Wednesday, February 27, 2019

Anguilla Business Licences


The snickering from the lawyers’ benches in the Anguilla House of Assembly on the afternoon of Wednesday 20 February 2019 was audible the length and breadth of the island.  The Assembly was debating and passing into law the Business Licence Moratorium Act 2019.  The Hon Pam Webster, the sole member of the Opposition in the House of Assembly, was absent.  She was in the British Virgin Islands serving as the Head of the Election Observer Mission for the 25 February general elections.  She was not able to make her contribution.  So, the Bill passed without real discussion or dissent.
A little background may be useful.  The Trades, Businesses, Occupations and Professions Licensing Act is the principal Act to which the moratorium applies.  Section 7 creates an obligation for persons carrying on any trade, business, occupation or profession in Anguilla to pay a fee to government and obtain an annual Licence.  Every rum shop, lawyers’ chambers, engineering firm, or grocery should annually pay a Licence fee into the Treasury.
This Act is not unique to Anguilla.  It is found around the Leeward Islands.  It was introduced in about the 1970s to ensure that every business was placed on some sort of record, and was obliged to pay a tax or fee.  As there is usually in the islands no income tax law that applies to individuals, government would otherwise be unaware of what little businesses are being carried on in the island.
The Licence fee is payable for every place of business.  I well remember Clement Daniels’ consternation in the early 1980s when I advised him that he had to pay for a separate Licence for each of his two Galaxy Supermarket outlets, the one in Wallblake and the other in South Valley, barely a half mile apart.  Still, they were two separate places of business.
There is case law on the Trades, Businesses, Occupations and Professions Licensing Act.  In or about 1997, the Antigua version of the Act said that when a person applied for his or her business to be licensed, the Minister “may” issue a Licence.  In other words, the grant of a Licence was not automatic.  The Antigua Act appeared to give the Minister a discretion whether to issue a Licence to persons who paid for their annual Licence.
The Antigua and Barbuda Bar Association, the medical profession and others brought legal proceedings to challenge the law.  They objected, among other matters, to the discretion being given to the Minister to determine who could be licensed as a lawyer or a doctor.   Ann Goodwin (now Ann Henry QC) was at the time the President of the Antigua and Barbuda Bar Association.  The case was brought in her name among others.
They won in the High Court and in the Court of Appeal.  These courts both ruled that the Act was unconstitutional.  In its judgment in the case of A-G v Goodwin et al (Antigua CA 10/1997, unreported) the Court of Appeal upheld the judgment of Justice Redhead in the High Court.  Once the applicant satisfies the requirements of the Act and pays the fee, there is no discretion to refuse.  The Licence must be automatically issued.  There is under the Act no power for the minister to regulate who can carry on business.  The Minister had\s no discretion to refuse to grant a Licence.
The Business Licence Moratorium Act 2019 (assuming the Governor assents to it) recites that,
WHEREAS it is in the public interest that a temporary moratorium prohibiting the granting of licences under section 7 of the Act is adopted so that the Government of Anguilla may review the business licence regime in order to regulate the grant of such licences in relation to clearly defined categories of enterprise and business activities having regard to the emerging needs of the economy of Anguilla and to protect and safeguard certain Anguilla businesses; . . .
Essentially, section 2(1) imposes a moratorium for a year on the grant of all Business Licences.  That is bad enough, but what is more worrying, the Bill provides for exceptions to be made.  Section 2(2) provides
Notwithstanding subsection (1), the Permanent Secretary shall have the power, after consultation with the Minister of Finance, to grant or refuse a licence during the period of the moratorium to any person having regard to all relevant considerations and the overarching policy of the Government in respect of the animating purpose of the moratorium and review of the legislative regime for the grant of such licences.
This sub-section provides an exception for the Permanent Secretary, after consultation with the Minister, to grant a Licence during the moratorium.  It is a general principle of common sense that any law which allows a politician to make an exception to a regulatory law is an invitation to wrongdoing.
Persons will assume that either the loophole will be taken advantage of through corrupt means, or, the real reason for introducing the loophole was to invite corrupt offers.  It was not that long ago that a previous minister in Anguilla was charged by the police with assault for demanding sexual favours in return for exercising his power to instruct the issue of work permits to foreigners where such permits had previously been refused by the relevant government official.
