Wednesday, August 17, 2016

Constitutional Reform - Speaking Points

Commencement - The Commencement of the Constitution follows the style of the Virgin Islands Constitution.  The Constitution will now be the Order itself, no longer a “Schedule” to the Order.  One result will be that any transitional provisions will have to be included in the Constitution, preferably at the end.
Preamble – As recommended by paragraph 4 of the 2006 Report.  We never had one before.  The draft presents a choice of two versions.  The first is from Dr Niles.  The second is from Rev Gumbs.
Sect                                 Chapter 1: Fundamental Rights
This Chapter containing our Fundamental Rights is now made Chapter 1, as befitting the most important Chapter in the Constitution.
2.      The preamble to the fundamental rights - The wording is taken from Mrs Richardson’s draft, which is an improvement over our present 1982 Constitution.
3.      Protection of right to life - Taken from Mrs Richardson’s draft.
4.      Protection of right to personal liberty - Taken from Mrs Richardson’s draft.
(2)     Sets out the 11 reasons why someone can be deprived of his liberty.
(3)     Guarantees the right on arrest to be informed orally and in writing of the charge as recommended by paragraph 12 of the 2006 Report.
(4)     Guarantees the right on arrest to be informed of one’s rights.
(5)     Guarantees the right to legal representation.
(6)     Guarantees his right to be informed of his rights under (5) and to have one person informed of his arrest and his whereabouts.
(7)     Guarantees the police cannot hold an arrested person for more than 48 hours without bringing him before a court, as recommended by paragraph 13 of the 2006 Report.
(8)     Guarantees right to compensation to anyone wrongfully arrested.
5.      Protection of right of prisoners to humane treatment - Taken from Mrs Richardson’s draft.
(1)     Guarantees detainees’ right to be treated with humanity.
(2)     Right of unconvicted prisoners to be segregated from convicts.
(3)     Minor prisoners to be segregated from adults.
9.      Protection from deprivation of property
(1)(b) Requires compensation to be paid promptly and in money.
10.    Protection from arbitrary search or entry – Wording suggested by Mrs Richardson’s draft.
11.    Provision to secure protection of law – Taken from Mrs Richardson’s draft.
(4)               Makes Chamber hearings public by omitting them from the exception.
(6)(c) Obliges the government to provide a lawyer to any person charged with a criminal offence if he cannot afford one. 
Query whether Anguilla can afford to provide legal representation for every person who cannot afford a lawyer.  There will need to be a Legal Aid Fund and a system to assess the means of accused persons.  At present, Anguilla does not provide legal aid for accused children who cannot afford a lawyer, contrary to our international obligations under the Convention on the Rights of the Child.
(6)(f) Gives the right of an accused to be tried by a judge alone without a jury.
(7)(b) Permits a criminal trial to proceed if the accused deliberated absconds.
(12)   Provides compensation to a person wrongfully charged and convicted of a criminal offence who is subsequently found to have been a victim of a miscarriage of justice.
(13)   Appears to be a duplication of sub-section (2), and needs to be deleted.
15.    Protection from discrimination on the basis of race, etc – Adapted from Mrs Richardson’s draft.
(3)               Does not prevent discrimination on the basis of sexual orientation or preference.  While homosexuality is not illegal in Anguilla, discrimination against persons on the basis of their sexual orientation continues.
(4)               Permits discrimination in the provision of services in favour of Anguillians.
(7)(b) Permits discrimination in favour of women where such discrimination is justifiable for the protection or well-being of women.
15A.  Protection of the environment - Introduces a fundamental right to the protection of the environment.  Taken from the Cayman Islands Constitution.
15B.  Protection of children - Introduces a fundamental right to pass laws for the protection of children.  Taken from the VI Constitution.
17.    Protection of persons detained under emergency laws – Taken from Rev Dr Niles’ draft.
(3)     Provides for legal representation at the public cost. 
Query whether Anguilla can afford to establish a Legal Aid Fund to hire lawyers to represent persons detained in the case of a state of emergency.
19.    Declaration of emergency -
Version 1 - Mainly the present provision, save as indicated below.
(1)     Introduces an obligation on the Governor to act on the advice of Cabinet – as recommended by paragraph 28 of the 2006 Report.
(2)     The state of emergency automatically expires after 90 days, as under the present 1982 Constitution.
Version 2 - Taken from Mrs Richardson’s draft.
(1)               Repeats the obligation on the Governor to act on the advice of Cabinet – as recommended by paragraph 28 of the 2006 Report.
(3)(b) The state of emergency lapses after 21 days unless confirmed by the Legislature.
Chapter 2: Interpretation
20.    Interpretation - Defines most of the important terms used in the Constitution.  Questions have arisen on only two of them.
(1) “public service” – A question has arisen whether the expression “service of the Crown” needs clarification.
(7) “masculine gender includes the female gender” – Although it is not normally politically correct to use the pronoun “he” to include “she”, it has been found too cumbersome to use “he or she”, and “him and her”, and “his and hers” throughout the Constitution.
21.    References to public office – Taken from the VI Constitution – Provides improved clarity in comparison to our present provision.
22.    Appointments – Taken from the VI Constitution – Provides improved clarity in comparison to our present provision.
23.    Re-election or reappointment – Taken from the VI Constitution – Because it is a useful clarification.
24.    Removal from office - As 23
25.    Resignation - As 23
26.    Power to amend or revoke instruments - As 23
Chapter 3: The Governor -
27.    The Governor
(5)     Requires the FCO to consult the Premier and the Leader of the Opposition on the appointment of a new Governor.
As recommended by paragraph 30 of the 2006 Report.  The wording is taken from the VI Constitution
28.    Office of Deputy Governor
(1)     Requires this officer to be an Anguillian – As recommended by paragraph 31 of the 2006 Report.
(2)     Sets out the procedure for the Premier and the Leader of the Opposition to jointly propose 3 names to the Secretary of State who shall choose one of them.  If they don’t agree, all the applications are sent to the SoS for his decision.
30.    Functions of the Deputy Governor – Taken from the VI Constitution.
(2)     This is an unnecessary duplication of 28(3) and should be deleted.
(3)     Makes the DG the head of the public service – This is new and unique.
