The Government of Anguilla is about to
negotiate a new Constitution for Anguilla.
The British negotiating team is arriving, according to the Premier, in
mid-November. They will confer with the
Anguilla negotiating team. They will
agree a new Constitution that will affect the lives of all Anguillians for
decades to come. The question is, will
Anguillians be kept apprised of the negotiations? Or, will the administration negotiate a new
Constitution in secrecy? The latter is
probable for three reasons.
One, the British Foreign and
Commonwealth Office (“the FCO”) prefers secrecy as a matter of course. They govern a colony with the least friction
by concealing their hand until the last moment. Two, Premier Victor Banks is notorious in Anguilla for keeping his people in
the dark about his decisions. He
frequently admonishes his ministers, even in public, to keep quiet about what
is going on. Three, there is a long history of
the Anguillian public being kept unaware about impending government
changes. Neither the British nor the
local administration has ever kept the people informed of what changes are
being made in the arrangements for their governance. This modus operandi is not likely to
change.
Those of us of a certain age
remember the processes followed for bringing the 1976 and the 1982 Constitutions
into effect. In each case, it involved
great secrecy and a minimum of Anguillian involvement. The reason for this is clear. So long as you don’t let Anguillians know in
advance what is about to happen to them, they will be quiet as lambs. Only let them know, and then you have a lot
of explaining to do. There was no Report
published even at the conclusion of either set of previous negotiations.
The procedure for adopting the
1976 Constitution was notable. At that
time, Anguilla was still officially a part of the Associated State of St Kitts,
Nevis and Anguilla. Ronald Webster was
Chief Minister of Anguilla. He was happy
to leave the negotiations with the FCO to Bernice Lake QC and Dr Billy Herbert,
both constitutional law experts. It was
not difficult for them to work out with the lawyers at the FCO an Associated
State type constitution for Anguilla.
After all, technically Anguilla was still a part of the Associated State,
though being administered on a day-to-day basis directly from London.
An Associated State was one
where the local administration was theoretically responsible for all local
decisions of government. Britain was
responsible only for foreign affairs and defence. That was the law under the West Indies Act
of the British Parliament. So,
Anguilla’s 1976 Associated State Constitution was one that in theory gave us
semi-independence. That was not the
preference of the FCO. But they had no
choice at that time. They were bound by the West Indies Act. They were anxious
to change the regime to give the FCO more direct control of us and our affairs.
The chance came in February 1980
when the People’s Action Movement political party (“PAM”) won the general
election in St Kitts and Nevis. The
Labour Party, from the time of Robert Bradshaw, had placed obstacles in the way
of Anguilla’s separation. PAM came to
power on a platform promising independence for that two-island state. Anguilla would return to Britain. Dr Kennedy Simmonds, the leader of PAM, was
the new Premier (February 1980 to July 1995).
Dr Billy Herbert, who lived part-time in Anguilla, was his legal
adviser. In Anguilla, Emile Gumbs was
Chief Minister (February 1977 to May 1980).
He was succeeded by Ronald Webster (May 1980 to March 1984). Webster’s legal adviser was the same Dr
Billy Herbert.
In February 1980 when Dr
Simmonds came to office, Lord Carrington was the UK Secretary of State for
Foreign and Commonwealth Affairs (May 1979 to April 1982). Carrington’s position was that so long
as Anguilla was a dependency of Great Britain, then Anguilla’s existing
Associated State Constitution was an anomaly.
It meant that the Anguillian government was free to get up to mischief, while
Britain retained ultimate responsibility for covering any costs incurred. It was preferable, from the British point of
view, that, so long as Anguilla was a British dependency, British officials have
full legal authority over the government of Anguilla.
Dr Simmonds was amenable to
letting Anguilla go. The previous
three-island Associated State could be abolished. He would take St Kitts and Nevis into full
political independence. These two were
the last of the Associated States in the West Indies. All the others had long gone
independent. Only the confusion with Anguilla
was holding up independence for St Kitts-Nevis.
It was time to negotiate a new colonial Constitution for Anguilla while
letting St Kitts-Nevis go. The three administrations
of St Kitts-Nevis, Anguilla, and the UK were agreed on this.
