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The St Helena, Ascension and Tristan da Cunha Constitution Order 2009

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CHAPTER 2ASCENSION

PART 1PARTNERSHIP VALUES

The partnership values

121.—(1) The partnership between the United Kingdom and Ascension shall continue to be based on the following values—

(a)good faith;

(b)the rule of law;

(c)good government;

(d)sound financial management;

(e)the impartial administration of justice;

(f)the impartiality of the Ascension Public Service;

(g)the maintenance of public order;

(h)compliance with applicable international obligations of the United Kingdom and of Ascension; and

(i)the maintenance of international peace and security and the right of individual or collective self-defence.

(2) The relationships between each of Ascension, St Helena and Tristan da Cunha shall continue to be based on the values listed in subsection (1) and a willingness to have due regard for one another’s interests.

(3) In exercising their responsibilities and powers, all organs of government in Ascension have a duty to give effect to the partnership values.

(4) As the partnership values are statements of political principle, no court shall find that any act or omission of an organ of government was unlawful on account of a failure to give effect to the partnership values.

(5) Subject to subsection (4), the Supreme Court may enquire, but only on an application for judicial review, whether or not any organ of government (other than the Governor) has acted rationally and with procedural propriety in relation to giving effect to a partnership value.

PART 2FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

Fundamental rights and freedoms of the individual

122.  Whereas every person in Ascension is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, without distinction of any kind, such as sex, sexual orientation, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, age, disability, birth or other status, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following—

(a)life, liberty, security of the person and the protection of the law;

(b)freedom of conscience, of expression and of assembly and association;

(c)protection for his or her private and family life, the privacy of his or her home and other property; and

(d)protection from deprivation of property save in the public interest and on payment of fair compensation,

this Part shall afford protection to these rights and freedoms, and to related rights and freedoms, subject to the limitations contained in this Part, being limitations designed to ensure that the enjoyment of the protected rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

Protection of right to life

123.—(1) No person shall be deprived intentionally of his or her life.

(2) A person shall not be regarded as having been deprived of his or her life in breach of this section if he or she dies as a result of the use, to such extent and in such circumstances as are permitted by law, of force which is no more than absolutely necessary—

(a)for the defence of any person from violence;

(b)in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)for the purpose of suppressing a riot, insurrection or mutiny,

or if he or she dies as a result of a lawful act of war.

Protection from inhuman treatment

124.  No person shall be subjected to torture or to inhuman or degrading treatment or punishment.

Protection from slavery and forced labour

125.—(1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced or compulsory labour.

(3) For the purposes of this section, “forced or compulsory labour” does not include—

(a)any labour required of a member of a disciplined force as part of his or her duties or, in the case of a person who has conscientious objections to service in a naval, military or air force, any labour that the law requires that person to perform in place of such service;

(b)labour required of any person while he or she is lawfully detained that is reasonably necessary in the interests of hygiene or for the maintenance of the place in which he or she is detained;

(c)any labour required for the purpose of dealing with any situation arising during a period of public emergency or at a time when any other emergency or calamity threatens the well-being of the community, to the extent that the requiring of such labour is reasonably justifiable for that purpose; or

(d)any labour required in consequence of the sentence or order of a court.

Protection of right to personal liberty

126.—(1) No person shall be deprived of his or her personal liberty save as may be authorised by law in any of the following cases—

(a)as a result of his or her unfitness to plead to a criminal charge;

(b)in execution of the sentence or order of a court, whether established for Ascension or some other country, in respect of a criminal offence of which he or she has been convicted;

(c)in execution of an order of a court punishing him or her for contempt of that court or of another court or of a tribunal;

(d)in execution of the order of a court made in order to secure the fulfilment of any obligation imposed on him or her by law; but no person shall be deprived of his or her liberty merely on the ground of inability to fulfil a contractual obligation;

(e)in order to bring him or her before a court in execution of the order of a court;

(f)on reasonable suspicion of his or her having committed or of being about to commit a criminal offence under any law;

(g)in the case of a minor—

(i)under the order of a court or in order to bring him or her before a court; or

(ii)with the consent of the minor’s parent or guardian, for his or her education or welfare during any period ending not later than the date when the minor attains the age of majority or such lower age as may be provided by law;

(h)in order to prevent the spread of an infectious or contagious disease;

(i)in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, in order to care for or treat him or her or for the protection of the community; or

(j)in order to prevent the unlawful entry of that person into Ascension, or to effect the expulsion, extradition or other lawful removal of that person from Ascension, or to restrict that person while he or she is being conveyed through Ascension in the course of his or her extradition or removal from one country to another as a wrongfully removed or retained child or as a convicted prisoner.

(2) Any person who is arrested or detained shall be informed promptly, orally and in writing, in a language that he or she understands, of the reason for his or her arrest or detention.

(3) Any person who is arrested or detained has the right, at any stage and at his or her own expense, to retain and instruct without delay a legal representative of his or her own choice, and to communicate privately with him or her, and in the case of a minor he or she shall also be given a reasonable opportunity to communicate with his or her parent or guardian; but when the person who is arrested or detained is unable to retain a legal representative at his or her own expense and the interests of justice so require, he or she shall be permitted to be represented by, and communicate privately with, a legal representative at the public expense.

(4) Every person who is arrested shall be informed, as soon as he or she is brought to a police station or other place of custody, of his or her rights under subsection (3); and he or she shall also have the right, and shall be informed at the same time that he or she has the right, to remain silent and to have one person informed by the quickest practicable means of his or her arrest and whereabouts.

(5) The exercise of the rights of communication conferred by subsections (3) and (4) may be delayed for such reasonable time as is provided by law, to the extent that the law in question is necessary in a democratic society for the prevention and detection of criminal offences.

(6) Any person who is arrested or detained—

(a)in order to bring him or her before a court in execution of the order of a court; or

(b)on reasonable suspicion of his or her having committed or being about to commit a criminal offence under any law,

and who is not released, shall be brought without undue delay before a court.

