Falklands : Legislative Council Friday, 12 September 2008 (Part 1)
Submitted by Falkland Islands News Network (Juanita Brock) 15.09.2008 (Article Archived on 29.09.2008)
A special meeting of Legislative Council was held on Friday, 12 September 2008
LEGISLATIVE COUCIL FRIDAY, 12 SEPTEMBER 2008
A Debate on the Draft Constitution
A special meeting of Legislative council was held on Friday, 12 September 2008 to debate the Draft Constitution. Present were the Speaker, Mr Lewis Clifton OBE (LC), Mr Tim Thorogood, the Chief Executive (TT), Ms Ros Cheek, Acting Attorney General (RC) and Councillors Summers (MS), Clausen (AC), Birmingham (JB), Robertson (JR), Hansen (IH), Rendell (MR) and Stevens (RS). Councillor Cockwell did not attend because he was in hospital.
Claudette Anderson-Prior (CAP) introduced the Speaker of the House and announced Prayers by The Reverend Kathy Biles
The Speaker Mr Lewis Clifton OBE (LC):
Honourable Members, good morning - Please be seated. Thank you very much.
Honourable Members, can I just beg your attention for one moment if all mobile phones and all electronic devices are switched off before we proceed? Thank you very much.
CAP: Motion Number Five of 2008 by the Honourable Mike Summers “That this House resolves that Chapters One to Ten and Annexes “A” and “B” of the Draft Constitution dated 2nd of September 2008 be submitted to Her Majesty’s Government for its consideration. This is proposed by the Councillor Mike Summers and seconded by Councillor Janet Robertson.
Councillor the Honourable Mike Summers OBE
Mr Speaker, Honourable Members, it’s a sobering thought that every day that goes past becomes a part of history. And, it’s tempting sometimes to talk about events as they go past as historic and sometimes they are and sometimes they are not. But I think today probably is an historic day, at least in the life of this Council and this Government because we have the opportunity after several years of deliberation to recommend to Her Majesty’s Government a new constitution for the Falklands.
The Constitution, as we have said in our public discussions, is a fundamentally important document, not only for this country but for every other country. It forms the basis of all subsidiary legislation. And, that in itself is an important function. It sets out the rights and freedoms of individuals and forms the basis on which the community organises itself and its social laws and practices and that is, of course, a fundamentally important thing. And, it also describes the relationship between the Falkland Islands Government and the United Kingdom Government and for we, as a non-self governing Overseas Territory that is fundamentally important because it sets out the extent to which we exercise internal self Government and the extent to which we respond to the United Kingdom as our Parent State. So, for those reasons, the Constitution is a fundamentally important document.
It has taken eight years from the time that I proposed a Motion in this House to set up a Select Committee on the Constitution, which was, incidentally seconded, on that day, by the Speaker. And, it’s been a long process, I think, but an important and consultative process and I believe that it’s resulted in a document that is suitable for the current governance of the Falkland Islands. That doesn’t mean that it shouldn’t change. It has become, sort of, accepted that the Constitution is the Constitution and that’s it – it doesn’t change. I think the Foreign and Commonwealth Office have made it clear to us in discussions that actually, you know, the Constitution shouldn’t be a non-moving document and, if there are amendments that we would like to make in the future that it’s not such a difficult process to make them. So, the Constitution is a live document, it’s an important document.
Mr Speaker, I would be very pleased if you would agree that I should lay on the table now in front of the House the Final Report of the Select Committee on the Constitution dated May 2007, which effectively should be considered the report of the Select Committee on the Constitution and also the final draft, as we - or the last draft – the latest draft – as we have it – from the Foreign Office of the new Falklands Constitution, which is dated the 2nd of September 2008. And, that is the document from which we will be making reference today in our discussions.
Mr Speaker, this is an unusual discussion- an unusual debate and it needs to be given – I think – all the scope that it reasonably can to allow Members to participate in the discussion of all aspects of the Constitution. So, with your leave, it is our intention to go through the draft constitution chapter by chapter and raise points and make observations. And, in doing that, I would like to Move that Standing Order 23 be suspended for the duration of this debate to enable Members to contribute on a regular and full basis to all discussions. On that basis, Mr Speaker, I am happy to propose the Motion.
