Falklands : Legislative Council Friday, 12 September 2008 (Part 2)
Submitted by Falkland Islands News Network (Juanita Brock) 15.09.2008 (Article Archived on 29.09.2008)
Part 2 of the debate on the Constitution.
LEGISLATIVE COUCIL FRIDAY, 12 SEPTEMBER 2008
A Debate on the Draft Constitution
(Part 2)
MS: Mr Speaker, may I take this to issues raised by section 22? As it stands at the moment, Section 22:5:A reads: A person who immediately before the commencement of the constitution has Falkland Islands status by virtue of the Falkland Islands Constitution 1985 retains that status absolutely. Mr Speaker, that was never the policy intention of the Select Committee on the Constitution and I think it has been made clear to the Foreign and Commonwealth Office and the drafts people that that was not the policy intention of the Select Committee on the Constitution. But this clause as written contains an absolute Grandfather Clause for anybody who has effectively before the 1st of January (2009) to retain that status absolutely even though that status prior to the 1st of January was conditional. And there are a number of circumstances in which status can be conditional but largely status gained through marriage and under the ordinance. I do not regard it as acceptable that this status should become unconditional because, in the new constitution, similar status remains conditional. So, it makes no sense at all to turn conditional status into unconditional status for one group of people and to make it conditional for another. Mr Speaker, I am not sure if the Foreign and Commonwealth Office have misunderstood this issue or if they are deliberately trying to medal in what is an immigration issue. It is not a human rights issue because the human rights of those people are already conditioned under the Constitution. It was never raised as a human rights issue. It is absolutely and straight forwardly an immigration issue and immigration is a matter that is, provided there are no human rights obligations delegated to the territory. So, I can’t see, for the life of me, why the Foreign and Commonwealth Office is trying to medal in this issue. And so I think we need to refer it back to them and ask them to re-draft Clause 5a according to the policy intentions of the Select Committee on the Constitution.
There is one other issue in which there has been a change and that is Clause 22:7. The last couple of lines of Clause 22:7 provides where a BOTC has been naturalised and have a right to apply for status, where that status is refused, that the revised draft now gives them the permanent right to remain. That wasn’t an issue that was discussed or that was put in the negotiations with the – between the Select Committee and the Foreign and Commonwealth Office. And I would just like us to reserve position on that until we can resolve the whole of this section 22 but particularly 22:5:A.
The Honourable Andrea Clausen
AC: Mr Speaker, Honourable Members, I concur with what my Honourable Colleague has said in terms of it was not the intention of the Select Committee to get the result that we have in the current draft on that particular clause. Section 22 is one of the most fundamental as it determines exactly how you can qualify for Falkland Islands’ Status. And on the grounds that I believe that all individuals who seek status should be subjected to – at the very least – basic objective immigration control – I do not support any provision to automatic Falkland Islands’ Status, except in the circumstances where it is derived by birth as provided by 22:5:B, C, D, and E. However, I do support the provision under 22:7 whereby those individuals who have a right to apply but then do not qualify have some right to amend but I am not convinced that we expected it to be a permanent right with no checks. So, I also feel that that cannot be resolved until 22:5:A is resolved.
Given the fact that we are undeniably a British country, I am pleased to note that a pre-requisite for any person seeking status is that first they are a British Citizen. I think that’s a very good move away from a Commonwealth to a British Citizenship requirement.
I am also pleased to note that the short-cut to status by virtue of the British Nationality Act has been removed ensuring that all applicants for status are treated equally in that the qualifying period is seven years’ residency regardless of the route of application.
My final comment regarding 22:5:A – the Grandfather Clause – I cannot support this clause for the grounds that have already been spoken about. It is illogical and provides for a privileged position to those individuals who have acquired status by any means in a time-limited manner IE those who have status by virtue of marriage or ordinance prior to the 1st of January 2009 will have status as if born and it is therefore irrevocable but those who were granted after 1st of January will, once again, have revocable status.
If HMG insists on the inclusion of Section 22:5:A, as currently drafted, the only logical response I feel I could support is to provide for all status to be irrevocable by constitutional right.
