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The Tristan Times - Tristan da Cunha
The online newspaper of Tristan da Cunha
  Issue No. 581 Online Edition Saturday 20 December 2014 
Home | Categories | Government Please tell us what you think of this article. Tell a friend Print Friendly

Tristan : Constitutional Reform
Submitted by Tristan Times (Juanita Brock) 24.10.2003 (Current Article)

Cllr. the Hon. Mrs Cathy Hopkins has answered the Parliamentary Under-Secretary for the Overseas Territories regarding Constitutional Reform. Some of these affect Tristan.

Bryantís Beacon

Captain Wrightís Turning

Alarm Forest

St Helena

STHL 1ZZ

Tel/Fax 00 290 4634

Email CONSTITUTION.DEV@helanta.sh

 

Friday 03 October 2003

Mr Bill Rammell MP

Parliamentary Under-Secretary of State for Overseas Territories

Foreign and Commonwealth Office

King Charlesí Street

London

 

Dear Mr Rammell

  1. Further to my letter of 19 September, the Elected Members are now able to give you a substantive reply to your letter of 16 September. In the meantime, we have asked that, if possible, arrangements be made for meetings with you and your officials in London, preferably in the week of 1 Ė 5 December. Some of our members will be there at that time to attend the UKOTCC. We believe it will be helpful to us and to you to resume the face to face dialogue that began so productively during the visit of the FCO delegation to St Helena in April/May.

  2. In preparation for our talks, we should like, in this letter, to

  • explain to you why we do not think that a two-tier system of Government on the Caribbean model would best meet St Helenaís needs;

  • respond to your arguments that, even so, such a system would work well for St Helena; and

  • ask you to clarify how aspects of the 2-tier system and other matters of special concern to St Helena would be dealt with under the revised draft enclosed with your letter ("the September draft").

We have decided to put these matters to you now, so that you will have time to think about them before we meet.

St Helenaís aspirations

  1. Nothing is more important to the people of St Helena than the ties that bind them to Britain. In making a new Constitution, a close and long-lasting relationship between us is the first priority. You have accepted that (#2(a) of the September draft).

  2. For a long time, we thought that a change in our status was the key to a more responsive and permanent partnership. In international forums, it has been argued on our behalf that, in the exercise of our right of self-determination, we have the option of seeking a relationship of integration or free association with Britain, as recognised by resolutions of the United Nations General Assembly. We ourselves asked to become a "British Island" or a "Crown Dependency". The United Kingdom Government seemed not to listen to these requests, or to understand our reasons for making them.

  3. Because we were focussed on a change in St Helenaís status, we paid little attention to developing our own institutions of government. That is the main reason why our constitutional development has lagged behind that of other Overseas Territories. More recently, however, since we started reviewing our Constitution with the benefit of independent advice, we have been persuaded that, without changing the label "Overseas Territory", that status should be capable of accommodating our need for a closer and more even-handed partnership with the United Kingdom, lasting into the indefinite future.

  4. For that reason, we have identified the partnership values and accepted the duty to give effect to them (# 7and 8). The FCO delegation welcomed that step. We accept that, if we misunderstand or neglect the partnership values, the Governor must have the power to lead us back to them. But, having freely chosen to accept them, we consider that we should have the primary responsibility for observing them. The Governor should not step in unless we are at fault.

  5. St Helena sees its partnership with the United Kingdom as based on a government to government relationship. It can never be an equal partnership, because the United Kingdom Government will always be able to decide whether or not to meet our requests. But we must be able to speak to our partner with our own voice, and be confident that our requests will be taken seriously. You have accepted that approach.

  6. As agreed in May, #3 of the September draft provides as follows:

    "The relationship between the United Kingdom and St Helena is one of partnership, as is declared in the White Paper, Partnership for Progress and Prosperity. The Constitution will therefore establish a Government of St Helena that

    (a) has a political as well as a legal identity distinct from that of the Government of the United Kingdom; and

    (b) is capable of entering into government-to-government relations with the United Kingdom Government."

