(3) The Governor, acting in his or her discretion, may suspend the member from office while his or her removal from office on a ground referred to in subsection (2)(c) is under investigation.

(4) No business shall be transacted by the Commission unless—

(a) all members are present at a meeting in St Helena or elsewhere; or

(b) if they are in different places, all members are able to communicate with one another about that business in ways that they agree are appropriate in the circumstances.

(5) All questions before the Commission shall be decided by a majority of the votes of its members; and if, on any question, the votes are equally divided, the Chief Justice shall have and exercise a casting vote.

(6) The Commission may, of its own motion or at the request of the Executive Council or of an organisation that is representative of judicial officers—

(a) make recommendations to the Governor on the appointment of judicial officers;

(b) consider and, if it so decides, make recommendations to the Governor on, the removal from office of a judicial officer on a ground referred to in section 93(1); and

(c) exercise such other functions as may be conferred on it by law.

(7) In the exercise of its functions the Commission shall act independently and shall not be subject to the direction or control of the Governor, the Executive Council or any other person or authority.

(8) No member of the Commission shall be personally liable for the consequences of any act done or omitted by the Commission in good faith in pursuance or intended pursuance of the Commission’s functions; and if any such liability is established, it shall be that of the Crown.

PART 7 PUBLIC SERVICE

Appointment etc of officers of St Helena Public Service

95.—(1) Subject to this Constitution, the Governor, acting in his or her discretion but after consultation with such persons or such independent authority (if any) as may be prescribed by Ordinance, may, in Her Majesty’s name and on Her Majesty’s behalf—

(a) make appointments to any office in the St Helena Public Service; and

(b) remove and exercise disciplinary control over persons holding or acting in any such office.

(2) The Governor, acting in his or her discretion, may by directions in writing delegate the power conferred on him or her by subsection (1) to any officer or officers of the St Helena Public Service to such extent, and subject to such conditions, as may be specified in the directions.

(3) Subject to this Constitution, an Ordinance may provide for the establishment of an independent authority to exercise any of the following functions—

(a) advising the Governor about procedures for the exercise of the powers referred to in subsection (1), including recruitment, grievance and appeal procedures;

(b) advising the Governor on public service management, performance, conduct and ethics policies, and monitoring the implementation of such policies;

(c) carrying out annual reviews of the procedures and policies referred to in paragraphs (a) and (b), and reporting on such reviews to the Governor; and

(d) such other functions as may contribute to the efficiency and integrity of the St Helena Public Service.

Terms and conditions of employment

96.—(1) The Governor, acting in his or her discretion, shall approve (and may from time to time amend) a Code of Management by or under which the terms and conditions of employment of officers of the St Helena Public Service, or any branch of it, shall be determined.

(2) Subject to any such Code of Management, the terms and conditions of the employment of an individual officer of the St Helena Public Service shall be as agreed in that officer’s contract of employment or implied by any rule of law.

PART 8 PUBLIC FINANCE

Taxation

97.—(1) No tax, rate or other similar levy shall be imposed except under the authority of an Ordinance.

(2) Where an Ordinance referred to in subsection (1) 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 Council on the exercise of those powers as often as shall be determined by law but not less than annually.

Consolidated Fund

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

(2) The revenues or other moneys referred to in subsection (1) shall not include revenues or other moneys that are payable by or under an Ordinance into some other fund established for a specific purpose.

Withdrawal from Consolidated Fund or other public account

99.—(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 Ordinance; or

(b) where the issue of those moneys has been authorised by an Appropriation Ordinance, a Supplementary Appropriation Ordinance, or as provided in section 102 or 103.

(2) No moneys shall be withdrawn from any public fund of St Helena other than the Consolidated Fund, unless the issue of those moneys has been authorised by or under an Ordinance.

Annual Estimates

100.—(1) The Financial Secretary shall cause to be prepared and laid before the Legislative Council before the beginning of each financial year (or as soon as practicable thereafter) Estimates of revenue and expenditure of the Government of St Helena for that financial year.

