The Montserrat Constitution Order 2010

• (3) If at any time between the polling in a general election and the next following dissolution of the Legislative Assembly the Governor is satisfied that, if the office of the Leader of the Opposition were then vacant, he or she would in accordance with subsection (2) appoint to that office a person other than the person then holding it, the Governor shall revoke the appointment of the Leader of the Opposition.

• (4) The office of the Leader of the Opposition shall also become vacant—

• (a) if for any reason other than a dissolution of the Legislative Assembly the holder of that office ceases to be a member of the Assembly; or

• (b) if the holder of that office is appointed as a Minister.

• (5) In the exercise of the functions conferred on him or her by this section the Governor shall act in his or her discretion.

• (6) If at any time the Governor is unable to appoint a person as Leader of the Opposition in accordance with this section, then, during any period while there is no Leader of the Opposition—

• (a) the Governor may exercise in his or her discretion any function which this Constitution requires the Governor to exercise in accordance with the advice of, or after consultation with, the Leader of the Opposition; and

• (b) the National Advisory Council shall be deemed to be validly constituted notwithstanding the absence of a Leader of the Opposition.

Governor’s right to address Legislative Assembly

62

The Governor shall have the right to address the Legislative Assembly.

Standing Committees

63

• (1) The Legislative Assembly shall establish at least two Standing Committees of the Assembly, each of which shall be charged with responsibility for monitoring the conduct of business of the Government for which responsibility has been assigned to a Minister under section 38; and one such Committee shall be charged with responsibility for monitoring the public accounts and shall be called the Public Accounts Committee.

• (2) Each Standing Committee shall consist of members of the Legislative Assembly who are not members of the Cabinet, and at least one Committee shall be presided over by a member of the Assembly in opposition to the Government (if there is any such member).

• (3) Each Standing Committee shall have power—

• (a) to summon any Minister, or any public officer of a department of government for which a Minister is responsible, to appear before it;

• (b) subject to any law in force in Montserrat or to Standing Orders, to require any person so summoned to answer questions and provide information about the conduct of business of the Government by the Minister or department concerned.

• (4) Each Standing Committee shall report on its activities to the Legislative Assembly as often as may be deemed necessary but at least annually.

• (5) The Legislative Assembly shall publish reports submitted to it under subsection (4).

• (6) Subject to this section, Standing Orders shall provide for the composition and functions of, and proceedings and conduct of business before, Standing Committees.

Oaths or affirmations of members

64

No member of the Legislative Assembly shall be permitted to take part in the proceedings of the Assembly (other than proceedings necessary for the purpose of this section) until he or she has made and subscribed before the Assembly oaths or affirmations of allegiance and for the due execution of his or her office in the forms set out in the Schedule; but the election of the Speaker and Deputy Speaker may take place before the members of the Assembly have made such oaths or affirmations.

Quorum

65

• (1) If at any sitting of the Legislative Assembly any member who is present draws the attention of the person presiding at the sitting to the absence of a quorum and, after such interval as may be prescribed in Standing Orders, the person presiding at the sitting ascertains that a quorum of the Assembly is still not present the Assembly shall be adjourned.

• (2) A quorum of the Legislative Assembly shall consist of six members besides the person presiding at the sitting.

Voting

66

• (1) Subject to subsection (2) and to sections 34(1), 59(7)(e) and 114(2), all questions proposed for decision in the Legislative Assembly shall be determined by a majority of the votes of the members present and voting.

• (2) The person presiding shall not vote unless on any question the votes are equally divided, in which case he or she shall have and may exercise a casting vote; but where the motion before the Legislative Assembly is that it should declare a lack of confidence in the Government, the Speaker shall not have a casting vote.

Prorogation and dissolution

67

• (1) The Governor, acting in accordance with the advice of the Premier, may at any time, by proclamation published in the Gazette, prorogue the Legislative Assembly.

• (2) The Governor, acting after consultation with the Premier, may at any time, by proclamation published in the Gazette, dissolve the Legislative Assembly.

• (3) The Governor shall dissolve the Legislative Assembly at the expiration of five years from the date of the first sitting of the Assembly after any general election unless it has been sooner dissolved.

Recalling dissolved Legislative Assembly in case of emergency

68

If, between a dissolution of the Legislative Assembly and the next ensuing general election, an emergency arises of such a nature that, in the opinion of the Governor, it is necessary for the Assembly to be recalled, the Governor may, acting after consultation with the Premier, summon the Assembly that has been dissolved, and that Assembly shall thereupon be deemed (except for the purposes of section 69) not to have been dissolved, but shall be deemed (except as aforesaid) to be dissolved on the date on which the next ensuing general election is held.

General elections

69

A general election for the elected members of the Legislative Assembly shall be held at such time within three months, but not less than 21 days, after every dissolution of the Assembly as the Governor shall appoint by proclamation published in the Gazette.

Introduction of Bills, motions and petitions

70

• (1) Subject to this Constitution and to Standing Orders, any member of the Legislative Assembly may introduce any Bill or propose any motion for debate in, or may present any petition to, the Assembly, and the same shall be debated and disposed of according to Standing Orders.

• (2) Except with the approval of the Cabinet signified by a Minister, the Legislative Assembly shall not—

• (a) proceed on any Bill (including any amendment to a Bill) which, in the opinion of the person presiding in the Assembly, would dispose of or charge any public revenue or public funds of Montserrat or alter any disposition of them or charge on them or impose, alter or repeal any rate, tax or duty;

• (b) proceed on any motion (including any amendment to a motion) the effect of which, in the opinion of the person presiding in the Assembly, is that provision should be made for any of those purposes; or

• (c) receive any petition which, in the opinion of the person presiding in the Assembly, requests that provision be made for any of those purposes.

Power to make laws

71

Subject to this Constitution, the Legislature shall have power to make laws for the peace, order and good government of Montserrat.

Standing Orders

72

Subject to this Constitution, the Legislative Assembly may make, amend and revoke Standing Orders for the regulation and orderly conduct of its own proceedings and the despatch of business, and the passing, entitling and numbering of Bills and their presentation to the Governor for assent.

