Thursday, October 22, 2015

Aliens Landholding Regulation Act

The Aliens Landholding Regulation Act (ALRA) of Anguilla
There is a view (which I share) that ALRA is obsolete, and unnecessarily holds up development in Anguilla.  It ought to be repealed without delay, if the economy of Anguilla is to get a long overdue boost from dealings in real property.
ALRA was originally enacted by the Imperial Parliament in London in about the year 1914 to prohibit the German armed forces acquiring bases around the Empire.  It was based on the California Alien Land Law of 1913, designed to prevent Mexicans purchasing property.  After 1918, it was repealed everywhere in the British Empire except in the small islands of the West Indies which had neither the resources nor the initiative to repeal it.
As tourism grew in our islands in economic importance, and Ministers saw the opportunities opening up for extracting brown paper bags of money from ‘investors’ in exchange for granting licences, the argument was invented that the Act was needed to keep out undesirable foreigners.  The truth is that such power existed under the Immigration Act.  But, the Immigration Act did not offer as many opportunities for under-the-table deals as ALRA did.
ALRA was misused as a form of Planning Act.  This was a misuse because foreigners could be compelled in exchange for a licence to follow arbitrary planning policies that did not apply to locals.  Instead of passing into law a proper, modern Planning Act, which might prove to be unpopular, governments could put up a show of being concerned about the environment, and force foreigners to comply with standards that were often arbitrarily set, and frequently waived for the right consideration.
ALRA was misused as a tax-raising law.  Foreigners would have to pay an extra 12.5% of the value of the property in addition to the 5% paid by locals.  Not only was this bad for being essentially discriminatory, but it put off many decent investors who might have wanted to buy a holiday home and to hold on to it for a few years before reselling it.  It made developed land difficult if not impossible to turn over at a profit.  The result is that many valuable properties have been developed on the island that are now essentially unsellable.  This is to the disadvantage of the public purse, which would welcome the stamp duty on a sale.  
Of course, the ALRA tax provision was frequently waived by governments, no doubt for an acceptable private consideration.  This was as a result of ALRA specifically providing that Executive Council may waive the payment of the tax.  In my opinion, it would prove more profitable to government if ALRA was repealed and replaced by an increased tax on all land transfers under the Stamp Act.  The Stamp Act tax is safe because it cannot legally be waived by Executive Council, and the revenue would thus be guaranteed.
The result is that ALRA performs none of its intended objects.  It does not keep out Germans, who are not at war with us.  It does not restrict any foreigner who is either willing to put up with the onerous and exceptional provisions that will apply only to his land ownership in Anguilla, or who is willing to pay for someone to front for him, or to pay some other consideration.  It does not serve as a consistent or fair planning instrument.  Nor, given the many notorious exceptions that are made by governments when they issue ALRA Licences, does the Act raise significant amount of revenue.  The Act stands completely discredited as a fraud and an invitation to corruption.  In my view, it should be repealed.
The repeal of this Act will not enable undesirable foreigners to buy up all the land in Anguilla, as some Anguillians fear, unless the government permits them to do it.  They permit it by failing to enforce the Immigration Act, failing to prosecute Anguillians who front for foreigners in breach of the existing law, and failing to pass a modern Planning Act and modern Planning Regulations.

Wednesday, October 21, 2015

Anguilla Public Finance Order - My Opinion

PERSONAL OPINION
[1]     When I was appointed Magistrate and Registrar in Anguilla in August 1976, I became head of the Judicial Department.  Ralph Hodge was Accountant General in the Government of Anguilla.  Shortly after I took up the position, the Accountant General called me to his office and explained the financial obligations and responsibilities of the position to me.
[2]     What he told me was that every penny in the Government Estimates of Expenditure and Revenue was assigned to a line item.  These funds had been approved for my Department by the Anguilla House of Assembly.  The line items had to be strictly adhered to.  I was not permitted to shift one penny from one line item to another without authorization.  If I over-spent one penny, it would be deducted from my salary as head of department.
[3]     However, in all the years since then, I have never heard of one head of department being penalized for over- or mis-spending the funds of the Department.  And, what we gather from reading the draft Order in Council is that government departments no longer strictly account for every penny received and spent.
