The UK’s system of government is traditionally described as a “Constitutional Monarchy.” In more recent years the UK’s constitution is said to feature “Parliamentary Supremacy.” Cabinet is answerable to Parliament. Even the Queen is subject to ordinary legislation. After centuries of strife it is now established that Parliament is the supreme branch of government, with the judicial branch remaining independent and impartial.
By contrast, Anguilla’s system of government is best described as a constitutional dictatorship. Under the 1981 Anguilla Act of the UK Parliament, the UK government maintains a ‘nuclear option’ to rule Anguilla by an Order in Council imposed without any discussion, far less consent by the governed. The UK government may intervene unilaterally in any aspect of the government of Anguilla. Additionally, the UK-appointed Governor, Attorney-General and Deputy Governor sit in Executive Council and (in the case of the latter two) in the Assembly with oversight and the right to intervene whenever the Assembly appears to be diverging from Britain’s interests.
The Executive Council established by the 1982 Constitution of Anguilla (“the 1982 Constitution”) governs the people without any oversight or need for further consultation of the people. Executive Council has total control of all policymaking (and the execution and enforcement of those policies) by controlling the Assembly. This control is assured by the fact that the governing party always holds most of the seven elected seats in the Assembly. Additionally, the unelected Attorney-General and Deputy Governor sit in the Assembly with a right to vote in support of government. The House of Assembly (“the Assembly”) is subordinate both to the UK Government and to the local Executive Council. It takes orders from both.
The most recent example of cabinet dictatorship is the present process of constitutional reform. On September 24 government published on its website a new Constitution. What was published is the draft contained in the 2017 Constitutional and Electoral Reform Committee Report, (“the 2017 Report”). Deletions and additions have been made to it without any explanation making it difficult to follow. Government has announced that there will be public consultations at the Teachers’ Resource Center on 30 September and 1 and 10 October to which all members of the public are invited. They have given us less than 2 weeks to register our objections and comments on their new draft Constitution. Then, they will send it off to London with the good news that we all agree to it.
During the public consultations leading up to the 2006 Constitutional and Electoral Reform Commission Report (“the 2006 Report”) and the subsequent 2017 Report, it became apparent that most Anguillians who participated in the public discussions emphatically wanted to see an improvement in the democratization of Anguilla. The resulting two Reports contained dozens of proposals that, if enacted, would achieve this end. These include, without being exhaustive,
1. Reducing the administration’s control over the Assembly by (a) depriving ex-officio members of the Assembly of the right to vote; (b) removing the undemocratic nominated members; (c) revising the existing Voters List; (d) increasing the number of elected representatives in the Assembly from the present seven (7) elected members to thirteen (13) members;
2. Increasing the size of the Assembly. Presently four (4) elected members of the Assembly are also Executive Council Ministers. The fifth is the Parliamentary Secretary or junior minister with responsibility for assisting the Minister of Tourism. The sixth is a Ministerial Assistant with responsibility for assisting the Minister of Home Affairs. That leaves only one of the seven elected members of the legislature with no ministerial appointment. There is no one else to challenge legislative initiatives introduced by the administration. In such a system, the Assembly cannot be said to be of equal status, far less superior to the Executive Council. The result is that Anguilla is not a parliamentary democracy but truly a Cabinet dictatorship.
3. Strengthening the role of parliament by, among other things (a) guaranteeing that the Public Accounts Committee (“the PAC”) can function effectively by providing it with a budget and other resources; and (b) establishing other Standing Committees of the Assembly. We have seen that after a short period of activity, the PAC has been successfully shut down by government depriving it of all resources needed to function.
4. Improving public financial management standards by taking the rules out of various Acts and entrenching them in the Constitution.
While some of the Constitutional Reform Proposals published by the Government of Anguilla on 24 September 2019 are acceptable, others are more questionable. In particular,
(a) Section 35 (Executive Council) proposes to restore the term “Executive Council”. The 2017 Report proposed abolishing the old colonial name Executive Council and replacing it by the more modern name “Cabinet”. There is no explanation given for this reversal.
(b) The original recommended section 35 proposed abolishing the right of the unelected Attorney-General and Deputy Governor to vote in Cabinet. This provision has now been removed. There is no explanation offered for its removal.
(c) Section 45 (Summoning of Cabinet and transaction of business) unexpectedly restores the name “Cabinet”. It is preferable for the sake of consistency that the term “Executive Council” should be replaced wherever it exists in this draft.
