Submission from Mr Harry Wiggin, Anguilla, 31 January

 

 

1. Submission

 

1.1 This submission is made by Harry Wiggin

 

1.2 I qualified as an English solicitor in 1965. I was admitted as a solicitor in Anguilla in 1995.

 

1.3 I am a Belonger of Anguilla, having married an Anguillian.

 

1.4 In terms of the time it will take to read this submission, please note that the body of this submission is six pages only. The rest of the pages are Annexes.[1]

 

2. Reason for Making Submission

 

I and very many others (native Anguillians - not just expatriates) are deeply concerned:

 

(a) that Anguilla's birthright is in the process of being destroyed on the altar of short-term gain;

 

(b) that there are no adequate controls in place designed to ensure good government;

 

(c) and that the recommendations of the Anguilla Constitutional and Electoral Reform Commission, which were painstakingly and expertly assembled following a wide-ranging consultation process, are being sidelined for political purposes.

 

3. Environmental Sustainability

 

3.1 The Anguilla National Environmental Management Strategy ("NEMS") of 2001 amounted to a commendable roadmap for sustainable development. It was published in October 2001, some eighteen months after the elections of 2000, when the present government first came to power.

 

3.2 While much of the detail of the NEMS was lost or forgotten, and to this day has not been implemented - in many respects quite the reverse - it quickly became a welcome "given" that the Government would not, as a matter of principle, give approval to any single developer for more than one project, and would certainly not permit any developer to become dominant.

 

3.3 In April 2006 this summary of Anguilla's position was reported on Caribbean NetNews:

 

 

Tuesday, April 25, 2006

 

HAMILTON, Bermuda: The Eastern Caribbean island of Anguilla will continue its commitment to "low volume, high value" tourism, says Dr. Aidan Harrigan, Anguilla's Permanent Secretary in the Ministry of Economic Development, Investment, Commerce and Tourism.

 

Speaking at this month's Caribbean Hotel and Tourism Investment Conference in Bermuda, Dr. Harrigan said that neither rapid development nor over-development present a winning formula for a small 35 square mile island with a population of only 12,500.

 

"Anything we do, we have to be able to absorb the level of development, so that's why we have opted for a more gradualist approach (and) it has worked dividends for us", said Dr. Harrigan, who notes that Anguilla continues to maintain the image of an up-and-coming, upscale, luxury destination

 

"You can earn just as much money from that approach as from mass tourism," said the Permanent Secretary, who notes that capturing the high yields also mitigates negative environmental and social impacts. "It's not to say that it's the approach for everybody ... (but) it makes sense for us," he said.

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3.4 But all of that (apparently quite suddenly) has changed, and the reason for that change gives rise to grave concerns.

 

3.5 The most convenient and authoritative account of the headlong sellout is contained in a report of a talk given in June 2007 by the same Dr Aidan Harrigan, Permanent Secretary at the Ministry of Economic Development (but, significantly, speaking in his private capacity).

 

3.6 It will be noted from the table accompanying that press report that a single developer has been granted approval for no less than three developments, with a total room capacity amounting to 1,525 rooms or some 35% of the total new room approvals at that time.

 

3.7 It will also be apparent that the number of workers required (a) to construct these developments; and (b) to service them once constructed, is enormous. Very serious social consequences for Anguilla have already resulted from the large numbers of immigrant construction workers now on the island, and it cannot be doubted that much worse consequences are to come when it becomes necessary to bring in even more foreign workers than are already in Anguilla, to provide service in the finished resorts. Problems of percentage immigration which may affect the UK pale into insignificance beside the percentage that will be needed in Anguilla.

 

4. What is the Motive for this Reversal of Policy?

 

4.1 There are mixed views as to the motives of Government for following this course.

 

4.2 The view of the Chief Minister is expressed in his address of 11th July 2007.

 

4.3 A particular concern was articulated but, as was apparent from the item as originally published, not necessarily personally shared by Don Mitchell Q.C, C.B.E on his blog.

