In accordance with the arrangement made between Jack Straw and Donald Anderson, as set out in their exchange of letters of 18 June 2002, 12 July 2002, 23 October 2002 and 14 November 2002, I enclose a copy of the draft Turks and Caicos Islands Constitution Order [2006], together with an explanatory memorandum entitled "A Modernised Constitution for the Turks and Caicos Islands".

  The draft Order contains a new Constitution for the Islands. It represents the outcome of a process of popular consultations led by a broadly-based Commission of prominent TCI Islanders, followed by a series of intensive negotiations between delegations from the UK Government and representatives of the Turks and Caicos Islands, which I led in the final stages. This resulted in agreement between the UK and Turks and Caicos Islands Governments in October 2005 on the main principles of the Constitution, which have now been incorporated into this draft document. These negotiations formed part of the constitutional review process launched by the 1999 White paper: Partnership of Progress and Prosperity—Britain and the Overseas Territories, with a view to reviewing and, where necessary, modernising Territory constitutions.

  I believe the draft is a good outcome for all involved. It strikes a balance between the obligations and expectations of both the UK and TCI Governments. It provides for a modernised constitution, while still retaining for the UK the powers it needs to discharge its obligations in respect of good governance, and international obligations. It has the firm backing of the Chief Minister of the Turks and Caicos Islands.

  This draft is now the subject of public consultation in the Territory to establish whether it enjoys broad public support. It is anticipated that, subject to the successful completion of that process, the draft Order will be submitted to the Privy Council for consideration at its meeting on 19 July.

Lord Triesman of Tottenham

Parliamentary Under Secretary of State

Foreign and Commonwealth Office

5 June 2006

  The draft Constitution is the result of several rounds of negotiations between TCI and UK delegations, building on the valuable work of the Constitutional Modernisation Review Body which reported in September 2002. The draft Constitution modernises in many ways the present

  Constitution which dates from 1988. These are the significant changes.

FUNDAMENTAL RIGHTS

  The chapter setting out the fundamental rights and freedoms of the individual, sometimes called the bill of rights, would be given greater prominence by being placed at the beginning of the new Constitution. It updates the current chapter, in order to reflect more accurately the key international human rights obligations which extend to TCI. These derive from the UN International Covenant on Civil and Political Rights and the European Convention on Human Rights. New rights are included dealing the right of prisoners to humane treatment, the right to marry and found a family, and the right to education.

GOVERNOR AND DEPUTY GOVERNOR

  There would continue to be a Governor appointed by The Queen, and who is Her Majesty's representative in the Islands.

  But there would no longer be a Chief Secretary. Instead there would be a Deputy Governor to assist the Governor, and to be first in line to act as Governor when the Governor is away. The Deputy Governor must be a TCI Belonger, and would be appointed by the Governor in accordance with instructions from the Secretary of State on behalf of The Queen.

EXECUTIVE GOVERNMENT

  There would be a Cabinet instead of an Executive Council, and a Premier in place of a Chief Minister.

  The Cabinet would consist of the Governor as Chairman, the Premier, six other Ministers, and the Attorney General. The Deputy Governor would not be in the Cabinet, but may be invited to attend its meetings; and the Deputy Governor would take the chair whenever he or she is acting as Governor.

  The Governor would be obliged to appoint as Premier the elected member of the House of Assembly (the new name for the Legislative Council) who proves to the Governor that he or she commands the support of a majority of the elected members of the House.

  The number of Ministers may be increased by law, if the number of elected members of the House is increased. But the total number of Ministers must not exceed one third of the total number of members of the House.

  As now, Ministers would have portfolios across the range of government activity. But the Governor would remain responsible for external affairs, defence, internal security including the Police Force, and certain public service matters. The Governor would also be responsible for the regulation of international financial services. The Governor would continue to have power to delegate to Ministers responsibility for matters relating to external affairs and internal security.

  A new development is that the Governor would be obliged, subject to limited exceptions, to consult the Cabinet about external affairs, defence, internal security and the regulation of international financial services. The Governor would be able to act contrary to the Cabinet's advice on these matters if he or she thought it right to do so. A further innovation is that there would be an Advisory National Security Council to make recommendations to the Governor on these matters. The Council could also advise the Governor on the exercise of emergency powers. The Council would consist of the Governor as Chairman, the Premier, the Attorney General, the Minister of Finance, and one other Minister.

