Covid-19 Border Control

Anguillians will all be aware of the police press release of Monday 25th May which sought information from the public about,

a small blue boat with white engines motoring (in contravention of Anguilla Border Regulations) which dropped four persons into the water about 150 meters from the beach.  These persons swam to shore and entered Anguilla illegally.

Now on Wednesday 27th May we see a new police press release.  It advises that,

The matter has been fully investigated by the RAPF’s Major Crime Unit.  They are satisfied having examined all the evidence and interviewed a significant number of people, that this was not an illegal landing.  But, it was a local breach of current Border Regulations by persons who are resident in Anguilla.

The Emergency Powers (Covid-19 Border Control) Regulations 2020 prohibit the operating of any boat in Anguillian waters without permission.  For example, it criminalises taking a boat ride from Sandy Ground to Blowing Point without permission.  The penalty is imprisonment for 12 months or a fine of up to EC$10,000.00.

Given that the RAPF are telling us that it was a “breach of current Border Regulations by persons who are resident in Anguilla”, it can be safely assumed that permission was not granted.  The unstated suggestion in the release is that the matter ends there.

Will these persons be prosecuted?

Or, will all charges be dropped?

I thought this law applied equally to important persons as it does to common Anguillians.

Or, is the law applied one way for friends of the elite, and another way for you and me?

The real scandal is that the Royal Anguilla Police Force does not seem to impartially enforce Anguilla’s laws.  This is not the first time it appears to take instructions on who to prosecute and who to let go.

The Hypoglycemia Defence in Anguilla

Someone asked me recently what I knew of the incident many years ago when Eric Reid knocked out Hubert Hughes in the Anguilla House of Assembly.  I was well aware of the incident.  This is what I told him.  It is quite a long story, so bear with me.

In 1981, I was representing Atlin Harrigan, the most senior electrician on the island at the time.  He came to me for professional assistance.  He had wired the buildings at the Merrywing Hotel for a recently arrived British investor, John Batson.  Batson was refusing to pay his bill for the electrical work.  He had no reason not to pay, he simply was not paying it.  It was quite a lot of money by the values of that time, about US$30,000.00 as I recall.  So, I started proceedings by writing the usual “lawyer’s letter” demanding payment in seven days, or else.

There was no response.  No letter of repudiation of the claim came back.  Nothing.  So, we started the next stage, issuing of a writ.  I paid the Bailiff to serve it on him.

A few days later, my sole secretary, Marionette Morton, called me to reception.  “Mr Mitchell, please come outside, there appears to be a problem.”  So, I exited my little chambers, and went out into the main office.  There I saw a very agitated John Batson waving the writ form at me.  He was yelling, “Did you send this to me?  Do you know who I am?  What is the meaning of this?”  I replied, very reasonably, I thought, “Mr Batson, go and see your lawyer.  I will deal with your lawyer.  I cannot deal with you.”

I then turned around and headed back to my office.  The next thing I knew, I was standing in the middle of reception facing the wrong way, and with my knuckles hurting like hell.  I turned to Marionette, who was sitting back in her chair with her mouth open and her eyes even wider open.  I asked her, “Marionette, did something just happen?”

She replied, “Mr Mitchell, you don’t know what you just did?  You punched the man in his face.  When he fell to the floor, you threw him out into the road.”  I was so horrified, I ran to the glass panes in the front door and looked out, fully expecting to see a dead John Batson with truck tire marks running over his prone body.  But there was nothing.  I opened the door and looked around.  Nothing.  He had disappeared, straight to the police station, I imagined.

I went back in and asked Marionette what had happened.  She explained everything.  She said, “When you turned your back on the man, he yelled at you, ‘Listen to me, you arsehole’.  You turned back to him with your face in a rage and hit him in his face.  When he fell down, you pulled him to the door, opened it, and threw him out.”  It must have been the adrenalin.  He weighed twice as much as I did, so it took super-human effort.  I went back to my office, sat down and trembled for the next two days waiting for the police to arrive to question us prior to bringing charges against me.  Nothing happened.  I did not know what I would tell the police.  I had absolutely no recollection of anything after I turned away from Batson and headed back to my office, until I came to myself and spoke to Marionette about why my fist was hurting so much.

Well, after a couple of days, Batson’s lawyer, Billy Herbert, sent over a cheque for the US$30,000.00.  And, that was the end of it.  Atlin used to laugh after that and say that I had discovered a new debt collection technique.

