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This publication is available at https://www.gov.uk/government/publications/british-virgin-islands-commission-of-inquiry-report/british-virgin-islands-commission-of-inquiry-report-summary-of-recommendations

In the course of my Report, I make a number of recommendations, which are set out below. There are four primary recommendations (prefixed with “A”), all taken from Chapter 14; and 45 further recommendations (prefixed by the letter “B”), deriving from particular areas of government and taken from various specific chapters of the Report as identified.

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.

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):

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

whether the current constitutional pillars of governance are sufficient, and in any event how those independent institutions can be effective

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

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

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

whether statutory boards should be embedded in the Constitution and, if so, whether there should be a Statutory Boards Commission

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.

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.

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.

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.

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.

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.

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.

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.

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 non-commercial activity. It is my view that they should include such statutory bodies.

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).

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.  

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.

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:

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.

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:

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.

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.

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:

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.

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.

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.  

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.

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.

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:

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.

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 recommend that the current criminal investigations (in which there are public officials as persons of interest) are allowed to run their course.

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:

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

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:

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.

I recommend that there be a review of all statutory boards to establish:

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.

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.

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.

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.

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).

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.

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:

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.

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:

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.

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 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.

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:

Unless, in the meantime, the relevant BVI authorities consider otherwise, further steps including any criminal investigation can await the outcome of that audit.

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.

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.

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

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:

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. 

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:

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.

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

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.

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

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.

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.

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.

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