. Section 27: Assignment of Responsibilities to Ministers. Sub-section (1) of this section provides for the Governor acting in accordance with the advice of the Premier to appoint Ministers. No representations have been made to the Commission for any change to this sub-section.
  1. Sub-section (2) empowers the Governor to call for any official papers available to a Minister, presumably with a view to overseeing the Minister’s performance of his duties. While this sub-section (2) provision for gubernatorial oversight of a Minister’s performance might have been useful in the early days of Ministerial government in Anguilla, it is to be doubted whether it is properly to be located in a modern British Overseas Territory’s Constitution. The Commission recommends the removal of sub-section (2).
  1. Section 28: Governor to Consult Council. Sub-section (1) of this section requires the Governor to consult with and act in accordance with the advice of Cabinet on the formulation of policy and the exercise of all powers conferred on him by law and the Constitution. No representations have been made to the Commission for its alteration. The Commission considers that it is an appropriate provision and does not require amendment.
  1. Reserved Powers. Sub-section (2) provides that the Governor shall not be obliged to consult with Cabinet nor act on their advice in any matter relating to
(a) defence, external affairs, international financial services, or any directly related aspect of finance, or internal security, including the police, (except that he should keep Cabinet informed of any financial implications and he should consult with the Premier in matters relating to internal security including the police);
(b) the appointment, termination, dismissal, or retirement of any public officer, or the application of terms or conditions of employment of the public service;
(c) any power conferred on him by the Constitution that he is empowered to exercise in his discretion or in pursuance of Royal Instructions;
(d) any power that any law authorises him either expressly or by necessary implication to exercise without consulting Cabinet;
(e) any matter in which, in his judgment, the service of Her Majesty would sustain material prejudice thereby;
(f) where the matter is too unimportant to require the advice of Cabinet; or
(g) where the urgency of the matter requires him to act before Cabinet can be consulted, (provided that he must inform Cabinet as soon as practicable the measures which he has adopted and the reasons for those measures).
  1. It has been submitted to the Commission that while it may be proper for the Governor not to be required to act on the advice of Cabinet in any of these sub-section (2) reserved matters, it is no longer appropriate for Ministers of Government to learn about these matters by reading about them in the newspaper or hearing a press release on the radio as presently happens. The Commission recommends that the democratic process be strengthened by requiring the Governor to consult with the Cabinet or the Premier as appropriate on all reserved matters, subject to the provisions made below.
  1. Ouster of Court. Sub-section (3) provides that the question whether the Governor has exercised a function either with the advice of or after consultation with any person shall not be enquired into in any court. The person whom the Governor is normally required to consult is the Premier or his Cabinet. On occasion there is provision for the Governor to act on the advice of a Secretary of State. There has been no representation made to the Commission that any alteration should be made to the provision relating to consultation with the Secretary of State. By contrast, no one consulted by the Commission defended the retaining of this clause ousting jurisdiction of the court to enquire whether the Governor had in fact consulted with or acted on the advice of Cabinet or the Premier or other local entity with whom he may be required to consult. It was the majority view among the persons making representations on this sub-section that this provision is undemocratic, and should be removed in so far as it relates to local consultation. The Commission recommends that the ouster clause should be retained only in relation to consultation with the Secretary of State.
  1. Governor’s Responsibility for Administration of Reserved Powers and Public Service. Sub-sections (4), (5) and (6) provide that the Governor shall be responsible for the conduct of government business and the administration of any Department of government with respect to the matters set out in paragraphs (a) and (b) of sub-section (2) as set out above. In practical terms, this means the International Financial Services Department, the Public Administration, and the Royal Anguilla Police Force.
  1. International Financial Services. So far as the International Financial Services industry is concerned, this is the second most important industry in Anguilla after Tourism. In the year 1990, the regulation and administration of the industry was[13] taken away from the local Ministry of Finance and vested in the Governor in the aftermath of the international financial scandal involving BCCI. Since then, an adequate regulatory framework has been put in place in Anguilla. The industry is now regulated and supervised by an independent Financial Services Commission established by law. A host of new laws providing for standards to be kept and creating a multitude of regulations and related offences has been put in place to ensure that the industry is properly run. In the unlikely event that it may once again become necessary for HMG to take over direct responsibility for this industry, the power to do so always remains by the use of a Statutory Instrument. It was generally agreed by all persons consulted by the Commission, except the Governor’s Office, that there was no longer any justification for this area to remain one of the Governor’s responsibilities. The Commission recommends that responsibility for the administration of international financial services be removed from the Governor’s portfolio.
  1. Regulation of International Financial Services. It is generally agreed that Anguilla benefits internationally from the Governor’s power of regulation of the industry. It is to our advantage to be able to claim that the industry is subject to a higher supervision than can be provided locally. The Governor’s power to regulate is in practice carried out by the Financial Services Commission.
  1. Financial Services Commission. By the Financial Services Commission Act[14] the House of Assembly of Anguilla established the Financial Services Commission (FSC) to regulate the financial services industry. The members of the FSC are appointed by the Governor and they report to the Governor. It is desirable that the Governor’s office continue to be seen to be responsible for this regulation. The FSC is however not presently recognised under the Constitution. It was generally agreed that the FSC ought to be given constitutional recognition. The Commission recommends that the Constitution be amended to make provision for the FSC and for its governing law.
  1. Public Administration Department. While the Public Administration Department is notionally under the direct control of the Governor, in practice this responsibility has for many years been delegated to the Deputy Governor. There is a Public Service Commission, but its role under the Constitution and the enabling Act[15] is purely advisory. The question has arisen whether the Governor should continue to exercise a notionally sole role in the management of the public administration. The consensus is that it should not. There is no one who has made a representation to the Commission that the public administration should be placed under the control of a Minister. The choice has been between the Deputy Governor and a strengthened Public Service Commission. The role in the public administration of the Deputy Governor takes on added significance when it is remembered that the Commission has recommended that the Constitution should state that the office of the Deputy Governor should be filled by an Anguillian. Constitutional authority for the public service should be vested in the Deputy Governor with him being required to act on the advice of a much strengthened Public Service Commission, and the Commission so recommends.
  1. Royal Anguilla Police Force. In so far as the police are concerned, the consensus is that a greater effort should be made to improve local responsibility for security and policing. No representations have been made to the Commission for control of the police to be removed from the Governor and turned over to a Minister. It was the view of persons making representations that other mechanisms be found for Anguillian institutions to become more involved in maintaining high standards in the police service. Some of these are dealt with below.
  1. Police Complaints Authority. It is the general consensus among Anguillians making representations concerning the police that it is no longer acceptable or even effective for the Governor alone to be responsible for the police. It is frequently alleged that complaints against the police are not attended to. Allegations of inefficiencies and improper conduct are not adequately dealt with under the present complaints mechanisms. The Commission understands that efforts are being made to improve the situation in the police force. There has been a recent announcement that an independent complaints body is soon to be put in place. The Commission recommends that the Constitution be amended to provide for an independent Police Complaints Authority to be established by law with the power to summon witnesses and to take evidence on oath and to make binding recommendations.