A couple of years later, I was at an International Tax Planning Association workshop in Monte Carlo.  The theme of the workshop was, “How does a busy professional protect himself/herself from the pressures and demands of clients.”  There were several sessions including professional insurance, the need for exercise, and the like.

One of the sessions was conducted by a nutritionist.  He explained to us about hypoglycemia.  I learned that if you don’t have a good breakfast then the slightest thing can set you off, and you lose your temper.  The first meal of the day is not called “break-fast” for nothing.  Your blood sugar level is at its lowest when you wake up, not having eaten for several hours.  You need to have a proper meal to bring your blood sugar to the right level.  Without it, you can’t absorb any sudden injection of adrenalin.  It could be a slamming door or a telephone ringing loudly that sets you off.  If your blood sugar level is unbalanced, a surge of adrenalin into the blood stream might set off the fight or flight instinct, and you react with excessive anger. 

This was the way one hundred thousand years ago we were able effortlessly to climb to the top of the tree in the jungle when we came around a corner and found ourselves face to face with a saber toothed tiger.  Now, it is not tigers, but a slamming door or a ringing phone that sets us off.  Or, apparently, in my case, a red-faced Englishman calling me an arsehole.

After that workshop I equipped my office with a toaster, a fridge, and a coffee maker.  When I got into the office each day between 3:30 and 4:00 am, the first thing I did was make myself breakfast.  Sometimes it was a New York businesswoman’s power breakfast.  Sometimes it was baked beans on toast.  These were some of the meals recommended by the nutritionist.  My blood sugar level seems to have been fine after that.  I never hit anyone in my office again.  And, I was now ready to take on my first hypoglycemic attack case.

Oh, and I built the concrete staircase with the wooden railings that gave access to the office at the Babrow building.  It is still there, opposite Gee Wee’s Restaurant.  You will notice that the stairs are at right angles to the door.  That was specially designed so that if I ever threw another person out of the office, the railing would prevent him from landing in the road in front of passing traffic.

A couple of years later, I had reason to put my learning about hypoglycemia to good use for the first time.  It had to do with the Minister of Education, the Hon Eric Reid, knocking out the Leader of the Opposition, the Hon Hubert Hughes, in the precincts of the House of Assembly.

At a meeting of the House of Assembly in the old House of Assembly building (presently the Statistics Department), Hubert turned his attention to Eric Reid, the Honourable Minister of Education.  Eric was also the manager of a transport company owned by Osborne and himself, Island Transport (or its predecessor).  He delivered truckloads of water to householders whose cisterns had run dry.

Hubert spent the entire morning addressing the Speaker (and the nation, as the sitting was broadcast live over Radio Anguilla) about the dishonesty of the Minister of Education, who he alleged, filled his water trucks from the public water supply pump in The Valley and by stealing water from unoccupied buildings, and then selling the water to needy householders.  The Speaker of the House who permitted this ad hominem attack was, by this time, none other than the previously mentioned electrician, the now Honourable Atlin Harrigan.

At the end of the session, Eric was walking out of the House.  Hubert was immediately behind him.  It seems that Hubert repeatedly jabbed his finger into the back of Eric’s ribs, saying, “Boy, I got you there.  I could see you were feeling it.”  Eric explained to me that he simply blacked out.  He saw red.  The next thing he knew, he was turned around 180 degrees facing the Speaker’s desk.  Hubert was lying unconscious at his feet, and his right fist was hurting like hell.  He had no idea what had happened until Chief Minister Emile Gumbs stepped over Hubert’s prostrate body and explained it to him.

Just a few months previously, Lyn Bell had asked me to represent him in the police case brought against him when he jumped a French professional tennis player and beat his face in on a car door, nearly cutting off his ear in the process.  The event was the opening of a lady barrister’s law chambers in the location it presently exists.  Lyn was attracted to the lawyer, but she at that time was more interested in the much younger French tennis coach at Malliouhana Hotel.  Lyn explained that he had been on a diet for weeks, trying in vain to regain his 18-year-old physique, when he saw the lady chatting to the Frenchman at the reception.  He lost all control and jumped the man.  He had no recollection of the incident.  Apparently, from what he was told, a wine glass held in his right hand which he used to repeatedly beat the head of the Frenchman against a car door broke, and accidentally nearly cut off the ear.

All the guests were witnesses.  These included the Governor, Ministers of Government, the Bishop who had just blessed the new office, all members of the Bar Association, and the great and good of the island.  There was no chance of us pleading mistaken identity.