(2) Notwithstanding subsection (1), the Financial Secretary may cause to be prepared and laid before the Legislative Council—

(a) fiscal and monetary programmes and plans for economic and social development;

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

(c) estimates of non-financial outputs.

Appropriation Bill

101.  The Financial Secretary shall introduce into the Legislative Council an Appropriation Bill which includes the heads of expenditure contained in the Estimates referred to in section 100(1) (other than expenditure authorised by this Constitution or any other law) to authorise the issue from the Consolidated Fund of the sums necessary to meet that expenditure and to appropriate those sums for the purposes specified in the Bill.

Authorisation of expenditure in advance of appropriation

102.—(1) Subject to subsections (3) and (4), if the Appropriation Ordinance for any financial year has not come into force by the beginning of that financial year, the Legislative Council may, by resolution, empower the Financial Secretary to authorise, consistently with any law, the withdrawal of moneys from the Consolidated Fund, or any other fund established by or under an Ordinance for a specific purpose, in order to meet expenditure necessary to carry on the services or projects of the Government, until—

(a) the expiration of four months from the beginning of that financial year; or

(b) the coming into force of the Appropriation Ordinance for that financial year,

whichever is the earlier.

(2) Any amounts authorised to be withdrawn under subsection (1) shall be set off against the amounts provided in the Appropriation Ordinance in respect of that expenditure.

(3) Any amounts authorised to be withdrawn from the Consolidated Fund under subsection (1) shall, subject to subsection (4), be restricted to one third of the aggregate of the sums provided for in the Appropriation Ordinance and any Supplementary Appropriation Ordinance for the previous financial year.

(4) If, by reason of the dissolution of the Legislative Council or because of circumstances certified by the Governor, acting with the approval of a Secretary of State, to be exceptional and beyond his or her control, no Appropriation Ordinance for a financial year has come into force before the expiration of four months from the beginning of that financial year—

(a) the period of four months from the beginning of that financial year referred to in subsection (1) shall be extended until one month after the Council first meets after the expiry of that period; and

(b) the fraction of one third referred to in subsection (3) shall be increased to the proportion of the financial year represented by the extended period referred to in paragraph (a).

Special Warrants

103.—(1) The Governor, acting on the recommendation of the Financial Secretary and after consulting the Executive Council, if satisfied that there is an urgent and unforeseen need for expenditure for which no other provision exists, may issue a Special Warrant authorising the Financial Secretary to make payments to meet that expenditure out of the Consolidated Fund, up to the amount specified in the warrant; and such warrant shall constitute an appropriation of that amount.

(2) Notification of every Special Warrant shall be laid before the Legislative Council by the Financial Secretary on the first sitting day not less than ten days after the date of its issue.

Withdrawal Warrants

104.—(1) The Governor, acting on the recommendation of the Financial Secretary and after consulting the Executive Council, if satisfied that financial exigencies so require, may issue a Withdrawal Warrant authorising the limitation or suspension of appropriated expenditure, to the extent specified in the warrant.

(2) Notification of every Withdrawal Warrant shall be laid before the Legislative Council by the Financial Secretary on the first sitting day not less than ten days after the date of its issue.

Supplementary Estimates

105.  If in the course of any financial year it is found that the amount appropriated for any purpose is insufficient or that a need has arisen for expenditure for a purpose for which no amount has been appropriated, a supplementary Estimate showing the sums required shall be laid before the Legislative Council by the Financial Secretary; 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 Council 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

106.—(1) Where 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 or for a purpose for which no moneys have been 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 Council and referred to the Public Accounts Committee.

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

(3) On receiving any report of the Public Accounts Committee issued under subsection (2) the Legislative Council may, by resolution, allow the excess or the amount expended but not appropriated to stand charged to public funds.

Lapse of appropriations

107.  The appropriations made by the Appropriation Ordinance or any Supplementary Appropriation Ordinance or by a Special Warrant issued under section 103 for any financial year shall lapse at the end of that financial year, unless otherwise provided by Ordinance.

Public debt

108.—(1) All debt charges for which the Government of St Helena is liable shall be a charge on the Consolidated Fund.

(2) For the purposes of this section, debt charges include interest, the repayment or amortisation of debt, and the costs, charges and expenses incidental to the management of debt.

