Councillors Report Progress on Constitutional Review

COUNCILLORS REPORT PROGRESS ON CONSTITUTIONAL REVIEW

 

By J. Brock (FINN)

 

The Select Committee on the Constitution have been working steadily since 2000 in order to bring the Falkland Islands Constitution up to date.  Councillor Mike Summers, Chair of the Committee, has issued a press release to show the progress that the Constitutional review has made thus far.  It has been phenomenal. 

 

In the early stages various members of the public met together to brainstorm about what they thought should be in a re-vamped Constitution.  There have been several meetings of the Select Committee and visiting experts to advise on the way forward.  Rather than list these points again, FINN has attached the most recent info, authored by Cllr. Mike Summers, so readers can have a look, perhaps to comment on the progress thus far made.

 

Constitutional Review Progress and Activities to Date.

 

1. The Select Committee on the Constitution was set up by Legislative Council in April 2000, following the suggestion in the 1999 UK White Paper on the Overseas Territories that all OT's should examine their Constitutions, and constitutional relationships with the UK, to ensure that they suited all the current day circumstances. No time limit has been placed on the review, and it is considered that getting all the constituent parts right is the most important issue. At the same time as reviewing Constitutional issues, Councillors and the Civil Service have been looking at ways to streamline Government to provide a more cost effective service. Several of these issues interact with each other.

 

2. The Select Committee has met on a number of occasions as follows:

 

31 May 2000 - closed session to consider scope and procedure

21 and 23 June 2000 - closed sessions to meet Ian Hendry - Legal Advisor FCO

4 December 2000 - open session to receive written evidence from the public and presentations from the Attorney General, the Chief Executive and Arthur Donahoe, Secretary-General, CPA

4/5 December 2000 - closed sessions with Arthur Donahoe

20 February 2001 - closed session to consider a referendum on single constituency

24 May 2001 - closed session, further consideration of the referendum issue

19 February 2002 - open session to consider a number of issues, in particular a new Chapter on human rights and fundamental freedoms drafted by Henry Steele, advisor to the FCO.

25 March 2002 - open session to consider revised rules for the conduct of Legislative Council, and suggestions from the Chief Executive on the committee system/structure of Government

16 May 2002 - open session to further consider the structure of Government

20 August 2002 - closed session to consider the way forward on portfolio/committee issues

28 January 2003 - closed session on structure of Government, codifying the role of the Speaker, and further consideration on compulsory purchase legislation

24 March 2003 - closed session on a composite Chapter One

3 June 2003 - Councillors workshop to develop ideas on revised structure of Government.

8 January 2004 - closed session to further consider issues raised by the workshop.

18 February 2004 - closed session to review progress to date and set a future timetable.

26 October 2004 - closed session to reach consensus on the structure of Exco and the supporting committee structure.

 

3. The Select Committee was inactive through the latter part of 2001 until after the general Election in November 2001. The Select Committee remains hopeful that it will have a firm proposal to put to the public on Constitutional change within the next 3/4 months, but it is clear that changes are highly unlikely to have been implemented before the next General election in November 2005.

 

4. A number of issues have been considered and resolved throughout this period which arose out of discussions in the Select Committee but did not necessarily require constitutional change to proceed with them.

 

i. Single Constituency. A referendum was held co-incident with the 2001 General Election to gauge support for a single constituency and revised voting system. The majority of votes in both Stanley and camp were against the single constituency, and the matter was dropped. It has still to be concluded whether the matter of constituencies should be removed from the Constitution to the Electoral Ordinance to enable further consideration of the matter independently from constitutional change. Councillors favour this option provided that changes of constituencies can only be made following popular ballot.

 

ii. Legislative Council Standing Rules and Orders. These were reviewed and amended in a number of respects to enable and encourage greater debate in Legislative Council.

 

iii. Speaker. Legislative Council elected its first Speaker, and set out his duties and responsibilities. Councillors agree that there should be provision in the Constitution for a Deputy Speaker.

 

iv. Principal Auditor. The role, duties and responsibilities of the Principal Auditor, and his tenure of office, have been revised and clarified, as have the requirements to seek value for money from the outside audit. Some further discussion may be required to ensure that all provisions are now adequate but as cost effective as possible.

 

v. Management Code. A new modern management code for the Civil Service has been introduced after wide ranging consultations and discussions with staff. These replace General Orders, and have the effect of making Colonial regulations redundant in most respects. The issue of whether Civil Servants are employees or not, and how their rights are protected, remains to be finalised.

 

vi. Commander British Forces. It has been unanimously agreed by members of the Select Committee that the CBF should remain a member of both Legislative Council and Executive Council. The matter will not therefore be considered further.

 

5. There are a number of other issues that have been identified and largely agreed, but do require amendments to the Constitution to bring them into effect.

 

i. Revised Chapter 1. This chapter deals with the Fundamental Rights and Freedoms of people.  It is intended that the right to self-determination be included in the body of the chapter, and a number of amendments made to bring us into line with the European Convention on Human Rights. None of these represent a major departure from current practice or the present Constitution.