LC: Thank-you very much Councillor Summers. I am happy to receive both documents on the table at this time.
Councillor the Honourable Janet Robertson
No. Just to second the Motion.
LC: Thank you very much. I think – one item of procedure before we go – I notice that the Honourable Richard Cockwell is absent so we record his absence. Thank-you very much
Before I proceed further, one other matter that I would – just a matter of housekeeping – I would also propose to – in respect of Standing Order Number 4 – to allow the Honourable Dr Andrea Clausen to remain seated when she wishes to speak to certain matters and I hope Honourable Members would agree and accept that. Thank-you very much then – I am happy to accept that a suspension of Standing Order Number 23 – a relaxation of the rules that allows for the fullest debate of the Draft Constitution as presented as placed upon the table and that the debate will follow through each of the Chapters. And I would beg Honourable Members’ indulgence to complete the discussion on one Chapter before we move into the next Chapter or Annex as may be appropriate. That will ease note taking and referral back to the Foreign Office.
So with that I am happy to proceed and I would beg your indulgence – that’s all agreed – relaxation on Rule 23? Thank-you very much. May we proceed.
CAP: Chapter 1: Protection of Fundamental Rights and Freedoms of the Individual
The Honourable Mike Summers
MS: Mr Speaker, If I make a few observations about Chapter 1 – Chapter 1 in many respects is the essence of the Constitution. It sets out the ‘Bill of Rights’ basically the protections of the fundamental rights and freedoms of individuals. And for that reason it is a very important Chapter. For the Falkland Islands it is also a fundamentally important Chapter because it contains the reference to Self-determination. Self-determination previously was included in the preamble to the Constitution. It is now, with the agreement of the Foreign and Commonwealth Office, been included as Part 1, Section 1 of Chapter 1 of the Falklands Constitution. And that is fundamentally important for us and, I think, a significant move forward.
This first section of Chapter 1 also includes the right – confirms the right – of the people of the Falklands to exercise control over their natural resources. That, too, is a fundamentally important issue for us.
In terms of the balance of Chapter 1 there are some important issues – and if I may just comment on one or two of them – Section 6: The Protection of the Law has been amended slightly to allow for ‘ticket offenses’ that is for the issuance of the likes of parking tickets and speeding tickets without reference to the Court. That is a modern practice and one that Council in future might wish to introduce here but it can’t do under the current Constitution.
Mr Speaker, there is an issue under Section 8 of Chapter 1 and Section 8:3:H in particular, which makes provision for the removal overseas against their will of individuals who have otherwise the right to remain in the Falklands for treatment for Mental Health purposes. There is some concern amongst the Medical Professionals that’s been raised just in the last day or two but (that) perhaps removal to the United Kingdom is not the only option that ought to be considered and that there might be other circumstances in which the Court might think it appropriate for somebody to be removed to another country. I would like to suggest that we would remit that question to the Foreign and Commonwealth Office for further advice and consultation before a final conclusion is reached on that.
Section 10 is an important new addition to the Constitution. It brings the right to marry into the constitution and the right not to be forced to marry. And, Section 12, which outlines the right to education free of charge through the primary stage. And that is an important issue.
I would just like to make a quick comment on Chapter (Section) 15, which deals with the deprivation of property. The compulsory purchase in the Falklands is ancient and arcane. It needs to be replaced. This provision on the deprivation of property removes the definition of public purpose to subsidiary legislation. But I am not sure that there is an adequate definition of ‘public purpose’ in the current legislation. We should note, therefore, that the completion of much more modern and appropriate compulsive purchase legislation is an issue of importance.
Section 16 deals with positive discrimination and I am delighted that we have retained in the Constitution the right to discriminate positively in favour of Falklands’ people – Falklands Status Holders – and I think that’s an important provision for us to have retained.
Mr Speaker, there are issues about Section 22, which deal with status. But with your leave, I might stop at that point and come back to Section 22 and see if other Colleagues wish to comment on any of the sections in Chapter 1 up and to Section 21 and we will then come back to Section 22.
LC: Honourable Members that seems an admirable way to proceed.
