In my Terms of Reference, I was asked by the Governor to inquire into whether there is information that serious dishonesty in relation to public officials may have taken place in the BVI in recent years, and to make recommendations with a view to improving the standards of governance and operation of the agencies of law enforcement and justice. These are not, of course, discrete tasks – effective law enforcement and justice systems reinforce good governance and reduce the risk of dishonesty in government. Without good governance, there is at least an enhanced risk of such dishonesty occurring.

Over the last 12 months, I have gathered and analysed evidence relevant to those Terms of Reference. That has not been without its challenges. Some members of the public were reluctant to speak to me for fear of reprisal. The documents obtained from the BVI Government have frequently been disclosed in shambolic order, and often incomplete. In many areas of government at which I have looked, witnesses have struggled to explain what has gone on, which often proved different from both what the documents suggest had happened and what the law requires.

However, the evidence looked at as a whole paints a clear picture. With limited exceptions, in terms of governance (i.e. how government makes and implements decisions), the people of the BVI have been badly served in recent years. Very badly indeed.

Almost everywhere, the principles of good governance, such as openness, transparency and even the rule of law, are ignored. In many important areas of government – including the procurement of contracts, grants of assistance, appointments to statutory boards, the disposal of Crown Land and the grant of residence and belonger status – discretionary decisions are made by elected officials (usually, Ministers) on the basis of no criteria, or patently inadequate and/or unpublished criteria, or criteria which are as often as not simply ignored. They can and do make decisions – which expend huge sums of public money and affect the lives of all those who live in the BVI – as they wish, without applying any objective criteria, without giving any reasons and without fearing any comeback.

The relevant elected officials are well aware of this chronic lack of governance. The Auditor General and Director of the Internal Audit Department, whose job it is to audit government accounts and government projects, have consistently reported on these failures, indicated the dishonesty to which they might give rise and which they might obscure, and identified what needs to be done to prevent their reoccurrence. These auditors have been brave, forthright and clear in both their criticisms and their recommendations. But they have been consistently ignored.

Other constitutional pillars of governance, such as the Registrar of Interests, have been treated will similar disdain. Not only has there been a wholesale failure on the part of individual Members of the House of Assembly to make declarations of interests, there has also been a quite deliberate refusal over the last two decades to set up any functional mechanism for the registration of such interests or enforcement of the obligation to make declarations as required by the Constitution and supporting BVI legislation.

Whilst the evidence suggests that they have worsened over time, these gross deficiencies in governance have afflicted almost all recent government Ministries, over different administrations. The BVI electorate, hoping for better from the next elected administration, have been consistently let down.

This raises the question: Why? Why has governance been allowed to languish in such a parlous state?

The Premier and current elected Ministers suggested that the main reason for these deficiencies was that the Public Service is not up to the task: it is under-qualified, undertrained, under-resourced and outdated as the result of neglect by successive Governors. They complain that the Public Service does not have the required policy making and policy implementation capacity which, they say, frustrates the ability of the elected Government to press forward with their policy agenda.

However, the evidence simply does not support such assertions. No doubt the Public Service – like many around the world – would benefit from more resources and a programme of reform better to deal with today’s world; but, that notwithstanding, it is clear that the BVI Public Service has some eminently able, well-qualified and excellent personnel particularly at high level. I heard evidence from many of them. Whilst the Governor is responsible for the terms and conditions of public officers, insofar as the Public Service requires further resources (including more funding for pay), then the elected Government holds the purse strings. Insofar as the Public Service needs transformation, then the elected Government (in the form of the Cabinet) is responsible for any policy decision, as well as funding, required for such reform. Further policy developing capacity has always been in the elected Government’s own hands. An example of how the elected Government can take steps to address any perceived deficiency in this regard is the recent decision of Cabinet to make provision for Ministerial Political Advisers. That was a decision that the elected Government could have taken at any time. So far as policy implementation is concerned, the elected Government has always been able to prioritise the Public Service for resources, but it has generally declined to do so in the face of encouragement by successive Governors to take steps to enable the Public Service to perform its functions better.

On the evidence, I cannot support the proposition that the gross failures of governance I have identified are due in any large part to failings in the Public Service or to any failings on the part of Governors to encourage and support change within the Service.

In the evidence received, I have been confronted by many courses of conduct by elected officials which have not been explained to anything like a satisfactory degree. How has it come to pass that, notwithstanding concerns for the public purse being raised explicitly many years ago, Members of the House of Assembly still enjoy a substantial allocation of public money to dispense in a manner which is for practical purposes unconstrained and unmonitored? Why have contracts on major projects been distributed in a manner which, to the knowledge of the elected public official driving them, results in added cost with no identifiable public benefit? Why has the need to maintain the autonomy of statutory boards been ignored? How is the value afforded to residency and belongership supported by the circumvention of the system which governs how they are granted? More generally, why in so many areas of government do elected public officials prefer a system in which decisions are made using powers involving the exercise of unrestrained and unmonitored discretion, rather than a system that is open, transparent and guided by clearly expressed and published criteria? No sensible explanation has been put forward for these and other similar issues raised during the course of this inquiry.

The parlous failings in governance identified have not only been allowed by successive informed BVI Governments, but there is evidence that they have been positively endorsed and even encouraged. I have concluded that the elected BVI Government, in successive administrations (including the current administration), has deliberately sought to avoid good governance by not putting processes in place and, where such processes are in place, by bypassing or ignoring them as and when they wish – which is regrettably often.

That is all extremely troubling. Such a lack of accountability means that there is a void where governance procedures, checks and balances should be – procedures, checks and balances needed to prevent decision making being infected by factors other than the public interest, including dishonesty on the part of elected officials and/or those who might benefit from the decisions they make.

For the reasons set out in the Report, it was never intended that the COI itself would be involved in following money or conducting in depth investigations into particular projects or particular public officials. Those are tasks for the appropriate BVI authorities. But dishonesty in public office is not restricted to cash-in-hand bribery. An abuse of public office is a form of dishonesty that, in any particular circumstances, is highly likely to be serious. It is an abuse of office for a public official, when exercising a statutory power or duty, knowingly to take into account a private interest or any interest other than a legitimate strand of the public interest. Where, on the evidence, I am satisfied that that is a real possibility, then such conduct falls within paragraph 1 of my Terms of Reference, i.e. there is information that serious dishonesty in relation to officials may have taken place.

The evidence is such that it would be very difficult, if not impossible, for any impartial person to conclude anything other than that there is information that such dishonesty may have taken place in the BVI in recent years. On the evidence, I firmly conclude that there is not only information that serious dishonesty in relation to officials may have taken place here in recent years, but it is highly likely to have taken place. Whilst it is unnecessary for me to make any finding in relation to corruption in the form of direct personal bribery, given the overwhelming picture of the principles of good governance being ignored and worse, it would be frankly surprising if there were no such corruption. Further investigations by the appropriate authorities, which I have recommended, will identify who and when.