Annual statement of accounts

109.—(1) The Financial Secretary shall, as soon as practicable after the end of each financial year, and in accordance with such other requirements as may be prescribed by a law—

(a) cause to be prepared for submission to the Chief Auditor a statement of accounts reflecting the financial operations of the Consolidated Fund and any other public fund or account for that financial year (in this Constitution referred to as the “annual statement of accounts”); and

(b) submit the annual statement of accounts to the Chief Auditor.

(2) The Chief Auditor, in accordance with such other requirements as may be prescribed by a law, shall audit the annual statement of accounts within six months of receiving it (or such longer period as the Governor may authorise in exceptional circumstances), and shall return it, together with the Chief Auditor’s report and annual management letter, to the Financial Secretary.

(3) The Financial Secretary shall lay the audited annual statement of accounts and its attachments received under subsection (2) before the Legislative Council on its next sitting day not less than ten days after receiving them.

The Chief Auditor

110.—(1) There shall be a Chief Auditor for St Helena.

(2) Power to make appointments to the office of Chief Auditor is vested in the Governor, acting in his or her discretion and with the approval of a Secretary of State.

(3) The Chief Auditor shall be appointed for the term specified in the instrument of appointment.

(4) Power to remove the Chief Auditor from office is vested in the Governor, acting in accordance with subsections (5) to (7).

(5) The Governor shall remove the Chief Auditor from office if—

(a) the Chief Auditor is found guilty of a criminal offence carrying a penalty of more than six months’ imprisonment regardless of whether a lesser sentence is imposed; or

(b) the Chief Auditor 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.

(6) If the Legislative Council by resolution addressed to the Governor resolves that the Chief Auditor is unable to perform the functions of his or her office due to misconduct, incapacity or incompetence—

(a) the Governor shall appoint a tribunal which shall consist of a chairman and two other members; but the chairman and at least one of the other members shall be a serving or former judge of a superior court in some part of the Commonwealth or in Ireland; and

(b) the tribunal shall inquire into the matter and report on the facts thereof to the Governor and advise the Governor whether or not the Chief Auditor should be removed from office for misconduct, incapacity or incompetence.

(7) If the tribunal appointed in accordance with subsection (6) advises the Governor that the Chief Auditor should be removed from office then the Governor shall remove him or her from office.

(8) If the question of removing the Chief Auditor from office has been referred to a tribunal under subsection (6), the Governor, acting in his or her discretion, may suspend the Chief Auditor from performing the functions of that office and may at any time revoke such suspension, and in any case such suspension shall cease to have effect if the tribunal advises the Governor that the Chief Auditor should not be removed from office.

(9) The terms and conditions of employment or engagement including the remuneration of the Chief Auditor shall be set from time to time by a resolution of the Legislative Council.

(10) The remuneration of the Chief Auditor shall not be diminished during his or her continuance in office, and shall be charged on and paid out of the Consolidated Fund.

Functions of Chief Auditor

111.—(1) In addition to the other functions conferred on the Chief Auditor by this Constitution, the Chief Auditor shall have the following functions—

(a) to promote public accountability in the public administration of St Helena;

(b) to act as adviser to the Public Accounts Committee;

(c) to undertake any function conferred on the Chief Auditor by or under any Ordinance; and

(d) to do anything incidental or conducive to any of the Chief Auditor’s functions.

(2) The Chief Auditor, and any person acting under his or her authority, shall have access to all books, records, reports and other documents relating to the financial operations of the Government of St Helena.

(3) In the exercise of his or her functions, the Chief Auditor, and any person acting under his or her authority, shall act independently and shall not be subject to the direction or control of the Governor, the Executive Council or any other person or authority.

Borrowing or lending by Government of St Helena

112.—(1) Subject to this Constitution, the Government of St Helena may borrow from any source.

(2) The Government of St Helena shall not issue a guarantee or indemnity nor raise a loan on behalf of itself or any other public institution, authority or person except—

(a) as authorised by or under an Ordinance; and

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

(3) An Ordinance referred to in subsection (2)(a) shall provide that the terms and conditions of the guarantee, indemnity or loan shall be laid before the Legislative Council and shall not come into operation unless they have been approved by a resolution of the Council.

