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
Colville Petty, OBE
Stanley Reid, OBE
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.