Lyn was charged with several serious assault offences.  I suggested that he obtain a medical opinion on the likely effect of his fasting on his mental state when he was struck by this sight of the object of his affection chatting to his competition.  The medical report he obtained from doctors in Canada was to the effect that the patient had suffered a hypoglycemic attack over which he had no control.  He had not eaten properly for some days. 

We pleaded guilty to a relatively minor charge of common assault, and I presented to the court the medical report in mitigation.  Lyn was given a very mild sentence.  He was placed on a six months’ bond to be of good behaviour and to keep the peace.  Lyn was subsequently sued for damages in the High Court, and he accepted liability for an amount of damages in the area I told him the court was bound to give in any event.

Anyway, Eric was charged with a variety of offences.  They included the offence of “an assault within the precincts of the House of Assembly.”  This charge incurred a mandatory penalty of exclusion from the House of Assembly for a period of one year.  This was a serious situation for a legislator and a Minister of Government to find himself in.  He could not afford to miss meetings of the House for an entire year.  He would have to resign as a Minister.  He was also charged with offences of common assault.  After discussion with Eric, we offered to plead guilty to the lesser offence of common assault.

Because of my experience with John Batson and with Lyn’s case, I had a good idea what had happened to Eric.  However, Eric did not have the means to acquire the expensive medical report that Lyn had obtained.  But he managed to get a local one.  This explained that he was a diabetic.  His blood sugar level was affected.  He was subject, when placed under extreme stress, to a hypoglycemic attack which would induce the flight or fight syndrome over which he had absolutely no control.  Any violence he exhibited would have been entirely outside of his control.

Despite his lack of control, we could not plead “not guilty because of the hypoglycemic attack”.  That is essentially a plea of temporary insanity.  Politically, insanity, temporary or otherwise, would have been unacceptable.  So, we offered to plead guilty to common assault.  The attorney-general, Richard Whitehead, accepted the plea deal.

I had only two authorities upon which to base my argument that Eric was entitled to a light sentence.  One was suggested to me by my cousin, David Carty, Eric’s political adviser.  It was the Biblical story of Jesus seizing a strap and whipping the money changers from the Temple.  The other was the speech of Iago in which he declaims, “Who steals my purse steals trash; ‘tis nothing … but he that filches from me my good name robs me of that which not enriches him and makes me poor indeed.”

I argued in mitigation that if Jesus himself could lose his temper, then so much an ordinary man.  There was such a thing as legitimate anger.  And, that, just as with Iago, the theft by Hubert of Eric’s good name was the greatest offence that could be imagined.  It was not surprising that, with his medical condition, he just lost it and struck out.  He should be excused.

Magistrate Roop Sharma put Eric on the same bond, to keep the peace for six months and be of good behaviour.  Eric later asked me what that meant.  I explained that he was prohibited for a period of six months from cuffing Hubert again.  He had no problem after that attending the House of Assembly.  And, Hubert never gave him reason to strike him again.  Indeed, years later, when Hubert was Chief Minister, I have known Eric to be in Hubert’s office sitting at his side assisting with the interviewing of prospective investors in the island.  There were no permanent hard feelings on either side.

Anguilla's Prospects

We in the West Indies are screwed by this Covid-19 pandemic.

Most of our islands rely on tourism as the “engine that drives our economy”.  Well, tourism is dead for years to come.  Most of our airports and seaports are closed until further notice.  Even if we reopen our ports soon, the visitor won’t be able to arrive if his/her home ports are shut.  Even if you can get into our island, you will still have to be quarantined here for 14 days.  Fortunately, you can be self-quarantined in your hotel room.  But, when you get back home, most countries also require another 14-day quarantine.

Anyway, only a very desperate person would risk going on an aeroplane for the foreseeable future.  As for cruise ships, only the most reckless or ignorant and uninformed would take the suicidal risk of going on one for the next several years.  Cruise ships are presently banned from Caribbean ports, but if one is permitted entry, eg, for food and supplies, it is on condition that not one person lands.

Our hotels won’t re-open for another year or two.  There is no hope for the coming 2020-21 tourism season.  When the hotels open, there will be no guests arriving.  By, January 2021 all tourism workers will have been let go (most in Anguilla at least, are presently at home on at best half-pay).  The 2021-22 tourist season will not occur.

Our ministers have announced they will cut their salaries by 15% and all public servants by 10%.  What they have not announced is that within 12 months, the numbers of public servants will be cut by 50%.  Those who remain will serve at 50% of their present salaries.  With raging unemployment spreading in the community, I fear for the coming civil disturbances.