(4) The Financial Secretary shall, at such times as the Legislative Council may determine, cause to be presented to the Council 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) compliance with the terms of the loan.

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

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

(7) For the purposes of this section, the expression “loan” includes any money lent or given to or by the Government of St Helena 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 purposes 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), (3), (5) and (6), subject to such conditions as it may so prescribe.

PART 9 COMPLAINTS COMMISSIONER

Complaints Commissioner

113.—(1) The Governor, acting in his or her discretion, may from time to time appoint a Complaints Commissioner to investigate, in accordance with any Ordinance enacted pursuant to section 60, any complaint of maladministration in the government of St Helena or such other matters as may be prescribed by Ordinance.

(2) No person shall be qualified for appointment as a Complaints Commissioner if he or she is a Member of the Legislative Council or an officer of the St Helena Public Service.

(3) A Complaints Commissioner shall vacate office—

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

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

(c) if he or she becomes a Member of the Legislative Council or is appointed to hold or act in any office in the St Helena Public Service; 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 the office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour.

Functions of Complaints Commissioner

114.—(1) A Complaints Commissioner shall have such functions, powers and jurisdiction as may be prescribed by Ordinance.

(2) In the investigation of any complaint or other matter, a Complaints Commissioner shall act independently and shall not be subject to the direction or control of the Governor, the Executive Council or any other person or authority.

PART 10 MISCELLANEOUS

Interpretation

115.  In this Chapter, unless it is otherwise provided or required by the context—

“Ascension” means Ascension Island;

“breach”, in relation to any provision of this Chapter, includes a failure to comply with that provision, and cognate expressions shall be construed accordingly;

“Consolidated Fund” means the Fund established by section 98;

“court” means any subordinate court, the Supreme Court or the Court of Appeal, and includes Her Majesty in Council;

“disciplinary law”, in relation to a disciplined force, means the law regulating the discipline of that force;

“disciplinary offence” means an offence against the disciplinary law;

“disciplined force” means any police force of St Helena, any prison service of St Helena, any fire service of St Helena, any naval, military or air force raised in St Helena under the law of St Helena, or any visiting force;

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

“functions” include powers and duties;

Gazette” means the St Helena Government Gazette;

“judge” means the Chief Justice or another judge of the Supreme Court, the President of the Court of Appeal, a Justice of Appeal, an acting judge of the Supreme Court, or an Acting Justice of Appeal;

“judicial officer” means a justice of the peace, a judge of a subordinate court, a Coroner or other person who is authorised to exercise the powers of a judge of a subordinate court;

“law” means law in force in St Helena, and includes an Ordinance, and any instrument made under an Ordinance, and any other instrument having the force of law and any unwritten rule of law, and “lawful” and “lawfully” shall be construed accordingly;

“legal representative” means a person who—

(a)

is entitled to practise before the court or other tribunal or authority exercising jurisdiction or power in respect of a person who is arrested, detained, or charged with a criminal offence or is a party to any other proceeding; and

(b)

has an effective opportunity to represent that person—

(i)

by appearing before that court or other tribunal or authority at the hearing of the proceeding or the process through which it is exercising that jurisdiction or power, in St Helena or in any place outside St Helena where it may lawfully sit; or

(ii)

in the case of a proceeding in the Supreme Court or the Court of Appeal when sitting in a place outside St Helena, by participating in that proceeding by teleconference or other means of electronic, oral or written communication;

“meeting”, in relation to the Legislative Council, means the sitting or sittings of the Council commencing when the Council first meets at a time and place determined or appointed under section 61 and terminating when the Council is adjourned sine die or to a time and place so determined or appointed for a subsequent meeting, or is dissolved;

“member”, in relation to a disciplined force, includes any person who, under the disciplinary law, is subject to that discipline;

“minor” means a person who has not attained the age of eighteen years or such other age as may be prescribed for the purposes of this Chapter by any other law;