  1. Police Service Commission. The Constitution does not provide for a Police Service Commission. The Commission has received representations that it is time for the office of Governor to share some of the responsibilities for internal security and the police with local institutions. One mechanism favoured by many of the persons making representations to the Commission is the establishment of a Police Service Commission with the Governor being required to act on their recommendations, and the Commission so recommends.
  1. Section 29: Governor’s Reserved Executive Power. This section provides that when the Governor is required to consult with Cabinet and he decides to act contrary to the advice given, he must first obtain the approval of a Secretary of State. He must ensure that the Secretary of State has the benefit of the advice given by Cabinet. During the review process no representations were received from the public and in our view there is nothing that needs to be changed in this section.
  1. Section 30: Oaths to Be Taken by Members. During the review process no comment was received from the public and in our view the section does not require amendment.
  1. Section 31: Summoning of Persons to Council. This section permits the Governor to summon any public officer to a Cabinet meeting, when, in his opinion, the presence of that officer is desirable. Representations have been made to the Commission that it is more likely that the Ministers may need a particular officer present at a Cabinet meeting. There is a perceived problem in having the Governor be the sole person to decide whether a person should be summoned. The problem will correct itself if the Commission’s recommendation in dealing with section 33 (that the Governor cease to sit as Chairman of Cabinet meetings) is implemented. In the event that the Governor remains as chair of Cabinet meetings, the Commission recommends that the section be amended to delete the words and punctuation “, in his opinion,” to make it clear that Cabinet may require the presence of any public officer that Cabinet considers desirable.

[1] SI 1982 No 334.
[2] Section 3 of the Order dealing with Administration of Justice places a gloss on section 15(1)(c) of the Constitution, and would be more useful if it were located in the Constitution itself. Section 4 of the Order dealing with Citizenship places a gloss on section 80(2) of the Constitution, and should be relocated to that section or to a definition section in the Constitution itself. Section 7 of the Order deals with Inhuman Treatment and belongs in section 6 of the Constitution.
[3] Section 3 of the Order, for example, empowers the Chief Justice to appoint to a tribunal persons who have previously served on either the Supreme Court of the Windward and Leeward Islands or the British Caribbean Court of Appeal. These courts have not existed for some 40 years and we can reasonably assume that all the judges of this court had been long dead when the Constitution was adopted in 1982. Any judges of its successor court, the West Indies Associated States Supreme Court, who retired as judges of that court, will have passed away by this time.
[4] Draft Model Chapter on Fundamental Rights, 15 May 2001.
[5] Montserrat: Report of the Constitutional Commissioners 2002.
[6] The Virgin Islands: Report of the Constitutional Commission 2005. Presented to Executive Council on 15 April 2005.
[7] Report of the Constitutional Modernisation Review Commissioners 2002.
[8] The Draft Model perpetuates the incorporation of an interpretation section at its very conclusion, thus continuing to ensure that the substantive provisions cannot be understood until the Chapter has been read in its entirety. The definitions belong in the section where the terms are used, not in an appended final section.
[9] (1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Anguilla of which he has been convicted.
[10] The Model Chapter 1 would have provided that the person arrested be informed of his right to legal representation immediately he is brought to a police station.
[11] In the Constitution of Antigua and Barbuda, for example, the time is limited to 48 hours.
[12] Chapter U5 of the Revised Statutes of Anguilla.
[13] By Statutory Instrument 1990/587.
[14] RSA C F28.
[15] Public Service Commission Act RSA C P . . .

Tuesday, June 06, 2006

Social Security Speech

6 JUNE 2006
  1. Introduction. Good evening, Ladies and Gentlemen. Let me say what an honour it is for me to have been asked to give this Memorial Lecture. I must thank the Social Security Board for agreeing the topic, and thereby giving the Constitutional and Electoral Reform Commission the opportunity to explain where we see Anguilla at this juncture in its constitutional development.
  1. We need to reflect for a moment on Anguilla’s progress over the years, with emphasis on our constitutional advancement. To appreciate the progress we have made, it will be necessary to look in some detail at where we have come from. The old cliché is that only then will we appreciate where it is that we have arrived at, and perhaps perceive where it is that we are going to.
  1. Settlement. The modern history of Anguilla begins in the year 1650. The first group of settlers arrived from St Kitts. It was an unauthorised colony. The settlement did not occur under any official encouragement. By contrast, the settlement of St Christopher in 1623, Nevis in 1628, Antigua in 1632, and Montserrat in 1633, had all been covered by commission from either the King or the Governor in Chief.
  1. The early colony was considered by the Governors in Chief to be an unmitigated nuisance. It served no useful purpose. It exported no crops or other primary product to Britain to contribute to the imperial economy, nor did it serve any strategic purpose. Rather, the island was first settled by time-out indentured servants, runaway slaves and black freedmen, pirates and buccaneers settling down under one of the many Acts of Amnesty of the period, and desperate small-farmers from other islands, all hungry for land of any sort.
  1. First Invasion. Despite the poverty of the islanders, the French in St Martin mounted the first invasion in the year 1666. The Sieur Des Roses with 300 men took the island and carried back to St Martin prisoners and canon. The island’s defenses were built back up and a few canon supplied, but the poverty of the island precluded any real effort on the part of the colonial authorities to protect the islanders from any future attack.
  1. Abraham Howell. In 1667, the Anguillians took matters into their own hands. They elected a local settler, Abraham Howell, as their deputy governor. Neither he nor any other later deputy governor of Anguilla was ever given any patent or official document of appointment, unlike in other islands. The Anguillians were uniquely permitted to nominate their own deputy governor right up to the day in 1825 when the island was absorbed into St Kitts.
  1. Lack of Proper Government. The failure of the colonial authorities to provide for the proper government of Anguilla was not at the time a matter for self-congratulation. It is evidence of the poverty of, and lack of official interest in, the island. Its settlers were considered of so little account that the authorities in both Antigua, the centre of government, and London, could not be bothered to make any arrangement during the period of nearly 175 years for its proper administration. The consequence has been a simmering sense in Anguilla of abandonment by all outside authorities, and a deep-seated awareness of the need for self-reliance, that characterise the Anguillian political psyche to this day. Evidence of this abandonment abound in the records.
  1. Neither Lord Willoughby nor his son and successor William ever visited Anguilla, beginning a trend that was to be followed by successive Governors in Chief for the next 200 years. Governor Willoughby may never have visited Anguilla. But he had his sources of information. In the year 1668, he reported back to London on the state of the island. He described it as being occupied by some two or three hundred people who had fled there in time of war. He opined that,
T’is not worth keeping.
He reported that the people made only tobacco and were very poor.
  1. Leeward Islands Government. In 1670, shortly after the Treaty of Breda, the Leeward Islands government was separated from Barbados. They became a separate colony with their own Governor. This constitutional change was not to be of any benefit or advantage to the Anguillians. Once war returned to the West Indies in 1672, the government of the Leeward Islands decided that the island was not worth defending. The few canon placed on Anguilla for defence in 1666 were removed to St Kitts, and the island once more left without the means to defend itself. In 1688 the French landed a party of Wild Irish on Anguilla, who treated the defenceless inhabitants more barbarously than any of the French pirates who had attacked them before. If they had been left their canon, we can be sure that the Wild Irish would have had a hot reception, but then we would have been deprived of many of the good folk of Island Harbour: the Ruans, Harrigans, and Bryans.