My amateur analysis predicts that 100% effective vaccinations will not be widely available for another two years.  Dr Fauci's eighteen months is pure optimism.  There will be little or no international travel during that time.  After that date, and until the disease is declared eradicated, airplanes will fly at one-third their capacity. Most non-legacy airlines such as Ryan Air, West Jet, and Virgin, will disappear.  On the surviving airlines, fares will be three or four times the present levels.  There will be very few airlines flying tourists to the West Indies for the next several years.

Hotel tourism will take at least another four or five years to begin to recover.  Cruise tourism will take another six or seven years.  Most hotels, guest houses, restaurants and water sports will soon be bankrupt and closed.  Internationally, the next two Olympics will be cancelled.  Football, cricket, baseball matches, and other sporting events locally and internationally will limit admittance by the public.

China will own and run Asia, Africa, South America and the Caribbean by the end of this pandemic.

Sea level rising will cause half the population of Bangladesh to attempt to emigrate to Copenhagen.

To me, it is as clear as the sky over a closed-down capital city.

Just be grateful that we of the 60s and 70s age-group grew up in the post-pill, pre-AIDS era.

Postponing Elections by Order in Council

The Anguilla (Coronavirus) (General Election Postponement) Order 2020 (the “2020 Order”), was made on 3 April by the Privy Council in London.  I understand it is being questioned in the Anguillian community.  Well, I have now read it, and these are my thoughts on it.

Anguilla is a colony of the United Kingdom.  We used to be semi-independent under the West Indies Act of 1967 and the St Kitts, Nevis, Anguilla Constitution made under it.  We were part of the Associated State of St Kitts, Nevis and Anguilla.  This status was designed to be a prelude to full independence. 

After Anguilla seceded from St Kitts-Nevis in 1967, the British undertook direct administration of us.  They sent in the army.  They invaded us in 1969 at the request of the St Kitts government.  The St Kitts administration thought Britain would force us back into their fold.  But instead the British promised us they would never oblige us to return to an administration we did not want.

They administered us, as they were legally obliged, under the limitations set out in the West Indies Act.  Anguilla theoretically remained a part of the Associated State until the British Parliament enacted the Anguilla Act 1980.  It was in this year that St Kitts-Nevis went into independence and gave up all claim to Anguilla.  The Anguilla Act made Anguilla a direct colony.  It permitted the British Government to rule us by Order in Council.  Section 1(2) of the Act provides:

(2) Her Majesty may by Order in Council make such provision as appears to Her expedient for and in connection with the government of Anguilla.

The first Order in Council made under the Anguilla Act was the Anguilla Constitution Order, 1982, (the “1982 Constitution”). The 1982 Constitution is a colonial Constitution.  It can be amended at any time by the British Government passing a new Order in Council.  This is what distinguishes our Constitution from the Constitution of an independent Commonwealth Caribbean Country.

Once Dominica or St Lucia gained their independence, the British Parliament no longer had the legal power to pass legislation for them.  The British Government cannot use an Order in Council to change any law in Dominica or St Lucia.

The Constitution of an independent nation is supreme.  No other law can alter or amend it.  The Constitution of a colony, by contrast, is a subordinate Constitution.  The Constitution of Anguilla is not the supreme law of Anguilla.  It binds only the Anguilla government and the Anguilla House of Assembly.  The British government and Parliament are not bound by it.  The British Parliament can make any law for Anguilla.  The British Government can make any Order in Council for Anguilla under the Anguilla Act.

The British are not strictly bound to seek our permission to extend an Order in Council to us.  They have promised us, by assurances given at various Joint Ministerial Conferences over the years, that they will not generally pass an Order in Council applying to us without consulting fully with us.  But they reserve the right to do so without our permission when they deem it necessary.

First, let us be sure we understand what the 2020 Order did.  If, and when, it comes into effect, it will temporarily disapply section 64 of the Constitution.  Sections 63 and 64 of the Anguilla Constitution govern the calling of general elections.  They provide:

Prorogation and dissolution

63. (1) . . .

(2) The Governor, acting after consultation with the Chief Minister, may at any time, by Proclamation published in the Official Gazette, dissolve the Assembly.

(3) The Governor shall dissolve the Assembly at the expiration of five years from the date when the Assembly first meets after any general election unless it has been sooner dissolved.

General elections

64. There shall be a general election at such time within two months after every dissolution of the Assembly as the Governor shall by Proclamation appoint.

