The Marina MOU “Definitive Agreement” was approved in principel by Exco on the 7th of May 2020, in the presence of the His Excellency the Governor, just two days before the House of Assembly was dissolved May 9th. This successful attempt at short circuiting the true democratic process does not bode well for the people’s right to good governance in Anguilla. The approval of this Definitive Agreement, we are told, occurred without a single debate in the House of Assembly and without any details being brought before the people. This would be an island changing contract. If this is the state of good governance in Anguilla then may the Lord help us all.
Extracts from the minutes of the Exco meeting of 7th May 2020
EX MIN 20/217 EX MEM 20/110 TO CONSIDER AND APPROVE IN PRINCIPLE THE DEFINITIVE AGREEMENT BETWEEN THE GOVERNMENT OF ANGUILLA AND SANDY GROUND DEVELOPMENT LTD., A SUBSIDIARY COMPANY TO SF INVESTMENTS SWITZERLAND GmbH FOR THE DEVELOPMENT OF THE SANDY GROUND GRAND MARINA AND RESORT
Hon Parliamentary Secretary, Ministerial Assistant to the Hon Minister, MHA, Financial Specialist, PS, Economic Development, Investment & Commerce and Trade and Investment Officer remained.
Council:
(i) approved the Definitive Agreement between the Government of Anguilla and Sandy Ground Development Ltd.;
(ii) approved the concessions outlined in the Corporate Report between the Government of Anguilla and Sandy Ground Development Ltd. as follows:
ANALYSIS OF KEY TERMS PROPOSED/CONCESSIONS REQUESTED
1. Stamp Duties
Aliens Land Holding Regulation Act (“ALHRA”) License Fees
The Developer requests to pay stamp duty under the Aliens Land Holding Regulation Act a rate of 4% in respect of all property purchased or leased by the Developer as part of the Project. On initial unit sales (by the Developer), stamp duty due and payable under the ALHRA to be 2% provided that the buyer agrees to place the Luxury Real Estate Product into the Hotel Room Rental Programme; in the event the buyer elects not to, the stamp duty due and payable under the ALHRA shall be 4%. Additionally, subsequent re-sale of a Luxury Real Estate Product and all subsequent re-sales thereafter, the stamp duty due and payable to be 2% provided that the Luxury Real Estate Product is placed into the Hotel Room Rental Programme; in the event that the buyer elects not to, the stamp duty due and payable under the ALHRA shall be 8%.
Council supported the Tourism Investment Committee’s (TIC) recommendation that the request be granted.
2. Bottom Land Lease Rate
The Developer requests a rate of 5% of the effectively charged berth rates for all transient and short-term berths offered by and within the limits of the Sandy Ground Grand Marina and Resort, subject to review in 10 years from effective date.
Council supported the Tourism Investment Committee’s (TIC) recommendation that the request be granted.
3. Annual Levies assessed on Luxury Real Estate Products
The Developer requests that if the Luxury Real Estate Product is included in the Hotel Room Rental Programme, the annual levy payable by the owner on the completed Luxury Real Estate Product will be assessed at $5.00 per square foot per annum. However, if it is not, it will be assessed at $6.50 per square foot per annum.
Council supported the Tourism Investment Committee’s (TIC) recommendation that the request be granted.
4. Other
The Developer requests a rate of ten percent (10%) of the applicable dockage and utilities fees (excluding fuel sales) and annual maintenance dues, for the provision for the Accommodations Tax Act applied to occupancy of non- public moors, docks and boat slips by foreign registered.
Council supported the Tourism Investment Committee’s (TIC) recommendation that the request be granted.
5. Hospitality Room Rates
The Developer requests that for a period of ten (10) years from the beginning of operations, the “Hospitality Room Rate Fee ” fixed at five percent (5%) of the effectively charged room rates for all hotel, and hospitality related rooms offered by and within the limits of the Sandy Ground Grand Marina and Resort.
Council supported the Tourism Investment Committee’s (TIC) recommendation that the request be granted.
6. Custom Duties
For a period of 10 years from the effective date, customs duties to be waived on the importation of the construction materials, furniture, furnishings, fixtures, fittings and equipment necessary for the construction and operations. The Developer further requests for a period ending twenty (20) years after the effective date customs duties to be waived on furniture and furnishings which are reasonably necessary for the periodic major refurbishment of the existing furniture and furnishings located in the common areas of the Project and within the Hotel Room Inventory that is retained by the Developer, such exemption shall not be granted more than six times over the specified period.