  1. Throughout the Seventeenth Century, Anguilla merits very few dispatches or reports of her own from the Governor in Chief back to London. She crops up more often as a mere footnote in a report on conditions in the Leeward Islands generally. A typical example is found in a 1676 report when the deputy governor of Antigua describes Anguilla in the terse words,
a barren, rocky island, ill-settled by the English, and of small consequence . . .
  1. That same year, the Governor in Chief advised London that while Anguilla had never been surveyed, there was no need to. It was so small and the land so poor, he said, that it would always be incapable either of holding many people or of defending itself. He recommended that it was fitter for raising livestock than for planting any of the cash crops of the islands at the time.
  1. Four years later, he expressed the usual exasperation at Anguilla’s failure to honour the Navigation Acts and to support British Trade. He wrote that
It were to be wished that . . . Anguilla were as much under water as above it.
In 1683, he wrote disparagingly again of Anguilla, dismissing it with the words,
T’is fit for little but goats.
  1. In 1688, the Spaniards from Puerto Rico attacked Anguilla in force. Deputy governor Howell described the outcome. On the night of 21 December the Spaniards landed some 250 men accompanied by some English and Irish renegades. At about 8:00 am the following morning, Howell with a band of his militia ambushed them and put them to flight. They left so precipitously that they abandoned all their Anguillian prisoners and 10 Frenchmen obtained from other islands. Howell’s only request of the Governor in Antigua was for a barrel of gunpowder for his guns. This, he said, he needed to be able to give the Spanish a better welcome if they visited again. But, there is no indication that he ever received so simple and basic a government supply. Anguilla was so poor and insignificant to the Colonial authorities that it simply did not count in preparing for the defence of the Leeward Islands.
  1. The following year, 1689, the first and last evacuation of the island took place. The Governor in Chief dispatched a fleet of sloops to bring all the inhabitants to Antigua. His hope was that the Anguillians would remain in Antigua where he planned to let them have sufficient land to cultivate not only for their own benefit, but to increase the King’s revenue. His plan for the future disposition of the Anguillians were frustrated, for most of them returned to Anguilla. Poor as the land was, and arid as the climate was, the Anguillians persisted in clinging to every inch of it, then as they do now.
  1. In 1701, the little colony was over 50 years old. The second generation of Anguillians had come of age. Yet, the authorities showed no greater concern than they had earlier for the protection of the inhabitants. The Governor in Chief in Antigua made a military evaluation of each of the islands. Anguilla, he said,
hath so few inhabitants, and most of them so poor, that whosoever hath, or will have it, will be very little the better for it.
Later that year, the Governor in Chief went a step farther when he referred to the propensity for smuggling that even then characterized the most enterprising of Anguilla’s sons, and remarked that
The men of Anguilla are perfect outlaws.
  1. To recapitulate, a principal reason for the virtual abandonment of Anguilla by the colonial authorities from the earliest days of settlement was that the island contributed nothing to the colonial coffers. The result was that the Governors in Chief throughout the Seventeenth Century continually maligned the island and its people.
  1. The Governor in Chief described conditions in Anguilla in a dispatch of 1709. The life he described was one of extreme poverty and hardship. There was, he said, a deputy governor, but he had no authority:
The people lived there like savages, without order or government. They had neither lawyer nor parson among them. They gave themselves in marriage to each other. They only thought themselves Christians because they were descended from Christians.
The life he described was hardly to improve for nearly 300 years.
  1. First Council. The Governor in Chief visited Anguilla in 1724. He claimed that he found it to be a poor and barren place. The inhabitants bore all the signs of poverty in the quality of their houses, clothing and food. He did not see any chance of improvement in their condition. He had made enquiry how such a miserable island came to be settled. He had found two principal sources for the original settlers:
First, there were those that had fled Barbados and others of the bigger islands to escape prosecution for debts or crimes. In addition to these fugitives, there were also pirates who had been amnestied under various enactments passed by the Leeward Islands Assembly. They had married into the local community and had settled down. There, they and their progeny lived in ignorance of the rest of the world. They scratched the ground for a miserable subsistence.
And, yet, he was astonished to find among them such a fierce contention over property. As they had no formal system for settling disputes, he had appointed one of them a Justice of the Peace, to sit on the local Council with the deputy governor. He also appointed a Secretary to the Council to keep records, and a Provost Marshal to enforce its orders.
  1. If later Governors in Chief had shown half as much interest in the welfare of the Anguillians, the development of the island might well have progressed differently to the way it in fact did. But, no other Governor in Chief was to visit the island again in the period before the American Revolution of 1776.
  1. Throughout the Eighteenth Century, in the absence of a legislature to enact laws for good government as in the other islands, a deputy governor of Anguilla was obliged to rely for his authority on his personal standing in the community, not to mention his physical prowess. As the Governor in Chief said of the governor of Anguilla in his 1724 dispatch:
If his cudgel happens to be one whit less than a sturdy subject’s, good night, governor!
  1. Legislative Assembly. We know that the Governors in Chief made a token gesture at establishing some sort of government for Anguilla by unofficially appointing a deputy governor from time to time. An Executive Council of sorts was similarly recognised by the Governor after 1724. But, this never had any authority backed by law. An essential institution of government was the Assembly to make laws. No form of Assembly was ever established for Anguilla. Neither during the Seventeenth, Eighteenth, nor Nineteenth Centuries did Anguilla have an Assembly to enact local laws. Laws made by other islands did not apply to Anguilla. Anguilla remained a lawless frontier settlement well into the eighteenth century. The Council of Anguilla, when it was eventually established in the Eighteenth Century, acted as legislature, executive, and judiciary, a situation to the advantage of the most powerful planters and merchants and no one else.
  1. In the 1730s, Anguilla was at the lowest point of its reputation. In 1734, the Governor in Chief remarked on the lack of law and a properly constituted method for its enforcement in Anguilla. He complained that he did not know what to do with the inhabitants. They lived, he said,
like so many bandits, in open defiance of the laws of God and men.
  1. A few years later, in 1741, an eminent economist wrote how the lives of the Anguillians of his day had not improved from the earliest days of settlement. Of the early settlers he wrote,
Their business . . . was to plant corn, and breed tame cattle, for which purpose they brought stock with them. They were poor and continue so to this day, being perhaps the laziest creatures in the world. Some people have gone from Barbados, and the other English Charibbee Islands, thither, and there they live like the first race of men, without government or religion, having no minister nor governor, no magistrates, no law, and no property worth keeping. If a French author is to be believed . . . ’The island is not thought worth the trouble of defending or cultivating it’. In which perhaps the Frenchman is out, for the soil being good, if an industrious people were in possession of it, they would soon make it worth defending.
