ANGUILLA HOUSE OF
ASSEMBLY POST-ELECTION SEMINAR
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
-----------------------
WHAT IS PARLIAMENTARY PRIVILEGE?
[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.
Privileges
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.
STANDING
ORDERS
[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.
RULES OF DEBATE
[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.
SELECT COMMITTEES
[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.
STANDING COMMITTEES
[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.
CHECKS AND BALANCES[7]
[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.
CONCLUSION
[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
[3] Taken and adapted from:
[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.
[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.
