Falklands : Legislative Council Friday, 12 September 2008 (Part 3)
Submitted by Falkland Islands News Network (Juanita Brock) 15.09.2008 (Article Archived on 29.09.2008)
The final part of this most important Legislative Council meeting
LEGISLATIVE COUCIL FRIDAY, 12 SEPTEMBER 2008
A Debate on the Draft Constitution
(Part 3)
Chapter Four – Powers and Procedures of the Legislative Assembly
The Honourable Mike Summers
MS: Mr Speaker, I am not sure there will be any great debate on this Chapter although there are some important provisions in it. Provision is made for a deputy speaker and transitional arrangements for the opening of the new assembly and that is an important administrative matter at least. A Quorum of this House is clarified as being six elected Members of the assembly. That clearly is important. Provisions for the Governor to approve the standing rules and orders of the House are removed. That is regarded as anachronistic since the Governor no longer chairs the Legislative Council. It’s not appropriate that standing rules and orders should be approved by the Governor. That therefore is removed and I know the current Governor doesn’t object to that as his predecessor may have done.
The other new provision in here, which is important is that there is a new provision for the Governor before exercising his reserve powers to pass laws by the assembly to inform the Executive Council of his intentions to do so and the reasons and allow Members to express their views. And, as before, the Governor may not exercise these powers without the approval of the Secretary of State.
We will come in Chapter Five I think, to perhaps the key – the key change in the balance, if you like, between the role of the Governor and the role of the democratic Government in the governance of the Falklands. But this forms part of a re-balancing in modern terms of how it should move forward.
These are important provisions. I don’t know whether other Members wish to speak to this Chapter. If they don’t I Move that it be included as part of the Draft Constitution.
LC: Honourable Members, are you content with the proposal to fast track the procedure this morning. (All said Aye)
Chapter Five – The Executive
The Honourable Mike Summers
MS: Mr Speaker, as I just mentioned, this doesn’t contain important new provisions. And these are provisions that I should emphasise have been proposed to us by the Foreign and Commonwealth Office. So they are not provisions that we have had to sort of wrangle out through lengthy argument. The key issue here is that there is fundamental change in the way in which the Government and Executive Council interact and the key change is that on matters of governance in the Falklands the Governor must now consult the Executive Council and he must accept the advice of Executive Council except in certain specified circumstances.
And I think those circumstances are quite well known. There are also provisions that the Governor may act against the advice of Executive Council in certain circumstances and these are also set out in the constitution.
There was quite a long discussion in Select Committee over many years about how to achieve this type of balance. I am content that the new Draft does that and I am content that there is good will in this issue between the Foreign and Commonwealth Office, the office of Governor and the Council of the day. So, very important provisions
LC: Thank-you very much Councillor Summers. Does any Honourable Member wish to speak on this matter?
The Honourable Dr Andrea Clausen
AC: Mr Speaker, Honourable Members, I don’t have very much more to add to this, really – just to agree with my Honourable Colleague. I think this section is pivotal in providing a significant step forward in terms of a forward thinking and moving democracy and it strengthens our internal self government quite significantly, I think, and I completely welcome that.
There was one quite small provision that – well might seem insignificant to some but I welcome it. It is in regard to a Member of Executive Council will now be able in certain prescribed circumstances to take part in a meeting of Executive Council remotely. Providing a number of boxes are ticked and given my current circumstances I think that’s highly welcome news and you never know what might be around the corner and sometimes it could be a very useful provision so I welcome that.
LC: Your declaration of interest is so noted. (Laughter) Does any other member wish to speak on this Chapter or may we proceed to Chapter Six?
The Honourable John Birmingham
JB: Um 63 presiding in the Executive Council – page 47 – and I don’t want to put the Acting Attorney General on the Spot unlike some of the Colleagues around here. It says here that there shall preside at any meeting of Executive Council the Governor or, in the absence of the Governor, such Member of the Executive Council as the Governor acting in his or her discretion may appoint to preside in that meeting. The question would be would that allow an elected Member of the Assembly who was sitting on that Executive Council to chair that meeting?
RC: Mr Speaker I believe the answer to that question must be yes as the provision clearly allows the Governor acting in his or her discretion to appoint such a Member of Executive Council.
JB: Thank-you
LC: Declaration of early interests
JB: I beg your pardon?
LC: Declaration of early interests. Would any other Honourable Member wish to speak on this matter?