  1. The Anguillians of the Seventeenth and Eighteenth Centuries reciprocated the abandonment the authorities extended to them. They depended on inter-island trading in their sloops and schooners, a little salt picking and growing of tobacco and cotton, and the growing and export of vegetables and small-stock to St Kitts and other near-by islands as cash crops. They moved freely between the Dutch, French and Danish territories as if they were mere extensions of Anguilla. Anguillian sloops connected Anguilla with St Martin and St Croix where so many of the local families had family and business connections. In the beginning, her sloops brought valuable dye woods and building timbers from the forests of Crab Island and St Croix to the merchants of the Leewards. Later in the Eighteenth Century, they ventured as far as New York and London. Anguillian sloops traded from one island to the other, regardless of the Navigation Acts and customs duties. The Anguillians made their own laws and elected their own governors. They were polite enough, but they did not blindly obey the instructions of a distant governor. When those instructions ran contrary to their vital interests, they ignored them without hesitation. These early settlers built the foundation of the present tradition of complete irreverence for all national boundaries and customs barriers that characterize the best Anguillian merchants of today.
  1. Sugar. By 1725, sugarcane agriculture had come to Anguilla. The sugar industry of Anguilla was short-lived, lasting only until the American Revolution of 1776, a mere 50 years. The industry was never as successful as it was in the wetter, more prosperous islands. The absence of windmills bear testimony to the lack of capital invested in the industry. The animal-round was the normal source of power for crushing the canes. The boiling houses and curing houses were small, and few of their ruins remain at this time.
  1. Slavery. From the earliest days of settlement there were slaves present on the island. The system of slavery existed in Anguilla in all its gory detail until its final abolition throughout the Empire in 1839. Many examples of the brutality of the system, and of the times, can be found in the records.
  1. Collapse of the Economy. The American Revolution of 1776 brought an end to any hope of prosperity for Anguilla in the Nineteenth Century. The Revolution resulted in war in the West Indies. The Royal Navy blockaded all trade with the rebelling northern colonies. Then as now, Anguilla only survived by trade. Anguilla’s economy was devastated by the blockade. While before 1776 law suits for hundreds of pounds local currency were common, after that date the records show mainly debts of a few shillings being squabbled over in court. Most of the planters emigrated. Anguilla could no longer maintain a pretence of a Council.
  1. Then, in 1820, Anguilla was devastated by a hurricane and this was followed by famine. The Secretary of State suggested to the Governor in Chief that Anguilla should be allowed to send one representative to sit on the St Kitts Assembly, which would then make laws for Anguilla. St Kitts was not interested. The Lieutenant Governor of that island replied that instead Anguilla would be better ruled direct from London.
  1. Absorption by St Kitts. Under pressure from both London and the Governor in Chief, in 1825 the inhabitants of Anguilla consented to the abolition of their Council. They agreed to be absorbed by St Kitts and for the Assembly of St Kitts to make laws to apply in Anguilla. The Anguilla Act of 1825 of the St Kitts Assembly gave the freeholders of Anguilla the right to send up a representative. The colony was now known as “St Christopher and Anguilla”. No law affecting Anguilla could be passed except in the presence of the Anguilla representative. We gave up the right to our own deputy governor. Our officials were to be appointed from St Kitts from then on. The St Kitts Assembly took on responsibility for Anguilla very reluctantly and only under pressure from the Colonial authorities. They made it clear to the Governor in Chief in repeated resolutions that no part of the cost of administering Anguilla would be borne by the St Kitts population.
  1. First Petition for Separation. It did not take long for the people of Anguilla to become dissatisfied with government from St Kitts. On 10 March 1825, they sent an address to the Governor in Chief complaining about an Act of the St Kitts Assembly that had reduced the power of the Vestry. They wrote:
Can we indulge a hope that laws enacted for this community, can and will be made with much regard to its interests; when they are passed by a body of men living in a distinct and remote island, possessing no property of any kind here and having no connection or relation whatever?
This time they were not ignored. They got back the Vestry in 1827.
  1. Second Petition. In 1871, the Leeward Islands were federated. Anguillians realised that they would be combined in the Presidency of St Christopher and Anguilla. They submitted a memorandum opposing the plan. They complained among other things that:
We watch with the greatest apprehension what appears to be the imminent decadence of an Island which for many years past has held a prominent position among the Islands of this Government for prosperity, good order and self reliance . . .
They proposed that:
. . . we may be allowed to revert to our former system namely a lieutenant governor . . . with an Administrative Committee, a form of government that gave satisfaction to all classes of the community, and under which we enjoyed the greatest amount of prosperity.
There is no indication in the records that the Anguillians ever received any response to this petition. Certainly no attention was paid to their concerns, as Anguilla duly entered the new Federation attached to St Kitts.
  1. Third Petition. The Anguillians continued to complain about the remoteness of, and unsatisfactory nature of government from, St Kitts. On 23 August 1872 they petitioned the Colonial Office:
The interest of Anguilla, its resources and capabilities of development are not understood . . . by the legislative body of St Christopher who are utter strangers to us, ignorant of the community, careless of their wants, and therefore unequal to discharge . . . the important duties of legislation for us . . . This legislative dependence on St Kitts can in no sense be called a legislative union, it has operated and continues to operate most injuriously against us, and is mutually disliked.
  1. By 1882 the economy of Nevis had disintegrated. Its Council was dissolved and the island was merged with St Kitts and Anguilla. The Presidency was now known as “St Christopher and Nevis”. The name of Anguilla was dropped. The Anguilla Vestry was abolished, and the Magistrate was appointed to oversee the day-to-day running of the island. Local government in Anguilla had disappeared.
  1. Fourth Petition. The situation remained unaltered throughout the first half of the Twentieth Century. In 1958 the Anguillians continued to suffer under a very low standard of living. Discontent with government from St Kitts peaked again. The result was another petition to the Governor of the Leeward Islands requesting him to:
. . . make every exertion which lies in your power to bring about the dissolution of the present political and administrative association of Anguilla with St Kitts.
And warning:
A people cannot live without hope for long without erupting socially; and it is because the people of Anguilla prefer petition to eruption that we now implore Your Excellency to use your best endeavours with the Secretary of State for the Colonies . . . to have Anguilla created a grant-aided colony, emancipated from the dead hand of the political leaders of St Kitts . . . We know that Anguilla must have at least an economic horizon to bolster a petition of this sort, but paradoxically such a horizon can never, never appear unless the island is free of St Kitts politics whose avowed intent it is to withhold from Anguilla even the ordinary amenities of modern civilised life.
  1. Associated Statehood. With the dissolution of the short-lived West Indies Federation in 1962 the islands reverted to colonial status for a short period. Britain and the Leeward and Windward Islands agreed to the creation of Statehood in Association with Britain, envisaged as a first step to independence. This relationship gave the Associated States full internal self-government, with Britain reserving only defence and external affairs.
  1. During 1966 a new Constitution for the creation of the Associated State of St Kitts, Nevis and Anguilla was discussed in London. Against the background of Anguilla’s persistent demand for a break from St Kitts, one of the proposals discussed was the establishment of local government in Anguilla. It agreed that the 1967 Constitution should contain a provision for Anguilla, and Nevis, to enjoy a degree of local government. The experiment was not to succeed. The St Kitts government never had any intention of permitting the Anguillians any real degree of internal self-government. This failure led to the mounting of a campaign against Statehood. It was led by such men as Ronald Webster, Atlin Harrigan, and John Rogers.