The elected Ministers say that they are tackling the deficiencies in governance which, to some extent, they accept. They are bringing forward a whole raft of measures that will result in improvement in decision making and implementation, and they submit that I can be confident that, within a short period of time, governance will be good, or at least better than it is now and adequate. That was on their election ticket, and (they say) they mean to see it through.

However, the evidence makes me extremely sceptical about such claims. There is a history of elected governments prevaricating over steps to make governance better and, in the meantime, ignoring the principles of good governance including existing measures adopting those principles. Whilst all steps taken towards putting in place a framework for better governance are to be welcomed, the circumstances in which the recent measures have been progressed (with the elected Government continuing to ignore the principles of good governance in practice, despite their claims to the contrary and the evidence before this Commission of Inquiry), taken with historical antagonism, the people of the BVI can have no confidence that these measures will be pursued and implemented. In my view, on the evidence, it is highly unlikely that they will.

I have concluded that the conditions which have given rise to the current unhappy position with regard to governance and its consequences, as I have found them to be, still exist; and, unless steps are taken to prevent it, they will persist indefinitely.

Given the information before me, the waves in the sea of evidence would drive anyone with an independent and impartial approach to draw those conclusions. What is far more challenging – and, in my view, far more important – is what should be done now.

After the most careful consideration, I make four primary recommendations.

First, and with a particularly heavy heart, I have concluded that, 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. 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 selfgovernment as a modern democratic state. I have concluded, with some considerable regret but ultimately very firmly, that for the current situation to continue will adversely affect those aspirations by delaying (or even entirely preventing) progress towards such self-government as a modern democratic state.

I have carefully considered lesser measures but, whilst I appreciate that the Governor and the UK Government will consider this only as a last resort – as do I – I have 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 to enable principled elected government to be restored.

It is only with the most anxious consideration that I have been driven to the conclusion that such a suspension is not only warranted but essential, if the abuses which I have identified are to be tackled and brought to an end. These are abuses against the people of the BVI. If they are allowed to continue, then, in my view, they would put at severe risk steps towards selfdetermination as a modern democracy to which they are entitled and wish to take. 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. They deserve no less.

Such a suspension would mean that the Governor would temporarily take over executive powers that are currently exercised by the elected Ministers. I hope that he would take advantage of the huge pool of talent and wisdom in the BVI by establishing an Advisory Council and primarily relying on senior public officials in the BVI to advise and assist him. That is what I would urge.

Second – and again looking to the future – I have concluded that a Constitutional Review is also essential, with the aim of ensuring that mechanisms are put in place so that abuses which I have identified cannot continue or be repeated; and, more constructively, to ensure that the needs and aspirations of the people of the BVI (including their aspiration for self-government) are met. The last such Review was held in 2006, and led to the 2007 Constitution. The COI has demonstrated that that Constitution cannot take the weight it has to bear. The Review must be focused, open, inclusive and expedited.

Such a Review has, of course been in the wind for some time. Nearly two years ago, the Premier announced that a Constitutional Review Commission was to be established, to report within six months. However, no appointments were made until 31 December 2021, the detailed terms of reference have not been published, and the time for the Commission to report has been extended to an initial period of two years, i.e. by January 2024. It is not for me to make detailed suggestions as to how the Review should be conducted but, having considered all that I have received in evidence, it is in my view essential that the members of the Review team are drawn from a wide constituency and that its terms of reference are sufficiently focused and forward-looking to ensure that any new Constitution is robust enough to mend the abuses I have identified and ensure they do not recur, and allow the interests of the people of the BVI (including their aspirations for self-government) to be met – and met within a time frame that is as short as reasonably practicable.

Third, one of the root causes of the difficulties I have identified is the fact that 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. I have recommended that there should be a review of such powers, with a view to curtailment and replacing them with decisions made in accordance with the principles of good governance.

Fourth and finally, whilst I regard the future more important than the past, I have concluded that a proper, independent and impartial audit should be undertaken in relation to several areas of government decision making and expenditure into which I have enquired. 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. In the meantime, where such steps can be considered by the relevant BVI authorities now, without the need for any further audit, I have said so.

In addition, I make recommendations in respect of particular areas of government including specific projects, schemes and programmes. These 45 recommendations are all by way of particular requirements, as I see them, within the framework of the four primary recommendations to which I have referred.

This COI was established for the welfare of the people of the BVI. I have conducted the Inquiry, and made the recommendations I have made, on the basis that their best interests are paramount. I have no doubt that they not only can but will achieve their aspirations, and thrive and prosper in the future. However, in my firm view, for them to do so, the political culture must change; and it will only change if action is taken, urgently and decisively, now.

I encourage His Excellency the Governor to implement my recommendations in full.

Recommendation A1: Temporary Partial Suspension of the Constitution

I recommend partial suspension of the Constitution, by the dissolution of the House of Assembly, the cessation of ministerial government and necessary consequential suspension of provisions of the Constitution, for an initial period of two years. During that period, I recommend direct rule by the Governor with such assistance as he considers appropriate, e.g. an Advisory Council to advise him on the formulation of policy and exercise of his functions. That Council should reflect BVI civic society. In the period of the temporary constitutional arrangement, I also recommend and urge the Governor to draw primarily upon the pool of Public Service talent in the BVI to advise and aid him. In that period, the Governor should have all necessary executive powers, including the power to make any public appointments.

I recommend that there should be a return to ministerial government and an elected House of Assembly as soon as practicable; and the Governor should regularly, and at least every six months, take advice from any Advisory Council and/or from whom otherwise he considers appropriate as to the earliest practicable date on which such government can resume. The Governor shall publish a report on that issue at least once every six months.

Recommendation A2: Constitutional Review

I recommend that there be an early and speedy review of the Constitution, with the purpose of ensuring that abuses of the type I have identified do not recur, and establishing a Constitution that will enable the people of the BVI to meet their aspirations, including those in respect of self-government within the context of modern democracy. That will require a Constitution that is sufficiently robust to ensure adherence to the principles of good governance within government, but which also enables the progressive development of the BVI’s own political institutions.

The Constitutional Review I propose must be broad. Without restricting its ambit in any way, in my view it will need to address the following issues (amongst others):

1. how the executive ministerial government can be held to account in the House of Assembly (e.g. by some different structure, number and/or configuration of seats) and/or in other ways;
2. whether the current constitutional pillars of governance are sufficient, and in any event how those independent institutions can be effective;
3. the powers that need to be reserved to the Governor, and how issues as to the exercise of devolved and reserved powers respectively, when they arise, are to be resolved;
4. a mechanism for the transfer of reserved powers to the devolved BVI Government in the future, without a further change to the Constitution being required;
5. whether there should be a regime in relation to election expenses in the form of (e.g.) a requirement on election candidates to submit a breakdown of expenses including donations above a specific sum and/or a cap on such expenses;
6. whether statutory boards should be embedded in the Constitution and, if so, whether there should be a Statutory Boards Commission; and
7. whether the Speaker should continue to be a political appointment, or whether he or she, even if elected, should be independent of the political parties.

