Tuesday, August 11, 2015

Parliamentary Privilege

Topic:  What Legal Instruments Exist to Monitor and Scrutinise the Activities of MPs in Anguilla?  What Is Parliamentary Privilege?  Why Is it Important for the Independence of Parliament?  Freedom of Speech, How Is it Enforced/Protected?
A Presentation to Parliamentarians made on Tuesday, 11th August 2015, at the House of Assembly, The Valley, Anguilla
By Don Mitchell CBE QC
[1]       The concept of ‘parliamentary privilege’ dates back to the English Civil War (1642-1651) when Parliament was fighting King Charles II for supremacy.  In those days, the King considered himself supreme in the realm, and Parliament was seeking to free itself from interference by him.  Parliament argued that MPs were subject only to the strict rule of Parliament, which ran in tandem with the criminal and civil law.  They argued that it was the rule of Parliament that was supreme.  The result of this difference was the Glorious Revolution of 1688.  Eventually, in 1688 King James II was deposed and replaced on the throne by William and Mary.  Parliament’s contract with the new dynasty was formalised in the Bill of Rights, 1689.  Article 9 states that
The freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court of place out of parliament.
The modern interpretation of this Article is that it protects members of Parliament from being subjected to any penalty, civil or criminal, in any court or tribunal for what they have said in the course of proceedings in Parliament.[1]
[2]       In Anguilla, parliamentary privilege is protected by the House of Assembly (Powers and Privileges) Act[2].  This Act sets out the principal privileges of the Assembly.  The Act is relatively short and its provisions are clear and succinct.  Perhaps, therefore, the best way to enumerate the privileges is to go through the most relevant sections one by one, pausing for such explanation as may appear necessary or useful.
Immunity from legal proceedings
2. No civil or criminal proceedings may be instituted against any member for words spoken before, or written in a report to, the Assembly or to a committee or by reason of any matter or thing brought by him before the Assembly by petition, bill, question, motion or otherwise.
3. No member shall be liable to arrest for any civil debt, except a debt the contraction of which constitutes a criminal offence, while going to, attending at, or returning from a sitting of the Assembly or any committee.
Right to enter Assembly
4. No stranger is entitled, as of right, to enter or to remain within the Chamber and precincts of the Assembly.
Speaker may regulate admittance
5. (1) The Speaker is hereby authorised to issue any orders that he may in his discretion deem necessary for the regulation of the admittance of strangers to the Chamber and precincts of the Assembly.
(2) Copies of orders made by the Speaker under this section shall be duly authenticated by the Clerk and exhibited in a conspicuous position in the Chamber and precincts of the Assembly, and those copies, when so authenticated and exhibited, are deemed to be sufficient notice to all persons affected by them.
Speaker may order withdrawal of stranger
6. The Speaker may at any time order any stranger to withdraw from the Chamber and precincts of the Assembly, and any person who fails to obey his order may be forcibly removed from the Chamber and precincts of the Assembly by any officer of the Assembly, and no proceedings shall lie in any court against the Speaker or officer in respect of the removal.
Offences relating to admittance to Assembly
7. Any stranger who—
(a) enters or attempts to enter the Chamber or the precincts of the Assembly in contravention of any order of the Speaker;
(b) fails or refuses to withdraw from the Chamber or the precincts of the Assembly when ordered to withdraw therefrom by the Speaker; or
(c) contravenes any of the Standing Orders or any order made by the Speaker under section 5 relating to the admission of strangers;
is guilty of an offence and is liable on summary conviction to a fine of $4,800 or to imprisonment for a term of 3 months or to both.
Attempted intimidation of Assembly or committee
8. (1) Any person who is a member of a group of 12 or more persons who come in a riotous, tumultuous or disorderly manner to the Chamber or the precincts of the Assembly while the Assembly or any committee is sitting in order to hinder or to promote the passing of any bill, resolution, or other matter before the Assembly or committee is guilty of an offence and is liable on summary conviction to a fine of $19,200 or to imprisonment for a term of 6 months or to both.
(2) Any person who incites any other person to come in a riotous, tumultuous or disorderly manner to the Chamber or the precincts of the Assembly while the Assembly or any committee is sitting in order to hinder or to promote the passing of any bill, resolution or other matter before the Assembly or committee is guilty of an offence and is liable on summary conviction to a fine of $19,200 or to imprisonment for a term of 6 months or to both.