One reason for the Bill may be to get around the Ann Goodwin case.  It gives a discretion to the PS (who, of course, often does what his Minister tells him to do) to make an exception to the moratorium and to give a suitable applicant the necessary Licence to start up a new business.  That is, this Act creates a power for a politician, the Minister, for the first time, to be able to decide which Anguillian entrepreneur can start up a business and which ones will be blocked by pointing at the Act and saying, “I’m sorry.”  This must be a very worrying development.
A suspicious person may see other reasons for a government introducing such a measure.  The first reason could be to invite an offer for high government officials to be paid off for the making of an exception.  The second could be that Executive Council wishes to devise a way to stop certain types of businesses from opening up in Anguilla, or to stop certain types of persons from doing business in Anguilla.
The first theory above is doubtful.  No one could seriously suggest such a thing.  The second is more likely since there is a huge ground-swell against foreign-owned businesses that have been allowed into Anguilla over the past 40 years.  It seems that every month a new foreign-owned mega-store is being constructed.  These foreign businesses have been beating local businesses into the dirt through their access to much cheaper foreign government and foreign private investment capital.  Their running costs are further reduced by importing dozens of impoverished fellow-countrymen who are willing to work for several years stocking shelves for little remuneration besides board and lodging.  Few if any locals are employed.  This allows foreign-owned shops to be much more competitive than local Anguillian ones.
It may not be long before ABC Supplies, Ace Hardware, Albert’s Marketplace, Anguilla Trading, Apex, Ashley & Sons, Benny’s, Best Buy, Lake’s Do It Best, JW Proctor’s and Romcan (our prominent local groceries and dry goods stores) are forced to close their doors.  Indeed, if I heard a comment on radio correctly, the principal reason for the new law is to restrict the numbers of foreign business opening up in competition with Anguillian businesses.
Of course, the whole exercise may just be for show, designed as smoke and mirrors for the upcoming general elections.  There must be some political pressure on government as a result of the recent failure of a locally owned business, Tropical Distributors, to challenge in court the issue by government to a foreign-owned business of a business licence, resulting in losses by the local business to its foreign competitor, International Wines and Spirits.[1]  The Court of Appeal in an oral judgment in January 2019 dismissed the appeal from the High Court, promising to deliver written reasons at a later date.  At the time of writing, these had not yet been seen.  In this scenario, the main reason for the Bill would be to allow government to demonstrate they are taking action to stop this situation from arising again.
Over the past decades, foreigners who apply for business licences in Anguilla soon learn that once they are prepared to give away a 10 or 20% interest in the business to a politically favoured individual (officially referred to by government officials as “partnering”), the process for receiving the licence is smoothened.  Interestingly, no land development planning regulations seem to apply to these partnership enterprises any longer.  While the Planning Department obliges all locally owned businesses to provide customer parking seemingly the area of a football field, few foreign-owned businesses are made to provide parking for more than three or four vehicles.  This anomaly raises suspicion and distrust among the public.
In light of these two factors, one must question whether Government officials could have any interest in genuinely stopping or restricting foreign-owned businesses from out-competing local businesses.  Government officials could have no interest in limiting foreign-owned businesses, only in encouraging them.  In this scenario, this law could not be intended to restrict foreign-owned businesses.
In any event, as the lawyers are well aware, there are at least two reasons why the Moratorium Act will be ineffective.  The law will be incapable of giving effect to the supposed policy decision of the government of Anguilla to limit the future start-up of new foreign-owned businesses.
The first reason is the principle of ‘ultra vires’.  The main Act, the Trades, Businesses, Occupations and Professions Licensing Act, at section 14 enables the Governor in Council to make regulations “prescribing anything required to be prescribed by this Act and generally for the better carrying out of the provisions thereof.”
This wording does not grant a power for the government to make Regulations as the Moratorium Act proclaims, “to regulate the grant of such licences in relation to clearly defined categories of enterprise and business activities having regard to the emerging needs of the economy of Anguilla and to protect and safeguard certain Anguilla businesses.”  This wording is much wider than the principal Act allows.  The principal Act is purely a taxing Act.  It is not one designed for regulating businesses, far less for regulating who can or cannot carry on a business.
The result is that any attempt by the government to make Regulations under the Trades, Businesses, Occupations and Professions Licensing Act to regulate the grant of Licences “in relation to clearly defined categories of enterprise and business activities (having regard to the emerging needs of the economy of Anguilla and to protect and safeguard certain Anguilla businesses)” will be illegal.  In legal language the Regulations will be ultra vires, or outside the power, of the principal Act.