(4)     This is an unnecessary duplication of 28(4) and should be deleted.
(5)     This is an unnecessary duplication of 28(5) and should be deleted.
Chapter 4: The Executive
32.    Executive authority of Anguilla – The 1982 Constitution provides that executive authority shall be vested in Her Majesty who acts through the Governor.  The Governor merely consults with the Executive Council (section 28).  This is considered out of date, and needs modernising.
Version 1 – Taken from the Gibraltar Constitution.
(1) Provides that the executive authority of Anguilla should be the Government of Anguilla on behalf of Her Majesty.
Version 2 – Taken from Mrs Richardson’s draft.  It similarly provides that executive authority vests in Her Majesty and may be exercised on her behalf by the Government of Anguilla, which by definition includes the Governor.
33.    Cabinet and Government of Anguilla
Version 1 – Drafted to follow the recommendations of the 2006 Report.
Note that Executive Council is re-named Cabinet, as recommended by paragraph 35 of the 2006 Report.
The Chief Minister is re-named Premier, as recommended by paragraph 36 of the 2006 Report.
There is appointed a Deputy Premier to act for the Premier in his absence, as recommended by paragraph 48 of the 2006 Report.
The Governor is no longer a member of Cabinet, as recommended by paragraph 69 of the 2006 Report.
There is an increase in number of Ministers from 4 to 6, as recommended by paragraph 37 of the 2006 Report.
The DG and the A-G sit in Cabinet, but they are without a vote, as recommended by paragraph 38 of the 2006 Report.
The Cabinet and the Governor together constitute the Government of Anguilla.
The Governor attends Cabinet meetings in this version, but it is not clear what role, if any, he plays.
Version 2 – [Not yet added]  Mainly taken from Mrs Richardson’s draft – This drafting may be considered to be clearer than Version 1.
34.    Appointment of Ministers
(3)     Provides for the appointment of a Deputy Premier, as recommended by paragraph 48 of the 2006 Report.
35.    Tenure of office of ministers
(1)     On a vote of no confidence succeeding, the Governor has a discretion on whether or not to call for general elections.  This carries us back to the 1976 position and reverses the 1982 position, which was that the Governor was obliged to call a general election if a vote of no confidence succeeded.
(2)     Proposes a 3-term limit.  Many persons have recommended a 2-term limit for the Premier.  A few have suggested a 2-term limit for all elected representatives.
(3)(c) There is an automatic vacation of his seat if an elected member breaches the Code of Ethics for Persons in Public Life.
(4)     If the Premier resigns or for any reason vacates his office every other minister vacates office.  This allows the new Premier to appoint his or her own team.
36.    Performance of functions of Premier in certain events
(1)     If the Premier is to be absent for more than 48 hours, the Deputy Premier is to be authorised to act.
37.    Assignment of responsibilities and Ministers - The Governor must assign responsibilities to Ministers in accordance with the advice of the Premier.
38.    Attorney-General - Amended in accordance with paragraph 70 of the 2006 Report.  The wording is taken from the VI Constitution.
(1)     The A-G is appointed by the Governor after consultation with the Premier and the Leader of the Opposition.
39.    Director of Public Prosecutions - As recommended by paragraph 71 of the 2006 Report.  The wording is taken from the VI Constitution.
A question has arisen whether there is a need at this time for a separate office of DPP in Anguilla.  The risk of political interference in criminal prosecutions is greatest where the A-G is an elected Minister, which will not likely be the case in Anguilla for the foreseeable future.  Also, there might not be sufficient work for the foreseeable future to keep a DPP busy.  In some other Caribbean Countries, the section provides that when the Attorney-General is a public officer he may combine both functions of A-G and DPP, and this might be an appropriate subsection to insert here.
40.    Governor’s special responsibilities – Wording taken from the VI Constitution, save that paragraph (1)(d) – the public service – is transferred to the Deputy Governor at section 30(3).
(1)     The Governor is responsible for external affairs (subject to sub-section (4)); defence; internal security (subject to s.86); and administration of the courts.  The Governor must, as recommended by paragraph 53 of the 2006 Report, keep the Premier fully informed of the general conduct of such matters.  This is designed to strengthen the democratic process.
(3)     The Governor may delegate responsibility for external affairs or internal security to the Premier if approved by the Secretary of State.
(4)     The Governor must delegate to the Premier or another Minister recommended by the Premier responsibility for Caricom, the OECS, and other regional governments and institutions, including relationships with St Maarten/St Martin and the USVI in matters of mutual interest.
42.    Summoning of persons to Cabinet - It is the Premier who now summonses public officers to Cabinet meetings, as recommended by paragraph 66 of the 2006 Report.
43.    Summoning of Cabinet and transaction of business
(1)     Only the Premier can summon a meeting of Cabinet, as recommended by paragraph 67 of the 2006 Report.
(2)     A quorum for meetings of Cabinet is 4, as recommended by paragraph 68 of the 2006 Report.
44.    Presiding in Cabinet
(1)     The Premier presides at Cabinet meetings, as recommended by paragraph 69 of the 2006 Report.
(2)     This subsection should be amended to say that in the absence of the Premier, the Deputy Premier is to preside.
45.    Cabinet Secretary – The previous provision at section 33(3) of the 1982 Constitution for the appointment of a Secretary of the Executive Council was seldom put into effect.  It is thought that it is now time for the Cabinet to be supported by a superior administrative assistant recognised by the Constitution.
The proposed wording for the appointment of a Cabinet Secretary is taken with amendment from the VI Constitution:
(1)     There shall be a Cabinet Secretary who shall be an Anguillian.
(2)     Keeps the minutes of meetings and has such other functions as the Governor may direct after consultation with the Premier.
(4)     General responsibility under the Premier for the coordination of Government business.
Chapter 5 – House of Assembly
46.    Composition of the Legislature and power to make laws
Version 1 - Adapted from the Cayman Islands Constitution.
(1)     The Legislature consists of the House of Assembly and Her Majesty.
(2)     The Legislature makes laws for the peace, order and good government of Anguilla.
(3)     The HoA consists of the Speaker; not less than 13 elected members, as recommended by paragraph 74 of the 2006 Report; and the A-G and DG ex-officio and without vote, as recommended by paragraph 78 of the 2006 Report. 