Ownership of the island of Sombrero
had vested in St Kitts since the year 1951 when it was transferred out of
Tortola’s control. The British Board of
Trade (the “BoT”) paid the salaries and pensions of the Anguillian
lighthouse-men. The BoT was responsible
for maintaining the light that shone the way to the Panama Canal and through
the Anegada Passage. These were major
shipping lanes for British merchant shipping since early colonial times. The BoT saw the opportunity to regain full
legal control of Sombrero after St Kitts became independent. Bringing Sombrero under British management
was easy. Transfer ownership to Anguilla. Since St Kitts was going independent from
Britain, it was appropriate for Britain to retain control of Sombrero through
the agency of the British Overseas Territory of Anguilla. The trick was to do the separation so that
the Kittitian public were not alerted and given the chance to protest at their
loss of territory.
The United Nations Convention
on the Law of the Sea was then being negotiated. Whoever owned Sombrero would acquire an
additional 200 miles of exclusive economic zone.
Anguilla would benefit in fishing and mineral rights (if only
potentially) from the acquisition of Sombrero.
In exchange for a generous separation payment, Dr Simmonds had no vested
interest in continuing to own Sombrero.
The trick was done by silently including Sombrero in the definition of
Anguilla in the 1982 Constitution. It
was omitted from the definition of St Kitts-Nevis in their Constitution. So, Anguilla quietly acquired legal title to
Sombrero. There was no fanfare. From the view of the British, Kittitian, and
Anguillian administrations, public discussion would only have muddied the
waters.
The bringing into effect of
the 1982 colonial Constitution of Anguilla was shrouded in even more secrecy
than the 1976 one. Under it, Anguilla
would lose all pretence of being responsible for her internal affairs. The FCO, through its appointed Governor,
would legally hold full power over the executive and the law-making functions. He would appoint ministers from among the
locally elected members of the House of Assembly to assist him in his duties.
The first the Anguillian public
learned of an impending new Constitution was an announcement on the radio news
bulletin less than one week before it came into effect (1 April, All Fools Day). Secrecy was guaranteed. There was then no internet, no social media, no newspaper, nothing but the government information service.
The government-owned Radio Anguilla was the only broadcasting
station. By the time a few Anguillians
managed to acquire a copy of the Constitution and read it, it was already a fait
accompli.
The omens are not good this
time for transparency and public discussion about a new 2019 Constitution for
Anguilla. A few weeks ago, Premier
Victor Banks made an announcement at a town hall meeting. It was reported in a long article tucked away
in the 4 October 2019 issue of
“The Anguillian” newspaper. He stated in effect that the British team is coming to negotiate our new Constitution in
mid-November. That was the first and
only public announcement of this momentous development that any of us has heard
of. Most of the Anguilla negotiating
team apparently consists of Government supporters. They are tasked with negotiating a new
Constitution to come into law by December 2019.
So far as I am aware, no opposition party has been
invited to participate. The lone
independent member of the House, who serves as the Leader of the Opposition, will
probably be invited as an outnumbered token.
One evangelical preacher will probably be included to argue against a
fundamental right for gays and lesbians not to be discriminated against.
The FCO preference is always for
negotiating with a wide-based local team.
But it is not realistic for us to imagine they will tell the Anguillians
how to represent their own people. They
are not likely to repudiate a local negotiating team put forward by the
Government as representing all Anguillians, just because they suspect it is
biased and partisan.
The Anguillian and British teams
will negotiate in confidence, if not sworn secrecy. As in 1976 and 1982 we will wake up one day
to discover we are governed under a new dispensation. How close this will be to the recommendations
made by the 2017 Report of the Constitutional and Electoral Reform Committee is
anybody’s guess. Personally, I think it
will not be very close. And, the point
is we won’t know about it until it is done.
I give both the administration
and the FCO due notice. If they adopt
this flawed process, it will not bode well for the peaceful administration of
this Territory. To restore order after a
future administration comes into office, it will probably be necessary to
negotiate the constitutional arrangements all over again. That will be such a waste of precious time
and effort.