  1. Anguilla Revolution. Despite the objections of the Anguillians, on 26 February 1967 St Kitts, Nevis and Anguilla became an Associated State. On 27 February 1967, the Constitution of the Associated State came into effect. Anguilla refused to go into this status, and the Anguilla Revolution of 1967 commenced. On 8 March the Government House was burned to the ground and the Warden fled to St Kitts the next day. On 29 May at a meeting in the Park, the crowd voted by a show of hands to expel the St Kitts policemen from the island. The crowd left the Park in procession and marched to Police Headquarters where they ordered the police to leave Anguilla by 10:00 am the following day. The following morning the policemen were advised that a plane was ready to take them to St Kitts, and by noon they were all disarmed and expelled from Anguilla.
  1. The Peace-keeping Committee. On 31 May 1967, a Peace-keeping Committee comprising Walter Hodge as Chairman, Peter Adams, Atlin Harrigan, Alfred Webster, James Baird, John Rogers, Clifford Rogers, Ronald Webster, Wallace Rey, Camile Connor, Phillip Lloyd, Charles Fleming, Wallace Richardson, Mac Connor, and Emile Gumbs was established to manage the island’s affairs. The same day, a delegation comprising Rev Leonard Carty, Rev Martin Roberts, Peter Adams, and Conrad Walton Fleming was sent to St Kitts to search for a peaceful solution. They presented a memorandum to the Governor which read in part:
Anguillians do not want to be a part of the State of St Christopher-Nevis-Anguilla. The time when they might have accepted this is past. What they now want is separation from St Kitts. They want a process set in motion now which will give them separation and self-determination within twelve months. By the end of this time they want to be a State in Association with Britain.
  1. Attack on St Kitts. The response of the St Kitts government was immediate. A state of emergency was declared and regional governments were requested to send military assistance to put down the rebellion. The Anguilla Revolution was well under way. The Anguillians took the view that the best form of defence was attack. In the early hours of the morning of 10 June, a party of armed Anguillians landed in St Kitts and attacked the Police Headquarters, the Defence Force Headquarters, and the power station. Among the brave men were Todville Harrigan, Mitchell Harrigan, Collins Hodge, and Lemuel Phillip. The attack was a failure due to the small size of the Anguillian force, and the non-occurrence of the promised uprising by Kittitians against their own government. Nonetheless, the attack served Anguilla well in that the St Kitts Defence Forces concentrated on the defence of St Kitts, and never mounted an attack on Anguilla in response.
  1. Referendum on Secession. The St Kitts government insisted that the Anguilla Revolution had no legitimacy and was not supported by the majority of residents. The response of the Peace-keeping Committee was to hold a referendum on secession from St Kitts on 11 July 1967. The result was an overwhelming vote (1,813 to 5) in favour of secession.
  1. First Constitution. A further step towards legitimising the Revolution was the preparation of a Constitution. Dr Roger Fisher, a professor of law at Harvard University, agreed to help. He drafted an eleven-section Constitution which provided for the creation of an Anguilla Council with full legislative and executive powers. There were to be five elected and two nominated members.
  1. First Anguilla Council. The Fisher Constitution appointed the first members of the Council who were to hold office until elections could be held not later than July 1968. They were Ronald Webster, Rev Leonard Carty, John Webster, John Rogers, Peter Adams, Walter Hodge, Emile Gumbs, and John Hodge.
  1. Second Anguilla Council. While the Caribbean governments fussed and disagreed among themselves on the best way to resolve the Anguilla crisis, the Anguillians went about preparing for the first elections under their new Constitution. The Beacon Newspaper of 7 October 1967 published a notice advising the electorate that nomination day was fixed for 17 October and that elections were scheduled for 25 October. All Anguillians holding foreign passports were specifically allowed to vote, and civil servants were allowed to contest a seat. When nominations closed on 17 October, five of Ronald Webster’s candidates stood unopposed. Camile Connor and Charles Fleming withdrew from the contest. The five remaining candidates were declared to be duly elected Councilors. They were Ronald Webster, Wallace Rey, Hugo Rey, Collins Hodge, and John Hodge.
  1. When the new Council met on 21 October, Ronald Webster was elected Chairman and Campbell Fleming and John Rogers were named as Nominated Members. At a meeting at the Park the following day, Mr Webster told the crowd that Anguilla was looking for some sort of associated status with Britain or some other Commonwealth country. He emphasised that:
Total independence is only a last resort if all negotiations fail.
  1. United Nations. The Anguillian leaders were also interested in some form of relationship with the United Nations. Professor Fisher wrote a letter of 24 October to the Secretary General appealing for an administrator, an expert in telecommunications, and a financial adviser for Anguilla. His letter was followed up with a meeting between him and Jeremiah Gumbs and the UN Special Committee on Colonialism. The British Government took the view that the Committee of Twenty-four was incompetent to discuss the affairs of an Associated State and refused to participate in the discussions. The Committee decided to send a mission to Anguilla to investigate, but it was unable to visit because the British Government withheld consent.
  1. Senior British Official. On 8 January 1968, direct participation of Britain in the administration of Anguilla began with the consent of the St Kitts Government and the Anguilla Council with the arrival of Mr Tony Lee as the Senior British Official in Anguilla. This was intended to be for what was described as the Interim Period of twelve months.
  1. Advisory Board. In March the Anguilla Council set up an Advisory Board of fourteen members to assist with the running of the island’s affairs[1].
  1. Third Council. On 30 July 1968 new elections were held. There were seven candidates, although the Constitution provided for only five[2]. Negotiations continued between the Anguilla Council and the British and St Kitts governments. They all failed to resolve the crisis because the Anguillians were adamant that they would accept nothing short of complete separation from St Kitts. The British government insisted that under the West Indies Act 1967 they could not change the status of any part of an Associated State without the request and consent of the State legislature.
  1. End of Interim Period. As the end of the Interim Period approached, the Anguilla leaders were split. One faction led by Atlin Harrigan favoured retaining an association with Britain. Another led by Ronald Webster and Wallace Rey favoured a unilateral declaration of independence. The Anguilla Council appealed to the British to extend the Interim Period, but the British refused and on 9 January 1969 Mr Lee departed. The St Kitts government responded to the intransigence of the Anguillians by suspending air and postal services and banning all trade save for food-stuffs and drugs.
  1. Unilateral Declaration of Independence. In the perceived face of rejection by the British Government, the Anguilla Council prepared to hold a referendum on independence. Jack Holcomb, a US citizen living at the time in Anguilla and advising the Council, came up with a new constitution. It was duly approved by the Council and put to the people on 6 February 1969. The result was 1,739 votes in favour of independence and 4 against.
  1. Second Constitution. Jack Holcomb’s Republican Constitution provided for the island to be divided into three constituencies each of which would elect two candidates, and five candidates at large. The President and Vice-President were to be elected in a national election. Elections for the Legislature were to be held on 25 March 1969, while those for the President and Vice President were to be on 3 April.
  1. Republic of Anguilla. When nominations closed on 21 February, Ronald Webster was unopposed and was declared President of the Republic of Anguilla. He chose as his Vice-President Mr Campbell Fleming. Webster’s Cabinet was to include John Webster (a former Secretary of Defence) as Secretary of State for Domestic Affairs and Jeremiah Gumbs as Secretary of State for Foreign Affairs. On nomination day only six candidates were nominated and they were similarly declared elected unopposed[3].