The Honourable Janet Robertson
JR: As a member of the Immigration Working Group, I would like to say that I am pleased with a lot of provisions in 22:5. I think that what it helps to do is enhance the privilege of status by making it that much harder to apply or making – providing for greater rules to achieve it, it enhances the extent to which people have shown – had to show loyalty, commitment, to these Islands before they are granted the privilege and in that that respect I am glad – I am pleased that status is no longer to be acquired through marriages, as I felt that this was – we all felt that indeed this was a short-cut and it undermined the meaning and the privilege of status. And I am glad to see that that has gone.
It is true that the constitution largely sets out the principles by which one can acquire status but it’s in the ordinance where there are specifics about how status can be lost. And in the Current Ordinance, status – any type of status can be lost under certain circumstances – is that status which is acquired by application under the Ordinance.
That is a debate which we still have to have in the future. There is probably a different opinion about what status should be. Some believe that it should be revocable some believe that it should be irrevocable. Those who believe that it should be irrevocable base it on the fact that the only way that status can have a real powerful meaning and mean as much to those who hold it as any citizenship is by making sure that status means the same thing to everyone and not one thing to one person and a different thing to another person.
That, however, is a debate we are going to have. However, I do concur with my colleagues that the way 22:5:A currently stands will mean that as from the 1st of January we will have two different types of status – one which is revocable and one which is irrevocable. And, it won’t be as it is now – as many people would like it to be – a difference between those people who acquire status through birthright and those who acquire it through ordinance. The difference won’t be through those two. It will be based on an (as yet unspecified) date which is the 31st of December and the 1st of January – between those who acquired it before and those who acquired afterwards. And, as the Honourable Mike Summers said, it will mean that two people who acquired their status by exactly the same means have got two different classes of status – one which can be taken away and one which couldn’t.
Further, I would like to point out that under this Grandfathering Clause, we cannot even be sure how many people would be Grandfathered in and it will be the case that it would probably be people who never set foot in these Islands will be entitled to more than those people who have done their time, if you like, have contributed, have paid taxes, made great efforts to integrate themselves into their society, have waited 7 years and applied and got it, having gone through many loops and requirements and complying with lots of criteria, whilst those elsewhere in the world who have no interest in the Falklands who may never seek to return will obviously have more rights than they. And, I have a great difficulty with this.
I would therefore support the suggestions of my colleagues that we reserve our right on 22:5:A and that we enter into further dialogue on this matter with the FCO.
The Honourable Ian Hansen
IH: Mr Speaker, Yes, I believe the points have been well made by my colleagues. I have no desire to be repetitive and to run through them again. I would just like to say that I do believe that we should refer this matter back to the FCO and I support that suggestion.
The Honourable John Birmingham
JB: Chair and I ah there will be a debate. I am sure it will be a long debate at a later time but there has been plenty said on this and I support the reserving of the clause 22:5:A.
The Honourable Mike Rendell
MR: Mr Speaker, Honourable Members, I would just like to reiterate the comments that everyone made on this matter and suggest that 22:A:H is referred to further discussion…22:A
LC: thank-you very much.
The Honourable Richard Stevens
RS: Mr Speaker, Honourable Members, I think I would also like to agree with my colleagues that it returns to the select committee and that to carry on working towards a mechanism and consistency. Thank-you
LC: Thank-you very much. The majority view of all Members is that Clause 22:5:A be referred for further review and consultation. Two of the Members have spoken of the need to do similar to Clause 22:7:7 in respect to the last two sentences. Do Honourable Members also agree with that? Do we have a clear view?
It seems, I suspect that..
JB: Could I say, Chair that actually I think that it is unanimous that all Councillors wanted that 22:5: A to be referred – not the majority.
LC: Thank-you very much the 22 segment –
The Honourable Mike Summers
MS: Mr Speaker, may I move that Chapter 1, the Protection of Fundamental Rights and Freedoms of the Individual be included as a substantive part of the Motion with the exception of reservations on 8:3H, 22:5:A and 22:7?
LC: Thank-you very much. Honourable members are content with that?
Aye
Thank you very much, then. May we proceed?
