Ombudsman

Complaints Commissioner:  We are now looking at how a public service demonstrates the principle of accountability.  There are a number of techniques used by different countries to ensure accountability in the public service.  The first one we shall look at is the Complaints Commissioner.  This is, of course, the famous Ombudsman, one of the few great human rights inventions of the Europeans.  Without an Ombudsman or Complaints Commissioner, John Public must rely for enforcing his rights against an unfair and biased public officer on going to Court.  And, we all know how expensive and unsatisfactory that can be. 

The Ombudsman, on the other hand, is free, is completely independent of any politician or public servant, and reports only to the Legislature.  Many of the larger islands have a Complaints Commissioner, but few if any of the smaller ones do.  If the objection to such an appointment is expense, then there is no reason why the function of the Ombudsman should not be combined with other functions, such as a Human Rights Commissioner or a Police Complaints Authority. 

Related Posts:

Human Rights

Complaints

Patriotism  

Banking

Why we should all move our money to indigenous banks.  I was interested to read recently about the grassroots movement that is spreading across the USA to abandon the major banks and for all customers to move their accounts to community banks.  In our islands that would translate to “indigenous” banks. 

Here is the video that started what I expect will, in the coming months, be a groundswell of change in banking practices around the world:

It is not just the conviction that many of us have that our small indigenous banks are safer than the major international banks.  There are small people with immediate, personal reasons for moving.  Here, as an example, is Stephanie Frost, one irate Bank of America customer, explaining what she is doing:

To cite Camden R Fine, our community or indigenous banks take time to get to know their customers. They make loans to the small businesses in the community that the larger banks won’t touch.  Their continued success depends on building and maintaining good relationships with their customers.  Indigenous bankers are accountable.  They have to be.  Often they are dealing with their neighbours, the parents of their children’s friends, the people they see every day during their personal and professional lives.  They rely on common-sense practices, honesty, integrity, accountability and transparency. 

The same cannot be said of the management of the Banks of America, Citigroups, Wells Fargos, et al.

Flies

Fly infestation at the Corito garbage dump site. You are not safe walking even upwind from the garbage dump at Corito. It is unimaginably worse if you live downwind of it. The cause is an infestation of flies. There are flies everywhere. The swarming has been going on for two weeks now.

I spoke to Cuthwin Webster to find out if he knew about the problem. Knew about the problem? The man is so steamed up I could hardly make sense of what he was saying. He is mad as hell.

The problem results from a failure to deal with the garbage correctly. The rules for taking garbage to the dump are simple. For the purpose of this problem, they cannot be simpler. Domestic waste, stuff from the kitchen, goes to the left when you enter the dump. This area is covered daily with a layer of earth, to prevent smell and reduce flies. Construction waste goes to the right, where it is left exposed. It is clean and does not assault the nostrils if left uncovered.

The trucks which have the contracts to collect the construction waste know the rules. At the Corito main gate they announce to the gate keeper that they are bringing construction waste. They are directed to the right. It is only when they dumpster upends the cargo that the mass of rotting kitchen waste hidden in the bottom of the dumpster is revealed. Now, it lies on top of the construction waste, and is covered with maggots and flies. Little Harbour and George Hill lie just downwind.

The culprit is one of our biggest hotel developments. They do not make sure their staff put the kitchen waste in bags in the correct garbage bins as they are supposed to do. Their housekeeping staff stand accused of mixing the kitchen waste in with the construction waste. That is what is causing the problem.

Why, you ask, does not the dump just cover up the construction waste? The answer is that it is an expensive process digging up the marl, trucking it to the top of the waste, and spreading it around with backhoes. Cuthwin says he is paid by government to cover up the area for domestic waste. If he is to cover up the construction waste area as well as the domestic waste area, it will cost twice as much. Government is not prepared to pay for that.

I agree with Cuthwin. It would be a big help if the Environmental Health Unit could find a way to make the construction people obey the rules. It is a matter of the public health. We could have an epidemic of some sort on our hands if this continues.