 

4.4 Since this item is currently the subject of a libel suit brought against Mr Mitchell by the four Government Ministers named, it has now been removed from the blog website and is not reproduced in the Annex to this submission. In the libel suit, the Ministers have claimed substantial sums of money from Mr Mitchell, notwithstanding his publication of an apology, his withdrawal of the piece from his blog website, his acknowledgment that he had no evidence of any wrongdoing and his offer to make donations to charity. In view of these circumstances, the writer expresses no opinion as to the merits of the item that appeared on Mr Mitchell's blog, except to record that it is symtomatic of a lack of confidence in the present system of government in Anguilla.

 

4.5 It should be noted, however, that Mr Mitchell is a highly respected individual and is currently the Chairman of the Anguilla Public Service Integrity Board. He is a former Judge of the Eastern Caribbean Supreme Court, a belonger of Anguilla, and lives amongst the people of Anguilla. He is also dedicated to the well-being of Anguilla and Anguillians and spends a large proportion of his time in devoted public service, including the provision of free legal aid clinics.

 

4.6 The Government has had, but has not taken, the opportunity to answer straightforwardly the very simple question: why have they placed the country at the mercy of a few dominant investors? The fact that they have refused to answer perfectly reasonable questions, and have said only (to use the exact words of the Chief Minister) that they have "made mistakes" but they will "make amends", serves only to raise more questions. This is not good for them and it is not good for Anguilla.

 

4.7 The same lack of transparency manifested in connection with this issue pervades throughout almost everything the government does. The Government website (http://www.gov.ai/ ) is a monument to this lack of transparency. Implying that its purpose is to inform, the Chief Minister's introduction rings hollow when one

considers the almost complete lack of information concerning government deliberations (as distinct from public relations announcements) the website carries and the fact that such information is not provided by other means either.

 

4.8 Nor, when the Government is under an obligation to hold public consultations (e.g. on major planning matters), do they do so properly. If they do so at all, the relevant meeting is usually called at extremely short notice, with the minimum, if any, publicity, so that it amounts only to a pretence at consultation. When ministers are determined, for whatever reason, to approve a project, it seems that formalities go by the board and favoured developers appear to be allowed to do more or less what they like (including non-compliance with any permissions actually given without any formality or adherence to regulations).

 

4.9 In my view the Ministers should be strongly encouraged by the UK Government to institute an official and authoritative independent enquiry into the events that have led to these troublesome questions, in the best interests of Anguilla and its people. My view that this is needed does not stem from any conviction that culpability is involved. But it does stem from a conviction that it is thoroughly unhealthy and corrosive that suspicions have been widely aroused and that those who are suspected apparently see no way to allay those suspicions. If, as I sincerely hope, they are innocent, then it should be seen as in their own best interests no less than the interests of Anguilla as a whole that an official independent enquiry should resolve the concerns which the explosive economic upsurge in development activity, and its adverse consequences, have engendered. The suspicions will certainly not be allayed by a libel claim against Don Mitchell QC, C.B.E., which risks doing little or nothing more than to enable the claimants to enrich themselves personally. A measured, reasoned and explained upsurge in development activity would have been acceptable. As it is, it has all been accomplished behind closed doors and with no adequate or rational explanation.

 

5. The Future - What Steps should the FCO take in the best interests of government in

Anguilla and other Overseas Territories?

 

5.1 In the United Kingdom, good governance is achieved not only by legislation. There are conventions, understandings, best practices, concepts of honour, dignity and propriety, that are cultural. In some ways, they do not need to be reflected in legislation because it is felt that they are stronger left unwritten but deeply and culturally understood. So the UK has managed its affairs, for the most part, by operating under an unwritten constitution.

 

5.2 Not so in Anguilla. This is a frontier state. Emigration takes away the best educated and trained. Lessons learned are soon forgotten. The press is weak and wholly ineffective - it is too timid to risk offending the government of the day.

 

5.3 Opposition politicians are unfamiliar with parliamentary tools for keeping government straight. Some will openly say that they do not even want to do so, because they can secure the best political advantage by letting a government get up to mischief and then haul it over the coals. Opposition politics are based on bringing down the government, not on opposing it in order to put it on the right path.

 

5.4 There is an urgent and crying need to insist that government be held to high standards in public life. The entire gamut of anti-corruption and good government mechanisms known to law can no longer be left either to good sense or to the local parliament to enact into law. This has not worked.