The scheme of the original 1982 Constitution is clear.  The Premier can at any time during his five-year term of office ask the Governor to dissolve the Assembly and call general elections.  If he wants to seek a new mandate early, he can call for new elections after a year or two.  The Governor is not obliged to follow his wishes.  He may act on his request, or he may decline to.  There are long standing conventions that guide a Governor (and his employer, the Foreign and Commonwealth Office), as to when to do as the Premier asks, and when to refuse.

One is that, if the Premier requests a dissolution of the Assembly a short time after the previous general elections, the Governor may refuse.  He may be reluctant to put the people through another bruising political campaign so soon after the last.  On the other hand, if elections are just around the corner, the Governor will probably let the Premier have his way.

The Premier can wait out his full term of five years.  If he does not ask the Governor to dissolve the Assembly, the Governor must do so on the fifth anniversary of the first sitting of the House of Assembly after the last general elections.

The present Assembly held its first sitting after the last general elections on 11 May 2015.  So, applying the above rules, if the Premier does not call for an earlier dissolution, the Governor is obliged to do so by 10 May 2020.  Once the Assembly is dissolved, the Governor must cause the general elections to be held at any time within the following two months, ie, by 10 July at the latest.  That date of 10 July was the deadline facing the Premier when Covid-19 caused the World Health Organisation on March 12 to announce that we were facing a pandemic.

In the face of this disease spreading to all corners of the earth, and three diagnosed imported cases in Anguilla, the administration decided to shut down the island.  The ports were closed, and we were instructed to practise social distancing, frequent handwashing, and near total self-isolating in our houses.  Mass meetings, including church attendance, were banned.  In such circumstances, including the possibility that health conditions would not improve before the 10 July date, the obvious question arose, what to do about the coming general elections.

By early March, the administration decided to postpone the elections.  The official reason given was to preserve public health.  People could not be asked to take the risk of standing in long lines to cast their vote.  Other factors came in to play.  If US ports remain closed to international travel in July, the present administration would not be able to bring in the vast numbers of off-island supporters it relies on to win elections.

At the time of the 2015 elections, the population of Anguilla was about 13,000 souls.  A significant proportion of any country’s population consists of children.  Children can’t vote.  Yet, there were 10,908 registered voters on the Voters List, just short of the total resident population.  A significant proportion of these voters must reside outside of Anguilla.  With our system of continuing voter registration, the present number on the Voters List in 2020 will be thousands more.

The Opposition has long argued that many of these registered voters were never qualified to be put on the Voters List.  They were put there over time by influential politicians who, under the lax rules that prevailed in previous years, persuaded the elections officers to add their foreign-resident supporters to the List.  These are persons who can be depended to vote for their sponsor if their trip to Anguilla is paid for.

For decades, people have commented on the multiple planeloads of supporters of the present administration who are flown into the island from overseas shortly before each general election is held.  We know they are coming in to vote for their party representative.  The present administration is the only party organization on the island with the financial resources to be able to fly in large numbers of persons to vote every five years.

Local belief has it that the flu, of which Covid-19 is a variety, usually dies back in the summer, and is most virulent during the autumn, winter and spring.  It was common talk during February and March of this year that the administration would do everything it could to postpone the general elections until the late summer.  This, it was argued, was felt by the administration to be essential if there was to be any chance of US airports being open.

So, it was inevitable that the administration would seek a way to postpone the looming elections.  The question was, how to do it?  There are only two ways.  First, to proceed locally under the Emergency Powers Act, RSA E045, or, second, through British action by using an Order in Council.

The administration has power to postpone elections if a state of emergency exists.  Section 14 of the Anguilla Constitution permits the Governor to declare that a state of emergency exists.  The section reads:

Derogations from fundamental rights and freedoms under emergency powers

14. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 3 or section 13 of this Constitution to the extent that the law authorises the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation that exists in Anguilla during that period.

Under section 14, even our fundamental rights can be suspended.

Section 17 of the Constitution sets out how the Governor declares a period of public emergency.  It reads:

Declaration of emergency

17. (1) The Governor may, by Proclamation which shall be published in the Official Gazette, declare that a state of emergency exists for the purposes of this Chapter.

(2) A declaration of emergency may at any time be revoked by the Governor, by Proclamation which shall be published in the Official Gazette, and, unless sooner revoked, shall, without prejudice to the making of a further declaration in like manner, expire at the expiration of ninety days from the date on which it was made.

So, a state of emergency exists only for a period of ninety days unless the Governor makes another order extending it.

