Engaging
Civil Society Organisations in the Work of the Public Accounts Committee of the
House of Assembly of Anguilla –
Proposals
by the Constitutional and Electoral Reform Committee for Reform.
-------------------------------------------------------------
As
we all know, Anguilla is at the beginning of another constitutional reform
exercise, the fifth since David Carty’s Committee started considering the
matter in June 2000. The new AUF
Government set up a Constitutional and Electoral Reform Committee in September
2015 to revise the various reports and draft constitutions prepared in the past
15 years by the earlier review bodies. Its
membership consists of all the senior lawyers, and representatives of every
political party and movement in Anguilla.
I have the honour to be its chair.
We are working at assimilating all the existing Constitutions of other
British Overseas Territories in the West Indies and the various suggestions for
reform that have been made by earlier Commissions and Committees. Our plan is to come to the public and to the
Government with a discussion draft for a new Constitution within a few months’
time.
The Committee was set up by Government in
fulfilment of its 2015 Election Manifesto.
Section 8 of the Manifesto promised as follows:
Section 8: GOVERNANCE,
SECURITY, IMMIGRATION, CITIZENSHIP
CONSTITUTIONAL
AND ELECTORAL REFORM
Vision
2020
A revised constitution will be
introduced, the electoral system will be reformed and expanded, democratic
participation will be increased, the political climate will be improved, conduct
in the House of Assembly will improve and participation in the democratic
process will be increased.
PRINCIPAL
STRATEGIC OBJECTIVES
1)
Increased
constitutional autonomy.
2)
A
reformed and updated electoral system.
3)
Greater
public participation in governing Anguilla and in determining policies.
PROGRAMME
PRIORITIES
i) Introduce a revised and improved
constitution within 24 months
ii) Update and modernize the elections
system.
iii) Increase public input into determining
national polices laws, strategies and plans.
iv) Develop a local government system in
Anguilla’s villages and constituencies.
v) Institute an ongoing public education
process for greater self-rule and independence.
vi) Review and revise the Rules and Procedures
of the House of Assembly to limit abuse of its privileges and improve its
operations.
These
promises are, essentially, the mandate of the present Constitutional and
Electoral Reform Committee.
Professor Simeon McIntosh has described[1]
constitutional reform as an event which should address the most profound issues
about constitutional essentials and basic justice. It is, he suggests, a sort of re-enactment of
the founding of the Constitution. It
requires a critical engagement with the constitutional past. It will examine both what the constitutional
framers accomplished and what they failed to accomplish. To do this, we need to seek out the most
appropriate ends or purposes for which the text was constructed, and to work
within that framework.
Constitutional reform is, therefore, not a
revolutionary act. It does not seek a
radical transformation of the character of the Constitution. Nor does it seek to abandon the primary
principles of the Constitution. The
process properly places itself in a continuity of the temporal development of
the legal order. It helps us to better
realise the substantive values already present in the legal order. It makes changes or corrections that
experience has revealed to be required either by justice or for the general
good. It helps us to strengthen the
political values to which we have committed ourselves. It adjusts basic constitutional values to
changing political and social circumstances.
The process seeks to reform our basic institutions in order to remove weaknesses
that have come to light in practice. The
existing structures must, therefore, be changed only to the extent that
experience has shown it to be required by political justice or the general
good.
One of these political institutions that we
seek to reform in order to achieve increased political justice and promote the
general good is the Public Accounts Committee of the Anguilla House of
Assembly, or the PAC.
The PAC is a standing committee of the
Assembly. It is one of the most important
institutions for good governance in our system of government. Yet, it is notorious that the present
Constitution does not refer to the PAC at all.
A search of the Constitution of Anguilla, 1982[2] will not
find any mention even of the term “public accounts”. Indeed in the entire Constitution, there is
only one mention of the word “accounts”, and that is in section 79, which
reads:
Chief
Auditor
79. (1) There shall be a Chief Auditor whose
office shall be a public office.
(2)
The accounts of the Assembly and all government departments and offices
(including the Public Service Commission) shall be audited and reported on
annually by the Chief Auditor, and for that purpose the Chief Auditor or any
person authorised by him in that behalf shall have access to all books,
records, returns and other documents relating to such accounts.
A
similar search for the word “committee” finds no mention of the PAC. Indeed a search for the word “standing” finds
lots of “notwithstandings”, but no mention of any standing committee at all. From the section we see a provision that the
Chief Auditor audits the public accounts and reports annually, but it is not
clear who he reports to, or what happens to his report.
For the first time in the history of
Anguilla’s public accounts, Government last year published the Report of the
Chief Auditor on the accounts of Anguilla.