(7) When a person is brought before a court in accordance with subsection (6)(b), the court, without prejudice to any further proceedings which may be brought against him or her, shall, unless there is good reason for the person’s continued detention, release the person either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that the person appears at a later date for trial or for proceedings preliminary to trial.

(8) Every person who is arrested or detained shall be entitled to take proceedings by which the lawfulness of his or her detention shall be decided speedily by a court and his or her release ordered if the detention is not lawful.

(9) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation for such unlawful arrest or detention from that other person, from any person or authority on whose behalf that other person was acting or from them both; but a judge or a judicial officer, or an officer of a court or a police officer acting in pursuance of the order of a judge or a judicial officer, shall not be personally liable to pay compensation under this subsection in respect of anything done by him or her in good faith in the discharge of the functions of his or her office, and any liability to pay any such compensation shall be a liability of the Crown.

(10) For the purposes of subsection (1)(b), a person charged with a criminal offence in respect of whom a special verdict has been returned that he or she committed the act or made the omission constituting the offence but was insane at the time shall be regarded as a person who has been convicted of a criminal offence, and the detention of that person in consequence of such a finding shall be regarded as detention in execution of the order of a court.

Provisions to secure a fair trial

127.—(1) If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair and public hearing within a reasonable time by an independent and impartial court established by law.

(2) Every person who is charged with a criminal offence—

(a)shall be presumed to be innocent until he or she is proved or has pleaded guilty;

(b)shall be informed promptly, in a language that he or she understands and in detail, of the nature of the offence charged;

(c)shall be given adequate time and facilities for the preparation of his or her defence;

(d)shall be permitted to defend himself or herself before the court in person or, at his or her own expense, by a legal representative of his or her own choice or, if unable to retain a legal representative at his or her own expense and the interests of justice so require, by a legal representative at the public expense;

(e)shall be given facilities to examine in person or by his or her legal representative the witnesses called before the court by the prosecution, and to obtain the attendance before the court and carry out the examination of witnesses to testify on his or her behalf on the same conditions as those applying to witnesses called by the prosecution; and

(f)shall be permitted to have without payment the assistance of an interpreter if he or she cannot understand the language used at his or her trial,

and, except with his or her own free consent, the trial shall not take place in his or her absence, unless he or she so behaves in the court as to render the continuance of the proceedings in his or her presence impracticable and the court has ordered him or her to be removed and the trial to proceed in his or her absence.

(3) When a person is tried for any criminal offence, he or she or any person authorised by him or her in that behalf shall, if he or she (the accused person) so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy of any record of the proceedings made by or on behalf of the court.

(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.

(5) No person who shows that he or she has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, save upon the order of a higher court in the course of appeal or review proceedings relating to the conviction or acquittal.

(6) No person shall be tried for a criminal offence if he or she shows that he or she has been pardoned for that offence.

(7) No person who is tried for a criminal offence shall be compelled to give evidence at his or her trial.

(8) Every person who has been convicted by a court of a criminal offence shall have the right to appeal to a higher court against his or her conviction or his or her sentence or both; but—

(a)nothing contained in any law shall be held to breach this subsection—

(i)to the extent that it precludes an appeal by a person against his or her conviction of an offence if he or she pleaded guilty to that offence at trial; or

(ii)to the extent that it makes reasonable provision with respect to the grounds on which any such appeal may be made or with respect to the practice and procedure to be observed in relation to the making, hearing and disposal of any such appeal; and

(b)this subsection shall not apply in relation to the conviction of a person by a higher court, or in relation to his or her sentence upon such conviction, if he or she was convicted by that court on an appeal against his or her acquittal by a lower court.

(9) When a person has, by a final decision of a court, been convicted of a criminal offence and, subsequently, his or her conviction has been quashed, or he or she has been pardoned, on the ground that a newly-disclosed fact shows that there has been a miscarriage of justice, he or she shall be compensated out of public funds for any punishment that he or she has suffered as a result of the conviction unless it is proved that the non-disclosure in time of that fact was wholly or partly his or her fault.

(10) For the determination of the existence or extent of his or her civil rights and obligations, every person shall have the right to a fair hearing within a reasonable time before an independent and impartial court, tribunal or other authority established by law.

(11) All proceedings for the determination of the existence or extent of any person’s civil rights or obligations before any court or other authority, including the announcement of the decision of the court or other authority, shall be held in public.

(12) Nothing in subsection (1) or (11) shall prevent a court or other authority from excluding from criminal or civil proceedings persons other than the parties thereto and their legal representatives, or forbidding the publication of the names of the parties or other details of the evidence or of the decision to such an extent as the court or other authority—

(a)is empowered by law to do and considers necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interim proceedings, or in the interests of the welfare of minors or the protection of the private lives of persons concerned in the proceedings; or

(b)is empowered or required by law to do in the interests of defence, public safety, public order or public morality.

(13) Nothing contained in or done under the authority of any law shall be held to breach—

(a)subsection (2)(a), to the extent that the law in question imposes on any person charged with a criminal offence the burden of proving particular facts;

(b)subsection (2)(e), to the extent that the law in question imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; or

(c)subsection (5), to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force; but any court so trying such a member and convicting him or her shall in sentencing him or her to any punishment take into account any punishment awarded him or her under that disciplinary law.

Protection of right of prisoners to humane treatment

128.—(1) All persons deprived of their liberty (in this section referred to as “prisoners”) shall have the right to be treated with humanity and with respect for the inherent dignity of the human person.

(2) Every unconvicted prisoner shall be entitled to be treated in a manner appropriate to his or her status as such.

(3) Every juvenile prisoner shall be treated in a manner appropriate to his or her age and legal status and, if he or she is an unconvicted prisoner and unless he or she is earlier released, shall have any criminal proceedings against him or her pursued with the greatest possible expedition.

(4) Save where the interests of defence, public safety, public order, public morality, public health or the administration of justice otherwise require, or the facilities available for the detention of prisoners do not permit, or segregation would be detrimental to the well-being of a prisoner, unconvicted prisoners shall be segregated from convicted prisoners, and juvenile prisoners shall be segregated from adult prisoners.