  Outside of these areas reserved to the Governor, Ministers would continue to have responsibility. In these fields the Governor would be obliged to act in accordance with the advice of the Cabinet unless he or she were instructed to do otherwise by the Secretary of State on behalf of HM The Queen.

  A further innovation is that there would be a Cabinet Secretary, who would organise and record Cabinet meetings and, under the authority of the Governor and the Premier, would coordinate Government business.

LEGISLATURE

  The Legislative Council would be renamed the House of Assembly. The House of Assembly would consist of a Speaker, 15 elected members, four appointed members, and the Attorney General.

  An Electoral District Boundary Commission would need to meet and make recommendations on revised electoral districts with a view to the election of 15 members—two more than the present 13.

  Of the four nominated members—one more than the three at present—two would be nominated by the Premier, one by the Leader of the Opposition, and one by the Governor.

  The number of elected members may be increased in future by legislation. But provision must first be made for the necessary electoral districts following a report by the Electoral District Boundary Commission.

  The Electoral District Boundary Commission would continue to be an independent body which must meet at least every four years. But it would have a new power to make recommendations as to the appropriate number of electoral districts, as well as their boundaries.

  The right to stand for election would be limited to TCI Belongers. The right to vote would also be confined to Belongers. But the right to vote of anyone who is lawfully registered as an elector when the new Constitution comes into force would be preserved.

  In order to comply with a recent judgment of the European Court of Human Rights, a person would not be disqualified from voting at an election simply on the ground that he or she was then in lawful custody, which is the case at present.

  Meetings of the House of Assembly must take place at least every three months.

  The new Constitution would restrict the scope of the Governor's power to push through legislation which the House of Assembly was unwilling to pass to the case of an urgent need to secure compliance with an international obligation. This would require the approval of the Secretary of State if the Cabinet did not agree.

THE JUDICIARY

  There would continue to be magistrates' courts, a Supreme Court, and a Court of Appeal, with ultimate appeals to the Privy Council. The independence of the judiciary would be maintained in the new Constitution.

  But the system of appointments of judges and magistrates would change. There would be a new Judicial Service Commission, consisting of three persons: a Chairman appointed at the discretion of the Governor, and two other members appointed by the Governor after consultation with the Premier and the Leader of the Opposition from among present or former senior judges from anywhere within the Commonwealth or Ireland.

  The judges of the Supreme Court and the Court of Appeal, as well as magistrates and court registrars, would be appointed by the Governor on the advice of the Judicial Service Commission. The Governor would be able to disregard such advice if instructed to do so by the Secretary of State on behalf of The Queen.

THE PUBLIC SERVICE

  Appointments to the public service would remain a responsibility of the Governor, as would discipline and removal of public servants. As now, the Governor would be able to delegate those powers to a civil servant (including the Deputy Governor) or to a member of the Public Service Commission. But, except in respect of some senior posts and judicial posts, these powers must be exercised after the involvement of the Public Service Commission. Under the new Constitution, the Commission's advice would be binding unless in a particular case the Governor were instructed to disregard it by the Secretary of State on behalf of Her Majesty.

  The Public Service Commission would be enlarged from three members to five. As now, the Chairman would be appointed at the Governor's discretion, and two other members would be appointed at the Governor's discretion, one after consultation with the Premier and one after consultation with the Leader of the Opposition. Of the two new members, one would be nominated by the Premier and one would be nominated by the Leader of the Opposition. The Commission would have its own secretariat.

  The appointment, discipline and removal of certain senior officers would remain in the Governor's discretion, without the involvement of the Public Service Commission. These are the Attorney General, the Permanent Secretary Finance, the Chief Auditor, and the Commissioner of Police.

  The Premier must be consulted by the Governor before the appointment of anyone to be Attorney General.

  The Governor must appoint the Cabinet Secretary on the advice of the Premier, on the basis of a list of public servants drawn up by the Public Service Commission.

COMPLAINTS COMMISSIONER

  There would continue to be a Complaints Commissioner, but the current restrictions on other employment by the Complaints Commissioner would be removed.