    Why we do not favour the 2-tier system

  7. You may not realise that we ourselves carefully considered a two-tier system. The September draft largely incorporates the alternative proposals we had before us. We decided against this alternative because it is based on the premise that, as long as a country remains an Overseas Territory, the United Kingdom Government, through the Governor, will exercise a measure of control. That control operates, not just when the partnership values are in issue, or in an extraordinary situation when democratic government has broken down, but on a day-to day basis, through direct involvement in the Governmentís decision-making.

  8. We are not sure whether, today, the 2-tier system fully meets the needs of the peoples who live under it, in the Caribbean or elsewhere. Nor do we know what proposals for the amendment of their Constitutions the Caribbean Overseas Territories have put forward. In any event, as a recent serious study shows, their present constitutional arrangements are based on the assumption that their status as an Overseas Territory is a temporary resting place, on the way to independence.

  9. The 2-tier model is very like the constitutions of former British colonies that are now independent, at the stage when independence had become the recognised goal but was still to be attained. The White Paper makes it clear that, if at any time the people of an Overseas Territory are no longer satisfied with their existing status, their right of self-determination gives them the option of moving to independence.

  10. The option of independence is of no help to St Helena. In all our consultations with the people, no one raised that possibility. It does not enter into our thoughts. In the exercise of our right of self-determination, we want our status as an Overseas Territory to become the basis for a closer and more cooperative partnership with the United Kingdom. That vision is at the heart of our proposal for a 3-tier system.

  11. It is not possible to weigh up the advantages and disadvantages, for St Helena and for the United Kingdom, of the standard form of 2-tier system on the Caribbean model without taking proper account of the fact that our basic objective is so different from that of other Overseas Territories. We ask you to reassess the balance sheet in that light. But it would be wrong to leave unanswered your points of criticism of the 3-tier system, in comparison with the 2-tier system you favour.

     

    Your arguments that a 2-tier system would work well for St Helena

  12. We should like to begin by saying that we do not doubt the advantages that Ministerial government will bring to St Helena, in comparison with our present Committee system. On that point, we accept all that you say. But your analysis focuses on the individual responsibility of Ministers for their departments, and on the collective responsibility of all Ministers once decisions have been taken, either by a single Minister or with the concurrence of them all. At no point do you deal with the question of how, under the 2-tier system, Ministers would be able to engage in collective decision-making, except in the Executive Council where the Governor is to preside. That is the question we are worried about.

    No party system in St Helena

  13. In a country with a party system, the Governmentís policies are based on the philosophies of the political party or parties with a majority. Possibly, they will have been set out in an election manifesto. The commitment to them of both Ministers and Government backbenchers will be reinforced by party discipline. In all normal circumstances, the Government will be able to count on the support of a majority in the legislature for its policies and legislative proposals.

  14. Those forces for cohesion will not be present in St Helena. Here, there are no political parties. The draft Heads of Agreement provide that the Chief Minister will be elected by a majority of the members of the Legislative Council, by secret ballot. He or she will recommend as Ministers, 3 or 4 other members. No doubt the Chief Minister will choose his or her colleagues in the expectation that they will be able to work well together, but their political outlooks may vary.

  15. Similarly, the Chief Minister will have been elected by a majority, but may not know how that majority was made up. Nor will those who voted for the Chief Minister at the time of the election necessarily support all Government Bills. The Chief Minister and the other Ministers may need to negotiate majority support for every piece of legislation, including the Appropriation Bill. This will make the executive answerable to the legislature in a very real way, but at the same time it will put to the test the Governmentís ability to get its legislation through, and also its stability. In such circumstances backbenchers have a tendency to see themselves as the Opposition.

    The need for the Chief Minister to exercise a leadership role

  16. Under the present Constitution, the Governor has a general duty to consult the Executive Council and act in accordance with the advice given to him by the Council. But, having been separately elected as the Chairmen of Committees, the Executive Councillors are free to give their advice to the Governor on an individual basis. When we looked at the consequences of moving to Ministerial government, we concluded that the Chief Ministerís ability to choose the other Ministers would not, by itself, produce the coherent, transparent and accountable government that the public is looking for.