Protection for private and family life and for privacy of home and other property

129.—(1) Every person shall have the right to respect for his or her private and family life, his or her home and his or her correspondence or other means of communication, and, except with his or her own free consent, no person shall be subjected to the search of his or her person or property or the entry by others on his or her premises.

(2) Nothing contained in or done under the authority of any law shall be held to breach this section to the extent that the law in question is necessary in a democratic society—

(a)in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development of mineral resources, or the development or use of any other property in such a manner as to promote the public benefit;

(b)to protect the rights and freedoms of other persons;

(c)to enable an officer or agent of the Government of Ascension or any public authority to enter on the premises of any person in order to inspect those premises or anything on them for the purpose of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government of Ascension or that public authority;

(d)to authorise, for the purpose of enforcing the judgment or order of a court, the search of any person or property by order of a court or the entry upon any premises by such order; or

(e)for the purpose of preventing or detecting breaches of the criminal, customs or immigration law.

Protection of right to marry, and of spouses’ and children’s rights

130.—(1) Every man and woman of marriageable age (as determined by or under any law) shall have the right to marry and found a family.

(2) No person shall be compelled to marry, that is to say, to do so without his or her free and full consent.

(3) Nothing contained in or done under the authority of any law shall be held to breach subsection (1) to the extent that the law in question is necessary in a democratic society—

(a)in the interests of public order, public morality or public health;

(b)to regulate, in the public interest, the procedures and modalities of marriage; or

(c)for the protection of the rights and freedoms of others.

(4) Spouses shall be entitled to equal rights and shall be subject to equal responsibilities as between themselves and as regards their children both during marriage and, if the marriage is dissolved, thereon and thereafter, but this equality of rights and responsibilities shall be subject to such arrangements or measures as may be agreed, or as may be ordered by a court.

(5) Every child shall have the right to such measures of protection as are required by his or her status as a minor, on the part of his or her family, society and the Government of Ascension, and which are appropriate and proportionate to the circumstances of Ascension.

Protection of freedom of conscience

131.—(1) Except with his or her own free consent, no person shall be hindered in his or her enjoyment of his or her freedom of conscience, which includes freedom of thought and of religion, freedom to change his or her religion or belief, and freedom, either alone or in community with others and either in public or in private, to manifest and propagate his or her religion or belief in worship, teaching, practice and observance.

(2) Except with his or her own free consent (or, if he or she is a minor, the consent of his or her parent or guardian), no person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a religion other than his or her own.

(3) No religious community or denomination shall be prevented from or hindered in providing religious instruction for persons of that community or denomination in the course of any education provided by it whether or not it is in receipt of any government subsidy, grant or other form of financial assistance designed to meet, in whole or in part, the cost of such education.

(4) No person shall be compelled to take any oath which is contrary to his or her religion or belief or to take any oath in a manner which is contrary to his or her religion or belief.

(5) Nothing contained in or done under the authority of any law shall be held to breach this section to the extent that the law in question is necessary in a democratic society—

(a)in the interests of defence, public safety, public order, public morality or public health; or

(b)for the protection of the rights and freedoms of other persons, including the right of any person to observe and practise his or her religion or belief without the unsolicited intervention of adherents of any other religion or belief.

(6) References in this section to a religion shall be construed as including references to a religious denomination, and cognate expressions shall be construed accordingly.

Protection of right to education

132.—(1) This section is without prejudice to section 131.

(2) Every child of the appropriate age, as provided by law, shall be entitled to receive primary education which shall, subject to subsection (3), be free.

(3) Every person who is the parent or legal guardian of a child shall be entitled to have his or her child (of whatever age) educated, at his or her own expense unless a law otherwise provides, in a private school (that is to say, a school other than one established by the Government of Ascension or a public authority) and, in such a school, to ensure the religious and moral education of his or her child in accordance with his or her own convictions.

(4) Nothing contained in or done under the authority of any law shall be held to breach subsection (3) to the extent that the law in question is necessary in a democratic society for the purpose of making provision requiring private schools, as a condition of their being allowed to operate and on terms no more onerous than are applicable to schools established by the Government of Ascension or a public authority, to satisfy—

(a)such minimum educational standards (including standards relating to the qualifications of teaching staff and other staff) as may be prescribed by or under that or any other law; and

(b)such minimum standards imposed in the interests of public order, public morality or public health as may be so prescribed.

Protection of freedom of expression

133.—(1) Except with his or her own free consent, no person shall be hindered in the enjoyment of his or her freedom of expression.

(2) For the purposes of this section a person’s freedom of expression includes his or her freedom to hold opinions without interference, his or her freedom to receive information and ideas without interference, his or her freedom to disseminate information and ideas without interference (whether the dissemination be to the public generally or to any person or class of persons) and his or her freedom from interference with his or her correspondence or other means of communication.

(3) Nothing contained in or done under the authority of any law shall be held to breach this section to the extent that the law in question is necessary in a democratic society—

(a)in the interests of defence, public safety, public order, public morality or public health;

(b)for the protection of the reputations, rights and freedoms of other persons, or the private lives of persons concerned in legal proceedings or proceedings before any other tribunal or authority, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating telephony, posts, telegraphy, electronic communications, broadcasting or public shows; or

(c)to impose restrictions on an officer of the Ascension Public Service for the proper performance of his or her functions.

Protection of freedom of assembly and association

134.—(1) Except with his or her own free consent, no person shall be hindered in the enjoyment of his or her freedom of peaceful assembly and association, that is to say, his or her right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the promotion and protection of his or her interests.

(2) Nothing contained in or done under the authority of any law shall be held to breach this section to the extent that the law in question is necessary in a democratic society—

(a)in the interests of defence, public safety, public order, public morality or public health;

(b)for the protection of the rights and freedoms of other persons; or

(c)to impose on officers of the Ascension Public Service restrictions that interfere as little as is practicable with the rights and freedoms conferred by this section, for the purposes of safeguarding the impartiality of the Public Service, the discipline of the police force or of any prison service or the provision of public services that are essential to public order, public safety or public health.