Not to mention the inconvenience of spitting out flies every time you take a breath!

I know. I went walking from Corito to Tanglewood this morning.

FOI

It was so good to see Nat Hodge doing an editorial recently on the need for a Freedom of Information Act in Anguilla that I am spurred to add my two cents worth. The model that we have that we can follow is the Cayman Islands FOI. Their law passed in 2007 only came into effect in January of this year 2009. There is not much reporting on how it is working. What little has come out is very positive and encouraging.

It is important to realise that it is not sufficient just to pass a law. We also have to take steps to make sure that it works.

Introducing FOI in a traditional colonial, secretive administration involves a change of culture. That is arguably the tallest order. The mere passing of a law does nothing to accomplish this change. FOI does not function at all in some countries. The emphasis may have been mistakenly put on the legislative process and not enough on the practical meaning and its implementation.

FOI is only as good as government’s underlying record keeping practices. If the information is not recorded or preserved in the first place, then the right is meaningless. How good is record keeping in the Anguilla public service? Is it legally framed? Who has the power to authorize destruction of records? What are the checks and balances in this regard? How do you avoid public meddling? Who is actually accountable for records and information in the Anguilla Public Service?

The first step is a Public Records law. At least, there needs to be a serious update of the Standing Orders combined with an ongoing records management programme. There need to be standards, education, help and monitoring in relation to the management of public records. This is an absolute prerequisite for a successful FOI programme. This is usually a function of the national archives office, something that we have not even begun to think about in Anguilla.

How do you balance the right to access with the legitimate need to keep some things secret for the time being? Should the public interest override any or all exceptions? Should there be a right of appeal against decisions? What form should this take, and what powers should an appeal body have?

The Cayman law provided for the appointment of an “information manager” in each department and public authority. Two people were trained in each department to cover vacation and sick leave. These are the access points for the public.

Someone has to do a lot of preparatory work to make sure the system works. It is not only a matter of training the frontline people. There will be a need to hold special sessions for ministers, permanent secretaries, and other general staff. Some departments or public authorities may decide they need to hire new staff if they expect complicated requests for access. Some may actually hire a lawyer to be in charge of their record management/freedom of information units. Most will simply assign the dual duties to existing staff, revising their job descriptions and pay.

What do we do about personal information? What is ‘personal information’ in Anguilla? What is the state of privacy in Anguilla? How do you balance the general right to access with the legitimate expectation of privacy amongst government’s clients, staff and citizens alike?

The public and civil society should have a chance to provide input on each of these issues before a law is even drafted.

Writing the law is the easy part. Getting it to work is another matter.

But, even discussing it is a really important step if we are really serious about accountability and transparency in Anguilla in the future.

Related previous posts:

24 May 2009 - Airport News

21 May 2009 - Airport Costs

19 July 2008 - FOI Act

Chinese

A hundred Chinee. I was in town on Monday to hold the Anguilla Legal Aid Clinic. I saw the parade of Chinese workers outside the Government Secretariat, and wondered what it was all about. On Tuesday I heard the banter between the members of the House of Assembly during the Budget Debate. That provided a little light on the subject. And, now I read about it in the Daily Herald. It turns out that about one hundred Chinese construction workers employed by Ashtrom on the temporarily shut-down Flag Luxury Properties project went to see the Chief Minister. They wanted to “express their concerns and to share their experiences” over the past four or five months. As I understand the language, that is journalese for being extremely upset at not having been paid for the work they have done over the past four or five months. For having their water and electricity cut off for non-payment of utility bills. And, for not being repatriated to their home in China as agreed.

According to the newspaper story, the Chinese workers put forward to the Chief Minister two main requests: One, they wished to have their wages owed to them by Ashtrom paid. Two, they wished to be repatriated to China as soon as possible. Their preference was to be home in time for the New Year. The Chief Minister assured them that he was in constant contact with Ashtrom and Flag. He was working to resolve several issues, including the same requests they were making.