The second reason and real issue is the applicability of the Immigration Act.  Under this Act, the government has all the powers it needs to regulate which non-Anguillians are permitted to enter Anguilla.  This is the appropriate law for regulating which foreigners are allowed into Anguilla, and, in consequence, which of them can apply for a work permit or a Business Licence to be allowed to conduct business in Anguilla.
You may think it is perfectly appropriate for the government to determine that at this time in its history Anguilla has provided safe refuge to enough foreigners of a certain ethnicity, and to refuse to allow any more into the island to conduct business or otherwise.  Immigration officers already issue all visiting foreign nationals with a tourist visa for a limited time.  After that time is up, their continued presence on Anguilla will be illegal.
Indeed, the Immigration Department can tomorrow send its officers around to every one of these business places in Anguilla, and round up and deport all of the many persons working illegally in them.  All those “family members” who have been granted work permits to be on the island for a year can be informed the permits will be rescinded when they expire.  They do not have to wait for political instructions from the governor to carry out their duties.  One has to wonder at the real reason for the failure to take this action.
If the Immigration Act is not strictly enforced, once the foreigner has been allowed into the island, he can easily arrange with his compatriots to pretend to be a cousin who is “helping out” in the shop.  He does not need to apply for a Business Licence if he is merely a family member or an employee working in the shop.  After a few years, when he has paid off his indentureship and learned some English, he can apply for his own Licence.  With or without this Act, he will receive his Licence once he grants some favoured individual the usual pro bono publico 20% interest in the business.  And, once he has resided here long enough to acquire local rights, he can close down his enforced partnership and start a new solely-owned business free of its enforced partnership burden.
This Bill will be completely ineffective in stemming the flood of foreign entrepreneurs flowing unrestricted into Anguilla, if indeed that is the intention.  We need to apply strictly the provisions of the existing Immigration Act.  No new law is needed.  We need to enforce the existing ones.
The British Government has a fundamental objection to an Overseas Territory controlling immigration on the basis of race or religion.  The result is that any local government which wants to protect local businesses from foreigners of a certain ethnicity will be obliged to find a way around British objections.  There is no reason why they could not use the same techniques and procedures applied recently to stem the flow into Anguilla of Venezuelan and Santo Domingan businesswomen.
So, what is the reason for this legislative fiasco?  It seems to me there are two explanations.  First, the Bill was never previously published (other than on 13 February in the Official Gazette, which no one but a few lawyers reads) until it appeared on 18 February in the Order Paper for its second and third readings and passage into law in the House of Assembly on 20 February.[2]  When the first reading of the Bill took place on 12 February 2019, there was no live link to the draft text on the Order Paper.[3]  Nor was the text of the Bill published anywhere else.  No member of the public had any idea what was being proposed.  This was highly unusual, and should have raised suspicions that something fundamentally wrong was being pursued.
Normally in Anguilla, a Bill is published long before it is passed into law.  It is even circulated to the Bar for comment.  This gives lawyers and members of the public a chance to make an input.  Errors and omissions can be avoided.  In this case, the text was published on the government website (by including a live link on the Order Paper) for the first time only two days before the debate and passage into law took place.  No one outside the Executive Council knew in advance what was proposed so they could helpfully comment on it.  No member of the public was afforded an opportunity to make any comment before it was rushed into law.  This conduct was highly unusual, and gives rise to justifiable suspicion about the motives of the promoters of this Bill.
The second reason for the fiasco was that those responsible for the Bill waited until the Hon Pam Webster, the only member of the Opposition in the House, was absent from Anguilla.  Since the text of the Bill was not published for the first reading, I doubt that she ever saw a copy prior to the passage of the Bill into law.  This is more egregious conduct than giving members of the public no prior notice of the Bill.  She sits as the sole member of the Opposition in the Anguilla House of Assembly, and was the only member of the House qualified or likely to speak in opposition.  Where is the Accountability, Transparency and Integrity we were promised?
Will this prove to be a case of a lack of transparency being the petard upon which a Bill was hung?  Or is this law merely an effort to put an even greater squeeze on foreign direct investment?  With this law in place, maybe it becomes possible to demand a 30% shareholder interest from now on to ensure an exception is made.