The Constitutional Review I propose should begin its work promptly, and conclude its work within a year or, if the Governor is persuaded to extend that time, in 18 months. As a return to elected Government will be difficult without constitutional reform, I regard the time for this Review to be concluded to be of the essence.

The Constitutional Review I propose should be established by the Governor. I am aware that a Constitutional Review Commission has recently been set up by the elected government. Its membership has recently been announced but, so far as I am aware, its terms of reference have not yet been determined. It has an initial period of two years to report. Whilst the extant Commission may be a basis for proceeding with the Constitutional Review I propose, whether its membership, terms of reference and timetable remain appropriate are matters that now need reconsideration.

Recommendation A3: Curtailment of Open-Ended Discretion

I recommend that there be a review of discretionary powers held by elected public officials (including Cabinet), with a view to removing the powers where they are unnecessary; or, where they are considered necessary, ensuring that they are exercised in accordance with clearly expressed and published guidelines. This review could be conducted by a senior BVI lawyer, or retired BVI/Eastern Caribbean judge.

Recommendation A4: Audits and Investigations

I recommend that the Auditor General, together with other independent persons or bodies instructed by her to assist, as soon as possible, initiate a review of all areas of government (including, but not restricted to those identified in this Report) and prepare a timetable for the audit of appropriate areas and report to the Governor accordingly. The Governor should ensure that sufficient resources are available to her to undertake the audits as they arise under that timetable. The review will require the prioritisation, and possibly even the selection, of matters for audit. The Auditor General will be in the best position to make decisions as to such priorities and selections; but she may, for example, wish to prioritise areas which, in her view, may be more likely to give rise, in due course, to further steps (e.g. in relation to criminal investigation and/or steps to recover public money). The Auditor General should report to the Governor with the results of that review as soon as possible, and in any event within, say, two months.

I recommend that the Auditor General (assisted by other independent individuals as the Governor thinks fit) thereafter proceeds to perform the audits in accordance with that timetable, as agreed with the Governor. The Governor should ensure that sufficient resources are available to the Auditor General to enable her to perform these audits expeditiously. Once complete, the reports should as soon as practicable be published on the Auditor General’s website, unless the Governor directs that publication should not be made (e.g. in the public interest).

I recommend that the Governor establishes one or more independent unit(s) to conduct investigations into projects and/or individuals as identified by the unit(s), taking into account the information in this Report, the audits that have been and will be conducted by the Auditor General and Internal Audit Department and, of course, information and intelligence that the unit(s) themselves gather. The unit(s) 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. They should also be responsible for civil recovery. The Governor should ensure that sufficient resources are available to the unit(s) to enable them to perform their functions; and to the DPP’s Office (and any other enforcement office) in relation to subsequent steps taken in respect of criminal proceedings and steps to recover public money.

Recommendations from Chapter 3 (Commission of Inquiry Methodology and Process)

Recommendation B1

I recommend that there should be a review of the Commissions of Inquiry Act 1880 in the light of this COI and the processes it has adopted as well as modern practices adopted in other Common Law jurisdictions, with a remit to make recommendations designed to improve the conduct of Commissions of Inquiry in the BVI.

Recommendations from Chapter 4 (Elected Public Officials’ Interests)

Recommendation B2

I recommend that a system of registration of interests is established, that implements the requirements of the Constitution insofar as it requires the declaration and registration of interests by elected officials, gives clear guidance as to what must be disclosed and when, and has effective provisions (involving sanctions where appropriate) to require compliance. Subject only to any restrictions that are truly necessary, the register should be open to public access.

Recommendation B3

I recommend that, before the introduction of a registration of interests system designed to cover all persons in public life, a properly formulated and costed plan should be produced for the implementation of such a system, and a commitment made to ensure that it is, and will continue to be, funded and resourced so that the system is efficient and effective.

Recommendation B4

I recommend that, once the registration of interests system for Members of the House of Assembly has been established, evaluated and its extension costed, then consideration should be given to its extension to other public officials on an incremental basis. For example, the first tranche of public officers to be covered could be the most senior officers such as the Permanent Secretaries, the Financial Secretary and the Cabinet Secretary (or those acting in such roles); the second tranche could be members of statutory boards; and so on, until all public officers intended to be included are covered.

Recommendation B5

I recommend that sections 66 and 67 of the Constitution are amended to make clear the circumstances in which a person seeking election to the House of Assembly or a Member of the House who (either personally or through a dba, a partnership or company with which he or she is associated) contracts with the BVI Government needs to declare such an interest, how such a declaration should be made and the consequences of him or her not doing so.

Recommendation B6

I recommend that sections 66 and 67 of the Constitution are amended to make clear whether, having regard to the purpose of these provisions, the term “Government of the Virgin Islands” is intended to encompass statutory bodies whether engaged in commercial or noncommercial activity. It is my view that they should include such statutory bodies.

Recommendations from Chapter 5 (Assistance Grants)

Recommendation B7

I recommend that there should be a wholesale review of the BVI welfare benefits and grants system, including House of Assembly Members’ Assistance Grants and Government Ministries’ Assistance Grants. Without seeking to limit the ambit of that review, it should seek to move towards an open, transparent and single (or, at least, coherent) system of benefits, based on clearly expressed and published criteria without unnecessary discretionary powers. Such discretionary powers should only be maintained where necessary; and, where any such powers are maintained, then they should be subject to clearly expressed and published guidance. The review should be conducted by a body established for the purpose, drawing upon the experience and expertise within the BVI, with expert input with regard to (e.g.) the design of any new scheme. Whilst this review is a longer-term project and may be evolutionary in its process, it should be conducted as soon as practical. It need not and should not, for example, await the outcome of other proposed reviews (such as the proposed Constitutional Review).

Recommendation B8

I recommend that, without prejudice to any new scheme that may take its place following the review I have proposed, House of Assembly Members’ Assistance Grants and the Government Ministries’ Assistance Grants in their current form should cease forthwith.

Recommendation B9

I recommend that the funds that have been allocated to such grants in the past be reallocated to the Social Development Department for distribution, on application, in accordance with its criteria for the distribution of benefits. Those criteria can be reconsidered in the light of the increase in both funds and calls on its funds which that transfer will involve. Over and above any transitional provisions considered appropriate, the Social Development Department should be able to make an assessment of individuals who claim that immediately revoking discretionary assistance granted to them in the past by elected officials would result in particular hardship and/or unfairness.

Recommendation B10

If and insofar as the review I have recommended concludes that there is some public benefit to having public funds allocated to local, district projects then I recommend that consideration be given to (i) having clearly expressed and published criteria by which such potential projects are assessed for public assistance; (ii) an open and transparent process for the proper recording, assessment and monitoring of projects; and (iii) assessment and monitoring being made, not by (or just by) elected public officials, but by a panel including members of the relevant district community. However, steps should also be taken to ensure that current or ongoing grants are not inappropriately interrupted by this proposed recalibration, and that recipients of grants are not unfairly prejudiced by the change of system to one that is more open and transparent. Transitional provisions may be required. Funds that have been allocated to such grants can be reallocated for distribution through such transitional provisions, before any new, more permanent system is established.