 

ii. Citizenship Anomalies. Some revised wording has been drafted to deal with anomalies affecting children born abroad (generally for medical reasons) who would otherwise be Falklands citizens, but under current definition are not.

 

iii. Ombudsman. There is general agreement that there should be provision for an ombudsman, or complaints commissioner. It has yet to be agreed how such an office should be set up and resourced, but Councillors agree that provision should be made in the Constitution for this office, which should also act as the Human Rights Commission.

 

iv. Mentally Ill Patients. There is currently no provision for us to be able to send away mentally ill patients for treatment if they do not give their consent. This will need to be rectified in Chapter I.

 

v. Fixed Penalty Notices. Some changes to the wording of the Constitution are required to enable the introduction of fixed penalty notices (eg for parking infringements).

 

vi. Internal Self-Government. There is a need to solidify, and in some cases codify, the extent of internal self-government, which underpins the right to self-determination. A clear description is required of the role of the Governor as head of the Public Service and the role of the Chief Executive as head of the Civil Service, and the separation between the two. Greater clarity is required of the circumstances in which the Governor may intervene in domestic affairs in the name of "good governance".

 

vii. Appointments. The present Constitution says that the Governor acting in his discretion should appoint and dismiss Civil Servants (at all levels from Directors to part time workers), and be responsible for disciplinary control. Councillors do not believe that in this modern age there is any practical necessity for the Governor to be involved in appointments below Director level; these, and other personnel management issues in the Civil service should be the responsibility of the Chief Executive. This will require further discussion and codification, and possible revisions to the Constitution.

 

viii. Public Accounts Committee. Councillors believe that there should be provision in the Constitution for a Public Accounts Committee (or other appropriate name), which would be an instrument of Exco or SFC, to investigate value for money or other issues put to it. It would not be a standing committee, but would be called together when required by one of those two bodies; its membership might change from one investigation to the next depending on skills required.

 

6.       There have been lengthy discussions of a wide range of options for the future structure of Government with which all parties can be comfortable. A number of issues have been largely agreed which will form the background to a detailed proposal. These are:

 

-          we should be internally self governing to the maximum extent possible whilst delivering the highest standards of probity, law and order, good government and observance of Britain's international commitments, all as set out in the White Paper

-          Executive Council should continue to be the most senior Government body

-          we should continue to strive for greater openness in Government so far as is practicable

-          elected members should be accountable for the decisions and actions they take

-          to achieve such accountability members must take greater responsibility through development of portfolio responsibilities

-          however the Falkland Islands is not yet suited to full time Councillors and full ministerial responsibility is not therefore an option

-          there is a sufficient number of Councillors at present

-          however in order to fulfil the necessary workload all Councillors must be involved in the decision making processes as far as possible

-          nevertheless there must be sufficient scrutiny in the system, to critically examine decisions and their application

 

7. Not all of these features would automatically lead one to the same conclusions. There are for example:

 

i. tensions between having all elected members fully involved in Government, and having scrutiny of the executive functions of Government that demonstrably works;

 

ii. tensions between Councillors taking more responsibility and being more accountable, but being part time;

 

iii. choices between having a restricted number on Executive Council as we do now, or having all members on Executive Council, and consequently having everyone involved in decision making, yet ensuring there is sufficient scrutiny of executive functions.

 

 

8. Areas where Councillors are now largely agreed are:

 

1. authority and decision making in government should be devolved to the lowest competent level, including from Executive Council to Management Committees
2. Exco would seek to confine its debate to strategic and policy issues, and where appropriate would act as an appellate body
3. all eight Elected Members of Council should be members of Executive Council
4. there should be eight Management Committees with limited executive power to carry out the strategies and policies approved by Exco
5. the chair of each of these Management Committees should be a Councillor, with two other elected members on each Management Committee. The Chair would be the advocate for that Committee and "critical friend" to the respective Head of Department.
6. these Committees should be the mechanism through which elected members portfolio responsibilities are exercised
7. there should be no lay members on Management Committees, since they have no standing in terms of responsibility and accountability for decisions. There would be as many officers on Management Committees as were strictly required to carry out it business; others could be invited to attend for particular items. Only elected members would have a vote.
8. Management Committees could have advisory panels for particular issues, largely made up of lay members, but with the right of attendance for the Chair.
9. minutes and/or reports of Management Committees would be submitted to Exco for review and explanation where required, with Exco having the right to amend decisions where necessary.
10.  SFC should continue as a sub-committee of Legislative Council and be chaired by a Councillor.
11. Councillors will continue to meet in caucus as and when required, but there will be no move to formalise GPC or provide for it any particular role.

 

9. Councillors and officials will continue to work to devise a system that is efficient, makes best use of time available, is open and transparent, but which suits our particular circumstances.  The Select Committee will meet again on Friday 26 November to confirm acceptance of the revised Chapter 1 and go through the Constitution clause by clause to pick up any outstanding issues.

 

 

 

Mike Summers

Chair, Select Committee on the Constitution

9^th November 2004