They were for the year 2011. In
prior years, it was the invariable practice of Government to shelve the report
which was never to be seen by any member of the public. A perusal of the certificate of the Chief
Auditor on the accounts for 2011 reveals the atrocious state of the public accounts
of Anguilla. He reports, in effect, that
not one department of the government of Anguilla appears to keep proper
accounts. They could not show him where
all their income comes from nor where their money goes to. He reports that there are at least four
different accounting systems in use in government, and none of them talks to
the other.[3]
We find the PAC mentioned only in Rule 66A of
the Legislative Assembly (Procedure) Rules 1976,[4] having
been inserted there by an amendment to the Rules in 1992. This provides:
Public
Accounts Committee
66A.
(1) There shall be a
Standing Committee of the House of Assembly to be known as the Public Accounts
Committee.
(2)
The Public Accounts Committee shall consist of not less than three nor more
than five members of the House, drawn from both sides of the House, whose
appointment to the Committee shall be moved by a resolution of the Minister of
Finance and subject to the approval of the House.
(3)
The House of Assembly shall from time to time appoint a Member of the Committee
who is a member of the Opposition in the House to be Chairman of the Committee
and may appoint another member of the House to fill any vacancy in the
membership of the Committee occurring from time to time.
(4)
The duties and powers of the Public Accounts Committee shall be as follows—
(a)
to ascertain that the authorised expenditure during each financial year,
including supplementary expenditure, has been applied to the purposes
prescribed by the Legislature;
(b)
to scrutinise the causes which may have led to any excess over authorised
expenditure, and to verify applications of savings on other authorised items of
expenditure;
(c)
to make an effective examination of public accounts kept in any Department of
Government; and
(d)
to summon any public officer to give any information, or any explanation or to
produce any records or documents which the Committee may consider necessary in
the performance of its duties.
(5)
The Minister of Finance may provide office and secretarial facilities to the
Committee.
(6)
The Public Accounts Committee shall submit its reports to the House from time
to time.
From this, we deduce that under the present
constitutional arrangements the PAC has no express authority to involve Civil
Society Organisations (CSOs) in its work.
Its membership is prescribed, and it has no power to co-opt. This structure severely limits opportunities
for the PAC to invite into its meetings the expertise existing outside its
membership, and which may assist the PAC in its work. It is not clear if it has the power to summon
a Minister to answer questions.
Additionally, its work is limited to examining the accounts of
government departments. Its resources
depend entirely on the good-will of the Minister of Finance.
As we all know, this session of the House of
Assembly of Anguilla is the first in which a PAC has been properly established
under the chairmanship of the Hon Pam Webster MLA, Leader of the
Opposition. Attempts have been made in
earlier sessions of the Assembly to establish the PAC, but other than the Chief
Minister naming a member of the Opposition in the Assembly to be chair of the
PAC, no meeting of the PAC has ever produced any work product. The Anguilla public have great hope that the
PAC will now begin to function in the way in which it was intended.
The Constitutional and Electoral Reform
Committee has been giving a great deal of thought to the question of the
establishing of the PAC within any reformed Anguilla Constitution. Perhaps the most important weakness in our
existing Constitution has been the lack of any institutions protecting good
governance. The absence of the PAC is
only one instance of this void. There
are few or no provisions in the Constitution that are designed to ensure
accountability, transparency and integrity.
We know, particularly from events in recent years in the Turks and
Caicos Islands, how important such provisions would be. The TCI have gone a long way to filling the
gaps in their new Constitution, and we can learn a great deal from examining
and adopting where possible some of their new institutions.
The Committee is preparing a draft discussion
document which, although it is not finalised, is not a confidential document,
and which the members of the Committee are happy to share with any member of
the public at any time, as we work to bring it to a more polished form prior to
engaging in public discussion. If you
read it, you will notice that it contains a number of matters relevant to the
PAC.
We are proposing that the PAC should take
centre-place in any new Constitution. The
present draft provision for the PAC is taken directly from the Turks and
Caicos Constitution. It is found at
section 119 of the discussion draft. Its
ten subsections read as follows:
Public
Accounts Committee[5]
119. (1) There
shall be a Public Accounts Committee of the House of Assembly which shall
consist of:
(a) at least three members of the House appointed by
the Speaker from among members who are not Ministers; and
(b) two persons expert in public finance who are not
members of the House, one of whom shall be appointed by the Speaker and one of
whom shall be appointed by the Governor acting in his discretion.
(2) the Chairman of the Public Accounts Committee
shall be a member of the House of Assembly in opposition to the Government
(without prejudice to the appointment of other such members to the Committee).[6]
(3) A person appointed under subsection (1)(b) shall
cease to be a member of the Public Accounts Committee:
(a) at the expiration of the period for which he was
appointed;
(b) if he becomes a member of the House of Assembly;
or
(c) if the person who made the appointment revokes
it, acting in his discretion.