Note that there are no Nominated Members, in accordance with paragraph 79 of the 2006 Report.
Version 2 – (Not yet added) Adapted from the Virgin Islands Constitution (which provides for division into at least 9 districts and with 4 members elected at large.)  This version more clearly establishes that there are to be at least 9 constituencies and 4 members elected at large.
47.    Qualifications for elected membership – Retains the present qualifications, save that citizenship is not mentioned as a qualification.
Must be an Anguillian, 21 years of age; and either (a) born in Anguilla and domiciled there at the date of his election and resided for 3 years prior to nomination; or (b) resided in Anguilla for not less than 3 years immediately before nomination; is domiciled in Anguilla; and is the child of an Anguillian.
48.    Disqualification for elected membership – Amended according to paragraphs 86-90 of the 2006 Report:  to remove the disqualifications for ministers of religion, and persons who have acquired a foreign naturalisation, and to introduce a disqualification for life for any person convicted of an offence of immorality or dishonesty.
49.    Declaration by candidates for election to House of Assembly – This will legalise the declaration introduced in the last general elections.  The wording is taken from the TCI Constitution.
(1)     Makes the written declaration of qualification essential for a valid nomination.
(2)     The Supervisor of Elections must publish the declaration by the close of the next working day.
(3)     Persons have 5 days to challenge a nomination before the High Court.  Note that the Supervisor has no role in deciding who is or who is not qualified.
50.    Tenure of office of members of the Assembly
(b)     Absence from 3 meetings of the House of Assembly requires prior notice to the Speaker, and not to the Governor, as this provision for notice to the Governor dates back to the period when the Governor chaired meetings of the Assembly.
Power of recall:  Since 2015, and resulting from the “Expenses Scandal” in the UK, there has been in the UK a power for voters to recall an MP.  There appears to be a strong feeling in Anguilla that there ought to be a power of recall by the voters if a member of the Assembly loses the confidence of his or her electorate.  One suggestion is that if a petition is sent to the Speaker signed by two-thirds of the number of registered voters that voted in the election, the Speaker should be required to declare the seat vacant and request the Governor to issue a writ of by-election for that district.  A district may be one of the nine into which the island is divided, or may be one of the proposed 4 at large seats.  Any recall process would have to be governed by an Act which sets out the procedure to be followed.  For the Constitution a simple enabling provision would be sufficient to allow such an Act to be passed in due course.  We propose introducing such a provision as a new paragraph (f).
51.    Vacation of seat on sentence – As recommended by paragraph 92 of the 2006 Report, conviction of an offence of dishonesty or immorality results in vacation of the seat and automatic disqualification for life.
53.    Leader of the Opposition – The present provision is amended to provide that if the Opposition do not agree on a leader, the Governor is to choose the longest serving member, in accordance with paragraph 94 of the 2006 Recommendations.
54.    Power to provide for a referendum – There is at present no power for Government to call for a referendum.  The wording is taken from section 69 of the Cayman Constitution.
55.    People-initiated referendum – Cabinet may not want to put a question to the vote of the people, but a significant percentage of the voters may want to have a say on the particular question.  This provision will enable the people to initiate a referendum circumstances.  The wording is taken from the Cayman Islands Constitution.
(2)     Calling for such a referendum requires a petition to Cabinet signed by not less than 25% of the electorate.
(3)     The result of the referendum is binding on the Government, once more than 50% of the electorate support the question.  Query whether this provision should not be “50% of those voting” on the question.
57.    Penalty for sitting or voting in Assembly when unqualified – Amended as recommended by paragraphs 97-100 of the 2006 Report to make it clear a person is only unqualified to sit or vote if a court has so determined.
58.    Qualification of voters – The main change is to remove any reference to citizenship, as recommended by paragraphs 102-103 of the 2006 Report.
(1)(a) Must be an Anguillian.
(b)     must be ordinarily resident for 3 years, as compared with the previous requirement for residence only, as recommended by paragraph 104 of the 2006 Report.  Ordinary residence is a stricter test of residence than mere residence.  A person may have more than one residence, but he or she can only be ordinarily resident in one place.
(2)     provides that a person who was qualified to be registered as a voter immediately before the new Constitution shall continue to be so registered.  This is taken from the VI Constitution. 
Note:  This provision has been questioned on the basis that it appears to make it impossible for persons who are fraudulently on the voters list, or who cease to be ordinarily resident in Anguilla, to ever be removed.  There is a strong feeling that the voters list ought to be cleaned up periodically. 
59.    Laws as to elections
(d)     merely provides for the division of Anguilla into electoral districts.
On the coming into force of this Constitution, the island will remain divided into 7 constituencies.  To create the proposed 9 districts and 4 at large seats, the procedure provided for in section 60 will have to be followed.
(i)      introduces the requirement for campaign funding legislation.
60.    Review and alteration of electoral district boundaries – These are the functions of the Commission appointed under section 82.  There are three possible versions, of which the third may be preferred.
Version 1 – Wording taken from the TCI Constitution
(1)     Requires the Electoral District Boundary Commission (EDBC) as soon as practicable to review the electoral district boundaries and to report to the Governor and the HoA.
(2)     The EDBC must seek as far as practicable to ensure each district has approximately the same number of voters.
(3)     The Premier then introduces a Bill to give effect to the Commission’s Report.  The Bill may provide for the new Districts to come into effect at the next general elections.
(4)     If the Bill attempts to modify the recommendations, there must be submitted at the same time a statement of the reasons for the modifications.
Version 2 – Wording taken from the Montserrat Constitution (where the whole island is one district)
(1)     The EDBC reviews the boundaries and submits a Report on a request from the Governor or the HoA.
(2)     The EDBC must seek as far as practicable to ensure each district contains approximately equal numbers of voters.
(3)     As soon as practicable after the Report has been submitted, a Bill is introduced giving effect to the Report.  The Bill comes into effect at the next general elections.
(4)     If the Bill is different from the Report, there must be a statement of reasons submitted with the Bill.
Version 3 – Wording taken from the VI Constitution (where there are also 9 districts and 4 members elected at large).
(3)     provides for 4 members to be elected at large and 9 from districts.
