The Fourth Constitution
Anguilla’s fourth modern Constitution was the Anguilla (Administration) Order 1971. It made provision for the Commissioner to work in consultation with the Anguilla Council. This was to consist of seven elected members and up to six nominated members. The role of the Council was not spelled out in the Order, and the Commissioner was vested with complete legal control of the island. Mr Godber gave the Anguillians the assurance that the constitutional arrangements would be reviewed after three years. Anguillians accepted the Order as a temporary settlement even though it was within the framework of the Associated State. They recognised that it was setting the stage for the eventual separation of Anguilla from the rest of the State.
The Anguilla Council of 1972
The first general elections under the Administration Order took place on 24 July 1972. The result was the election of the fourth and last Anguilla Council. Their complete lack of power caused them to go on strike against the Commissioner. The situation was diffused by introducing a committee system whereby certain members of the Council became chairmen of departmental committees. However, when after three years the promised constitutional review did not take place, the Council went on strike again (for a period of fourteen months). Only when the British Government agreed to constitutional concessions did the Council resume work.
The Fifth Constitution
In 1976, Anguillians began to be governed under a new Constitution. It had been negotiated by the Anguilla Council with representatives of the British Government during the “strike” of the previous year. It came into effect on 10 February 1976, and was Anguilla’s fifth Constitution of the modern era. It provided for the first time for a Ministerial form of government. The Executive Council comprised a Chief Minister and two other ministers and two ex-officio members, the Attorney-General and the Financial Secretary. It was chaired by the Commissioner. There was provision for a Legislative Assembly comprising the Commissioner as Speaker, three ex-officio members, namely the Chief Secretary, the Financial Secretary, and the Attorney-General, and not less than seven elected and two nominated members. The Commissioner was to consult with Executive Council in the formulation of policy and the exercise of all powers conferred upon him by the Constitution. However, he was not obliged to consult with respect to external affairs or internal security, nor on matters relating to the public service. This system extended to the local representatives some of the forms of power while ensuring that the British official retained the substance of power. As Petty puts it in his Where There’s a Will There’s a Way, “The Anguillians had fought for direct British Colonialism and they got it in heavy doses.” The 1976 Constitution recognised Anguilla to be still a part of the Associated State of St Kitts, Nevis and Anguilla. However, it was to be separately administered by Britain until such time as the constitutional crisis between Anguilla and the rest of the State could be resolved.
General elections under the 1976 Constitution were held on 15 March 1976. Mr Webster was named Chief Minister, with Emile Gumbs and Albena Lake-Hodge his two ministers. Hubert Hughes was the lone opposition member. By early 1977 Mr Webster had lost the confidence of his government, and when at a 1 February 1977 meeting of the Legislative Assembly Mr Hughes introduced a motion of no confidence only Mr Webster did not support it. The Commissioner revoked Mr Webster’s appointment. Due to the short period that had passed since the previous elections, and because the majority of the Assembly supported the appointment of Emile Gumbs, the Commissioner did not call new elections, but instead appointed Emile Gumbs to be the new Chief Minister. This government lasted until the general elections of 28 May 1980 when Mr Webster and his supporters won six of the seven seats, only Emile Gumbs of the previous administration retaining his seat.
The Anguilla Act 1980
In February 1980, the St Kitts Labour Party administration of Premier Lee Moore was defeated at the polls. The new premier, Dr Kennedy Simmonds, made it clear that his administration would put no obstacle in the way of change in Anguilla and the Anguillians should be free to decide their own constitutional future. The result was the Anguilla Act 1980 which empowered Her Majesty to separate Anguilla from the State on a day appointed by Order in Council. The Anguilla (Appointed Day) Order duly appointed 19 December 1980 as the day on which Anguilla ceased to be a part of the territory of the Associated State of St Christopher, Nevis and Anguilla. The 1980 Anguilla Act is typical of the statutory provisions which enable modern colonial government by the UK Government. It permits the Privy Council to make Orders in Council for Anguilla, and for Anguilla to be given independence whenever its people so request without further involvement of the British Parliament.