Protection from deprivation of property

135.—(1) No property of any description shall be compulsorily taken possession of, and no interest in or right to or over property of any description shall be compulsorily acquired, except in accordance with a law and where the following conditions are satisfied—

(a)the taking of possession or acquisition is in the public interest; and

(b)there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right to or over the property; and

(c)provision is made by a law—

(i)for the prompt payment of adequate compensation; and

(ii)securing to any person having an interest in or right to or over the property a right of access to the Supreme Court, whether direct or on appeal from another tribunal or authority, for the determination of his or her interest or right, the legality of the taking of possession or acquisition and the amount of any compensation to which he or she is entitled, and for the purpose of obtaining prompt payment of that compensation.

(2) No person who is entitled to compensation under this section shall be prevented from remitting, within a reasonable time after he or she has received any amount of that compensation, the whole of that amount (free from any deduction, charge or tax imposed by public authority in respect of its remission) to any country of his or her choice outside Ascension.

(3) Without prejudice to the generality of the expression “in the public interest” in subsection (1), nothing contained in or done under the authority of any law shall be held to breach this section to the extent that the law in question makes provision—

(a)for controlling the use of any property, interest or right in accordance with the general interest; or

(b)for taking possession of or acquiring any property, interest or right—

(i)as a consequence of a breach of the law;

(ii)to secure the payment of taxes or other like impositions; or

(iii)for the administration or enforcement of the law regulating the private civil rights and obligations of persons in respect of property.

Protection from arbitrary deprivation of St Helenian status or of British citizenship

136.—(1) No person with St Helenian status shall be arbitrarily deprived of that status, whether by legislation or otherwise.

(2) As everyone has the right to a nationality, no person shall be arbitrarily deprived of his or her British citizenship, whether by legislation or otherwise.

Protection from discrimination

137.—(1) Subject to subsection (4), no law shall make any provision which is discriminatory either of itself or in its effect.

(2) Subject to subsections (4) and (6), no person shall be treated in a discriminatory manner by any organ or officer of the executive or judicial branches of government or any person acting in the performance of the functions of the Ascension Public Service or any public authority.

(3) In this section, the expression “discriminatory” means affording different treatment to different persons on any ground such as sex, sexual orientation, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, age, disability, birth or other status.

(4) Nothing contained in or done under the authority of any law shall be held to breach this section to the extent that it has an objective and reasonable justification and there is a reasonable proportion between the provision of law in question or, as the case may be, the thing done under it and the aim which that provision or the thing done under it seeks to realise.

(5) No person shall be treated in a discriminatory manner in respect of access to any of the following places to which the general public have access, namely, shops, hotels, restaurants, eating-houses, licensed premises, places of entertainment or places of resort; but the proprietor of such a place has a duty to provide amenities and equipment facilitating the access of disabled persons only to the extent provided by a law.

(6) For the purposes of subsection (2), the exercise, in relation to a person, of any discretion to institute, conduct or discontinue criminal or civil proceedings in any court shall not in itself be held to breach this section.

Derogations from fundamental rights and freedoms under emergency powers

138.  Nothing contained in or done under the authority of any law shall be held to breach any of the provisions of this Part other than sections 123, 124, 125(1), 127(2)(a), 127(4), 127(5), 127(6) and 127(7) to the extent that the law in question authorises the taking during any period of public emergency of measures that are strictly required for dealing with the situation that exists in Ascension during that period.

Protection of persons detained under emergency laws

139.—(1) When a person is detained by virtue of a law referred to in section 138, the following provisions shall apply—

(a)he or she shall, as soon as reasonably possible, and in any case not more than seven days after the start of his or her detention, be informed in detail, in a language that he or she understands, of the grounds upon which he or she is detained and furnished with a written statement, in a language that he or she understands or, if this is not reasonably practicable, in English, specifying those grounds in detail;

(b)not more than fourteen days after the start of his or her detention a notification shall be published in a public place (and as soon as possible thereafter in the Gazette) stating that he or she has been detained and setting out the provision of law by virtue of which his or her detention is authorised;

(c)not more than one month after the start of his or her detention and thereafter during the detention at intervals of not more than six months, his or her case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person appointed by the Chief Justice;

(d)he or she shall be given reasonable facilities to consult a legal representative of his or her own choice (or, if he or she is unable to retain a legal representative, such person as the tribunal may approve) who shall be permitted to make representations to the tribunal appointed for the review of his or her case; and

(e)at the hearing of his or her case by the tribunal appointed for its review he or she shall be permitted to appear in person or by a legal representative of his or her own choice or, if he or she is unable to retain a legal representative, by such person as the tribunal may approve.

(2) On any review by a tribunal of the case of a detained person in pursuance of this section, the tribunal may make recommendations concerning the necessity or expediency of continuing the detention to the authority by which it was ordered but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations.

(3) Nothing in subsection (1)(d) or subsection (1)(e) shall be construed as entitling a person to legal representation at the public expense, except when the interests of justice so require.

Enforcement of protective provisions

140.—(1) If any person alleges that any of the provisions of this Part has been, is being or is likely to be breached in relation to him or her (or, in the case of a person who is detained, if any other person alleges such a breach in relation to the detained person), then, without prejudice to any other action with respect to the same matter that is lawfully available, that person (or that other person) may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction—

(a)to hear and determine any application made by any person in pursuance of subsection (1); and

(b)to determine any question arising in the case of any person that is referred to it in pursuance of subsection (7),

and may make such declarations and orders, issue such writs and give such directions as it considers appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of this Part.

(3) The Supreme Court may decline to exercise its powers under subsection (2) if it is satisfied that adequate means of redress for the breach alleged are or have been available to the person concerned under any other law.

