Judge Charles quashes government decisions on HCA consultations

Mon, May 9th 2016, 09:00 PM

Supreme Court Justice Indra Charles yesterday ruled that consultations on the future of Freeport -- considered complete by the government -- were "procedurally unfair" and "did not constitute proper and meaningful consultation". The judge quashed the decisions made by Prime Minister Perry Christie, Minister for Grand Bahama Dr. Michael Darville and Hawksbill Creek Agreement Review Committee (HCARC) Chairman Dr. Marcus Bethel relating to the consultation process, and ordered that a fresh round of consultations begin. This time, she said, the consultations must proceed with redacted copies of the much-ballyhooed McKinsey Report in the possession of those who argued they need to see the report to make meaningful contributions to the consultations.

Christie, Darville and Bethel were the respondents in the judicial review requested by Fred Smith, QC and Carey Leonard, who applied for the judicial review as licensees of the Grand Bahama Port Authority (GBPA), which appeared in the matter as an "intervener". Smith and Leonard applied for the judicial review following the decision by the HCARC to close the consultation process.

The ruling is the newest development in the wrangling over the fate of Freeport, as the government and Freeport authorities negotiate against the background of once-again soon-to-expire tax concessions granted under the Hawksbill Creek Agreement (HCA). The government hired McKinsey to study Freeport, gauge the likely effect of the expiration of the tax breaks, and make recommendations for the direction the government should take with respect to the free trade zone. Once the McKinsey Report was in hand, the government appointed Bethel and the HCARC to use that report as a basis for consultations with Freeporters about the future of Freeport. The committee closed the consultation process over the objections of Smith, Leonard and others in Freeport, who demanded the release of the McKinsey Report.

In her ruling, Justice Charles noted, "At trial the applicants challenged the respondents' decision to bring the consultation process to a close and, in the case of (Bethel) to present and, in the case of (Christie) to accept the recommendations as procedurally unfair - given the failure to disclose the McKinsey Report - and similarly irrational given the circumstances."

Opposition
The government opposed the application on the grounds that the decisions were not amenable to judicial review in the first place, that the judicial review application was premature, that there had been widespread and adequate consultation and the applicants were given a reasonable opportunity to make representations, and that the government had passed legislation extending the tax exemption and concessions which would otherwise have expired on August 4, 2015 for a period of six months.

Charles differed. She ruled that the decisions were susceptible to judicial review, that the application for judicial review was not premature, and that given the failure to disclose the McKinsey Report, the consultation process was conducted in circumstances which were "procedurally unfair" because of non-compliance with the "Gunning criteria".

In fact those were the grounds on which the GBPA supported the application for judicial review, insofar as the applicants maintained that the consultation process was procedurally unfair and that it was conducted in breach of the Gunning criteria.

The Gunning criteria -- originally propounded by Stephen Sedley, QC and adopted by Justice Hodgson in R vs. Brent London Borough Council, ex parte Gunning (1985) -- are that: Consultation must take place when the proposal is still at a formative stage; sufficient reasons must be put forward for the proposal to allow for intelligent consideration and response; adequate time must be given for consideration and response, and the product of consultation must be conscientiously taken into account.

Conclusion
Charles declared that the consultation was procedurally unfair and did not constitute proper and meaningful consultation.
The judge ordered that the decisions made by Christie, Darville and Bethel relating to the consultation process be quashed, and that the government provide copies of the redacted McKinsey Report to any of the interested parties on request.

Charles further ordered that the government continue with the consultation process and give Smith, Leonard and "all interested parties" reasonable and sufficient time -- no less than a month -- to consider the McKinsey Report "so that they can properly and meaningfully contribute to the consultation process".

K. Quincy Parker, Guardian Business Editor

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