  17. To meet the publicís expectations, the Government must have a clear sense of direction, ensure that the policy proposals of individual Ministers are consistent with it, and be able to adjust its policies and priorities in response to the wishes of backbenchers. This means that the Ministryís position on any matter, including any advice to the Governor, must be properly co-ordinated. The Chief Minister, rather than the Governor, must have the responsibility for hammering out differences of approach among Ministers and reaching a consensus on the Governmentís policies and priorities. The effective exercise of that responsibility is a prerequisite for the exercise of the Chief Ministerís further responsibility to ensure that the Government retains the support of a majority in the legislature on issues of confidence, including supply, and is able to get its legislation passed.

    Informal arrangements for coordination not enough

  18. We looked at whether the necessary coordination of the Governmentís policies could be achieved through informal arrangements like those described in the FCOís paper on the Caribbean. These include a Ministerís duty to consult his or her colleagues on matters of importance to the territory or likely to affect other departments, and the Ministersí practice of meeting in caucus among themselves, or with the other Elected Members, on a regular basis. But we concluded that, in St Helena, there needs to be constitutional machinery which supports the collective responsibility of Ministers for Government decision-making, and the leadership role of the Chief Minister. Our reasons are as follows.

    Old habits die hard

  19. Although, since 1956 elected representatives of the people have had a role, both in the making of laws and in the Executive Council, the general perception is that the Castle has always governed St Helena and will continue to do so. There are no indigenous people with a tradition of having governed themselves, before their island was colonised. The expectation that things will never be any different is as hard to shake as the rock of our island. To make Ministerial government work, politicians have to develop a belief in their ability to take responsibility for St Helenaís governance, and to work effectively together under the political leader of their choice. Perceptions about the role and responsibilities of the Governor, the senior officials and the other public servants also have to change, among the holders of those offices, the politicians, and the wider community.

    The need for a change in the structure of executive government

  20. After thinking about it carefully, we concluded that the necessary changes of perception would not occur unless there is a change, not only to bring about the individual responsibility of Ministers for their departments, but also in the structure of executive government. Only then will Ministers be seen to have responsibility for the Governmentís collective decision-making, and be best able to exercise it effectively.

  21. Structural change, in comparison with the informal consultation arrangements operating in the Caribbean, has another important advantage. In addition to the help that individual Ministers will receive from their own departments, Ministers meeting together to develop their policies collectively, especially on the big issues that St Helena faces, will have access both to logistical support, and to the advice and participation of senior officials, Heads of Departments, and other public servants as required. This is likely to enhance the quality of policy analysis and presentation, as well as its evaluation.

    A Cabinet as well as an Executive Council

  22. In thinking about a structure that would support Ministers collectively, as well as individually, and allow the Chief Minister to function effectively as the political Head of the Government, Cabinet government was a logical choice. In the Westminster system, executive government is still formally vested in Her Majesty, but the Cabinet is the decision-making organ. Cabinet government is the constitutional basis for Ministersí collective responsibility to the legislature. It exercises a moderating influence over individual Ministers in dealing with their portfolios. Because it evolved pragmatically in response to the need for more democratic government, the Cabinet system works well.

  23. We were clear, however, that St Helena would still need a forum in which Ministers could interact with the Governor, enable him to obtain their advice on the things for which he was still responsible, and give them access to his counsel and support. We therefore proposed that, as well as a Cabinet, there should also be an Executive Council in which the Governor would preside. But, except when dealing with things for which the Governor retains responsibility, the Council would not have a decision-making role.

    Weighing up the 3-tier system

  24. The 3-tier system we have devised seems to us to balance fairly

  • the need for Ministers in St Helena to exercise, in a forum presided over by the Chief Minister, their collective responsibility for executive government decision-making, including the negotiation of the understandings and agreements between the St Helena Government and the Government of the United Kingdom that give substance to our relationship; and

  • the need for the Governor to have the opportunity to monitor Ministersí collective decision-making, and the power to encourage them, warn them, and, in the rare cases where it might be necessary, make, or substitute, his own decisions.

  1. We do not accept that the 3-tier system is unduly bureaucratic and will slow down the business of government. We have set out in detail the way we see it as working, because otherwise it would have been impossible to explain it. We are well aware that, if every Cabinet minute had to be considered by the Executive Council, the process would be burdensome. But our perception is that this step will be necessary only in exceptional circumstances. In most cases, the Governor is likely to approve the Cabinet minute without delay, or simply let the time limit expire so that the decision automatically takes effect.