Other offences
9. (1) Any person who—
(a) offers to any member or to any officer of the Assembly any bribe, fee, compensation, gift, benefit or reward of any kind in order to influence him in his conduct as a member or officer, or for or in respect of the promotion or of opposition to any bill, motion or matter submitted to or intended to be submitted to the Assembly or any committee;
(b) assaults, obstructs, molests or insults any member coming to, being within, or going from the Chamber or the precincts of the Assembly, or endeavours to compel any member by force, insult or menace to declare himself in favour of or against any proposition or matter pending or expected to be brought before the Assembly or any committee;
(c) assaults, interferes with, molests, hinders, resists, obstructs or insults any officer of the Assembly while in the execution of his duty, or assaults, obstructs, molests or insults any officer of the Assembly on his way to or from the Assembly, knowing him to be an officer of the Assembly;
(d) creates or joins in any disturbance that interrupts or is likely to interrupt the proceedings of the Assembly or any committee while the Assembly or committee is sitting;
(e) presents to the Assembly or a committee any false, untrue, fabricated or falsified document with intent to deceive the Assembly or committee;
(f) subject to subsection (2), publishes or prints any libel on the Assembly, or publishes by words spoken any false, scandalous or defamatory matter, reflecting on the character or proceedings of the Assembly or which tends to bring the Assembly into odium, contempt or ridicule, or publishes or prints any libel on, or publishes by words spoken or by writing any false, scandalous or defamatory matter reflecting on the character or proceedings of a committee of the Assembly, or publishes any libel on a member of the Assembly touching his conduct as such member;
(g) abstracts any record or other document from the custody of the Clerk or falsifies or improperly alters any records of or documents presented to the Assembly or any committee;
(h) inflicts or threatens to inflict harm in body or estate upon any member or officer of the Assembly with intent to influence him in his conduct as a member or officer;
(i) molests any member or officer of the Assembly on account of his conduct as a member or officer;
(j) disobeys any order to attend, or to produce documents before, any committee duly authorised in that behalf;
(k) refuses to be examined before, or to answer any question put by, any committee;
(l) gives false evidence, prevaricates or commits other misconduct as a witness before any committee;
(m) destroys any document that has been ordered to be produced before a committee;
(n) endeavours, directly or indirectly, to deter or hinder any person from appearing or giving evidence before any committee;
(o) tampers with any witness in regard to evidence to be given by him before any committee;
(p) threatens, punishes, damnifies, injures, assaults or insults any person who has given evidence before a committee on account of his evidence; or
(q) publishes any evidence taken by, or document presented to, any committee before the evidence or document has been reported to the Assembly;
is guilty of an offence and is liable on summary conviction to a fine of $4,800 or to imprisonment for a term of 3 months or to both.
(2) Nothing in paragraph (1)(f) shall apply to a fair and accurate report of the proceedings of the Assembly published in any newspaper, radio, television or other medium of communication or to fair comment on them. …
Acceptance of bribes by members
12. Any member who accepts or agrees to accept or obtains or attempts to obtain for himself or for any other person any bribe, fee, compensation, reward or benefit of any kind for speaking, voting or acting as such member or for refraining from so speaking, voting or acting or on account of his having so spoken, voted or acted or having so refrained is guilty of an offence and is liable on conviction on indictment to a fine of $38,400 or to imprisonment for a term of 3 years or to both.
Contempt by members
13. (1) Any member who—
(a) being a member of a committee, publishes any evidence taken by or documents presented to, the committee before the evidence or documents have been reported to the Assembly;
(b) without the permission of the Speaker first had and obtained, gives evidence before any court or person authorised by law to take evidence relating to the contents of the minutes of evidence taken or any documents laid before a committee or in respect of any proceedings or examinations held before the committee;
(c) assaults or obstructs any other member within the Chamber or precincts of the Assembly;
(d) assaults or obstructs any officer of the Assembly while in the execution of his duty; or (e) is convicted of any offence under this Act;
is guilty of contempt of the Assembly.
(2) Where any member is guilty of contempt of the Assembly, the Assembly may order the member to be reprimanded by the Speaker or suspend him from the service of the Assembly for the period that it may determine but that period shall not extend beyond the last day of the meeting next following that in which the resolution is passed, or of the session in which the resolution is passed, whichever first occurs.
(3) No allowance payable to a member of the Assembly for his service as a member shall be paid in respect of any period during which he is suspended from the service of the Assembly under subsection (2).
(4) Nothing in this section shall be construed to preclude the bringing of proceedings, civil or criminal, against any member in respect of any act or thing done contrary to paragraph (1)(c) or (d).
Exclusion of suspended member
14. A member who has been suspended from the service of the Assembly shall not enter or remain within the Chamber or precincts of the Assembly while the suspension remains in force, and, if any member is found within the Chamber or precincts of the Assembly in contravention of this section, he may be forcibly removed therefrom by any officer of the Assembly and no proceeding shall lie in any court against the officer in respect of the removal.
Restriction on admissibility of evidence
15. No evidence relating to—
(a) debates or other proceedings in the Assembly; or
(b) the contents of the minutes of evidence taken, or any documents laid or any proceedings or examinations held, before any such committee;
by any member or officer of the Assembly or any shorthand writer employed to take minutes of any such evidence or proceedings in respect of any of the matters specified in paragraph (b), by any person who was a witness before the committee shall be admissible in any proceedings before a court or person authorised by law to take evidence unless the court or that person is satisfied that permission has been given by the Speaker for such evidence to be given.  . . .
Powers of Speaker to be supplementary to Standing Orders
21. The powers of the Speaker under this Act shall be supplementary to any powers conferred on him by the Standing Orders.
Jurisdiction of courts in respect of acts of Speaker or officers
22. Neither the Speaker, nor any officer of the Assembly is subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Speaker or officer under this Act.