Penalty for unauthorised persons sitting or voting

73

• (1) Any person who sits or votes in the Legislative Assembly knowing or having reasonable grounds for knowing that he or she is not entitled to do so shall be liable to a penalty which shall be prescribed by law.

• (2) The said penalty shall be recoverable by action in the High Court at the suit of the Director of Public Prosecutions.

Assent to Bills

74

• (1) A Bill shall not become a law until either—

• (a) the Governor has assented to it in Her Majesty’s name and on Her Majesty’s behalf and has signed it in token of such assent; or

• (b) Her Majesty has given Her assent to it through a Secretary of State and the Governor has signified such assent by proclamation published in the Gazette.

• (2) When a Bill is presented to the Governor for assent the Governor shall declare that he or she assents or refuses to assent to it or that he or she reserves the Bill for the signification of Her Majesty’s pleasure; but, unless he or she has been authorised by a Secretary of State to assent to it, the Governor shall reserve for the signification of Her Majesty’s pleasure any Bill which appears to him or her, acting in his or her discretion—

• (a) to be inconsistent with any international obligation of Her Majesty’s Government in the United Kingdom;

• (b) to be likely to prejudice the Royal prerogative, or the efficiency of the judiciary, or to affect any of the matters mentioned in section 39; or

• (c) to be in any way repugnant to or inconsistent with this Constitution.

• (3) A law assented to by the Governor shall come into force on the date on which such assent shall be given, unless it shall be enacted either in such law or in some other enactment that it shall come into force on some other date, in which case it shall come into force on that date.

• (4) A Bill reserved for the signification of Her Majesty’s pleasure shall become a law as soon as Her Majesty has given Her assent to it, through a Secretary of State, and such assent has been signified by proclamation published in the Gazette;and every such law shall come into force on the date of such proclamation, unless it shall be enacted either in such law or in some other enactment that it shall come into force on some other date, in which case it shall come into force on that date.

Words of enactment

75

In every Bill presented to the Governor for assent the words of enactment shall be as follows—

• “Be it enacted by The Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Montserrat, and by the authority of the same as follows:–”.

Disallowance of laws

76

• (1) Any law assented to by the Governor may be disallowed by Her Majesty through a Secretary of State; but no law shall be disallowed until the expiration of a period notified by a Secretary of State to the Governor, who shall advise the Speaker of that period, in order to give the Legislative Assembly an opportunity to reconsider the law in question.

• (2) Whenever any law has been disallowed by Her Majesty the Governor shall, as soon as practicable, cause notice of such disallowance to be published in the Gazette and the law shall be annulled with effect from the date of publication of that notice.

• (3) Section 16(1) of the Interpretation Act 1978[^f00002] shall apply to the annulment of any law under this section as it applies to the repeal of an Act of Parliament, save that any enactment repealed or amended in pursuance of that law shall have effect as from the date of the annulment as if that law had not been made.

Privileges, immunities and powers of Legislative Assembly

77

The Legislature may by law determine and regulate the privileges, immunities and powers of the Legislative Assembly and its members, but no such privileges, immunities or powers shall exceed those of the Commons House of Parliament of the United Kingdom or of its members.

PART V — ELECTORAL COMMISSION

Establishment and functions of Electoral Commission

78

• (1) There shall be an Electoral Commission for Montserrat.

• (2) The Electoral Commission shall consist of—

• (a) a Chairman appointed by the Governor, acting in his or her discretion;

• (b) a member appointed by the Governor, acting in accordance with the advice of the Premier;

• (c) a member appointed by the Governor, acting in accordance with the advice of the Leader of the Opposition; and

• (d) a member to represent the public interest appointed by the Governor, acting after consultation with such representatives of civil society as the Governor, acting in his or her discretion, thinks appropriate.

• (3) A person shall not be qualified to be appointed as a member of the Electoral Commission if he or she is a public officer.

• (4) The Chairman or other member of the Electoral Commission shall vacate his or her office—

• (a) at the expiration of five years from the date of his or her appointment;

• (b) if he or she becomes a public officer; or

• (c) if the Governor, acting in his or her discretion, directs that he or she shall be removed from office for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.

• (5) The Electoral Commission may regulate its own procedure and, with the consent of the Governor, acting in his or her discretion, may confer functions on any public officer or on any authority of the Government for the purpose of the discharge of its functions.

• (6) The Electoral Commission may act notwithstanding any vacancy in its membership (including any vacancy not filled when appointments of members are first made) and its proceedings shall be valid even though some person who was not entitled to do so took part in them; but any decision of the Commission shall require the concurrence of not less than three of its members.

• (7) The Electoral Commission shall—

• (a) have the functions conferred on it by sections 52(3), 79, 96(2) and 114(1);

• (b) supervise elections in Montserrat in accordance with any law regulating the conduct of elections; and

• (c) have such other functions as may be prescribed by Act of the Legislature.

• (8) An Act of the Legislature may make further provision, subject to this Constitution, for the functions and procedures of the Electoral Commission, and for the protection, privileges and remuneration of members of the Commission.

• (9) In the exercise of its functions, the Electoral Commission shall not be subject to the direction or control of any other person or authority.

Review and alteration of electoral districts

79

• (1) Whenever—

• (a) the Legislative Assembly, by resolution; or

• (b) the Governor, acting after consultation with the Premier and the Leader of the Opposition,

so requests, the Electoral Commission shall review the electoral district or, if there is more than one, the boundaries of the electoral districts into which Montserrat is divided and, taking into account the changes or proposed changes, if any, in the number of electoral districts, shall submit a report to the Governor and the Legislative Assembly containing its recommendations for the establishment of, or any changes in, the boundaries of the electoral districts.

• (2) In determining its recommendations in relation to more than one electoral district, the Electoral Commission shall seek to ensure that electoral districts contain, so far as is reasonably practicable, approximately equal numbers of persons qualified to be registered as electors under the law then in force in Montserrat; but the Commission may depart from this principle to such extent as it considers expedient in order to take into account—

• (a) the density of population and, in particular, the need to ensure adequate representation of sparsely populated areas;

• (b) the means of communication; and

• (c) geographical features and natural boundaries.

