Ethics and Integrity in Practice in Anguilla – A Speech by Don Mitchell CBE QC
Ethics and Integrity in Government Workshop, Antigua – March 13th – 15th, 2006
I have a good friend in Anguilla. His name is Osborne Fleming. I hope he will forgive me if I appear to be picking on him today. Indeed, I hope he will still be my friend after today. I pick on him deliberately. It is a good rule of management that says that if you are going to criticize bad behaviour, if you are going to single out someone to make an example of, you start at the top of the ladder, not at the lower rungs. You start with the leadership, because the lower ranks are only following the example shown to them. You can’t get much closer to the top in a British Overseas Territory than the Chief Minister. So, by all the rules I am forced to pick on Osborne Fleming.
[Slide 1: Mr Osborne Fleming, Hon Chief Minister of Anguilla]
In Bermuda or in the British Virgin Islands I am certain that you cannot imagine that a businessman Member of Parliament would continue to be a serving director of a company after he had been appointed a Minister of government. If he did so, there would be a howl of protest from the public in your territories. In the United Kingdom, it would constitute a grave criminal offence. Far from continuing as a director, in some Commonwealth countries a Minister of government is not even allowed to continue to hold shares in either a public or a private company. On being appointed a Minister, the law there requires him to transfer all his shares and other property into a “blind trust”, over which he has no control, while he continues to be a Minister. This rule is designed to ensure that the Minister does not allow any possibility of a conflict of interest to raise its head while he is discharging his public trust as a Minister.
Certainly, those of you from the UK would be outraged if you learned that Tony Blair had been revealed to be an active member of the Board of Directors of a major UK bank while he was Prime Minister. More, you would be overwhelmed with incredulity if you learned that he was the Chairman of the bank’s Board of Directors.
[Slide 2: CCB 2001 Annual Report cover]
You would expect him to resign as Prime Minister immediately this information got out. You would not be surprised if he went to gaol.
[Slide 3: CCB 2001 Chairman, Hon Osborne Fleming]
Yet, for years the Hon Chief Minister of Anguilla has openly served as the official Chairman of the Board of Directors of a commercial bank in Anguilla. That means that he chairs the regular meetings of the bank’s Board of Directors. He draws a salary for it. He participates in the discussions. He joins in the decision-making of the bank. We can be sure that, as Chairman of the Board, the Chief Minister imagines that his sworn duty is to preserve and protect the interests of the bank and its shareholders against all threats, including those coming from government.
Can you imagine the conversation in Executive Council? Government has to borrow US$10,000,000 as a bridging loan to cover a shortfall in revenue. The Ministers are worrying over what rate of interest they will have to pay. The Chief Minister turns to his colleagues and says reassuringly, “Don’t bother about that. We can lend it to you for only 10%.” Whose interest can he be representing at that point? And, even if he excuses himself from the official ExCo meeting, who of us knows what goes on in the private corridors between meetings?
Or, can you imagine the conversation at the bank’s Board meeting? “Mr Chairman, there is rumoured to be a proposal before the Executive Council for the increase of taxes on banking transactions. Can you tell us, what is the Chief Minister going to do about it?” When he answers, which hat is he supposed to be wearing?
In Anguilla, we have an alien’s landholding licence law. A foreigner cannot acquire or hold an interest in our scarce and precious supply of land without first obtaining a licence from the Executive Council. This is supposed to give ExCo an opportunity to check out the background and credentials of the prospective foreign landowner before he is permitted to join our community. ExCo personally vets these applications for licences, and some are refused. It is quite a competitive business. These foreigners vie with each other to see who can obtain his licence with a minimum of bother and a maximum of speed. The lawyers and real estate agents bring pressure on government ministers to make a favourable decision relating to their clients. ExCo, meanwhile, is the last hurdle protecting the public interest. They are supposed to be checking who is Mafia and who is not. Integrity is the order of the day. We depend on our Ministers to act on our behalf in vetting these applications and to only allow the most worthy of foreigners into our midst. We have enough scamps among our own relatives! We don’t need more of them to be imported! At the very least, acting in the public interest in such a matter requires complete independence and freedom from undue influence. The whole process is subverted if a Minister goes into the real estate or land development business. If a minister can make money, significant money, from selling land to foreigners, how can we expect him to act properly, in our interests, in vetting alien landholding licence applications?
[Slide 4: Mr Fleming’s billboard at Seafeathers Bay]
Yet, here in Anguilla, we see a billboard erected on the main road. This is at the junction of the side road that leads to the Hon Chief Minister’s home at Seafeathers. The Chief Minister is developing a tract of land at Seafeathers. He has a real and significant financial interest in leasing and selling lots of land at Seafeathers. I can tell you that they are not cheap lots. This is not a public service development for low or middle-income citizens. These are vacation houses. They are luxury villas. The Chief Minister intends to sell them for good money to foreigners. He has a real interest in ensuring that no prospective buyer is turned down by ExCo. No, Sir, not for any reason! Our Minister of Public Works, my good friend Mr Kenneth Harrigan, also does a thriving real estate business. This is in addition to his very successful construction business.
