Government's New Draft

Government’s Draft Constitution for Anguilla of 11 November 2019

Presentation to FCO Team by Don Mitchell, CBE, QC,

The various sections in the latest version of Government’s draft online Constitution which appear to be problematic in relation to both the democratisation process and the effort to improve public standards are:[1]

(1) Section 14A will expressly limit the right to marry to a man and a woman.  Same-sex marriage will be prohibited.  It is my opinion that such a limitation is morally wrong.  Concepts of fairness, equality and freedom from discrimination lean to affording the right to all of us, including our gays and lesbians.

(2) The original section 30(2) provided that when the Premier and the Leader of the Opposition do not agree on three (3) names for appointment to the office of Deputy Governor, all applications should be forwarded to the Secretary of State.  This has been altered to provide that all names shall be forwarded to the Governor for his decision.  This is an error in that it is the Secretary of State and not the Governor who makes the decision.  The Secretary of State may well consult with the Governor, but it is not the Governor who makes the decision.

(3) Section 35 now provides for a minimum of five (5) ministers of government.  There is no guarantee that the number will be increased to the recommended six (6).  The minimum should be six (6) with a transitional provision to cover the period before the Electoral Boundaries Commission does its work.  This has become necessary since the Amendment Order in Council and the Elections Act of earlier this year.

(4) Section 42(1)(a) gives the Governor responsibility for external affairs, “subject to subsection (4)”.

Subsection (3) gives the Governor power to delegate certain matters of external affairs and internal security.

Both the original section 42(4) and the Government’s proposed amendment are in error in providing for the Governor to delegate to a Minister responsibility “notwithstanding anything in subsection (3)” for the conduct of external affairs including,

(d) tourism and tourism-related matters;

(e) taxation and the regulation of finance and financial services; and . . .

None of tourism, tourism-related matters, taxation or the regulation of finance and financial services, is a matter of external affairs.  They are intrinsically internal affairs.

All matters of public finance are governed by Chapter 10 which contains mandatory standards and procedures that must be followed by Government.

Financial services are to be the responsibility of the Financial Services Commission, a constitutional body with independence of both the Governor and the political directorate.  This is the preferred way to ensure independence of such important services.  Any attempt to bring financial services under ministerial control exposes Anguilla to the risk of corruption and mismanagement.

Paragraphs (d) and (e) have no business being in subsection (4).  They should be deleted.

(5) The proposed revision of section 53 reduces the minimum number of elected members of the Assembly to eleven (11).  The minimum should be thirteen (13) with a transitional provision to cover the period before the proposed Electoral Boundaries Commission does its work.  This has become necessary since the Amendment Order in Council and the Elections Act of earlier this year.

(6) The proposed revision of section 54 removes the qualification (for election to the House of Assembly), for a person born in Anguilla, of residence in Anguilla for three (3) years prior to nomination.  A majority of Anguillians thought this was an important qualification to ensure candidates are familiar with Anguillian society and rules.

(7) The revised version of section 65, which deals with the “Right to vote at elections”, bears a note that it is “under consideration in relation to residence requirements”.  The original section was carefully drafted to ensure that only Anguillians ordinarily resident in Anguilla would be qualified to vote. 

There are presently thousands of persons who have never been resident in Anguilla, or who have long emigrated from Anguilla, to be found on the Voters List.  Under present rules they can never be removed from the List until they have died. 

A new Enumeration Year was proposed at subsection (4) to clean up the List.  Government has without explanation removed from both the Constitution and the recent new Elections Act any provision relating to a new Enumeration Year.  The AUF Administration appears to be insisting on retaining the present questionable List.

(8) It is unclear what the purpose of the proposed new section 65A is.  Its main purpose appears to be to revive the old prohibition against returning officers voting (because their presence was required at the polling station throughout election day).  The new section 68 extends to all election officers the opportunity to take advantage of advance polling.  That is the reason that the prohibition was originally recommended to be removed.