  1. William Whitlock’s Expulsion. On 11 March 1969, a British envoy, Mr William Whitlock, arrived in Anguilla with proposals for a solution to the Anguilla crisis. His visit was spurred by a resolution passed in Trinidad at the just concluded Fifth Conference of Heads of Government of the Commonwealth Caribbean Countries. This called on Britain to take all necessary steps to confirm the territorial integrity of St Kitts-Nevis-Anguilla. The British proposal brought by Whitlock was that Anguilla should be administered by Tony Lee as Commissioner to serve for so long as the present difficult situation continued. He would appoint an Advisory Committee to assist him in his capacity as Her Majesty’s Commissioner. These proposals were unacceptable to the Anguillian leaders, and Whitlock was expelled from the island.
  1. British Invasion. During the early hours of 19 March 1969 some three hundred British paratroopers landed, followed by Royal Engineers and London bobbies. The local defence force had handed in their arms the evening before as it had been realised that resistance would be futile and would lead to unnecessary loss of blood. The rebellion was crushed without either side firing a shot. The invading forces distributed a leaflet that contained the fateful line:
It is not our purpose to force you to return to an Administration you do not want.
  1. Third Constitution. Tony Lee was appointed the first Commissioner, and Britain’s direct administration of the island began. He was appointed under an Order in Council of 18 March which authorised him to make by regulation provision for securing and maintaining public safety and public order in Anguilla as part of the Associated State. It gave him sweeping powers to amend, suspend or revoke any law in Anguilla other than the Constitution or the Courts Order. This 1969 Order was the first British Constitutional document that related specifically to Anguilla since the first day of settlement in 1650. It was Anguilla’s third modern constitution.
  1. Caradon Declaration. Tony Lee’s administration was not without opposition. There were several large demonstrations on the island demanding the withdrawal of British forces. Webster and the other leaders refused to cooperate with Lee. Representations were made to the United Nations. In an effort to defuse a highly explosive situation, the British Government dispatched its Ambassador to the United Nations, Lord Caradon[4], to Anguilla to work out an arrangement with the Anguilla Council. The result was the Caradon Declaration which was agreed upon by the Council. It provided for the administration of the island to be conducted by the Commissioner in full consultation and co-operation with the representatives of the people of Anguilla. The results of the 1969 elections were abandoned. The members of the 1968 Third Anguilla Council were recognised as the elected representatives and were to serve as members of the Council. The Declaration repeated that it was no part of the purpose of the British Government to put the Anguillians under an Administration under which they did not want to live. After initial difficulties with establishing working relationships, Tony Lee left Anguilla on 20 April to be replaced by John Cumber who took the important step of recognising Ronald Webster as the leader of the Council.
  1. Wooding Commission. On 18 December 1969 the British Government appointed a Commission of Inquiry under the chairmanship of Sir Hugh Wooding, Chief Justice of Trinidad and Tobago, to make recommendations for a satisfactory and durable solution to the Anguilla Crisis. By its terms of reference, The Commission was expressly required to find a solution that would “preserve the integrity of the State and prevent further fragmentation of the Caribbean”. Not surprisingly, the Commission’s Report concluded that while reversion to colonial status was out of the question, independence for such a small community was equally unrealistic. The only solution that could be recommended was the preservation of the State under an arrangement which gave the Anguillians a large measure of control over their own affairs. The Anguilla Council immediately passed a resolution rejecting the Report. They would accept nothing less than a complete break with St Kitts.
  1. Godber Proposals. With a change in government in London in 1971, the British Government gradually became more sympathetic to the Anguillian cause, and the Wooding Report became a dead letter. In July 1971, Joseph Godber, the new Minister of State for Foreign and Commonwealth Affairs, put to the St Kitts Government a proposal that the State Government delegate to HMG powers which would enable the Commissioner to administer the island for a period of years. The St Kitts Government insisted that the Anguillians were rebels and the British must force them back into the fold of St Kitts-Nevis-Anguilla. Gun-boats should be sent to do this and measures should be taken to starve the islanders into submission. On the other hand, the Anguillians were prepared to accept nothing short of complete separation from the Associated State. The British were forced to act unilaterally. Their proposals for an interim settlement were accepted by the Anguilla Council. In the words of Ronald Webster:
Anguillians have just accepted Britain to be their partner to work together from now onwards . . . let us move forward together to develop Anguilla.
  1. Reversion to British Administration. Purporting to act under the authority of the West Indies Act, the British Parliament passed the Anguilla Act 1971 to allow it to administer Anguilla. The Act took effect on 27 July 1971. It permitted the Queen in Council to make detailed provision for the administration of Anguilla. HMG was to appoint a Commissioner in Anguilla. The island would cease to be a part of the Associated State in the event of the introduction into the State’s legislature of a Bill for a law terminating the status of association with the UK. The St Kitts Government never accepted that this was a legitimate use of section 3 of the West Indies Act.
  1. The decision of the British Government to proceed unilaterally in this way met with strong condemnation from Caribbean Governments and newspapers. Their reaction prompted the leader of the Anguilla Council, Ronald Webster, to publish a letter in The Times urging the:
Commonwealth Caribbean countries not to interfere in a situation which does not concern them and towards the solution of which they have made no worthwhile contribution.
  1. Fourth Constitution. Anguilla’s fourth modern Constitution was the Anguilla (Administration) Order 1971. It made provision for the Commissioner to work in consultation with the Anguilla Council. This was to consist of seven elected members and up to six nominated members. The role of the Council was not spelled out in the Order, and the Commissioner was vested with complete legal control of the island. Mr Godber gave the Anguillians the assurance that the constitutional arrangements would be reviewed after three years. Anguillians accepted the Order as a temporary settlement even though it was within the framework of the Associated State. They recognised that it was setting the stage for the eventual separation of Anguilla from the rest of the State.
  1. The Anguilla Council of 1972. The first general elections under the Administration Order took place on 24 July 1972. The result was the election of the fourth and last Anguilla Council[5]. Their complete lack of power caused them to go on strike against the Commissioner. The situation was diffused by introducing a committee system whereby certain members of the Council became chairmen of departmental committees. However, when after three years the promised constitutional review did not take place, the Council went on strike again (for a period of fourteen months). Only when the British Government agreed to constitutional concessions did the Council resume work.
  1. Fifth Constitution. In 1976 Anguilla was given a new Constitution. It had been negotiated by the Anguilla Council with representatives of the British Government during the “strike” of the previous year. It came into effect on 10 February 1976, and was Anguilla’s fifth Constitution of the modern era. It provided for the first time for a Ministerial form of government. The Executive Council comprised a Chief Minister and two other ministers and two ex-officio members, the Attorney-General and the Financial Secretary. It was chaired by the Commissioner. There was provision for a Legislative Assembly comprising the Commissioner as Speaker, three ex-officio members, namely the Chief Secretary, the Financial Secretary, and the Attorney-General, and not less than seven elected and two nominated members. The Commissioner was to consult with Executive Council in the formulation of policy and the exercise of all powers conferred upon him by the Constitution. However, he was not obliged to consult with respect to external affairs or internal security, nor on matters relating to the public service. This system extended to the local representatives some of the forms of power while ensuring that the British official retained the substance of power. As Petty puts it in his “Where There’s a Will There’s a Way”:
The Anguillians had fought for direct British Colonialism and they got it in heavy doses.
