The results of the Commission of Inquiry are in, and governance in the Virgin Islands has been found to be “at best, very poor,” wrote Commissioner Sir Gary Hickinbottom.
Concluding that “serious dishonesty in relation to officials” is “highly likely to have taken place,” his 937-page report sets out 45 far-reaching recommendations encompassing 14 different areas covering virtually every aspect of government.
That advice falls under four overarching recommendations.
The first, which is designed to facilitate the others, is the most dramatic: the temporary, partial suspension of the Constitution for at least two years, which will enable the dissolution of the House of Assembly and ministerial government and allow for direct rule by the governor with the help of an advisory council consisting of members that reflect VI “civic society.”
The commissioner acknowledged that the partial suspension is a “last resort” and may not be greeted with enthusiasm by the entire community, but he said he concluded it is the “only way in which the relevant issues can be addressed.”
“Let there be no doubt — I have not recommended suspension of part of the Constitution to frustrate the hopes and wishes of the people of the BVI, but rather to enable them to fulfil those very aspirations,” the report states. “They deserve no less.
Such a suspension would mean that the governor would temporarily take over executive powers currently held by ministers, with assistance from an advisory council drawn from “the huge pool of talent and wisdom” in the VI.
Second, Sir Gary concluded that a Constitutional review is also “essential,” with the aim of ensuring that mechanisms are put in place so that abuses he identified cannot continue or be repeated.
Third — since “many government decisions are made not openly and transparently on the basis of objective criteria, but using an open-ended power involving unfettered and unmonitored discretion” — he recommended that there should be a review of such powers, with a view toward curtailing them.
Fourth, he recommended a “proper, independent and impartial audit” of several areas of government.
“That is vital because not only do those who live in the BVI have the right to know, but also further steps (such as criminal prosecutions and the recovery of public moneys wrongly expended) will be crucially informed by such investigations,” the document states.
The report goes on to recommend multiple audits, reviews and changes involving virtually every area of government, beginning with the audit of all contracts over $100,000 over the last three years, as well as an audit of the Covid-19 assistance programme, where multiple anomalies were found.
The auditor general should be tasked with heading many of these audits, and the governor, in turn, should be tasked with making sure she has the resources to do her job with no interference, according to the commissioner.
The report contains multiple recommendations for potential “investigations into projects and/or individuals” identified by the audits and reviews.
These investigations should be conducted by special units set up for the purpose, which should be responsible for “taking steps to secure money, land or other assets pending criminal and/or civil confiscation and/or recovery proceedings, if appropriate,” the report states. “They should also be responsible for civil recovery.”
The commissioner acknowledged that the measures may seem drastic, and said he had considered lesser ones as well. However, he concluded that “the only way in which the relevant issues can be addressed is for there to be a temporary suspension of those parts of the Constitution by which areas of government are assigned to elected representatives.”
The suspension should be “as short as possible” but should last at least two years before elected government is restored, the report states.
“Unless the most urgent and drastic steps are taken, the current unhappy situation — with elected officials deliberately ignoring the tenets of good governance giving rise to an environment in which the risks of dishonesty in relation to public decision making and funding continue unabated — will go on indefinitely,” the commissioner wrote. “In my view, that is wholly unacceptable. It is not simply that the people of the BVI deserve better — which they do — but the UK government owes them an obligation not only to protect them from such abuses but to assist them to achieve their aspirations for self-government as a modern democratic state.”