Service of criminal or civil process
23. Notwithstanding anything to the contrary, no process issued by any court in the exercise of its criminal or civil jurisdiction shall be served or executed within the Chamber or the precincts of the Assembly while the Assembly is sitting or through the Speaker, the Clerk or any officer of the Assembly.
Restriction on prosecution
24. No prosecution shall be instituted for an offence under this Act except with the written consent of the Attorney General upon information given to him in writing by the Speaker.
[3]       To summarise, then,[3] the term ‘parliamentary privilege’ refers to two significant aspects of the law relating to Parliament:  (i) the privileges or immunities of the House of Assembly;  and (ii) the powers of the House to protect the integrity of its processes, particularly the power to punish a contempt.  These immunities and powers are very extensive, but they carry with them great responsibilities.
[4]       The term ‘privilege’, in relation to parliamentary privilege, refers to immunity from the ordinary law, which is recognized by the law as a right of the House and its members.  Privilege in this restricted and special sense is often confused with privilege in the colloquial sense of a special benefit or special arrangement.  The word ‘immunity’ is best used in relation to privilege in the sense of immunity under the law.
[5]       Parliamentary privilege exists for the purpose of enabling the House of Assembly to carry out its functions of inquiring, debating and legislating.  It does not exist to elevate Members of the House above ordinary citizens.
[6]       As we have seen above, the principal immunity is the freedom of parliamentary debates and proceedings from question and impeachment in the courts, the most significant effect of which is that members of the House cannot be sued or prosecuted for anything they say in debate in the House.  The principal powers are the power to compel attendance of witnesses, the giving of evidence and the production of documents, and to adjudge and punish contempts of the House.
[7]       We have seen above[4] references to Standing Orders.  In Anguilla, the standing orders of the House are the old Legislative Assembly (Procedure) Rules, 1976.[5]  These Rules are to be found in the Appendix to the 2000 Revised Edition of the Statutes of Anguilla.  This is quite a long document, so it will be necessary to pick among its provisions to seek out the main ones that relate to the privileges of the House.
[8]       Perhaps the most important provisions of the Rules are the rules of debate set out at sections 34 to 44.  It is no exaggeration to say that parliamentarians are expected to know these Rules by heart.  They deal with such issues as how a member is to address the Speaker;  how other members are to be referred to;  when reflections on the conduct of members, the Speaker or persons concerned in the administration of justice will be out of order;  how often a member may speak;  interrupting another member who is speaking;  and the responsibility of the Speaker to preserve order and to enforce the Rules.  When, eg, the Speaker addresses the Assembly, any member on his feet must immediately resume his seat or be ruled out of order. 
[9]       Great authority, and therefore great responsibility, is vested in the Speaker.  Unlike a judge, his decisions on the conduct of affairs in the House are not subject to any appeal to a higher court.  His conduct, while subject only to his conscience and sense of professionalism, is the object of intense public scrutiny.  If he is to retain public confidence and respect, his decisions must be above reproach, independent of the governing party’s interests, impartial towards the opposition, and mindful of the need to protect the good name and reputation of persons who are out of the House and unable to protect themselves.  When a member rises to make a point of order, perhaps to complain about a breach of the rules of debate by another member, the Speaker is expected to be strictly neutral in the way he or she rules on the point.  A Speaker who is concerned about his character and reputation will know that he is not appointed to protect Ministers, or to assist them to harass opposition members.  The governing party inevitably has a majority in the House and can well defend itself without the Speaker’s help.  This convention has in recent years been ignored with increasing frequency in our neighbouring islands, resulting in an inevitable loss of public confidence in and respect for the office of Speaker.[6]
[10]    In the event, for example, that a member is in breach of Rule 34, sub-Rules (4) and (5), by abusing either another member, or, more egregiously, an individual who is out of the House, a diligent Speaker would do well to remember that every word is being broadcast live on radio and television.  The Speaker ought not to wait for a point of order to be made to interrupt the speaker who is abusing the privileges of the House.  He should immediately stop the offending member, and request that he withdraw any abusive or insulting remarks.  Members of the public are listening and watching, and will notice any weakness or apparent complicity on the part of the Speaker.
[11]    Rule 46 deals with conflicts of interest.  A member is not permitted to vote on any subject in which he or she has a direct pecuniary interest.  The procedure to be followed for objecting to a member with such a conflict voting is set out in some detail.
[12]    Rules 48 to 50 deal with the Speaker’s power to deal with breaches of order.  Rule 48 enables the Speaker to direct any unruly member to withdraw immediately from the Assembly Chamber during the remainder of the day’s sitting.  A member showing disregard for the authority of the Speaker may be ‘named’ by the Speaker under Rule 49.  The Speaker then puts the question that such member be suspended from the service of the Assembly.  If the question is passed, the suspension continues for the remainder of the session unless sooner ended by the Assembly.  Under Rule 50 the Speaker may direct such steps to be taken as are required to enforce his order, including having the Sgt at Arms evict him using such force as may be necessary.
