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OT 355: Letter from Gillian Merron MP, Parliamentary Under Secretary of State, Foreign and Commonwealth Office, to the Chairman of the Committee: St Helena, Ascension and Tristan Da Cunha: Constitutional Review
As the Committee is aware, we have been negotiating a new Constitution with St Helena, Ascension and Tristan da Cunha. This follows on from our commitment in the 1999 White Paper on the Overseas Territories to review constitutional frameworks across the Territories.
As we have advised the Committee previously, elected Legislative Councillors on St Helena made proposals back in early 2003 for a new Constitution that would have introduced a ministerial system of government in St Helena. Following discussions of these proposals with the FCO, a new Constitution was drafted and was published in St Helena with a view to wide public consultation. However, in May 2005, a consultative poll was held in St Helena which rejected the introduction of ministerial government. This led to a pause in discussions between the three islands and the FCO.
In 2008, a new draft Constitution[1] was drawn up which took on board all of the proposals from the 2003-2005 negotiations but excluded the idea of ministerial government, replacing it with the current non-party committee structure. Publication of this document led to further public consultation on all three islands and to face-to-face negotiations with the Councils on St Helena and Ascension, and teleconference and other discussions with the Council on Tristan da Cunha (given the difficulties of getting to that island).
As you can tell from the above, development of a possible new Constitution for the three islands has been a long process and it is not yet complete. But I believe that a great deal of progress has been made and that it might be possible to put a new Constitution Order to the Privy Council in July. While consultation on the three islands is not yet complete, I propose to go back to the three Councils in June asking them whether they are ready to agree a new Constitution on the basis of negotiations undertaken so far and on the results of public consultation.
Given that the timing at the point I go back to the Councils might be tight, I thought that you would welcome sight of the draft as it currently stands, but bearing in mind that it is still open to public comment and that it has not yet been signed off by any of the three Councils.
I thought it might be helpful if I draw out some of the key points as follows;
• it replaces a 1988 Order which no longer serves the needs of those living on the three islands well. For example, the 1988 Order gives the Governor some very broad powers and has no bill of rights. It is also very confusing in the way it sets out what provisions relate to St Helena, to Ascension, and to Tristan da Cunha. It does not recognise legal change that has gone on on the islands and elsewhere; nor does it reflect the reality of changes that have taken place in practice.
• the new draft is made up of three Chapters (one for each island) - hence the length; and the word "dependency" is gone. This is not just a matter of language, but a recognition of the fact that Ascension and Tristan da Cunha are not "dependent" on St Helena; and that St Helena's Legislative Council does not and would not have the power to legislate for Ascension and for Tristan da Cunha. Rather the roles of Administrators and Island Councils on Ascension and Tristan da Cunha would be formally recognised in the highest law of the land; and their own institutions would hence have a constitutional basis.
• a bill of rights: for the first time. This would be based on the European Convention on Human Rights, but would be broader and specific to the circumstances of the three islands. Every one would be able to see clearly what their rights are, and those rights would not be able to be weakened or removed by local law. In addition, should an individual want to make a complaint they would be able to do so in the local courts, and not have to go to Strasbourg.
• "partnership values". An innovation for a Constitution which came out of earlier consultations on the islands. These would set out the nature of the relationship between the three islands and the UK, and between the three islands. They would establish a tone and a set of principles which all would have to live up to.
• True independence for the judiciary and the public service. This is not clearly established in the current Constitution. For example, the new Constitution would take away the possibility of the Governor dismissing judges without reference to an independent body, and it would take away the possibility of political interference in eg the hiring and firing of public servants.
• Strong accountability. Silence on financial issues would be replaced by a set of new provisions which would ensure greater transparency, accountability, and independent audit.
I hope you find this letter and the draft helpful. If you have any comments or questions, we would of course be happy to answer them. I shall, in any case, come back to you when we have clarity from the three Councils as to how they wish to move forward.
18 May 2009
[1] Not published as already in the public domain. |