Ascension : CONSTITUTION OF ST HELENA, ASCENSION AND TRISTAN DA CUNHA
Submitted by The Islander (Ascension Island Government) 29.01.2009 (Article Archived on 12.02.2009)
The draft of 3 December 2008 is a development of the draft of 25 June 2008, taking into account the consultations held on St Helena and Ascension in November by the UK constitutional review team.
Reference the following explanatory note on the Draft Constitution for St Helena, Ascension and Tristan da Cunha; please note that a copy of the latest draft Constitution may be obtained on request from the Clerk of Council, Sandra Benjamin. (Tel no 7000 ext 131 or email: Sandra.Benjamin@ascension.gov.ac)
CONSTITUTION OF ST HELENA, ASCENSION AND
TRISTAN DA CUNHA
DRAFT OF 3 DECEMBER 2008: EXPLANATORY NOTE
1. The draft of 3 December 2008 is a development of the draft of 25 June 2008, taking into account the consultations held on St Helena and Ascension in November by the UK constitutional review team. The changes to the 25 June draft are indicated below.
2. The major change is in the structure. The draft Constitution now consists of three Chapters: Chapter 1 applies to St Helena, Chapter 2 applies to Ascension, and Chapter 3 applies to Tristan da Cunha. This is made clear in section 1 of the draft Constitution. This revised structure reflects the clearly stated preference of elected Councillors on St Helena and Ascension; and it is hoped that it will be welcomed on Tristan da Cunha too. The result is that each Chapter tells the whole story for the island(s) to which it applies, without the need to cross-refer to provisions in other Chapters. This involves quite a lot of repetition, especially in the fundamental rights and judicature sections, and the result is a weighty document. But the benefit in terms of transparency, especially for Ascension and Tristan da Cunha, outweighs that.
Covering Order in Council
3. For the first time, a draft of the covering Order in Council is included. This is drafted in traditional form for Overseas Territory Constitution Orders. It deals with the revocation of the current Constitution Orders (section 3), the establishment of the new Constitution (section 4), transitional provisions (sections 5-13), and the reserved legislative power of Her Majesty (section 14). The transitional provisions in sections 5-8 and 13 are standard ones; those specific to this particular Constitution are in sections 6(4) and 9-12. Section 7 is drafted on the hypothesis that the new Constitution would be brought into force otherwise than at a dissolution of the Legislative Council in St Helena. Sections 11 and 12 are included because, for the first time, the new Constitution would establish (“There shall be”) and thus give constitutional status to the Island Councils of Ascension and Tristan da Cunha.
4. Paragraph (f) includes the wording the UK team suggested in St Helena and mentioned in Ascension: “and recalling that everyone has the right to a nationality”. It also includes the words “and the right not to be arbitrarily deprived of his or her nationality”, which is the second limb of the relevant provision in the Universal Declaration of Human Rights. Together these phrases are designed to provide some reassurance to Saints about their British citizenship, to the extent that one can legally and politically do so in a new Constitution.
Chapter 1: St Helena
5. Section 14(5) (children’s rights) is amended in two ways. As agreed in St Helena, “the Government of St Helena” replaces “the state”, the latter word being inapt for an Overseas Territory. In addition, a qualifying phrase has been added: “and which are appropriate and proportionate to the circumstances of St Helena”. Equivalent changes have been made in the equivalent provisions in Chapters 2 and 3: see section 130(5) for Ascension, and section 195(5) for Tristan da Cunha. In its unqualified form this provision would have given power to the courts to require protection measures for children at potentially unlimited expense. The additional words should help to keep the resource implications within reasonable proportions.
6. Section 36(2) and (3) (elections to Executive Council). These subsections are new, and reflect the agreement reached with Councillors that Elected Members of the Legislative Council could decide at each 12-monthly interval to forgo an election of members to the Executive Council. If they do, the existing members of the Executive Council stay in office for the next twelve-month term.
7. Section 39(2) (agenda of Executive Council). This is new, and would give every elected member of the Executive Council the right to place items on the Council’s agenda. The wording is taken from the new Falkland Islands Constitution, as agreed with Councillors.
8. Section 39(9) (right of Executive Council members to caucus). This is new. It expressly would allow members of the Executive Council to meet informally to consider what advice they might give at a meeting of the Council. Its inclusion responds to requests made during public consultation on St Helena.
9. Section 43(8) (right of Executive Council members to submit comments to Secretary of State). This revised wording, agreed with Councillors, would give any member of the Executive Council the right to submit directly to the Secretary of State in London his or her comments on the Governor’s reasons for acting against the advice of the Executive Council. As previously worded, any such comments would have had to be routed through the Governor.
10. Section 48(a) (membership of Legislative Council). This now refers to the Deputy Speaker, in consequence of the decision (see section 55) that the Deputy Speaker should be elected from outside the Council.
11. Section 54 (oaths or affirmations by Members of Legislative Council). This is simplified in consequence of the revised section 55.
12. Section 55 (Speaker and Deputy Speaker). This is revised, as agreed with Councillors, to provide that both the Speaker and the Deputy Speaker must be elected from among persons who are not Elected Members of the Legislative Council but who are qualified to be elected as such Members.
13. Section 58(1) (functions of Council Committees). As agreed with Councillors, the words “in his or her judgement” are deleted. This means that the functions of Council Committees must be determined not by the Governor on his own, but by the Governor on the advice of the Executive Council (unless the Governor had grounds for departing from the Council’s advice under section 43).