[13]    Rules 56 to 65 deal with Select Committees.  The only Select Committee mentioned is the Select Committee that considers a Bill after its second reading.  The Anguilla House of Assembly is so small that this Committee invariably consists of the whole House.
[14]    Rules 66 and 66A deal with two Standing Committees, the Finance Committee and the Public Accounts Committee (the PAC).  The purpose of the Finance Committee is to consider any financial Bills or other business referred to it.  In Anguilla, invariably, financial Bills are dealt with by the Select Committee which consists of the whole House mentioned above.
[15]    Only the Minister of Finance can move the House to appoint the PAC.  The Hubert Hughes administration did so after winning the General Election of 2010, but, so far as I am aware, it never accomplished anything.
[16]    The duties and powers of the PAC are set out in Rule 66A.  The principal duties are to check that the authorized expenditure has been applied to the purposes prescribed by the legislature;  to scrutinise excess expenditures;  to examine the public accounts kept in any Department of Government;  and to summon any public officer to give any information or explanation which the Committee requires.  The Minister of Finance is expected to provide office and secretarial facilities to the Committee, and the Committee is expected to submit its Reports to the House from time to time.
[17]    It is fair to say, then, that in Anguilla no Standing Committee of the Assembly has ever functioned as expected.  We all hope that this will change under the new dispensation resulting from the just past general election.
[18]    One of the distinguishing features of the Anguilla Constitution is an almost complete lack of any mechanism to investigate and to prevent abuses of power[8].  The Anguilla Constitution lacks either written-in ‘checks and balances’ or universally honoured conventions to supplement the written rules.  Its lack of checks and balances and ‘watchdog institutions’ almost seems designed to promote bad governance.  The three essential ingredients for assuring good governance are generally recognised to be (a) integrity, (b) accountability, and (c) transparency.
[19]    (a) Integrity:  Checks and balances are measures that progressive leaders put in place in the Constitution, and back them up by passing enabling laws, that are designed to ensure integrity in our system of government.  Some of the most obvious ones are:  (i) the Interests Commission;  (ii) the Tenders Board;  (iii) dealing in Crown land;  (iv) an Appointments Commission;  and (v) Codes of Ethics.
[20]    (i) Interests Commission: This office is sometimes called the Integrity Commission. It is designed to receive declarations and reports from a wide range of public officers of their assets and liabilities.  Besides being established by a modern Constitution, the Commission is supported by an enabling statute, usually called the Integrity in Public Life Act.  This law would require members of the House of Assembly, members of the Executive Council, and other senior public officers, to state on oath their assets and liabilities.  They would be obliged to make regular filings and declare gifts given to them while in office.  There would be severe penalties if they lie or fail to make the declaration.  Their declarations would be publicly available, being published on the government website. 
[21]    The Anguilla Constitution 1982 has set up a Register of Interests.  By itself, this provision does not achieve anything to ensure integrity in public office.  A secret Register kept by the Speaker achieves nothing.  There needs to be a law to give effect to the constitutional provision, to set out the details of the mechanism that must be followed, and to provide heavy penalties for any falsification.  While David Carty was Speaker, a caponised version of such an Act providing for a secret register was circulated for comment, but it was thankfully never enacted.
[22]    The official explanation of the advantage of such an Act is that it forces public officers to declare their interests when they meet to discuss policy, make decisions, and pass laws.  That is, it makes people think of conflicts of interest.  The assets of the public officer in question become a matter of public knowledge.  If the public officer acquires sudden wealth while approving licences and permits, questions are likely to be asked.  The risk of public exposure, and even prosecution, would give the conscience a boost.
[23]    Anguillians were nearly unanimous in 2006 when the Constitutional and Electoral Reform Commission sought their views on the subject of the need for integrity legislation.  Paragraph 135 of the final Report contained the recommendation of the Commission.[9]
[24]    (ii) Tenders Board.  Much of our budget is spent on developing infrastructure, repairs and maintenance.  This requires the purchasing or procurement of supplies and services at great cost to the taxpayer.  Procurement of goods and services, relating to contracts for roads and schools and offices and hospitals, offers the most attractive opportunities for those who wish to bypass the process and illegally enrich themselves.  In the good, old, unregulated days, the rule governing procurement officers was, “The cow must graze where she is tied.”  The resulting corruption, it is now realised, damages not only government, but also our legitimate businesses and individuals in the community.[10]
[25]    Despite the passage into law in 2012 of a Procurement and Contract Administration Act,[11] there is public concern that in Anguilla, our ‘procurement system’ still remains essentially lawless and unregulated.  Senior public officers can easily circumvent the provisions of an untrained and amateur Board that is not constitutionally protected and entrenched.  The result is continuing widespread suspicion that public works contracts are awarded on the basis of friendship and family.
[26]    (iii) Crown lands:  The third requirement for ensuring integrity in public life is the constitutional protection of public assets, mainly Crown or government land.  In Anguilla, Crown lands are dealt[12] with under the signature of the Governor.  The integrity of Crown land ought to be enforced by having a provision in the Constitution that any resolution to deal in any significant area of public land, say a half acre or more, is required to be brought to the Legislature for public debate and approval.  This was recommended[13] by the 2006 Commission.