The question that springs to mind is Which New Year? If it is the new year according to the Gregorian Calendar, the Chief Minister only has about ten more days to get the Chinese workers home. If the Chinese were talking about the Chinese New Year he has a bit more time. This year 2008 is the Year of the Rat. Next year 2009 is the Year of the Ox. The Chinese New Year begins on 26 January 2009. The festivities go on for fifteen days. Somehow, I do not believe the Chinese workers are very interested in our New Year. The Chinese New Year sounds much more fun. That means the Chief Minister will have a little more time to get Ashtrom to live up to their legal duty of paying and repatriating their abandoned workers. During the Budget Debate he said he expected some seventy of them to be home for Christmas. I don’t believe the Chinese know anything about Christmas. But, I am sure the news of going home would be welcomed by them. He did not mention their unpaid wages. I am assuming they are going home with money in their pocket. They will not be simply picked up by the police and placed on an aeroplane and deported.

Perhaps the most noteworthy event is buried in the second paragraph of the newspaper story. It says that police officers of the Royal Anguilla Police Force went quickly to the scene to maintain law and order. They informed those present that they did not “have authorization to hold a gathering at the location in the manner in which they had assembled”. That was disturbing to me. The action of the police, while legal, was grossly uncaring and offensive. These people were victims, not rioters.

Perhaps the police did it pour encourager les autres. Maybe they had Percy and Quincy in mind?

One is still left to wonder. If the police were to be made to go unpaid for five months, would they take care to have authorization to hold a gathering at the location in the manner in which they had assembled?

NBA

National Bank of Anguilla. The only bank I bank with is NBA. NBA is my bank. So, whatever I write that might appear critical is to be taken as but a child reproaching a parent.

I have been following a story recently. The story is officially about banking secrecy. More importantly, it is about the competence and reliability of West Indian banks. The part of the story that interests me is about NBA. The author claims that he had emailed various West Indian banks with the following question:

“Dear bank rep,

I have some questions about banking secrecy at your bank. I hope you’ll be glad to answer them. Here they are:

Under what conditions will the bank share information on its clients?

Does there have to be a government investigation underway? Does that matter?

If so, who can conduct this investigation?

Does it take a court order? Is an official request good enough?

Thanks and I hope you’ll answer my questions as best you can.”

He says that only two of the several banks in the West Indies that he wrote, particularly Griffon Bank of Dominica and Caye Bank of Belize, replied. National Bank of Anguilla, among others, did not respond. He writes:

“The rest of the Banks I contacted have not answered because, as everyone knows, it’s very hard to answer an e-mail if you’re only given one week. Or maybe they’re just lazy or don’t know how to type and click buttons, or they’re just not very service oriented or non-client friendly …or the benefit of the doubt: they’re so used to keeping their mouths shut that they did not answer my e-mails.”

I do not mind that he is talking about Grenadian or Antiguan banks. I do mind that he is talking about my bank.

The answers to his question were not difficult. One only had to be honest. One correct reply would have been:

"Who would be so naïve as to believe today that there exists any such thing as banking secrecy? It was approximately ten years ago that Switzerland surrendered banking secrecy to the US State Department. That was the end of banking secrecy internationally. Only banks set up with the specific intention of stealing our money still promise secrecy. The higher the level of secrecy offered by an offshore bank, the more confident the offshore “bank” will be that you will not complain when they disappear with your money."

Why would it have been so difficult to explain such a basic fact to a correspondent? Better by far to be accused of excessive compliance with intrusive regulation than of incompetence or laziness, I would have thought.

Dolphin Park

Dolphin Discovery Relocation at Sandy Point to be Investigated. This case is not over. A final decision still has to be given. We have to be careful what we write. It is important not to pollute justice by writing things that can be read as intended to wrongfully influence the court.

However, we cannot let the making of the recent order in the High Court pass without any notice at all.