[4]     A few years later, after I had left government, I had a conversation with a Chief Auditor.  I was attempting to secure copies of the latest Audit Reports of the accounts of the Government of Anguilla for an article I was writing.  He told me he was not authorized to give me a copy.  I must try to get a copy from the Accountant General, to whom alone he delivered his reports.  I tried on several occasions to get from the Accountant General copies of the most recent Audit Reports, but was turned down each time, though I had paid several hundred dollars for the copies I had requested.  What I actually received was several hundred pages of the Estimates, not what I had requested.
[5]     So far as I know, no Audit Report of a Chief Auditor of Anguilla has ever been made public.  Each year, they are “laid before the House of Assembly” by the Minister of Finance.  They are then taken away by the Minister and put in his filing cabinet, never again to see the light of day.
[6]     When I complained to the Chief Auditor about the refusal of the Accountant General to give me the copies I had paid for, he told me he was not surprised.  From what he told me, I concluded that not one Government Department kept a proper record of what its revenue was, and where it came from.  Not one Department kept a proper record of what exactly it spent its allocated funds on.  I concluded that there was not one Audit Report in the past 30 years from any Chief Auditor which had given the Government of Anguilla a clean report.  No wonder, then, they wanted to keep the Reports secret.
[7]     From all this, I concluded that each Department in the Government of Anguilla is now allocated what amounts to a giant slush fund by the House of Assembly.  The Minister and his heads of departments can use their budgeted funds more or less as they wish.  This must mean that no longer are all funds ascribed to a line item which is required to be adhered to.
[8]     The likelihood is that, despite recent computerization, there is no proper system of accounting for funds received, or funds spent.  Honesty and integrity in the handling of the public funds of the people of Anguilla would depend today on the personal integrity of the individuals concerned, and not be dependent on proper systems.  There must be many Departments of Government where, from the head down, we can suspect there is widespread mis-handling of public funds.
[9]     On inquiry, I am informed that the Internal Audit officers no longer go around regularly to each Department checking on their adherence to prescribed systems.  If Internal Audit officers have ever investigated any public officer’s mis-handling public funds is not publicly known.  It is not clear to me what, if anything, the Internal Audit Department does.
[10]   From this, we can conclude that despite the repeated recommendations of the secret Audit Reports from the Chief Auditor, no Minister of Finance has ever taken any steps to reform the wide-spread mishandling of public funds revealed by the draft Order in Council.  We can readily believe that no Minister insists on the penalization of public servants caught misappropriating the monies of the people of Anguilla.
[11]   There is little opportunity for us, the public of Anguilla, to find out the truth about what is happening with the public accounts.  There is no Freedom of Information Act in Anguilla to permit questions to be asked, and to force answers to be given.  No Public Accounts Committee has ever called for a copy of an Audit Report from a Chief Auditor, and questioned any public officer about the spending of his or her Department’s funds.
[12]   Despite the comments and observations above, I do not personally favour the passage of the draft Anguilla Finance Order, 2015.  My main objection is based on principle.  We in Anguilla deserve a mature and responsible system of government based on transparency, accountability and integrity.  We need to enforce existing laws and prosecute and punish Ministers and senior public servants who break those laws.  We need to begin to demand and to expect proper government handling of public funds.  We need to do this ourselves.  We need our political and public administration leadership to stop protecting public servants who mis-appropriate public funds.  It is time we began actively, through publicity and criminal prosecutions, to enforce our laws.
[13]   The imposition of a new watchdog institution from London will not help us to grow in financial maturity.  It will only foster resentment and hostility in the public mind.  The objections will be led by those with a political axe to grind, and, perhaps, with an interest in concealing the true state of Anguilla’s financial affairs.  This Order in Council, in my opinion, amounts to a democracy deficit and will be a disaster for good governance in Anguilla.
[14]   If I have mis-judged any aspect of the public accounts of Anguilla in what I have written above, I would love to know.  If you see anything unfair or unjustified in any opinion expressed or comment I have made, don’t hesitate to point it out to me so I can correct it.

Tuesday, October 20, 2015

Anguilla Public Finance Order

ANGUILLA PUBLIC FINANCE ORDER, 2015 – AN EXERCISE IN HERMENEUTICS
[1]     The above draft and proposed Order in Council to be made by the British Government and to apply to Anguilla, has been widely and publicly circulated in Anguilla in the past days.  I have now read it, and can explain that its essential provisions are contained in 12 sections as follows:
(a)     By section 1, the Order replaces and supersedes any Act of the Legislature or Order in Council which is in conflict with it.  This expressly includes the present Anguilla Constitution, 1982.  If any provision of the Constitution were to conflict with this Order, the Order would prevail.
