Falklands : FIBS One to One With Cllr. Mike Summers
Submitted by Falkland Islands News Network (Juanita Brock) 17.11.2004 (Article Archived on 01.12.2004)
Corina Goss Quizzes Cllr. Mike Summers about the Constitutional Review process.
FIBS ONE TO ONE WITH CLLR. MIKE SUMMERS
A Report for FIBS by Corina Goss (CG) 16 November 2004
My guest today is Cllr. Mike Summers (MS), Chair of the Select Committee for Constitutional Review.
CG: This process has been on-going for quite some time now. What’s the background for Constitutional Review?
MS: The background is that in 1999, when the United Kingdom published its White Paper on the Overseas Territories, they invited all Overseas Territories to have a look at their current Constitutions to see if they thought they appropriate to what currently goes on in their territories. So, it’s been appropriate for us to review the Constitution in detail and see whether there are bits of it that need to be brought up to date.
CG: A number of issues have been considered and resolved as a result of discussions from the Select Committee. These things didn’t necessarily require Constitutional change. What kind of things are we talking about here?
MS: You will recall that at the last election we ran a referendum on a single constituency. A proposal that was floating around from certain people for a single constituency and it was rejected. So, that was an issue that was effectively resolved by that referendum.
We have amended Legislative Council Standing Rules and Orders. I think most people feel Legislative Council is pretty dull and there isn’t much debate that goes on there. There is a little but there is little more than there used to be because we made it easier. We’ve introduced a Speaker into Legislative Council during this time.
There are issues to do with the way the Audit is conducted of the Government – that’s the external audit. And, it’s been necessary to clarify and revise the role of the Principle Auditor. That has been done outside of the Constitutional Review, though there still might be some things to be done in terms of the wording in the Constitution.
A new Management Code has been introduced for the Civil Service. I suppose that was six or nine months ago now, and that was a huge piece of work. The need for it came out of discussions that we were having about the way the Civil Service was structured and how it was run.
And, finally the Commander British Forces – a question was legitimately raised about whether he should be involved in Legislative and Executive Council in the Falkland Islands. It was unanimous. We agreed quite some time ago that he should be and we have left that as it is.
CG: And also, there are a number of other issues that have been identified and largely agreed that these do require amendments to the Constitution to bring them into effect. What kind of things are you talking about here?
MS: There are a wide number. The first and perhaps one of the most important is Chapter 1 of the Constitution, which is the section that deals with fundamental freedoms and human rights. We have long thought (and I think the population would agree with us) that the right to self determination should be included in the body of the Constitution and not as part of the preamble to it. There are lawyers that will argue that if it’s in the preamble it has the same affect as being in the body of the Constitution. There are other Lawyers, who would argue that it doesn’t, so for the avoidance of doubt, it is our proposal that the right to self determination should be included in the body of Chapter 1. That is a proposal that will go forward.
The rest of Chapter 1 has to be modified in certain ways to bring us into line with the European Convention on Human Rights, which is now part of UK Law. And, the UK would, therefore, wish to see that we had best practice in human rights issues and we have no problem – no objection to that. But it does mean that there needs to be changes.
CG: What level of discussion have you had with other Overseas Territories, who may be going through the same process?
MS: Quite a lot. It happens partly on a formal basis at the Overseas Territories Consultative Council that you have heard about and the Council have talked about when they have been to it and come back. We meet at CPA meetings and the Small Countries Conferences and we talk about exactly these issues. What is appropriate in terms of human rights in the Overseas Territories? What are appropriate forms of Government? What do we find good ways of doing things and not so good ways of doing them?
CG: Do you have contacts on the other end of the phone that you can just pick up the phone and say that we have come across this? Have you ever dealt with similar issues?
MS: We do and we can. We do it perhaps very rarely because the Falklands are kind of different to the other Overseas Territories, the bulk of whom are in the Caribbean. And, of course, just about every other Overseas Territory now works on a kind of different model to the one that we work on. Theirs is a Ministerial system of Government and they have a Government and an opposition, even in very small territories. And, St. Helena is apparently intent on going the same way. We don’t have that, we don’t have plans for it. We run a consensus type of Government that is quite different than the way than other people run their governments. I have to say that others kind of envy us for it. What they do find is that in that kind of confrontational type of Government, if you like, where you have a Government and an opposition, a lot of people’s time and effort is wasted. Say, you’ve got a country with 12 elected Members and you’ve got 7 in the Government and 5 in the opposition, the 5 people in the opposition largely are not productive. All they are doing is responding to what someone else is doing and they can’t really make best use of them. I heard a number of small territories complain that having an opposition is frankly a waste of people’s time. So, we’ve avoided that. And, I think the general public in the Falklands has avoided that. I don’t think there is any appetite for that type if Government here. People don’t want that confrontational type of style here and it’s not really necessary.
CG: Moving on with other issues that have been identified that do need amendments to the Constitution, another one that you’ve got outlined here is Citizenship Anomalies. What are you looking at in this area?
MS: It’s a specific issue. There are problems that affect children born abroad. Given the way the Constitution is currently worded, some children born abroad, generally for medical reasons, who would otherwise be Falklands citizens, under the current definition are not. So, if you had a parent, who is a Falkland Islander but that was not born in the Falklands, who was overseas for medical reasons to have a child born overseas, that child would not have citizenship in the Falklands. And, that can’t be right. And, it is just a product of the way the Constitution is currently worded.
CG: And there are six more issues that you are looking at as well. Perhaps you could quickly run us through these.