The Honourable Janet Robertson
JR: Yes, Mr Speaker, I would like to direct some questions to the Acting Attorney General, if I may? With regard to Section 9: Protection for Private and Family Life and for Privacy at Home and Other Property. I was wondering if she could tell me if any Constitutional Protection from having their premises damaged exists for those who, under line, 2D, can have their homes searched for the purposes of protecting Criminal, Customs or Immigration Law. I think that it is an important provision that this has been put in but at the same time I would like there to be some protection for those who have their houses searched in this manner.
Ms Ros Cheek the Acting Attorney General
Mr Speaker, I am not aware of any Law of the Falkland Islands which does specifically provide for protection from damage and I presume that you are thinking about compensation under those circumstances. But I would only note that the provision provided in Section 9 Subsection 2D does use the words ‘reasonably required.’ So, I would imagine that certainly legislation would be put in place if it were not already in place and obviously the protection of reasonableness is there in the constitution.
JR: So, I understand that we could probably deal with that through subsidiary legislation rather than through the constitution itself?
RC: That would be my understanding – yes.
JR: I would also, if I may, Mr Speaker? Protection from freedom of conscience in Section 11 – I was a little bit dubious about this. Clause 2 would suggest that a person, including a minor, can be required to receive religious instruction and to take part in a religious ceremony if the ceremony or instruction relates to their own religion. How is someone’s religion determined and is this really the true intention of the clause and I don’t just direct that to the Acting Attorney General but perhaps to my colleagues as well?
LC: Thank-you very much. The Honourable Acting Attorney General, would you care –
RC: Just in relation to how the religion might be determined – that would be determined by a Court as a matter of fact in relation to the particular circumstances.
JR: OK, so this – would this mean that a child, say, if they refuse to take part in a religious ceremony – the Court could deem that because it was their religion that they were required to take part and were not permitted to refuse?
RC: I think the provision is quite clear in relation to a child under the age of 16 that a parent could give consent on behalf of the child.
LC: Sorry – the Honourable Janet Robertson – yes – go ahead.
JR: Well, I would like to ask my Colleagues if at some point they could give me their view on whether they think that was actually the intention of this clause.
Just one more question in relation to this – to Chapter 1 – Clarification – with regard to Section 20 – Proceedings which might affect freedom of conscience – does this clause in effect mean that under the section the person has a right to be absolved from a requirement to obey any particular law which contradicts the practice of their religious belief? If I could ask the Acting Attorney General for clarification?
RC: I would, Mr Speaker, answer that question in the negative. The question is simply imposing on the Court an obligation to have particular regard(s) to the importance of that right. But that right, as all others, as set out under the constitution are subject to certain provisions for protection of the rights of others as there must be some balance in all cases.
The Honourable Mike Summers
MS: Mr Speaker I might be able to help the Honourable Member to a certain extent on the issue of religious instruction in relation to freedom of conscience. There was quite an active and lively debate on this issue throughout the period. And a lot of the debate centred around the age at which a child might refuse to compulsorily take religious instruction. And the issue there really is at what point do you take away from a parent that parental authority. And that was the essence of the debate? As a parent you have your children, you presumably have the right to instruct your children in how to behave. Indeed, you have an obligation through the very large majority of their lives. But in respect off religion and religious instruction there was consideration as to whether it would be reasonable to allow a child at the age of 14 to refuse to take religious instruction. Or, should it be at the older age of 16? And it is exactly this issue of parental authority and parental discretion that was being discussed. And, on balance Members of the Select Committee concluded that 16 was an appropriate age at which somebody should be allowed to decline religious instruction of their own volition and therefore decline parental authority on that particular issue.
The Honourable Janet Robertson
JR: I thank the Honourable Mike Summers for his explanation. I probably haven’t been very clear in this. I don’t dispute the issue of the age at which a child should be able to make their own decision on the matter. What I was querying is the way I understand this clause reads is that they may decline to take part in a religious ceremony or observe a religious ceremony if it is not their own religion by default. It seems to suggest that they cannot do so if the Court deems that is part of their religion. Therefore, the question – well first, is that what we really intended – and I can’t believe that we did – but secondly, who is to – exactly how does someone to define what someone’s religion is? But the critical question is, did we really mean that you can only refuse to partake in a religious ceremony if it was not a ceremony that related to your religion? I think I’ve got that right.