Mr Webster’s government of May 1980 lasted for barely a year before internal dissension brought it down. After a short period of political instability, he advised the Commissioner to dissolve the Assembly and to hold general elections on 22 June 1981. Mr Webster won his seat and had the support of four of the newly elected representatives. The Commissioner asked him to form the new government. One of the objectives of the new government was to negotiate with the British Government for constitutional advance. Mr Webster was particularly concerned to ensure that the Constitution said that in the event of another vote of no confidence the Commissioner could not appoint a new Chief Minister but must call general elections.
The possibility of constitutional advance was limited in view of the position of the British Government that if a territory aspired to autonomy it must call for independence and set a timetable. It was made clear that Associated Statehood was out of the question, and that any aspiration to such a status would be considered only in the framework of a call for independence.
The Sixth Constitution
There was no public consultation before the replacement of the 1976 Constitution agreed to in secret by the Anguilla Government. The new Constitution came into effect on 1 April 1982 barely a week after it was first seen by the public. This process stands condemned as one of the most egregious acts of disdain by both the local government and the Foreign and Commonwealth Office for public opinion in Anguilla. It is Anguilla’s sixth modern Constitution. The position of Commissioner was renamed “Governor” and the Legislative Assembly now became the “House of Assembly”. Additionally, the Commissioner (Governor) ceased to sit as a member of the House of Assembly and the Speaker of the House was chosen by the House and not by the Governor. By one view, the 1982 Constitution contains only minor changes to the 1976 Constitution. Another view criticises it as the abandonment of our previous system of full internal self-government, and a craven submission to naked colonial administration.
The 1982 Constitution left the Governor’s reserved powers virtually intact, though he was now required to consult the Chief Minster on matters relating to internal security and the public service. The Governor also had reserve power to legislate and to administer in case public order has broken down and a state of emergency exists.
Anguilla Constitution (Amendment) Order 1990
In line with local demands for increased autonomy, and after the new 1982 Constitution had been working for only three years, on 2 August 1985 the House of Assembly passed a motion for the Governor to set up a Constitution Review Committee. This Committee was appointed by the Governor in October 1985. The result of the work of this Committee was the Anguilla Constitution (Amendment) Order 1990. It provided for the creation of the office of Leader of the Opposition and alteration of the definition of Belonger Status. The 1982 Constitution as amended is the Constitution under which Anguilla is governed to this day.
Anguillians appeared by and large satisfied that the 1982 Constitution gave them what they want: a degree of autonomy, with external forces at hand (in the form of a British warship) for the defence of the island, and its representation overseas by the Foreign and Commonwealth Office. The utility of a British passport to facilitate international travel, study, and work is generally appreciated. Interest in discussing reform is limited to politicians, lawyers and a few others who take a special interest in these matters.
Partnership for Progress
In 1992, the new Labour administration in London set about making new proposals for the relationship of the UK with the Overseas Territories. In March 1999, the British Government published its Partnership for Progress Report. This was a major policy document that set out the parameters of the relationship. The Secretary of State reiterated the four principles that underlie the partnership as:
First, our partnership must be founded on self-determination . . .
Second, the partnership creates responsibilities on both sides . . .
Third, the people of the Overseas Territories must exercise the greatest possible control over their own lives . . .
Fourth, Britain will continue to provide help to the Overseas Territories that need it . . .
One of the principal outcomes of the Report was the renaming of British Dependent Territories citizenship as British Overseas Territories citizenship, and the grant to all BOT citizens of full British citizenship. The Report makes it clear that Britain’s links to the Territories should be based on a partnership, with obligations and responsibilities on both sides.
Chapter 2 of the Partnership for Progress Report sets out the rationale for constitutional review at this time:
The governance of the territories must have a firm basis. Democracy, human rights and the rule of law are all as relevant in the Overseas Territories as elsewhere. The principles which should underlie modern constitutions are clear. There must be a balance of obligations and expectations, and both should be clearly and explicitly set out.
In March of 2000, there were general elections in Anguilla. The party that came to power was the Anguilla United Front (AUF). In its manifesto it had made a number of promises that involved constitutional reform. These included abolishing the nominated members, increasing the number of ministers, reviewing the provisions for the exercise of responsible government and ministerial authority by elected members, reviewing the policy and law relating to “belongership”, developing codes of conduct for politicians, ministers and members of the Assembly, creating the office of Ombudsman, etc. All these matters involved some sort of constitutional change.