The 1976 Constitution recognised Anguilla to be still a part of the Associated State of St Kitts, Nevis and Anguilla. However, it was to be separately administered by Britain until such time as the constitutional crisis between Anguilla and the rest of the State could be resolved.
  1. General elections under the 1976 Constitution were held on 15 March 1976[6]. Mr Webster was named Chief Minister, with Emile Gumbs and Albena Lake-Hodge his two ministers. Hubert Hughes was the lone opposition member. By early 1977 Mr Webster had lost the confidence of his government, and when at a 1 February 1977 meeting of the Legislative Assembly Mr Hughes introduced a motion of no confidence only Mr Webster did not support it. The Commissioner revoked Mr Webster’s appointment. Due to the short period that had passed since the previous elections, and because the majority of the Assembly supported the appointment of Emile Gumbs, the Commissioner did not call new elections, but instead appointed Emile Gumbs to be the new Chief Minister. This government lasted until the general elections of 28 May 1980 when Mr Webster and his supporters won six of the seven seats, only Emile Gumbs of the previous administration retaining his seat[7].
  1. The Anguilla Act 1980. In February 1980 the Labour Party administration of Premier Lee Moore in St Kitts was defeated at the polls. The new premier Dr Kennedy Simmonds made it clear that his administration would put no obstacle in the way of change in Anguilla and the Anguillians should be free to decide their own constitutional future. The result was the Anguilla Act 1980 which empowered Her Majesty to separate Anguilla from the State on a day appointed by Order in Council. The Anguilla (Appointed Day) Order duly appointed 19 December 1980 as the day on which Anguilla ceased to be a part of the territory of the Associated State of St Christopher, Nevis and Anguilla.
  1. Mr Webster’s government of May 1980 lasted for barely a year before internal dissension brought it down. After a short period of political instability, he advised the Commissioner to dissolve the Assembly and to hold general elections on 22 June 1981[8]. Mr Webster won his seat and had the support of four of the newly elected representatives. The Commissioner asked him to form the new government. One of the objectives of the new government was to negotiate with the British Government for constitutional advance. Mr Webster was particularly concerned to ensure that the Constitution said that in the event of another vote of no confidence the Commissioner could not appoint a new Chief Minister but must call general elections.
  1. The possibility of constitutional advance was limited in view of the position of the British Government that if a territory aspired to autonomy it must call for independence and set a timetable. It was made clear that Associated Statehood was out of the question, and that any aspiration to such a status would be considered only in the framework of a call for independence.
  1. Sixth Constitution. There was no public consultation on revising the 1976 Constitution. The new Constitution came into effect on 1 April 1982 shortly after it was first seen by the public. It is Anguilla’s sixth modern Constitution. By one view it contains only minor changes to the 1976 Constitution. Others criticize it as the abandonment of full internal self-government and a craven submission, without consultation with the Anguillian public, to naked colonial administration. The position of Commissioner was renamed “Governor” and the Legislative Assembly now became the “House of Assembly”. Additionally, the Commissioner (Governor) ceased to sit as a member of the House of Assembly and the Speaker of the House was chosen by the House and not by the Governor.
  1. The 1982 Constitution left the Governor’s reserved powers virtually intact, though he was now required to consult the Chief Minster on matters relating to internal security and the public service. The Governor also had reserve power to legislate and to administer in case public order has broken down and a state of emergency exists.
  1. Anguilla Constitution (Amendment) Order 1990. In line with local demands for increased autonomy, and after the new 1982 Constitution had been working for only three years, on 2 August 1985 the House of Assembly passed a motion for the Governor to set up a Constitution Review Committee. This Committee was appointed by the Governor in October 1985[9]. The result was the Anguilla Constitution (Amendment) Order 1990. These included new provisions for the creation of the office of Leader of the Opposition and alteration of the definition of Belonger Status. This is the Constitution under which Anguilla is governed to this day.
  1. Anguillians are by and large satisfied that the 1982 Constitution gives them what they want: a large degree of autonomy, with external forces at hand (in the form of a British warship) for the defence of the island, and its representation overseas by the Foreign and Commonwealth Office. The utility of a British passport to facilitate international travel, study, and work is generally appreciated. Interest in discussing reform is limited to politicians, lawyers and a few others who take a special interest in these matters.
  1. There is a very small group that agitates from time to time for independence to become an issue. Other than a largely dormant website, nothing surfaces except occasionally, usually at the time of general elections or other time of political agitation. The vast majority of Anguillians have made it clear both during the process adopted by the previous Committee, and in representations to the present Commission, that they do not wish to consider the issue of independence. Anguillians are in general consensus that their institutions of democracy are new-born and fragile. The 13 Northern Colonies, by contrast and comparison, declared independence in 1776 after enjoying over 150 years of self-government by both an Assembly and a Council in each of the Colonies. Anguilla has had a bare 40 years of internal self-rule, a Council and an Assembly. Time is still needed for the necessary conventions and practices to form and to firm up, so that the bare bones of the Constitution can come to life, and the people can feel the necessary confidence in their democratic and political institutions to venture out onto the rough and unknown seas of independence under the care of captains not yet on the horizon.
  1. Rifkin Letter. In the year 1996 great consternation was felt across Anguilla when a letter from Malcolm Rifkin, Secretary of State was circulated. It proposed that it might be necessary to increase the powers of the Governor. Its publication was followed by extensive public debate and some public demonstrations against it.
  1. Partnership for Progress. Shortly after, the Conservative government in the UK fell in May 1997. The new Labour administration in London set about making new proposals for the relationship with the Overseas Territories. In March 1999, the British Government published a major policy document that set out the parameters of the relationship. The Secretary of State reiterated the four principles that underlie the partnership as:
First, our partnership must be founded on self-determination . . .
Second, the partnership creates responsibilities on both sides . . .
Third, the people of the Overseas Territories must exercise the greatest possible control over their own lives . . .
Fourth, Britain will continue to provide help to the Overseas Territories that need it . . .
One of the principal outcomes of the Report was the replacement of BDT citizenship with full British citizenship. The Territories were renamed Overseas Territories. The Report makes it clear that Britain’s links to the Territories should be based on a partnership, with obligations and responsibilities on both sides.
  1. Chapter 2 of the Partnership for Progress Report sets out the rationale for constitutional review at this time:
The governance of the territories must have a firm basis. Democracy, human rights and the rule of law are all as relevant in the Overseas Territories as elsewhere. The principles which should underlie modern constitutions are clear. There must be a balance of obligations and expectations, and both should be clearly and explicitly set out:
  1. In March of 2000, there were general elections in Anguilla. The party that came to power was the United Front. In its manifesto it had made a number of promises that involved constitutional reform. These included abolishing the nominated members, increasing the number of ministers, reviewing the provisions for the exercise of responsible government and ministerial authority by elected members, reviewing the policy and law relating to “belongership”, developing codes of conduct for politicians, ministers and members of the Assembly, creating the office of Ombudsman, etc. All these matters involved some sort of constitutional review.