Here is the complete set of 45 recommendations in brief:
CONSTITUTION
Temporary partial suspension of the Constitution for “an initial period of two years,” in order to enable:
- Dissolution of the House of Assembly
- Dissolution of ministerial government
- Direct rule by the governor assisted by an advisory council he appoints and that should “reflect BVI civic society”
- Consideration by the governor, at least every six months, of the advice of his advisors as to when ministerial government can resume, and the publication of a report on the process
CONSTITUTIONAL REVIEW
An “early and speedy” constitutional review, to ensure abuses of the type identified in the report do not occur, and establishing a constitution “that will enable the people of the BVI to meet their aspirations, including those in respect of self-government.” It should address:
- How the executive ministerial government can be held to account in the House of Assembly
- Whether the current constitutional pillars of governance are sufficient and effective
- The powers that need to be reserved to the governor; the resolution of issues involving devolved and reserved powers; and a mechanism for transferring reserved powers to the VI government in the future
- Whether there should be a regime for monitoring election expenses
- Whether statutory boards should be embedded in the Constitution, potentially in the form of a Statutory Boards Commission
- Whether the speaker should continue to be appointed or elected
The review should be completed in a year or extended to 18 months, and the sitting government’s existing Constitutional Review Commission “may be a basis” for proceeding with the proposed review
OPEN-ENDED DISCRETION
Review of “discretionary powers” held by elected public officials, including Cabinet, to determine whether they are necessary, possibly conducted by a senior VI lawyer or retired judge
AUDITS AND INVESTIGATIONS
Review by the auditor general or her appointees to “initiate a review of all areas of government” and produce a timetable for audits, prioritising those areas more likely to lead to “further steps (e.g. in relation to criminal investigation and/or steps to recover public money)”
Establishment by the governor of one or more independent units to conduct investigations “into projects and/or individuals as identified by the unit(s)” by the auditor general’s audits and the COI report. The units should also be responsible for “taking steps to secure money, land or other assets pending criminal and/or civil confiscation and/or recovery proceedings, if appropriate”
COI METHODOLOGY AND PROCESS
A review of the Commissions of Inquiry Act 1880 “in the lights of this COI and the processes it has adopted as well as modern practices adopted in other common law jurisdictions,” with a view to make recommendations designed to improve the conduct of commissions of inquiry in the VI
ELECTED PUBLIC OFFICIALS’ INTERESTS
The establishment of a system of registration of interests by elected officials that gives clear guidance as to what must be disclosed and when, and has effective provisions to require compliance, and open to the public with exceptions only where “truly necessary”
A properly formulated and costed plan for the implementation of such a system
Consideration of extending the registration of interests plan to other public officials in time, beginning potentially with permanent secretaries, the financial secretary and the Cabinet secretary; members of statutory boards; and eventually all public officers.
Amendment of sections 66 and 67 of the Constitution to make it clear how and when an HOA member should disclose contracts with government and consequences of him or her not doing so, and to make clear whether the term “government of the Virgin Islands” includes statutory bodies.
ASSISTANCE GRANTS
Review of the “welfare benefits and grants system” with a view toward moving it to “an open, transparent and single (or, at least, coherent) system” based on clear criteria and without unnecessary discretionary powers, by a body established to do so
Immediate cessation of HOA and ministries’assistance grants in their current form
Reallocation of grant funds to the Social Development Department for distribution in accordance with its criteria
If recommended, consideration to
- having clearly expressed and published criteria for public assistance, including educational scholarships
- an open and transparent process for recording, assessment and monitoring
- assessment and monitoring by elected public officials and the relevant district community
Full audit of all grants made by the HOA and/or ministers for the last three years, including those applied for but not granted, which “should enable any further appropriate steps, such as a criminal investigation and the recovery of public money”to be taken
Full audit of all four Covid-19 assistance programmes (i.e. transportation; micro-, small- and medium-sized enterprises; farmers and fishers; and day cares, schools and religious organisations) with a“specific requirement”for public officials to cooperate promptly, considering:
- the programme criteria
- the steps taken to ensure good governance
- the extent to which grants were made to those who did not qualify
- the extent to which (and why) bands were adopted without regards to the amount allocated by Cabinet
- the extent to which backend accounting has been used to recover money inappropriately allocated
Consideration of“whether a criminal investigation should be held” into the conduct of the Premier’s Office in allegedly obstructing the internal auditor and the auditor general in their audits of the Covid-19 assistance programmes
Consideration of an amendment of the Audit Act 2003 to make failure to cooperate with or otherwise impede the auditor general, without legitimate excuse, a criminal offence
Treating the failure by a public officer or statutory board employee to cooperate with either auditor, without reasonable excuse, as gross misconduct
CONTRACTS
An audit of all contracts for major projects over $100,000 considered by Cabinet or a minister over the last three years, considering:
- any manipulation of a project to avoid the open tender requirements
- any waiver of the open tender process
- the process for selection of contractors
- whether the project was completed
- value for money