(b)     Section 2 deals with interpretation and definitions.
(c)     By section 3, certain General Principles are set out.  Principally, the Government will be obliged to formulate a new Fiscal Framework which will set limits on levels of public debt.  This Fiscal Framework will be agreed with the Secretary of State before its adoption, and which will replace the existing Fiscal Responsibility Act, 2013.
(d)     Any decision of the Government, or any Government policy, or any Act of the House of Assembly which would, in the opinion of the Governor, exceed the Fiscal Framework will require prior approval of the Secretary of State.
(e)     The Minister of Finance will be required to report to the House of Assembly every 6 months on the performance of Government in implementing the Fiscal Framework and on the state of public finances and the state of the economy of Anguilla.
(f)      When any proposed Appropriation Bill (the Government’s annual budget) would not be balanced, the Minister shall explain the reasons for the failure to the House of Assembly.
(g)     Where, in the opinion of the Secretary of State, Government is likely to be in breach of the Fiscal Framework then the following consequences arise.  (i) The Governor will have the power to enact any legislation, by Order published in the Gazette, thought fit to ensure compliance.  (ii) Government shall agree with the Secretary of State a Medium Term Fiscal Plan to meet key debt ratios.  And, (iii) the Governor may appoint a Chief Financial Advisor who shall be obliged to comply with any direction given to him or her by the Governor.
(h)     By section 4, no variation of any tax, rate or other levy shall be made by any Minister or the Government except under the authority of an Act.  Where an Act authorizes any person to vary a tax, rate or levy, that person shall report to the House on such exercise of power not less than every 6 months.
(i)      By section 5, the Minister shall ensure that all contingent liabilities of the Government (including pensions and healthcare) are subjected to independent actuarial assessment every 2 years and shall report to the House within 2 months.
(j)      By section 6, all monies received by the Government shall be paid into the Consolidated Fund.
(k)     By section 7, no money shall be withdrawn from the Consolidated Fund except to meet expenditure charged on the Fund by a law in force in Anguilla.
(l)      By section 8, the Minister of Finance shall at least 6 weeks before the beginning of each financial year lay before the House the estimates of revenue and a document setting out targets for revenue and expenditure, and the House shall publish them without delay.
(m)    By section 9, the Minister is required to introduce into the House an Appropriation Bill and any necessary Supplementary Appropriation Bills, and the Governor may refuse to assent to any such Bill if it would be inconsistent with the Fiscal Framework.
(n)     Section 10 limits Government’s power to borrow except as authorized by an Act and in accordance with the Fiscal Framework.  If the UK’s Department for International Development guarantees any borrowing by the Government of Anguilla, the guaranteed borrowing shall be repaid as quickly as possible.  The Governor may on behalf of Government enter into counter-indemnity arrangements with HMG in connection with any borrowing by Government and shall ensure compliance by Government with any obligations under any such arrangements.
(o)     By section 11, the Governor may act contrary to any advice by Executive Council if compliance with such advice would be inconsistent with the Fiscal Framework.  The Governor may give directions to any Minister or public officer to ensure compliance with the financial obligations of Government, and the recipient shall be obliged to comply.  The Governor may after consultation with the Chief Financial Adviser make legislative proposals to Executive Council and may establish an independent review of the performance and functioning of any statutory body and may dissolve the Board of any statutory Board and reconstitute it.
(p)     By section 12, the Governor’s functions under the Order do not have to be in accordance with the advice of the Executive Council.
[3]     A hermeneutical analysis of the contents of the draft Order indicates that the following problems are perceived by those responsible for its drafting to exist in connection with the finances of Government:
(i)      The macro-economic and fiscal policies of the Government are not being formulated and conducted for the sustained long term prosperity of the people of Anguilla.
(ii)      Anguilla’s public funds are not being managed according to established principles of value for money, affordability and regularity and in the interests of long term financial stability.
(iii)     The Government has no framework document setting limits on the levels of public debt relative to public revenue.