The Honourable Richard Stevens
RC: Mr Speaker, Honourable Members it’s just a general point that I would like to put forward and that is the importance that this part of the constitution has in the development that this part of the constitution has when we go into the UN and in the last meeting that we had in the UN many people were interested in the area of what the Argentines would like to call a ‘colonial’ situation. In fact, dare I say manifestations of a colonial situation but many countries we spoke to are very interested in our political development and the relationship that we have with the UK – in particular with the Governor. So, his powers and our powers are clearly defined. And, a number of the countries that we spoke to, found our point of view very interesting and they took note.
Thank-you
LC: Thank-you very much, Councillor Stevens. Honourable Mike Summers, would you care to Move this chapter please?
MS: Mr Speaker I Move that Chapter Five be part of the Draft Constitution as it stands.
Chapter 6 – Finance
MS: Mr Speaker, this contains a number of repetitions of existing provisions to protect the way in which the finances of the country are managed and that is entirely appropriate. There are two significant amendments to this Chapter. One is that there are amended provisions for audit. Current provisions are somewhat acronymous and therefore are new provisions. And incidentally audit is one of those areas that falls under the exception of business where the Governor may act against the advice of Executive Council if he thinks it appropriate to do so, so that audit of the Government finances is obviously a demonstrably independent function. That’s important.
The other really important section of this Chapter is the provision of a public accounts committee and the constitution sets out how it should be constituted – there should be five persons, two of whom should be elected Members and three who are independent and a number of people including the Director of Finance and the Chair and Vice Chair of Standing Finance Committee may not be members.
The key role of the public accounts committee is to examine and report on all public accounts and audit reports that are required to be laid before the assembly.
And then it goes on to say perhaps such other functions are prescribed to it under ordinance. Of course, that is the key. There has already been some quite active discussion amongst ourselves and indeed with members of the public about what role the Public Accounts Committee might play.
There is also, I think, emerging an important discussion on what is the interaction between the Public Accounts Committee and the Audit function. Because what we don’t want to do is a public accounts committee that effectively replicates the audit or does the same thing as the audit. And it should be in our interests to make sure these things are either separate and different or connected together.
But I am very, very happy that we have for the first time in our constitution and perhaps for the first time in our democratic institutions an authority like the public accounts committee which has the function of checking and commenting on the way that public finances and the public service in general is being run. And there will be a whole series of issues coming out of the debate on the PAC as the extent in which the public accounts committee should be responsible for reviewing the efficiency and value for money of different parts of the public service.
So I am very pleased to see this. I was astonished to hear a discussion the other day that the Foreign and Commonwealth Office thought that this was their idea. In actual fact it was included in the Motion for the setting up of this Select Committee in the year 2000. So it’s something that has come from democratic institutions and will form an important new part of democratic institutions.
The Honourable John Birmingham
JB: Chair I very much support the setting up of the – the legal framework for the setting up of the public accounts committee. There are some members of the public who are confused as to what this committee might be sitting around doing and there are some members of the public who have the idea it would only be looking at investigating areas within the Falkland Island(s) Government and I would just like to properly say as far as I can see that’s not the case at all. And I think it says here under Six “A” the public accounts committee shall have power to summon any person to appear before it.
I would just like to make that point, Chair
Councillor the Honourable Dr Andrea Clausen
AC: Mr Speaker, Honourable members, I have very little to add to this except for I also welcome changes to the section with regard to the audit and the public accounts committee.
And whilst I hear what my Honourable Colleague says about the public not being sure we do have some way to go in terms of defining what will flow out of this in the subsidiary legislation so they need not fear just yet. This is merely a provision as I understand it so we can establish this function and that we have some way to go yet before all of those details are thrashed out. But I think it is a very welcome move and I particularly support the idea that at least to some degree we will be able to investigate value for money in terms of projects and so-on within the Government owned and potentially outside the Government.
LC: Thank-you very much Councillor Clausen. No other Honourable Member wishes to speak? The Honourable Mike Summers, would you care to make a proposal?
MS: Mr Speaker I move that Chapter Six be included as it stands as part of the Draft Constitution.
Chapter Seven – The Public Service
The Honourable Mike Summers
MS: I’ll be brief on this – there are some important changes in Chapter Seven. I would just like to for the benefit of the public to run through what they are.
The role of the Chief Executive is more clearly defined in the new constitution the Old Constitution simply mentioned that there will be one. It doesn’t say what he would do, which is a bit of an omission. So the Chief Executive is appointed by the Governor but acting in agreement with Executive Council and this is an important provision to ensure that the Chief Executive enjoys the confidence, at least when he first starts his work practice. He is also appointed as Head of the Public Service under the authority of the Governor and that’s an important provision because it, again, distances the Governor from one further stage from day to day administration of the government of the Falklands in which he or she should not be involved.