Recommendation B11

I would expect the proposed review to conclude that there is some public benefit to having public funds allocated to grants for educational scholarships etc. If and insofar as it does, then I recommend that consideration be given to (i) having clearly expressed and published criteria by which applications for such grants are assessed for public assistance; (ii) an open and transparent process for the proper recording, assessment and monitoring of applications and grants; and (iii) assessment and monitoring being made, not by (or just by) elected public officials, but by a panel including members of civic society. However, steps should also be taken to ensure that current or ongoing grants are not inappropriately interrupted by this proposed recalibration, and that recipients of grants are not unfairly prejudiced in (e.g.) their education by the change of system to one that is more open and transparent. Transitional provisions may be required. Funds that have been allocated to such grants can be reallocated for distribution through such transitional provisions, before any new, more permanent system is established.

Recommendation B12

With regard to past grants, I recommend that there should be a full audit of all grants made by Members of the House of Assembly (including COVID-19 Grants: House of Assembly Members’ Grants) and/or Government Ministries/Ministers for the last three years, including applications which have not been granted, such audit to be performed by the Auditor General or some other independent person or body instructed by her, and a report on that audit presented to the Governor. Whilst I appreciate the difficulties of such an audit in circumstances in which there is a dearth of documentation, an independent audit enquiry should enable any further appropriate steps, such as a criminal investigation and the recovery of public money (including recovery from any public official who has acted improperly in enabling and/or making the grant) to be taken. Unless, in the meantime, the relevant BVI authorities consider otherwise, further steps, including any criminal investigation etc, can await the outcome of that audit.

Recommendation B13

I recommend that, as soon as practical, a full audit of all four COVID-19 Assistance Programmes (i.e. the Transportation Programme, the MSME Programme, the Farmer and Fisherfolk Programme and the Daycares, Schools and Religious Organisations Programme) be performed by the Auditor General or some other independent person or body instructed by her, and a report on that audit be presented to the Governor. There should be a specific requirement for public officials to cooperate with that audit, including by producing documents and providing information promptly when requested by the audit team. The Auditor General is best placed to identify the terms and scope of the exercise. Without seeking to limit the ambit of that review, I recommend that, in respect of each programme, the terms of that exercise should include consideration of (i) the authorised programme criteria; (ii) the steps (a) required and (b) taken to ensure the principles of good governance were met; (iii) the extent to which grants were made to those who did not satisfy the authorised programme criteria; (iv) where bands of grant were used, the extent to which (and why) bands were adopted without regard to the amount allocated by Cabinet to the programme and/or need; and (v) where there have been any proposals for back-end accounting, the extent to which the system of back-end accounting has been put into effect, and the extent to which it has proved effective in recovering money inappropriately allocated. Unless, in the meantime, the relevant BVI authorities consider otherwise, further steps, including any criminal investigation and steps to recover public money (including recovery from any public official who has acted improperly in enabling and/or making the grant) can await the outcome of that audit.

Recommendation B14

I recommend that the appropriate BVI authorities consider whether a criminal investigation should be held into the conduct of the Premier’s Office in obstructing the Director of the Internal Audit Department in respect of her audit of the COVID-19 Assistance Programmes.

Recommendation B15

I recommend that consideration should be given by the Governor as to whether an investigation, to be conducted by an independent person or persons, should be held into the conduct of the Premier’s Office in obstructing the Auditor General in respect of her audit of the COVID-19 Assistance Programmes.

Recommendation B16

I recommend that consideration be given to amending the Audit Act 2003 so as to make a failure on the part of any person to cooperate with or otherwise impede the Auditor General, without legitimate excuse, a criminal offence.

Recommendation B17

I recommend that, notwithstanding the availability of any potential criminal sanctions for obstructing the Director of the Internal Audit Department and the Auditor General, a failure by a public officer or any employee of a statutory board to cooperate with either auditor, without reasonable excuse, should be treated as gross misconduct.

Recommendations from Chapter 6 (Contracts)

Recommendation B18

I recommend all contracts in respect of major projects (i.e. projects valued at over $100,000, even if they have been the subject of contract splitting or sequential contracts) considered by Cabinet (or, if not considered by Cabinet, considered and approved by a Minister) over the last three years should be the subject of a full audit performed by the Auditor General or some other independent person or body instructed by her, and a report on that audit presented to the Governor. The terms of that exercise should include consideration of (i) whether there has been any manipulation of a project to avoid the open tender requirements (e.g. contract splitting, or the use of sequential or otherwise associated contracts for the same substantive project), (ii) any waiver of the open tender process, including the adequacy of any reasons therefor, (iii) the means by which and by whom the contractor(s) were selected, (iv) whether the project was completed and, if not, the estimated costs and likelihood of completion and (v) value for money. Unless in the meantime the relevant BVI authorities consider otherwise, further steps including any criminal investigation and steps towards the recovery of public money (including recovery from any public official who has acted improperly in enabling and/ or making the grant) can await the outcome of that audit.

Recommendation B19

I recommend that (i) all government contracts other than major contracts should contain a provision that there are no associated contracts which together would trigger the open tender process for major contracts, and (ii) all Cabinet Memoranda which propose a tender waiver should be provided to the Director of the Internal Audit Department in advance so that she can make observations to Cabinet as to the appropriateness of a waiver and also instigate any audit of the project that she considers fit.

Recommendation B20

In respect of (i) the Sea Cow Bay Harbour Development Project and (ii) the Virgin Islands Neighbourhood Partnership Project, I recommend that each matter be referred to the appropriate authorities for consideration of whether a criminal investigation and/or investigations in relation to the recovery of the public money expended should be made, having regard to (i) all the available evidence including the Auditor General’s Report on the project and the information provided to the Commission of Inquiry, and (ii) the dual evidential and public interest tests.

Recommendation B21

In respect of (i) the Elmore Stoutt High School Perimeter Wall Project and (ii) the BVI Airways Project, I recommend that the current criminal investigations (in which there are public officials as persons of interest) are allowed to run their course.

Recommendation B22

In respect of the government contracts with Claude Skelton Cline since 2019, I recommend that, as soon as practical, a full audit of these contracts be performed by the Auditor General or some other independent person or body instructed by her, and a report on that audit be presented to the Governor. The terms of that exercise should include consideration of (i) the evidenced work done by Mr Skelton Cline under these contracts, (ii) the contractual obligations of Mr Skelton Cline under these contracts, and any mismatch between those obligations and the work done, (iii) to the extent that he was not performing his contractual obligations, the circumstances in which Mr Skelton Cline was paid out of the public purse, and (iv) whether the contracts provided value for money. Unless in the meantime the relevant BVI authorities consider otherwise, further steps including any criminal investigation and steps to recover public money (including recovery from any public official who has acted improperly) can await the outcome of that audit.

