As what may be a last resort, representatives of the Concerned Citizens of Anguilla have written to two top officials of the UK Government, on behalf of the Anguillian populace, expressing displeasure over the Goods and Services Tax (GST).
The letter, dated 10th September 2021, is addressed to Lord Tariq Ahmad of Wimbleton, Minister of State at the Foreign Commonwealth and Development Office and the Rt. Hon. Dominic Raab, MP, Secretary of State for Foreign and Commonwealth Affairs and First Secretary of State, Foreign Commonwealth and Development Office.
The letter concluded by saying to the Secretary of State: “Please disallow this law. We respectfully await your considered position.” Here is the full text of that letter without the various appendices:
Dear Lord Ahmad and Hon Raab,
On behalf of the Concerned Citizens of Anguilla, we write to you with respect to the matters pertaining to the Goods and Services Tax (GST) Act, which was debated in our House of Assembly on 29th July 2021 and transformed under the hand of Her Excellency, Governor Daniel-Selveratnam, into law by her signing the Bill on 30th July 2021, less than 24 hours after the concluding debate.
There are several aspects about the process occurring in the House of Assembly that were gravely troubling. Such proceedings captured the intense ire not just of the Anguilla community at large but also of many in the diaspora. It is the breadth, scope and depth of feeling of the Anguillian populace, over 2,000 of whom signed the second of two Petitions within the span of a week following the vote. The signatures on that Petition engraved our community’s deep-seated objections to what transpired in our House of Assembly, as well as the general opposition to this legislation that initially resulted in the earlier Petition imploring the Speaker not to embark on the First Reading of the Bill. All of this in turn triggered a chain of correspondence to Her Excellency Governor Daniel-Selveratnam in which much of civil society in Anguilla shared such views. We address you in this context.
Background
The people of Anguilla are awakened and, having joined in the Petitions, have expressed support for the Concerned Citizens firstly to exhaust all the proper channels of communication to gain the attention of those responsible for good governance with respect to the First Reading, and thereafter, the passage of the GST Bill in Anguilla. They are adamant that we seek acknowledgement from the HM Government that what occurred in our House of Assembly was a travesty on Anguilla’s democracy. Thus, we are seeking redress that appropriately shelves this Act.
This is not the time for consideration or even imposition of this legislation. There are other ways to meet Anguilla’s fiscal obligations. Many persons in Anguilla have demonstrated that this onerous, regressive tax system would have a debilitating effect on Anguillians being able to transact business, place an untenable burden of increased costs that would pose significant risks to lost tourism, business closures and lost jobs, and strangle the very life-blood out of those already struggling to survive, thereby plunging them into abject poverty. The humanity of Anguillians being able to live a decent life in their own land is on full display, and Anguillians are activated to protect their right and entitlement to survive at all cost.
We must assume that Anguillians have been paid minimal respect by your being already fully briefed on the matters surrounding this GST Bill; wherein, the first Petition of over 1,500 Anguillians had been delivered to the Honourable Speaker, Barbara Bourne, while so advising Her Excellency Daniel-Selveratnam when the GST Bill was headed to the House of Assembly for its First Reading on 23rd March 2021. Having witnessed the proceedings, debate and vote in the House of Assembly on 29th July 2021, the people of Anguilla sent yet another extensive communication in the form of the second Petition, along with appeals from across civil society, to the Governor reflecting their considered position on what they viewed as the trampling of Anguilla’s democratic process. We have noted that thus far the Governor’s responses have been in the nature of platitudes as opposed to addressing the legal, ethical and moral principles underpinning what transpired in the People’s House of Assembly.
This appeal to you therefore becomes pivotal, as your Office represents the final rung in the ladder of communication.
THE CONCERNS
The Consultation and Passage of the Bill
Central to both our substantive pieces of correspondence to Governor Daniel-Selveratnam, was that the Concerned Citizens and representations from civil society asked her to consider deeply how the consultative process surrounding this Bill was profoundly flawed in two respects, such that the resulting legislation lacked the proper legal, moral or ethical foundation on which it could have satisfied Her Excellency to transform the Bill into law by giving her assent. Her responses in each instance were generic and insubstantial.
