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Emissions Control bid to stop inquiry ruling

Court ruling: Chief Justice Ian Kawaley

Bermuda Emissions Control’s bid to avoid an investigation by the Commission of Inquiry may have been scuppered by the Supreme Court.

A legal effort to prevent the investigation has been ruled invalid.

However, according to a Supreme Court judgment, the court has agreed to stay the effects of a summons issued by the commission on the company until further legal arguments can be heard.

BEC contends that the decision of the Premier to appoint the COI is invalid, as is the decision by the COI to investigate the TCD emissions centre.

Prior to a court hearing, a summons had been issued ordering the BEC to appear before the commission and produce documents.

In that hearing, lawyer Eugene Johnson, representing BEC, argued that the scope of the COI was too broad, and any commission which was so broadly framed as to purportedly empower it to determine the scope of its own jurisdiction is unlawful.

However, Chief Justice Ian Kawaley found that there was “no serious contention” that the commission was given a roving brief to investigate whatever it saw fit.

“There is on what I consider to be a proper reading of the COI’s commission no credible basis for concluding that the commission is invalid because, as is contended, ‘the Premier unlawfully delegated the power to set the scope of the public inquiry to the Commission, pursuant to paragraphs 1 and 9 of the Commission’s Terms of Reference’,” he wrote.

On the basis of that ruling, he said the claim that the COI could not investigate the TCD emissions centre also failed.

“At the practical level BEC complained that it contracted with the Government before the period covered by the Auditor-General’s report,” the Chief Justice continued. “The COI very convincingly counters that its contract is potentially relevant because, pursuant to the governing contract, funds paid to the applicant are referenced in the relevant section of the report as amounts not approved by Cabinet in 2011.

“While there may be room for argument about the scope of documents to be produced pursuant to the summons (which is an entirely different matter), the suggestion that the emissions decision is wholly invalid on relevance grounds is in my judgment unsustainable.”

However, he allowed BEC’s argument regarding the summons to proceed, noting questions that had arisen about the handling of the summons.

“The summons required the production of documents at a hearing which only one commissioner was present,” he wrote. “Was that a lawful hearing? The COI has yet to publish procedural rules to explain to the recipients of summonses what its quorum procedures are.

“It is arguable that the COI has no power to fix a special quorum for different categories of meetings because that power is vested in the Governor/Premier alone.”

He continued: “These complaints are both technical and of practical importance for the further conduct of the COI’s work, this court having decided that the commission is lawfully established.

“Even if the COI can summon a witness to produce documents before a single commissioner, what procedure will be followed if disputes about production arise and have to be determined?

“In the present case, for instance, it is not clear to what extent BEC can (in the first instance at least) be required to produce documents outside of the three financial years covered by the Auditor-General’s report.”

Given the findings, Mr Justice Kawaley ruled that the proceedings related to the summons should be stayed until final determinations can be made.

The commission, an independent body, was tasked with investigating several allegations made by former Auditor-General Heather Jacob Matthews concerning government spending between 2010 and 2012, including the Port Royal Golf Course, Government’s contract with GlobalHue and the emissions centre project, which was condemned by Ms Matthews for its cost overruns and a claimed lack of oversight.

It later announced that it intended to examine contracts made before and after the period encompassed by the report, including the controversial airport redevelopment project. The commission is not tasked with resolving criminal issues, but to look into government affairs, refer potential violations of law or rules to the appropriate agency — and ultimately to be “assured that Government has learnt and moved on from any past mistakes about its own internal processes”.

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