Recommendation B23

In respect of the government contracts with EZ Shipping concerning the provision of radar barges since 2019, I recommend that, as soon as practical, a full audit of these contracts be performed by the Auditor General or some other independent person or body instructed by her, and a report on that audit be presented to the Governor. The terms of that exercise should include consideration of (i) the circumstances in which the services of EZ Shipping came to be retained by the BVI Government, (ii) the extent to which there was compliance with the procurement regime for major contracts, and the justification for any departure, (iii) why the services were provided prior to the approval of the Joint Task Force, the National Security Council, the Cabinet and/or the Governor, (iv) the policy objectives of the contracts, and the efficacy of the contracts in fulfilling those objectives as revealed by the data, and (v) value for money. Although this will be a matter for the National Security Council, in my view, consideration of national security should not affect the access accorded to the Auditor General in performing this audit (although it may affect her ability to publish her report in unredacted form). Unless in the meantime the relevant BVI authorities consider otherwise, further steps including any criminal investigation and steps to recover public money (including recovery from any public official who has acted improperly) can await the outcome of that audit.

Recommendations from Chapter 7 (Statutory Boards)

Recommendation B24

I recommend that there be a review of all statutory boards to establish (i) the extent to which those boards are behind in their obligations to submit timely financial reports and audits; (ii) the extent to which those boards are applying policies intended to promote good governance such as a conflict of interest policy and a political interference policy; and (iii) the extent to which those boards follow a due diligence policy. The review should be undertaken by a senior public officer and should identify what steps need to be taken to remedy any deficiencies and a timescale in which these steps should be accomplished, in the form of a report to the Governor. The review should be completed within six months.

Recommendation B25

I recommend that there be a review of the provisions under which statutory boards are established and maintained; and in particular, in respect of each, any powers that are exercised in respect of such boards by the executive government, with a view to identifying appropriate powers in statutory provision. This review could be performed by a senior BVI attorney, or a retired BVI/Eastern Caribbean judge.

Recommendation B26

I recommend that there should be an overriding statute that sets out the framework for all statutory boards. The results of the review I propose would feed into such a statute. More detailed parts of the framework can be dealt with in regulations and protocols made under the proposed Act. The regulations should provide for the appointment and removal of statutory board members, published and applicable to all such boards.

Recommendation B27

As part of the proposed Constitutional Review, I recommend that consideration is given to establishing a Statutory Boards Commission, which would be responsible for the process of selection and revocation of statutory board membership, and monitoring the internal policies and procedures put in place by statutory boards (such as declarations of interests and conflicts of interest, at least pending overarching provisions in, e.g., the Integrity in Public Life Act 2021 and new Registration of Interests legislation) intended to strengthen good governance. Whilst this Commission could have representatives appointed by (e.g.) the Governor, Premier and Leader of the Opposition, I recommend that it has a majority of members appointed from BVI civic society. Those appointments should, of course, be the subject of an open and transparent process.

Recommendation B28

I recommend that, pending such overarching provisions and as soon as practical, there should be a protocol for the appointment and removal of statutory board members, published and applicable to all such boards, which should be identified in the protocol itself. The protocol should be based on the principles of good governance, so that appointments and revocations of appointments are based on clearly expressed and published criteria. It should, therefore, include provision (e.g.) for advertisement of posts, appropriate application forms, appropriate checks, interviews before a panel including independent members, restricted circumstances in which the executive cannot proceed with the panel’s recommendation, and the rights to an independent appeal in appropriate cases. It should not be necessary for it to include any residual ministerial discretionary powers. Any such powers should only be maintained where necessary; and, where any such powers are maintained, then they should be subject to clearly expressed and published guidance. The Protocol should have, as a default, rolling periods of appointment, so that retirements are also on a rolling basis (even if reappointments are allowed).

Recommendation B29

I recommend that consideration is given by the Governor (and any independent investigator he might appoint to consider this matter) as to whether it is necessary for any appointments to statutory boards made since 2019 to be revoked to enable appointments through a more open and transparent system to be made.

Recommendations from Chapter 8 (Disposals of Crown Land)

Recommendation B30

I recommend that there should be a wholesale review of processes for the disposal of Crown Land, to ensure that such disposals are the subject of an open and transparent process. This review could (and, in my view, should) be led by a senior public officer. Without restricting the ambit of any such review, it seems to me that that review should include consideration of (i) an independent body or independent bodies being established to consider applications for Crown Land disposals for domestic and/or commercial use; (ii) the degree and nature of the involvement of members of local community in an advisory capacity; (iii) criteria for the disposal of Crown Land for domestic and commercial use (including whether applications for domestic and/or commercial Crown Land by non-belongers ought to be entertained and, if so, the criteria for such grants), which should be both published and applied; and (iv) whether there should be any executive discretionary powers in relation to Crown Land disposals. Any such powers should only be maintained where necessary; and, where any such powers are maintained, then they should be subject to clearly expressed and published guidance.

Recommendation B31

I recommend all disposals of Crown Land, whether outright, by lease or otherwise, over the last three years be the subject of a full audit performed by the Auditor General or some other independent person or body instructed by her, and a report on that audit be presented to the Governor. The terms of that exercise should include consideration of the following (i) the extent to which a body independent of the executive (such as an Estate Land Committee) was involved in the selection process and, if so, the nature and extent of that role; (ii) any criteria applied in consideration of the application and by whom; and (iii) whether the executive exercised any discretion in relation to the selection process and, if so, how it was exercised and whether any guidance or criteria were applied. Unless, in the meantime, the relevant BVI authorities consider otherwise, further steps including any criminal investigation and steps to recover public money (including recovery from any public official who has acted improperly) can await the outcome of that audit.

Recommendation B32

In respect of the disposal of Parcel 310 of Block 2938B, Road Town Registration Section, I recommend that the matter be referred to the appropriate authorities for consideration of whether a criminal investigation and/or investigations in relation to the recovery of the public money expended should be made having regard to (i) all the available evidence including the information provided to the COI; and (ii) the dual evidential and public interest tests.

Recommendations from Chapter 10 (Residence and Belonger Status)

Recommendation B33

I recommend that there should be a review of processes for the grant of residency and belongership status, and in particular the open discretion currently held by Cabinet to make grants. Any such powers should only be maintained where necessary; and, where any such powers are maintained, then they should be subject to clearly expressed and published guidance. This review could (and, in my view, should) be led by a senior public officer. As part of that review, the position with regard to the length of residence required for belongership applications based on tenure should be clarified and confirmed by statute.

Recommendation B34

I recommend that all applications for and grants of residency and belongership status under the Fast Track scheme be the subject of a full audit performed by the Auditor General or some other independent person or body instructed by her, and a report on that audit be presented to the Governor. The terms of that exercise should include consideration of the following (i) the extent to which the statutory criteria were applied to the application, and by whom, (ii) whether the executive exercised any discretion in relation to the selection process and, if so, how it was exercised and whether any guidance or criteria were applied, and (iii) whether, in terms of governance, there were any inherent weaknesses in the Fast Track scheme. Unless, in the meantime, the relevant BVI authorities consider otherwise, further steps including any criminal investigation can await the outcome of that audit.