[27]    (iv) Appointments Commission:  At present in Anguilla, we have a 'winner takes all' system of appointments to boards, committees and commissions.  Immediately a new government is appointed, the first order of business of new Ministers is to terminate the previous political appointees and to share out the various directorships among their principal supporters.  We cynically call it “enjoying the fruits of office”, or, ‘It’s our turn to feed.”  This system affects the Social Security Board, the Public Utilities Commission, the Health Authority Board, the Anglec Board; the Tourist Board, the Carnival Committee, even the Poor Law Board.  This process makes a mockery of the whole notion of good governance.
[28]    We need to take a leaf out of the British book, and have all public Board appointments vetted by an independent, constitutionally established body.[14].   This will go some way to ensuring that Ministers appoint only qualified persons to these positions.[15]  Given the infrequency with which the political change of Boards occurs, [16] there is no need for a separate Commission to be established to vet new Board Members.  As with most of the watchdog functions described here, this can easily and effectively be assigned to an existing office such as the Public Service Commission, once this is itself constitutionally insulated from political interference.
[29]   (v) Codes of Ethics:  When, at the request of an importuning constituent, a parliamentarian telephones the Commissioner of Police and requests that he ‘give a chance’ to a young person who has been arrested, he thinks he is responding to the needs of his community.  When the Minister gives out work permits to one favoured building contractor, but not to another who is out of favour, he says he is ‘levelling the playing field’.  When the Minister overrules a Chief Immigration Officer or a Land Development Control Committee order, he says he is only ‘showing a good heart’, and softening the harsh decisions of unfeeling bureaucrats.  But, it is quite the opposite:  he is undermining the system that has been designed for the even-handed and long-term protection of all citizens.
[30]   Good governance requires there to be a Code of Ethics and/or a Manual of Procedure for Ministers of Government.  In Anguilla, when new Ministers are appointed, so far as I know, they are not taken through any seminar or workshops on the meaning of nepotism, cronyism, and conflicts of interest.  They are left to stumble through a learning curve in our system of government.  By contrast, our public servants have developed and adopted a Code of Ethics.  So have our Judges and lawyers.  If public servants, Judges and lawyers can have binding Codes of Ethics, breach of which involves sanctions, why should not all politicians and members of public boards and committees?[17]
[31]    The British Cabinet Office has developed a series of handbooks to guide public servants and Ministers in the correct protocols they should follow.  Other Commonwealth countries[18] have excellent handbooks for Ministers, Legislators and other public officers.  These could easily be adapted for use in Anguilla.  Workshops for incoming Ministers, boards of statutory corporations, and public servants should be a regular feature of the local administration's drive to achieve good governance.
[32]    (b) Accountability. The second area of checks and balances that promote good governance, and that one would expect to see given emphasis in a modern BOT Constitution, after the general area of integrity, is that of accountability.  There are recognised devices, other than general elections every 5 years, which ensure that government is held accountable for its actions and omissions.  These are traditionally considered to be (i) the Complaints Commission;  (ii) the Police Complaints Authority;  (ii) the Human Rights Commission;  (iv) a Freedom of Information Act;  and (v) the Public Accounts Committee (PAC).  Most of these do not have to be performed by different bodies, but can be combined.
[33]   (i) Complaints Commission: This is another name for the Ombudsman.  The Ombudsman, once appointed, has security of tenure and reports only to the Legislature.  Citizens who have complaints against any government department can take their complaint to the Ombudsman.  He or she attempts to settle the dispute without resorting to court action.  If the Ombudsman finds the government department or officer unwilling to respond to his advice he can report his findings to the House of Assembly and to the public.  This public exposure to criticism from the Ombudsman and the House of Assembly is usually sufficient to cause a change in behaviour in the offending department without the need for litigation.
[34]   Without an Ombudsman or Complaints Commission, the citizen must rely for enforcing his civil rights against an unfair or biased public officer on going to Court.  And, we all know how expensive and unsatisfactory that can be.  The Ombudsman, on the other hand, is free of cost to the complaining citizen, is completely independent of any politician or public servant, and reports only to the Legislature.
[35]    The precedent of a Complaints Commission being established in our BOT Constitutions has been set in Cayman Islands;[19]  and in Montserrat;[20]  and in the TCI.[21]  It would appear that Anguillians can with reasonable certainty expect that, if we demand that a similar check and balance is inserted into any new Constitution, the FCO will have no objections. [22]
[36]   (ii) Police Complaints Authority (PCA):  At present, complaints from the public against the misconduct of a police officer are heard and determined in private by the Commissioner of Police.  This system is not transparent, and has led to public distrust.  Bermuda, Jamaica and St Lucia are examples of a West Indian BOT and two Commonwealth Caribbean countries that have introduced new statutory civilian oversight bodies known as PCAs.  These may only make recommendations to the Police Commissioner who retains the primary duty to take disciplinary action against officers.  In the UK, similarly, the Independent Police Complaints Commission[23] has the power to take over a police complaint investigation and to make recommendations to the relevant Chief Constable.  It is clearly neither transparent nor accountable when complaints against police officers are handled internally and in secrecy, as presently occurs in Anguilla.