(d) Also, the section bears a marginal note that subsection (2) “should be reviewed to ensure there is no conflict” with the Anguilla Constitution (Amendment) Order 2019 made in April 2019 (“the April 2019 Order”). It is not clear what this can mean. The intention of the original 2017 Report was to replace the 1982 Constitution with a new Constitution. The intervening April 2019 Order was a transitional Order. It was an amendment to the 1982 Constitution. When a principal Order, eg, the 1982 Constitution, is replaced, all amending Orders will fall away with it. Thus, there can be no conflict between the new Constitution and the old Constitution or any amendment to the old Constitution.
(e) Section 54 (Qualifications for elected membership) has been amended to remove the proposed requirement for three (3) years’ residence before a person is qualified to be elected. Under the 1982 Constitution there was no residence requirement. During the consultation process, it was apparent that Anguillians thought that there should be some period of residence before a person could be nominated for election. There is no explanation offered for this deletion.
(f) Section 65 (Qualification of voters) has been substantially amended. In addition, there is a marginal note referring to other amendments introduced by the earlier 2019 Order, which appears again to suggest that the 2019 Order will continue to co-exist with the proposed new Constitution. As earlier explained, there should be only one Constitution. All references to the 2019 Order should be removed.
(g) The original proposal that any new Elections Act should include provisions for the regulation of campaign funding has been removed without any explanation. Anguillians are agreed that the present system of unregulated spending on election campaigns is an encouragement to bad behaviour. Removing from the Constitution even the possibility of introducing campaign funding regulation 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 will be problematic.
(h) Section 67 (Elected Members) has been amended to remove the provision for Anguilla to be divided into nine (9) electoral districts. It proposes to retain the present seven (7) as the minimum number. One of the principal reforms originally proposed was that the Assembly should consist of nine (9) district representatives and four (4) members elected at large, resulting in a total of thirteen (13) 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. With the recommended abolition of the Parliamentary Secretary, and the removal of the vote of the ex-officio members, an Assembly of thirteen (13) elected members would always consist of a body where the executive members of the Assembly were in the minority, thus promoting parliamentary sovereignty. One notes with some concern that not only is it proposed to retain the Parliamentary Secretary, but the Assembly may continue to consist of a mere seven (7) elected members. There is no explanation offered for this retrograde proposal. Additionally, it seems clear that the recommendation for a Boundaries Commission to divide Anguilla into nine (9) approximately equal districts has been dropped without any explanation. A stand-alone statute enabling boundaries re-districting without constitutional protection is problematic.
(i) Section 99 (Anguillian Status) has been substantially amended. There is no explanation offered for any of the amendments.
(j) Chapter 10 (Public Finance) is stated to be still under review by the Committee of the Whole House. The whole point of Chapter 10 is (a) to take the present rules for the management of the public finances set out in the Financial Administration and Audit Act and other Acts, and (b) to enshrine the proposed draft Anguilla Public Finance Order 2015 (the draft 2015 Order) which, as a result of negotiations with the Anguilla government, was never brought into effect as an Order in Council. Anguillians want the draft 2015 Order given constitutional effect for the proper management of our public finances.
(k) The Chief Auditor has never been able to issue an unqualified audit opinion on Anguilla’s public accounts. Typically, in his report on the 2012 accounts he complains,
“Section 43 of the Act states that the Minister of finance may, by advance warrant under his or her hand, authorize the Accountant General to make advances from the Consolidated Fund . . . Advances made in 2012 were not authorized by the Minister of Finance. I therefore qualify my audit opinion as advances were not authorized in the manner required by the Act.”
His Certificate which prefaces the 2012 Audit Report consists of four (4) pages of similar complaints about the ways in which the Act and other financial regulations are flouted.
(l) It was the view of the majority of those participating in the public consultations that led up to the 2006 Report and the 2017 Report that the statutory financial regulations were being ignored with impunity by the relevant officials of the government of Anguilla, as described by the Chief Auditor. There is a need to give those regulations the status of constitutional provisions. Any attempt to weaken Chapter 10 should be strenuously opposed by all concerned Anguillians.
The alterations complained of above constitute serious threats to the efforts made in the 2017 Report to reduce Anguilla’s democracy deficit. Unless we make our disapproval of these anti-democratic changes felt both locally and internationally in the short period for review given to us, there is nothing to stop the government from trying to persuade the Foreign and Commonwealth Office that we are in complete approval of the constitutional and electoral reform proposals put forward by government.
If I were 16 years old, I would go on strike from school and sit outside the Premier’s office every day with a placard reading, “No to the Government’s new Constitution” until they agreed to restore the people’s version.