(4) If in respect of any item of business before the
Public Accounts Committee the Governor, acting after consultation with the
Speaker and the Chairman of the Committee, considers that a member of the
Committee has a conflict of interests, the Governor, acting in his discretion,
may appoint another person (whether or not a member of the House of Assembly)
temporarily to replace that member of the Committee for the purpose of dealing
with the business in question, and a member so replaced shall not sit on the
Committee when the Committee is dealing with that business.
(5) The Public Accounts
Committee shall examine and report to the House of Assembly on:
(a) the reports submitted
to the Committee by the Chief Auditor under section 122 of this Constitution;
and
(b) such management letters
and reports of the Chief Auditor as have been submitted to the Committee or as
have been laid before the House or as the Chief Auditor has brought to the
attention of the House;
and shall have and exercise such other functions, and shall
operate under such procedures, as may be prescribed by this Constitution or as
may be prescribed by Act or by Standing Orders.
(6) The Public Accounts
Committee shall have power to compel the production of documents and evidence
from Ministers, departments of government and public officers, and shall meet
in public.
(7) The Public Accounts
Committee shall report to the House of Assembly by the date set by the House or
by its terms of reference, whichever is the earlier; and except as otherwise
provided in the Committee’s terms of reference, such a report may be with or
without recommendations.
(8) If the House of
Assembly adopts a report of the Public Accounts Committee, and requests the
responsible member of the Cabinet to advise the House of the action proposed to
be taken by the Government in respect of the report, the member concerned shall
convey the Government’s response to the House not later than the first sitting
day following the expiration of six weeks after the date of the House’s
request, unless the House extends the time for the response.
(9) The Chief Auditor shall
be adviser to the Public Accounts Committee, and the Committee shall not meet
without the presence of the Chief Auditor or his nominee.
(10) The Public Accounts
Committee may invite any person to assist it in its work and to participate in
its proceedings.
These provisions involve the following
innovations for the Constitution:
(a) The Speaker and not the Premier has the
responsibility under section 19(1)(a) for establishing the PAC. The thinking behind such a proposal appears
to be that it has been found necessary in some countries to remove the
establishment of the PAC from the portfolio of the Premier, as a political
decision might be taken to starve the PAC of resources in order to stifle its
work;[7]
(b) Civil society is introduced into the
membership of the PAC by section 19(1)(b) providing for the Speaker and the
Governor to name two persons with accounting expertise to its membership;
(c) As is evident from subsection (9), the
Chief Auditor is essential to the proper functioning of the PAC, and his or her
presence, or that of his or her nominee, is required for the PAC to meet. The thinking behind this provision may be
that in some countries the operation of the PAC has been dictated entirely by
political considerations and there may be a need to ensure the
professionalization of its deliberations;
(d) Subsection (10) is perhaps the most
relevant to the discussion here today.
This expressly provides the PAC with power to co-opt expertise from
civil society, which would include CSOs.
The proposed discussion draft presently
contains two different provisions for the establishment of the office of the
Chief Auditor. The more detailed is the
first, taken from the Turks and Caicos Constitution, while the second is
more skeletal and is taken from the Virgin Islands Constitution. They presently both read as follows:
Audit[8]
122.
(1) The Chief Auditor shall audit and report on the public accounts of
Anguilla, including the House of Assembly, the courts, the institutions
protecting good governance, and any public corporations or other public bodies
or organisations established by or under any Act.
(2)
For the purposes of subsection (1):
(a)
accounts shall be provided by the authorities referred to in that subsection to
the Chief Auditor within four months of the end of each financial year; and
(b)
the Permanent Secretary Finance shall, as soon as practicable after the end of
each financial year, cause to be prepared for submission to the Chief Auditor a
statement of accounts reflecting the financial operations of the Consolidated
Fund and any other public fund or account for that financial year.
(3)
The Chief Auditor and any person authorised by him shall have a right of access
at all reasonable times to all such documents as appear to him to be necessary
for the purposes of conducting an audit under subsection (1), and shall be entitled
to require from any person holding or accountable for any such documents such
information and explanation as he thinks necessary for those purposes.
(4)
Each year the Chief Auditor shall, as soon as practicable and in any case
within four months of receiving the accounts under subsection (2)(a), submit to
the Public Accounts Committee of the House of Assembly a report of the accounts
audited by him under subsection (1) for the immediately preceding financial
year, and shall send a copy of each report to the Governor, who shall publish
the audited accounts and report as soon as practicable.
Alternatively, as provided for in the Constitution
of the Virgin Islands:
Audit[9]
122.