We still have one outstanding issue in terms of – the early part of the debate – which was relating to – I think – to religious education I suspect – rather – along with the debate – Honourable Members – would you wish to reconsider this back in Select Committee?
JR: Mr Speaker, if everyone is content, I – it was probably me – that has misunderstood – the exact meaning of this provision and if everyone else is content, then I would not wish to delay the matters on it,
MS: Mr Speaker I am content
LC: OK the majority have agreed the Clause and are content. Thank you very much.
Chapter Two – The Governor
The Honourable Mike Summers
MS: Mr Speaker, there are very few changes to this Chapter. I have nothing in particular to say on it and therefore, unless anybody else does, I move that Chapter 2 be included as part of the Draft Constitution.
LC: Thank-you very much. Honourable Members are content? Thank-you very much. May we proceed then to Chapter Three?
Chapter Three – The Legislature
LC: Does any Honourable Member wish to rise to speak to this?
The Honourable Dr Andrea Clausen
AC: Mr Speaker, Honourable Members, I have a couple of points I’d like to make on this Chapter. Firstly, the name change from the Legislative Council to Legislative Assembly. This might be to many a little inconsequential – why would we change our name – it seems to do the job as it is. But I would just like to make the comment that – and I know it’s been made during the public consultation – but just to reiterate today – that having attended various conferences overseas representing the Islands I find that I spend a good deal of my time trying to explain exactly what our role is and that it is exactly not one of a parish Councillor as understood in the UK. So, I think this is a very sensible move. What’s in a name? Actually, I think it’s going to help in terms of our international face if not our national face. So I can support that.
The issue of constituencies: Sorry, I should be naming 2B
MS: 27
AC: Section Number – Firstly, as a general point, I would like to state that I believe the Constitution should contain a broad mechanism that enables changes to constituency boundaries and representation. I understand that other Overseas Territories have managed to shift the issue of constituencies completely out but I would be content that a broad mechanism was contained – that in the constitution but that the detail should be a matter of subsidiary legislation. I am content that Sections 27:3 allows for these, ad drafted, to be amended by ordinance. I’m completely in favour of a broad mechanism that provides a degree of protection for minorities, whether it’s in the current Camp Constituency or in any other future constituency. However, I believe that this protection should be as reasonable as possible and not heavily skewed in a particular direction. I believe that the 2/3rds threshold provided in 27:3 is heavily skewed in favour of the minority group and I therefore do not support it. I believe that this threshold requires further consideration. I don’t have a proposal as to what that ideal threshold will be – it might be that a simple majority would be sufficient but that that simple must be achieved in all affected constituencies.
In order to arrive at proposals for change to either representation or boundaries, I believe that there should be an independent body created that takes into account a wide range of factors so that changes in particular to balance of representation, it is not simply a numbers game.
Again, I believe this is something that should be contained within subsidiary legislation rather than the constitution itself. We must ensure that we have a fair system in place that can accommodate any changes that the electorate would like to see and I don’t believe that Section 27 in its current format achieves this.
Further comment that whilst we have tried to ensure that as wide a public consultation as possible has taken place on the review of the constitution, I personally do not feel that I am clear about how the Stanley Electorate view this particular subject. It might be that we haven’t heard any comment because the public is broadly content. It might be that they don’t care but I don’t feel personally that I am in touch with the majority of the Stanley electorate on this particular subject. And I feel strongly that it needs more time to be debated.
I might just add that I do feel more confident about how the Camp electorate think on this issue. That’s all I have to say at this point. Thank-you
The Honourable John Birmingham
JB: Chair – um – I broadly agree with this. I don’t have a problem with a change of name. I can well understand the reasons behind that. There is yet to be a decision as to what people will be called in this House other than ‘The Honourables.’
Following on the discussion that there’s going to be I think that we do – and I would support the setting up of an independent body to oversee the representation of individuals on the Electoral Role. On the way in here this morning I happened to look at the two roles that are outside the door. The Camp Constituency has 255 voters. Stanley Constituency has 1309. Camp Constituency Councillors are currently – if we split that by three would be getting 85 voters per Councillor. If we pushed that across to the Stanley Constituency, we would have 15 Councillors. I wouldn’t like to see us have that many. But clearly there is an imbalance and I am not happy and I will not support the Section 3 where it – although I very much support the referendum – I do not support where there would have to be at least 2/3rds agreement with changing – any changes in constituency. So, that’s my view.