Recommendations from Chapter 11 (Public Service)

Recommendation B35

I recommend that the Public Service Transformation Programme is led by the Deputy Governor, unless the Governor is satisfied that a joint lead by the Deputy Governor and the Permanent Secretary Premier’s Office (or the Permanent Secretary of another Ministry) is more likely to result in a quicker or otherwise better finalisation and implementation of the programme. The implementation should be driven forward energetically, and without delay.

Recommendation B36

I recommend that the Public Service Management Code is finalised and put in place as soon as practical, with a view to it being incorporated into a Public Service Management Act at some early stage.

Recommendation B37

I recommend that the Department of Human Resources coordinates the expenditure on the training of public officers.

Recommendations from Chapter 12 (Law Enforcement and Justice)

Recommendation B38

I recommend that there is a review of the law enforcement and justice systems, to include not only the front-line agencies (such as the Royal Virgin Islands Police Force, the Financial Investigation Agency, HM Customs and the Immigration Department, insofar as the last two mentioned are involved in the law enforcement system), but also the Prison Service and the Office of the Director of Public Prosecutions. Consideration should be given as to whether it should also cover the whole or parts of the Attorney General’s Chambers and/or the courts. I recommend that this review forms an element of the Constitutional Review I have proposed. The scope of the review will need careful consideration but it should in my view include a review of (i) structure (including whether the front-line law enforcement agencies should have a lead agency and what should that be, and under which arm(s) of government should law enforcement lie; and, particularly, where responsibility for border control should lie), (ii) resources and funding, (iii) conduct and standards, and (iv) terms and conditions. The review need not be a single project – strands will need to be identified and prioritised – and it can draw on the work of reviews currently in progress in relation to the Royal Virgin Islands Police Force and the Prison Service.

Recommendation B39

I recommend that all serving HM Customs and Immigration Department Officers at all levels of seniority be subject to full vetting by an independent agency. Without limiting the ambit of that exercise, it should involve determining if there has been a failure to disclose (i) relevant information before or when first appointed and which may have led to the officer being deemed unsuitable; and (ii) relevant information thereafter including the existence of a second job or a conflict of interest which could reasonably be seen to compromise the individual officer’s ability to fulfil his or her role now and in the future. In the event that a similar exercise is not being undertaken in relation to the Royal Virgin Islands Police Force and the Prison Service, then their officers should be included in this process.

Recommendation B40

I recommend that officers appointed by the Commissioner of Police investigate possible corruption within HM Customs.

Recommendation B41

I recommend that consideration is given to ensuring that the Royal Virgin Islands Police Force and (as necessary) other enforcement agencies have the facilities and powers to prevent, monitor and detect crime, and prepare matters for prosecution, including by way of access to and use of modern scientific techniques and intelligence material. This can be done through a panel comprising representatives of (e.g.) the Attorney General, the Director of Public Prosecutions, the Police Commissioner, HM Customs Commissioner and the Immigration Department, with external expertise being brought in as and when required. The panel should prepare a report, setting out recommendations as to what is required, to be presented to the Governor.

Recommendation B42

I recommend that Criminal Procedure Rules are revised, to give the criminal courts modern case management powers.

Recommendation B43

I recommend that consideration is given to revising the Jury Act in two respects. First, consideration should be given to increasing the size of the pool of jurors by (e.g) changing the criteria to enable those who are long-term residents to sit on juries. Second, consideration should be urgently given to granting the court wider powers to hear judge-only criminal trials.

Recommendation B44

I recommend that consideration is given to building upon the current initiatives for revising, consolidating and publishing in readily accessible form the laws of the BVI, including early consideration for prioritising elements of this project and producing a work programme for it.

Recommendations from Chapter 13 (Governance and Serious Dishonesty in Public Office)

Recommendation B45

I recommend that the Complaints Commissioner be required to report annually to the Governor, Deputy Governor and the House of Assembly/Standing Finance Committee of the House of Assembly, setting out the extent to which there has been a response to her criticisms and recommendations. That would give the House/Committee an opportunity to scrutinise the report and raise questions about it as part of the budget process.