(iv)     The Minister of Finance does not report regularly to the House on the financial performance of Government or the state of the public finances and the state of the economy of Anguilla.
(v)     The Governor does not presently have sufficient power to ensure that Government does not breach the existing fiscal framework and the Governor needs power to enact law to ensure compliance with the new Fiscal Framework.
(vi)     The Governor needs a chief financial officer, who will be under the Governor’s control, to carry out any functions which may be prescribed by the Governor (which will, presumably, mean enforcing compliance by Ministers and public servants with the government’s legal and financial obligations).
(vii)    Ministers of Government are imposing, waiving and varying taxes, rates and levies without the authority of a law, and this needs to be stopped.
(viii)   Where Ministers waive and vary taxes, rates and levies, they do not report or account to the House of Assembly.
(ix)     There has not been any actuarial assessment of Anguilla’s contingent liabilities.
(x)     The public monies of Anguilla are not being paid as required by existing law into the Consolidated Fund but are being paid into unauthorized accounts.
(xi)     The public funds of Anguilla are not presently being invested or used according to law, but are being kept or handled in unauthorized ways.
(xii)    Monies are presently being withdrawn from the Consolidate Fund contrary to law.
(xiii)   The Minister of Finance is not placing the Estimates promptly before the House as he is expected by law to do, nor is he setting targets for government’s revenue and expenditure, nor are the Estimates being published promptly, as is presently required by law.
(xiv)   Excessive expenditures by government departments, over and above that authorised by the annual Budget, are not being legalised by an appropriate Supplementary Appropriation Act as required by law, and government’s spending of public money needs to be better regulated.
(xv)    The Anguilla Government is not complying with its existing undertakings to the British Government to regulate borrowings by the Government.
(xvi)   DfID may, as a consequence of mishandling of public funds by the Government of Anguilla, be required to lend money to the Government of Anguilla, and there is a need to ensure that such borrowing is repaid promptly.
(xvii)  Ministers and public servants are acting against the interests of the public of Anguilla, and they need to be further regulated.
(xix)   The statutory boards of Anguilla (such as the Social Security Board, and the Anguilla Health Authority), which are appointed by Ministers, are not reporting accurately on their financial performance, and they need further regulation, including giving the Governor the power to dissolve and reconstitute such Boards.

Saturday, October 03, 2015

A Corrupting Independence

“A Corrupting Independence – Short-term and Long-term Political Ambitions in Anguilla”
[1]        Anguilla is a small, 35 square-mile, English-speaking island located in the centre of the West Indies,[1] 100 miles to the west of Antigua and to the north of St Kitts, and with a population of some 14,000 persons.  Its principal industry is tourism, mainly funded by foreign direct investment.  It was first occupied for millennia by succeeding waves of Amerindians who came out of South America.  These died off as a result of interaction with the Spanish after the “discovery” of the islands by Christopher Columbus in 1492.  They left no written records, and their cultures are known to us mainly through the activities of archaeologists.
[2]        Anguilla became a part of the Spanish Empire by virtue of Pope Alexander VI’s Papal Bull Inter Caetera and the resulting Treaty of Tordesillas in 1494.  This brought an end to military conflict between Spain and Portugal, and divided the New World between their two contending thrones.  The Spanish, however, did not occupy the island as it was too small and insignificant to be of any interest to them.
[3]        Subsequently in the year 1627, Anguilla became an English colony when King Charles I claimed it as his own and included it in his grant of the islands of the West Indies to the Earl of Carlisle.  Englishmen did not actually occupy it until 1650 when a group of dissatisfied tobacco planters from St Kitts and Nevis, fleeing the taxes imposed on them to fund the defence of those islands, together with some run-away indentured labourers seeking freedom from servitude in Barbados, arrived and stayed.  The first English settlers grew tobacco for export.  Poor rainfall and deficient soil soon reduced them to raising goats and other small-stock for export to St Kitts, and growing peas, maize and sweet potatoes for home consumption.
[4]        After the island was settled in 1650, no attempt was made by the colonial power to provide for the islanders to make laws for themselves or to establish an executive body to administer government.  The deputy governor of Anguilla was, for generations, elected by local planters and, alone among all the other colonies, was merely approved in his unofficial and unpaid office.  Governor in Chief of the Leeward Islands, William Mathew, in 1734 described the deputy governor’s authority in this way:[2]
As for being under government, they are out of all notion of that.  From time to time deputy governors from among them have been appointed by His Majesty’s Chief Governor of these islands, but these have no authority over them but what they are able to enforce with a cudgel.