(4) Without prejudice to the generality of subsection (2), where, in exercise of its powers under that subsection, the Supreme Court determines that one of the provisions of this Part has been breached in relation to any person, it—

(a)may order the award to that person of such damages as the Supreme Court considers just and appropriate; or

(b)may direct the court which made the reference to it under subsection (7) (“the referring court”) to order the award to that person of such damages as that court considers just and appropriate, within such limits (if any) as the Supreme Court declares.

(5) An award of damages may not be made in pursuance of subsection (4) in respect of the making of any law but such an award may be made in respect of anything done by any organ or officer of the executive or judicial branches of government or any person acting in the performance of the functions of the Ascension Public Service or any public authority.

(6) Subsection (4) is without prejudice to section 126(9).

(7) If in any proceedings in a subordinate court any question arises as to the breach of any of the provisions of this Part, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court unless, in the opinion of the court in which the question arose, the raising of the question is merely frivolous or vexatious.

(8) If the effect of a provision of this Part is in issue in proceedings before the Supreme Court, the Court of Appeal or Her Majesty in Council, to which the Crown is not a party—

(a)the Attorney General may intervene; and

(b)the presiding judge must not hear and determine the proceedings until satisfied that the Attorney General has received notice of the proceedings and has had sufficient time to decide whether or not to intervene.

(9) Where any question is referred to the Supreme Court in pursuance of subsection (7), the Supreme Court shall give its decision upon the question and the referring court shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal to the Court of Appeal or to Her Majesty in Council, in accordance with the decision of the Court of Appeal or, as the case may be, of Her Majesty in Council.

(10) An appeal shall lie as of right to the Court of Appeal from any final determination of any application or question by the Supreme Court under this section, and an appeal shall lie as of right to Her Majesty in Council from the final determination by the Court of Appeal of the appeal in any such case; but no appeal shall lie from a determination by the Supreme Court under this section dismissing an application on the ground that it is frivolous or vexatious.

(11) The Governor may by Ordinance confer on the Supreme Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling that Court more effectively to exercise the jurisdiction conferred on it by this section.

(12) The Chief Justice or the President of the Court of Appeal, as the case requires, may make Rules of Court with respect to the practice and procedure—

(a)of the Supreme Court in relation to the jurisdiction and powers conferred on it by or under this section;

(b)of the Supreme Court or the Court of Appeal in relation to appeals under this section from determinations of the Supreme Court or the Court of Appeal; and

(c)of subordinate courts in relation to references to the Supreme Court under subsection (7),

including provisions with respect to the time within which any application, reference or appeal shall or may be made or brought.

Application of this Part to the members of a disciplined force

141.—(1) A member of—

(a)any police force of Ascension;

(b)any prison service of Ascension;

(c)any fire service of Ascension; and

(d)any naval, military or air force raised in Ascension under the law of Ascension,

who is charged with having committed an offence against the law of Ascension, other than a disciplinary offence, is entitled to the full protection of this Part.

(2) A member of a force referred to in subsection (1) who is charged with having committed a disciplinary offence is entitled to the protection of sections 123, 124 and 125.

(3) If a member of a force referred to in subsection (1) has been convicted of an offence against the law of Ascension other than a disciplinary offence, and is also convicted of a disciplinary offence arising out of the same conduct, the punishment for the first-mentioned offence must be taken into account in determining the punishment for the disciplinary offence.

(4) A member of a visiting force who is charged with having committed an offence against the law of Ascension is entitled to the full protection of this Part.

(5) A member of a visiting force who is charged in Ascension with having committed a disciplinary offence, including an offence against any criminal law of the sending State which, by virtue of a provision of the disciplinary law of that force, applies to that member while in Ascension, is entitled to the protection of sections 123, 124 and 125.

(6) In this section, “sending State”, in relation to a member of a visiting force, means the country, other than Ascension, in or under the law of which that force was raised.

Saving for certain treaties

142.  Nothing in this Part shall affect any international agreement for the time being in force between the United Kingdom and the United States of America relating to Ascension.

PART 3THE GOVERNOR

The Governor

143.—(1) There shall be a Governor of Ascension, who, subject to subsections (3) and (4), shall be the person for the time being holding or lawfully performing the functions of the office of Governor of St Helena.

(2) The Governor shall have such functions as are conferred or imposed on him or her by this Constitution or any other law and such other functions as Her Majesty may from time to time be pleased to assign to him or her through a Secretary of State, and, subject to the provisions of this Constitution and of any other law by which any such functions are conferred or imposed, shall do and execute all things that belong to his or her office according to such instructions, if any, as Her Majesty may from time to time see fit to give him or her through a Secretary of State; but no court shall enquire whether to not he or she has complied with any such instructions.

(3) No person who is acting as Governor of St Helena shall do so in relation to Ascension while the Governor is in Ascension or travelling between St Helena and Ascension.

(4) No person who is appointed as a Governor’s Deputy under section 28 shall discharge any function of the office of Governor in relation to Ascension while the Governor is in Ascension unless the Governor expressly authorises him or her to do so.

(5) In subsections (3) and (4), “the Governor” means the person holding the office of Governor.

Powers of pardon, etc

144.  The Governor may, in Her Majesty’s name and on Her Majesty’s behalf—

(a)grant to any person concerned in or convicted of any offence a pardon, either free or subject to lawful conditions;

(b)grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence;

(c)substitute a less severe form of punishment for any punishment imposed on any person for any offence; or

(d)remit the whole or part of any punishment imposed on any person for any offence or of any penalty or forfeiture otherwise due to Her Majesty on account of any offence.

Powers to dispose of land

145.  Subject to this Constitution and any other law, the Governor or any person duly authorised by him or her in writing under his or her hand may, in Her Majesty’s name and on Her Majesty’s behalf, make and execute grants and other dispositions of any rights or interests in respect of any land or other immovable property in Ascension that is vested in Her Majesty in right of the Government of Ascension.

Public seal

146.—(1) There shall be a public seal of Ascension, which shall be the public seal of St Helena.

(2) The Governor shall have custody of the public seal.

(3) The public seal may be used to seal such public documents signed by the Governor or an officer subordinate to the Governor as should be sealed with the public seal.