There are important issues in here – there were lengthy discussions about the power to make appointments and also the responsibility for discipline and dismissals. The power to make appointments under the New Constitution or the New Draft is still vested in the Governor but it is delegated to the Chief Executive but prior approval is required for appointments over above the Head of Department. And the Governor remains responsible for the appointment of the Attorney General, Chief of Police and the OC FIDF. Those are, I think, important provisions to which we agreed because it is important that the Attorney General in particular is demonstrably publicly free from any form of political influence because he is the Director of Public Prosecutions. And it’s not in his role as leader of Legal Advisor to the Government that you need those provisions but his role as Director of Public Prosecutions. So his appointment and any subsequent management issue must be free of political influence.
In future – this took quite a lot of discussion oddly enough, but in future all discipline will be exercised in accordance with the Management Code. And that, too, is an important provision because discipline previously was the responsibility of the Governor. So, the Governor, having made his decision - that was the end of the matter. You had nowhere to go. Now discipline is exercised in accordance with the Management Code and any decision may be appealed to the Governor.
I suppose I should just say when I said previously you had nowhere to go, you can, of course, go to Judicial Review and this was raised on a number of occasions. But Judicial Review frankly is not – whilst it is sort of in theory available to all members of the public – it’s an expensive and difficult process. So it’s right there should be a better mechanism so discipline in accordance with the Management Code much clearly set out is important and decisions may be appealed to the Governor.
Those are the most important, I think, amendments in this section.
The Honourable Janet Robertson
JR: Yes Mr Speaker, Honourable Members I would like to Comment on Councillor Summers’ comments on this section – on this Chapter. I think that it does more clearly and more better reflects the practices that we currently have – the role of the Governor and the day to day management of the public service is, I think, modernised through this whole Chapter.
And, of course, I welcome the inclusion of the Office of Chief Executive although what I am a little bit puzzled about is that under Clause 2 – 83:2 it says that:
“The Chief Executive shall comply with any directions given to him (or by the Governor) acting in his or her discretion.”
And as I said we spoke a lot in terms of trying to ensure the provisions in the constitution or any changes in the constitution should better reflect actual practice. In actual practice the Chief Executive receives directions from the Government as well as from the Governor. And so I feel that the Clause as it stands is rather unbalanced. I was wondering if perhaps either the Acting Attorney General or indeed anyone else could perhaps clarify this situation for me?
RC: Mr Speaker all I can say is that it is a matter of policy why the Clause is as it is and I am afraid I am not aware of the background to it. I am going to have to rely on some of your colleagues.
The Honourable Mike Summers
MS: (Laughs) Sorry Mr Speaker, my understanding of this is that the management of the public service is the responsibility ultimately of the Governor. And the Line Manager for the Chief Executive is the Governor. And it is not possible to line manage somebody on a day to day basis through a committee or a council so I believe that is the reason that it’s written in this way. It doesn’t mean that the Chief Executive wouldn’t be regularly taking direction and advice and indeed instructions from the Executive Council but, of course, the constitutional mechanism for that is that they come through the Governor.
The Honourable Janet Robertson
JR: Thanks for the clarification.
The Honourable Dr Andrea Clausen
AC: Very little and very briefly Mr Speaker but just to say that I particularly welcome the clarity that the amendments are giving, in particular to who has the power to make the appointments and in terms of recognising the Management Code as the document that provides the process for disciplinary issues. I think that it’s very important that we move away from just the option of Judicial Review and separate out into the Management Code and then the Governor as the role of a parent, though I think that’s really important and I think that the clarity that it provides is very welcomed.
I support it.
The Honourable Mike Summers
MS: Mr Speaker I move that Chapter Seven be included as it stands as part of the Draft Constitution.
Chapter Eight – The Administration of Justice
The Honourable Mike Summers
MS: Mr Speaker, this Chapter is largely unchanged but it makes provision for a Judiciary independent of the Executive, which is critical in any good democratic government. You don’t always see it in other places around the world and you see the results of those failures. So the administration of justice is kept separate from the Executive and that’s quite right.
The only real change to this section is that the Senior Magistrate is added to the list of judicial appointments made by the Governor acting in his discretion and that the Senior Magistrate is added to the list of people – who are – there is a process described under the constitution for the removal of judges and the Senior Magistrate is added to the list of those people who can be removed by the Judicial Committee of the Privy Council and this creates a clear process for the removal of the Senior Magistrate. There is no other way in which they can be removed to keep them free of political influence.