Note that if the new Constitution comes into effect before the next general elections, the proposed enlarged House of Assembly will take effect from the time of the next general elections.  There may need to be a transitional provision to retain the present House until that time.
Chapter 6 – Powers and Procedures in the House of Assembly
This Chapter in the 1982 Constitution commenced with section 47 which provided that the power to make laws for Anguilla vested in the Governor acting “with the advice and consent” of the Assembly.  This provision is no longer repeated as it is considered archaic and inappropriate in this day.  It is replaced by a new section 46, which provides that the Legislature for Anguilla consists of Her Majesty and a House of Assembly.
61.    Rules of procedure – There are alternative drafts provided.  Note that these require the Rules of Procedure or Standing Orders to be approved by the Speaker, and no longer by the Governor, which is no longer appropriate as the Governor no longer chairs meetings of the Assembly as previously pertained under the 1976 Constitution when the old Rules were adopted.
Version 1 – The present provision for Rules of Procedure with a minor amendment taken from the TCI Constitution to provide for the establishment of Standing Committees and other Committees.
Version 2 – Taken from the TCI Constitution to provide for Standing Orders instead of Rules of Procedure.
Version 3 – Taken from the Cayman Islands Constitution to provide for Standing Orders, and also to provide for Standing and other Committees, and conferring certain powers on such Committees.  This may well be the preferred version of this section.  If this version is preferred, care will have to be taken to ensure that the provisions for Standing Committees which are duplicated in section 70 are removed.
62.    Presiding in Assembly – Continues to provide for the Assembly to elect the Speaker from outside the Assembly but the Deputy Speaker to be a member of the Assembly.  Some persons have suggested the Speaker should be popularly elected, but this is not considered feasible.
64.    Quorum – provides for a quorum to be 7 members (a bare majority).  If the new Constitution comes into effect prior to the dissolution of the House, there will need to be a transitional provision.  If it is thought feasible that the number may one day in the future be increased above 13 elected members, then the number 7 should be replaced by the phrase, “a simple majority”.
66.    Summoning of persons to assist the Assembly – This provision is in accordance with the recommendation at paragraph 125 of the 2006 Report. 
The question has been asked, what is to happen if the person fails to attend.  There is no obligation for the person to attend, and no penalty in the event of failure to attend.  The provision is designed to enable the Assembly to seek the voluntary assistance of members of the community in its work.
67.    Introduction of Bills – This used to provide that Money Bills could only be introduced on the recommendation of the Governor.  Paragraph 128 of the 2006 Report recommended that the Governor be replaced by the Government bench.  Instead, the new provision requires the recommendation of the Minister of Finance.
68.    Assent to Bills – This section gives the Governor the power to reserve any Bill that in his opinion is inconsistent with UK obligations; or prejudices the Royal Prerogative; or is inconsistent with the Constitution for authorisation by a Secretary of State.  This preserves the previous position.
69.    Return of bills by Governor – The previous position (section 58) was unclear what was to happen if the Governor returned a Bill to the House and the House did not accept the Governor’s recommendation.  The new position is clear in three subsections. 
(1)     The Governor may return a Bill to the House with a recommendation for amendment for the Assembly to consider.
(2)     If the Assembly changes the recommendation, the Governor may return it with further recommendation.
(3)     If the Assembly rejects the amendment the Governor must assent to the Bill.
Power of Disallowance:  The previous Constitution (section 59) provided that even where the Governor had given his Assent to a Bill, the Secretary of State could disallow it.  The 2006 Report at paragraph 133 recommended that this old colonial provision was no longer appropriate, and should be removed.  This draft accordingly has no provision for Disallowance by the Secretary of State.
70.    Standing Committees – Adapted from the TCI Constitution.
(1)     The House shall establish at least the Public Accounts Committee (PAC) and another Committee.
(2)     Each Standing Committee consists of members who are not Ministers.
(3)     The composition of each Committee shall reflect the representation of the political parties in the House.
(4)     Each Standing Committee has power to summon any Minister or public officer to answer questions and provide information, and to report to the House.
Note that this wording does not appear to require the evidence to be given on oath, ie, subject to the law of perjury, as recommended by paragraph 126 of the 206 Report.
(5)     Each Standing Committee must be chaired by a member of the Opposition, with the PAC to be chaired by the Leader of the Opposition.
(6)     The House shall publish the Reports submitted to it.
Chapter 7 – The Judicature
76.    Eastern Caribbean Supreme Court - This Chapter and its two sections are taken from the VI Constitution as the wording is an improvement on the previous Chapter. 
Additionally, it is proposed there should be no “Miscellaneous” Chapter at the end of the Constitution, and the provision found there for the Privy Council should be added to this Chapter.
Chapter 8 – The Public Service
Note that the Public Service is strictly a part of the Executive branch of Government and does not logically belong at this place in the Constitution.  We recommend renumbering it as Chapter 5 and relocating it after Chapter 4.
78.    Power to appoint, etc, to public office – The wording is taken from the VI Constitution, amended to reflect the division of responsibilities for appointment to the public service, the police service, and the teaching service, between the Governor and the Deputy Governor as recommended by paragraphs 147-152 of the 2006 Report.
(1)     (a) The Governor appoints the DG and the Chief Auditor after consulting the Premier and the Leader of the Opposition.  This is intended to formalise what is the present practice, and to remove the democracy deficit in the present provision where no consultation is required.
(b) the DG appoints teachers in accordance with the advice of the Teaching Service Commission; police officers in accordance with the advice of the Police Service Commission; and all other offices in accordance with the advice of the PSC (or any combined PSC in accordance with section 98(1)(g)).  Note that if the DG is satisfied that the advice would prejudice HM Service (ie, the advice is deemed by him to be perverse) then he may ignore the advice, but he must give a reasoned statement in explanation.
(2)     If the DG is minded to act against the advice, he may refer the matter back to the service commission along with a reasoned statement for reconsideration by it.
(3)     If the PSC substitutes different advice, the process is repeated.
(4)     The DG must consult the Premier on the appointment of any department head or more senior officer.
(5)     The Governor appoints the Cabinet Secretary on the advice of the Premier, but the Governor may ignore the advice if he is satisfied that advice would prejudice HM’s service (is perverse).