14. Section 62(2) (attendance of Deputy Speaker at Legislative Council). As agreed with Councillors, this new provision would allow the Deputy Speaker to attend, but not take part in, Legislative Council sittings at which the Speaker presides. The Deputy Speaker would of course preside at sittings in the absence of the Speaker: see section 62(1)(c).
15. Section 67(2) and (3) (voting in Legislative Council). These subsections are amended to take account of the new Deputy Speaker provisions described above. Neither the Speaker nor the Deputy Speaker would have the right to vote in the Legislative Council.
16. Section 69(1) (Public Accounts Committee). As agreed with Councillors, this is amended to give Elected Members of the Legislative Council a 3-2 majority on the Public Accounts Committee. The chairman and one other member of the Committee would have to be appointed from among non-Members of the Legislative Council.
17. Section 72(1) (remuneration of certain office-holders). This now refers to the Deputy Speaker, whose remuneration would need to be provided for along with that of the Speaker and the Elected Members of the Legislative Council.
18. Section 91(8)(b)(i) (judicial officers deemed to have resigned from office). This now refers to the Deputy Speaker, whose office would be incompatible with that of magistrate.
19. Sections 113(1) and 114(2) (Complaints Commissioner). These are amended as agreed with Councillors, to allow a wider remit for a Complaints Commissioner.
20. Section 115 (interpretation). The definition of “St Helena Public Service” is amended as agreed with Councillors, in order to confine the phrase to the civil service and the police, prison and fire services.
21. Sections 115-120 (miscellaneous). These sections now apply to Chapter 1, rather than the Constitution as a whole. Equivalent provisions are now separately set out in Chapters 2 and 3 for Ascension and Tristan da Cunha.
Chapter 2: Ascension
22. This is divided into Parts, so far as material equivalent to the Parts in Chapter 1.
23. Part 2 sets out the same fundamental rights provisions as apply to St Helena, minus section 12 (freedom of movement) and section 20 (St Helenian status) and plus a provision to save the UK/US agreements concerning Ascension (section 141). These differences reflect the particular circumstances of Ascension, as explained by the UK team to Ascension Island Councillors.
24. Sections 142-145 set out for Ascension the applicable equivalent provisions relating to the Governor, powers of pardon, powers to dispose of interests in Crown land, and the public seal.
25. Sections 146 and 147 make express reference to the Administrator of Ascension, as requested by the Administrator and Ascension Island Councillors, in view of the key governmental role of the Administrator on Ascension.
26. Section 148 provides that “there shall be” an Island Council of Ascension, thus giving the Council constitutional status, as agreed with Ascension Island Councillors.
27. Section 149(3) is new: no person acting as Attorney General may do so for Ascension while the substantive Attorney General is in Ascension. (Section 142(3) does the same regarding the Governor.)
28. Section 149(4) makes provision for the appointment of Crown Counsel for Ascension, subordinate to the Attorney General. This draws on section 48 of the Island Government (Ascension) Ordinance 2008, and was requested by Ascension Island Councillors and the Administrator.
29. Section 150(2) is new, and reflects the desire of Ascension Island Councillors to make their views known to the Secretary of State if their advice is not followed by the Governor. (Its equivalent in Chapter 1 is section 43(8) mentioned at paragraph 9 above.)
30. Part 6 sets out all of the Administration of Justice provisions needed to apply to Ascension. The provisions not reproduced from the equivalent Part in Chapter 1 relate to the constitution of the Supreme Court and the Court of Appeal and the method of appointment and removal of the judges of those courts. It is not necessary to reproduce these (as it is not necessary to reproduce the provisions relating to the appointment of the Governor and the appointment and removal of the Attorney General).
31. Section 160 makes special provision for “judicial officers” for Ascension, ie. the magistrates, drawing on the equivalent provisions in Chapter 1. At Ascension Island Councillors’ request, section 161 provides for an Ascension Judicial Service Commission, but with the fourth member being “a person” (rather than “a person who has St Helenian status” as in section 94(1)(d)) appointed for a period of one year.
32. Part 7 sets out in full the Public Service provisions equivalent to those in Part 7 of Chapter 1.
33. Part 8 reproduces most of what was in the previous draft relating to public finance. But a role is given to the Island Council, at the request of Ascension Island Councillors, in sections 170(2), 171(2), 176(3) and 178(3) and (4). Also, sections 176 and 177 are redrafted to reflect the separate audit arrangements that apply in Ascension.
34. Part 9 sets out in full the interpretation and related provisions applicable to Ascension.
Chapter 3: Tristan da Cunha
35. This Chapter follows the same pattern as Chapter 2 relating to Ascension, but with the following differences to reflect the special circumstances of Tristan da Cunha.
36. Part 2 sets out the fundamental rights provisions in the same terms as those that apply to St Helena.
37. There are no provisions equivalent to the Ascension provisions regarding Crown Counsel, judicial officers, a Judicial Service Commission, or public finance.
38. By contrast, the following provisions agreed with Ascension Island Councillors have been written in for Tristan also.
39. The Administrator of Tristan da Cunha is expressly mentioned in sections 211 and 212.
40. Section 213 is drafted as in the equivalent Ascension provision (“There shall be an Island Council”), thus giving the Island Council of Tristan da Cunha constitutional status.
41. Section 215(2) reflects section 150(2) mentioned at paragraph 29 above.
42. It is hoped that this rearrangement will assist discussion during the Attorney General’s visit to Tristan da Cunha in January, when any further changes desired by Tristan da Cunha Island Councillors or members of the public can be explored.
The Schedule to the Constitution
43. The oath of confidentiality has been redrafted to bring it more closely into line with the language currently in use. This applies only to St Helena.
Foreign and Commonwealth Office
3 December 2008