The court had been asked to permit the neighbours of the Dolphin Discovery to bring the government to court. The alllegation is that government did not follow its own procedures and laws for permitting an activity such as this to begin at the Sandy Spit at Blowing Point Harbour. I have written about this previously, most recently here, and here, and here.

The court listened to the argument by the neighbours and by the government. The court agreed that the matter needed to be fully ventilated. While the matter is being made ready for argument, the court ordered the dolphin people to stop their construction.

The story of the court's decision has been published in the newspapers. You may like to read the actual words of the judge. This is what she said:

“THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

TERRITORY OF ANGUILLA

(CIVIL)

AD 2008

CLAIM NO. AXAHCV/2008/0015

BETWEEN:

PAUL WEBSTER
MAJORIE MACCLEAN
MAJORIE CONNOR
PHILIPPE CHAMPAULT
CHRISTINE CHAMPAULT
ANNE KELLER
LLOYD SINCLAIR
NEIL FREEMAN
WENDY FREEMAN
Applicants/Intended Claimants

And

THE ATTORNEY GENERAL
(FOR THE GOVERNMENT OF ANGUILLA)
Respondent/Intended Defendant

TRANSCRIPT OF DECISION

6th May, 2008 at 9:10 a.m.

BY: HON JUSTICE JANICE GEORGE-CREQUE, Judge.

APPEARANCES: Ms. Palmavon Webster, Ms. Tameka Davis and Mr. Gerhard Wallbank for the Applicants;

Mr. Ivor Greene for the Respondent;

Mrs. Josephine Gumbs-Connor: (watching brief on behalf of Dolphin Fantaseas Anguilla).

PROCEEDINGS

THE COURT: Now yesterday, I granted leave to the Applicants to make a claim for judicial review of the various decisions of the governmental bodies or persons giving rise to the construction of a dolphin pier and/or a dolphinarium at Sandy Point Beach in Anguilla, and I reserved until today the question as to whether interim relief ought also to be granted pursuant to CPR 56.4(9), which in essence states that the Court, on hearing an application for leave for judicial review, may, if it considers that it is just to do so, grant such interim relief. Now, counsel for the Applicants made this application in light of certain information given by counsel for the Respondent in connection with this matter.

From the evidence adduced the following matters appear to be clear and uncontroverted.

(1) On the 12th of June, 2007, Dolphin Fantaseas Anguilla, applied for permission to construct a dolphin pier in the water at Sandy Point, Blowing Point, Anguilla and in respect of Block 28309, Parcel 169. (See exhibit "VP3" to the first affidavit of Vincent Proctor)

(2) This parcel is properly described as Registration West, Block 28309 B, Parcel 169 and is owned by the Crown having been acquired by compulsory acquisition for public purposes, namely: The development of a public park and a sports complex. (See Statutory Rules and Orders 1997 No.8).

(3) Planning approval was given by the Land Development Control Committee, LDCC, on 12th December, 2007. (This is exhibited at "VP3" to the first affidavit of Vincent Proctor).

(4) Apart from the LDCC's planning approval, the only other written approval granted by any other governmental body or person appears to be for a building to be located at Sandy Point, Blowing Point, in respect of an application dated either 14th or 19th February, 2008, bearing application No. 0017/07 in respect of parcel 169, shown as having been approved on December 14th 2007 by the Anguilla Building Board.

(5) Sandy Bay Point Beach is a protected beach pursuant to the Beach Protection Orders, Revised Regulations of Anguilla, B25-1 made under section 2 of the Beach Protection Act (Revised Statutes of Anguilla Chapter B25)

(6) The Port of Blowing Point as per the Prescribed Ports Regulations, Revised Regulations of Anguilla P55-4, made in accordance with the provisions of the Ports Harbours and Piers Act (the Revised Statutes of Anguilla Chapter P55), encompasses an area of sea and land extending on both sides to the extremities of the Blowing Point Beach and seawards to the edge of the farthest reef or to a distance of 1,000 yards from the mean shore line where no reef exists and includes the harbour and piers situated therein.