[37]   (iii) Human Rights Commission:  One of the weaknesses of the Anguilla Constitution is that the rights of citizens and residents can only be protected by the individual at great personal cost.  The solution selected by some Commonwealth countries is to place the protection of the individual’s rights in the hands of a publicly funded institution.
[38]    There are many different types of national human rights and administrative justice institutions in the Commonwealth.  They include Human Rights Commissions, Administrative Justice Boards, Gender Commissions, Racial Equality Commissions, and Anti-discrimination Commissions.  Many of them operate in challenging environments of widespread violence, violations of human rights, military coups and dictatorships.  Such administrative justice boards are typically given broader jurisdiction and stronger powers than the classic model of the Ombudsman. Where they include the functions of the Ombudsman and the Complaints Commission they are called the ‘hybrid model’. Those in both Ghana and Tanzania are empowered to take complaints to court to enforce their recommendations if they have not been complied with in a specified period.
[39]    Among the BOTs, the Human Rights Commission has been established by the Constitution in the Cayman Islands.[24]  In Montserrat, the Complaints Commission has[25] the job of “encouraging the resolution of human rights complaints”, which is to say that in Montserrat the Commission has no power to make binding recommendations.  The TCI has recently appointed a new Human Rights Commissioner.[26]  Its functions and powers are set out in the enabling Act.[27]  The Anguilla Constitution, by contrast, has no provision for a Human Rights Commission.
[40]    (iv) Freedom of Information Act:  One long-overdue reform is the failure to enact a Freedom of Information Act (FOI Act).  Freedom of information is crucial in any democratic society.  At present, no Anguillian has the right to find out anything about decisions of and actions by government, no matter how personally important this development might be to him or her.  In Anguilla, every decision of government, every discussion document, is a State secret, and no one is entitled to any information except the Executive decides to give it out.  Under a FOI Act, each government department would be obliged to answer any legitimate question asked of it by a citizen, except for narrow exceptions, eg, a person’s confidential medical records from the Health Authority.  If a dispute arises, it is settled by an officer known as the Information Commissioner.  This is the person appointed by law to appeal to if a Department is considered to be attempting to conceal information that has been requested.  The Information Commissioner is not subject to any Ministerial direction, but reports only to the legislature.
[41]    The main obstacle to the passing and implementing of a FOI Act in Anguilla is common to most Overseas Territories.  The public administration is usually implacably opposed to it.  The reason is two-fold.  One, government is accustomed to a regime of secrecy and confidentiality.  Senior public servants fear that possible wrongdoings will be revealed by responses to requests for information under the FOI Act.  Any response may embarrass either a Minister or a public servant.  Two, the public service considers it an unnecessary burden and a waste of time to be made to provide answers to questions posed by persons who want to inquire into matters that are none of their business.  Among the Overseas Territories, the FOI Act works well only in Cayman Islands[28], though Caymanian Ministers and senior public servants frequently rail against their obligation to answer the public’s questions. 
[42]    (v) Public Accounts Committee:  This has been covered above at paragraphs [14]–[17].
[43]    (c) Transparency. The third key element of good governance is transparency.  It is the lack of transparency in our system of government that causes so many government initiatives to be suspect.  The obvious solution is to institute, at a minimum of cost, new systems that increase transparency.  These include (i) the opening up Executive Council Meetings and government committee meetings to the public and the media;  (ii) holding post-Executive Council press conferences;  (iii) insisting on the regular publication of annual departmental reports;  (iv) the appointment of civil servants, teachers and the police by independent Service Commissions;  (v) the regular revision of electoral boundaries by an independent Boundaries Commission;  (vi) providing for the appointment of a Director of Public Prosecutions (DPP) responsible only to the Judicial and Legal Services Commission;  and (vii) the exercise of the prerogative of mercy by a locally appointed Mercy Committee.
[44]    (i) Open Meetings:  Open-meetings legislation allows public access to government meetings and ensures that their decisions are transparent and publicised.  In California, for example, any government decision not made in open meeting is voidable in a court of law.  The House of Assembly merely passing an open-meeting law is not good enough.  Putting it in the new Constitution would ensure it cannot be discontinued at whim.  The old, discredited practice, probably deriving from the Official Secrets Act, of hiding every decision and action of a department of government has proven not conducive to good governance.  There is no reason why the Constitution should not contain a clause requiring all governmental meetings such as those of the Building Board and the Land Development Committee to be open to the press and public, within reason.
[45]    (ii) Executive Council Press Conferences: We should insist that Executive Council meetings are opened up to the public whenever possible.  At the least, as in the Falkland Islands and Gibraltar, post-Cabinet press conferences should be routinely held.  At these press conferences reporters are permitted to ask questions and they are broadcast live on radio and on TV.   This permits the public to be fully informed as to decisions taken in the public interest.