The First Breach of Consultation Process
You would already be aware that it was as a result of the Petition of over 1,500 Anguillians obtained in a 3-day period prior to the Bill having its First Reading that by Resolution passed on 20th April 2021, the House of Assembly created a Select Committee chaired by an Elected Member of the Government to examine the concerns of the initial Petition and to report thereon. This Committee ultimately invited, and over the course of four (4) days of hearings that began on 30th June 2021 and concluded on Monday, 5th July 2021, received the views and expressions in very detailed presentations of individuals of the community and stakeholders across virtually all sectors of the economy. Notably, not one stakeholder who submitted to the Committee and was not otherwise employed by the Government was in favour of the legislation.
The Community does not exist in a vacuum and as such, we are fully aware of certain pressures being exerted upon the Government of Anguilla by the HM Government in order to meet certain fiscal targets. However, any exigencies that may exist between yourselves and our Government should never override, dismiss and disregard ‘due process’. Due process is an inviolable tenet of good governance protected in our Constitution, of which the Governor stands at the vanguard, and we the People are the beneficiaries. It is fundamental to the contract between those governing and the governed.
Chronology is a useful pinpoint with which to underscore the lack of due process required for proper consultation. The Report of the Select Committee is dated July 23rd 2021. It was posted online on the Government’s website on Friday, July 23rd 2021. Given a tax measure in which all of the people of Anguilla had a vested interest [as stipulated in Section 8 (4) of the Bill leaving ‘no person’ exempt from the law], and about which so many had demonstrated acute awareness and proactive sensibilities, the absence of any advance notice of this posting to the public or to the media houses was nothing short of remarkable. On Monday, July 26th 2021, the Report was tabled in the House of Assembly with brief commentary from the three members of the Select Committee who had served as ‘expert advisors’. This was when the public became aware of the Report if they happened to be listening to proceedings in the House of Assembly that day. The following day, the Government made clear that the final readings of the GST Bill would nonetheless occur on Thursday, July 29th 2021.
Public outrage filled the airwaves and social media over the Government’s failure to establish a forum or series of town hall meetings on the findings and recommendations of the Report and thereby to receive constructive input on the way forward. On Thursday, 29th July 2021 (a few hours before debate on the second and third reading of the Bill commenced in the House of Assembly) and without previous notice to the Public, two senior civil servants appeared only on social media in the absence of any forum or civil society engagement and made a belated attempt to address the findings of the Select Committee. This appeared to have been the Government’s concept of consultation.
On this first limb as to the failure of due process to which the People of Anguilla are constitutionally entitled and to which the Governor has an unfailing responsibility in Section 57 of the Anguilla Constitution, we seek your deliberate and specific response.
The Second Breach of the Consultation Process
The Laws of Anguilla are ventilated through our Supreme Court. Legal Precedent has been affirmed in our Courts in the matter of Paul Webster et al v. The Attorney-General No 15 of 2008. That case reiterated the legal principles emanated by Lord Woolf in R. v. North and East Devon ex parte Coughlan. We shared this case with Governor Daniel-Selveratnam particularly since her background is in the law. She has apparently chosen not to respond to these points. We share for your benefit that our Supreme Court sitting in Anguilla reiterated in that case:
“The consultation process must be fair and genuine. Proper consultation was restated and approved by Lord Woolf in R v. North and East Devon ex parte Coughlan:
It is common ground that whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and intelligent response: adequate time must be given for this purpose: and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.”
The facts are that the Report of the Select Committee was tabled before the House of Assembly on Monday, 26th July 2021, after having received submissions from various sectors in society. Nonetheless, by Thursday, 29th July 2021, the Bill was debated in the House and passed. There was no engagement by the Government of Anguilla with the People of Anguilla on the contents of the Report. There was no engagement on the several alternative proposals that had been put forward for meeting Anguilla’s fiscal obligations. There was no engagement on the critique, the grievous cultural affronts, perceived loss of fundamental rights, and devastating economic effects and operation of the legislation without mitigation, and neither was there any evidence in the final Bill that anything tendered by those members of civil society had been taken into account. There was no consultation at a suitably early stage when the proposals were at a formative stage and the process of consultation could have been meaningful and led to changes in the proposed legislation. In short, the consultation was flawed and does not comply with the common law requirements of a consultative process.