(7) Construction of a Dolphinarium or Dolphin pier commenced in the water in an area falling within the prescribed limits of the port of Blowing Point at Sandy Point Beach. Photographs and plans are exhibited depicting the site and the physical location of the structure being constructed.

(8) The Beach Control Act (Revised Statutes of Anguilla Chapter B20) vests all rights in and over the foreshore of Anguilla and the floor of the sea in the Crown. (This is set out in section 2 of that Act.). Section 3 prohibits the use of the foreshore and the floor of the sea without a licence. The Act also provides for a licence to be granted by the Minister and that Minister is the Minister charged with the administration of Crown Lands upon application being made. The application must be published in the Gazette and members of the public must be afforded an opportunity of making representations to the Minister in respect thereof. Encroachment on or use of the foreshore by any person without a licence attracts a penal sanct ion.

(9) The Ports, Harbours and Piers Act section 36 states, in effect, that no person shall construct any pier on any part of the foreshore without the written permission of the Minister (and in this case it is the Minister responsible for Ports, Harbours and Piers). Section 37 of the said Act provides for owners of piers or constructions on the foreshore to apply for a licence, renewable annually. It further fixes the responsibility for the management of Ports with the Supervisor of Ports and also charges the Supervisor with the responsibility for the management and protection of the foreshore with power to order the removal of any obstruction or construction thereon. The Supervisor is also empowered to operate the ports as appears best calculated to serve the public interest.

Counsel for the Respondent stated that:

(1) There has been no decision to lease Parcel 169;

(2) That no licence has been issued by the Minister responsible for Crown Lands pursuant to the Beach Control Act. He refers, however, to the first affidavit of Vincent Proctor, paragraph 25, where Mr. Proctor alludes to information passed on to him by the Permanent Secretary, Ministry of Lands, to the effect that "the Ministry of Lands gave the Developer permission to commence building the pier" and that "the licence to use the beach is a new concept, the details of which is still being developed". From this it is readily inferred as accepted by counsel for the Respondent, that no licence has been granted for the use of the foreshore or of the floor of the sea as required by the Beach Control Act.

(3) There is no written permission given by the Minister of Ports pursuant to the Ports, Harbours and Piers Act. Indeed, there is no evidence of any permission in any manner given by the Minister of Ports for the construction of a pier on that part of the foreshore falling within the domain of the port of Blowing Point, or that any licence for such has been applied for or granted by the Superintendent of Ports as required under the Ports, Harbours and Piers Act. Breach of any provisions of the Ports, Harbours and Piers Act also attracts a penal sanction. (See section 44 of that Act.)

Despite the lack of such licences and permissions under the Beach Control Act and the Ports, Harbours and Piers Act, it is not challenged that construction of a Dolphinarium or a Dolphin Pier has been proceeding apace in the water forming part of the port and harbour of Blowing Point and encroaching on the foreshore and floor of the sea at Sandy Point Beach. It is because of the Dolphinarium's peculiar location which brings it within the ambit of the provisions of these Acts quite apart from any other law which may be applicable thereto. Admittedly, the construction as being carried out runs afoul of the provisions of these Acts. This then begs the question: "How could such activities which attract criminal sanctions, in the absence of the requisite licences and permissions, simply be allowed to occur and proceed unabated without the necessary intervention by the relevant servants or agents of the Crown?" Yet no steps have been taken to bring such activities which are being carried out in plain sight to a halt. Can such a dereliction or abdication of responsibility be permitted to the detriment of the public interest? I think not. It is after all in the public interest that the laws of the land be applied and obeyed. Such is essential for the good governance in a democratic society. Accordingly, in such an instance, the Court must step in with a view to safeguarding the interest of the ordinary citizen.