(9) Section 66 of the original draft Constitution, which provides for laws as to elections, has been altered without explanation to remove a constitutional requirement for the regulation of campaign financing.  This is a retrograde proposal.  The newly passed Elections Act also excludes it.  Anguillians are agreed that the present system of unregulated spending on election campaigns is an encouragement to bad behaviour.  This reform is part of the effort to improve standards in public life.  Removing from the Constitution even the possibility of introducing constitutionally protected campaign financing regulation into our election laws is a retrograde step.  It is not in accordance with the thrust of the new Constitution to promote higher standards of public life than presently exist.  Without such constitutional protection, any stand-alone statute would be problematic.  The new Elections Act needs to be amended or replaced.

(10)     Section 67 deals with elected members.  One of the principal reforms originally proposed is that the House of Assembly should consist of nine (9) district representatives and four (4) members elected at large, resulting in a total of thirteen (13) elected members.  Not only would this increase in numbers encourage deeper debate on legislative proposals, it would ensure that with a Cabinet of six (6) members, the Assembly would not be dominated by members of the Executive.  Government now proposes to amend the original section 67 to remove the provision for Anguilla to be divided into a minimum of nine (9) electoral districts, and to retain, at least for the present, the existing seven (7) as the minimum number.  While it is appreciated that the wording permits the future expansion of the Assembly, it is felt that it would be preferable for the wording to reflect the recommended minimum of nine (9) districts with a transitional provision.

(11)     Chapter 9 concerns institutions protecting good governance.  This is the principal measure for ensuring high standards in public life.  The Chapter heading in the Government draft bears a note that “the number and types of commissions and commissioners have not yet been agreed.”  It would be regrettable if there was any reduction in the number and types of Commissions or Commissioners.  The original draft of the Constitution already gives flexibility in suitable cases for combinations to be made.

(12)     Section 93 provides for the Financial Services Commission.  The original draft was in error in providing that the Commission would have “such specific functions and powers and a board to be appointed by the Governor all as may be set out in a law.”  There are not intended to be any directors separate from the members of the Commission.  The members of the Commission will take the place of the previous members of the Board of Directors.  In order to ensure independence from political interference, the section should provide for the Chair of the Commission and the four other members to be appointed by the Governor without any requirement to consult with anyone.  Section 102 contains the general provisions regarding Commissions.

(13)     Section 99 dealing with Anguillian status appears to have been extensively revised, but it is unclear what changes have been proposed.

(14)     Section 109 contains a note to the effect that the section is “Under review to determine whether Electoral Commission is preferable.”  The section as originally drafted provides for the Supervisor of Elections to be given protection from political interference by placing him/her and his/her officers under the direct supervision of the Governor.  It is that separation from political influence that is the objective.  If it is agreed that in addition to the role of the Governor, there is benefit in providing for an independent Electoral Commission, that would be unobjectionable other than that it would be adding belt to braces.

(15)     Section 111 (dealing with the need for disclosure to the Assembly of any proposal to dispose of or deal in public assets) bears a note that it is still “under review”.  This provision was viewed as important by many Anguillians, and it would be regrettable if it was limited in any way.

(16)     Chapter 10 deals with Public Finance.  It is a concern that the Chapter heading in the Government draft Constitution bears a note that the Chapter is still “under review”.  The Chapter was originally designed to be a principal tool for ensuring high standards in matters of public finance.  The Chapter is important in its entirety. The whole point of Chapter 10 is,

(i)           to improve standards of public life in the area of public finance;

(ii)         to take the present rules for the management of the public finances out of common legislation such as the Financial Administration and Audit Act, and the Fiscal Responsibility Act, and enshrine them in a Constitution.  The present Acts are, according to the Chief Auditor, routinely ignored, and

(iii)        to introduce into the Constitution most of the provisions of the originally UK-proposed draft Anguilla Public Finance Order 2015.  As a result of negotiations between the FCO and Government, this was never brought into effect as an Order in Council.  Any attempt to weaken Chapter 10 is to be strenuously opposed.

It is much to be hoped that as part of this reform exercise, the FCO will ensure that the Acts and supporting regulations necessary for giving effect to the Chapter 9 watchdog institutions be prepared and put in place immediately after the new Constitution comes into effect.  This is essential if there is to be any improvement in standards of public life in Anguilla.  These include (a) an Integrity Commission Act, (b) a Freedom of Information Act; (c) a Public Service Commission Act; (d) an Appointments Commission Act; (e) a Complaints Commissioner Act (or Ombudsman Act); (f) an Act for the Remuneration of the Speaker and the Members of the House of Assembly; (g) an Anguillian Status Commission Act; an Electoral Boundaries Commission Act; and a new Elections Act.