• (3) As soon as may be after the Electoral Commission has submitted a report under this section, the Governor shall cause a Bill to be introduced into the Legislative Assembly for giving effect, whether with or without modifications, to the recommendations contained in the report; and such a Bill—

• (a) may contain provision for any matters which are incidental to or consequential on its principal provisions; and

• (b) shall include a provision for the coming into force of the measure when enacted for the determination of the electoral districts to which it relates upon the dissolution of the Legislative Assembly next following its enactment.

• (4) Where any Bill introduced under this section proposes to give effect to the recommendations of the Electoral Commission with modifications, there shall be laid before the Legislative Assembly at the same time a statement of the reasons for the modifications.

PART VI — THE JUDICATURE

Eastern Caribbean Supreme Court

80

The Supreme Court Order 1967[^f00003] shall continue to apply to Montserrat as it applied immediately before the commencement of this Constitution, and accordingly the High Court and the Court of Appeal of the Eastern Caribbean Supreme Court shall continue to have jurisdiction in Montserrat.

Subordinate courts and tribunals

81

There shall be such courts and tribunals in and for Montserrat subordinate to the Eastern Caribbean Supreme Court, and such courts and tribunals shall have such jurisdiction and powers, as may be prescribed by any law.

PART VII — THE PUBLIC SERVICE

Public Service Commission

82

• (1) There shall be a Public Service Commission for Montserrat, which shall consist of a Chairman and five other members.

• (2) Of the members of the Public Service Commission—

• (a) the Chairman shall be appointed by the Governor, acting in his or her discretion;

• (b) one member shall be appointed by the Governor, acting in accordance with the advice of the Premier;

• (c) one member shall be appointed by the Governor, acting after consultation with the Premier;

• (d) one member shall be appointed by the Governor, acting in accordance with the advice of the Leader of the Opposition;

• (e) one member shall be appointed by the Governor, acting after consultation with the Leader of the Opposition; and

• (f) one member shall be appointed by the Governor, acting after consultation with the Civil Servants Association.

• (3) The members of the Public Service Commission shall be appointed by instrument under the public seal for such period, not being less than two years nor more than four years, as may be specified in their respective instruments of appointment.

• (4) No person shall be qualified to be appointed as a member of the Public Service Commission if he or she is or has been within the preceding three years—

• (a) an elected member of the Legislative Assembly;

• (b) the holder of any office in any political party; or

• (c) a public officer.

• (5) The office of a member of the Public Service Commission shall become vacant—

• (a) at the expiration of the period specified in the instrument by which he or she was appointed;

• (b) if he or she resigns his or her office by writing under his or her hand addressed to the Governor;

• (c) if he or she becomes an elected member of the Legislative Assembly, the holder of any office in any political party, or a public officer; or

• (d) if the Governor, acting in his or her discretion, directs that he or she shall be removed from office for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.

• (6) Whenever the office of the Chairman of the Public Service Commission is vacant or the holder of that office is for any reason unable to perform the functions of that office, such one of the other members of the Commission as the Governor, acting in his or her discretion, may appoint shall act in the office of the Chairman; and any person so appointed shall, subject to subsection (5), continue so to act until he or she is notified by the Governor, acting in his or her discretion, that the circumstances giving rise to the appointment have ceased to exist.

• (7) If the office of a member of the Public Service Commission other than the Chairman is vacant or the holder of that office is acting as the Chairman or is for any other reason unable to perform the functions of his or her office, the Governor, acting in the manner prescribed by subsection (2) for the appointment of that member, may appoint a person who is qualified for appointment as a member of the Commission to act as a member of the Commission; and any person so appointed shall, subject to subsection (5), continue so to act until he or she is notified by the Governor, acting in his or her discretion, that the circumstances giving rise to the appointment have ceased to exist.

• (8) No business shall be transacted at any meeting of the Public Service Commission if there are less than four members of the Commission present including the Chairman.

• (9) Any question proposed for decision at any meeting of the Public Service Commission shall be determined by a majority of the votes of the members of the Commission; and if on any question the votes are equally divided the Chairman shall have and exercise a casting vote.

• (10) The Public Service Commission shall be served by a secretariat, the members of which shall be public officers.

• (11) The Public Service Commission must be impartial and must exercise its functions without fear, favour or prejudice, in the interest of the maintenance of effective and efficient public administration and a high standard of professional ethics in the public service.

• (12) Subject to subsection (8), the Public Service Commission may act notwithstanding any vacancy in its membership, and its proceedings shall be valid even though some person who was not entitled to do so took part in them.

Functions and operation of Public Service Commission

83

• (1) The Public Service Commission shall have—

• (a) such advisory functions in relation to the appointment, discipline and removal of public officers; and

• (b) such oversight and other functions in relation to the public service,

as may be prescribed by law.

• (2) The Legislature may by law make further provision for the Public Service Commission not inconsistent with this Constitution.

• (3) No law, and nothing done by the Public Service Commission under any law, may in any way affect the powers conferred on the Governor by sections 84(3) and (4) and 85(3) and (4).

Appointment, discipline and removal of public officers

84

• (1) Power to make appointments to public offices, and to remove or exercise disciplinary control over persons holding or acting in such offices, shall be exercised by the Deputy Governor in accordance with section 24 and subject to regulations made under this section.

• (2) The Deputy Governor shall consult with the Premier before appointing any person to the office of permanent secretary.

• (3) Regulations made by the Governor, acting in his or her discretion, may provide for the delegation to any other public officer, to such extent and subject to such conditions as may be prescribed in the regulations, of any of the powers conferred on the Deputy Governor by section 24(2)(a).

• (4) Where the Governor, acting in his or her discretion, determines that the exercise of the powers conferred on the Deputy Governor by section 24(2)(a) or delegated to another public officer pursuant to subsection (3) would prejudice Her Majesty’s service, the Governor shall give directions as to the exercise of those powers to the Deputy Governor or, as the case may be, the other public officer to whom powers have been delegated, and the Deputy Governor or, as the case may be, the other public officer shall comply with those directions.