You can imagine the conversation in ExCo on a Thursday morning. The Governor is presiding as Chairman of ExCo. He is there, we are told, to ensure that Britain’s interests are protected, and that the highest standards are maintained in the public service in Britain’s Overseas Territories. The Hon Chief Minister addresses his Ministers, “Gentlemen, you will see the next item on the Agenda is an application by Mr X of Las Vegas for a licence to buy a lot of my land. He is paying me one million dollars. I have children to send to university. Of course, I would not want that to influence your vote. Indeed, I shall not vote on it. I shall abstain. I have a conflict of interest. I do not want my presence to influence you in any way. I shall step out of the room for the discussion. Please make your decision with a completely clear and uncluttered mind.” As His Excellency the Governor escorts the Hon Chief Minister to the door, he turns back to address his colleagues, “And, when we come to the next application, Mr Minister of Public Works, which I see is one of yours, you can expect that I will act with the same independence of mind and impartiality.”
I ask you to imagine the conversation at the expatriate water-hole at happy-hour the following Friday. Mr X from Las Vegas has a broad grin on his face. He asks the person next to him, “Well, Joe from Toronto, did you get your aliens landholding licence approved? No, you didn’t! How come I got mine approved? Well, it may have helped that I bought my land from the Chief Minister, you idiot! What do you think? That is the way you do things in Anguilla. And, I gave the Minister of Public Works the contract to build my house. I signed the building contract the same week that I signed the purchase contract with the Chief Minister. What, you did not know that the Minister had a construction company? What sort of lawyer do you have? That was the first piece of sensible advice my attorney gave me. Fire your idiot legal adviser! Let me introduce you to mine.”
There is a wide-spread perception that corruption is on the rise in Anguilla, despite the evidence as to the destructive force it unleashes. When important decisions are determined by ulterior motives the political, economic and social costs are high. Corruption-control is therefore not simply an end in itself, but is crucial and instrumental in reaching the broader goal of more effective, fair and efficient government for the benefit of us all.
We all know that corruption is a major cause of poverty as well as a barrier to overcoming it. The two scourges feed off each other, locking their populations in a cycle of misery. Corruption must be vigorously addressed if the UK administration of an overseas territory is to make a real difference in freeing people from poverty.
The Foreign and Commonwealth Office in London owes a duty to the people of our Overseas Territories to insist that our governments increase the resources and political will for anti-corruption efforts. Our Constitutions and laws must be changed to enable greater public access to information about budgets, revenue and expenditure. Any aid must be combined with support for recipient-led reforms. Our governments must be encouraged to promote strong coordination among themselves, the private sector, and civil society to increase efficiency and sustainability in anti-corruption and good governance efforts.
Conflicts of interest, nepotism, and cronyism have to be rejected by the people of all our islands. We must demand openness, fair competition, and clean business in both the public and private sectors.
This calls for an integrated anti-corruption strategy. Initiatives are required to address illegal financial transactions that presently affect our countries’ executives, legislatures, and political parties. We have to take practical steps to reduce vulnerabilities in our institutional framework. We have to restrict the present excessive freedom of our governments to appoint political appointees to occupy positions in the State’s management. In the event of a scandal affecting our government, the response must be the swift establishment by the Governor of a Commission of Inquiry, if the lasting effect of these incidents is to be minimized. Political financing laws must be put in place and enforced. Ways must be found to allocate public funds to the media to enable them to perform their investigative and reporting functions. The committees designated to oversee the execution of our budgets have to be funded and staffed and insulated from executive manipulation. State and civil bodies must be actively encouraged, with public financing for this purpose, to advocate and promote better regulation in government. Laws must be passed and enforced strengthening the public contracting systems and improving access to information. We need to develop national integrity systems, with a range of institutions, regulations and practices to address different aspects of maintaining the honesty and integrity of government and private-sector institutions. Leadership is crucial in both driving a reform programme and in leading by example. Commitment to reform will have to be mustered from a wide variety of constituencies. The task of building political will can begin at the level of a well-informed and educated grass-roots, and does not end with government embarking on reform. Reform will require support through the often difficult times that will lie ahead.
Anguilla sorely lacks legal and regulatory mechanisms to ensure fair and transparent general elections. With fewer than 2,000 voters in most constituencies, a plane-load of foreign-resident constituents flown in for an election can determine the outcome. Truck-loads of cement and galvanize, refrigerators and stoves, are delivered at election time, in breach of no law or regulation. The legitimacy of the electoral process in Anguilla is dubious at best.
We do not have any Ombudsman law in Anguilla. We lack any form of efficient and inexpensive mechanism, other than a prohibitively expensive law-suit, for a review of the lawfulness of administrative acts. Our citizens have no practical channel for challenging government actions which adversely affect them.