(6)     Where the Governor is minded to refuse the Premier’s advice on the appointment of a Cabinet Secretary, he should refer the appointment back to the Premier for advice from the PSC.
(7)     The Premier recommends appointment of the Cabinet Secretary from a list of qualified and competent persons submitted by the PSC, provided the Premier can once request an additional list from the PSC.
(8)     The DG may delegate his powers of appointment.
(9)     The Premier may request a report about the functioning of the public service from each of the service commissions.  This is an advanced provision which introduces a sense of responsibility for the good functioning of the public service into the top ranks of the political directorate.
(10)   This section does not apply to appointment to judicial offices.
(11)   In the event one service commission performs the functions of the three commissions, the provisions apply equally.
79.    Pensions: Applicability of pensions law – The existing section has been amended to reflect modern changes in the pensions provisions for the public service.
Chapter 9 – Institutions Protecting Good Governance
This Chapter envisages 12 different Commissions and 6 different Commissioners.  However, their functions can be amalgamated into one or more bodies, and it is not essential that they all be separately appointed.
82.    Electoral District Boundary Commission – This is completely new for Anguilla, and is taken from the TCI Constitution.
(1)     Appointed every 4 years.
(2)     The Chairman is appointed by the Governor and one member on the advice of the Premier and the Leader of the Opposition.
(3)     A public officer is disqualified.
(4)     A quorum for meetings shall be 2.
(5)     A member must vacate office the day after submitting a report; or if he becomes disqualified.
83.    Review and alteration of electoral district boundaries – This is completely new for Anguilla, and is taken from the TCI Constitution.
(1)     Imposes a duty to review boundaries and to submit a Report to the Governor and the Assembly containing recommendations.
(2)     The Commission must seek to make the districts approximately equal in numbers of voters based on the last previous census report.
(3)     Once the Report is delivered, a Bill is introduced into the House to give effect to the Report.
(4)     If the Bill seeks to modify the Commission’s recommendations, there must be a statement of the reasons submitted at the same time.
84.    Public Service Commission – The functions of the PSC are varied in accordance with the recommendations at paragraphs 141-146 of the 2006 Report.  It is based on the VI Constitution adapted to reflect that the DG is the head of the public service.
(1)     The PSC consists of 5 persons of whom 3 are appointed on the DG’s discretion and 2 on the advice of the public service staff associations.
(2)     A quorum is 4.
(3)     The PSC advises the DG on all appointments, disciplining and remuneration of public servants.
85.    Teaching Service Commission – This is completely new.  It is taken from the VI Constitution.  While this was not a specific recommendation of the 2006 Report, it seems a logical provisions in accordance with other BOT Constitutions.
86.    Police Service Commission – This is completely new.  It is taken from the VI Constitution. This provision is in accordance with the recommendation at paragraph 63 of the 2006 Report.
87.    Power to Appoint, etc, to offices in the Police Service
(1)     Up to the rank of Inspector made by the DG acting on the advice of the Police Service Commission.  The DG may go against that advice if it would prejudice HM’s service (ie, is perverse).
(2)     Appointments above the rank of Inspector are made by the Governor acting on the advice of the Police Service Commission. after approval by the National Security Commission, but the Governor may act against that advice if he is satisfied it would prejudice HM’s service.
(3)     Before rejecting the advice of the Police Service Commission the Deputy Governor and Governor may once refer the matter back.
(4)     If the PSC on reconsideration makes another recommendation, the process starts again.
(5)     The DG may delegate his powers.
88.    National Security Commission – This is completely new for Anguilla.  It follows the recommendation in paragraph 179 of the 2006 Report.
(1)     The NSC consists of the Governor, the DG, the Premier, one other Minister, the A-G, and the COP.
(3)     The NSC advises the Governor on matters relating to internal security.  The Governor is normally obliged to act on such advice, unless he considers it not in HM’s interest (ie, perverse).
(4)     The COP is to provide regular briefings to the Commission.
(5)     The NSC may invite any person or summon any public officer.
(6)     The Premier has a say in when to summon the NSC.
(7)     The NSC regulates its own procedure.
(8)     The Cabinet Secretary is secretary to the NSC.
(9)     The quorum is 4 members.
89.    Financial Services Commission – This body presently exists in Anguilla, but this provision gives it constitutional protection and security of tenure.
89A   Appointments Commission – This is new for Anguilla.  While it is not the result of a specific recommendation in the 2006 Report, it is now recommended as a result of the many complaints in the public arena about allegedly unsuitable political appointments that have been made by Ministers to various Boards and Committees over previous years without any supervision or accountability.
(1)     Consists of 3 members, one appointed by each of the Governor, the Premier and the Leader of the Opposition.
(2)     A quorum shall be 2.
(3)     No person may be appointed to any government-controlled board, committee or commission not subject to its own separate legislation without approval of this Commission.
(4)     The Commission shall act in accordance with any Act that may be passed to govern it.
90.    Judicial and Legal Services Commission – This local JLSC already exists, but the present provision is supplemented by additional guidance from the VI Constitution.
91.    Power to appoint, etc, to legal offices – This section already exists, but the wording is taken from the VI Constitution.
(9)     Because the offices of Magistrate, DPP or Magistrate are all “officers of the court”, any appointment under this provision will not be capable of being bound by short-term contracts.  Such contracts were deemed unconstitutional in the Malcolm Holdip case out of Grenada. 
If it is thought essential or even desirable to continue to provide for short-term appointments for locally appointed legal officers such as Magistrates, DPPs, and A-Gs, it will be necessary to make provision in the Constitution.  A suitable wording, following section 111(1) of the Constitution of Grenada would be, “The Attorney-General, Director of Public Prosecutions, Chief Magistrate or any other Magistrate shall hold office during good behaviour and for such period as may be specified in the instrument by which he is appointed.”
92.    Integrity Commission – The circulated draft should be be revised to provide that the Commission consists of 3, a Chairman qualified to be a judge (10 years) and one member appointed on the recommendation of the Premier and the other on the recommendation of the Leader of the Opposition, to ensure it is considered evenly balanced politically.  A quorum would then be 2 out of the 3.  This Commission should not depend on the passage of any law for its ability to function, but should function only subject to the Constitution.