Constitution of offices

147.—(1) There shall be an Administrator of Ascension, who shall be appointed by the Governor, shall be an officer of the Ascension Public Service and shall have such functions as may be prescribed by any law.

(2) Subject to this Constitution and any other law, the Governor, in Her Majesty’s name and on Her Majesty’s behalf, may constitute other offices for Ascension.

PART 4THE EXECUTIVE

Executive authority

148.—(1) The executive authority of Ascension is vested in Her Majesty.

(2) Subject to this Constitution, the executive authority of Ascension shall be exercised on behalf of Her Majesty by the Governor, either directly or through the Administrator of Ascension and other officers subordinate to the Governor.

(3) Nothing in this section shall preclude persons or authorities other than the Governor from exercising such functions as are or may be conferred on them by any law.

Island Council

149.  There shall be an Island Council for Ascension, which shall be composed, and shall have such functions in relation to the government of Ascension, as may be prescribed by any law.

Attorney General

150.—(1) There shall be an Attorney General of Ascension, who, subject to subsection (3), shall be the person for the time being holding or acting in the office of Attorney General of St Helena.

(2) The Attorney General shall be the principal legal adviser to the Government of Ascension.

(3) No person who is acting as Attorney General of St Helena shall act as Attorney General in relation to Ascension while the person holding the office of Attorney General is in Ascension.

(4) The Governor may appoint a suitably qualified and experienced person to be a Crown Counsel of Ascension, and any such Crown Counsel shall be an officer of the Ascension Public Service and shall act as legal adviser to the Government of Ascension, subordinate to the Attorney General and acting under and in accordance with his or her general or special instructions.

(5) The Attorney General may, in any case in which he or she considers it desirable to do so—

(a)institute and undertake criminal proceedings against any person before any court in respect of an offence against any law;

(b)take over and continue any such criminal proceedings that have been instituted by any other person or authority; and

(c)discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or herself or any other person or authority.

(6) The powers of the Attorney General under subsection (5) may be exercised by him or her in person or by officers subordinate to him or her acting under and in accordance with his or her general or special instructions.

(7) The powers conferred on the Attorney General by subsection (5)(b) and (c) shall be vested in him or her to the exclusion of any other person or authority; but where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court.

(8) For the purposes of this section, any appeal from any determination in any criminal proceedings before any court, or any case stated or question of law reserved for the purpose of any such proceedings to any other court, shall be deemed to be part of those proceedings.

(9) In the exercise of the powers conferred on him or her by this section, the Attorney General, and any person acting under his or her authority, shall act independently and shall not be subject to the direction of control of the Governor, the Island Council or any other person or authority.

PART 5THE LEGISLATURE

Power to make laws

151.—(1) The Governor, acting after consultation with the Island Council, may make laws for the peace, order and good government of Ascension.

(2) The Governor shall not be obliged to act in accordance with the advice of the Island Council in exercising his or her powers under subsection (1), but in any case where the Governor acts contrary to the advice of the Council any member of the Council shall have the right to submit his or her views on the matter to a Secretary of State.

Disallowance of laws

152.—(1) Any law made by the Governor may be disallowed by Her Majesty through a Secretary of State.

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

(3) Section 16(1) of the Interpretation Act 1978(1) 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 by or in pursuance of that law shall have effect as from the date of the annulment as if that law had not been made.

PART 6THE ADMINISTRATION OF JUSTICE

The Courts of Ascension

153.—(1) The courts of Ascension shall be the Supreme Court of St Helena, the Court of Appeal of St Helena, and such courts subordinate to the Supreme Court as may be established by law.

(2) Her Majesty in Council continues to have such jurisdiction in respect of Ascension as is provided by law.

Independence of the judiciary

154.  The judges and judicial officers appointed to preside or sit in any court of Ascension shall exercise their judicial functions independently from the legislative and executive branches of government.

Supreme Court
Jurisdiction of Supreme Court

155.—(1) Subject to this Constitution, the Supreme Court shall have and may exercise all such jurisdiction in and in relation to Ascension as is necessary to administer the law of Ascension.

(2) Without prejudice to the generality of subsection (1), the Supreme Court shall possess and may exercise in and in relation to Ascension, subject to this Constitution and to any other law, all the jurisdiction which is vested in, or is capable of being exercised by, Her Majesty’s High Court of Justice in and in relation to England.

Sittings of Supreme Court

156.—(1) Subject to subsection (2), the Supreme Court may sit in Ascension or outside Ascension.

(2) The Chief Justice and any other judge or acting judge of the Supreme Court may hold sittings of the Court when outside Ascension, if satisfied that—

(a)a matter arising in a proceeding before the Court needs to be dealt with promptly;

(b)every party to the proceeding is able to participate, in person or through a legal representative, by teleconference or other means of electronic, oral or written communication;

(c)no injustice will result; and

(d)the course proposed is in the public interest.

(3) The Chief Justice when outside Ascension may exercise such powers of revision, variation, confirmation or setting aside of any sentence or order made by a subordinate court as are conferred on him or her by any law.

Exercise of jurisdiction of Supreme Court

157.—(1) The Chief Justice or any other judge or acting judge of the Supreme Court may hold the Supreme Court.

(2) A judge holding the Supreme Court has, in exercise of the jurisdiction of that Court, all the powers and authority of the Court, and, if not the Chief Justice, has the jurisdiction, powers, authority, privileges and immunities conferred on the Chief Justice.

(3) If, at any time, there are two or more judges who may hold the Supreme Court, each of them may hold sittings of the Court simultaneously.

(4) In this section, “Chief Justice” means the person holding the office of Chief Justice.

Court of Appeal
Jurisdiction of Court of Appeal

158.—(1) The Court of Appeal shall have jurisdiction to hear and determine such appeals from the courts of Ascension as may be prescribed by this Constitution or any other law.