The Honourable Richard Stevens
RS: Mr Speaker, Honourable Members, I suppose it’s quite obvious that my views will differ and I think that this protection clause or a clause like this one should be within the constitution so that it can’t be changed on a regular basis. I do believe that this clause is important and it protects the interests of the minority – Camp.
In the short-term, the majority of Councillors will have first-hand experience of one kind or another of Camp but over the next 20 or 30 years this will disappear just because not that many people now live in Camp – not that many families. In fact, Councillor Clausen probably represents the last age group when many families lived in Camp.
The interests of Camp and Stanley are different and this has been espoused in the past when economic pressure has been brought to bare. And it is apparent today that these differences also bring in a proper scrutiny – a scrutiny that we can’t manufacture however much we have tried. Even today this Council with all its Camp credentials have differing views on the future of Camp.
I believe the political institutions of Stanley are getting stronger – the Chamber of Commerce – even with a large farm membership – challenges the support the Government gives the rural community.
We have talked within the community about businesses and the Agricultural community being within a global market. And, to me this means recognising that those countries subsidise – that many countries – sorry – that many countries subsidise their rural communities. For instance, 60% of the EU budget, I believe, is invested in this way. Rural Councillors like myself need to remind everyone that these subsidies form the real value of farm products down and so we have to perform within those parameters. If we didn’t have subsidy of any kind obviously we couldn’t fit in – we couldn’t compete with the rest of the world that we’re supposedly slotted into.
I do understand that there are some weaknesses and I think it is for the electorate of Stanley and Camp to make the decisions about their future and it might be at some stage that constituents in Camp and in Stanley were glad to see a change. But I think there should be proper safe-guards in place like the ones that are here in front of us this morning. Thank-you
The Honourable Ian Hansen
IH: Mr Speaker, Honourable Members, first of all, just one matter of representation and the alleged inequality. We actually represent all the Islands – all of us represent all the Islands even though we are elected by different people so sometimes to me that item doesn’t really hold a lot of water. For instance, Councillor Stevens’ portfolio is Education. I am sure he spends an awful lot of time not dealing actually with just Camp matters and he doesn’t consider just the Camp. He considers everybody.
I agree with Councillor Stevens’ points that he’s made that we must have some form of protection for minorities. I take the point that minorities shouldn’t be able to hold sway. That’s absolutely true but neither should they be battered into submission simply by changing the rules and changing the goal-posts because things didn’t go the way the people wanted in the past. I totally didn’t agree with that. I believe it should remain in the Constitution not – I find it – when we sat around this table in Select Committee, I thought that we’d agreed that this was the way forward.
And, in consultation with the community, this was brought up at every opportunity by the Chair of the Select Committee and there was very little opposition to it. In fact I think it was less than 5% actually challenged the content let alone it being in the constitution.
So I very much support this staying in our constitution as it stands and that’s all I will say at the moment, Mr Speaker. Thank-you
The Honourable Mike Rendell
MR: Mr Speaker, Honourable Members, I think this is probably one of the biggest issues in this – in the changes in the constitution we are talking about here now and it is one which should be in the power of the people of the Falkland Islands to change, not us sitting around this table. And that is why I agree that this clause – 2/3rds – is appropriate. We can talk as much as we like but it’s the people out there that will make the decisions as to whether they think that the system that we operate in at the moment is the right one or the wrong one. And I can’t see any reason why – at some stage in the future – why the people of the Camp now believe that it is better to have one constituency or less representatives. But why don’t we just let the people decide what is appropriate other than ourselves.
The current system has served us well – I think we’d have to agree with and some remarks from fellow Councillors would indicate that the system as it operates means that Members represent the whole of the Falklands not just their own constituency and there are over-laps all over the place.
