30th August 2021
BY EMAIL: Dileeni.danielselvaratnam@fco.uk
Your Excellency, Ms Dileeni Daniel-Selvaratnam
Governor
Old Ta
Anguilla
Your Excellency,
Re: Passage of Goods and Services Tax Act 2021 in the Anguilla House of Assembly
I refer to your letter to me dated 16th August 2021 respond ing to my letter to you of 4th August 2021 in reference to the above-mentioned matter.
I have read your letter with interest and now wish to bring the following to your attention:
1. The statement that the Deputy Governor (“the DG”) and Attorney General (“the AG”) are members of the House of Assembly by virtue of being members of the executive branch of Government appears to be used in support of the “foundational principle of separation of powers.” The contrary is in fact true. Membership in both the Executive and Legislative branches of Government does not support the “foundational principle of separation of powers.” Your assertion that the AG and DG are bound by collective responsibility when voting in the House, which I do not support, is also contrary to that “foundational principle of separation of powers.” If they had restrained from voting this would have been more in keeping with that principle of good governance.
2. Collective responsibility is not a law, but a convention whereby each administration is collectively responsible to parliament for its conduct for government. Most importantly, the principle of collective responsibility applies to Ministers of Government and not to ex-officio members of Executive Council, since they are in effect advisers to Council on legal and administrative issues. This is aptly captured by clause 1.6 of the Guide to the Operations of the Executive Council and to the Duties of Members. It is stated therein as follows:
“As the practice of collective responsibility calls for unity among Ministers, any Minister who finds it impossible to accept and support any decision of the Executive Council needs to consider the one course open to him and that is to resign his office.”
The third bullet point of your letter which states that the DG and AG are obliged to support in the House legislative measures decided upon in Council is therefore inapplicable.
3. Furthermore, it is incomprehensible and inconsistent generally, and in particular when one considers clause 1.6 referenced above, to suggest that the principle of collective responsibility could apply to bind the DG and AG to support the legislative decisions arrived at in Council, but it does not appear to bind two (2) Ministers of Government who are actually elected and participate in decision making in Council. You will recall that both the Minister of Education Hon. Ms. DeeAnn Kentish-Rogers and the Minister of Economic Development Hon . Mr. Kyle Hodge voted against the GST legislation in the House on 29th July 2021 , without any apparent repercussions.
4. The relevant proposition which seems to be overlooked is that the making of domestic laws is generally a matter for a country’s elected representatives. This position was highlighted by former Governor of Anguilla , His Excellency Governor Alastair Harrison, when he gave written evidence before the UK Environmental Audit Committee in 20131:
“As in most of the Overseas Territories, the environment is a devolved matter for the GoA. My role is limited to that on all devolved matters: I act as the Chair of Executive Council (EXCO, effectively the cabinet) and can therefore influence discussion to some extent. But decisions are taken by the four elected Ministers.”
The evidence given by the then Governor confirms that (i) it is the elected members of government that must ultimately determine what laws and taxes they will impose on the people; (ii) decisions in Council are the decisions of the Ministers and not ex-officio members and (ii) the concept of collective responsibility is inapplicable to ex-officio members.
As you have rightly recognized, both the DG and the AG are appointed by the Governor under Section 66 of the Constitution, and not as a result of being elected by the people of Anguilla. The appointed position of DG and the appointed position of AG are not and cannot therefore be seen to be on the same footing as the members of the House who stood for election and were chosen by the electorate to represent their interests.
5. Your point that ex-officio members have participated in voice votes previously is in dispute. Numerous former members of Government, including former Chief Ministers (all of whom would have served in the House for at least fifteen (15) years) and Speakers of the House have openly confirmed that during their tenure, none were aware of a single occasion on which the DG and/or the AG voted on a bill in the House. Their vote on a tax measure of the magnitude of the GST is even more egregious as it affects every single citizen, impacts the livelihoods of every Anguillian and severely curtails the survivability of local businesses in Anguilla.
6. The penultimate paragraph of your letter states that I raised concern that this Government is a minority Government. This is inaccurate. Reference to a minority government was contained in the first paragraph on page 3 of my letter which began with the sentence, “The precedent that this has set for the passage of laws in the HOA in the future is alarming.” [emphasis mine]
Three significant questions followed this sentence and sought a response from you as to whether the DG and AG, appointees of the Governor in both Council and in the House, would now playa key role in future decisions that directly impact the people of Anguilla. There was no suggestion that this Government is currently a minority government. For the record however, the elected members of Government who supported the passage of the GST legislation on 29th July 2021 were indeed in the minority.
The three questions posed in my letter of 4th August 2021 are important enough to warrant a response and, as a result, are reprinted here in light of the clarification provided above:
“The precedent that this has set for the passage of laws in the HOA in the future is alarming. Will the votes of the DG and the AG now be used to secure the passage of an unpopular bill where the elected members of government of the day may be in the minority? Will the votes of the DG and the A G now be used to secure the continued functioning of a minority government where the Premier (formerly “Chief Minister”) no longer commands the support of a majority of the elected members of the Assembly contrary to Section 24(1) of the Anguilla Constitution? If that is the case, are we not to assume that the Office of the Premier is now simply an extension of the Governor’s power (as he has become reliant on the Governor to enact legislation)? We have now observed two pivotal votes of appointed and unelected officials being used to pass a tax on the people of Anguilla.”
The issue is not whether or not the DG and the AG have the right to vote in the House. The issue is that, while Anguilla continues to progress wholesale constitutional reform and a true partnership for progress and prosperity with the UK, should vestiges and relics of our colonial past (ie. the constitutional right of the DG and AG to vote) continue to place a stranglehold on our ability as a people to determine our future?
If the answer to this is no, then the manner in which the GST legislation was passed in the people’s House on 29th July 2021 is indeed a travesty.
Yours sincerely,
Cora Richardson Hodge
Leader of the Opposition in the
Anguilla House of Assembly
Contact Information:
cc: cora. richardson-hodge@gov.ai
Hon. Speaker of the House, Mrs Barbara J Webster-Bourne (Barbara.websterbourne@hoa.ai)
Hon. Premier, Dr. Ellis L. Webster (Ellis.webster@gov.ai)
Hon. Mr. Kenneth M. Hodge (Kenneth.hodge@gov.ai)
Hon. Ms. Dee-Ann Kentish-Rogers (Dee-Ann.kentish-rogers@gov.ai)
Hon. Mr. Kyle J. Hodge (Kyle.hodge@gov.ai)
Hon. Mr. Haydn Hughes (Haydn.hughes@qov.ai)
Hon. Mrs. Quincia M. Gumbs-Marie (Quincia.gumbs-marie@gov.ai)
Hon. Mr. Merrick T. Richardson (Merrick.richardson@qov.ai)
Hon. Mr Evans M. Rogers (Evans.rogers@gov.ai)
Hon Mr. Cardigan Connor (Cardiqan.connor@gov.ai)
Hon. Mr. Jose Vanterpool (Jose.vanterpool@gov.ai)
Hon. Attorney General, Mr. Dwight D. Horsford (Dwight.horsford@gov.ai)
Hon Deputy Governor Mr. Perin Bradley (Perin.Bradley@gov.ai)
Media Houses
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1https//publications.parliament.uk/pa/cm201314/cmselecUcmenvaud/332/332vw23. htm