• (5) This section shall not apply to—

• (a) any office mentioned in section 85;

• (b) any office in the police service.

Particular offices

85

• (1) Power to make appointments to the offices of Deputy Governor and Financial Secretary is vested in the Governor, acting after consultation with the Premier, and, subject to subsection (5), power to remove or exercise disciplinary control over persons holding or acting in either office is vested in the Governor, acting in his or her discretion.

• (2) Power to make appointments to the offices of Attorney-General, Director of Public Prosecutions and Registrar of the High Court, and to any other office requiring legal qualifications as may be prescribed by law, and, subject to subsection (5), to remove or exercise disciplinary control over any person holding or acting in any such office, is vested in the Governor, acting after consultation with the Chief Justice.

• (3) If any law provides for the Public Service Commission to provide advice to the Governor in the exercise of his or her powers under subsections (1) and (2), the Governor shall act otherwise than in accordance with the advice of the Public Service Commission if the Governor, acting in his or her discretion, determines that compliance with that advice would prejudice Her Majesty’s service.

• (4) Power to make appointments to the office of Commissioner of Police, and to remove or exercise disciplinary control over any person holding or acting in that office, is vested in the Governor, acting after consultation with the Premier.

• (5) A person holding the office of Deputy Governor, Attorney-General, Financial Secretary or Director of Public Prosecutions may be removed from office only for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and with the prior approval of a Secretary of State.

Applicability of pensions law

86

• (1) Subject to section 88, the law applicable to the grant and payment to any officer, or to his or her widow or widower, children, dependants or personal representatives, of any pension, gratuity or other like allowance (in this section and in sections 87 and 88 referred to as “an award”) in respect of the service of that officer in a public office shall be that in force on the relevant day or any later law not less favourable to the person concerned.

• (2) For the purposes of this section the relevant day is—

• (a) in relation to an award granted before the appointed day, the day on which the award was granted;

• (b) in relation to an award granted or to be granted on or after the appointed day to or in respect of a person who was a public officer before that day, the day immediately before that day;

• (c) in relation to an award granted or to be granted to or in respect of a person who first becomes a public officer on or after the appointed day, the day on which he or she becomes a public officer.

• (3) For the purposes of this section, in so far as the law applicable to an award depends on the option of the person to or in respect of whom it is granted or to be granted, the law for which he or she opts shall be taken to be more favourable to him or her than any other law for which he or she might have opted.

• (4) In this section “the appointed day” means the date of commencement of this Constitution.

Pensions, gratuities and allowances charged on Consolidated Fund

87

Awards granted under any law shall (except so far as they are a charge on some other fund and are duly paid out of that fund to the person to whom payment is due) be charged on and paid out of the Consolidated Fund.

Grant and withholding of pensions, gratuities and allowances

88

• (1) The power to grant any award under any pensions law (other than an award to which, under that law, the person to whom it is payable is entitled as of right) and, in accordance with any provisions in that respect contained in any such law, to withhold, reduce in amount or suspend any award payable under any such law is vested in the Governor, acting after consultation with the Public Service Commission.

• (2) In this section, “pensions law” means any law relating to the grant to any person, or to the widow or widower, children, dependants or personal representatives of that person, of an award in respect of the services of that person in a public office, and includes any instrument made under any such law.

PART VIII — FINANCE

Taxation

89

• (1) No tax, rate or other levy shall be imposed except under the authority of an Act of the Legislature.

• (2) Where an Act of the Legislature confers powers on any person or authority to waive or vary a tax imposed by that law, that person or authority shall report to the Legislative Assembly on the exercise of those powers as often as shall be determined by law but not less than annually.

Consolidated Fund

90

• (1) There shall be a Consolidated Fund into which shall be paid all revenues or other moneys raised or received by and for the purposes of the Government.

• (2) The revenues or other moneys referred to in subsection (1) shall not include revenues or other moneys—

• (a) that are payable by or under an Act of the Legislature into some other fund established for a specific purpose; or

• (b) that may, by or under an Act of the Legislature, be retained by the department of government that received them for the purpose of defraying the expenses of that department.

Withdrawal from Consolidated Fund or other public funds

91

• (1) No moneys shall be withdrawn from the Consolidated Fund except—

• (a) to meet expenditure charged on the Fund by this Constitution or by an Act of the Legislature; or

• (b) where the issue of those moneys has been authorised by an Appropriation Act, a Supplementary Appropriation Act, or as provided in subsection (3).

• (2) No moneys shall be withdrawn from any public fund of Montserrat other than the Consolidated Fund unless the issue of those moneys has been authorised by law.

• (3) If the Minister of Finance is satisfied that the Appropriation Act in respect of any financial year will not or has not come into force by the beginning of that financial year, that Minister may, subject to subsection (4), authorise the issue of moneys from the Consolidated Fund for the purpose of meeting expenditure necessary to carry on the services of the Government until the expiration of four months from the beginning of that financial year or the coming into force of the Appropriation Act, whichever is the earlier.

• (4) Any sum issued in any financial year from the Consolidated Fund under subsection (3) in respect of any ongoing service of the Government—

• (a) shall not exceed one third of the amount approved for that service by the Legislature in an Appropriation Act or a Supplementary Appropriation Act for the previous financial year; and

• (b) shall be set off against the amount provided in respect of that service in the Appropriation Act for that financial year when that law comes into force.

Financial year estimates

92

• (1) The Minister of Finance shall cause to be prepared and laid before the Legislative Assembly before the beginning of each financial year estimates of revenues and expenditure of the Government for that financial year.

• (2) At any time before the Legislative Assembly considers the estimates of revenues and expenditure laid before it by or on the authority of the Minister of Finance, an appropriate committee of the Assembly may discuss and review the estimates and make appropriate recommendations to the Assembly.

• (3) Notwithstanding subsection (1) the Minister of Finance may cause to be prepared and laid before the Legislative Assembly—

• (a) fiscal and monetary programmes and plans for economic and social development covering periods exceeding one year;

• (b) estimates of revenue and expenditure covering periods exceeding one year; and

• (c) estimates of non-financial outputs.