The David Carty Report
In June 2000, the new AUF Government appointed Mr David Carty to lead a committee to further the party’s promise of constitutional reform contained in its manifesto. Mr Carty selected a number of island luminaries and intellectuals to assist him in the preliminary work of heightening awareness of constitutional issues in the Anguillian community. Mr Carty eventually published a report, but nothing tangible came of it.
The 2006 Commission
In January 2006, a Constitutional and Electoral Reform Commission was set up by the Governor in Council. The Commission produced a Report in August recommending a number of changes and modernizations to the Constitution.
The 2006 Report was considered by a Chief Minister’s Committee of all the elected members of the House of Assembly and a number of recommendations for accepting the Report with alterations were made, but the Report never made it to the House of Assembly, and very little tangible came of it. At the last meeting of the Chief Minister’s Committee, the Chairman of the Commission and Mrs Lolita Richardson were asked to draft a Constitution that would show how the recommendations would be given effect.
The Mitchell draft
In March 2008, the Chairman of the Chief Minister’s Committee circulated his draft of the proposed new Constitution based on the 2006 Report.
Lolita Richardson’s draft
Mrs Richardson circulated a draft Constitution in mid-2009. Her draft made significant alterations to the recommendations of the 2006 Commission which had not been approved by the Chief Minister’s Committee. The draft was never discussed by the Chief Minister’s Committee. By the time it was circulated, the island’s attention was consumed by the approaching general elections. Indeed, the Committee never met again after her draft was produced, and interest in constitutional reform abated.
Rev John Gumbs’ draft
The opposition party, the Anguilla United Movement (AUM) headed by Mr Hubert Hughes, won the 2010 elections and Mr Osborne Fleming’s party went into opposition. On 7 October 2012, Mr Hughes appointed Rev John Gumbs to head a committee to make recommendations for constitutional advancement based on the work of the previous Committee and Commission. Later that year, Rev Gumbs’ Committee submitted a draft Constitution to Chief Minister Hughes. It incorporated many of the changes proposed by the 2008 Mitchell draft, but it provided for the island to become fully independent. The Report of the 2006 Commission did not indicate any public support for independence, and did not recommend any immediate steps to seeking independence. This draft was never publicly circulated by the AUM government or debated in any forum.
Rev Dr Clifton Niles’ draft Constitution
At some point in 2012, Chief Minister Hubert Hughes appointed Rev Dr Clifton Niles to head a new Constitutional and Electoral Reform Committee. This Committee submitted to Mr Hughes another draft Independence Constitution, but this draft, like Rev Gumbs’, was never circulated or discussed in public. The question of seeking political independence had not been previously debated in Anguilla and appeared to have no widespread public support. The members of Dr Niles’ Committee published a letter in the press dissenting from Dr Niles’ proposals for the draft Constitution, which they claimed did not represent their views.
The 2015 Constitutional and Electoral Reform Committee
In March 2015, the AUF Party, under the leadership of Mr Victor Banks, won a majority of seats in the House of Assembly in general elections of that year. The AUF’s political manifesto included a promise to move for political advancement for Anguilla by way of constitutional and electoral reform within the first two years after coming to office. The party’s Manifesto did not mention or raise the issue of political independence for Anguilla.
In September 2015, Executive Council took the decision to appoint a core constitutional and electoral reform committee, with power to co-opt, and charged to make recommendations with respect to constitutional and electoral reform and to implement the necessary work, and to deliver a preliminary progress report to Executive Council by December 2015. The work was to be done in step with the separate work already being undertaken in relation to electoral reform. Letters of invitation to join the committee went out signed by Mrs Cora Richardson-Hodge, Minister of Home Affairs.
The Committee met and at its first meeting decided that it was not representative of the views and interests of a sufficiently wide cross-section of Anguilla and agreed to request the Minister of Home Affairs to invite a number of other persons to join the Committee as full members. The Minister as requested wrote letters to all political parties and senior lawyers on the island inviting them to join the Committee. In December 2015, the Committee duly presented its first preliminary report to Executive Council.
The Committee’s work continues. It meets bi-monthly, and has made progress in reviewing the previous Reports and draft Constitutions. As of the date of writing, the Committee is working on putting together a discussion draft Constitution to take to the public to obtain their views. The Committee expects to be able to report to Executive Council before the end of 2016. This should place Government in a good position to hold to its election promise of constitutional reform within the first two years of taking office.
Dated 4 April 2016