[5]        Abandoned and ignored by the colonial authorities, the islanders managed to survive between 1650 and 1825, entirely autonomously.  With the ending of the long drought in about 1725, they began to grow sugarcane for the first time.  They imported several hundred Africans to labour in the fields.  The black, white and coloured descendants of these early immigrants now occupy all the land, and out of conceit consider themselves to be the native or indigenous people of the island.
[6]        In the early years of the nineteenth century, the “great experiment” of the abolition of slavery began to dominate the concerns of the Colonial Office towards its remaining colonies in the Americas.  The passing of the Slavery Abolition Act by the British Parliament in 1833 was the first legislative step towards the abolition of the system of plantation slavery in the colonies.  Effective abolition depended on the passing of an Abolition Act in each colony.  Anguilla possessed no legislature and no system of real law.  For slavery to be abolished in Anguilla it would be necessary for the Anguillians to be brought under some system of law-making.
[7]        The solution devised by the Colonial Secretary in London was to persuade the nearby colony of St Kitts to let Anguilla unite with it.  In that way, laws made in St Kitts would apply in Anguilla.  The St Kitts planters and merchants who dominated their legislature and executive council agreed to take on this responsibility on one condition.  Not one penny of St Kitts money, they insisted, was ever to be required to be expended in Anguilla.  The Colonial Office was obliged to agree, but on condition that no funds were ever to be required from London.  For their part, the Anguillians were granted the right that no law affecting them would be introduced into the St Kitts legislature unless their elected representative was present.  The result was the resignation of the last deputy governor and the passing of the Anguilla Act of 1825 by the St Kitts Assembly.  This unhappy legislative union between the two colonies lasted for another 142 years, until the Anguillians effectively ended it in 1967.
[8]        With the collapse of the West Indies Federation of 1958-1962, and the return of the smaller islands to colonial status, the British actively encouraged independence.  First, the islands were designed to become semi-independent “Associated States”, and then, hopefully rapidly, fully independent.  This solution worked as planned with such of them as Antigua, Grenada, St Lucia and St Vincent.  It failed in the case of the Associated State of St Kitts-Nevis-Anguilla.  The Anguillians, in what has become known as the Anguilla Revolution, rebelled from the threat to keep them tied in perpetuity to the St Kitts administration.  On 29 May 1967, by a public vote taken in the island’s main sports field, they decided to expel by force the St Kitts administration from their island.
[9]        On 11 July 1967, Anguillians voted again in a referendum by an overwhelming majority of 1,813 to 5 to separate from St Kitts and to run their own affairs.  Three months later, on 21 October, a locally elected Peace Keeping Committee took office under a newly approved Constitution, and began knocking on the doors of the United Nations demanding admittance.  Two years later, on 6 February 1969, the British being reluctant to accede to their demand to be legally separated from St Kitts, the Anguillians adopted a new Constitution and declared the island the independent Republic of Anguilla under the leadership of their first President, Ronald Webster. 
[10]      Just weeks later, on 19 March 1969, the Republic was brought to an end by a dawn invasion by sea and by air by a contingent of British paratroopers.  These were invited in by St Kitts and other Commonwealth Caribbean states who hoped the island would be returned to St Kitts control.  However, one of the first acts of the British government after the invasion was to promise the Anguillians that they would not be subjected to an administration under which they did not want to live.[3]  This guarantee that Anguillians would be for evermore free of the threat of being returned to the hated administration of St Kitts was sufficient to make them accept the beginning of British administration of the island.  There was previously no British government presence in Anguilla from the time of settlement in 1650, a period of over 300 years.