The Honourable Mike Summers
MS: Mr Speaker, as a matter of clarity, 11 Clause 2, to which I guess the Honourable Member is referring, refers only to religious instruction in a place of education and not to religious instruction generally. So it is restricted. This clause is restricted in its effect to places of education.
The Honourable Janet Robertson
JR: I’m sorry, it just seems to me that that, that a child – I will give an example – for example, a child who is of the Muslim religion will be able to decline to have religious instruction in a Christian school – that’s perfectly understandable – and we appreciate that but would it also mean that a child who is considered a Christian and is considered a Christian by whom is not clear – would be required to have that religious instruction?
The Honourable Acting Attorney General
RC: Mr Speaker, if I could assist, I wonder whether the words at the beginning of the subsection, ‘except with his or her own consent’ and obviously there’s a proviso in relation to children, so the key here is that consent must be given and I presume that the circumstances you are suggesting, consent would have been given by the parents in respect of the child against the child’s wishes. And, I think the answer must be that yes – that the law does – the constitution does permit that to occur whether that’s what was intended is obviously a matter for policy.
JR: I believe that the intention was that the same law should apply or in ways that shouldn’t be a distinction between one child and another – that their religion or the belief of the family should – they should have the right to decline or to not attend these ceremonies whatever their religion is and it shouldn’t be determined by what religion they are. That, I believe, was our intention.
The Honourable Dr Andrea Clausen
AC: My understanding of this was that it was all other religions, aside from their own, and I concur that it’s down to parental authority and that we decide that 16 years was the appropriate age. And, if you are a Christian in a Christian School and you are 14 and you refuse but your parents have said yes – my understanding is ‘that’s tough luck’ if the parent has the authority – if you are deemed by the Court to be a Christian in a Christian School and a parent said – that’s my understanding. It’s all down to parental authority. And, I don’t have a problem with that.
The Honourable John Birmingham
JB: I can’t be the only one that is slightly confused here. I would have brought a packed lunch if I had known we have a long way to go. I’m not even sure if we can define our present schools as being Christian schools. I just thought I’d throw that in.
LC: Does any other Honourable Member wish to speak to Chapter 1 through 3:20? Yes – we do. I think, can we just tuck this one to one side for the moment and move forward on the other issues? Would that be helpful? Does any other Councillor wish to speak to Chapter 1?
The Honourable Dr Andrea Clausen
AC: Mr Speaker, Honourable Members, Yes – I just have a few observations. Many of them overlap with those made by my honourable colleague – Councillor Summers. I would like to reiterate that I believe that one of the most important changes in Chapter 1 is the move of the provision of our right to self-determination and the right to freely dispose of our natural wealth from the preamble of the current Constitution into the main body of the draft of the new constitution is absolutely very important. And, whilst it may appear to be of little significance to some, I believe that it further strengthens our absolute right to these freedoms and enshrines in our constitution properly the provisions of the Charter of the UN in respect to the right to self-determination in particular.
There are a number of changes obviously within provisions – sections that already existed as well as four new and I support many of those. I will speak in detail on just a few.
With regard to Section 12 – regarding the right to education, which, for the first time makes constitutional provision for free primary education, I would like to record my support for this and also that this enables us to charge for secondary education as I believe that we, as a small country, require the opportunity to levy fees for students who may not normally be resident in the Islands and whose attendance at our schools may incur additional pressure on our often limited resources.
On Section 16, I also concur with my honourable colleague on protection from discrimination in terms of positive discrimination in favour of Falkland Islands’ Status Holders. I believe this is a very important provision in a Falkland Islands’ context. But I note that the application of this provision is then determined by subsidiary legislation and policy and that it can be targeted to suit our requirements without any given point in time.
The only other section I wish to speak on is Section 22 and I will stop there.
LC: Thank-you very much
The Honourable Richard Stevens
RS: Mr Speaker, Honourable Members I would like to just raise a point that my colleague Dr Andrea Clausen has just raised and that’s the question of the right to education and to the issue of providing primary education free of charge. And, we did discuss this quite thoroughly at the Select Committee and requested information on our obligations to educate students of that age group within the Falklands. And we were advised that we would be entitled to refuse education to visiting children whose stay in then Islands would be six months or less. I think a number of people in the community would be interested in our statement of not having free education in the secondary level. And, again, we probably talked about this quite a bit.