Based on all the circumstances as I have set out, I am satisfied that the granting of interim relief is warranted to halt the activities being undertaken in admitted violation of the provisions of the Beach Control Act and the Ports, Harbours and Piers Act.

Accordingly, it is ordered as follows:

(1) That all construction of all piers or structures or any encroachment on the foreshore or floor of the sea in whatever manner at the Sandy Point Beach or in the waters forming the Port at Blowing Point by any persons whether by themselves, their servants or agents, in violation of the requisite licensing provisions of the Beach Control Act and the Ports, Harbours and Piers Act cease forthwith until further order.

(2) The Respondent shall perform all acts and do all things as may be necessary to ensure compliance with the terms of this order.

(3) It is further ordered and directed that this order be served upon Dolphin Fantaseas Anguilla, being a person appearing to the Court to be directly affected by the making of this order.”

What is the significance of this decision? It is that when an Anguillian resident has a good reason to believe that government has not been following its own laws and procedures, that resident can ask the court to review the decision of government. Government is under the Constitution and the law. The court has power under our Constitution and our law, if it finds that government came to a decision that adversely affects some or all of us by following an incorrect procedure, to cancel that government decision. It can call up the government's decision into the court and set it aside, declaring it to have been an illegal decision. Damages can follow. That is why government ministers always get the opinion of the Attorney-General before making any important decision. They need to be sure their decision is legal.

That is where we are. The court has given permission for the case to go ahead. The court is now going to hear the argument in June. Until then, the construction at Blowing Point must stop.

All Anguillians wait with baited breath to see if the Mexicans will obey the order of the court. The law is that every order of the court must be obeyed, regardless of how you object to it.

Since the order was made against Government, what will happen if the Mexicans proceed with their construction in defiance of the order of the court? We shall keep our ears to the ground.

Police Reform

Police Complaints Authority and Police Service Commission. Readers of this blog will remember the fiasco of January 2007. The government decided to amend our Constitution without telling us. They thought it was so unimportant an issue, that it was not necessary to consult with the people. The idea was to change the name of the police force to the police service. They also wanted to set up a Police Service Commission to advise the Governor in exercising his powers of appointment over the police force.

This proposed PSC was to be completely toothless. It could advise the Governor about appointments and discipline, but he could completely ignore the advice and do whatever he wanted. More likely, what the Commissioner wanted. If, as is not unknown in other countries, not Anguilla I hasten to say, a Governor depended on a good relationship with a Commissioner to keep quiet about a girlfriend, or whatever, he would do what the Commissioner told him to do. It is not unusual, in my experience, for one-man rule to be exercised on the basis of no greater principle than this.

Government decided they needed a constitutional amendment to do these two things. To change the name, and to appoint a toothless PSC. Nonsense, of course! Since nothing of constitutional importance was being done, they could have used an ordinary statute. It was completely unacceptable that they should presume to authorise London to alter the Constitution without telling us a word about it. Modern constitutional thinking and practice require that the government first obtain our consent by consultation and debate in the House of Assembly. Instead, they quietly went ahead and authorised the Secretary of State to put a Statutory Instrument before Her Majesty in Council for approval and execution. You can read all about it in the post of 17 January 2007.

In the end, the attempt to amend the Constitution was withdrawn. The Secretary of State declined to put the proposed Statutory Instrument before the Privy Council. The matter went dead for the time being.

What agitated us in Anguilla was that this was all being done in direct conflict with the recommendation of the Constitutional and Electoral Reform Commission. The constitutional review process had taken place between January and August 2006. Anguillians had made a number of representations to the Commission. The Commission accepted those in relation to the police force. The Commission did not recommend a non-binding, advisory, Police Service Commission. Their recommendations are found at paragraphs 62 and 63 of its 2006 Report. They recommended that the Constitution should be amended to introduce:

1. A Police Complaints Authority; and

2. A Police Service Commission.

The Police Complaints Authority, or Commission, or whatever we choose to call it, is to be an independent body with power to make disciplinary recommendations that are binding on the Governor. No more having to go to the Commissioner and hope that he likes you more than he likes his officer whose behaviour you are complaining about. No more depending on the decision of one person, the Governor, no matter how much he tries to show personal integrity. We need a proper, independent, Commission. Transparency, democracy, and advanced self-government converge to demand that this reform be made. Such a development will require a constitutional amendment. The present Constitution places total control over discipline in the hands of the Governor and the Commissioner. And, we know from bitter experience how much sweeping under the carpet that results in!