1. The Virgin Islands have a rich history of which those who live in the islands are rightly proud.
2. The Virgin Islands lie to the east of Puerto Rico at the western end of the Leeward Islands. They comprise former Spanish possessions (notably Vieques and Culebra which, with Puerto Rico, were ceded to the United States of America (“the US”) in 1898, following the Spanish American War); former Danish possessions (notably St John, St Thomas and St Croix which were purchased by the US from Denmark in 1917 and became the US Virgin Islands); and, at the eastern end of the group, what are now the Virgin Islands British Overseas Territory. Although, in its official name, the last is described as simply “the Virgin Islands”, it is usually referred to as “the British Virgin Islands” to distinguish it from its US neighbour. In this report, I shall refer to the Territory as “the BVI”.
3. The BVI has a land area of just under 60 sq miles, comprising about 60 islands, islets and cays, 16 of which are inhabited including the islands of Tortola (which, at approximately 12 miles long and three miles wide, is the largest island), Virgin Gorda, Anegada and Jost van Dyke.
4. The islands were settled by Arawak Indians from South America until the 15th century, when they were displaced by the Caribs from the Lesser Antilles. However, by 1493, when the first European sighting was made by Christopher Columbus on his second voyage to the Americas, the islands that are now the BVI appear to have been uninhabited. Columbus named the range of islands “Santa Ursula y Ias Once Mil Virgenes” (“Saint Ursula and her 11,000 Virgins”), shortened to “Las Virgenes” (“the Virgins”). They remained largely uninhabited until the 17th century.
5. In the 17th century, jurisdiction over the Virgin Islands was contested between the Spanish, the English and the Dutch. At the outbreak of the Third Anglo-Dutch War, in 1672, England took control of Tortola and Jost van Dyke; and subsequently, in 1680, Virgin Gorda and Anegada were formally annexed to the Crown. The islands comprising the BVI have remained under British influence since.
6. Excluding Anegada (which is coral limestone), the islands are low mountains formed of porous brown loam, which means that, despite high levels of rainfall, there are no rivers or inland lakes. Water is not easily retained; and the land is difficult to cultivate, that difficulty being compounded by the generally steep mountainous terrain. In the 17th century, with the use of slave labour, cotton was grown (notably on Virgin Gorda); and, from the 18th century, sugar plantations were established (notably on Tortola). Smuggling and privateering were also an inherent part of the economy.
7. With the price rises in both cotton and (especially) sugar in the second half of the 18th century as a result of Britain being involved in a succession of conflicts, trade in these commodities flourished and the slave population on the BVI dramatically increased to service the plantations. To encourage trade through Road Harbour, the Tortola Trade Act 18022 followed by the Importation and Exportation Act 18053 gave it free port status which, together with other trade privileges (such as Tortola becoming part of the packet service route), ensured both that legal trade flourished and illegal trade was relatively restrained.
8. However, this economic high was to be short-lived. The ending of half a century of consistent warfare in 1815 brought a period of general economic depression. The depression in the United Kingdom (“the UK”) caused a decline in demand and prices for both sugar and cotton. For the BVI, that was compounded by (i) worsening of soil conditions and shortage of labour, (ii) increasing competition from Cuba, Brazil and the East Indies for sugar, and the southern states of the American Union for cotton and (iii) regular hurricanes but particularly a devastating hurricane on 21-22 September 1819 which destroyed Road Harbour and resulted in the packet station4 being closed and many planters emigrating.
9. The cultivation of both cotton and sugar was dependent upon the labour of slaves, and slavery was an established institution in the BVI by 1672. Due to the low level of cultivation, the numbers of slaves remained relatively small until the late 18th century when numbers rose, 9,000 slaves being recorded by 1788. One of the crusading institutions for the abolition of slavery was the Methodist Church, which by 1789 had established a mission in Tortola which served almost entirely the slave community, over 2,500 being registered with the mission by 17965. From the late 18th century, the numbers of slaves declined due to the collapse of the cotton and sugar trades, which resulted in both the emigration and manumission of slaves, and increasing pressure by the anti-slavery lobby. The slave trade was abolished in the British Empire on 25 March 18076; and slavery itself was abolished on 1 August 18347, a date annually marked in the BVI by a three-day holiday in the first week of August. Slavery was initially replaced by a period of “apprenticeship” (indentured servitude) ranging from four to six years, which was finally abolished in 18388.
10. The abolition of slavery, adverse weather and the further fall in sugar prices in the 1840s led to the debts of plantation estates, incurred during more profitable times, exceeding the value of the underlying security9, resulting in most plantation owners leaving their estates fallow and often in the hands of their attorneys or the receiver of the Court of Chancery. Disposal of the land was in practice impossible because of the (often complex) rights of those holding security. There were, consequently, vast tracts of unoccupied land in the BVI. Purchase of land was, however, difficult if not impossible for the former slaves and their descendants until 1864 when two measures eased the problem of land transfer, namely (i) an enactment authorising the printing and use of a simple form to effect transfer of land for 4s 6d, and (ii) the adoption in the BVI of the West Indies Encumbered Estates Acts10 which enabled the sale of encumbered estates by authorised Commissioners at prices former slaves and their descendants could afford and with security of tenure. With a relatively quick land registration process, from the 1860s, these resulted in the rapid expansion of smallholdings of generally below 20 acres (and often much smaller), with demarcated and recorded boundaries, which could be passed on to future generations.
11. The collapse of the sugar and cotton industries resulted in a sharp decline in population. By the 1899 census, the black population of the BVI had gradually fallen to 4,607, and the white population (which had been 1,300 in 1830) was only 32. The population since has been overwhelmingly black, with the white population accounting for no more than about 5%. From 1900, the population has gradually increased, at a greater pace in recent years. The population in 1951 was 7,429: in 1981, 11,647: and in 2011, 28,063. The estimated population is just over 30,00011, of whom 24,00012 live on Tortola, which is the home of the capital, Road Town.
12. A legislature, based on legislative government already established in other British West Indian colonies and involving some representative element, was introduced into the BVI in 1773. Over time, representative government has evolved; but this has been far from an easy, or even continuous, path.
13. In 1773, government in the BVI was formed of three limbs: the Lieutenant-Governor of Tortola (serving under the Governor of the Leeward Islands, based in Antigua), a nominated Council and an elected Assembly, loosely reflecting the British form of monarch, House of Lords and House of Commons. The Council comprised 12 members nominated by the Governor of the Leeward Islands. It both advised the Lieutenant-Governor and acted as an upper chamber of the legislature. The Assembly comprised of, at first, 11 then, from 1776, 15 members elected every three years. It was the lower, and representative, chamber of the legislature. With this legislature, the BVI was given control over its internal regulation.
14. However, the Council and the Assembly were frequently deadlocked over such matters as land ownership, the establishment of courts of justice and, especially, taxation which became an increasing issue as the main sources of tax as revenue either ceased (slaves) or was severely diminished (sugar) and the tax burden moved on to the increasing number of smallholders. Broadly, the Assembly were against the burden falling upon them, whilst the Council considered it should. The result was that, for periods often spanning years, the legislature was effectively deadlocked and unable to pass any legislation.
15. The mandate of the Assembly was in any event undermined by the apathy of the (still very small) electorate: in 1837, out of 143 electors, only 34 chose to vote (and there remained a vacancy in the Assembly because the only elector in one district could not be found). In an attempt to address this, the Constitution Act 1837 reduced the number of Assembly members to nine, removed residential qualifications, and voters were given as many votes as the number of members required for the Assembly.
16. From 1854, the representational element in the government of the BVI diminished.
17. The Constitutional Reform Act 1854 abolished the system of government by Council and Assembly in favour of a Legislative Council comprised an ex officio President, three members nominated by the Crown and six elected members. Amendments were made in 1859, reducing the number of elected members to four.
18. Although that broke the recurring deadlock and allowed more legislation to be passed, the system was changed again in 1867 in favour of full Crown Colony government. The elective franchise was abolished, with executive power being vested in the Governor (or, in his absence, the President of the Executive Council, which remained to assist and advise the Governor, although diminishing in number over time from four to two); and a Legislative Council which, like the Executive Council, consisted of officials and nominated non official members.
19. In 1871, the Federation of the Leeward Islands was created and, not only was its legislature granted federal legislative powers, but the legislatures of component islands (which included the BVI) were able to grant it such powers over other subject areas. Under this provision, the Governor and Legislative Council of the BVI granted to the federal legislature the power to legislate over (e.g.) stamp duty in the BVI and even the power to determine the legislative structure within the BVI. Under that power, in 1902, the Legislative Council of the BVI was abolished at the instance of the Governor but by Act of the federal government13; so that, in the legislative process, from that date, there was no representation even on a nominated basis.
20. The BVI remained a part of the Leeward Islands Federation. Whilst there was not the same degree of nationalism as exhibited in other Caribbean territories, those who lived in the BVI began to seek more say in their own affairs (particularly regarding land), and moves to restore a local representative legislative government began in the depression of the 1930s. Those moves were generally stalled by the Second World War, but then resumed.
21. An event of particular note was the Freedom March of 1949. A fisherman from Anegada, Theodore H Faulkner, came to Road Town with his wife who was expecting a child at the Cottage Hospital (later the Peebles Hospital and now the D Orlando Smith Hospital). In frustration at the absence of medical (and other facilities) on Anegada, he spoke publicly in the marketplace and articulated the discontent of himself and other islanders. This culminated in 1,500 people marching through Road Town on 24 November 1949, with a petition addressed to the Commissioner calling for an elected assembly14.
22. That event prompted greater debate which, in turn, led to the Leeward Islands legislature passing the Constitution (Virgin Islands) Act 1950, based on the recommendations of a local BVI Constitutional Committee. Democratically elected government – hard earned, and consequently highly prized – thus returned to the BVI. The 1950 Constitution established a Legislative Council for the BVI of eight members: two ex officio, two nominated and four elected. The first election under the new Constitution was held on 20 November 1950. In 1954, the system was reformed so that there was a majority of elected members: the Territory was divided into five constituencies or “districts” to return six elected members (Road Town returning two members). However, executive power remained outside the control of the elected Assembly and in the person of the Commissioner (later styled Administrator, and then Governor).
23. The Leeward Islands were de-federated in 1956, in favour of a West Indies Federation (which the BVI did not join), thereby returning the whole legislative function to the BVI, which became a Crown Colony in its own right.
24. The passage of the executive function to elected representatives did not take place until 1967. In 1952, a “Committee System” was introduced, with the establishment of two committees, the Public Works and Communications Committee and the Trade and Production Committee, each chaired by a member of the Executive Council. From 1954, the chairmen became “Members” with an obligation to support executive decisions in public. Following a further Commission on Constitutional Reform, in the new Constitution of 196715, a ministerial system was introduced with three Ministers including a Chief Minister, i.e. an elected Member of the Legislative Assembly appointed by the Administrator (from 1970, the Governor) as the person best able to command the support of the majority of elected members in that Assembly. Matters of special responsibility (such as external affairs, defence and internal security) remained with the Administrator to determine, on advice of the Executive Council, but otherwise control over executive matters was devolved to the Ministers.
25. In 1959, the BVI formally adopted the US dollar as its official currency.
26. In the late 1960s, a 199-year lease of Crown Land in Wickham’s Cay and more than four f ifths of Anegada (where land had traditionally been treated as common land for farming) was signed with a company owned by Ken Bates (a British businessman and hotelier), with a view to the development of the land. The leases would have resulted in most islanders being excluded from the relevant land. In 1968 Noel Lloyd started a community group (the Positive Action Movement) in which Mrs Patsy Lake was also prominent, to protest against the Bates’ company’s leases and development, with organised marches over several weeks and lobbying of the UN. As a result of these protests, a Commission of Inquiry was set up; and, in 1970, the land was repurchased by the BVI Government with funds loaned by the UK Government. The cause is commemorated in the Noel Lloyd Positive Action Movement Park in Road Town, the home to a statue of Noel Lloyd.
27. The history of the BVI is regularly interrupted by hurricanes of high and sometimes devastating force. In 2017, there had already been severe flooding in early August. On 6 September 2017, following late-stage intensification and late slight deviation south, the eye of Hurricane Irma – at the time, the most powerful recorded Atlantic hurricane – passed over Tortola, Virgin Gorda and Jost van Dyke, with Road Town bearing its full brunt. With a sustained wind speed of 180mph, the category 5 hurricane was of such intensity as to be recorded on seismometers calibrated for earthquakes.
28. The effects of the hurricane were devastating. A state of emergency was declared by the Governor, His Excellency Augustus Jaspert, the following day, 7 September 2017. Four people died as the direct result of Hurricane Irma16. It stripped not only all vegetation, but also bark, resulting in “browning” of the landscape. About 85% of housing stock was destroyed, together with most commercial property: the estimated damage to property was over $3.5 billion. The devastation was compounded by further flooding (notably of Road Town) which occurred as the result of torrential downpours of rain a week later, and the effects of another category 5 hurricane (Hurricane Maria) which obliquely struck the BVI on 20 September 201717. Supplies of food, water, fuel and medicinal products were very limited. It took four months to restore water supply, and six months to restore electricity supply to the whole Territory. Recovery was hampered by the BVI Government being largely self-insured, and private homeowners being generally underinsured18.
29. Longer-term recovery was also hampered, of course, by the COVID-19 pandemic as a result of which the BVI closed its borders on 22 March 2020 at 11.59pm. The first cases of COVID-19 were confirmed in the BVI on 25 March 2020, and a complete 24-hour a day lockdown with closed borders was implemented on 27 March 2020 initially to 2 April 2020 but then twice extended ending on 25 April 2020. Various periods of lockdown, curfew and restrictions have followed.