[46]    (iii) Departmental Reports:  Departments of government are expected by General Orders to publish annual reports for laying before the Legislature.  This requirement was strictly enforced during the earlier colonial period.  The practice seems to have fallen into disuse in many departments of government in Anguilla.  A visit to the Government of Anguilla website reveals not a single annual departmental report published on it.[29]  Members of our Legislature should be more vigilant in insisting that Ministers expose the workings of their Ministries and Departments to the people.  It would help ensure good governance if the Constitution mentioned the requirement.
[47]   (iv) Service Commissions: In Anguilla, all appointments to the public service, the teaching service, and the police service, are in the hands of one person:  the Governor.  The theory is that this mechanism guarantees the independence of the civil service and protects public officers from political interference.
[48]    Members of the public are unlikely to accept that there is transparency and fairness in public service appointments unless such appointments and related matters are constitutionally placed in the hands of a local, professional, and independent Public Service Commission (PSC), governed by the appropriate laws and regulations, and trained in the exercise of their functions.
[49]    To put Anguilla's public service appointments in the hands of an FCO functionary, who may be advised behind the scenes by those cronies that he and his superiors select as advisers, is not an acceptable alternative to an independent and professional PSC.  Good governance is never ensured by subjecting the public service to arbitrary, one-man rule.
[50]    A new Anguilla Constitution should introduce more advanced and democratic provisions for the governance of the public service.  The Governor should appoint the members of the PSC.  He should do so acting on the recommendation of various stake-holders, including the government, the opposition, and the public service itself.  The PSC should make the decisions about appointments and conditions of service of public servants.  The Governor should be required to implement their recommendations.  So long as the PSC remains emasculated as at present, with a merely consultative power, it is completely useless as an instrument of good governance.  If the complaint is that in Anguilla members of the PSC are not trained in the proper functioning of a PSC then the solution is to train them in the proper performance of their role.  If the complaint is that it will deprive the Deputy Governor of his present principal function, then the solution is to find him other functions.  This was the recommendation of the 2006 Constitutional and Elections Commission Report. [30]
[51]    (v) Boundaries Commission:  In Anguilla, there has been no Boundaries Commission appointed for several decades.  The reality is that some of our political constituencies are a small fraction of the size of others.  Good governance demands that our people have more or less equal representation in the Legislature.  There is no reason why the modern practice of having the electoral boundaries re-examined after every population census should not equally apply in Anguilla.  This was the recommendation[31] of the 2006 Commission.
[52]    (vi) Director of Public Prosecutions (DPP):  At present, the Attorney-General (A-G) serves as prosecutor in all serious criminal charges tried in the criminal assizes.  The A-G also sits in Executive Council and rubs shoulder with the Governor and his Ministers.  This is intrinsically unconstitutional in the sense of being in conflict with the doctrine of separation of powers and the rule of law.  Prosecutions should be separate and independent of government.  This is achieved by entrenching the DPP in the Constitution and guaranteeing that his actions are to be performed without interference from anybody.  This has been done in the BVI.[32]   By contrast, the reform was fudged in Montserrat. [33]  Montserrat’s constitutional provision is that during any period when the office of DPP is not filled, the A-G shall perform his functions.  The result is that the office need never be filled, and the A-G may continue to carry out prosecutions.  It will be an important reform if the Anguilla recommendation[34] for the appointment of a DPP is carried out.
[53]    (vii) Mercy Committee:  In Anguilla the Governor has the Constitutional power[35] to function without any local Mercy Committee to advise him on what to do about early releases from prison.  A foreign diplomat is unlikely to have first-hand knowledge about who deserves to have his sentence shortened or commuted.  He must rely on the advice of some unknown advisers lurking in the darkness around him.  This is a most unsatisfactory state of affairs.  The 2006 Commission recommended[36] that this power be exercised by a Mercy Committee with the Governor as Chairman.
[54]    Bermuda has the oldest continuously sitting legislative assembly in the Commonwealth of Nations, having been established in the year 1621. [37]  Jamaica has similarly passed its own laws since the year 1664.  Tortola’s House of Assembly sat for the first time in 1774.  Trinidad and Tobago have enjoyed their own elected Legislative Assembly and Executive Council since the year 1925.  These countries have stable, established democracies with long histories of self-rule.  By contrast, throughout the early years of settlement, 1650-1825, Anguilla never had a legislative assembly that could make laws.  The lieutenant governor was chosen by the senior planters and recognised by the Governor-in-Chief in Antigua in an informal manner.  His authority to govern was said by one Governor-in-Chief to depend only on the weight of his cudgel.  After the Anguilla Act of 1825 joined Anguilla to St Kitts for administrative purposes, all forms of local government ceased.  The Anguilla Revolution of 1967 began a process whereby Anguilla became entitled to make its own laws.  The British army invaded the island in 1969, and the government was run entirely by a Commissioner appointed by the FCO.[38]  After a number of strikes and demonstrations, the UK relented and in 1976 provided[39] us with a Constitution that enabled our local representatives to begin to make laws for us.  This was the year that Anguilla first obtained a ministerial form of government.  This was the year when for the first time laws were enacted after debate in the Anguilla House of Assembly.