MS: The next is the provision for creation of a position for an ombudsman. If you are a private citizen in the Falklands and you happen to fall on the wrong side of the Government, life can sometimes be a bit tough. And, there should be provision for a kind of independent appeals process if a private citizen thinks he or she is not being fairly treated by the Government. So, that would be the purpose of an ombudsman. It’s quite a complicated issue – the setting up and the staffing but we do propose to make a provision in the Constitution and then deal with the details later on.
There are a number of legal/technical things. One is to do with the sending away of mentally ill patients. Again, it’s the way the Constitution is worded but at the moment, you cannot send a mentally ill patient away for treatment overseas without their permission. And, if they won’t give their permission, there is nothing you can do for them. That isn’t appropriate, so we have to deal with that.
And, the same with fixed penalty notices, which I think we talked about just recently. There are good arguments for having fixed penalty notices for speeding or fining offences and those sorts of things. As it stands under the Constitution, you can’t do that. So, there will have to be revisions to Chapter 1.
The next piece is to do with Internal Self-Government. This is absolutely critical. It’s central to the Constitutional review. The concept of Internal Self Government – that is – taking your own decisions and being responsible for your own affairs – it’s absolutely fundamental to the concept of self-determination. Self-determination is supported by Internal Self Government. By in large, that issue, unless you are governing yourself entirely to the maximum extent possible. So, we believe that there is a requirement to review the way the Constitution is actually written and clarify and codify the extent to which we are internally self-governing.
In particular, there is a view that the Governor clearly is and should be the head of the Public Service, doesn’t mean that the Governor has to be involved in decision-making at a number of levels below that. The way the Constitution is currently written, he has the right and indeed, in some cases, the duty to get involved in things that are much lower level. And, that clearly is not appropriate in this day and age. That needs to be clarified.
There’s a clarifying issue to that, to do with appointments and a number of people have spoken to several of us recently saying that it is daft that the Governor has to be involved in the appointment of cleaning ladies and part time staff in all sorts of departments. Of course, it’s daft but as it stands, that’s the way the Constitution is written and therefore, that’s the way the Governor feels he has to do his business. We should clarify that. Clearly, the Governor should be involved in the appointment of people like the Attorney General, Financial Secretary and the Chief Executive and, perhaps all Senior Directors. But equally clearly, he shouldn’t be involved in the appointment of cleaning ladies. So, there is a sensible level at which these things take place and that has to be clarified.
CG: So, does the Governor have any choice in this matter, or is it simply the Select Committee that can go ahead without his choice. For example, would he oppose this?
MS: Well, it’s not the Governor’s choice. It would be the choice of the Privy Council in the United Kingdom on the advice of the Foreign and Commonwealth Office. It is the Privy Council that deliver the constitution to an Overseas Territory. But they would clearly take advice from the Foreign and Commonwealth Office. And, if the Governor had a particularly strong view about something, he would feed in his view through the Foreign Office. But he doesn’t have a say as such in the conclusions that the Select Committee come to. We can come to whatever conclusions we like, having consulted in all areas, and put those views to the Foreign and Commonwealth Office for them to comment on and discuss with us.
CG: A committee that you have here regards a public accounts committee. What do you mean?
MS: We do occasionally come across instances where something has happened with the use of public funds for a particular purpose. And, we are not happy with it. We don’t think it’s been done particularly well. As it currently stands, there isn’t a formal mechanism for either the Standing Finance Committee or, indeed, Executive Council to call for an investigation. You know, an impartial investigation into the way that particular project or piece of business has been handled. What we are saying is that we think there should be a public accounts committee. It should certainly be made up of non-Government people but it shouldn’t be a Standing Committee. What we don’t want to create is some kind of un-elected opposition that can go around trying to ride rough-shod over perfectly legitimate decisions of the Government. But it should, on the other hand, be a mechanism for either SFC or EXCO to call together a little group of people and say that they don’t think that a particular thing has been handled properly and we would like you to investigate and provide us with a report. That is the broad purpose of having either a public accounts committee or something similar.
CG: This review has also liked into options for the future structure of Government. What kinds of things have you been considering?
MS: There is really quite a big issue. The Government of the Falklands by consensus, I think, is too big and unwieldy. It doesn’t work very effectively although a number of people clearly work very hard and do a good job. Every Chief Executive we have ever had here – and people who work with him say – this is not an efficient way to run a Government. So, we need to find a way of streamlining it if we can, without losing the central institutions and the essential nature of the way we run our Government.
So clearly we should be internally self-governing to the maximum extent possible but maintain the highest standards of probity, law and order and good Government and observance of Britain’s international commitments as convened in the white paper that we started this from. It is clearly agreed that Executive Council should be the most senior body in Government and we should strive for openness.
There is also a strong view on this Council that Elected Members should be more accountable and take greater responsibility for the things that they do. But the way the Constitution is currently written and the way the Government is currently structured, frankly, anybody, who is an Elected Member, if they wanted to could be awfully sloppy shouldered and say that if you look at the Constitution, if you look at the way the Government is structured and the way it is run, I don’t have to take responsibility for any of the decisions that are made because ultimately, they are made somewhere else by someone else. In a democracy, that can’t be right, so we have to fix that. We have to find a balance between having part time, non ministerial Councillors and making sure that those people who are elected are then responsible for the decisions they make and accountable to the General public for them. We’ve got to find the right structure for that.
And, we think that the right structure is developing the portfolio responsibility they have but perhaps to a greater extent. We think there are enough Councillors at the present time but in order to fulfil the necessary work load probably all Councillors will have to be involved in the decision-making process. That takes us away from the system that is in place in Westminster and elsewhere, where there is a Government in Opposition. We don’t think there is a place for that. It’s a waste of resources.
But nevertheless we have to keep sufficient scrutiny in the system to critically examine decisions and their applications. So, it’s quite a balancing act to put together a system that does that.
CG: Councillor Mike Summers, thank you very much.
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