Specification in all minor contracts that there are no associated contracts that would trigger the open tender process for major contracts, and all propositions for a tender waiver should be provided to the director of the Internal Audit Department in advance
Referral of the Sea Cows Bay harbour development project and the Virgin Islands Neighbourhood Partnership Project to authorities for “consideration of whether a criminal investigation” on the public funds expended should be made
Allowing the current criminal investigations of the Elmore Stoutt High School perimetre wall project and the BVI Airways project to run their course
Full audit of the government contracts with Claude Skelton-Cline since 2019, with consideration of
- the work done by Mr. Skelton Cline
- any mismatch between his contractual obligations and the work done
- the circumstances in which he was paid out of the public purse to the extent that he was not performing his contractual obligations
- whether the contracts provided value for money
Full audit of the contracts with EZ Shipping for the radar barges since 2019, with consideration of
- the circumstances in which EZ Shipping was retained
- compliance with the procurement regime for major contracts
- why the services were provided prior to the approval of the Joint Task Force, the National Security Council, the Cabinet and/or the governor,
- the policy objectives and efficacy of the contracts
- value for money
STATUTORY BOARDS
Review of all statutory boards by a senior public officer within six months, to establish
- whether and how far behind they are in submitting financial reports and audits
- whether they are applying good governance policies
- whether they are following a due diligence policy
Review of the provisions for statutory boards: in particular, powers held in respect of such boards by the executive government, to be performed by a senior VI attorney, or retired judge
Overriding statute that sets out the framework for all statutory boards, providing for the appointment and removal of members
Consideration to establishing a Statutory Boards Commission, responsible for selection and revocation of statutory board membership, and monitoring their internal policies, with a majority of members of the commission appointed from VI “civic society”
Protocol for the appointment and removal of statutory board members, including provisions such as advertisement of posts, application forms, appropriate checks, interviews before a panel, circumstances in which the executive cannot proceed with the panel’s recommendation, the right to an independent appeal, and rolling periods of appointment
Consideration by the governor of revoking any appointments to statutory boards made since 2019
DISPOSALS OF CROWN LAND
Review of processes for the disposal of Crown land, led by a senior public officer, including consideration of
- establishment of an independent body to consider Crown land disposal applications
- involvement of members of the local community in an advisory capacity
- criteria for the disposal of Crown land for domestic and commercial use
- whether there should be any executive discretionary powers for Crown land disposals
Full audit of all disposals of Crown land over the last three years, considering
- the extent to which a body such as the State Land Committee was involved in the selection process
- any criteria applied
- whether the executive exercised any discretion in the process
Referral of the matter of the disposal of Parcel 310 of Block 2938B, Road Town Registration Section to authorities for “consideration of whether a criminal investigation” in relation to the recovery of the public money expended should be made
RESIDENCE AND BELONGER STATUS
Review of processes for granting residency and belongership status, led by a senior public officer, clarifying the length of residence required for belongership applications based on tenure
Full audit of the applications for and grants of residency and belongership status under the “Fast Track” scheme, considering
- the extent to which the statutory criteria were applied
- whether the executive exercised discretion in the selection process
- whether there were any inherent weaknesses in the Fast Track scheme
PUBLIC SERVICE
Public Service Transformation Programme led by the deputy governor
Finalisation of the Public Service Management Code, with a view to it being incorporated into a Public Service Management Act
Coordination by the Department of Human Resources of the expenditure for training of public officers
LAW ENFORCEMENT AND JUSTICE
Review of the law enforcement and justice systems, to include the front-line agencies, the Prison Service and the Office of the Director of Public Prosecutions, and possibly the Attorney General’s Chambers and/or the courts, with consideration of
- structure
- resources and funding
- conduct and standards
- terms and conditions
Full vetting of all serving Customs and Immigration department officers by an independent agency, determining if they have failed to disclose relevant information that would have deemed them unsuitable or the existence of a second job or a conflict of interest that could compromise their role
Investigation of possible corruption within the Customs Department by officers appointed by the police commissioner
Consideration of ensuring that the Royal Virgin Islands Police Force and other enforcement agencies have the powers to prevent, monitor and detect crime, and prepare matters for prosecution, including access to modern scientific techniques and intelligence material, determined by a panel comprising representatives of, for example, the attorney general, DPP, police commissioner, customs commissioner, and Immigration Department, with external expertise when needed
Revision of the Criminal Procedure Rules to give criminal courts modern case management powers
Consideration to revising the Jury Act by increasing the size of the pool of jurors, for example by enabling long-term residents to sit on juries and granting the court wider powers to hear judge-only criminal trials
Consideration to building upon current initiatives for revising, consolidating and publishing in accessible form the laws of the VI
GOVERNANCE AND SERIOUS DISHONESTY IN PUBLIC OFFICE
Reporting by the Complaints Commissioner annually to the governor, deputy governor and the HOA/Standing Finance Committee; setting out the response to her criticisms and recommendations; and giving the HOA/committee an opportunity to scrutinise the report and raise questions about it as part of the budget process