The Police Service Commission was recommended to be equally independent and its recommendations binding. The Commissioner and the Governor must be made to act on their recommendations when it comes to appointments and promotions. No more leaving it to one man, no matter how well-intentioned, to decide whether to make a decision based on personal liking or on personal integrity. Such a change will require a constitutional amendment. It means taking away the present one-man power vested by the present Constitution in the Governor and transferring it to a local body.

Neither of these amendments is difficult. Such Commissions exist in other British Overseas Territories. There are no complaints about how they work that I know of. It does not take a drafting expert to adopt the relevant provision, making such minor changes as are necessary.

The Chief Minister's committee is presently vetting the recommendations made by the Constitutional and Electoral Reform Commission. We wait to see if they will honour the wishes of the people of Anguilla in this matter.

Amplified Sound

Noise in Sandy Ground. A few weeks ago there was confusion in Sandy Ground. The police were closing down the entertainment spots. That was the rumour. There were some meddlesome visitors who had complained to the police about the music. So it was being said. The police had, in lightning fast style, moved to visit all the entertainment spots and to tell them they were not permitted to play amplified sound without a permit from the Commissioner of Police. That was what I heard. I carried out an investigation. This is what I learned.

Sandy Ground is a village with several hundred residents trying to get a good night’s sleep. There are also several business places that provide entertainment for the late-night crowd. Some of them play amplified music until three or four in the morning. Not all of the entertainment spots are enclosed. The noise level in Sandy Ground and echoing down to South Hill Village was intolerable. The hours of duration were unreasonable.

About forty residents got together and wrote a petition to the Commissioner of Police. The vast majority of petitioners were ordinary Sandy Ground residents. This is what the petition read, in its entirety:

“We, the undersigned, respectfully request that the authorities in Anguilla enact and enforce laws with regard to reasonable and specific levels of noise and reasonable and specific hours of operation in Sandy Ground to enable residents, businesses, and visitors to exist/function/live in harmony.”

From any reading, the petition asked for laws to be enacted. It asked that the laws be enforced. It asked that these laws set reasonable and specific levels of noise and reasonable and specific hours of operation for Sandy Ground. It asked that this be done so that residents, businesses, and visitors could exist and function and live in harmony. Not unreasonable requests, I hope you will agree!

The police Commissioner received the petition. He knew there was already a law on the books. It is called the Sound Amplification (Restriction) Act.

The entire Act is one and a half pages long. It consists of three sections. One imposes a fine of $2,000 for breaking the terms of a permit. The other two sections state,

Restriction on amplification of sound

1. Any person who, except under the authority and in accordance with the terms and conditions of a permit issued under section 2—

(a) operates, or causes or allows to be operated, any amplifier, loud speaker or any other device so as to amplify the sound made by the playing of any musical instrument or human voice or so as to amplify any other sound; or

(b) plays or operates, or causes or allows the playing or operation of, any record player, radio, television set, tape cassette player or other device designed or adapted for the transmission of sound;

from any premises in a manner which, by reason of the causing of noise, unreasonably disturbs or annoys any other person dwelling or working in neighbouring premises commits an offence and is liable on summary conviction to a fine of $2,000.

Commissioner’s power to issue permits

2. (1) The Commissioner of Police or any other police officer not below the rank of Deputy Commissioner of Police authorised by the Commissioner of Police may, on application by any person, issue a permit, subject to such terms and conditions as he may think fit.