There are a number of issues that will need to be examined in terms of voting systems if the Camp is to be persuaded that the change will still give them adequate representation. And I suppose that’s one of the reasons why the previous attempt or the previous referendum failed. There was some uncertainty about how it was going to move forward and so there will need to be a lot of work done if we are going to protect minorities.
But when the observations that I’ve made from some figures that the Honourable Mike Summers drew up for us a few weeks ago sloping to the different turn-outs and thresholds and so on and so forth was that it seems to me you are looking at the – at the figures – that if – it would only require if there was a 50% turn-out – it would only require 33% of electors in both Camp and Stanley to pass or to change the system. We’d only require 33% and that seems to me to be quite a big weakness in what’s being proposed. Because there is no discussion here OK – it would be in subsidiary legislation. There is no discussion about what level of turn-out there would need to be in order for this to be binding. I know we had a lot of discussion about it and I think it’s quite important and I would like to raise the possibility that we might even consider that it should be a compulsory referendum in order that it is absolutely clear all the way around what people think.
The Honourable Janet Robertson
JR: Yes Mr Speaker, Honourable Members, I do believe that the issue of constituencies should remain in the constitution and that the thresholds should be defined in the constitution for the very reasons that have already been given here today.
I do think, though that the level – the threshold as it is described here – probably warrants further discussion and I would certainly propose that we refer this back to Select Committee for further discussion.
I would just like to make the point though that I believe that the issue of constituencies and the issue of representation are two separate issues and it’s easy to end up confusing the two and perhaps they need to be more clearly defined and separated in the constitution.
Colleagues have already mentioned about the issues of protection for minority interests – about the differences between Stanley and Camp – differences which need not be contradictory or confrontational but nevertheless do exist as it exists between all rural (and) urban areas all around the world.
The issue of representation, however, is something slightly different. Under this constitution Executive Council will still need to return one Member from Camp and one Member from Stanley. So even if we altered the balance of representation between Stanley and Camp, it would not actually affect representation in Ex-co and I think that that is an important consideration.
But I honestly don’t think that we’ve had sufficient debate and discussion on either of these subjects so I would – again – reiterate that I would like and I would like to support to have this matter referred back to the Select Committee for further consideration.
LC: Thank-you the Honourable Janet Robertson. Are you going – do you only wish only for Sub Clause 3 to be referred back or are you also saying that the issues of Executive Council need to be referred back to …
JR: No indeed – I am referring entirely to Section 27.
LC: 3 (27:3)
JR: 3 (27:3)
The Honourable Mike Summers
MS: Mr Speaker, Honourable Members, in respect of Chapter 3, I think there are three important issues. One is the change of name of the Legislative Assembly and I think it just represents another piece of progress in the evolution of Democratic Government in the Falklands and I am pleased on that basis.
The constituency issues I will come to in a sec (second) but the other issue in Chapter 3 that I think is important is that the age a person may stand for election has been reduced from 21 to eighteen to reflect modern practice and that’s a good thing. And the encouragement of young people to involve themselves in democracy and the management of their country can only be encouraged.
In respect of constituencies, I think we must all accept that this is a complicated issue. If I could just quote a word or two from the final report of Select Committee on the Constitution – it says:
“Select Committee formally recommends that debate on any subsequent change should be free of Constitutional issues. However, Select Committee is also firmly of the view that there should be formal consultation with all voters before any change is made by way of referendum or similar method. It would be a condition of the removal of this issue from the constitution to the Electoral Ordinance that this requirement would have to be protected.”
I think by in large that remains the policy intention of the Select Committee and I am not sure that anybody in any of their comment has deferred from that.
In terms of the constituencies issue, there are three separate issues. It is not just a question of mathematics and you can do all the mathematical calculations you like and come up with all sorts of statistics but it doesn’t solve the whole issue. And there is the issue of whether there should be two constituencies, one constituency or, indeed, five constituencies or four or something, so that could and should be considered.
There is also the question of the numbers of Councillors. I know that in the discussions on the Constitution as a whole – and it’s not in this section – the number of Councillors that should be elected – perhaps it is in this section – doesn’t matter – is set at 8. I think there might be an argument for saying that in the discussion on constituencies and boundaries and representation that number might be varied.
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