Furthermore, the apparent dismissal of the considered participation across civil society in the Select Committee hearings spanning four (4) days ultimately played a compounding role in the mockery of public consultation that preceded the First Reading. Elected Ministers and a paid consultant told members of the community that GST was to be imposed without consideration of proposed alternatives, dire conditions from pandemic unemployment, and ongoing threats to tourism, the primary sector of Anguilla’s economy. Critical aspects of powers for routine, culturally intrusive inspections, unprecedented record-keeping, a labyrinth of civil and criminal penalties, and the concealment of vital business planning aspects as to the actual rate, registration and cash management demands – and unfettered powers to revise every facet of the law, from the rate, to the threshold, to exemptions – were not communicated forthrightly to the People who were expected to voluntarily become tax collectors for civil servants lording this legislation over them and all future generations.
In fact, as early as 9th July 2019, Dr. Aidan Harrigan, Permanent Secretary of Finance, stood before the first public consultation with the Chamber of Commerce membership at the La Vue Conference Center and said clearly, “This is not a consultation. This tax is being implemented.” (Or words very close to this paraphrase). Public consultations on GST have continued as a farce ever since the first-phase introduction of ‘Interim Goods Tax’ (IGT), the precursor to GST, which impacted only the importation of goods. IGT was replaced by the GST Act.
So, can it be said therefore that the Government of Anguilla, of which the Governor is a part, fulfilled the level of consultation – meaningful consultation – as anticipated by this legal precedent? We welcome your response on this limb of consideration as to whether in your view the circumstances pertaining to consultation meets the test of having been meaningful and proper consultation.
The Actions of the Attorney-General
In previous communications to Her Excellency, we have outlined and reflected upon the actions of the Attorney-General during the debate and specifically at the time of the vote. The Speaker indicated within the House that she would recess the House for the specific purpose of seeking advice when the issue of the final vote became contentious because a division of vote was called for. In that context, the Speaker refused to accept the position of an Honourable Member of the Opposition, and her utterances that she would recess the House to take advice of the Attorney- General have cast the actions of the Attorney-General under momentous scrutiny.
One can hardly overlook that the principle of ethics was therefore drawn into question when the Attorney-General, on his return into the House after providing undisclosed legal advice to the Speaker, gave advice to the House of Assembly on the issue of the vote by division, and then felt comfortable enough to vote on the same Bill. This problematic Bill, now problematic Act, as well as the several other reasons to which we have alluded herein, recalls the adage, “Not only must Justice be done; it must also be seen to be done”.
The Governor’s response was that the Constitution gives the Attorney-General the power to vote and inferentially therefore, no impropriety taints his vote. The duality of the role he played in the House on July 29th 2021 and the attendant question of ethics and conflict was apparently not disturbing to her.
We welcome your thoughts on the specific question as to whether the actions of the Attorney-General were acceptable and prudent, bearing in mind the circumstances in which they occurred.
The Vote by the Ex-Officio Members
Perhaps the most egregious and unprecedented attack on Anguilla’s democracy occurred when two (2) elected members of the House, sitting Ministers of Government responded to clarion calls of their respective constituencies, and indeed across the breadth of the island, by voting against the passage of the GST Bill. In doing so, it meant that these two (2) elected members, who together represented over 4,000 Anguillians, were combined with four (4) other elected members of the House, whose votes at the election totalled over 7,000 Anguillians. Thus, the will of those 7,000 Anguillians acting through six (6) elected members of the House (the majority), were effectively displaced by five (5) elected members of the House, who required the support of two appointees as Ex-officio members to gain a majority for passage.