(1) It consists of a Chairman, who must be a barrister of at least 10 years’ experience, and 2 other members appointed one on the recommendation of the Premier and the other on the recommendation of the Leader of the Opposition.
(2) It promotes integrity, honesty and good faith in public life.
(3) It exercises the functions conferred by sections 35, 48, 93, and 121.  It will publish a Code of Conduct for Persons in Public Life and investigate any alleged failure to abide by the Code.  It will have such other functions as a law may confer.
(4) A quorum is 2 out of the 3.
(5) The Commission makes an annual Report to the House which is to be published.
93.    Registration of interests – This is not new, but the old provision in section 60A has been tightened up as recommended by paragraph 135 of the 2006 Report.  The wording is adapted from the VI Constitution.
(1) The Register shall be a public document;
(2) There is a duty to declare such interests, assets, income and liabilities of any person to whom the section applies or any person connected to him as may be prescribed by a law.
(3) The declaration is to be made on assuming office and every 12 months thereafter.
(4) The section applies to all members of the House of Assembly and the holders of all other offices as may be prescribed by a law.
(5) The law may set out the sanctions for failure to comply.
Note: Some persons have expressed the view that a Member of the Assembly who has been reported by the Integrity Commission to be in breach of his obligation to declare his assets, etc, as required by the Constitution should automatically lose his seat under section 50.
94.    Anguillian Status Commission – Based on the recommendations at paragraphs 167-178 of the 2006 Report.  The wording is taken from Rev Dr Niles’ draft. 
The principle change is to give the grandchildren of Anguillians full rights and to give the great-grandchildren of Anguillians full rights if they satisfy certain residence conditions.  Another change is to increase the period of time a non-Anguillian must reside on Anguilla before being entitled to apply for status from 15 years to 20 years.  A third is to get rid of “Belonger” and to replace it with “Anguillian”.  Query whether there ought to be a provision for the loss of status in some circumstances, eg, the commission of a serious crime.
(1) Establishes the Commission.
(2) Defines an Anguillian as a person who is or was
(a) born or adopted with an Anguillian parent or grandparent; [Note the proposed extension to grandchildren];
(b) a great-grandchild of an Anguillian who has resided in Anguilla for 5 years; [Note the proposed extension to great-grandchildren];
(c) resident on Anguilla for 20 years; [Note the increased residence from 15 years to 20 years];
(d) the spouse of an Anguillian married for a period of not less than 7 years; [Note the increase from 3 or 5 years to 7 years, which is designed to make more difficult the present undesirable practice of Anguillians marrying for reward in order to confer status];
(e) the minor child of a person qualifying by residence under (c) above who has been residing in Anguilla for at least 3 years; [Note this is new];
(f) born in Anguilla and living here for 12 years; [Note, this is new]; and
(g) previously granted Belonger Status.
Concerns have been raised by a number of persons during discussions since the publication of the 2006 Report as to whether it is fair to extend Anguillian Status to grandchildren who have no real connection with Anguilla save for their genealogy, while at the same time making it more difficult for persons who have shown a real commitment to Anguilla by contributing to the economy and society. 
95.    Advisory Commission on the Prerogative of Mercy – Based on the recommendation at paragraph 163 of the 2006 Report.  The wording is taken from the VI Constitution.
(1) Establishes a Mercy Commission consisting of the A-G, the Director of Health Services and 4 members appointed on the advice of the Cabinet.
(2) A quorum is 3 members including the A-G.
96.    Commissions of Inquiry – There is legislation for Commissions of Inquiry, but it is thought appropriate to entrench their independence from political and other pressures by including them in the Constitution.
97.    General provisions regarding Commissions – This is a consolidation of various provisions governing individual Commissions to avoid duplication and repetition.
(1) These general provisions are subject to any specific provisions in the Constitution.
(2) A Commission is not to be subject to the direction or control of any other person or authority.
(3) A Commission has power to confer powers or impose duties on any public officer for the purpose of discharging its functions.
(4) A vacancy in a Commission does not invalidate its decisions.
(5) The Chairman is appointed by the Governor.
(6) Political candidates are to be excluded.
(7) Various ways in which the office of a member becomes vacant, including resignation or the passage of 5 years.
(8) When a vacancy occurs the Governor may appoint a temporary member.
(9) No business may be conducted if there is no quorum.
(10) Decisions are by majority vote.
(11) If there is a law providing payment of emoluments these may not be reduced during the continuance of office.
(12) A Commission regulates its own procedure.
(13) Each Commission must report annually to the House of Assembly.
(14) The Report must be published within one month.
98.    Legislation regarding Commissions – This provision is adapted from the VI Constitution and is designed to avoid duplication in the drafting for each Commission.  The more important provisions that may be included in such a law are:
(1)(h) if a law is passed amalgamating two or more Commissions, the amalgamated Commission will have the full powers of each of the constituent Commissions.  If the service Commissions are amalgamated, it shall be known as the Service Commission.  If other Commissions are amalgamated, it shall be known as the Administrative Law Commission.
      (j) there may be provision for the establishment of a Secretariat.
(2) lists the various Commissions by name.
99.    Human Rights Commissioner – As recommended by paragraph 182 of the 2006 Report. 
Version 1 - The wording is taken from the Cayman Islands Constitution.
(1) He Investigates, resolves and prosecutes claims of infringement of any person’s rights under this Constitution.  By this provision, the government provides citizens with an attorney who can bring a constitutional motion without the need to seek private representation, though this is not prevented.
Version 2 - The wording is taken from Mrs Richardson’s draft.
(1a) Establishes the Commissioner.
(2) His powers and duties are to be set out in a law, and include various matters such as promoting conciliation with respect to disputes; issuing guidance for dealing with complaints; and preparing reports to the House of Assembly.
100.  Complaints Commissioner – This is the Ombudsman as recommended by paragraph 181 of the 2006 Report.  It will be a great saving to members of the public if they are no longer obliged to take a complaint against the administration to court for relief.
101. Police Complaints Commissioner – As recommended by paragraph 62 of the 2006 Report.  It is thought inappropriate to continue to have the COP as the only person, other than the court, to whom a complaint of bad behaviour on the part of a police officer can be taken.
102.  Public Procurement Commissioner – This is an officer whose duty it is to ensure the public procurement process works as intended, without the need to take complaints to court.