• (4) The Legislature shall enact laws giving effect to this section.

Appropriation Bill

93

• (1) The heads of expenditure contained in the estimates, other than expenditure charged on the Consolidated Fund by this Constitution or any Act of the Legislature, shall be included in a Bill, to be known as an Appropriation Bill, which shall be introduced into the Legislative Assembly to provide for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified in the Bill.

• (2) If in respect of any financial year it is found that the amount appropriated for any purpose under the Appropriation Act is insufficient or that a need has arisen for expenditure for a purpose for which no amount has been appropriated by that Act, a supplementary estimate showing the sums required shall be laid before the Legislative Assembly by the Minister of Finance; and the heads of expenditure contained in that estimate shall be included in a Bill, to be known as a Supplementary Appropriation Bill, which shall be introduced into the Legislative Assembly to provide for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified in the Bill.

Excess expenditure

94

• (1) Where, in exceptional circumstances, at the close of accounts for any financial year it is found that moneys have been expended on any expenditure vote in excess of the amount appropriated for it by an Appropriation Act or a Supplementary Appropriation Act or for a purpose for which no moneys have been voted and appropriated, the amount of the excess expended, or not appropriated, as the case may be, shall be included in a statement of expenditure in excess which shall be laid before the Legislative Assembly and referred to the Public Accounts Committee of the Assembly.

• (2) The Public Accounts Committee shall report to the Legislative Assembly on a statement of expenditure in excess referred to it under subsection (1) within six months after the statement is referred to it.

• (3) Where on receiving any report of the Public Accounts Committee issued under subsection (2) the Legislative Assembly, by means of a resolution, allows the excess or the amount expended but not appropriated to stand charged to public funds, the sum required to meet that excess or such amount as shall be allowed shall be included in a Supplementary Appropriation Bill for appropriation.

Contingencies

95

• (1) The Minister of Finance, if he or she is satisfied that there is an urgent and unforeseen need for expenditure for which no provision or insufficient provision has been made by an Appropriation Act or Supplementary Appropriation Act, may, by a Contingencies Warrant under his or her hand and in anticipation of the grant of an appropriation by the Legislature, authorise an advance from the Consolidated Fund to meet that need and shall forthwith report his or her action to the Cabinet.

• (2) An advance made under subsection (1) shall be subject to any laws enacted by the Legislature, and to any restrictions imposed by the Legislative Assembly by resolution, from time to time.

Remuneration of Speaker and elected members of Legislative Assembly

96

• (1) There shall be paid to the Speaker and the elected members of the Legislative Assembly such remuneration and allowances as may be prescribed by an Act of the Legislature.

• (2) The Legislative Assembly shall not proceed on any Bill for an Act referred to in subsection (1) unless a report of the Electoral Commission recommending the appropriate levels of such remuneration and allowances has been laid before the Assembly and has been published; and no Act shall provide for levels of remuneration or allowances that exceed the levels recommended in such report.

• (3) The remuneration and allowances payable to the Speaker and elected members of the Legislative Assembly shall be charged on and paid out of the Consolidated Fund.

Remuneration of certain officers

97

• (1) There shall be paid to the holders of the offices to which this section applies such remuneration and allowances as may be prescribed by or under an Act of the Legislature.

• (2) The remuneration and allowances payable to the holders of those offices shall be charged on and paid out of the Consolidated Fund.

• (3) The remuneration prescribed in pursuance of this section in respect of the holder of any such office and his or her other terms of service (other than allowances that are not taken into account in computing, under any law in that respect, any pension payable in respect of his or her service in that office) shall not be altered to his or her disadvantage after his or her appointment.

• (4) Where a person’s remuneration or other terms of service depend upon his or her option, the remuneration or terms for which he or she opts shall, for the purposes of subsection (3), be deemed to be more advantageous to him or her than any others for which he or she might have opted.

• (5) This section applies to the offices of Governor, Deputy Governor, Attorney-General, Director of Public Prosecutions, Magistrate, Chairman or other member of the Public Service Commission, the Electoral Commission, the Complaints Commission and the Integrity Commission.

• (6) Nothing in this section shall preclude an Act of the Legislature that reduces the level of remuneration payable to the holder of any office to which this section applies where that Act makes equivalent reduction to the remuneration of all members of the public service.

Power of Government to borrow or lend

98

• (1) Subject to this Constitution, the Government may borrow from any source.

• (2) The Government shall not borrow, guarantee or raise a loan on behalf of itself or any other public institution, authority or person except—

• (a) as authorised by or under an Act of the Legislature; and

• (b) in accordance with any borrowing guidelines agreed with Her Majesty’s Government in the United Kingdom.

• (3) An Act of the Legislature made under subsection (2)(a) shall provide—

• (a) that the terms and conditions of the loan shall be laid before the Legislative Assembly and shall not come into force unless they have been approved by a resolution of the Assembly; and

• (b) that any moneys received in respect of that loan shall be paid into the Consolidated Fund and form part of that Fund or into some other public fund which is existing or is created for the purpose of the loan.

• (4) The Minister of Finance shall, at such times as the Legislative Assembly may determine, cause to be presented to the Assembly such information concerning any loan as is necessary to show—

• (a) the extent of the total indebtedness by way of principal and accumulated interest;

• (b) the provision made for servicing or repayment of the loan; and

• (c) the utilisation and performance of the loan.

• (5) The Legislative Assembly may, by resolution, authorise the Government to enter into an agreement for the giving of a loan or a grant out of any public fund or public account.

• (6) An agreement entered into pursuant to subsection (5) shall be laid before the Legislative Assembly and shall not come into force unless it has been approved by the Assembly by resolution.

• (7) For the purposes of this section, the expression “loan” includes any money lent or given to or by the Government on condition of return or repayment and any other form of borrowing or lending in respect of which—

• (a) moneys from the Consolidated Fund or any other public fund may be used for payment or repayment; or

• (b) moneys from any fund by whatever name called, established for the purpose of payment or repayment whether in whole or in part and whether directly or indirectly, may be used for payment or repayment.