  2. The Governor will have seen all the Cabinet papers. He will have had an opportunity to raise issues of concern with the Chief Minister privately. If he so desires, he can require the Executive Council to meet before a matter is considered by the Cabinet. He will therefore have ample opportunity to make sure that his viewpoint is understood by all Ministers before they take a decision. The power of the Governor, at a meeting of the Executive Council, to require the Cabinet to reconsider a decision, and the duty of the Cabinet to do so, is a further safeguard. The "reserve" power of the Governor, if he is still not satisfied, to set the Cabinet decision aside and substitute his own decision, should never have to be used.

  3. We are not wedded to the detail of the 3-tier system as we have set it out. It may be possible to give effect to it more shortly. But, to take your second point of criticism, we firmly believe that the 3-tier system is fully consistent with the importance you place on the ability of the Governor to be able to advise, counsel and bring the "Westminster perspective" to bear at an early stage of the decision-making process. The 3-tier system makes it possible for this to happen in a more orderly and better-informed way than the informal processes of consultation and caucusing, before matters are put to the Executive Council, that you are happy to accept.

    Bringing the "Westminster perspective" to bear

  4. There is, however, something in your comments that troubles us. We assume that the "Westminster perspective", which you say must be brought to bear at an early stage of the decision-making process, means the partnership values as we have identified them in # 7. If so, they are fairly straightforward and capable of being easily applied in the vast majority of cases in which they are relevant. We would expect all recommendations to the Cabinet to take account of them. With all the safeguards that we have provided for, we cannot see why the need to give effect to the partnership values should always require the participation of the Governor, in a presiding role, in the discussion of government business and decision-making.

  5. Or have we misunderstood the extent to which the United Kingdom Government wishes to steer policy and its implementation in its Overseas Territories? Does the "Westminster perspective" mean something more than the partnership values? If so, we should like you to explain it to us. This possibility is of particular concern to St Helena, because, as you know, St Helena is in receipt of budgetary aid from the United Kingdom Government, through the Department for International Development.

  6. That situation constrains us severely. The budgetary process is always a difficult one. There is little scope for discretionary expenditure. We accept that we must fully observe any requirements, agreed to by the Government of St Helena, as a condition of receiving budgetary support or other assistance. But, when the amount and kinds of assistance, and any conditions on which it is to be given, are being negotiated and agreed, the Government of St Helena must speak with the voice, and only with the voice, of the peopleís elected representatives.

  7. When we were asked, at all our consultations with the public, what would be the benefits to St Helena of moving to a Ministerial form of government, that was the answer we gave. The 3-tier system meets this requirement, but we have grave doubts about how far that is true of the 2-tier system. We should therefore like to ask you some questions about the practical effect of your proposed changes to the draft Heads of Agreement.

    St Helenaís government to government relations with the United Kingdom Government (#3(b))

  8. The fact that you, and earlier the FCO, have entered into direct negotiations with us, the Elected Members of the Legislative Council, about what should go into a new Constitution, highlights the fact that the Government of St Helena, as at present constituted, is not able to speak for the people of St Helena on that matter.

  9. In contrast, the Government of St Helena negotiates and agrees with DFID on the Country Policy Plan for St Helena, a document that is of nearly as much importance to us as the Constitution. We understand that, in the negotiations, DFID deals with the Government of St Helena in the same way that it would deal with the Government of an independent State. In recent years, the elected members of the Executive Council have been involved in the discussions, but we have not had any real responsibility to represent the islandís view as a corporate and accountable executive.

  10. We should therefore like to ask you how things will work under the 2-tier system:

  • Will a Minister or Ministers have responsibility for every aspect of St Helenaís relationship with the United Kingdom (except the Governorís special responsibilities under #24(2)), including negotiations with DFID, or with the FCO?

  • If so, is it proper that Ministersí collective decisions in respect of any such aspect of the relationship will have to be made in the Executive Council where the Governor will be responsible for leading Ministers to a consensus? To what extent will he be expected or entitled to urge that the Governmentís negotiating position should accord with United Kingdom interests?

St Helenaís strategic objectives

  1. St Helenaís recently adopted strategic objectives include the following:

    Improved Access

    Improve the Standard of Education for the People of St Helena

    Development of a Sustainable and Vibrant Economy for St Helena.