Unlike, say, the United States, a state of emergency is not declared to permit federal funds to be spent on state needs and expenses.  A state of emergency under our Constitution is not declared because a disaster has occurred and there is a need for vast sums of money.  A state of emergency is declared only when there is a need to suspend part or all of the Constitution to permit the administration to take some action that would otherwise be unconstitutional.

The law that has been passed in Anguilla governing the declaration of a state of emergency is the Emergency Powers Act, RSA E045.  This Act regulates declarations of periods of emergency under section 17 of the Constitution.  It authorises the Governor, in case for example, of a pestilence to declare that a state of emergency exists because of a flu pandemic that threatens the health of the public if they should gather together in crowds, such as exist around the polling stations on election day.  In such circumstances, he could legally declare the elections postponed to a later date.

The second way to postpone elections legally is by asking the British government to create an Order in Council postponing the elections.  This procedure is a little more hazardous for the local administration.  You can never tell what the British may insist on putting into the Order.  By comparison, you control what the Governor is asked to declare in case of a public emergency.

In the event, the British were persuaded to pass the 2020 Order.  It is not yet in force.  Section 1(4) provides:

(4) This Order comes into force on such day as the Governor, acting in his or her discretion, may appoint by proclamation in the Official Gazette.

The commencement date has been left hanging.  The Order will come into force only if the Governor by Proclamation declares it to be in force.

Section 2 is the operative section.  It is quite short.  It provides:

2.— (1) Paragraphs (2) and (3) apply in relation to the first general election in Anguilla following the commencement of this Order.

(2) Section 64 of the Constitution (General elections) does not apply.

(3) The Governor shall, acting in his or her discretion, by proclamation published in the Official Gazette, appoint a date for the holding of the first general election to the Assembly following the commencement of this Order, and such date shall be not later than four months after the dissolution of the Assembly.

The implications are clear.  First, the Constitution has not been permanently amended.  It is amended only in relation to the date for the next general election if, and when, the Governor brings the 2020 Order into force. 

Second, at that point, the timetable found in section 64 of the Constitution will not apply.  That is the section which provides that the elections must be at such time within two months after every dissolution of the Assembly as the Governor shall by Proclamation appoint.

Third, the time is extended to four months after the dissolution of the Assembly.  Section 63 still applies.  So, if the administration does not advise the Governor to dissolve the Assembly at an earlier date, the Governor must dissolve the Assembly on 10 May, as previously explained.  However, the present Administration may continue to operate for another four months instead of the previous two.  That means that at the latest, the next general election must be by 9 September.

The question that is taxing everyone’s mind is why did the administration prefer an Order in Council over a declaration of a state of emergency.  There are several possible reasons.  The first is that such a declaration might be damaging to the tourist industry.  Travel agents will not be inclined to send their customers to a country living under a state of emergency.  Tourism is Anguilla’s main industry.  Everything must be done to avoid damaging it.

The second has to do with local politics.  The administration must be aware that, once the original date of 10 May passes with no case of Covid-19 in Anguilla, though it continues overseas, complaints will begin to be made that the elections were unnecessarily postponed.  There is a risk of serious civil discontent.  If the state of emergency continues past 10 May, the administration will not be able to avoid blame for the postponement.  On the other hand, if the delay was caused by an external force, it is easier for the Administration to shrug off blame.  The administration will be able to say, “We did not do it.  The British did.  Go, take your complaint to the British.”  On such transparent tricks and gimmicks elections in Anguilla are fought and won.

I conclude by pointing out what in my opinion is bad about this Order in Council.  The British Foreign and Commonwealth Office (the FCO) has responsibility for ensuring our good governance.  The FCO has repeatedly assured us that they will not tinker with our Constitution without first ensuring that the people have been consulted.  Except in the most extreme circumstance, eg, matters of national security, no Order in Council should be extended to Anguilla without prior consultation.  The FCO Ministers have repeatedly promised this to us at Joint Ministerial Conferences over the years.  We have an expectation that this rule or principle will be religiously followed.  The people of Anguilla were not consulted by either our administration or the FCO prior to this instrument being signed.  The fact that it was requested by our government is not a substitute for the promised prior consultation with the people.

One might argue that this interference with the Constitution was so minor that it does not deserve quarrelling with.  That is not the point.  If we allow our administration without protest from us to negotiate with the FCO behind our backs to alter our Constitution without prior discussion with us, then a precedent is set.  We will find it difficult in the future to complain when more substantial changes are made without consulting us.  There was no urgency that required this Order to be made without consultation.  The elections are months away.  The fact that the Opposition appears to have colluded with the administration in orchestrating this attack on our expectation of a right to prior consultation adds insult to injury. 