Thursday, January 24, 2019

Spoiler Alert: Red Snapper

I inquired of the manager if there was fresh Snapper on the menu.  He told me yes, and I asked for it to be sautéed.  Instead, I got a filet of Swai.  Now, I have eaten plenty of Tilapia and Swai in my time.  I have eaten even more Snapper than Swai.  I know the difference.
After Merchant’s Market started importing Swai two or three years ago, Scott Hauser was, I believe, the first restauranteur to start offering it on the menu of his now-closed Valley Bistro.  But, Scott never claimed it was anything but Swai.  If you wanted fish at Valley Bistro, there was no point in asking for Snapper.  The waitress politely told you the only fish they had was Swai.  Whenever I felt like ordering fish at Valley Bistro, I took the Swai.  The choice was mine.  I was perfectly comfortable with that.
Swai is a freshwater mudfish native to the Mekong Delta in Vietnam.  It is now extensively farmed in the Mississippi Delta.  Tilapia is an African mud-fish that has for decades been farmed and eaten in the West Indies.  Swai is relatively new to our kitchens.  While Tilapia delivers a very thin filet, Swai is bulkier.  But, the two share the same fresh-water, mudfish texture and flavour.
Red Snapper sautéed in oil
In addition to the difference in texture from Snapper, Swai is completely without any taste.  It has neither the texture nor the taste of Snapper, which is a sea-water fish with a real flavour.  Swai is so soft and texture-less that you can chew it between your tongue and the top of your mouth.  Snapper, no matter how fresh it is, needs to be chewed with the teeth before it can be swallowed.  A fried egg has more texture than Swai. 
Red Snapper sautéed in butter
Sautéed Snapper easily divides into separate flakes under your fork.  The flakes of sautéed Swai are glued together in a porridge-like mess.  Additionally, sautéed Snapper almost invariably comes on your plate with the skin on the outside.  Sautéed Swai is served without the skin, and bears the identical porridge-like appearance on both sides.  It is quite easy to distinguish Swai from Snapper on your plate.

Sauteed Swai
The advantage of Swai to our local restaurants is clear.  It comes in a tower of easily separated filets.  It stacks snugly in the freezer.  It takes up much less room in the freezer than Snapper.  It comes without the labour of fileting the fish yourself, as you must do with fresh Snapper.  It costs a fraction of the price, and if charged as Snapper produces a greater profit for the unscrupulous restaurant.  I suspect that most tourists don’t know the difference, and will cheerfully swallow the Swai, believing it is Snapper.  No Anguillian fish-lover will be easily fooled.  A good rule of thumb is that if it has no fish taste and melts in your mouth, it is Swai.  If it has a salty-sweet fish taste, and flakes in your mouth, it is Snapper.  Assuming it can be done, no competent chef would prepare Snapper to make it taste like Swai.
On this occasion, since I had been promised fresh Snapper, I assumed a simple error had been made.  I asked the waitress to take it back to the kitchen and to bring me instead the promised fresh Snapper.  She took the plate off the table and went off to the kitchen.  Some minutes later she came back with a second dish.  She assured me that she had checked the refrigerator herself and could promise me that it was Snapper.  But to my mortification it was a different plate of the same Swai.  I asked her to take it back and left the restaurant, paying only for the two beers I had consumed while waiting.  I felt cheated and disappointed.
Red Snapper sautéed in oil by Martha Stewart
Let me make it clear that, save for the points I have made about Swai above, I have no objection to Swai being served in restaurants.  But, it is important for restaurateurs to be honest with the customer.  The customer may quite happily accept Swai if told that is what it is.  Or, the customer has the option to request a different dish.  This shows honesty and integrity.  You are happy to come back again.  A restaurant dishonestly serving Swai in place of Snapper is, in my view, in the same category as a restaurant serving cat and calling it lamb.  You probably won’t want to go back to it again.