• (8) The Legislature may by law exempt any category of loan from subsections (2)(a) and (3), subject to such conditions as it may so prescribe.

Public Debt

99

• (1) The Public Debt of Montserrat shall be charged on the Consolidated Fund and other public funds of Montserrat.

• (2) For the purposes of this section, the Public Debt includes the interest on that debt, sinking fund payments in respect of that debt, and the costs, charges and expenses incidental to the management of that debt.

Financial control and accounts

100

• (1) The Minister of Finance shall provide the Legislative Assembly with such reports, information and accounts as may be necessary to ensure that the Assembly is kept fully informed at all times of the state of the economy of Montserrat and the finances of the Government.

• (2) The Legislature shall make provision by law for the regular publication of accounts of the Consolidated Fund and any other public funds and for the laying of such accounts and any reports on them before the Legislative Assembly.

Auditor-General

101

• (1) There shall be an Auditor-General for Montserrat.

• (2) Power to make appointments to the office of Auditor-General is vested in the Governor, acting after consultation with the Public Accounts Committee of the Legislative Assembly.

• (3) Power to remove the Auditor-General from office is vested in the Governor, acting in accordance with subsections (4) to (6).

• (4) The Governor shall remove the Auditor-General from office if—

• (a) the Auditor-General violates any law concerning the ethics of public leaders; or

• (b) the Auditor-General becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors, or otherwise makes an assignment of remuneration for the benefit of creditors.

• (5) If the Legislative Assembly in a resolution addressed to the Governor resolves that the Auditor-General is unable to perform the functions of his or her office due to misconduct, incapacity or incompetence—

• (a) the Governor shall appoint a special tribunal which shall consist of a Chairman and not less than two other members; but the Chairman and at least half of the other members shall be persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in any part of the Commonwealth or Ireland or a court having jurisdiction in appeals from such a court;

• (b) the special tribunal shall inquire into the matter and report on the facts thereof to the Governor and recommend whether or not the Auditor-General should be removed from office.

• (6) If the special tribunal appointed in accordance with subsection (5) recommends to the Governor that the Auditor-General should be removed from office then the Governor shall remove him or her from office.

• (7) If the question of removing the Auditor-General from office has been referred to a special tribunal under subsection (5), the Governor, acting in his or her discretion, may suspend the Auditor-General from the exercise of the functions of that office and such suspension shall cease to have effect if the special tribunal recommends to the Governor that the Auditor-General should not be removed.

• (8) The Auditor-General may resign his or her office by writing under his or her hand addressed to the Governor.

Position and remuneration of Auditor-General

102

• (1) The Auditor-General shall by virtue of his or her office be an officer of the Legislative Assembly.

• (2) The terms and conditions of employment including the remuneration and allowances of the Auditor-General shall be set from time to time by a resolution of the Legislative Assembly proposed by the Chairman of the Public Accounts Committee of the Assembly; but any remuneration and allowances shall not be less than the average rate paid to the Financial Secretary.

• (3) The remuneration and allowances of the Auditor-General shall be charged on and paid out of the Consolidated Fund.

Functions of Auditor-General

103

• (1) The Auditor-General shall audit and report on the public accounts of Montserrat and of all public offices, including the courts, the central and local government administrations, universities and higher education institutions, and any public corporations or other bodies or organisations established by an Act of the Legislature, and may conduct financial and value for money audits in respect of any project involving public funds.

• (2) The Auditor-General shall submit to the Legislative Assembly annually a report of the accounts audited by him or her under subsection (1) for the immediately preceding financial year.

• (3) For the purposes of subsection (1) the Auditor-General and any person authorised by him or her shall have a right of access at all reasonable times to all such documents as appear to him or her to be necessary for the purposes of the audit, and shall be entitled to require from any person holding or accountable for any such documents such information and explanation as he or she thinks necessary for those purposes.

• (4) In the exercise of his or her functions, the Auditor-General shall not be subject to the direction or control of any other person or authority.

National Audit Office

104

• (1) The Legislature shall by law make provision for the establishment of an independent National Audit Office headed by the Auditor-General.

• (2) The budget for the National Audit Office shall be charged on and paid out of the Consolidated Fund, and must at all times be adequate to enable the full performance of the functions conferred on the Auditor-General by this Constitution or any other law.

• (3) The accounts of the National Audit Office shall be audited and reported on by an auditor appointed by the Legislative Assembly.

PART IX — PUBLIC STANDARDS

Complaints Commission

105

• (1) There shall be a Complaints Commission for Montserrat, the composition, functions, operation and procedure of which shall, subject to this section, be prescribed by or under an Act of the Legislature.

• (2) The functions of the Complaints Commission shall include, without prejudice to the jurisdiction of any court of law, encouraging the resolution of human rights complaints, maladministration complaints and other complaints prescribed by law, and assisting in their resolution, by providing an independent, fair and accessible process for resolving them.

• (3) In the exercise of its functions the Complaints Commission shall not be subject to the direction or control of any other person or authority, subject to subsection (4).

• (4) The Governor may, in writing, direct the Complaints Commission to inquire into, and report to him or her in relation to, a matter that can be complained about in accordance with subsection (2), and the Complaints Commission must comply with any such direction.

• (5) In this section—

• “human rights complaint” means a complaint of breach or infringement of a right or freedom referred to in Part I of this Constitution; and

• “maladministration complaint” means a complaint of maladministration in the government of Montserrat.

Standards in public life

106

• (1) The Legislature shall maintain the highest standards in public life by enacting appropriate laws, which include sanctions that may accompany the failure to conform to such standards.

• (2) In the exercise of their functions Ministers, members of the Legislative Assembly and public officers shall uphold and conform to the highest standards in public life, in accordance with the Integrity in Public Office Act 2010 (or any Act amending or replacing it) and the other laws in force in Montserrat.

