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Mission - Overview - Departments - Islands Plan - CONSTITUTIONAL REVIEW - FIDC - FLH - FCO - Relationship with UK REVIEW OF THE CONSTITUTION OF THE FALKLAND ISLANDS The Select Committee on the Constitution was
set up by the Legislative Council of the Falkland Islands in April 2000,
following the suggestion in the 1999 UK White Paper that all Overseas
Territories of the United Kingdom should examine their Constitutions, and
constitutional relationships with the UK, to ensure that they suit current
day circumstances. 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. Legislative Councillor Mike Summers, Chair of the Select Committee on the Constitution, has published two reports in November 2004 and October 2005 on behalf of the Select Committee to keep the population of the Falkland Islands informed of the progress of the Select Committee’s deliberations. KEY ISSUES FOR THE SELECT COMMITTEE The Select Committee aimed to ensure:- a) that the Constitution of the Falkland Islands is appropriate for our current stage of political and social development; b)
that the Constitution properly reflects the principles of
partnership set out in the UK White Paper, with which the FIG concurs. The
stated principles that underlie that partnership are: - the partnership must be founded on self-determination; the Overseas Territories are British for as long as they wish to remain British - the partnership creates responsibilities on both sides; Britain is pledged to defend the Overseas Territories, to encourage their sustainable development and to look after their interests internationally; in return Britain has the right to expect the highest standards of probity, law and order, good government and observance of Britain's international commitments - the people of the Overseas Territories must exercise the greatest possible control over their own lives -
Britain will continue to provide help to those
Overseas Territories that need it c) that the structure of Government is appropriate to deliver cost effective and efficient services to the people of the Falkland Islands d) that we have appropriate standards of human rights in accordance with the UK's obligations under the European Convention on Human Rights which now forms part of UK law e) that the principles of openness and transparency are enshrined in our democratic process f)
that the people of the Falkland Islands have had full
opportunity to participate in the review process and are comfortable with
the proposed amendments PROPOSALS NOT REQUIRING CONSTITUTIONAL CHANGE The report covered a number of issues which have been considered and resolved by the Select Committee, and which do not require constitutional change before they can be implemented:- Single
Constituency – A
referendum was held contemporaneously with the 2001 General Election to
gauge support for a single constituency, in place of the two separate
constituencies for Camp and Stanley as exist at present.
The majority of votes in both Camp and Stanley were against a
single constituency. The 2005
report notes, “In order
that this matter can be considered again when the time is right the Select
Committee is of the unanimous view that the matter of constituencies
should be removed from the Constitution to the Electoral Ordinance. This
will mean that if at any time there is a wish to re-examine the merits of
such a change it can be done independently of further Constitutional
change.” The report goes on
to list the arguments for and against a single constituency. Legislative
Council Standing Rules – These have been amended to encourage greater debate in Legislative
Council (whose sessions are broadcast Islands-wide on the Falkland Islands
Radio Station). However, the
2005 report notes that it is not evident that greater debate in
Legislative Council has resulted, and it is still the case that
legislation passes with a minimum of discussion, all such discussion
having taken place beforehand elsewhere. Speaker
– The Legislative
Council now has a Speaker elected by Legislative Councillors.
Previously meetings of Legislative Council were chaired by His
Excellency the Governor, who still presides over meetings of Executive
Council.
The 2005 report notes that provision is required for a Deputy
Speaker, and for transitional arrangements from one Council to the next. Principal
Auditor
- The requirement for audit of Government's finances is included in the
existing Constitution, though in terms that are very brief and lacking in
clarity. The provisions do not reflect current arrangements which have
been developed over time and take account of advice from UK District Audit
Service. These are now contained in the terms of appointment of the
Principal Auditor but should more properly be enshrined in minor
amendments to the wording of the Constitution. Management
Code –
A new modern management code for the Civil Service has been introduced,
replacing the old General Orders and making Colonial Regulations
redundant.
