Events Subsequent to the
Delivery of the Report of the Constitutional and Electoral Reform Committee of
Anguilla
The
Committee was established by letter from the Hon Minister of Home Affairs in
September 2015. Members of the Committee
were,
Don Mitchell, CBE, QC, Chairperson
John Benjamin, QC
Hon Evalie Bradley
Keesha Carty
Arielle Gaskin
Marie Horsford
Colville Petty, OBE
Stanley Reid, OBE
Allister Richardson
Kristy Richardson-Harrigan
Conrad Rogers
Statchel Warner
The
Committee became functus when it completed
its task and delivered its final Report to Ministers of the Executive Council
of Anguilla in March 2017, after a year and a half of work. The Committee disbanded at that point and has
never met since.
Government has not shared any views with the
Committee until late last week Friday 26 October when members were sent a draft
Order in Council prepared by the FCO proposing amendments to the 1982
Constitution, correspondence between the Chief Minister and the FCO, and a
press release indicating the draft Order in Council was to be presented to the
House of Assembly on the following Tuesday 30 October.
When the Committee delivered its Report to
Ministers, it reminded them that the Report (and its first draft of a new
Constitution that would incorporate all of its recommendations) was the result
of extensive public consultation. The
Report had the approval of the overwhelming majority of Anguillians who had
participated in the exercise by correspondence, attending meetings, and by
posts in social media. If, therefore,
they were unable to accept any part of the Committee’s recommendations, it was
incumbent on them to go back to the people and explain their rationale for
omitting or altering any of the proposals, particularly if they affected the
institutions protecting good governance (Chapter 9) or the provisions for
securing the public finances of Anguilla (Chapter 10). They appeared to understand and accept that
responsibility.
The Hon Minister of Home Affairs has now
shared with the Committee and the public some of the correspondence between the
Hon Chief Minister of Anguilla and Lord Ahmad of Wimbledon, Minister of State
for the Overseas Territories, on amending the Anguilla Constitution. In particular we have seen,
(a) Mr
Banks’ letter to Lord Ahmad of 29 June 2018;
(b) Lord
Ahmad’s letter to Mr Banks of 17 July 2018;
(c) Mr
Banks’ letter to Lord Ahmad of 13 August 2018; and
(d) Lord
Ahmad’s letter to Mr Banks of 16 October.
In his letter to Lord Ahmad of 29 June Mr
Banks proposes that constitutional reform should proceed in two stages. The first will deal mainly with a number of
issues for electoral reform, while the more substantial proposals for reform
are to be left for a second stage. At
the top of page 3 of his letter, Mr Banks states,
“It is proposed that when this phase is near
completion, that our respective Governments will commence discussions in
relation to the second phase. I have
therefore attached the report of the Constitutional and Electoral Reform
Committee for your perusal of the recommendations, most (but not all) of which
have been accepted by our Government.”
It is the final sentence that causes the most
concern. Mr Banks states that his
government has not accepted all of the recommendations of the Committee. But, he nowhere hints which of the recommendations
he has not accepted. He does not
acknowledge that he must take any proposal to vary the Report and
Recommendations of the Committee to the people whose views are reflected in the
Committee’s Report.
Lord Ahmad responds to Mr Banks by letter of
18 July 2018. He writes,
“Noting your comment that not all the
Committee’s proposals have been endorsed by your government, I await your
further views on the Committee’s proposals for this second stage.”
By
this language, Lord Ahmad shows that he is aware that the government of
Anguilla cannot unilaterally decide to vary the recommendations of the
Committee. But, he appears unaware that
the Committee is presently completely without any authority to agree changes. Changes will require the consent and
agreement of a substantial portion of Anguillians. That is a role for Government. They want to make changes. They should go to the people and explain what
changes they want, and attempt to secure the consent of the people to those
changes.
Let us hope and trust that Lord Ahmad will
remind the Anguilla government that any changes to the Recommendations must be
put to the people, discussed with the people, and their consent and agreement
secured. This can be done in the same
way that the Committee went about discussing the original proposals with the
people, explaining them, taking their views into account, and finally arriving
at a point where the Committee could be confident it had the consent of a
majority of the people who participated in the exercise.
We must hope that the FCO will not be
complicit in any effort by any Anguilla administration to water down the
“checks and balances” provisions, the “watchdog measures” and the “institutions
promoting good government” that the Report recommended be installed in any
revised new Constitution.
One possible outcome of this imbroglio may be
that the Anguilla government will persuade the FCO to sign this Order in
Council giving them more jobs and positions and generally making the
politicians happy, and the exercise will end there. If either the local government or the FCO are
unhappy with some of the good government provisions that they propose be left
for the second stage, then if government is not able to secure the consent of
the people, the reform project will die a silent death.
Given the proven skill of the local
authorities in creating elaborate smoke screens and running rings around UK
officials, we should not be holding our breath.
The frustration of the good government proposals may well be the main
object of this exercise. Only time will
tell.