 

5.5 After 40 years of constitutional government, Anguilla has yet to enact the legislation anticipated in the Constitution and designed to ensure good government.

 

(a) There is no Public Accounts Committee.

 

(b) There is no law requiring legislators to declare their assets and those of their immediate families to the Speaker. This despite the fact that it is mandatory under section 60A of the Constitution and despite the fact that section 61 mandatorily requires that "A law enacted under this Constitution may determine and regulate the privileges, immunities and powers of the Assembly and its members, but no such privileges, immunities or powers shall exceed those of the Commons' House of Parliament of the United Kingdom or of the members thereof".

 

(c) There is a legally established Public Service Integrity Board. But it is limited to matters concerning civil servants and can function only when requested to do so by the Governor. There is need for a mechanism to be put in place to investigate allegations of corruption and improper behaviour among Ministers of Government, parliamentarians and Boards of statutory corporations, all of which are presently exempted.

 

(d) There is no Boundaries Commission to redraw the electoral boundaries from time to time.

 

(e) There is no Ombudsman law or "whistle blower" law.

 

(f) There is no Freedom of Information Act.

 

(g) Crown Lands can be disposed of without any discussion in the House of Assembly.

 

(h) In contrast to the good intentions expressed in the NEMS, Environmental Impact Studies are not required for major developments, and when requested are not effectively published or discussed at meetings that are well advertised. Furthermore, government experts are, it is widely understood, often presented with requests to report accompanied by notifications that their report will be just for the record as the project in question has already been pre-approved (i.e. without regard to the environmental impact, or whatever else the report may contain).

 

5.6 Such provisions and a score of other measures could, with advantage to good government, be placed in the Constitution.

 

5.7 But it would not only be an advantage to good government. It would, it is to be hoped, restore trust in government and thereby eliminate, or at least drastically reduce, the present cancerous cynicism much of the Anguilla public currently has towards its public institutions.

 

5.8 Drafts of any necessary supporting law and regulations should be prepared and published at the same time as any new draft Constitution, with an undertaking that they will be enacted according to an agreed timetable.

 

5.9 In addition to writing into law provisions for ensuring good government, no governor in Anguilla in recent years has been known to use moral persuasion to insist on good government. On the contrary, Governors have been known to permit and endorse actions that are publicly known or recognised to be improper. An example of this is the extraordinary circumstance that members of government occupy commercial positions involving mind-boggling conflicts of interest. The most conspicuous of these - and there are many other examples - is the fact that the Chief Minister retains his chairmanship of one of the leading commercial banks in Anguilla. A former Governor implied that this was not as inappropriate as common sense would suggest. This has not, I believe, brought credit to the Foreign Office in the minds of many Anguillians.

 

6. Summary

 

6.1 The Government of Anguilla appears to be bent on disregarding the views of the Anguillian people as reflected in the Report of the Anguilla Constitutional and Electoral Reform Commission, of which it is assumed the FAC already has a copy.

 

6.2 If the FCO fails in its duty to ensure that any constitutional change does, indeed, reflect the properly informed views of the Anguillian people, Britain may well, in due course, have blood on its hands if, as could ensue as a consequence at some time in the future, the rule of law ceases to run in Anguilla.

 

6.3 The key to securing a successful future for Anguilla will be to ensure that proper checks and balances (of the kind described in paragraph 5.5 above) are written into any new Constitution that emerges from the current reform process. It will be wholly inadequate, and indeed counterproductive, for Anguilla to have a new Constitution that not only merely tinkers with these issues, but which further erodes such safeguards as currently exist (inadequate though they are), as the present government apparently wants, by placing yet more power in the hands of the elected representatives without accountability.

 

6.4 It is vital that, as in any civilised democracy, accountability should be underpinned by oversight and compliance measures. Whether these should merely be local (in the sense that they are enshrined in the Constitution and are therefore enforceable at law by those whom they affect) or whether they should also be international (in the sense that the FCO would have additional oversight powers), is a wider issue. The important point, however, is that if unfettered powers are transferred to the elected representatives, without the normal and proper checks and balances being improved and strengthened, the change will be worse than a missed opportunity - it will be a catastrophe.

 

 

 

 

 

 



[1] Please note that Annexes referred to have not been published since they are publicly available documents.