The Employment Protection Ordinance 1989 has been extended to Civil
Servants to give them protection against unfair dismissal. Commander
British Forces – The
Select Committee unanimously agreed that the Commander of British Forces
in the South Atlantic should remain a member of both Legislative Council
and Executive Council. PROPOSED
AMENDMENTS TO THE CONSTITUTION The 2005 report sets out in detail proposed amendments to the Constitution. These amendments will require the consent of the UK Government before they can be implemented. Chapter 1 - Fundamental Rights and Freedoms The preamble to Chapter 1 of the Constitution sets out the right of self-determination, in other words the right for Falkland Islanders to decide their own destiny. It is proposed that the right to self-determination be included in the main body of the Chapter. A number of amendments to Chapter 1 are proposed, to bring the Constitution into line with the European Convention on Human Rights. Chapter 1 deals with the Fundamental Rights and Freedoms of the people of the Falkland Islands. It sets out the basic rights of the individual in society and provides certain protections. It leads the way in protection against various forms of discrimination, and enshrines the right to freedom of speech. The 2005 report sets out the amendments and the reasons for them in detail, particularly in relation to the protections against discrimination. The 2004 report notes that none of the amendments represent a major departure from current practice or the present Constitution. Amendments to Chapter 1 include the abolition of the death penalty, the abolition of imprisonment on account of inability to pay a debt, provision that where required by the interests of justice (ie. in serious criminal cases) the accused must be provided with a defence lawyer at public expense if he cannot afford legal representation (this reflects current practice), and the introduction of a constitutional right to compensation in certain cases where there has been a miscarriage of justice. A person suffering from a mental illness or disorder, which cannot be treated in the Falkland Islands, can in future be sent to the United Kingdom without their consent for treatment or secure detention. New provision is made giving protection of the right to marry, and the right not to be forced to marry, and providing for equal rights and responsibilities to spouses as between themselves and as regards their children. New provision is also introduced to reflect current law and practice in the Falkland Islands, giving protection to the right to education and providing that every child of the appropriate age as provided by law shall be entitled to receive education. Certain citizenship anomalies in the current law are resolved, to deal with children born abroad (generally for medical reasons) who would otherwise be citizens of the Falkland Islands but who under the current definition are not. Chapter
II - Governor The Constitution at present provides that the question of whether the Governor has in any matter complied with instructions given by Her Majesty through a Secretary of State shall not be enquired into in any Court of Law. “The Select Committee can see no reason why the Governor in the execution of his duties should not be subject to the due process of law, as is every other public servant. This has been put to the FCO for justification, modification or removal.” The Select Committee is of the view that the Constitution should be amended to make it clear that the police and the Falkland Islands Defence Force are the responsibility of the Chief Executive, and not the Governor, in the same way as other Civil Servants. In the past some Governors have interpreted the Constitution to mean that they have direct line responsibility for the police and the defence force. Chapter III - Legislature The age at which an elector can stand for election to Legislative Council is to be reduced from 21 to 18 to reflect modern trends and practice. The qualifications for electors are to be removed from the Constitution to the Electoral Ordinance. The 2005 report considers in detail the arguments for and against the current requirement that only Commonwealth citizens can become electors, and concludes that on balance the Select Committee at this stage recommends its retention. Chapter IV - Powers and Procedures of Legislative Council The quorum for a meeting of Legislative Council is to be six elected members. The present requirement that that the Governor must approve any amendment to the Standing Orders of Legislative Council is to be removed to recognise that meetings of Legislative Council are now presided over by the Speaker and not the Governor. The 2005 report notes that further discussion is required with the FCO, first, to agree a defined process of appeal if the Governor refuses to assent to a Bill, and Legislative Council disagrees with his decision, and second, regarding the power reserved to the Governor (with the approval of the Secretary of State) to enact a Bill or other measure which has been presented to but rejected by Legislative Council. Chapter
V - Executive “This
is a critical part of the Constitution and the one that has caused the
greatest debate and discussion in Select Committee, since it deals with
how the executive functions of Government are carried out. It deals inter
alia with the structure and powers of Executive Council which is the
Governments primary policy making body. A range of options for the makeup
of Executive Council have been discussed, including maintaining the status
quo, formalising the role of the currently informal General Purposes
Committee, retaining three elected members on Executive Council and
assigning to them three ‘super-portfolios’, having five portfolio
holding members of Executive Council and three non Exco members
effectively forming the opposition, and having all eight elected members
on Executive Council. In the search for inclusiveness, transparency and
accountability Select Committee has concluded that the interests of the
people of the Falkland Islands would be best served by having all eight
elected members as members of Executive Council, supported by an enhanced
committee system with limited powers delegated to them from
Executive Council.”