These provisions in the Constitution depend for their efficacy on the related Acts and Regulations being passed into law.  Without them, no substantive reform will have been achieved either by merely mentioning them in the Constitution or by enacting inadequate versions.

18 November 2019

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[1]              http://www.gov.ai/documents/drafts/Draft%20Constitution%20for%20Anguilla_for%20negotiation.pdf

Presentation to FCO Team

Government’s Draft New Constitution for Anguilla of 10 November 2019

Presentation by Don Mitchell, CBE, QC, former chair of the Constitutional and Electoral Reform Committee, to the Foreign and Commonwealth Office Negotiating Team (“the FCO team”)

On 10 November 2019 the Government of Anguilla published on its website its proposals for a draft new Constitution for Anguilla.  This new draft drops several earlier Government proposals for amendment, and it introduces new ones.  At no time has any effort been made by Government to explain to the people of Anguilla the changes that are proposed.

The FCO team begins consultations with Anguillians on Monday 18 November 2019.  Few persons will have had an opportunity to study Government’s new draft Constitution prior to the start of negotiations.

It is regrettable that Government made no effort to constitute a national “negotiating team” until 14 November, four days before the meetings with the FCO team begin.  This is an impossible timetable for a disparate group of people to meet.

I therefore submit these preliminary observations for the assistance of persons who will engage in these negotiations.  I apologise in advance for any errors or omissions that may be discovered.  This is due in part to the hurried preparation of this presentation.

The framers of the 2017 Report to Government (“the 2017 Report”) attempted to reflect public concerns in the draft Constitution and supporting legislation they produced.  These concerns were that the Constitution and other legislation need to be updated to increase and improve accountability, transparency and integrity in the public affairs of Anguilla.  The two main public demands for constitutional and electoral reform were improving democracy and improving standards in public life.

Improving Democracy:  The Anguillian public is insistent that constitutional steps be taken to reduce the “democracy deficit” so evident in the constitutional and electoral laws and procedures in Anguilla.  These deficits are detailed in both the 2006 and the 2017 Reports of the Constitutional and Electoral Reform Commission and Constitutional and Electoral Reform Committee.  The 2017 Report contains dozens of proposals that, if enacted, will contribute to this end.

The recently enacted Elections Act, 2019 (the 2019 Act) omits three of the most sincerely desired and widely welcomed reforms to our election procedure originally included in the draft Constitution that formed part of the 2017 Report.  These omissions were:

(1) the revision of the Voters’ List, widely perceived to be stuffed with unqualified voters, by holding a new enumeration exercise,

(2) increasing the number of districts or constituencies from seven (7) to nine (9); and

(3) introducing campaign financing regulation.

Anguillians urge that the opportunity should be taken to restore them in any new Constitution for Anguilla.  The accompanying Elections Act 2019, passed recently and which omits these provisions, should be revised.  Government’s defective Anguillian Status Commission Bill, recently published on its website, must be properly re-drafted before it is enacted.

While some of the Government-proposed changes to the draft Constitution recommended by the Constitutional and Electoral Reform Committee contained in its 2017 Report are acceptable, others are more questionable.

Improving Standards:  The second main thrust of the 2017 Report was to insist on putting binding procedures in place to raise the perceived present low standard of integrity in public life.  The lack of any effective institution of good governance in Anguilla (besides the costly one of recourse to the Court) is felt to be a major contributor to our failure in past decades to develop high standards of governance in public life.  An important aspect of these proposed reforms is the strengthening of provisions for the management of public finances.

Any proposed new Anguilla Constitution that is negotiated with the FCO team must be submitted to the people for their acceptance before the draft is signed into law.  That is the only sure way to achieve a peaceful acceptance of what up to now has been a highly unsatisfactory and acrimonious process.  That acceptance or otherwise of the new Constitution can be easily shown by a yes/no referendum.