Is it only me who has forebodings of bad intentions on the way?  I have a premonition of more dangerous and unexpected constitutional changes around the corner.  The risk is that they will be made, and we will only learn about them after they have come into effect.

Julian Assange

There is a report on Day 1 of the Assange Extradition Hearing in London earlier today that I believe every freedom-loving person should read. 

It is not my report, but rather a publication of the distinguished, retired British diplomat and historian, Craig Murray:

https://www.craigmurray.org.uk/archives/2020/02/your-man-in-the-public-gallery-assange-hearing-day-1/ 

He encourages us to give his report the widest circulation.

When you have done reading the article, see also the comments at its foot.

Ronald and Labour

I will tell you what happened.  You take from my story what you want.  Feel free to discard the rest.

In late 1980, I was in the last of my four years as Magistrate, Registrar of the Supreme Court, and Registrar of Companies of Anguilla.  Reginald Lucie-Smith was the Attorney General, and at that time the only other lawyer besides me in the public service.  Ronald Webster’s party was victorious at the polls.  He was the new Chief Minister.  He dropped into my office at the Courthouse unannounced.  He explained that he had a little job for me.  Reggie was on vacation.  In Reggie’s absence, Ronald decided that he wanted me to draft a law for him to make trades unions illegal in Anguilla.

His mind was on St Kitts and Antigua.  During the 1940s, 50s and 60s, strong trades unions were, with the help of the British Labour Party, established in those islands.  They formed political parties and sought political office.  They were successful and pervasive.  It took some forty years before any other political grouping challenged their hold on power.

Ronald was determined not to allow this to happen in Anguilla.  He had previously been forced out of office by a splinter group of his party.  He considered he had crushed them in the general elections of earlier that year.  The tourist industry was beginning to take off in Anguilla.  More and more workers were going into that industry.  He was concerned that they might become organised.  He recognised that worker organisation might pose a threat.  He feared trades unionism becoming a contending political force in Anguilla.  His solution was to pass a law banning trades unions.  I told him I would have a go at drafting it for him.

After a few days, I went to see him empty handed.  I told him that I had done the research.  Britain had signed up to a Geneva Convention that made it illegal for a country to criminalise trades union activities.  The Constitution was against him.  It protected the fundamental right of Anguillians to associate together in unions.

Ronald was not fazed by my failure.  He had a back-up plan.  He would create a Labour Department that would be so pro-worker that no trades union would ever be needed in Anguilla.  He would make sure that his administration was so protective of workers’ rights that it would never occur to them to form a union.

And so was born the Labour Department Act and the Fair Labour Standards Act.  Ronald next secured the passage into law of the Social Security Act.  Employers and workers contribute to a fund.  The fund provides sickness benefits and pensions to workers in the private sector, like the arrangements then existing only for public sector workers.  And so, Ronald accidentally completed Anguilla’s workers’ protection scheme.

Minimum Wage Law

Until about the year 1978, Anguilla offered its people little by way of wage labour.  The first modern hotels (as distinct from family-owned and -run guest houses) were Cinnamon Reef, Cul de Sac and Malliouhana.  These pioneers were obliged to train their own labour force, since there was no previous hospitality industry to do so for them.  Indeed, Leon and Lyane Royden famously bought the Cul de Sac hotel from the aging Ruth Goodnow to use as a training school for their staff for their soon-to-be-opened Malliouhana Hotel.  Once the Malliouhana opened, they sold the Cul de Sac as no longer needed.

Hotel workers accepted whatever salary was offered by these early employers.  Previously, the women had been unemployed housewives, or, in the case of the men, salt pickers, fishermen and construction workers.  If the wage offered was unsatisfactory, the worker could always resign.  There were plenty others to take his or her place.

As the years passed, a corps of trained front office, housekeeping, and restaurant staff grew in the island.  Grumbling began about wages and other work conditions.  Starting in the mid-1980s, political parties seized on the minimum-wage issue for electioneering purposes.  Both the island’s two main political parties took up the refrain.  They both promised to introduce minimum wages during their term of office.  Despite setting up committees to conduct research and produce reports, nothing concrete came of it.

What was preventing the passage of the appropriate law?  The cynic answers that the big hotels were major contributors to party campaign funds.  In this way, they captured each administration.