    Develop a Healthy Community in a Safe Environment

    Promote and Develop a Sustainable Workforce

    Continue to Develop and Establish the Democratic and Human Rights and Self-determination of the People of St Helena

  2. The pursuit of these objectives will, in most cases, require the participation of all Ministers, because, in one way or another, most Government Departments will have a contribution to make. The attainment of the objectives will require a series of co-ordinated action plans carried out over an extended period. The Government will be responsible to the Legislative Assembly for the attainment of the objectives. Its success or failure is likely to affect its prospects of retaining office.

  • Is it proper that the Governor will have the responsibility of presiding over discussions in the Executive Council on the programmes and policies required, in order to attain St Helenaís strategic objectives?

  • Why should the Chief Minister not have the responsibility of leading Ministers through the necessary decision-making?

Responsibility for St Helenaís relations with Ascension

  1. We note the new #32(2)(c), to the effect that the Governorís general duty to act in accordance with the advice of the Executive Council is not to apply to any function conferred upon the Governor by the Constitution or other law concerning Ascension or Tristan da Cunha. That, of course, was always understood. But the partners have recorded the importance of the relationship between St Helena and its associated islands, especially Ascension (#4). To put our minds at rest, we should like to ask

  • Will a Minister have responsibility for St Helenaís relationship with Ascension and Tristan da Cunha?

  • Will the Governorís general duty to act in accordance with the advice of the Executive Council apply to anything done in his capacity as Governor of St Helena that will or might affect that relationship?

The structure of the Public Service, the terms and conditions of employment in the Public Service, and the coordination of the work of all departments and offices of government

  1. The structure of the Public Service and the terms and conditions of employment in the Public Service are not matters for which the Governor is to have a special responsibility under # 24(1) and 81. But, in #36(1), the provision that the Chief Officer (formerly the Chief Secretary) is to be the permanent secretary of the Chief Ministerís Department is to be deleted. In #36(2), the Chief Officer is to be responsible to the Governor, instead of to the Chief Minister, for the coordination of the work of all departments and offices of government in St Helena.

  2. These proposed changes raise the following questions:

  • Are we correct in thinking that a Minister will have responsibility for the structure of the Public Service and the terms and conditions of employment in the Public Service generally, though not as they apply to individual members?

  • Does the proposal that the Chief Officer is not to be the permanent secretary of the Chief Ministerís Department mean that there is not to be a Chief Ministerís Department? Or does it simply mean that no constitutional provision will require the creation of such a department, or specify who should be its permanent secretary?

  • Why is the Chief Officer to be responsible to the Governor for the coordination of the work of all departments and offices of government? Why is that responsibility not owed to the Chief Minister?

 

The roles of the Chief Officer and the Attorney-General

  1. In the May draft, the Chief Officer and the Attorney-General were to be officers of the St Helena Public Service, and were each to be appointed by the Governor, acting in accordance with the recommendation of the Public Service Commission made after consultation with the Chief Minister (#43(3) and 44(2)). Neither the Chief Officer nor the Attorney-General were to be members of the Cabinet or the Executive Council, but each was to receive notice of every Cabinet meeting and a copy of every paper to be considered (#33(5)), and each was to have the right to attend any meeting of the Cabinet, and to speak on any matter under consideration, so far as it gave rise to issues within their respective responsibilities (#33(7). The decisions of the Cabinet were, however, to be taken only by those Ministers present (#33 (8).

  2. Similarly, neither the Chief Officer nor the Attorney-General were to be members of the Legislative Assembly, but, like other officers of the Public Service, could be summoned by the Speaker to take part in the business before the Assembly. They would not thereby become members of the Assembly or have the right to vote.

  3. These proposals were designed to make it clear that the Chief Officer and the Attorney-General would be the senior officials of the St Helena Government. They would have no conflicting loyalties to the United Kingdom Government or to the Governor. Except in the case of the Attorney-Generalís independent responsibilities under section 14 of the 1998 Constitution, which is to be re-enacted, they would give independent advice to Ministers. But, if either had departmental responsibilities, the exercise of that responsibility was to be subject to the general direction and control of the Minister responsible for the portfolio (cf #35).