I now deal seriatim with the various sections in the Government’s draft Constitution which appear to be problematic in relation to both the democratisation process and the effort to improve public standards:

(1) Section 14A will expressly limit the right to marry to a man and a woman.  Same-sex marriage will be prohibited.  It is my opinion that such a limitation is morally wrong.  Concepts of fairness, equality and freedom from discrimination lean to affording the right to all of us, including our gays and lesbians.

(2) Section 35 now provides for a minimum of five (5) ministers of government.  There is no guarantee that the number will be increased to the recommended six (6).  The minimum should be six (6) with a transitional provision to cover the period before the Electoral Boundaries Commission does its work.  This has become necessary since the Amendment Order in Council and the Elections Act of earlier this year.

(3) The proposed alteration to section 42(1)(a) is in error in giving the Governor responsibility for foreign affairs “except for taxation and the regulation of finance and financial services”.  Taxation and the regulation of finance and financial services are not matters of external affairs.  They are intrinsically internal affairs.  In any event, the original draft did not give the Governor responsibility for finance or financial services.  All matters of public finance are governed by Chapter 10 which contains mandatory standards and procedures that must be followed by Government.  Financial services are to be the responsibility of the Financial Services Commission, a constitutional body with independence of both the Governor and the political directorate.  This is the preferred way to ensure independence of such important services.  Any attempt to bring financial services under ministerial control exposes Anguilla to the risk of corruption and mismanagement.

(4) Section 53 reduces the minimum number of elected members of the Assembly to eleven (11).  The minimum should be thirteen (13) with a transitional provision to cover the period before the proposed Electoral Boundaries Commission does its work.  This has become necessary since the Amendment Order in Council and the Elections Act of earlier this year.

(5) The proposed revision of section 54 removes the qualification (for election to the House of Assembly) of residence in Anguilla for three (3) years prior to nomination.  A majority of Anguillians thought this was an important qualification to ensure candidates are familiar with Anguillian society and rules.

(6) There is a concern that section 65, which deals with the “Right to vote at elections”, bears a note that it is “under consideration in relation to residence requirements”.  The original section was carefully drafted to ensure that only Anguillians ordinarily resident in Anguilla would be qualified to vote.  There are presently thousands of persons who have never been resident in Anguilla, or who have long emigrated from Anguilla, to be found on the Voters List.  Under present rules they can never be removed from the List until they have died.  A new Enumeration Year was proposed to clean up the List.  Government has without explanation removed from both the Constitution and the recent new Elections Act any provision relating to a new Enumeration Year.  The AUF Administration appears to be insisting on retaining the present fraudulent List.

(7) Section 66 of the original draft Constitution, which provides for laws as to elections, has been altered without explanation to remove a constitutional requirement for the regulation of campaign financing.  This is a retrograde proposal.  The newly passed Elections Act also excludes it.  Anguillians are agreed that the present system of unregulated spending on election campaigns is an encouragement to bad behaviour.  This reform is part of the effort to improve standards in public life.  Removing from the Constitution even the possibility of introducing constitutionally protected campaign financing regulation into our election laws is a retrograde step.  It is not in accordance with the thrust of the new Constitution to promote higher standards of public life than presently exist.  Without such constitutional protection, any stand-alone statute would be problematic.  The new Elections Act needs to be amended or replaced.

(8) One of the principal reforms originally proposed is that the House of Assembly should consist of nine (9) district representatives and four (4) members elected at large, resulting in a total of thirteen (13) elected members.  Not only would this increase in numbers encourage deeper debate on legislative proposals, it would ensure that with a Cabinet of six (6) members, the Assembly would not be dominated by members of the Executive.  Government now proposes to amend the original section 67 (Elected Members) to remove the provision for Anguilla to be divided into a minimum of nine (9) electoral districts.  It proposes to retain, at least for the present, the existing seven (7) as the minimum number.  While it is appreciated that the wording permits the future expansion of the Assembly, it is felt that it would be preferable for the wording to reflect the recommended minimum of nine (9) districts with a transitional provision.

(9) Chapter 9 concerns institutions protecting good governance.  This is the principal measure for ensuring high standards in public life.  The Chapter heading in the Government draft bears a note that “the number and types of commissions and commissioners have not yet been agreed.”  It would be regrettable if there was any reduction in the number and types of Commissions or Commissioners.  The original draft of the Constitution already gives flexibility in suitable cases for combinations to be made.