(2) Except as otherwise provided by this Constitution, an appeal shall lie to the Court of Appeal from the Supreme Court—

(a)as of right, if the Supreme Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of this Constitution;

(b)as of right, or, as the case may be, with the leave of the Supreme Court, in such other cases involving the exercise of the criminal, civil or appellate jurisdiction of the Supreme Court as may be provided by this Constitution or any other law;

(c)with the leave of the Supreme Court in any other case, if in the opinion of that Court the question involved in the appeal is one which by reason of its general or public importance, or of the magnitude of the interests affected, or for any other reason, ought to be submitted to the Court of Appeal for decision; and

(d)subject to such limitations as may be provided by law, if the Court of Appeal, in any case in which it thinks fit, and at any time, grants special leave to appeal to that Court from a judgment of the Supreme Court, subject to such conditions as to security for costs or otherwise as the Court of Appeal thinks fit.

(3) In connection with any appeal from a court of Ascension, the Court of Appeal shall, subject to this Constitution and any other law, have all the powers and jurisdiction that are possessed by that court under any law; and decisions of the Court of Appeal in respect of any appeal from a court of Ascension shall, subject as aforesaid, be enforced in Ascension in the same way as decisions of that court.

Practice and procedure on appeals

159.—(1) Rules made under section 89 may fix the number of judges of the Court of Appeal who may sit for any purpose; but, subject to subsection (2)—

(a)an uneven number shall sit, which for the purposes of any final determination by the Court other than the summary dismissal of an appeal, shall not be fewer than three; and

(b)any determination by the Court on any matter (whether final or otherwise) shall, where more than one judge sits, be according to the opinion of a majority of the judges who sit for the purposes of determining that matter.

(2) If, in a circumstance referred to in section 86(6), it is not practicable for the Governor to make an appointment under section 90(3), two judges of the Court of Appeal may hear, or continue to hear, and may determine, an appeal that has been set down for hearing; but—

(a)if those judges are not in agreement about the determination of any matter arising in the course of the proceedings, the presiding judge shall decide; and

(b)if those judges are not in agreement as to whether the appeal should be allowed, the presiding judge shall discontinue the appeal, and the matter shall be required to be reheard before the Court of Appeal consisting of three or a greater uneven number of judges of the Court.

(3) Subject to subsections (1) and (2), rules made under section 89 may provide for a reference from a decision of a single judge to the Court of Appeal.

(4) Subject to subsection (5), the Court of Appeal may sit in Ascension or outside Ascension.

(5) The Court of Appeal may sit outside Ascension, if satisfied that—

(a)every party to the proceeding is able to participate, in person or through a legal representative, by teleconference or other means of electronic, oral or written communication;

(b)no injustice will result; and

(c)the course proposed is in the public interest.

General
Rules of Court

160.  Rules of Court made under section 89 shall apply in Ascension with such modifications as the President of the Court of Appeal or, as the case may be, the Chief Justice may prescribe, and in particular such Rules may regulate the practice and procedure of the Court of Appeal or the Supreme Court with respect to proceedings held outside Ascension.

Judicial officers

161.—(1) The Governor, acting in accordance with the recommendation of the Ascension Judicial Service Commission, shall appoint any judicial officers.

(2) Before entering upon the duties of his or her office, every judicial officer shall make an oath or affirmation of allegiance and the judicial oath or affirmation in the forms sets out in the Schedule.

(3) A judicial officer shall be appointed for life, or until the appointee reaches such an age as may be prescribed by Ordinance.

(4) A judicial officer may, when his or her appointment expires, continue so to act for the purposes of giving judgment or otherwise in relation to any proceeding commenced before him or her while his or her appointment was subsisting.

(5) A judicial officer—

(a)may resign from office by writing under his or her hand addressed to the presiding member of the Ascension Judicial Service Commission;

(b)shall be deemed to have resigned from office if he or she—

(i)is elected as a member of the Island Council; or

(ii)continues to hold, or accepts, an appointment as an officer of the Ascension Public Service, unless, under a law, such an officer is entitled to serve as a judicial officer on a basis that is consistent with the independence of the judiciary and with the efficiency of the Public Service.

(6) A judicial officer may be removed from office only on the ground of—

(a)inability to discharge the functions of the office (whether arising from infirmity of body or mind or from any other cause); or

(b)misbehaviour,

and shall not be removed except in accordance with subsection (7).

(7) The Governor shall remove a judicial officer from office if—

(a)the question of doing so has been considered by the Ascension Judicial Service Commission; and

(b)the Commission has recommended to the Governor that the judicial officer concerned should be removed from office on a ground referred to in subsection (6).

(8) A person who has been removed from office as a judicial officer by the Governor on the recommendation of the Ascension Judicial Service Commission may apply to the Supreme Court for redress on the ground that any finding of fact or law on which the Commission based its recommendation for removal was unjustified or wrong; and, for the purpose of affording such redress, the Supreme Court may make such declarations and orders, issue such writs and give such directions as it considers appropriate.

(9) A judicial officer shall receive such remuneration as is determined by the Governor, acting in his or her discretion, and that remuneration shall be charged on and paid out of the Consolidated Fund.

(10) The remuneration of a judicial officer shall not be diminished during his or her continuance in office.

Ascension Judicial Service Commission

162.—(1) There shall be an Ascension Judicial Service Commission (“the Commission”), which shall consist of—

(a)the Chief Justice, who shall preside;

(b)the Attorney General;

(c)the Public Solicitor, if a person for the time being holds that office; and

(d)a person who is neither a member of the Island Council, an officer of the Ascension Public Service, a judge or a judicial officer, appointed by the Governor for a term of one year.

(2) The office of the member of the Commission appointed under subsection (1)(d) shall become vacant if—

(a)he or she becomes an officer of the Ascension Public Service, accepts appointment as a judge or a judicial officer, or becomes a member of the Island Council;

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

(c)the Governor, being satisfied that the member should be removed from office on the ground of inability to discharge the functions of the office (whether arising from infirmity of body or mind or from any other cause) or misbehaviour, removes that member from office.