“officer of the St Helena Public Service” means the holder of any office in the St Helena Public Service and any other employee of the Public Service (except a casual worker), and includes a person appointed to act as an officer of the St Helena Public Service;

“Ordinance” means a law made by a Legislature in and for St Helena;

“period of public emergency” means any period during which—

(a)

there is, in or affecting St Helena, a war or other public emergency threatening the life of the nation; and

(b)

a proclamation of a state of emergency is in force under a law;

“St Helena Public Service” means the service of the Crown in a civil capacity in respect of the government of St Helena, and includes service as a member of any police force, prison service or fire service of St Helena; but does not include service as a judge, a judicial officer or a Complaints Commissioner, or service as a member of the Legislative Council, a Council Committee, the Executive Council, the Judicial Service Commission, the Public Accounts Committee, the Advisory Committee on the Prerogative of Mercy or, unless otherwise provided by a law, of any other public authority;

“St Helenian status” means St Helenian status as provided for under the Immigration Control Ordinance or any Ordinance amending or replacing that Ordinance;

“sitting”, in relation to the Legislative Council, means a period during which the Council is sitting continuously without adjournment and includes any period during which the Council is in committee of the whole, and “sitting day” shall be construed accordingly;

“subordinate court” means a court of St Helena subordinate to the Supreme Court that has been established by Ordinance, and includes the exercise of any power or jurisdiction in relation to an inquiry conferred on a Coroner by the Coroners Ordinance or any Ordinance amending or replacing that Ordinance;

“Tristan da Cunha” means the Island of Tristan da Cunha, Gough Island, Nightingale Island and Inaccessible Island;

“visiting force” means any naval, military or air force raised in, or under the law of, a country other than St Helena, one or more members of which are lawfully in St Helena while on service in that capacity;

“wrongfully removed or retained child” means a child under the age of sixteen years who has been wrongfully removed to or retained in the territory of a state that is a contracting party to the Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980.

References to the holder of an office to include a person acting in the office

116.  In this Chapter, unless it is otherwise provided or required by the context, a reference to the holder of an office by the term designating his or her office shall be construed as including a reference to any person acting in that office or, to the extent of his or her authority, otherwise performing the functions of that office.

Power to amend and revoke instruments, etc

117.—(1) Any power conferred by this Chapter to make any subsidiary instrument or to give any instructions or directions shall be construed as including a power exercisable in like manner to amend or revoke any such instrument, instructions or directions.

(2) For the purposes of this section, “subsidiary instrument” means any proclamation, regulation, order, rule or other like instrument having the force of law.

Appointments

118.—(1) Where any person has vacated any office (including any seat in the Legislative Council) established by this Chapter, he or she may, if qualified, again be appointed or elected or otherwise selected to hold that office in accordance with this Chapter.

(2) Where a power is conferred by this Chapter on any person to make any appointment to any office, a person may be appointed to that office even though some other person may be holding that office, when that other person is on leave of absence pending relinquishment of that office; and where two or more persons are holding the same office by reason of an appointment made in pursuance of this subsection, then, for the purposes of any function conferred on the holder of that office, the person last appointed to that office shall be deemed to be the sole holder of the office.

(3) In this Chapter, unless it is otherwise provided or required by the context, any reference to power to make appointments to an office shall be construed as including reference to power to make appointments on promotion and transfer to that office and power to appoint a person to act in that office during any period when it is vacant or the holder of it is unable (whether by reason of absence or infirmity of body or mind or any other cause) to perform the functions of that office.

(4) Where by this Chapter 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 it 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 into question in any court on the grounds that the holder of the office is not unable to perform the functions of the office.

Removal from office

119.  References in this Chapter to the power to remove an officer of the St Helena Public Service from his or her office shall be construed as including references 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 in the Public Service and to determine whether any such contract shall or shall not be renewed.

Resignations

120.—(1) Any person who is appointed to any office established by or under this Chapter may resign from that office by writing under his or her hand addressed to the person or authority by whom he or she was appointed.

(2) The resignation of any person from any office established by or under this Chapter takes effect when the writing signifying the resignation is received by the person or authority to whom it is addressed or by any other person authorised by that person or authority to receive it.