[11]      Unfortunately for Anguillian aspirations to eventual return to self-government, most of the leaders of the Anguilla Revolution and their successors in office were men generally speaking of little formal education,[4] and not imbued with any of the principles of civics, ethics, or good government.  They were instead charismatic, self-centered, self-made men, single-minded in their determination to separate from St Kitts.  Our people, while universally pious and church-going, subscribe mainly to unsophisticated, fundamentalist, US Bible-belt Christian sects,[5] and are not intellectually equipped to avoid making such persons our leaders.  We remain essentially a frontier society, hostile to any form of authority or regulation.  Centuries of deprivation and long isolation have bred a strongly xenophobic culture.  A corrosive suspicion and distrust of outsiders, and of all values and concepts not promoted by the Old Testament, dominates the attitude of many of our service providers towards the main pillar of our economy, tourism.  This self-destructive attitude is cynically encouraged by the local political elite as a tool to attract popular allegiance and support for their personal agendas.
[12]      The business of government is conducted in Anguilla under a veil of secrecy inherited from an earlier British model.  If a law does not require the information to be published, then to disclose it is a breach of your oath of secrecy as a public servant.  Under this system, misgovernment flourishes.  The public works tendering process is neither constitutionally mandated nor otherwise protected from political interference or administrative bias, and is easily manipulated in secret.  In spite of a well-meaning but ineffective Public Procurement Act, public works contracts are seen to be awarded to political supporters and family members of the Ministers or, equally objectionably, to those whom the administration deems to be most suitable, based on arbitrary and secret criteria.[6]  The government chief surveyor approves private land surveyors altering boundary marks without ensuring that the neighbours are alerted to the pending survey so that they may observe the process and protect their interests by objecting if necessary.  Elected Ministers regularly overturn public administration decisions on work permit, land development and planning matters based on personal relationships and other irrational grounds.
[13]      At general elections, the corrupting influence of the constituency system comes into play.  Most elections are won by majorities of less than a few hundred votes.  The politician with the means to endow his district with suitable gifts is almost guaranteed to win.[7]  Family trumps merit.  If you are a politician running for office, it helps to have more relatives resident in your district than the other candidate.  After every general election, we watch as our new Ministers of government remove the previous unsuitable, political appointees to statutory boards and committees and replace them by their own.
[14]      The British Governors, supposed to lead us in matters of governance, very occasionally register their disapproval of our Ministers’ more obviously bad decisions, based as they so often are on cronyism and conflicts of interest.  But, they do nothing to insist on and to ensure the introduction of mechanisms that would improve our culture of misgovernment.  Recently, one Governor was seen to shield a Minister of Finance from criticism when a member of the opposition protested in writing at the Minister’s continued chairing of the board of directors of a local bank with which his government did banking business.  The Governor put it in writing that he saw no conflict of interest.  The Minister continued to hold and serve in both offices for many years.  A Minister of Lands, whose legal duty it was to investigate and recommend approval of applications by foreigners to purchase land in Anguilla, continued for many years, without disapproval from the Governor, to advertise his private real estate business on a large billboard on the main highway.[8]
[15]      The public of Anguilla are slowly becoming aware that this lack of transparency, integrity and accountability in our system is unacceptable.  We are beginning to acknowledge the need to rely on consistent, dependable and fair processes in government.  Voices are being raised demanding transparency in the award of public contracts and the granting of permits and licences.  But these voices are still very much in the minority.
[16]      Within fifty years of the British invasion, some of Anguillia’s leading politicians and opinion makers are now chafing at what is at best minimalist British rule.  So, Ministers protested the bringing of criminal charges by the police, who answer only to the Governor, against a Minister in relation to his alleged sexual exploitation of female applicants for permits and licences.[9]  Ministers were annoyed at the Governor raising objections to the Chief Minister signing a letter offering the Social Security Fund to an obviously suspect investment company as collateral for a highly unlikely promise to let us borrow a large sum of money at little or no interest.[10]  The Minister of Lands was outraged recently at the refusal of the Registrar of Lands, who answers only to the Governor, to obey his order to reverse a judgment of the Court of Appeal and to illegally alter the registered title to a parcel of land in favour of family members of the Minister.[11]
[17]      Anguilla is not unique in the West Indies regarding the lack of mechanisms to ensure good governance.  We share a similar unsatisfactory system with our independent neighbours who were once British colonies.  Charles Wilkin QC of St Kitts and Nevis, in a recent speech, described the three major ailments in the fragile democracy of that country as, one, the inadequacy of the Constitution; two, the overwhelming and senseless negativity caused by political tribalism; and, three, the weakness of civil society.[12]  The identical criticisms can be applied to Anguilla’s Constitution and its institutions.