  4. During the April/May negotiations, we acknowledged that the Chief Officer and the Attorney-General should be free to advise the Governor if requested to do so, on the understanding that they would give the same advice to him as to the Cabinet or a Minister. This would mean that neither their proper independence nor their loyalty to the Government of the day would be compromised.

  5. Under the September draft, the Chief Officer and the Attorney-General are still to be officers of the St Helena Public Service, but they are to be appointed by the Governor, acting after consultation with the Chief Minister (#36(3) and 37(2). They are each to be ex officio members of the Executive Council (#17) and of the Legislative Assembly, although, in the latter case, they are not to have the right to vote (#40). The Permanent Secretary, Finance, is also to be appointed by the Governor, acting after consultation with the Chief Minister (#99(2)).

  6. These proposals, and the contrast with our own, make it necessary for us to acquire a clearer understanding of the position of the senior officials. We have the following questions:

  • If the Public Service Commission has no responsibility, who is responsible for ensuring that any vacancy in the office of Chief Officer is filled? (We assume that the Chief Officer would initiate appointments to the other offices.)

  • Who is responsible for looking for suitable candidates for any of the offices, where do they look, and who recommends the appointment of a particular candidate to the Governor? Or does the Governor decide who is the best candidate? If so, does he do so on the advice or instructions of the FCO? Or DFID? Or does he exercise his discretion?

  • Who decides what terms and conditions of appointment the prospective appointee will be offered? Do the salary and any monetary allowances have to be within the existing appropriation for this purpose?

  • Does the appointee receive a contract of employment, as well as an instrument of appointment issued by the Governor? If so, with whom is the contract made?

  • Who sets the job description for the position, to the extent that it goes beyond the relevant provisions in the Constitution?

  • Do these job descriptions, or anything else in a contract of employment, or in any other source, such as Colonial Regulations, make the appointee subject to the directions of the FCO? Or DFID? Or the Governor?

  • Are the appointments for a fixed term, or do the officials hold office at pleasure? Would the Governor be required to consult the Chief Minister in deciding whether to dismiss an official (other than the Attorney-General, who can be dismissed only for cause (#37(6))?

  • Do the Chief Officer and the Attorney-General (except in the case of the latterís independent responsibilities) have any responsibility to the Chief Minister? Or any other Minister?

  • What is the purpose of making the Chief Officer and the Attorney-General members of the Executive Council and the Legislative Assembly, instead of giving them a duty to advise the body concerned if so requested? Or a right to advise it, acting in his or her discretion?

  • Would the Chief Officer and the Attorney-General act in their own discretion in their capacity as members, or are they subject to the direction of the Governor?

The Governorís reserve power to pass legislation

  1. The September draft proposes that the Constitution should continue to provide for the Governorís reserved power to pass legislation, along the lines of s 34 of the existing Constitution. Section 34(1)(a) is a standard power in existing OT constitutions, although it does not appear in the Constitution of Montserrat. Section 34(1)(b) is expressly based on the fact that St Helena receives financial assistance from the United Kingdom Government. We understand that DFID has requested the retention of s 34(1)(b), if not s 34(1)(a). We note, however, that the Montserrat Constitution has not been amended to include a corresponding provision, although Montserrat is now in receipt of budgetary support because of the eruption.

  2. We consider that any reserve power of the Governor to pass legislation which the Legislative Assembly has refused to pass is incompatible with democratic principles (# 2(b)), the responsibility of the Minister of Finance for the Appropriation Bill (# 88 and 89), the fact that a Minister will be responsible for any other Government Bill, or any money Bill (#59(2), and the Governmentís need to retain the support of a majority in the Legislative Assembly.

  3. Our questions are as follows:

  • How is the exercise of the Governorís reserved power to enact a Bill that the Legislative Assembly has refused to pass to be reconciled with the right of the Government to make the passage of the Bill an issue of confidence, with the consequence that, if the motion of confidence is not carried, the Chief Minister must tender resignation or advise a dissolution (#38(1)(a) and (4))?

  • Will the Governor enact a Bill to save the Government from possible defeat in this way? Or after it has been defeated, and before a new Government is in office?

  • If so, where does that leave the Government politically? Or, for that matter, the Governor?