I would like to ask the Acting Attorney General if primary education and to what level we would be funding this provision and what I mean by this would it be through non academic but the provision within the schools or would we be expected as the Government, say to pay for trips to the dairy or MPA for some reason. Perhaps you could answer that question before I carry on.
RC: Mr Speaker, I’m not sure that I can be of much assistance in relation to that question – again – perhaps the issue of what is and what is not within primary education would be determined by the law as a matter of fact. And, I’m afraid it’s really not something that I can persist with. I’m sorry about that.
LC: Thank-you. Which Honourable Member has the Education Portfolio?
RS: Well, I have and the reason I asked that question is many people in the community might wonder why we can’t extend this provision to secondary education and – like me – in a way it’s very difficult to see us at any stage in the community that we live in not providing free education in the main areas. Perhaps in the periphery you would expect parents to contribute things like cookery lessons perhaps paying for the ingredients or paying for trips or rather areas outside education but to actually think that we would charge £10.00 per pupil for Maths or English, Geography. History – those types of things – you know – for many people – myself included – is hard to envisage. I don’t know if any other Member would like to join the debate and put other points of view forward.
Honourable Mike Summers
MS: Mr Speaker, I understand this provision comes originally from UN directives on the provision of education world-wide. And it is my understanding that it is for each individual country to determine what is an appropriate level of primary education for each country, given the resources they have at their availability so for a relatively wealthy country like this you might expect much broader and deeper provision of primary level education and we might in some much poorer countries, so I am not sure it is something on which you can put an absolute figure. But it is left for basically policy decision of the Government of the day.
The Honourable Janet Robertson
JR: I believe the question the Honourable Richard Stevens was asking was whether or not the provision should be extended to secondary education and if the argument is that we would not want to extend it in the Constitution to secondary education because it would prevent us from ever in the future making any charge for secondary education whatsoever. And that therefore we might find ourselves in a position of having unaffordable expenses. And I understand the question that the Honourable Richard Stevens is further saying is that if we – although that the main definition of primary education. And, as he argues, secondary education’s in the constitution. This would not prevent us for making charges for those activities which are periphery to the principle core functions of primary and secondary education so that we need not, if we place this provision in the constitution, extended it to secondary education – it need not restrict us from ever making charges – simply that we would prevent it from making charges for the principle core functions of secondary education.
I understand entirely what motivates this for you and I understand that for many people there is a concern that by not putting it in the constitution we are considering making a charge for it in the future. I don’t think there is any such intention to do that but I do feel – and this came out of the extensive debate that we had on it – I do feel very strongly that we cannot in any way commit ourselves to providing a service which we cannot guarantee that we will always be in a position to fulfil financially. And, whilst the intention will always be – as far as we are able – to provide free secondary education – and however that is defined – would probably be defined (in) subsidiary legislation – we cannot be entirely sure that we will be able to do that. Therefore, we have kept – stayed – with the minimum provision that has required by the UN and of secured free primary education.
LC: Thank-you very much
The Honourable John Birmingham
JB: I’m actually content as it stands.
The Honourable Mike Rendell
MR: Yes, I would like to inform you that I am content that it remains as it stands. And, It was the Foreign Office themselves in their advice that gave us this UN restriction on where education was required up to the end of primary level – not into secondary level so we are merely following what the UN and the Foreign Office are suggesting we have to do and there’s no need for us to go any further than that and I totally agree with that.
The Honourable Ian Hansen
IH: Mr Speaker, I would just agree with the interpretation of what Councillor Robertson has said. In the discussions we had, we certainly were very focused on the fact that we did not want to get into the issue of having unaffordable expenses in the future. I would agree that it stands as it is.
LC: Thank you very much. Would any other Member wish to speak on the subject? The Honourable John Birmingham
JB: Are we moving on?
LC: We are moving on. I would record that – for the purpose of the record – that the majority view is that this clause stands as is. Thank-you very much. The Honourable Richard Stevens – do you have any other point in clauses 1 to 21? No? Thank-you. The Honourable John Birmingham?
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