PART X — MISCELLANEOUS

Interpretation

107

• (1) In this Constitution, unless the context otherwise requires—

• “Chief Justice” means the Chief Justice referred to in the Supreme Court Order 1967[^f00004];

• “Court of Appeal” means the Court of Appeal established by the Supreme Court Order 1967;

• “Deputy Speaker” means the member of the Legislative Assembly elected by the Assembly as Deputy Speaker under section 59;

• “financial year” means the period of twelve months beginning on the first day of January in any year or such other day as the Legislature may prescribe by law;

• “functions” includes powers and duties;

• “Gazette” means the official Gazette of Montserrat;

• “Government” means the Government of Montserrat;

• “High Court” means the High Court established by the Supreme Court Order 1967;

• “judiciary” means any court having jurisdiction in Montserrat and includes any member or officer of such court;

• “law” includes any subsidiary instrument;

• “Legislature” means the Legislature established by section 47;

• “Leader of the Opposition” means the person appointed as such under section 61;

• “meeting” means any sitting or sittings of the Legislative Assembly commencing when the Assembly first meets after being summoned at any time and terminating when the Assembly is adjourned sine die or at the conclusion of a session;

• “Minister” means a person appointed as Premier or other Minister under section 33;

• “Minister of Finance” means the Minister for the time being responsible for finance;

• “misbehaviour” means behaviour that renders a person unfit to discharge his or her duties;

• “political party” means an organisation that sponsors or supports, or that at any time sponsored or otherwise supported, a candidate for election to the Legislative Assembly;

• “Premier” means the person appointed as such under section 33(1);

• “public office” means, subject to section 108, an office of emolument in the public service, but does not include service as a judge of the High Court or the Court of Appeal or as a Magistrate;

• “public officer” means the holder of any public office and includes any person appointed to act in any such office;

• “public service” means the service of the Crown in a civil capacity in respect of the government of Montserrat;

• “session” means the meetings of the Legislative Assembly commencing when the Assembly first meets after its prorogation or dissolution at any time, and terminating when the Assembly is next prorogued or is dissolved without having been prorogued;

• “sitting” means a period during which the Legislative Assembly is sitting continuously without adjournment, and includes any period during which the Assembly is in Committee;

• “Speaker” means the person elected as Speaker by the Legislative Assembly under section 59;

• “Standing Orders” means the Standing Orders of the Legislative Assembly made under section 72;

• “subsidiary instrument” means any proclamation, regulation, order, rule or other like instrument having the force of law.

• (2) For the purposes of this Constitution, a person shall be regarded as a Montserratian if that person—

• (a) is a British overseas territories citizen who was born in Montserrat; or

• (b) is a British overseas territories citizen who was born outside Montserrat and—

• (i) who was lawfully adopted by a person who is regarded (or, if deceased, would if alive be regarded) as a Montserratian by virtue of this subsection; or

• (ii) whose father or mother or any grandparent was born in Montserrat; or

• (iii) whose father or mother or any grandparent became a citizen of the United Kingdom and Colonies, a British Dependent Territories citizen or a British overseas territories citizen by virtue of having been lawfully adopted by a person who is regarded (or, if deceased, would if alive be regarded) as a Montserratian by virtue of this subsection; or

• (iv) who is ordinarily resident in Montserrat and whose father or mother or any grandparent by virtue of registration or naturalisation while resident in Montserrat became a citizen of the United Kingdom and Colonies, a British Dependent Territories citizen or a British overseas territories citizen; or

• (v) who by virtue of registration or naturalisation while resident in Montserrat became a citizen of the United Kingdom and Colonies, a British Dependent Territories citizen or a British overseas territories citizen; or

• (c) was born in or outside Montserrat of a father or mother who was born in Montserrat and is regarded (or, if deceased, would if alive be regarded) as a Montserratian by virtue of this subsection; or

• (d) has been granted Montserratian status in accordance with any law; or

• (e) was immediately before the commencement of this Constitution deemed to belong to Montserrat by virtue of any law.

• (3) Unless it is otherwise provided or the context otherwise requires, a reference in this Constitution to the holder of an office by the term designating his or her office shall be construed as a reference to any person for the time being lawfully performing the functions of that office.

References to public office

108

• (1) For the purposes of this Constitution, a person shall not be considered as holding or acting in a public office by reason only that he or she—

• (a) is in receipt of any remuneration or allowance as a Minister or Parliamentary Secretary, as the Speaker, the Deputy Speaker or member of the Legislative Assembly, or as the Chairman or other member of the Public Service Commission, the Electoral Commission or the Complaints Commission;

• (b) is in receipt of a pension or other like allowance in respect of service under the Crown; or

• (c) is on leave of absence pending relinquishment of a public office.

• (2) If it is provided by any law that an office (not being an office constituted by this Constitution) shall not be a public office for the purposes of section 52(1)(b), this Constitution shall have effect accordingly as if that provision of law were enacted in it.

Appointments

109

• (1) In this Constitution, unless it is otherwise provided or the context otherwise requires, any reference to power to make appointments to any public office shall be construed as including a reference to power to make appointments on promotion and transfer, appointments on contract and appointments to act in an office during any period when it is vacant or the holder of the office is absent from Montserrat or is for any other reason unable to perform the functions of the office.

• (2) Where the holder of any office constituted by or under this Constitution is on leave of absence pending the relinquishment of that office, the person or authority having power to make appointments to that office may appoint another person to that office; and where two or more persons concurrently hold the same office by virtue of an appointment made in pursuance of this subsection, the person last appointed shall, in respect of any function conferred on the holder of that office, be deemed to be the sole holder of the office.

• (3) Where by this Constitution any person is directed, or power is conferred on any person or authority to appoint a person, to act in an office if the holder of the office is unable to perform the functions of that office, the validity of any performance of those functions by the person so directed or of any appointment made in exercise of that power shall not be called in question in any court on the ground that the holder of the office is not unable to perform the functions of the office.

Re-election or reappointment

110

Any person who has vacated his or her seat in the Legislative Assembly or who has vacated any office constituted by or under this Constitution may, if qualified, again be elected to the Assembly or appointed to that office, as the case may be, from time to time.

Removal from office

111

In this Constitution, unless it is otherwise provided or the context otherwise requires, any reference to power to remove a public officer from office shall be construed as including a reference to any power conferred by any law to require or permit that officer to retire from the public service and to any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract shall or shall not be renewed.