 Since writing this, I have spoken to both the manager of the restaurant in question, and to the senior chef.  They both assure me that they have never served Swai in their restaurant, and that the Snapper I was served may simply have been overcooked.  I have no reason to doubt them.  But, they do need to speak to that cook.  Any decent chef ensures that sautéed snapper is not cooked for more than 2 minutes and 59 seconds on either side.  The cook in this case showed pure genius in so overcooking fresh Snapper that it appeared transformed into frozen Swai.

Wednesday, December 19, 2018

Constitutional Reform - A Bump in the Road

In March 2017, the Constitutional and Electoral Reform Committee presented the government of Anguilla with a 256 page Report.  It included a draft law to create a Boundaries Revision Committee and a draft Elections Act designed to implement the recommendations in the 2017 Report.  Also included was a draft new Anguilla Constitution which was intended to show what the recommendations would look like when enacted.  The Report acknowledged that experts would need to revise the submitted drafts.
Over the following months, there were occasional announcements that government accepted the Report and intended to ask the British to implement its recommendations.  Then, in September 2017 Hurricane Irma intervened, and this no doubt set constitutional reform back by several months.  There were no public meetings or public discussions of any kind organised by any of government, the opposition, or civil society to discuss the Report or its recommendations.
On the evening of Thursday 24 October 2018, there began to be circulated in Anguilla a draft Order in Council dated 22 October together with a related press release.  They revealed that government had decided to make a proposal to the British to change our electoral system and to amend the 1982 Constitution.  The press release invited the public to a meeting at the Teachers’ Resource Centre the following Monday to discuss the proposed amendments to the law and the constitution.
Noticeably, the circulated draft Order in Council with the proposed reforms did not include the entire package of recommendations made by the Committee.  Additionally, it contained some new proposals that are not found in the Report.
The informed reader would immediately notice that the 22 October draft addressed matters that were of interest only to a politician.  So, the franchise would be extended to foreign-born grandchildren of Anguillians;  the House of Assembly would be increased by four members at large;  Executive Council would be re-branded as the Cabinet;  the Cabinet would be increased from the present four members to five;  the ‘qualifying date’ for persons being added to the electoral list would no longer be determined by the date the Supervisor of Elections published the list, but would now be determined by the government on the basis of undisclosed principles;  and the Chief Minister would now be renamed the Premier.  None of the “watchdog institutions” that were at the heart of the 2017 Report were addressed.  Prominent among these was the Integrity Commission.
Up to this point, government had not discussed and agreed with either the Opposition or the public any proposal to introduce some only of the constitutional recommendations, while deferring the others to a later date.
On 26 October came the real bombshell.  Government published five pieces of correspondence between the Chief Minister and Lord Ahmad, the UK Minister with responsibility for Anguilla and the Overseas Territories.  On reading them, one was struck by a number of things.  The Chief Minister informed Lord Ahmad that government accepted most of the Committee’s proposals, but not all of them.  He gave no hint which ones his administration objected to.  He also explained that he needed both the Constitution and the Elections Act to be amended prior to the upcoming 2020 elections.  After the elections, he wrote, he would have more time to deal with the remainder of the recommendations for constitutional and electoral reform.  But, these initial amendments were a few, he wrote, that were urgent.
