The Government of Anguilla is about to negotiate a new Constitution for Anguilla. The British team is arriving, according to the Premier, in mid-November. They will confer with the Anguilla negotiating team. They will agree on 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 agree a new Constitution in secrecy? The latter is probably what will occur 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 constitutional 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 public 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 domestic decisions. 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 which would separate from St Kitts and Nevis. 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 Sombrero 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 grant in aid, 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, Anguillians 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. They will go into the discussions holding on to Government’s distorted version of the draft recommended by the Report of the 2017 Constitutional and Electoral Reform Committee. This is what Lord Ahmad refers to as Phase Two of Anguilla’s constitutional and electoral reforms.
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 the fundamental anti-discrimination rights of gays and lesbians.
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 then probably negotiate in confidence, if not sworn secrecy. As in 1976 and 1982, we will wake up one day to discover that 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 future administration of this Territory. To restore order after a subsequent 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.