(10)     Section 111 (dealing with the need for disclosure to the Assembly of any proposal to dispose of or deal in public assets) bears a note that it is still “under review”.  This provision was viewed as important by many Anguillians, and it would be regrettable if it was limited in any way.

(11)     Chapter 10 deals with Public Finance.  It is a concern that the Chapter heading in the Government draft Constitution bears a note that the Chapter is still “under review”.  The Chapter was originally designed to be a principal tool for ensuring high standards in matters of public finance.  The Chapter is important in its entirety. The whole point of Chapter 10 is,

(i)           to improve standards of public life in the area of public finance;

(ii)         to take the present rules for the management of the public finances out of common legislation such as the Financial Administration and Audit Act, and the Fiscal Responsibility Act, and enshrine them in a Constitution.  The present Acts are, according to the Chief Auditor, routinely ignored, and

(12)     to introduce into the Constitution most of the provisions of the originally UK-proposed draft Anguilla Public Finance Order 2015.  As a result of negotiations between the FCO and Government, this was never brought into effect as an Order in Council.  Any attempt to weaken Chapter 10 is to be strenuously opposed.

It is much to be hoped that as part of this reform exercise, the FCO will ensure that the Acts and supporting regulations necessary for giving effect to the Chapter 9 watchdog institutions be prepared and put in place immediately after the new Constitution comes into effect.  This is essential if there is to be any improvement in standards of public life in Anguilla.  These include (a) an Integrity Commission Act, (b) a Freedom of Information Act; (c) a Public Service Commission Act; (d) an Appointments Commission Act; (e) a Complaints Commissioner Act (or Ombudsman Act); (f) an Act for the Remuneration of the Speaker and the Members of the House of Assembly; (g) an Anguillian Status Commission Act; an Electoral Boundaries Commission Act; and a new Elections Act.

These provisions in the Constitution depend for their efficacy on the related Acts and Regulations being passed into law.  Without them, no substantive reform will have been achieved either by merely mentioning them in the Constitution or by enacting inadequate versions.

14 November 2019

The Coming New Dispensation

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.

Apologies to Lord Ahmad

Government published its draft new Constitution on its website on 24 September.  It is a perverse and distorted version of the original recommendation by the Constitutional and Electoral Reform Committee.

At the time of Government’s publication, they announced that there would be public consultations at the Teachers’ Resource Centre on 30 September and 1 and 10 October.  All members of the public were invited to attend.  They gave us just 2 weeks to register our objections and comments.  Then, it appeared, they intended to send it off to London with the good news that we all agreed to it, so could it please be now signed into law by the Privy Council.  There was no suggestion that the FCO was interested in speaking to the Opposition, far less the people, before bringing the new Constitution into effect.

A breath of fresh air, a point of light in the darkest tunnel of botched constitutional reform, has now appeared on the horizon.  It is found in a speech of the Chief Minister (by now dubbed the Premier) on 30 September reported in the 4 October 2019 issue of “The Anguillian” newspaper at page 2:

Premier Banks disclosed that a number of technical officials from the Foreign and Commonwealth Office would be coming to Anguilla, in the middle of November, to participate in another round of public consultations.  He said constitutions were very complicated documents with far-reaching implications, and certain elements of the constitution must be in sync with the laws on our books.

This is the first indication we have that the British were not entirely hoodwinked by Government into passing Government’s draft new Constitution.  They would be coming to see for themselves what our attitude is to Government’s proposals for constitutional and electoral reform.

Three things need to be noted from the above announcement by Premier Banks.

1.   He says that the British technical officers will be coming to participate in another round of public consultations.  He must mean that the FCO’s lawyers are coming to Anguilla.  He seems to be suggesting they will sit in on the existing two-week period for “public consultations.”  That is hardly likely to be correct.

2.   When the FCO visits an Overseas Territory to discuss constitutional reform, they constitute what in Anguilla’s case will be called something like “The Anguilla Constitutional Conference.”  They expect their negotiating team to meet with a local negotiating team.  They invariably demand that the local team consist of representatives of government and the Opposition.