On the same day, government circulated a new version of the Order in Council dated 26 October 2018.  This was to be introduced into the House of Assembly the following week.  There were indications that government wanted the Order in Council signed into law at the December sitting of the Privy Council.
The intelligent reader would at once observe that there was nothing in the interim proposals that was truly urgent.  Great political benefit would accrue to whichever political party could claim to be the one that gave the franchise and other constitutional rights to grandchildren.  Changing the provision in the Elections Act to permit government to decide what the qualifying date was for new voters was capable of manipulation and misuse.  And, anyway, this was not something proposed by the Committee in its 2017 Report.
This is where Pam Webster sprang into action.  She worked with Dr Ellis Webster, leader of the Anguilla United Movement, and Sutcliff Hodge, leader of the DOVE party, to organise public resistance to this effort to unilaterally amend our Constitution.  She held strategy meetings with the other political leaders.  She wrote to the Governor protesting the action contemplated.  She chaired a press conference at the Speaker’s conference room at the House of Assembly, at which the united political opposition expressed their fears and concerns.  She chaired a public meeting hurriedly called at the Teachers’ Resource Centre, which was well attended and broadcast on at least two of the local radio stations.  She wrote a letter to Lord Ahmad expressing her concerns.  The other opposition parties also wrote to Lord Ahmad protesting the Chief Minister’s proposals.
Everything went quiet.  The Governor replied to her letter saying it was out of his hands.  Lord Ahmad said nothing.  Then, towards the end of November the Chief Minister announced he was off to London for a series of meetings which would include his proposals for constitutional and electoral reform.  We all held our breath.  The silence continued.
The Chief Minister came back from London and resumed his usual activities in Anguilla.  He said nothing about what had happened in London.  The silence was now deafening.  You would think that the Anguillian public who had paid for his delegation’s trip to London was entitled to a trip report.  But, up to this day, nothing.
In fact, we know what happened.  We don’t need a trip report.  Though, it would be decent of him to deliver it.
It is a fundamental principle that the UK government will not permit a sitting government of a British Overseas Territory to unilaterally alter the elections law just before a general election.  The concern is that any such alteration is calculated to favour the incumbent administration.  That is why the alteration always comes into effect after the next elections.  On that basis, Lord Ahmad would have told the Chief Minister that he could not agree to the proposed changes to the electoral system, especially to be brought into effect before the next elections.
A second principle is that the UK government will not permit a sitting government to unilaterally make proposals for constitutional or electoral reform.  The government must invite the opposition leadership to accompany the government delegation to London.  London will interrogate them to ensure that the proposals have cross-party support, and, more importantly, general public support.
These are preconditions for the British government to start looking at proposals for constitutional and electoral reform of a British Overseas Territory.  By the time the Chief Minister arrived in London, Lord Ahmad would have been well aware of the outrage being expressed in Anguilla by the opposition and by the public at this attempt to sneak politically expedient amendments into effect behind the backs of the Anguillians.
The Chief Minister would have been told to go back home and not to come back to London with similar proposals unless he brought the opposition with him, and with plenty of evidence that there was general public support for whatever constitutional proposals he was making.
Pam deserves our thanks and appreciation.  Her drive and persistence were necessary to bring the situation in Anguilla to the attention of the British government.  There is no doubt her initiative saved the day.