The integrity of our public officials is under constant pressure in a variety of ways. We need an ethics code tailored to our social conditions. Integrity testing has a role to play. The assets and liabilities of officers at particular risk need to be constantly monitored.
[Slide 5: Chief Minister’s office building at the Quarter generously rented by him to the Ministry of Health]
Unambiguous procedural statements and codes of conduct have to be put in place to deal with conflicts of interest, nepotism, and cronyism at all levels of the public service. This includes Ministers of Government, parliamentarians, the boards of statutory corporations, cabinet appointed committees and the civil service. It is particularly important at this time for the political leadership of our island.
Procurement procedures have to be simplified and monitored and made more difficult to manipulate in corrupt transactions.
[Slide 6: Environmental Health Unit renovated by the Chief Minister’s friend and political campaigner Mr Harold Ruan for the Ministry of Health]
Our public accounting systems are poor, disconnected and untimely. They virtually incite fraud. We have to amend the appropriate laws and regulations to introduce good financial management practices.
[Slide 7: East End Clinic renovated by the public-spirited Mr Ruan free of cost]
Informed judgment and appraisal by the public, press, and legislators are frustrated if government’s activities are hidden from view. We need improved regulations easing public access to information. Official records have to be made more readily available.
[Slide 8: West End Clinic renovated by the doubly-blessed Mr Ruan]
Our citizens have to be better informed of their rights, and be encouraged to claim them, and to be prepared, when necessary, to complain, without fear of eventual oppression. Public interest legislation and channels for complaint have to be provided.
Competition policies can help to contain and reduce corruption. Competition laws have a vital role tin protecting and promoting economic activity and integrity and in ensuring this happens in the best interests of society.
New laws need to be put in place to fight corruption. We need enforceable provisions to require individuals with inexplicable wealth to explain its sources. We need to train specialists in tracking and seizing the proceeds of corruption.
Corrupt acts are generally conducted in great secrecy. Corruption surveys in other countries have proven a useful tool for determining levels of corruption in a section of society that would otherwise remain in the dark. Corruption surveys address serious issues, and not only raise levels of attention accorded to the problem as a result of increased awareness and pressure, but also provide information as to where interventions are needed.
In Anguilla, we lack a political leader such as Jamaica’s Bruce Golding. Indeed, Anguilla today famously has no Opposition Leader because the two elected members of the opposition cannot agree on which of them should be the leader. We could do with a sensible Constitutional provision to the effect that when the members of the Opposition in the House of Assembly do not agree, the Governor shall appoint the one who garnered the highest number of votes. The Jamaica Observer of 2 March 2006 carried a story on Bruce Golding’s complaint that Jamaica’s Corruption Prevention Commission was powerless and non-functioning. He secured majority support for a resolution to set up a committee to make recommendations to correct the problem. Anguilla not only lacks a corruption prevention commission, we have not begun to educate or inform our people of the evils of public corruption and the need to address it.
So, is there a point to the stories I told you about Mr Fleming? Is there a lesson to be learned? Yes, and it is this. Mr Osborne Fleming is at essence one of the most decent men I know in politics in Anguilla. I believe that he has always tried to do what he thought was the best thing for his country. He is sure in his own mind that there is no conflict between his serving as Chief Minister and as Chairman of the Board of a commercial bank at the same time. I know that because he has assured me of it. He has been taught that these are not conflicts of interest: they are convergences of interest. And, no one in the public service has ever told either him or Mr Harrigan otherwise. No British Government official has ever explained to either of them that they are in an intolerable position. No one who should have known better has ever taken the trouble to point out to them that they could not properly justify maintaining those conflicts of interest in any other country in the Commonwealth.
In the United Kingdom public service, there are conventions and Codes of Ethics binding on Ministers as well as parliamentarians. There are regulations enforceable by law. There are watchdog bodies and independent regulators keeping an eye on things. There are frameworks and mechanisms set up to encourage and enforce proper behaviour at all levels of the public service. In Anguilla, we have nothing to encourage, far less ensure, high standards of ethics in the public service.
It is simply not good enough for the FCO big-shots to be content to receive dispatches from Governors in Overseas Territories describing the appalling state of their governments, and then to lean back in their ergonomically designed chairs in their plush, mahogany-lined offices and to shake their heads in dismay and to say to themselves, “Those ignorant Colonials! Can’t expect any better of them!”
Ethics and proper behaviour are not embedded in our chromosomes at conception. They are not among the nutrients absorbed when we are babies at our mothers’ breasts. They are concepts and practices that are taught. They are learned behaviour. They are products of education and training. They flourish when they are instilled, maintained, and developed by intensive and repeated courses of training coupled with institutional support.
Such corruption as exists in the Anguillian public service is the full and direct responsibility of the modern-day Mandarins in the Foreign and Commonwealth Office who have, by their lack of action, either deliberately or negligently encouraged and produced it. To what purpose, I am still in a puzzle.