(3) The Governor 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 Ascension 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 Island 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 161(6); 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 Island 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 7PUBLIC SERVICE

Appointment etc of officers of Ascension Public Service

163.—(1) Subject to this Constitution, the Governor, acting 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 Ascension Public Service; and

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

(2) The Governor may by directions in writing delegate the power conferred on him or her by subsection (1) to any officer or officers of the Ascension 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 Ascension Public Service.

Terms and conditions of employment

164.—(1) The Governor 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 Ascension 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 Ascension Public Service shall be as agreed in that officer’s contract of employment or implied by any rule of law.

PART 8PUBLIC FINANCE

Taxation

165.—(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, other than the Governor, to waive or vary a tax imposed by that law, that person or authority shall report to the Governor on the exercise of those powers as often as shall be determined by law but not less than annually.

Consolidated Fund

166.—(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 of Ascension.

(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

167.—(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 170 or 171.

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

Annual Estimates

168.—(1) The Director of Financial Services shall cause to be prepared and presented to the Governor before the beginning of each financial year (or as soon as practicable thereafter) Estimates of revenue and expenditure of the Government of Ascension for that financial year.

(2) Before presenting the Estimates to the Governor under subsection (1), the Director of Financial Services shall present the Estimates to the Island Council for any advice it may wish to give in relation to them.

(3) Notwithstanding subsection (1), the Director of Financial Services may cause to be prepared and presented to the Governor and the Island 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.

Draft Appropriation Ordinance

169.  The Director of Financial Services shall present to the Governor a draft Appropriation Ordinance which includes the heads of expenditure contained in the Estimates referred to in section 168(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 draft Ordinance.

Authorisation of expenditure in advance of appropriation

170.—(1) Subject to subsection (3), if the Appropriation Ordinance for any financial year has not come into force by the beginning of that financial year, the Governor may, by directions in writing, empower the Director of Financial Services 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 of Ascension, 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 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.

Special Warrants

171.—(1) The Governor, 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 Director of Financial Services 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) The Director of Financial Services shall inform the Island Council of every Special Warrant within ten days of the date of its issue.

Withdrawal Warrants

172.—(1) The Governor, 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) The Director of Financial Services shall inform the Island Council of every Withdrawal Warrant within ten days of the date of its issue.

Supplementary Estimates

173.  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 presented to the Governor and the Island Council by the Director of Financial Services; and the heads of expenditure contained in that Estimate shall be included in a draft Ordinance, to be known as a draft Supplementary Appropriation Ordinance, which shall be presented to the Governor 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 draft Ordinance.

Excess expenditure

174.—(1) Where at the close of accounts for any financial year it is found that moneys have been expended on any expenditure in excess of the amount appropriated for it or for a purpose for which no moneys have been appropriated, the amount of excess expended, or not appropriated, as the case may be, shall be included in a statement of expenditure in excess which shall be presented to the Governor and the Island Council by the Director of Financial Services.

(2) The Governor may, by directions in writing, allow the excess or the amount expended but not appropriated to stand charged to public funds.

Lapse of appropriations

175.  The appropriations made by the Appropriation Ordinance or a Supplementary Appropriation Ordinance or by a Special Warrant issued under section 171 in respect of a financial year shall lapse at the end of that financial year, unless otherwise provided by Ordinance.

Public debt

176.—(1) All debt charges for which the Government of Ascension 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

177.—(1) The Director of Financial Services 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 auditor a statement of accounts reflecting the financial operations of the Consolidated Fund and any other public fund or account for that financial year; and

(b)submit the annual statement of accounts to the auditor.

(2) The 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 auditor’s report and annual management letter, to the Director of Financial Services.

(3) The Director of Financial Services shall present to the Governor and the Island Council the audited annual statement of accounts and its attachments received under subsection (2) within ten days of receiving them.

(4) In this section, “auditor” means the person or authority conducting an audit pursuant to arrangements made by the Governor under section 178(1).

Audit

178.—(1) The Governor shall make appropriate arrangements for the audit of the public accounts of Ascension and of all courts of Ascension and all authorities and offices of the Government of Ascension; and any person or authority conducting such an audit shall have access to all books, records, reports and other documents relating to those accounts.

(2) Any person or authority conducting an audit pursuant to subsection (1) shall act independently and shall not be subject to the direction or control of the Governor, the Island Council or any other person or authority.

Borrowing or lending by Government of Ascension

179.—(1) Subject to this Constitution, the Government of Ascension may borrow from any source.

(2) The Government of Ascension 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 Island Council for any advice it may wish to give on the matter.

(4) The Director of Financial Services shall, at such times as the Island 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) For the purposes of this section, the expression “loan” includes any money lent or given to or by the Government of Ascension 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.

PART 9MISCELLANEOUS

Interpretation

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

“Ascension” means Ascension Island;

“Ascension Public Service” means the service of the Crown in a civil capacity in respect of the government of Ascension, and includes service as a member of any police force, prison service or fire service of Ascension; but does not include service as a judge or a judicial officer or service as a member of the Island Council, any committee of the Council or, unless otherwise provided by a law, of any other public authority;

“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 166;

“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 Ascension, any prison service of Ascension, any fire service of Ascension, any naval, military or air force raised in Ascension under the law of Ascension, 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 may be prescribed by Ordinance;

“functions” includes powers and duties;

Gazette” means the St Helena Government Gazette;

“Island Council” means the Island Council of Ascension established by section 149;

“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 Ascension, 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 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 Ascension or in any place outside Ascension 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 Ascension, by participating in that proceeding by teleconference or other means of electronic, oral or written communication;

“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 Ascension Public Service” means the holder of any office in the Ascension 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 Ascension Public Service;

“Ordinance” means a law made by the Governor in respect of Ascension;

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

(a)

there is, in or affecting Ascension, 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;

“subordinate court” means a court of Ascension 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 replacing or amending 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 Ascension, one or more members of which are lawfully in Ascension 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

181.  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

182.—(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

183.—(1) Where any person has vacated any office 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 ground that the holder of the office is not unable to perform the functions of the office.

Removal from office

184.  References in this Chapter to the power to remove an officer of the Ascension 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

185.—(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.

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