The Constitution

The BVI as a British Overseas Territory

30. The BVI is now one of 14 British Overseas Territories19 (“BOTs”). It is therefore not part of the UK; but, with the UK and the Crown Dependencies, the BOTs form a single realm over which the Crown is sovereign. Following the general decolonisation of the second half of the twentieth century, they thus remain uniquely British.
31. Constitutionally, the Westminster Parliament has unlimited power to legislate for the realm including each of the BOTs. However, the people of each BOT, including the BVI, have a right of self-determination. That right springs from article 73 of the United Nations Charter (“the UN Charter”)20 – which falls within Chapter XI, “Declaration Regarding Non-Self-Governing Territories” – which expressly recognises the paramountcy of the interests of the inhabitants of non-self-governing territories and the obligation of states which assume responsibilities for the administration of such territories to develop self-government and to protect those inhabitants from abuses. Article 73 provides:

    “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:

    1. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;
    2. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;
    3. to further international peace and security;
    4. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and
    5. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible…”.

    In this context, of course, the BVI is a non-self-governing territory, for which the UK assumes the responsibilities of administration.

32. The right of self-determination is normative, and therefore recurs in various other international instruments. For example, article 1 of the International Covenant on Economic, Social and Cultural Rights21 provides:
    1. "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
    2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
    3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing… Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”
33. The foundation for the current UK policy in respect of its relationship with the BOTs was set out in the March 1999 White Paper, Partnership for Progress and Prosperity: Britain and the Overseas Territories22, which refers to “a renewed contract” or “partnership” between Britain and the Overseas Territories23. It states24:

    “The principles that underlie our partnership are clear:

    • First, our partnership must be founded on self-determination. Our Overseas Territories are British for as long as they wish to remain British. Britain has willingly granted independence where it has been requested; and we will continue to do so where this is an option. It says a lot about the strength of our partnership that all the Overseas Territories want the constitutional link to continue. And Britain remains committed to those territories which choose to retain the British connection.
    • Second, the partnership creates responsibilities on both sides. Britain is pledged to defend the Overseas Territories, to encourage their sustainable development and to look after their interests internationally. In return, Britain has the right to expect the highest standards of probity, law and order, good government and observance of Britain’s international commitments.
    • Third, the people of the Overseas Territories must exercise the greatest possible control over their own lives. We are proud that our Overseas Territories are beacons of democracy. We applaud their achievements, and want them to have the autonomy they need to continue to flourish.
    • Fourth, Britain will continue to provide help to the Overseas Territories that need it. It is a source of much pride that the effectiveness of their governments’ policies has meant that budgetary help is necessary only for Montserrat and St Helena – both for special circumstances.”