 

 

  1. The Governorís power to pass legislation against the will of a majority in the Legislative Assembly was a feature of colonial government when it was representative but not responsible. We cannot help thinking that the implications of keeping it, once Ministerial government has been introduced, have not been fully thought out. We should therefore be grateful if you would consult with the responsible DFID Minister on this matter. If it has not been decided to withdraw the proposal by the time of the London meeting, our delegation would like to have the opportunity of discussing it with the DFID Minister, together with you, or separately if you prefer, so long as he or she has access to constitutional advice.

     

    The Governorís power to dissolve the Legislative Assembly at any time

  2. The September draft proposes that the Governor, acting in his or her discretion, should have the power to dissolve the Legislative Assembly at any time (#65(4). It is a convention of the Westminster Constitution that the Sovereign or Her representative may not dissolve Parliament without advice. If the Head of State considers that a dissolution is necessary but has not been advised to dissolve Parliament, his or her only option is to change the Prime Minister. But, by convention, the Head of State ought not to dismiss a Prime Minister and appoint another, unless the Prime Minister has broken a constitutional convention. The convention likely to be relevant is that, if defeated in Parliament, the Prime Minister must either advise a dissolution or resign.

  3. The partners are committed to putting in place a new St Helena Constitution providing for an effective system of Ministerial government based on Westminster principles (#2(d)). The draft Heads of Agreement codify the Westminster principles by providing that, in certain circumstances, the Chief Minister will be deemed to have tendered his or her resignation (#26(2) and 38(4)). Consequently, the question of a Chief Minister being in breach of a duty to resign cannot arise. Accordingly, the Governor does not have, and does not need, a power to dismiss a Chief Minister (#27).

  4. In these circumstances,

  • Why does the Governor need to have a discretionary power to dissolve the Legislature without the advice of the Chief Minister?

  • How is such a power to be reconciled with the Governorís duty to dissolve the Legislature in certain prescribed circumstances (#65(1), (2) and (3)?

  • How is it to be reconciled with democratic principles (#2(b))?

The direction and the pace of constitutional change

  1. You have repeated Baroness Amosís comment that a new Constitution based on a 2-tier system does not necessarily rule out further changes in the future. We believe, however, that the emphasis should be rather different. As you have recognised, training and change management support will be required in preparation for any new Constitution. The move to Ministerial government involves a major alteration in St Helenaís system of government Ė perhaps the greatest in its history, and certainly the greatest since Crown Colony government was introduced in 1833. In our view, we should begin now as we mean to continue. It is well-recognised that people usually make a new constitution because they wish to make a fresh start. That is exactly our situation. We need to set off now down the road that will take us to our desired destination without any need for a further change of direction.

    The importance of the Governor to St Helena and its people

  2. Inevitably, our worries about the operation of a 2-tier system centre on the powers and responsibilities that would remain with the Governor, instead of passing to responsible Ministers. We should like to reassure you, however, that we continue to see the Governor as having a fundamental place in our society and in our governance. We see the holder of that office as representing the Queen, conveying to us the policies, wishes and concerns of the United Kingdom Government, and keeping that Government informed of our own policies, hopes and concerns. We know that, in the transition to Ministerial government, we shall need the Governor as our mentor and guide, even our coach. We hope that he or she will always be our friend and confidant, even, at times, our advocate, willing to give advice and practical help, but encouraging us to stand on our own feet. It is not lack of loyalty or trust that makes us feel that the peopleís elected representatives must assume and exercise a clear responsibility for making decisions on behalf of the Government of St Helena. Rather it is our awareness that our survival depends on it. In setting our strategic objectives, the people saw constitutional development as an essential building block for the future well-being of St Helena, and therefore a high priority.

  3. In conclusion, we have set out our thinking and questions so fully, in order to play our part in a dialogue aimed at teasing out what kind of Constitution will work best for both the United Kingdom and the people of St Helena, now that we are in the new era of the partnership heralded by the White Paper. It would be helpful if you could supply answers to our questions as soon as possible. Otherwise, we hope you will think again about the issues of principle and purpose that we have raised in this letter. Our delegation looks forward to discussing them with you in December. We shall be continuing to prepare for that.

Yours sincerely

Mrs M A C Hopkins MLC

Secretary to Elected Members on Constitutional Development

 

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