103.  Freedom of Information
Version 1 – Wording taken from the Cayman Islands Constitution, and thought to be inadequate.
Version 2 – A more detailed draft, drafted to guarantee the independence of the Commissioner, but still considered inadequate.
Version 3 – Drafted to ensure that all reports from institutions guaranteeing good governance are published contemporaneously with their delivery, and for the Commissioner to enforce such publication.  This is the preferred wording.
104.  General provisions relating to Commissioners – Adapted and consolidated from various provisions relating to individual Commissioners in the Constitutions of other BOTs. 
The question has arisen whether there should be a minimum qualification, whether academic, professional or by experience, required for a Commissioner.
(1) Makes it clear these provisions only apply in the absence of a specific provision relating to a particular Commissioner.
(2) Appointment is for a minimum period of 5 years to guarantee political independence.  Appointment is by the Governor after consultation with the premier and the Leader of the Opposition.
(3) Political persons may not be appointed.
(4) Provides the various ways the office becomes vacated, eg, by resignation.
(5) May not be employed in the public service or engage in any occupation for reward, save where authorised by the Governor in writing.
(6) A Commissioner is not to be subject to the direction or control of any person.
(7) A law may provide for payment of a salary, which may not be reduced while he is in office.
(8) Various Commissioners may be amalgamated in one office to be known as the Constitutional Commissioner.
(9) A law may make provision for various matters affecting the work of a Commissioner.
(10) An annual Report to the House of Assembly is required.
(11) The Speaker is obliged to publish the Report.
(12) Lists the various Commissioners.
105. Crown Land – As recommended by paragraph 162 of the 2006 Report, any dealing in government lands in excess of one acre requires approval by the Assembly.
106.  Governor’s power of pardon – As recommended by paragraph 163 of the 2006 Report.  The Governor must exercise his powers of pardon in accordance with section 95.
Chapter 10 – Public Finance
This Chapter is taken from the “revised alternate draft of 9 June 2015” of the Anguilla Public Finance Order 2015 (the draft 2015 Order) without alteration save as indicated.
107.  General principles – This is section 3 of the draft 2015 Order, amended to take account of the Terms of Reference (ToR) agreed between the Government of Anguilla (GOA) and the FCO.  It provides that
(1) Macro-economic and fiscal policies are to be formulated for the sustained long term prosperity of the people of Anguilla.
(2) Public funds to be managed on principles of value for money, etc.
(3) Need to formulate a Fiscal Framework setting limits to public debt relative to public revenue; limiting debt service costs; and setting levels of reserves.
(4) The Fiscal Framework is to be agreed with the FCO and published in the Gazette.
(5) On the day the Fiscal Framework is published, the Fiscal Framework Act 2013 shall be repealed.
(6) Every 6 months the Minister of Finance (MoF) must report to the House of Assembly (HoA) on the performance of GoA in implementing the Fiscal Framework; and, on the state of the public finances and the economy of Anguilla.
(7) GoA shall aim to achieve a surpus budget, and where an Appropriation Bill will not return a surplus budget, the Minister must lay before the HoA a statement explaining the reasons.
(8) Where GoA is in breach of the Fiscal Framework any Appropriation Bill must be approved by the Secretary of State (SoS); and GoA must agree with the SoS a Medium Term Fiscal Plan with milestones for meeting key debt ratios, etc.
108.  Taxation - This is section 4 of the draft 2015 Order.
(1) No tax, rate or levy to be imposed save under the authority of an Act.
(2) Where the Act authorises a person to vary a tax, that person must report to the HoA every 6 months.
109.  Contingent liabilities – Section 5 of the draft 2015 Order.
All contingent liabilities of the GoA to be subject to independent actuarial assessment every 2 years, and a report made to the HoA within 2 months.
110.  Consolidated Fund – Section 6 of the draft 2015 Order.
(1) All revenue to be paid into it.
(2) Only exception is where an Act permits it.
(3) All funds must be either at a bank on call, or subject to 12 months notice, or in an investment authorised by law and approved by the HoA.
111.  Withdrawal from Consolidated Fund or other public funds – Section 7 of the draft 2015 Order.
(1) Funds may only be withdrawn to meet expenditure charged on the Consolidated Fund by a law or where authorised by an Appropriation Act.
(2) No public money may be withdrawn from any fund save as authorised by law.
(3) If an Appropriation Act will not come into force by the beginning of the financial year, the MoF may, if authorised by a resolution of the HoA, authorise withdrawals for 4 months.
(4) Sums withdrawn under (3) shall not exceed one third of that approved for the previous year.
112.  Financial year estimates – Section 8 of the draft 2015 Order.
At least 6 weeks before the new financial year the MoF is to present to the HoA the estimates of revenue and expenditure; a document setting out targets for revenue and expenditure; and an assessment of performance against debt sustainability limits as set out in the Fiscal Framework.
These estimates and document are to be published without delay.
113.  Appropriation Bill – Section 9 of the draft 2015 Order, amended to take account of the ToR agreed between the GoA and the FCO.
(1) There shall be an Appropriation Bill every year.
(2) If the funds are insufficient, there shall be a supplementary estimate laid by the MoF before the HoA.
(3) The supplementary estimate shall be included in a Supplementary Appropriation Bill introduced into the HoA.
(4) The Governor may refuse to assent to an Apropriation Bill if it is inconsistent with section 107 or the Fiscal Framework.
114.  Power of Government to borrow or lend – Section 10 of the draft 2015 Order.
(1) Government may borrow from any source.
(2) Borrowing must be authorised by an Act and be in accordance with the Fiscal Framework and other agreed borrowing guidelines.
(3) Any such Act to be laid before the HoA and approved by resolution; and the proceeds of the loan must be paid into the consolidated fund or other fund specially created for the purpose of the loan.
(4) MoF to report to the House every 6 months as to the total indebtedness, the servicing of the loan; and the utilization and performance of the loan.
(5) Where UK guarantees any loan GoA shall repay the loan as quickly as possible.
(6) Any UK guarantee shall be the subject of a counter-guarantee.
(7) HoA may authorise GoA to give a loan or grant.
(8) Any agreement for GoA to give a loan shall have no effect unless approved by HoA by resolution.