Monday, October 29, 2018

Constitutional Reform 2018



Events Subsequent to the Delivery of the Report of the Constitutional and Electoral Reform Committee of Anguilla
The Committee was established by letter from the Hon Minister of Home Affairs in September 2015.  Members of the Committee were,
Don Mitchell, CBE, QC, Chairperson
John Benjamin, QC
Hon Evalie Bradley
Keesha Carty
Arielle Gaskin
Marie Horsford
Colville Petty, OBE
Stanley Reid, OBE
Allister Richardson
Kristy Richardson-Harrigan
Conrad Rogers
Statchel Warner
The Committee became functus when it completed its task and delivered its final Report to Ministers of the Executive Council of Anguilla in March 2017, after a year and a half of work.  The Committee disbanded at that point and has never met since. 
Government has not shared any views with the Committee until late last week Friday 26 October when members were sent a draft Order in Council prepared by the FCO proposing amendments to the 1982 Constitution, correspondence between the Chief Minister and the FCO, and a press release indicating the draft Order in Council was to be presented to the House of Assembly on the following Tuesday 30 October.
When the Committee delivered its Report to Ministers, it reminded them that the Report (and its first draft of a new Constitution that would incorporate all of its recommendations) was the result of extensive public consultation.  The Report had the approval of the overwhelming majority of Anguillians who had participated in the exercise by correspondence, attending meetings, and by posts in social media.  If, therefore, they were unable to accept any part of the Committee’s recommendations, it was incumbent on them to go back to the people and explain their rationale for omitting or altering any of the proposals, particularly if they affected the institutions protecting good governance (Chapter 9) or the provisions for securing the public finances of Anguilla (Chapter 10).  They appeared to understand and accept that responsibility.
The Hon Minister of Home Affairs has now shared with the Committee and the public some of the correspondence between the Hon Chief Minister of Anguilla and Lord Ahmad of Wimbledon, Minister of State for the Overseas Territories, on amending the Anguilla Constitution.  In particular we have seen,
(a) Mr Banks’ letter to Lord Ahmad of 29 June 2018;
(b) Lord Ahmad’s letter to Mr Banks of 17 July 2018;
(c) Mr Banks’ letter to Lord Ahmad of 13 August 2018; and
(d) Lord Ahmad’s letter to Mr Banks of 16 October.
In his letter to Lord Ahmad of 29 June Mr Banks proposes that constitutional reform should proceed in two stages.  The first will deal mainly with a number of issues for electoral reform, while the more substantial proposals for reform are to be left for a second stage.  At the top of page 3 of his letter, Mr Banks states,
It is proposed that when this phase is near completion, that our respective Governments will commence discussions in relation to the second phase.  I have therefore attached the report of the Constitutional and Electoral Reform Committee for your perusal of the recommendations, most (but not all) of which have been accepted by our Government.”
It is the final sentence that causes the most concern.  Mr Banks states that his government has not accepted all of the recommendations of the Committee.  But, he nowhere hints which of the recommendations he has not accepted.  He does not acknowledge that he must take any proposal to vary the Report and Recommendations of the Committee to the people whose views are reflected in the Committee’s Report.
Lord Ahmad responds to Mr Banks by letter of 18 July 2018.  He writes,
Noting your comment that not all the Committee’s proposals have been endorsed by your government, I await your further views on the Committee’s proposals for this second stage.
By this language, Lord Ahmad shows that he is aware that the government of Anguilla cannot unilaterally decide to vary the recommendations of the Committee.  But, he appears unaware that the Committee is presently completely without any authority to agree changes.  Changes will require the consent and agreement of a substantial portion of Anguillians.  That is a role for Government.  They want to make changes.  They should go to the people and explain what changes they want, and attempt to secure the consent of the people to those changes.
Let us hope and trust that Lord Ahmad will remind the Anguilla government that any changes to the Recommendations must be put to the people, discussed with the people, and their consent and agreement secured.  This can be done in the same way that the Committee went about discussing the original proposals with the people, explaining them, taking their views into account, and finally arriving at a point where the Committee could be confident it had the consent of a majority of the people who participated in the exercise.
We must hope that the FCO will not be complicit in any effort by any Anguilla administration to water down the “checks and balances” provisions, the “watchdog measures” and the “institutions promoting good government” that the Report recommended be installed in any revised new Constitution.
One possible outcome of this imbroglio may be that the Anguilla government will persuade the FCO to sign this Order in Council giving them more jobs and positions and generally making the politicians happy, and the exercise will end there.  If either the local government or the FCO are unhappy with some of the good government provisions that they propose be left for the second stage, then if government is not able to secure the consent of the people, the reform project will die a silent death.
Given the proven skill of the local authorities in creating elaborate smoke screens and running rings around UK officials, we should not be holding our breath.  The frustration of the good government proposals may well be the main object of this exercise.  Only time will tell.