A little research reveals another kettle of fish.  It seems that the major (foreign-owned) hotels pay well above the average, when share of gratuity is factored in.  Every hotel and restaurant guest pays a 10-15% tip, service charge or gratuity, on top of their bill.  This money is typically pooled and controlled by a workers’ committee at each place of employment.  The gratuities are usually distributed to the workers on a point-based system.  This share of gratuity forms a substantial part of each worker’s remuneration.  In many months, I understand, it exceeds the basic pay.

Many locally owned hardware stores, groceries, restaurants and guest houses are fair and generous to their workers.  But there are exceptions.  Here is where most employee complaints come from.  Foreign hotel owners don’t have the vote.  Local employers do.  Guess which ones each government is more afraid of offending by introducing minimum wages.  Each time there is an initiative to introduce minimum wage legislation, it is lobbying by local employers that stops progress.

The Gig Economy

Ronald’s intention was to have the Labour Department stand between worker and employer, and always favour the worker.  To this end, mandatory mediation and conciliation procedures were introduced by his new labour legislation.  A Labour Commissioner was appointed, empowered by law to descend on any allegedly offending employer and demand to see the books.  The Labour Commissioner could disrupt the work of the employer and call meetings of the workers.  Through “conciliation” the Commissioner could persuade employers to make concessions satisfactory to the workers.

If the Labour Commissioner was not successful in mediating the dispute, there was a statutory provision for the Minister of Labour to intervene to “conciliate” the dispute.  The Minister of Labour was usually the Chief Minister, a powerful office.  The Minister of Labour was the person who issued work permits, a necessity for foreign-owned hotels and restaurants.  There were occasions when members of staff were dismissed for gross misbehaviour such as stealing, and either the Labour Commissioner or the Chief Minister forced a backdown and reinstatement of the worker.

Due to these and other abuses, employers cast about for a method to free themselves from the more tiresome aspects of local labour.  Replacing them by foreign labour was not a good solution.  The Minister of Labour could not always be persuaded to issue the needed work permit in time.  The solution hit on was to alter the relationship between worker and employer so fundamentally that the oppressive provisions protective of workers no longer applied.  Convert long-term employees into short-term employees on annual contracts.  At the beginning of each new tourism season, make previous employees apply for employment afresh.  They might or they might not be offered employment, on the same or different conditions.  This solution required official approval, or at least condonation.  Some foreign employers got it.

Anguilla is not the first country to find employers replacing full-time staff with short-term contracts, usually of one year.  This arrangement is often referred to as the “gig-economy.”  A gig, an abbreviation for “engagement”, originally described short-term employment in the entertainment industry.  A musical band going on tour would require temporary electricians, stage carpenters, and electronic technicians, to accompany them.  They were said to be doing a gig.  At the end of the gig, these short-term employees would be released from their employment.  A gig worker was not a permanent employee, but instead classified in employment law as an independent contractor.  Consequently, there were no pension costs or holiday pay obligations as with permanent employees.  Unless the Social Security Act was amended, as was done in the UK but not in Anguilla, there was no obligation for the employer of an independent contractor to contribute to the social security scheme.

Slowly, hotel by hotel, Anguillian hotel workers were re-classified as “self-employed” and placed on one-year or shorter contracts.  Any recalcitrant worker need only be endured until the end of the contract and then, without risk or cost, be permanently let go.  The fierce anti-firing procedures originally developed by Ronald became redundant. 

This arrangement is of no benefit to the worker.  It is solely created for the benefit of the employer.  It does not benefit society.  In the event of termination after several years of steady employment, no severance-type benefit applies, since this was merely an annual contract.  If the hotel is sold, the new owner is not obliged, as the law requires for permanent employees, to take on the employees on the same or better terms, since these are annual contracts. 

This annual contract arrangement would be illegal under the provisions of the Fair Labour Standards Act, if the Act was strictly enforced.  The Act was quietly ignored.  There was no trades union to take up the interests of the workers.

Government squeezed one concession out of the major employers.  Without special provision in the law, an employer of an independent contractor is not legally obliged to pay social security contributions.  No such provision was made in the law in Anguilla.  Even though it was not strictly legally required, the short-term contract employers in many cases agreed to continue to make the social security contributions in return for enjoying the benefits of being able to classify their workers as independent contractors and not as employees.  And so, with a minimum of expenditure and cost, most of Ronald’s scheme for protecting Anguilla’s workers was dismantled.

The new Labour (Relations) Act of 2019 is touted to bring changes to employer/employee relations in stages in the coming years.  Will it bring real reforms to Anguilla?  Or, will it become dormant like so many other legislated social reforms before it?