The
key requirements which guided the discussions on the future shape of the
Executive 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, in
accordance with the terms of the 1999 UK White Paper on the Overseas
Territories -
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 more accountable for the decisions and
actions they take - To achieve greater accountability members must take greater
responsibility through development of the portfolio system - There must be sufficient scrutiny in the system, to critically examine
decisions and their applications. At present the Governor acting at his discretion has sole authority to decide the content of Executive Council meetings, allowing him to introduce any item of business or refuse to discuss any item of business. The Select Committee concluded that both the Governor and every elected member of Executive Council should have power to introduce any item of business. It is proposed that the quorum for meetings of Executive Council should be three elected members, with provision that in extreme circumstances where there were for any reason insufficient members to vote on an issue, electronic communication should be used to register the votes of absent members if the business was of the utmost urgency and could not be deferred. A further amendment is proposed clarifying that where the
Governor consults with Executive Council, he must accept its advice.
The Constitution contains a list of circumstances where the
Governor is not required to consult with the Executive Council.
“Whilst Select Committee considers these are reasonable
circumstances, it recommends that he shall in all cases, as soon as
practicable, communicate to the Executive Council the measures he has
adopted and the reasons therefore. As currently drafted he is only
required to do so in restricted circumstances. Select Committee takes the
view that it cannot be right in a democratic society, where the promotion
of internal self government is one of the priorities, that the Governor is
free to act without advising Executive Council.”
The Constitution also sets out the circumstances where the Governor may act against the advice of Executive Council. At present if the Governor does so act against advice, he is required to report his actions without delay to the Secretary of State, with the reasons for his actions. “Select Committee is of the view that in these days of instant communications the Governor should consult with a Secretary of State before acting against the advice of Executive Council provided that it is practicable to do so, and there should be a mechanism for Executive Council to put its view to the Secretary of State before the matter is determined.” Chapter VI - Finance No
significant amendments proposed. Chapter VII - Public Service At present the Constitution gives the Governor absolute power to make,
confirm and terminate appointments and exercise disciplinary control over
the Civil Service, at all levels from Directors to part-time workers.
“Select Committee does 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 working to the Management Code - a document that has been
formally approved by Executive Council and by the Foreign and Commonwealth
Office. It is the Chief Executive after all, and not the Governor, who has
actual day to day responsibility for the effectiveness of the public
service, and needs the proper tools to carry out his tasks.” “Select Committee respects
the age old UK civil service mantra that politicians should not be
involved in the appointment and dismissal of public servants, to ensure
that nepotism and corruption continue to be avoided. Nevertheless elected
members do work closely with many public officers, and often have more
direct knowledge of their strength and weaknesses and of their
effectiveness than the Governor, and in terms of directing Government
policy Councillors are often more closely aware of the skill that may be
required in new appointments. And it is elected members who at the end of
the day are democratically accountable for the proper performance of the
Government at all levels in the execution of its functions.
Select Committee recommends therefore that there should be
considerable formal delegated authority to the Chief Executive in
appointments and the exercise of disciplinary control, and a limited role
for Executive Council in appointments.” The 2005 report notes that there has been lengthy debate and substantial difference of opinion, both amongst members of the Select Committee and amongst its advisors in the civil service, as to the merits in our circumstances of a Public Service Commission, which in other jurisdictions is the body that makes public service appointments. There is no agreement that such a body would currently make a useful or cost effective contribution to the running of Government. This issue is to be further discussed. Chapter
VIII - Judicature No significant amendments are proposed.