[18]      Benito Wheatley of the British Virgin Islands commented, in relation to that British Overseas Territory, that the vain and egotistic men they elect to office take a headstrong approach to governance.[13]  Ministers feel no need for real consultation with the people on most matters, and take decisions of government contrary to the advice of the technical experts.  This comment is especially true of Anguilla.  The award of public works contracts, the granting of work permits to foreigners, and the overturning of planning decisions over the past 40 years have proceeded in Anguilla under this system.  The relevant statutes specifically provide for appeals from administrative decisions to be made to the Ministers, with devastating damage to public confidence in the system of government.  Our only remedy for political abuse up to this point has been to remove the last lot of miscreants and replace them by another lot every five years.  This is not a satisfactory solution.  The flaw lies not merely with the unsuitable individuals we elect but, more so, in the inadequacies of the Constitution under which they flourish.  The result has been a growing feeling of disenchantment with our system of governance.
[19]      The rhetoric of our more popularist radio commentators grows louder.  They point out that colonialism is a state of subjection based on racism and imperialism.  They typically argue,
The British provide us with nothing of value.  We pay our own way.  We raise our own public funds.  We receive little or no aid from Britain.  He who pays the piper should call the tune.  The United Nations has guaranteed us colonial people the right to rule ourselves.  We should seize that right.  Besides, if we were independent, we would no longer be limited to fruitlessly seeking financial and institutional assistance from the one administering power.  Instead, we would be free to receive help from all the major powers.  We could even make them compete among themselves to see which one can give us the most aid.
Without batting an eyelid in shame, they suggest to us that one of the main values of independence from Britain is the enlargement of our begging bowl.  Besides”, they say to us, “the British can’t be trusted to put the necessary safeguards in place.  Leave it to us”, they say.  We’ll take care of everything after independence.  You can depend on it.”
[20]      Even as these politicians exhort and importune us, we observe with an intense sense of outrage the political elite of some of our recently independent West Indian nations abusing the power entrusted to them by their people.  We have not forgotten how, after independence in 1962, the people of Jamaica fell victim to Michael Manley’s charismatic but cruel and confiscatory reign.  We recall how, after Trinidad and Tobago gained political independence also in 1962 under the rule of Dr Eric Williams, his administration became so corrupt and oppressive that there was an uprising that was put down only after CIA infiltration of the Black Power demonstrators.  Nearby Antigua and Barbuda were dominated for decades by the charisma and oratory of a corrupt local dynasty.[14]  We watched the rise and fall of Prime Minister Eric Gairy of Grenada, one of the most venal and lecherous of West Indian political leaders.  His larcenous career flourished with impunity under the same colonial and post-colonial constitutional and legal system that we are subject to in Anguilla at this time.  This is the system under which an ambitious political element in Anguilla proposes that we should venture into independence without delay.
[21]      The failure of the British Government, in neglecting to send our West Indian infant nations off into independence clothed with a constitutional framework adequate to provide our people with some certainty of freedom from local tyranny, is notorious.  As some of Anguilla’s power-hungry political elite grow increasingly weary of the restraints of colonial rule, their cry for full internal self-government, if not complete political independence, begins to grow.  They claim that it is time for Anguilla to be once again independent from outside rule.[15]  They condemn as British stooges those who point out the danger of going into independence without the necessary constitutional and legal safeguards to protect our lives and our property.  But, the risk is not lost on most of the ordinary people of Anguilla that, once we are granted our wish to be independent, we shall quickly descend into an even more brutal period of self-inflicted local tyranny.
[22]      The unwritten British Constitution works in the United Kingdom partly because it is supplemented by a system of conventions that have near legal force.  In our young and immature democracy of Anguilla, with a written Constitution but no respect for foreign conventions and not enough time to develop ones of our own, the system fails us.  The present Westminster-model Constitution we inherited from London consists of a skeletal provision for a bureaucratic administrative machine, absent any mechanism to ensure good government.  It is intrinsically inadequate to provide us with the necessary protection from the baser instincts of our politicians, one of the first requirements of a written Constitution.  There is, essentially, no free press in which these issues can be fully discussed since the one real newspaper depends on government advertising and must be circumspect in what it publishes.