Council supported the TIC’s recommendation that as it relates to customs duties on the importation of construction materials for those portions of the Project which are for resale to third parties, that Government stands firm on the collection of custom duties on such items, and shall be paid at the closing of the sale by the purchaser. Council further supported the TIC’s recommendation that the remaining request be granted. Such concessions will be subject to compliance with the procedures set out in the Customs Act, R.S.A. c. 169 and Regulations and the Exemption from Customs Duty Policy.
7. Provision of Services
The Developer requests that Government commits to the provision of staff and equipment for the operation of a legal port of entry as part of the project to be offset by fees and taxes to be collected by the Government at the port, subject to the financing and construction of the facility by the Developer.
Council agreed with the TIC’s recommendation that this be granted so as to maintain the safety and security of the island.
Action: PS, EDICTIT; TIO; PS, FIN; PAS, FIN; COC; PS, HLPP; DLS;
CEO, AASPA; MINS OF GOV’T
On May 15th 2020 the His Excellency the Governor made an unusual public proclamation, laying out the procedures for the conduct of government between the dissolution of The House, May 7th and the day of the election. Specifically, in paragraph two, His Excellency the Governor states in no uncertain terms that the government shall make “no major decisions, such as new policies, contracts or board appointments can be taken between the House dissolving and the Election”.
We ask ourselves, is a proclamation by the governor an order delivered by the hest official in the land that those receiving the order are bound to abide by? Or is the office of Her Majesty’s Government in Anguilla a sort of ceremonial post where people under his instruction have the option to totally ignore the order. Perhaps there was another purpose to this unusual Public Proclamation. Maybe His Excellency the Governor had a suspicion that the AUF administration might spring the June 3rd Definitive Agreement signing and was simply getting HM Government’s position out into the public domain.
We don’t see that there has been any visible reaction from Government House following this blatant insult. The only reaction is the letter HE the Governor mailed to the Sandy Ground Community Association November 2nd confirming that all this was no business of the British Government. Whatever your views on the role of the British in Anguilla, this travesty should be loudly rebuked.
HM Governor’s Office in Anguilla
15 May 2020
Statement from H.E. the Governor Tim Foy
Anguilla’s General Election
1. On 7 May, after consultation with the Premier, and as set out in Section 63 (1) of the Constitution, I issued the proclamation dissolving the 11th Anguilla House of Assembly on
2. 9 May. Given speculation, I would like to set out what this means in terms of four issues:
i. the administration of Anguilla’s affairs up to the next General Election;
ii. the timeline within which the Election takes place;
iii. who sets the Election date; and
iv when must the Election date be announced.
The administration of Anguilla’s affairs up to the Election
3. Consistent with established practice and Section 25 (3) of the Constitution, ministers remain in charge of their portfolios until they cease to be ministers. Ministers do not cease to be ministers when the House of Assembly is dissolved. They remain in role until they are no longer members of the Executive branch of government, which is separate to the Legislative branch (the House of Assembly). Similarly, Executive Council will continue to meet to oversee the day-to-day business of Government, but no major decisions, such as new policies, contracts or board appointments can be taken between the House dissolving and the Election.
By when must the next election take place?
3. Section 64 of the Constitution requires that a General Election take place no later than two months after the House of Assembly is dissolved. As the House was dissolved on 9 May this means that – ordinarily – the election must take place by 9 July.
4. On 3 April, recognising the possibility that COVID-19 might inhibit the holding of a free and fair Election within the Section 64 timeline, the Privy Council agreed an Order in Council allowing the Governor to extend the period within which the Election must be called by a further two months.
5. As I said when the Order was agreed, this does not mean the Election will be delayed beyond 9 July. It is a contingency that will only take effect if I, in my own discretion, judge circumstances necessitate it. Until that time, the Constitutional deadline by which the Election must take place remains – that is 9 July.
Who sets the date of the election?
6. There is a common misconception that the Governor acting alone sets the date for elections. This is not the case. Section 35 of the Elections Act (as amended) is clear. The Premier determines the dates for the Nomination of Candidates and the Election and advises the Governor of those dates so the Governor can issue the necessary writs for holding the election.
7. This situation could only change if I were to bring the Order in Council noted above into force. I will only do this if I, using my own discretion, believe a free and fair election can’t be held before 9 July. The Order does not give the Governor the power to determine the election date in any circumstances within the two-month timeline set out in Section 64.
When must the Election date be announced?
8. There is no constitutional or other legal reason requiring the election date to be announced at the same time as the House of Assembly is dissolved. In 2015, for example, the then Chief Minister requested the Governor to dissolve the House on 25 February and advised her of the Election date on 9 March at which point the Writ of Elections was issued on 10 March. In short, provided he remains consistent with Section 35 of the Elections Act, it is for the Premier to decide when he announces the election date.
Tim Foy
Governor