The Honourable Janet Robertson
JR: yes. I just wanted to comment briefly on the change of name of this Chapter. It was ‘judicature.’ It’s now being known - changed to Administration of Justice. I would just like to say that the Concise Oxford Book of the Meaning of Words – judicature actually has three meanings. It means the Administration of Justice – yes – but it’s also a judge’s term of office and a body of judges or a Court of judges. What we have achieved therefore is more words, more syllables and less meaning. I am not sure that that’s progress at all.
The Honourable John Birmingham
JB: Chair, I’d like to thank the Honourable Member for that information and it is so true that each day we learn a little bit more.
LC: Thank-you very much Councillor Birmingham. I take it Honourable Members that you are content with this Chapter as is?
MS: I Move that this Chapter with its new title be included as part of the Draft Constitution.
Chapter Nine – Complaints Commissioner
The Honourable Mike Summers
MS: Mr Speaker this is an entirely new Chapter to the Constitution. It was also proposed during the setting up of the Select Committee on the Constitution in the year 2000 and is another important new edition to the protections, particularly for the individual in society.
We have many of us often observed that if you fall out with the Government in the Falklands it’s not a very comfortable position and there isn’t an independent place to go where you can have your legitimate complaint reviewed.
And so, the setting up of a complaints commission is an important edition to the institutions of the Falklands. And it is set out in the Constitution that the role of the Complaints Commissioner is to hear complaints of mal-administration by the Government in the Falkland Islands and any other matter referred to it under ordinance.
And so there will be a fair amount of discussion about how our complaints ought to be referred to the complaints commissioner and what role he will have.
It is provided for that no person who is a member of the legislative assembly or Public Officer may be appointed as complaints commissioner and that is clearly important. But there is much work to do in completing the provisions for this office and the Attorney General and his staff have been tasked with producing a policy report to the Executive Council in the last quarter of this year as I have on the public accounts committee and we look forward to some further advice on how we might take this matter forward.
Councillor John Birmingham
JB: Chair I very much support the introduction of a complaints commissioner. I have a question for the Acting Attorney General which isn’t too bad. And that’s on the term ‘public officer’ Is a public officer anybody who is in the employment of the Falkland Island(s) Government?
RC: Mr Speaker a public officer is one of the terms that is defined under Section 100 of the Constitution together with public office and the public service but essentially in short the answer to your question is yes.
The Honourable John Birmingham
JB: And also just for clarification the complaints commissioner would not be – I take it – would not be a sitting commissioner of any sort and that the wording here is ‘from time to time the Governor would appoint.’
The Honourable Mike Summers
MS: Mr Speaker the policy intention of that was that it would not be – it would not be strictly necessary to appoint somebody who was a commissioner for a long period of time. Given that we are a very small community very often people are related to each other or know each other or have interrelating interests. So this provision makes it possible for the Governor to appoint a complaints commissioner for a particular purpose. And once that purpose is fulfilled his tenure is completed.
LC: Thank-you very much Councillor Summers. Attorney General, do you wish to say anything further?
RC: No
LC: Fellow Members are you content with this Chapter as is?
MS: Mr Speaker, I Move that Chapter Nine be included as part of the Draft Constitution.
Chapter Ten – Miscellaneous
The Honourable Mike Summers
MS: Mr Speaker there are just a couple of issues I would like to raise here. This chapter contains two new elements for the constitution. For the first time there is a definition of the Governor, which means the Governor acting in accordance with the advice of Executive Council – that with all those other provisos we talked about earlier under earlier chapters.
Um – there – in discussion with lawyers we were advised it wasn’t strictly necessary to have a definition of the Governor but we did for the sake of clarity because not everybody is always clear about what the Governor means in terms of the overall constitution of the Falklands so that’s what we have done.
And there are changes to oaths to be sworn by Officers of the Government and it was noted in our deliberations that it seemed to be rather odd that the people and the Constitution and the laws of the Falklands were not referred to in any of the oaths that were being sworn, either for public office or as a member of the judiciary. And so the Oath of Due Execution of Office now includes a responsibility to serve the people of the Falklands and to uphold the constitution and the laws in force in the Falklands. And the Judicial Oath now contains new requirements to do right to all manner of people according to the constitution and other laws in force in the Falkland Islands and that is important, I think, not only cosmetic but important fundamental change.
Mr Speaker there is one other issue that has been brought to our attention in recent days and that is in respect of Section 100 and the Section was raised a moment ago by my Colleague, where the public service means and includes the Falkland Islands Defence Force.
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