The report, authored by local attorney Anthea Smith, includes a compilation of enactments in which elected public officials have been granted discretionary powers and an assessment of whether the discretionary powers granted are necessary or unnecessary, and whether they should be retained or removed.

It found that only a small number of provisions in a few enactments could potentially be challenged by way of constitutional motion.

Open to judicial challenge

The report’s conclusion highlighted three specific provisions that were identified as giving rise to the possibility of challenge. These include Section 57(2) of the Social Security (Employment Injury Benefits) Regulations, which allows the Minister to remove the chairman or any member of the Medical Appeals Tribunal without assigning any reason. Smith said this provision potentially compromises the independence of the tribunal because the Tribunal performs an adjudicatory function.

Another provision identified is Section 175(3) of the Public Finance Management Regulations 2005, which provides for the Cabinet to exercise discretion to accept or reject the recommendation of the Central Tenders Board. The report found that there is no guidance as to the criteria the Cabinet should take into account in exercising its discretion about the recommendations of the Central Tenders Board, which could potentially be subject to judicial review.

The matter of continued tender waivers by Cabinet over the years was a critical source of contention during the COI, with the government being accused up to late last year of still indiscriminately issuing tender waivers for government contracts.

Meanwhile, the report also highlighted Section 28 (3) of the Virgin Islands Investment Act, 2020, which empowers the Minister, on the advice of the Commission, to delay or prevent a foreign investor from transferring funds outside of the territory to prevent movements of capital that cause or threaten to cause serious difficulties for macroeconomic management of the economy. It further pointed out that, Section 25 of the Constitution confers protection from deprivation of any “interest in or right to or over property of any description,” except in certain listed circumstances. Deprivation for the purpose of preventing movements of capital for the safeguarding of the local economy, the review explained, is not included in that list.

Recommendations

More broadly, the report showed that the greater problem lies in areas of government statutes or regulations that do not clearly delineate a course of action, which places little if any, effective limit on the ability of public officials to act according to their inclinations without sufficient regard to the principles of good government.

In some cases, even where legislation sets out policy objectives and clear and principled approaches to the achievement of the same, elected representatives may ignore or bypass these. It contended that this gives rise to questions of enforcement and recommended supplemental legislation to provide clarity as to the purpose which the discretion is intended to serve and also suggested that guidelines be introduced for the exercise of discretion for the achievement of that purpose.

The review was conducted by attorneys Sydney Bennett, KC and Anthea Smith.