The report notes that the Select Committee supports the view of the
current and previous Governors that the Senior Magistrate should be
appointed for a period not exceeding three years with no provision for
extension. 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 would also act as the Human Rights Commission. Public
Accounts Committee – It
is proposed that a body be set up as an instrument of Executive Council or
the Standing Finance Committee, for the purpose of investigating value for
money and other issues put to it. It
would not be a standing committee, but would be convened only when
required by its parent body. Its
membership might change from one investigation to the next depending on
the skills required. Internal Self-Government – The 2005 report ends by noting that, “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 clearer description 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 is hopefully achieved [by the proposed amendments to the Constitution outlined above]. However the circumstances in which the Governor may intervene in domestic affairs in the name of ‘good governance’ is an issue that has concerned all Overseas Territories in recent years. Good governance is something to which we all collectively aspire; it is not the preserve of a single person or group of persons, and should not be confused with cultural or political differences. It remains the concern of this Select Committee (and its successors) to ensure that the balance between the UK's legitimate interests and the maximisation of internal self government is properly maintained.” FUTURE STRUCTURE OF GOVERNMENT The 2004 report stated that the aim of the Select Committee is to devise a system that is efficient, makes best use of time available, is open and transparent, but which suits the particular circumstances of the Falkland Islands. In support of this aim the 2004 report noted that Councillors have agreed:- "(a) Authority and decision making in government should be devolved to the lowest competent level, including from Executive Council to Management Committees. (b) Executive Council would seek to confine its debate to strategic and policy issues, and where appropriate would act as an appellate body. (c) All eight Elected Members of Council should be members of Executive Council. (d) There should be eight Management Committees with limited executive power to carry out the strategies and policies approved by Executive Council. (e) 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. (f) These Committees should be the mechanism through which elected members portfolio responsibilities are exercised. (g) 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 its business; others could be invited to attend for particular items. Only elected members would have a vote. (h) Management Committees could have advisory panels for particular issues, largely made up of lay members, but with the right of attendance for the Chair. (i) Minutes and/or reports of Management Committees would be submitted to Executive Council for review and explanation where required, with Executive Council having the right to amend decisions where necessary. (j) SFC [Standing Finance Committee] should continue as a sub-committee of Legislative Council and be chaired by a Councillors. (k) Councillors will continue to meet in caucas as and when required, but there will be no move to formalise GPC [General Purposes Committee - an informal meeting of all eight Councillors usually held the day before Executive Council meets] or provide for it any particular role." NEW PORTFOLIO RESPONSIBILITIES Government is slowly moving towards the eight Management Committees identified in the 2004 report. (The section of the 2004 report set out above dealing with the future structure of government was not repeated in the 2005 report, which concentrated on the proposed amendments to the Constitution.) Following the General Election in November 2005, Councillors have now adopted eight ‘super portfolios’. In a press release dated 23 November 2005, Councillor Summers stated, “Councillors decided to adopt a new approach to portfolio responsibilities, that will hopefully reflect future restructuring and rationalisation of the Committee system, and fit with possible amendments to the Constitution in due course.” Portfolios have been grouped into eight areas of responsibility. These are Camp Issues, Health Services & Public Protection, Corporate Services, Regulatory Services, Education & Training, Public Works, Industries & Development, and Land Use. Each portfolio holder is supported by two other Councillors. The press release went on to say that it is for portfolio holders to consult with the Chief Executive and Heads of Department on how best to organise their responsibilities and committee functions. It is envisaged that a number of Committees will be rationalised. Portfolio holders will be encouraged to take full responsibility for their areas of activity and keep the public informed of relevant developments. Sources: (1)
‘Report
of the Select Committee on the Constitution’ by the Honourable Mike
Summers, Legislative Councillor and Chair of the Select Committee,
November 2004 (2)
‘Report
of the Select Committee on the Constitution’ by the Honourable Mike
Summers, Legislative Councillor and Chair of the Select Committee, October
2005 (3)
Press
Release by Councillor Summers on behalf of Legislative Councillors dated
23 November 2005
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