Resignations

112

For the purposes of this Constitution, the resignation of the holder of any office that is required to be addressed to any person shall have effect from the time that it is received by that person.

Power to amend or revoke instruments

113

Where any power is conferred by this Constitution to make any subsidiary instrument or to give any directions or instructions or make any designation, the power shall be construed as including a power exercisable in like manner to amend or revoke any such instrument, directions, instructions or designation.

Amendment

114

• (1) The Electoral Commission shall keep under review the operation of this Constitution and report as it considers necessary to the Legislative Assembly.

• (2) The Premier, if authorised by resolution of the Legislative Assembly adopted by a two-thirds majority of the elected members of the Assembly, shall request discussion of amendment of this Constitution with Her Majesty’s Government in the United Kingdom.

Meaning of appointed day

115

In sections 116 to 119, “the appointed day” means the day referred to in section 1(2) of this Order, that is to say the date of commencement of this Constitution.

Revocations and amendment

116

• (1) The following instruments are revoked with effect from the appointed day—

• (a) the Montserrat Constitution Order 1989[^f00005];

• (b) the Montserrat Constitution (Amendment) Order 2000[^f00006]; and

• (c) the Instructions issued under the Royal Sign Manual and Signet to the Governor of Montserrat on 13th January 1990.

• (2) The Leeward Islands (Emergency Powers) Order in Council 1959[^f00007] shall cease to apply to Montserrat with effect from the day on which section 18(1) to (8) of this Constitution comes into force; but any regulations made under that Order that are in force in Montserrat immediately before that day shall continue in force there until revoked by the Governor, acting in accordance with section 18 of this Constitution.

Existing laws

117

• (1) Subject to this section, the existing laws shall have effect on and after the appointed day as if they had been made in pursuance of this Constitution and shall be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution.

• (2) The Legislature may by law make such amendments to any existing law as appear to it to be necessary or expedient for bringing that law into conformity with this Constitution or otherwise for giving effect to this Constitution; and any existing law shall have effect accordingly from such day (not being earlier than the appointed day) as may be specified in the law made by the Legislature.

• (3) In this section “existing law” means any law or instrument having effect as part of the law of Montserrat immediately before the appointed day but does not include any Act of the Parliament of the United Kingdom and any instrument made under such an Act.

Existing offices and officers

118

• (1) Any office established by or under the existing Constitution and existing immediately before the appointed day shall on and after that day, so far as consistent with this Constitution, continue as if it had been established by or under this Constitution.

• (2) Any person who immediately before the appointed day holds or is acting in any office continued by virtue of subsection (1) shall, on and after that day, continue to hold or act in that office as if he or she had been appointed to hold or act in it in accordance with or under this Constitution.

• (3) Any person to whom subsection (2) applies who, before the appointed day, has made any oath or affirmation required to be made before assuming the functions of his or her office shall be deemed to have made any like oath or affirmation so required by this Constitution or any other law.

• (4) Notwithstanding subsections (1) and (2), the Public Service Commission shall be reconstituted in accordance with section 82 and the Governor shall, as soon as practicable after the appointed day, make appointments to the Commission in accordance with that section.

• (5) The person who, immediately before the appointed day, holds the office of Chief Minister under the existing Constitution shall, on and after that day, hold the office of Premier in accordance with this Constitution.

• (6) In this section “the existing Constitution” means the Constitution set out in Schedule 2 to the Montserrat Constitution Order 1989.

Legislative Assembly

119

• (1) Every person who immediately before the appointed day is a member of the Legislative Council shall on that day become a member of the Legislative Assembly and shall be deemed to have complied with section 64 and shall hold his or her seat in accordance with this Constitution.

• (2) The Standing Orders of the Legislative Council as in force immediately before the appointed day shall, except as may be otherwise provided under section 72, have effect on and after that day as if they had been made under that section as Standing Orders of the Legislative Assembly but shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution.

• (3) The Governor shall dissolve the Legislative Assembly not later than the expiration of five years from the date of the first sitting of the Legislative Council after the last general election before the appointed day.

• (4) In this section “Legislative Assembly” means the Legislative Assembly established by this Constitution, and “Legislative Council” means the Legislative Council established by the Constitution set out in Schedule 2 to the Montserrat Constitution Order 1989.

Transitional provision concerning Director of Public Prosecutions

120

Until a person is appointed to the office of Director of Public Prosecutions in accordance with this Constitution, the Attorney-General shall perform the functions of that office.

Power reserved to Her Majesty

121

Her Majesty reserves to Herself power, with the advice of Her Privy Council, to make laws for the peace, order and good government of Montserrat.

SCHEDULE — FORMS OF OATHS AND AFFIRMATIONS

1

Oath of allegiance

2

Affirmation of Allegiance

3

Oath for due execution of office

4

Affirmation for due execution of office

Signed

Judith Simpson — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order establishes a new Constitution for Montserrat, to replace the Constitution of 1989. The new Constitution sets out fundamental rights and freedoms of the individual and provisions for their enforcement. It provides for a Governor as Her Majesty’s representative in Montserrat, and for a Premier and other Ministers who form a Cabinet together with the Financial Secretary and the Attorney-General. It provides for an elected Legislative Assembly, which together with Her Majesty forms the Legislature. The High Court and Court of Appeal of the Eastern Caribbean Supreme Court continue to have jurisdiction as superior courts in Montserrat, and provision is made for the establishment of subordinate courts. A new National Advisory Council is established to advise on some of the Governor’s functions, and the office of Director of Public Prosecutions and an Electoral Commission are established for the first time. Provision is also made for the public service, public finance including the independent audit of public accounts, and for standards in public life including the establishment of a Complaints Commission.

Footnotes

[^f00001]: 1962 c. 19.

[^f00002]: 1978 c. 30.

[^f00003]: S.I. 1967/223, amended by S.I. 1983/1108, 2000/3060.

[^f00004]: S.I 1967/233, amended by S.I. 1983/1108, 2000/3060.

[^f00005]: S.I. 1989/2401.

[^f00006]: S.I. 2000/1339.

[^f00007]: S.I. 1959/2206.