The two teams meet across the table from each other to negotiate.  The FCO do not consider only the representations of Government’s team.  They expect the local team to be fully briefed on local expectations for reform.  The local team must be able to put forward the public’s expectations.  The FCO team will have their own demands. 

Their proposals for reform may include new matters that the local team has never considered before.  They may, for example, be quite strong on rights issues that will be new to the locals.  These will include freedom from discrimination in marriage, and the right to a clean environment, and to education.  Yes, they will want gays and lesbians to have the right to marry.  This is because that right is now recognised everywhere as the fundamental right not to be discriminated against on the basis of one’s sexuality.

3.   The Premier seems to have been misled into believing that the new Constitution will need to be “in sync” with the 2019 Amendment Order.  This is a mistake.  The coming new Constitution will set aside the 1982 Constitution along with all amending Orders in Council.  A similar erroneous suggestion was made by the Hon Minister of Home Affairs in the last meeting of the House of Assembly.

This error is our clue that the draft new Constitution published by Government on its website was not prepared by qualified legal draftspersons.  These would know that there is no need for a new Act or Constitution to be “in sync” with a previous one.  This is especially so when we are speaking about a previous amendment.  These would know that a well-drafted new instrument sweeps aside all previous instruments.  The lawmaker is not constrained by any earlier legal provision, particularly an amendment to an instrument that is being replaced.

All the evidence indicates that the new Elections Act, the Anguillian Status Commission Act, and the new Constitution on Government’s website were drafted by persons who are not experts in drafting legislation.  We can hope and demand that the FCO will insist that they all be replaced with properly drafted instruments.

It appears that both Government and the Opposition underestimated Lord Ahmad and the Foreign and Commonwealth Office.  It seems the UK officials recognise the need to consult with a representative body of Anguillians, not just a partisan incumbent Government, before making fundamental constitutional changes.  This is what the FCO normally does. 

Over the past months I have repeatedly accused Lord Ahmad of betraying Anguillians by ignoring the expected consultative procedure and going along with Government’s unilateral proposals.  This accusation may have been true about the 2019 Amendment Order.  It appears the FCO will do the right thing for the remainder of the reforms.  For doubting Lord Ahmad’s integrity in insisting on this procedure, I personally owe him an apology.

Meanwhile, a great deal of damage has been done by the 2019 Amendment Order and the Elections Act 2019.  But, if the FCO is now coming to Anguilla to meet with the Opposition as well as the Government to finalise a new Constitution, it is not too late to correct the errors.

Any new Constitution will set aside both the old Constitution and all amending Orders in Council.  The opportunity to restore the integrity of the 2017 Report’s draft Constitution and its attendant draft Acts is there. 

It is much to be hoped that the FCO will also insist that the missing Acts necessary for giving effect to the watchdog institutions be prepared and put in place immediately after the new Constitution comes into effect.  These include (a) an Integrity Commission Act, (b) a Freedom of Information Act; (c) a Public Service Commission Act; (d) an Appointments Commission Act; (e) a Complaints Commissioner Act (or Ombudsman Act); (f) an Act for the Remuneration of the Speaker and the Members of the House of Assembly; and, (g) an Anguillian Status Commission Act.

The Constitution states that these provisions in the Constitution depend for their efficacy on the related Acts being passed into law.  Accompanying these Acts would be the Regulations and other statutory instruments necessary to make the Acts work.  Without them, no substantive reform will have been achieved.

Dr Ellis Webster, as leader of the biggest opposition political party, and his team including his legal advisers, should be invited.  Mr Sutcliffe Hodge, as leader of the third party, and his advisers must be there.  Mrs Pam Webster, as the Leader of the Official Opposition in the House of Assembly, and her advisers must be included.  Without each of them being present at the table, no eventual solution will be acceptable.

If the FCO is wise, their team will insist that any proposed new Anguilla Constitution that is negotiated must be submitted to the people for their acceptance before the draft is signed into law.  That is the only sure way to achieve a peaceful acceptance of what up to now has been a highly contentious and acrimonious process.  That acceptance or otherwise can be easily shown in a yes/no referendum.