[23]      Those of us who think about these things recognise that a paradigm-shift in government is needed for us to preserve our freedoms and to prosper one day in the future as a country once again independent of foreign administration.[16]  Thomas Astaphan QC of Anguilla, in a series of recent radio broadcasts, has proposed the radical route of entirely scrapping our present attachment to the Westminster-style Constitution.  He would have us go into independence under a Constitution that provides for the President of Anguilla and each member of Cabinet, as well as each member of the Legislature, to be individually elected to office and subject to recall by the voters when they fail to perform satisfactorily.  Others argue that the Westminster system can work in an independent Anguilla, but only if the several watchdog institutions and checks and balances that operate in such independent Commonwealth countries as Britain are first introduced and entrenched in our Constitution and made operative in law and accepted in practice.
[24]      Vague and theoretical exhortations from London about the need to ensure good governance are pointless.  Practical measures have to be put into place before the people of Anguilla are likely to trust our lives and property to the unrestrainable hands of the local politician, of whatever political party.  As a start, the Public Procurement Board regulating the purchase of public services and goods must be established and protected by the Constitution.  Appointments to statutory boards and government committees must be approved by a constitutionally protected appointments procedure.  Land development planning decisions should no longer be subject to appeal to the political directorate, but to a professional, independent body.  The draft Building Code, now over 20 years old, and which would ensure compliance with hurricane and earthquake standards, should be enacted and made to apply to everyone, not as at present just to foreigners.  Immigration and work permit decisions of the relevant administrative boards should no longer be capable of being overruled by politicians acting on the basis of unpublished and unknown policies.  There must be an effective Integrity in Public Office Act obliging those aspiring to political office to place their assets and liabilities on a public register for all to see, as is increasingly normal in developed democracies.  A Freedom of Information Act, and the accompanying procedures to make it effective, inconvenient as they are for the bureaucracy, are long overdue.[17]  Ministers should be subject to a Code of Ethics, and coached, on taking up office, on the proper conduct of the public affairs with which they are entrusted.[18]
[25]      These things seem so obviously a prerequisite for a small, developing Commonwealth country, such as Anguilla is, contemplating going into political independence from Great Britain that it must be astonishing to any discerning observer that they are even controversial.
A paper delivered 3 October 2015 at the island Dynamics Conference at the University of Greenland on ‘Indigenous Resources:  Decolonization and Development’
By Don Mitchell, CBE, QC;  Robert Conrich, ACIArb;  and Ilan Kelman, PhD



[1]       Some West Indian academics, in their rush to escape from our colonial history implicit in the use of the term “West Indies”, have begun to use the adjective “Caribbean” to describe our archipelago.  I prefer the former in preference to the latter ever since the latter was co-opted in the 1980s as a cover for the US State Department’s notoriously mis-named “Caribbean Basin Initiative”  (CBI) in which it funded murderous right-wing regimes in El Salvador and Nicaragua.  With the end of the Cold War in 1989 and the phasing out of the CBI, it is now appropriate that our region revert to its original designation as “The West Indies” to avoid any connection with this programme.
[2]       CO.152/21, No 79, folio 88: Mathew to the Committee for Trade and Foreign Plantations on 17 June 1734.
[3]       Known as the Caradon Declaration, having been made to the Anguillians by Lord Caradon, British Ambassador to the United Nations, on a visit to the island in a successful mission to defuse a crisis that was escalating between the islanders and the British administration in the months after the invasion.
[5]       The majority of us firmly reject the “theory” of evolution, and remain convinced the earth began on Sunday 23 October, 4004 BCE
[6]       Seen most recently when a request for bids by the Water Corporation for the construction and operation of a water desalination plant resulted in a bid by a competent and professional company being turned down by the public service dominated Procurement Board in favour of a less than satisfactory bid by a competitor.  As it is, the deal fell through and the contract went back out to bid.
[7]       The most commonly heard reason for not supporting a political candidate is, “He never gave me anything”
[14]     All as detailed by Robert Coram: Caribbean Time Bomb: The United States’ Complicity in the Corruption of Antigua (William Morrow) 1993

[17]     But much misunderstood. As recently as the year 2009  the then Chief Minister denied there was any need for such an Act on the misinformed ground that there was no press censorship in Anguilla
[18]     For a fuller catalogue of the required watchdog institutions that are essential, see: http://donmitchellcbeqc.blogspot.com/search/label/Civics