(1) There shall be a
Chief Auditor whose office shall be a public office.
(2) The
accounts of the Assembly and all government departments and offices (including
all Commissions and individual Commissioners) shall be audited and reported on
annually by the Chief Auditor, and for that purpose the Chief Auditor or any
person authorised by him in that behalf shall have access to all books,
records, returns and other documents relating to such accounts.
(3)
The Chief Auditor shall submit his reports made under subsection (2) of this
section to the Speaker of the Assembly who shall cause them to be laid before
the Assembly; and the Chief Auditor shall also send a copy of each report to
the Governor.
(4)
In the exercise of his functions under this section, the Chief Auditor shall
not be subject to the direction or control of any other person or authority.
(5)
Within one month of the laying of a report before the Assembly, the Speaker
shall cause such report to be published in a widely accessible form.
Both
the Turks and Caicos and the Virgin Islands versions include these reforms:
(a) the role of the Chief Auditor is more
clearly defined; he now has an enlarged responsibility to audit all the public
accounts of Anguilla;
(b) in the TCI version, but not in the VI
version, the public authorities are constitutionally mandated to provide their
accounts to the Chief Auditor within 4 months of the end of the financial year;
(c) in the TCI version, the PS Finance is
given the constitutional duty to supply the Chief Auditor with the accounts on
the operation of the Consolidated Fund as soon as practicable after the end of
each financial year, while in the VI version the provision is merely that the
Chief Auditor has access to all books and records of all department and
offices;
(d) in the TCI version, the Chief Auditor is
given a 4-month deadline to provide his report to the PAC and the Governor, and
the Governor is required to publish it as soon as practicable. In the VI version, the Speaker is required to
publish it within one month.
Whichever version is preferred, the proposed
section 122 falls within a new Chapter 10 of the Constitution which will deal
with public finance and good governance issues.
While the PAC is a committee of the Assembly and could logically be
placed within Chapter 6 which deals generally with “Powers and Procedure in the
House of Assembly”, and where the provision for Standing Committees is located,
the members of the Committee consider its role in protecting the public
finances of Anguilla so fundamental that we believe it is better placed in the
proposed new Chapter 10 which contains ten provisions protecting the public
accounts. The PAC is one of the most important
of these provisions.
In this Chapter 10, we also locate the provisions
taken from the draft Order in Council circulated in September of last year and
which was designed to provide for mandatory good governance in matters of
public finances in Anguilla. We also
propose that Anguilla make provisions for an Appropriations Committee; for
funding the institutions found in Chapter 9 that will be established to protect
good governance; for the appointment and functions of the Chief Auditor and
Accountant General; and for the remuneration of the Speaker and other members
of the House of Assembly to be provided for.
Needless to say, the Committee welcomes the
members of the PAC and all concerned citizens and well-wishers of Anguilla
examining our draft proposals, and critiquing them and offering suggestions for
improvement. The Committee aims to
finish its deliberations within a matter of a few months, to take the proposals
to the public for the widest discussion, and to submit its recommendations to
Government before the end of the year.
If you would like to see how the work on the discussion draft is
proceeding, I should be happy to share the latest draft with you if you would
email me at the address below.
A presentation made at a workshop
organised by the Public Accounts Committee of Anguilla and held at the House of
Assembly on 6 April, 2016
[1] Simeon C.R.McIntosh: Caribbean Constitutional Reform:
Rethinking the West Indian Polity. (Kingston: The Caribbean Law Publishing
Company, 2002) pages 53-61.
[2] SI 1982, No 334, as amended.
[3] This report is not available for you to read or download on the
government’s otherwise admirable website, but I can email you a copy if you
request it.
[4] SRO 10/1976, as amended.
[5] As recommended by paragraph 126 of the 2006 Report of the
Constitutional and Electoral Reform Commission. Based on section 122 of the Turks and
Caicos Constitution 2011, SI 2011, No 1681
[6] Note that section 70 provides, among other things, that the PAC
is a Standing Committee of the Assembly, and the Leader of the Opposition shall
be Chair of the PAC.
[7] In this context it may be worth noting that the proposed new
section 118 requires the PAC each year to submit to the Appropriations
Committee of the Assembly a bid for its budget for that financial year. The Appropriations Committee meets in public
to scrutinise each bid. It reports to
the Assembly which may pass or reject the recommended PAC budget, which then
forms part of the Appropriation Act for the year. If the bill is repeatedly rejected by the
Assembly, the Governor may over-ride it by causing a bill for the budget to be
published in the Gazette and assenting to it.
[8] Taken from section 126 of the Turks and Caicos Constitution
2011, SI 2011, No 1681.
[9] Based on section 109 of the Virgin Islands Constitution 2007,
SI 2007, No 1678.