It holds little weight for the Crown simply to dogmatically indicate that the Ex-officio members of the House are empowered to vote by the Constitution. Context is relevant, and as such, one cannot view their actions without bringing forth the spirit of the Constitution: It could never be the case that their roles, as unelected persons, should ever be utilized to superimpose, dominate and indeed in this case, frustrate the will not just of the majority of the elected members of the House – but to frustrate the Will of the People, whom those members are called to serve. The exercise of a constitutional discretion can only be considered lawful if properly exercised in context.
That un-elected appointees did not prudently take a stance of isolation from an occasion that was intensely politically charged and from a highly contentious fiscal measure but chose instead to use their office to undermine the democratic will of Anguillians, represents an affront that cannot be cured by the rhetorical regurgitation that ex-officio members are Members of the House and are therefore empowered to vote. The options for voting are still yay, nay and abstention, each of which is to be exercised in a prudent, moral and ethical manner. On this occasion, to deliberately undermine the Will of the People is unacceptable.
As a matter of record which we also lay for your considered deliberation, we have researched amongst sitting and past members of the House of any occasion on which the Ex-officio members provided the tipping point in fiscal measures or at all in our House of Assembly. We have not been able to find support for this unprecedented move by the Crown’s appointees. This should be of some concern to you in much the same way as the great reliance on the convention of Collective Responsibility of members. Therefore, while the principle of Collective Responsibility has more to do with efficacy, the fact that elected members of the Government found it necessary to break ranks to pay due regard to the collective expressions of their constituents and Anguillians at large can in no way be equated with the actions of those Ex-officio appointees of HM Government to dull the effect and voices of Anguillians. The fact that Ex-officio members exercised and politicized their roles for the first time in Anguilla’s legislative history cannot be underscored enough as an aberration.
We welcome your considered and specific response on whether it was appropriate in all the circumstances that attended this process for the Ex-officio members to have exercised their vote in the manner that they did, knowing the effect of their vote relative to the other elected members of the House.
Conclusion
All across Anguilla, as ventilated by: two sitting members of the Government of Anguilla; the four members of the Opposition, the Anguilla Christian Council; the Anguilla Evangelical Association; the Anguilla Chamber of Commerce; the Anguilla Hotel and Tourism Association; and more than 2,000 citizens of Anguilla, our people have expressed profound dissatisfaction with the contents of the Bill and/or the timing and passage of the Bill and/or the processes that attended it in the House of Assembly.
An entire island is signaling urgent concerns and unwillingness to accept mere platitudes as a panacea. They demand candor and to be heard with a view to rolling back the legislation so that their honest apprehensions and pragmatic alternatives can be duly considered and debated. The breach of the processes in the House remain significant travesties that must be addressed and redressed. We recognize that it is easy to gloss over these expressions herein in light of the exigencies of the day with respect to meeting fiscal targets. However, we wish to remind you that HM Government and the Government of Anguilla are violating the rights of the very same persons whom you expect to give of their hard earned and dwindling livelihoods to fund said fiscal targets.
We believe we have presented a cogent and comprehensive rationale that illuminates critical failures of the processes, and that the Bill which received its passage and the particulars of its harsh effects have shaken the very foundations of democracy to which Anguillians are entitled and of which they deserve the fullest expression in processes that respect and embrace their interests and aspirations.
On behalf of the people of Anguilla, we wish to therefore invoke and exercise the only path of redress open to us in this forum, under the only available means as a last resort to retrench this GST Act. We still up to this point would hope to believe we exist in a democratic society. We are not satisfied by platitudes that appear as an insult that trivializes the views of thousands of Anguillians with respect to these fundamental issues. We now turn to your Office with faith that the principles and nuances of good governance will be applied on behalf of the people of Anguilla.
As such, not only do we invite your considered response to each of the issues, but we actively implore you to take the relevant steps as you are so empowered under section 59 (1) of Anguilla’s Constitution as the Secretary of State: Please disallow this law.
Please find attached as well a representative summary of the expressions of various participants of civil society and their respective missives regarding the GST legislation.
Yours sincerely,
Mrs Josephine Gumbs-Connor
Mr Mitchell Lake
Miss Khadijah A. Muhammad
Mr Percy Thomas