(2) Every application for a permit shall be in writing addressed to the Commissioner of Police within a reasonable period of time before the commencement of the amplification and transmission of sound and shall specify—

(a) the date of commencement of the amplification and transmission of sound;

(b) the place on which such amplification and transmission are to be carried out;

(c) the name and address of the person who is in charge of such place for the time being; and

(d) the duration of and the necessity for the permit.

(3) Every application for a permit concerning such a place shall be accompanied by a signed statement by the person in charge of the place for the time being giving his consent for the use of the place for such amplification and transmission.

At a first glance, the law appears to be of general application. It seems to prohibit any amplification of sound from any premises which “unreasonably disturbs any other person” without a permit. It does not appear to be a general licensing law. What does this law really say? It does not require every person to obtain a permit before amplified music is played. A permit is only required for you to play amplified sound that unreasonably disturbs or annoys another person. If you are not planning to be unreasonable, no permit is required. So, in my opinion, a permit is not required for playing amplified music in an enclosed space, when the music cannot be easily heard outside. It is only if the amplified noise that you are making is unreasonable that you need to get a permit.

The Act is a mere skeleton of a law. It contains no detailed regulations or specifications of any kind. Nor does it provide for regulations to be made.

It is child’s play to test the level of amplified sound. Decibel counters can be picked up in any electronic shop. If the House of Assembly had intended to restrict business places that provide entertainment by amplified music to a reasonable level of noise and to reasonable hours, it would have provided for detailed regulations to be made.

Section 2(2)(a) and (d) suggest something else. Note that they do not cover existing restaurants and bars that play music every day. You have to submit the date when you will commence the sound, the duration of the amplified sound, and the necessity for the permit. This suggests that the House of Assembly intended it as a police permit for occasions such as political meetings and other sporadic and one-off events. There is nothing in the Act that suggests it is meant to be a general licensing law regulating the playing of amplified music.

So, what did the Commissioner do when he received the petition? He did not call a meeting as requested. He did not ask for regulations to be made, as requested. He did not send down an officer to warn the business premises that there were complaints and that they were being unreasonable. He got tough. He decided to implement the law. On the Friday night he sent a police officer down to Sandy Ground just as the bands were starting up. The officer’s instructions were clear. He told each manager that if amplified music was played that night, or any other night, without a permit, the manager would be prosecuted. The bands were sent home. No music was heard in Sandy Ground for several days.

Over the next several days, the Commissioner held unsatisfactory and ill-tempered meetings with irate residents and even more irate night spot owners.

The politicians washed their hands of it and said it was a police matter.

Eventually, the businesses all applied for and obtained permits setting out the hours when amplified music could be played. An uneasy calm returned to Sandy Ground.

In my opinion, none of this is satisfactory.

What the residents asked for has still not been done. No rules have been laid down establishing “reasonable and specific levels of noise”. No rules have been laid down establishing “reasonable and specific hours of operation in Sandy Ground”. It all lies in the hands of the Commissioner. He may well be a fair man, but who says he is an expert in what is reasonable when it comes to entertainment spots in Sandy Ground? Neither the residents nor the business places are happy with this situation.

Without regulations, the police will never know whether a complaint of unreasonable noise is justified. They have no authority to test for decibels. Certainly, they have no authority under this law to impose a permit for the playing of a reasonable level of amplified noise.

The conclusion must be that the law that is being enforced is inadequate to achieve what either the legislators or the administrators intend. The law is being implemented in a way that is outside the bounds. The government are inviting a suit for maladministration.

The moral of the story? If there is one it is this. You cannot run a country on inadequate, badly drafted laws. A rough skeleton of a law, which is clearly meant to work through detailed regulations should have the regulations made. A skeleton regulatory law, with no provision for detailed regulations to be made, cannot be made to work fairly on its own.

When you leave the discretion on how to make such a law work up to a single individual, you are inviting accusations of bad government, and worse.