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This time, the system worked

“Do the right thing. It will gratify some and astonish the rest.” Mark Twain.

I know, I know, it's Christmas, Mr Editor. I will try to ease up, a bit, although it won't all be merry. Readers should know that I write the copy but not the headlines. It wasn't the system that failed us on the 240-year 9 Beaches lease. While I like to think I made the case last week for the umpteenth time as to why we need to change the way we do the country's business, ultimately it's up the people who are in the system to make it work and, where it's broke, to fix it.

This week, the system didn't fail us. The Upper House down the Hill, aka the Senate, decided on two separate occasions, not to proceed on the lease and quite rightly, I think. The first time they rose to rise and report progress (the quaint parliamentary way to adjourn a debate and keep it alive for another day), after Senators complained they did not have before them all the necessary documentation to undertake any sensible review of what was proposed. This was exactly the position in which we found ourselves up on the Hill the week before when Government chose to proceed regardless.

There were two key documents that were not tabled along with the draft lease: a Memorandum of Understanding dated May 13, 2010 and a so-called Licence to Alter. The absence of both was critical. The lease contained the “further assurance” that the two parties agreed to do all they could to bring into effect any of the terms and conditions of the Memorandum of Understanding, and, further, that the Licence to Alter, when read with the lease, embodied the “entire understanding” of the parties.

So the Senate adjourned last Friday until Wednesday to give Senators the opportunity to review the missing documents. It could not have been easy; indeed they were receiving revised documents as late as the night before they met on Wednesday. This begs the question then of whether what we passed in the House has been changed and further whether it will now have to come back for revised approval? That question aside, I could well understand Senators' difficulties in pouring over all three documents in a last-minute rush. I tuned in to hear what they had to say and I could sympathise with Independent Senator Walwyn Hughes who said his attempt at review gave him “a big headache”. He spotted several immediate differences between the three documents, and gaps as well, that left him wondering. But, he explained: I am not a lawyer. You don't have to be, Sen Hughes. Lawyers get headaches too, for the same reasons. These were not just spelling errors and typos. They could not simply be fobbed off as textual deviance: my words, not his. Not surprisingly, all the discrepancies and inconsistencies made him uncomfortable about approving a 240-year lease. It was a view that was echoed by others around the table who spoke and by the silence of those who did not.

The discomfort was picked up by the Government Senate Leader David Burch who moved for the second time in a week that the Senate rise and report progress and this time they won't be coming back to the debate until February 9 when the Senate is scheduled to resume after the Christmas recess.

I think I'm quoting him correctly when I heard him say: “We can't proceed on an agreement where there are more questions than answers.” I could not have said it better myself. So I won't. It's a pity though, that the same approach wasn't adopted in the House where Government used its numerical majority to muscle through a defective lease.

But let's not get carried away here. Legislators should never have been put in this position in the first place. Mind you, there are those who are wondering today whether Government is four-square behind this project or whether something has occurred between the parties after the lease came off the Hill to the Senate?

But whatever has happened here, it has certainly underscored the importance of an Upper House where Government business is meant to get a second look, an opportunity for sober reflection after debate on the Hill. It worked on this occasion and this time without the necessity of a vote. Theoretically, and it has happened in the past, the three independent Senators can join with the three Opposition members to defeat the five Government members, although defeat can only mean a one-year delay as the duly-elected Government must ultimately have its way.

But the opportunity for reflection is key.

I am going to suggest once again that we ought to overhaul our current system of governance so as to provide for two further, more important opportunities:

1. We have a Legislature website where all Bills, motions and resolutions are posted the day that they are introduced so that the public can be let in on what's being proposed; and,

2. There be established a standing joint committee like that for Private Bills, comprised of representative members from all parties and both Chambers, whose duty it will be to review proposed the items with the drafters and policymakers, and whose meetings should be open to the press and public alike so we can all gain a better understanding of what's being proposed and why.

The Bermuda Constitution Order won't have to be amended. Neither will there need to be any legislation. Just the political will to make it happen.

One final note: for those who keep track of these things and for whom this seems like déjà vu all over again. It is, and it isn't, if you are thinking of the Coco Reef lease. There was no explicit statutory requirement that that lease be brought to the Legislature for approval. It wasn't. But the Auditor General subsequently had a close look by way of a special report that was scathing in its criticism of the lease and its terms. Ultimately there was the admission from Government that there would have to be an additional lease to address the outstanding points. An addendum was signed last year, six years after the original lease was signed. Not that we know the end of that one yet: the new Auditor General has the entire agreement under review, again.

You remember the old saw, Mr Editor? Measure twice, cut once.

Merry Christmas everyone and a safe and peaceful holiday to all.

The 9 Beaches resort

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Published December 24, 2010 at 1:00 am (Updated December 24, 2010 at 7:47 am)

This time, the system worked

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