[55]    Anguilla’s democracy may, therefore, be described as a mere baby in comparison with the more mature systems of our sister BOTs such as Bermuda and the BVI.  Our politicians and citizens have just begun the process of learning how to govern ourselves.  We have hardly begun to explore what it means to be a ‘member of the Executive’ or a ‘member of the Legislature’.  It is not surprising that there is a degree of confusion over roles and responsibilities.  One may hear a Minister say that a particular hotel enjoys customs duty exemptions “because the Executive Council has decided that it will.”  The Minister is to be forgiven for not understanding that, when the Customs Act says[40] that only the House of Assembly can grant a customs duty exemption, that means that the Minister must bring a resolution before the House to be passed before the hotel can truly be said to enjoy an exemption.  His predecessors and members of the public all labour under the same mistake.  It is to be hoped that in the years to come our democracy will mature and our people will enjoy the rights and protections under the law and the Constitution to which they are entitled.

[2]               RSA, c H15
[4]               House of Assembly (Powers and Privileges) Act, RSA c H15, sections 7 and 21 above.
[5]           These Rules were originally passed and approved under section 48 of the Anguilla (Constitution) Order 1976, S.I. 1976 No. 50.  Section 6 of the Anguilla Constitution Order 1982, S.I. 1982 No 334, provides that these Rules have effect as if they were made under the Anguilla Constitution Order 1982.
[6]               Seen most recently in nearby St Kitts where, prior to the last general elections, a political functionary of the Labour Party was appointed Speaker of the House.  He refused for more than 2 years to place on the Order Paper a Motion of No Confidence in the Prime Minister brought by the Opposition.  His obstruction permitted a minority government to extend its rule when the Motion, if it had been allowed as it should, would have caused the government to fall.  The result was that the electorate overwhelmingly turned against the governing party when elections eventually came.
[7]               Taken in large part from my Civics for Anguilla written for the Anguilla National Trust, and intended by the Trust to be a part of a longer written work, What Makes Us Anguillian.
[8]               Other than the never-prosecuted offences at sections 98-109 of the Criminal Code, RSA c C140, against bribery and corruption of public officers.
[10]             For the best modern study, see:  Derrick V McKoy, 2012. Corruption: Law, Governance and Ethics in the Commonwealth Caribbean. Hartford: Hansib Publications Ltd
[11]             No 6 of 2012.
[12]             Section 75 of the Constitution.
[13]             Recommendations of the 2006 Constitutional and Electoral Reform Commission, paragraph 162.  The Recommendations are hereinafter cited as “Anguilla Recommendation”, followed by the relevant paragraph number.
[15]             The new United Front government has published a requirement that all newly appointed Board and Committee members must attend specially designed classes at the Community College to qualify themselves for their appointment.  This is a major advance, if it turns out to be consistently applied. 
[16]             Ie, every 5 years after a general election.
[17]             If there are any Codes of Ethics binding on Ministers and Board members in Anguilla, they are not published anywhere.  A secret Code of Ethics is arguably worse than none at all
[18]             See, e.g., the excellent series published by the Government of Queensland entitled, The Queensland Ministerial Handbook, The Queensland Cabinet Handbook, The Queensland Legislation Handbook, The Queensland Protocol Handbook, and Welcome Aboard: A Guide for Members of Queensland Government Boards, Committees and Statutory Authorities.
[19]             The Cayman Islands Constitution Order, S.I. 2009 No 1379, section 120.
[20]             The Montserrat Constitution Order, S.I. No 2474, section 105.
[22]             Vigilance is called for.  The FCO successfully objected to the call for the introduction of a Complaints Commission in St Helena.
[24]             The Cayman Islands Constitution Order, S.I. 2009 No 1379, section 116.
[25]             The Montserrat Constitution Order, S.I. 2010 No 2474, section 105.
[28]             http://www.infocomm.ky/
[29]             http://gov.ai/document_library.php
[30]             Anguilla Recommendation at paragraph 60.
[31]             Anguilla Recommendation at paragraph 77.
[32]             The Virgin Islands Constitution Order, S.I. 2007 No 1678, section 59.
[33]             The Montserrat Constitution Order, S.I. 2010 No 2974, section 46.
[34]             Anguilla Recommendation at paragraph 71.
[35]             The Anguilla Constitution Order, S.I. 1982 No 334, section 76.
[36]             Anguilla Recommendation at paragraph 163.
[37]             The only older Parliament in the common law tradition is Virginia’s, established in 1619, but Virginia is not a member of the Commonwealth. The English Parliament was abolished by the dictator Oliver Cromwell in 1653 and elections to it did not recommence until after the Restoration of the Monarchy in 1660.
[38]             For the role of the FCO see Peter Clegg, 2009, Governing the UK Caribbean Overseas Territories: A Two-Way Perspective, in Peter Clegg and Emilio Pantojas-Garcia, eds, Governance in the Non-Independent Caribbean: Challenges and Opportunities in the Twenty-First Century.  Kingston: Ian Randle Publishers
[39]             The Anguilla (Constitution) Order 1976, S.I. 1976 No 50.
[40]             The Customs Act, RSA c 169, section 11.