Government wants 'total control' of Hamilton, court told
The legal battle over a bid to axe the Corporation of Hamilton wound up in the Supreme Court yesterday.
The Attorney-General’s Chambers said the Municipalities Reform Act – which would change the Corporations of Hamilton and St George into quangos led by appointed officials – was lawful and did not infringe on the rights of the Corporation.
But the Corporation of Hamilton argued the shift “deprived” the Corporation of its properties by seizure and put the municipalities under the indirect control of central Government.
But Greg Howard, for the Attorney-General, denied there was any deprivation of property because the “identity” of the Corporation and its ownership rights would not change.
Mr Howard said that the appointed Mayor and councillors would continue to administer the properties of the Corporation in line with the statute.
He added the minister had statutory oversight over the Corporation, which is authorised by the legislation, and the Corporation would maintain the ability to bring conflicts to the courts for judicial review.
Mr Howard argued that, even if the legislation did cause such a deprivation, it was lawful because the Corporation was a public body.
He said: “It has to be treated as a matter of legislature exercising control over public bodies.”
Mr Howard said that the Corporation must not be treated as a private company, as suggested by the Corporation, but as an entity created by the legislature.
He added: “It is the responsibility of the legislature itself to devolve power, and take away authority as the case may be, as it sees fit in the public interest.
“The controls that are in place in the legislation are authorised by the central Government’s control of inferior Government bodies, and it is the responsibility of the central government to make sure adequate controls are in place – financial and governance.
“That is something that would be almost automatically overreach if they were applied to a private company, but are authorised and necessary in the case of public bodies.”
Mark Diel, for the Corporation, said it was clear public bodies did have Constitutional protections, with some exemptions.
He added that the Attorney-General had not put forward any evidence that the Corporation of Hamilton was covered by an exemption.
He argued the Government, without these exemptions, could easily claim control over other companies formed by Government acts in the public interest, such as Belco and the Bermuda National Trust.
Mr Diel said: “It would be a very simple thing for the Government through the legislature to amend the legislation to remove the ability of anyone else to appoint officers so that the Government would have complete control over some 277 acres of National Trust land.
“That just cannot, as a matter of common sense, be right.“
He added that amendments to municipal legislation since 2010 had given Government greater control over the Corporation and the new legislation pushed that control even further.
Mr Diel said: “This progression of encroachment on the Corporation hasn’t been enough, as far as the Government is concerned, so what instead they want to do is – and I don’t think there is any dispute on this fact – is they want to take over essentially, indirectly, total control of the management of the company.”
He added the Court had found that the Corporation was controlled by those who elected its officers and the amendments would shift that control to the minister.
Mr Diel said: “This point has already been determined by this court in relation to these parties.”
Chief Justice Narinder Hargun said he would release a written judgment later.