Independent report

British Virgin Islands Commission of Inquiry report: executive summary

Published 8 June 2022

1. 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.

2. 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.

3. 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.

4. 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decisions are made by elected officials (usually, Ministers) on the basis of no criteria, or patently inadequate and/or unpublished criteria, or criteria which are as often as not simply ignored.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.

5. 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.

6. 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 British Virgin Islands Commission of Inquiry 8 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.

7. 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.

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

9. 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, under-trained, 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.

10. 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.

11. 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.

12. 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.

13. 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 by-passing or ignoring them as and when they wish – which is regrettably often.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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 British Virgin Islands Commission of Inquiry 10 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.

19. 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.

20. 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.

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

22. 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 self-government 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.

23. 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.

24. 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 self-determination 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

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