  1. Constitutional and Electoral Reform Committee. Consequently, Mr David Carty was appointed by the Chief Minister, Osborne Fleming, with the task, in the first instance, of raising the consciousness of the Anguillian public about constitutional matters. Mr Carty solicited and recruited the assistance of a distinguished cadre of Anguillian professionals and opinion makers to assist in the awareness-raising effort[10]. They constituted the membership of the Constitutional and Electoral Reform Committee.
  1. Consultative Forum. By October 2001 the Committee had agreed to establish a Consultative Forum. The forum focused its deliberations by dealing with individual chapters of the Constitution on a month-by-month basis. The sessions were open to the public for an interactive discussion with all delegates of the forum who asked questions, made comments and rendered opinions. In addition to the general public, individuals and groups throughout Anguilla were requested to attend in person or through delegates. A series of public presentations were delivered at the Teachers Resource Centre and were broadcast live on Radio Anguilla. They were also videotaped and broadcast on Cable Television. Each month a member of the Committee gave a well researched presentation on a particular chapter of the Constitution.
  1. Town Hall Meetings. The Committee attempted to take the discussion to a wider public by holding Town Hall meetings out in the districts. Between June and October 2003 some one dozen public meetings were held. These meetings were similarly not well attended. Interest in Anguilla, then as now, on issues relating to constitutional and electoral reform was limited. The most popular issues to emerge were (1) electoral reform, (2) belonger status, (3) where does real authority in government lie, and (4) voter eligibility.
  1. Report of the Committee. The work of the Committee appears to have fizzled out. There does not seem to have been an official or clear decision to bring its work to an end. It simply stopped meeting. Some have reported to the members of this Commission that this was due to lack of interest. Others have reported that it was as a result of a Committee of Twenty-Four meeting which criticized the British Government for the way it was handling the whole issue of constitutional reform in the Overseas Territories. Whatever the reason, the Committee never finished its work and made no recommendations for constitutional reform. Its Chairman in May 2005 published a Report consisting of a record of the various speeches and transcripts of meetings together with an Overview in which he recommended the setting up of a new Commission with clear terms of reference and with timelines for completion. The Chairman has been heavily criticized in the media by members of his Committee who claimed that they had never been shown the Report in advance and had not agreed to it. Some members of the Committee subsequently urged the public to boycott the Commission, and themselves refused to play any further part in the exercise or constitutional review and reform.
  1. Separation Day Speech 2005. On 19 December 2005, HE the Governor Mr Alan Huckle made a speech in which he announced that the Government had decided to start up a new Constitutional and Electoral Reform Commission to start work in early 2006. He explained that he was then consulting with members of the Opposition and representatives of non-governmental organisations about the membership of the Commission. He explained that the new Commission would build on the work of the previous Committee and seek to establish the broadest possible agreement on those areas which might be reformed.
  1. Appointment of the Commission. The Governor set up the Commission on 21 January 2006. His letter of appointment established its terms of reference. The members consisted of Rev Cecil Weekes, Stanley Reid as Secretary, Chanelle Petty-Barrett, Grace Carty, Calvert Carty, Claude Romney, and myself as Chairman. Ms Maria Reid of the Treasury Department was appointed Executive Secretary.
  1. We met for the first time on 7 February and weekly thereafter mainly on Tuesdays at the Speaker’s Conference room, access to which was by kind permission of the Speaker of the House. We kept minutes of all our meetings and circulated them regularly to all members. We used the email extensively for communicating.
  1. As recommended in our terms of reference, we proceeded to review all reports and transcripts of speeches and radio and television presentations made on the subject of constitutional reform in Anguilla over the previous 5 years. We also reviewed the Constitutions of other British Overseas Territories and the Reports prepared by their Constitutional Reform Commissions. For convenience, we have divided up the areas of the Constitution between ourselves for writing first drafts of recommendations. We prepared them initially based on the work of the earlier Committee. Consultation with the public has been extensive and unremitting. Our drafts have been circulated widely. We handed out copies at all public and private meetings. We posted them in full on the Commission’s website. The issues were the subject of discussion on the website and at all public and private meetings.
  1. As an essential part of our terms of reference, we went into the community and consulted with citizens and residents as to their thoughts on constitutional reform. Although attendance at public meetings has been disappointing, members of the public in meetings with groups and NGOs have indicated general satisfaction with the transparent way in which the Commission has worked. The drafts have gone through a number of evolutions as comments came in. The revised drafts were repeatedly published and discussed publicly. The latest drafts together with any further comments and recommendations received from the public will form the basis of the Commission’s final Report.
  1. The Commission agreed early in its deliberations that it would make every effort to meet the six-month target given to us. For planning purposes we set an initial deadline of four months to review all the issues, prepared discussion papers, seek the reaction of the public, and make a final report. In the event, it has become necessary to extend the time we are giving ourselves. It now looks as though we will not be ready to present our final Report until late in July.
  1. In conclusion, the latest draft of the recommendations that the Commission is considering is ready for distribution. The Commission has not as yet agreed on the final Report. The draft that you have is a compilation of the various proposals that members of the Commission have made to the Commission. They are still out in the public domain for comment and amendment. We invite you to take home a copy with you and to read it carefully. We look forward to hearing from you with any suggestions or recommendations you may wish to make.
  1. Thank you, and now I shall be happy to take questions.

[1] The Advisory Board comprised Tony Lee, John Webster, Calvin Hodge, Emile Gumbs, Alfred Webster, Atlin Harrigan, Walter Hodge, Lucas Wilson, Camile Connor, Lewis Haskins, Joseph A Webster, Clement Daniels, Wallace Richardson, and Charles Fleming.
[2] Those elected were Ronald Webster, Atlin Harrigan, Kenneth Hazel, Collins Hodge, John Hodge, Wallace Rey, and Emile Gumbs.
[3] They were Winston Harrigan, Lucas Wilson, Uriel Sasso, James Woods, Charles Fleming, and Mac Connor.
[4] Formerly the British politician, Sir Hugh Foot.
[5] Those elected to the fourth Anguilla Council were Ronald Webster, Evans Harrigan, Reuben Hodge, Wallace Rey, Emile Gumbs, Camile Connor, and John Hodge.
[6] Elected to the first Legislative Assembly were Ronald Webster, Campbell Fleming, Idalia Gumbs, Albena Lake-Hodge, Emile Gumbs, Hubert Hughes, and John Hodge.
[7] Elected to the second Legislative Assembly were Ronald Webster, Nashville Webster, Watkins Hodge, Claudius M Roberts, Emile Gumbs, Hubert Hughes, and Albert Hughes. Those nominated were Euton Smith and Connell Harrigan.
[8] Those elected to the third Legislative Assembly were Nashville Webster, Osborne Fleming, Victor Banks, Ronald Webster, Emile Gumbs, Maurice Connor, and John Hodge.
[9] Its members were Attorney-General Richard Whitehead, Speaker Atlin Harrigan, Clement Daniels, Rev Leonard Carty, and Miriam Gumbs.
[10] They included Dame Bernice Lake QC, Colville Petty OBE, Franklin Connor OBE, Dr Phyllis Fleming-Banks, Timothy Hodge, Alex Richardson, Davon Carty, Stanley Reid, and Louise Hazell as executive secretary.