(9) Any such resolution shall be compatible with section 107 and the Fiscal Framework.
(10) . . .
115.  Further powers of Governor – Section 11 of the draft 2015 Order. 
This section is omitted to give effect to the ToR agreed between the GoA and the FCO.
116.  Exercise of functions by Governor – Section 12 of the draft 2015 Order.
In the exercise of any function conferred by sections 107 to 114, the Governor is to comply with instructions given by the SoS.
117.  Appropriations Committee – Taken from section 114 of the TCI Constitution.
(1) Establishes the Appropriations Committee to be appointed by the Speaker from among the members who are not ministers, at least one of whom shall be from the Opposition.
(2) Has a power to co-opt.
(3) Has power to compel production of documents and evidence from Ministers and public officers, and shall meet in public.
(4) Shall exercise functions conferred by law or by Standing Orders.
(5) Its Reports are to be published.
118.  Funding of Institutions of good governance – It is well known that unless the provision of resources for these institutions is removed from the control of the MoF and placed in the hands of the Assembly, a Commission that has fallen out of favour for doing its work can be neutralised by arbitrarily starving it of funds. 
The present draft needs strengthening by providing that the Government must provide an institution with such staff (who may be existing public servants, whose services may only be temporarily or intermittently required) and such administrative support as it may need to carry out its functions.  The Appropriations Committee and the Assembly provide a check and balance on the funding of these institutions by having the power and duty to reject or to approve their budgets, if any.
(1) By August 31 of each year, every institution is to submit its budget for approval by the Appropriations Committee and by the HoA.
(2) The HoA may pass or reject such a budget but may not amend it.
(3) If it is passed, it forms part of the Appropriation Act for that year.
(4) If it is rejected the Appropriations Committee reconsiders it, discusses it with the institution, and recommends a revised budget to the HoA.
119.  Public Accounts Committee – As recommended by paragraph 126 of the 2006 Report the PAC will have power to summon witnesses to testify on oath in public hearings.  Wording taken from the TCI Constitution. 
(1) The PAC consists of at least 3 members appointed by the Speaker from among members who are not Ministers and 2 members who are expert in public finance, one appointed by the Speaker and one by the Governor.
(2) Chairman of PAC to be the Leader of the Opposition.
(3) Membership as an expert in public finance is vacated on the expiration of the period for which he was appointed; if he becomes a member of the HoA, or if his appointment is revoked.
(4) Where there is a conflict of interest the Governor after consultation may appoint another person temporarily.
(5) The PAC examines and reports on the Chief Auditor’s Report and such other functions as may be prescribed.
(6) The PAC may compel production of documents and evidence from Ministers and public officers and shall meet in public.
(7) The PAC reports to the HoA.
(8) If the House adopts a Report of the PAC and requests a member of Cabinet to advise on action taken in respect of the Report, the member concerned must respond within 6 weeks.
(9) The Chief Auditor acts as adviser to the PAC.
(10) The PAC may invite persons to assist it.
120.  Accounting officers – Taken from the TCI Constitution, amended to take into account the ToR agreed between GoA and the FCO.
(1) Establishes the Accountant General.
(2) The Accountant General compiles and manages the accounts of GoA, and is responsible for the custody and safety of public money.
(3) The most senior officer in each department or institution protecting good governance is designated an accounting officer.
121.  Remuneration of Speaker and other members of the House of Assembly – At present, the Speaker and members of the Assembly increase their remuneration in an irresponsible and irregular way.  In the interests of transparency, questions of remuneration ought to be governed by a law.  This wording is taken from the TCI Constitution.
(1) The Speaker’s and other members’ remuneration is to be prescribed by an Act.
(2) Any Act for remunerating members of the HoA must be recommended by the Integrity Commission and published.
(3) The remuneration is a charge on the Consolidated Fund.
122.  Audit – The principal change is to require the Chief Auditor’s Report to be published to members of the public to have access to its contents.
Version 1 – Taken from the TCI Constitution
(1) The Chief Auditor is to audit and report on the public accounts, including those of the HoA, the institutions protecting good governance, public corporations, and other public bodies and organisations organised under any Act.
(2) Accounts are to be provided to the Chief Auditor within 4 months of the end of each financial year.
(3) Right of Chief Auditor to all documents thought necessary to conduct an audit.
(4) The Chief Auditor has 4 months to submit his Report to the PAC and to the Governor, who shall publish it as soon as practicable.
Version 2 – Taken from the VI Constitution
(1) Establishes the Chief Auditor.
(2) Audits the accounts of the Assembly, all government departments and offices including institutions of good governance.
(3) Submits his Reports to the Governor and to the Speaker who lays them before the HoA.
(4) The Chief Auditor is independent of every other person.
(5) The Speaker shall publish any Report laid before the HoA within one month.
Chapter 11 - Miscellaneous
This Chapter consists of two sections.  The first should be placed in Chapter 7, The Judicature, and the second in Chapter 4, The Executive.
123.  Appeals to Her Majesty in Council – Adapted from Mrs Richardson’s draft.
123.  Public Seal – Wording taken unchanged from the present Constitution.
There will be a new Elections Act and Regulations.  The important new features we have been discussing include the following proposals:
1   Voters must be ordinarily resident in Anguilla.  If a registered Anguillian emigrates to another country, he or she should lose the registration when the next enumeration of voters comes around.
2.  Cleaning up the Voters’ List by conducting an enumeration prior to the next elections and every 10 years thereafter after the Census Report has been published.
3.  The Act will include provisions for a power of recall of an elected member.
4.  Campaign Funding legislation must be drafted to provide rules for politicians to publish their campaign accounts with strict penalties including automatic vacating of their seat in the House of Assembly if they should be adversely reported on by the Integrity Commission.
5.  An Electoral District Boundaries Commission will be governed by its own Act.  Its role will be to recommend to the House of Assembly increasing the present 7 districts into 9 new ones of approximately equal voters, and 4 at-large seats to be elected by the entire island.
6.  Drafting of a Referendum Act providing for Government to call for a referendum on matters of national importance, and a People-initiated referendum if 25% of the voters call for one and Government refuses to arrange for a vote.

Don Mitchell
21 August 2016