Commonwealth Office's final draft proposal on Constitutional change. The UBP's response was sent to Foreign & Commonwealth Office legal advisor Ian Hendry on April 5.

Thank you very much for the draft paper we received yesterday afternoon around 5 p.m. We understand that this paper represents the extent of those changes you will be taking back to London for adoption. We would appreciate your clarification prior to your departure, whether or not this is the case.

Before commenting on the draft on behalf of the Opposition United Bermuda Party, it is important to first make clear the position of the Opposition on proposed constitutional change. We maintain our belief that convention has been established and precedent has been set with a constitutional conference being the recognised method of major constitutional change in Bermuda.

We are encouraged by the pre-constitutional change talks and felt that the discussion process was somewhat helpful. However, we remain strongly of the view, following this latest round of consultation that the number of elected Parliamentarians should not be left to a Boundaries Commission to decide.

We believe the number of members of Parliament should be settled by the Government and Opposition parties through consensus, with the assistance of HMG, and then ratified by the people of Bermuda through a referendum. A Boundaries Commission could then subsequently draw up the necessary number of constituencies. We regret that no attempt was made in our talks this week to explore whether a consensus could be reached.

More importantly, there ought to be provisions written into the Bermuda Constitution Act 1967 which prescribes that amendments to the Bermuda Constitution require a two-thirds majority of both Houses of the Legislature.

There should be provision for the subsequent ratification by simple majority in a referendum, subject to final approval of Her Majesty's Council.

In light of the fact that you informed us that the content of the draft order is for discussion purposes only, we respectfully submit our suggestions with the proviso that our input not be construed as endorsement or agreement on our behalf.

With respect to your draft dated 4 April 2001 -- an update on the first draft that you shared with us on Monday evening -- we offer the following comments: Ombudsman If we are to have an ombudsman as Government proposes, and which finds favour with HMG, we appreciate the changes that have been made since the first draft are aimed at ensuring the independence of the office.

Section 93A(2) should be amended to read "The Governor, acting after consultation with the Premier and the Opposition Leader, shall by instrument under the Public Seal, appoint the Ombudsman.'' While we initially recommended a five-year limitation as opposed to the three-year limitation in s.93A (3) in the first draft, on reflection we wonder whether any semblance of political affiliation would best be obtained by simply disqualifying anyone who had ever held or stood for political office, elected or otherwise.

It appears as though Section 93A(4) (c) and (d) should be combined and not broken into two.

We assume that Section 93A(6) makes the necessary amendment to ensure the office is a public office for the purposes of appointment and pension.

We question whether new Section 93B (4) is sufficient to establish that the Ombudsman's jurisdiction to investigate complaints against the Bermuda Government and that accordingly the reference to documents includes documents of the Bermuda Government. We believe this should be clear and written into the Constitution.

Section 93B (5) should be amended to read:- "The Ombudsman shall submit annual reports...'' Constituencies It appears HMG prefers to leave it to a Boundaries Commission to recommend the number of MPs Bermuda should have. We were disappointed that even though a referendum was discussed as a potential option, it was not included in the second draft that we received. Our comments on your most recent draft are as follows: (1) We should require the Commission to invite the views of the public and substitute "shall'' for "may'' in paragraph 1(3).

(2) We wish to draw to your attention the fact that when the Commission reports there could be a minority report which subsequently finds favour with a majority of members of the House of Assembly. Should this occur it would of course detract from a decision made by a body which you yourself have described on several occasions this week as "a fair and independent body'', possibly even undermining the rationale (to which you and the Government subscribe at this time) for proceeding that way.

(3) We believe the above can best be addressed and should be addressed by way of a simple referendum by asking people to either ratify the number which is advanced by the Commission (if there is only one) or by putting both to the electorate to decide which is preferred.

(4) You have repeatedly referred to your proposal as a two-step process and in our view, the people of Bermuda should reasonably expect a written commitment from HMG as to what further consultation will take place before there is a second follow up Order in Council. We will not belabour the point but we maintain our position this should include a referendum as per item (3) above.

(5) We understand that you prefer to leave until the second-step the "knock-on'' effect of any number that is chosen. We would reserve until then any comment on the proposals which you set out in your last two bullet points on page 4 re: future role of the Commission, size of Cabinet, and that of the Senate.

(6) We think it should also be made clear that under your proposal Section 54(3) will be superseded and of no force and effect as part of this first step.

(7) Based on your comments, we will assume the draft language of the first step will take precedence over Section 54(2).

(8) We also question the need to have such a wide range of 20 to 40 members and the introduction of the odd number requirement makes it certain that there will be a reduction from the outset of at least one member to 39.

The changes relating to Parliamentary Secretaries to Junior Minister, the Auditor to Auditor General, British Subject to Commonwealth citizen, and the Human Rights Housekeeping points are only nomenclature items and are considered minor constitutional changes that are consistent with our position paper presented to Baroness Scotland.

Human Rights You will recall those changes highlighted in our brief to the Baroness. There are also the other possible changes highlighted by the Steel Report that featured only briefly in your talks this week. We understand that your intention is to now share with us a "model chapter'' on fundamental rights and freedoms that is expected in the next three weeks.

This report will then form the basis for further (public) discussion and debate in Bermuda before adoption. We shall be grateful for written confirmation that our understanding is correct and, in addition, perhaps you could provide us with an outline on what HMG will be looking for by way of process and support prior to adoption.

Other matters You will recall that there were also ideas for constitutional change put forward by others who met with you on Tuesday and/or who made written submissions. These were never made the subject of talks with the Government and Opposition. We should like you to provide us with a list of those matters and how you propose to carry them forward, if at all.

In closing, we very much regret that we make this submission on your drafts without the benefit of knowing what the position of the Bermuda Government is on your draft proposals. At the very least it was a pity that we never heard from the Government during our final session when we asked questions and made comments on your first draft. It is for this reason we request sight of whatever is drafted by way of an Order in Council so that we might comment before it is tendered for parliamentary adoption in the UK and obviously we reserve a final position until such time as we receive a draft.

Finally, we thank you and Ms. Rowett for your time and consideration this week. We believe that the public appreciated the opportunity the FCO extended even if it was on short notice and for a short period of time. We expect that they look forward to seeing how their views are taken into account as HMG goes forward.