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A cat among the pigeons

The value of an independent, objective opinion is not to be underestimated, particularly perhaps in politics, and not withstanding if it is the work of a lawyer. No, Mr Editor, I am not thinking of my own. I am referring instead to the opinion of a London QC which was obtained by the House Committee on Elections courtesy of the Centre for Justice here in Bermuda, which has certainly set the proverbial cat amongst the pigeons. Or so it would seem. We ended up with two Committee reports, one majority and one minority, each divided strictly along party lines.

You might be tempted to put that solely down to politics. Don’t. There is an important principle at stake here that goes right to the heart of transparency and accountability. It is centres on that thorny issue of disclosure and what interests candidates are required by law to disclose when running for office.

The Bermuda Constitution Order 1968 requires the publication of any interest that a candidate may have in a Government contract, subject to those limitations and exemptions set out in the Legislature (Qualifications and Disqualification) Act 1968.

Here’s a little of what the QC had to say about those requirements:

“When disclosure is required it is mandatory. The sanction of disqualification for non-disclosure is automatic. Prima facie if there is an interest in any Government contract due disclosure must be made. The obligation does not apply only if the situation comes four square within one or more of the … exceptions [of the Act].

“What the Act does do is to refine the circumstances in which an interest has to be disclosed. A Member is of course at liberty to disclose an interest that does not necessarily have to be disclosed. In a case of any doubt, this will be a prudent and responsible course to adopt.”

You might think that fairly clear. Well, it is, and it isn’t. Read on. The plot thickens.

You may recall that the interest of the PLP was piqued when no disclosures were made by any OBA candidates in the 2012 election. In fact, it was the admitted impetus for the establishment of the Committee, according to PLP MP Walton Brown who sponsored the motion to establish the committee and ended up its chairman. His party’s focus was on two candidates in particular who had in fact disclosed their respective interests in Government contracts for the 2007 election but not in 2012.

Why was that, some inquiring minds wanted to know?

I told the Committee why when I appeared before them. In 2007 the UBP made transparency and accountability a featured part of its election campaign and it was agreed that we should disclose not just any qualifying interests any of us had, but any and all interests we had in Government contracts. We were not concerned then with precisely what the Act required. We wanted to show that we were fully on the side of the angels of disclosure.

Now when the PLP first complained about the failure to repeat disclosure for the 2012 election, the OBA issued a statement that the two candidates had taken legal advice and that they were not in breach of the governing legislation.

But who knew? Who knows to this day? The two members concerned declined to appear before the House committee and their legal opinion has not to date been shared publicly.

Nevertheless, and quite apart from these two cases, the entire matter underscores a deficiency in our legislation, sadly, that needs to be remedied — a point that was also picked up by the QC, thankfully. There is no mechanism provided in any of the legislation for investigation and for enforcement.

The only option is an expensive and arguably cumbersome one and that is to make challenge in the Supreme Court and this must be done (and arguably can only be done) within a prescribed time frame of 28 days following the election. Given their suspicions and concerns, inquiring minds might also pause here and wonder why the PLP didn’t pursue this option given the result of the 2012 election? A two seat loss would seem sufficient motivation to at least try and make the case.

Going forward, there is one remedy on which all members of the Committee seem to agree. They are recommending that in future candidates be required to disclose any and all interests they may have in Government contracts and that they do so “in the interests of full disclosure, transparency and accountability”. Good one.

There are other recommendations too, including the establishment of an Electoral Commission to tackle a whole host of issues and problems that have been crying out for action over the years, not the least of which is maintaining and ensuring accurate voting registers in each of the 40 constituencies, as well as policing disclosure requirements. Hooray, finally.

For their part, the two PLP committee members in their minority report will be pressing the House “to bring clarity” to the eligibility of those two OBA members to continue to sit in the Legislature.

The hope here is that the non-disclosure issue doesn’t overshadow the other major reform and repair work that needs to be done to improve our electoral process. But don’t get me wrong either. Neither should the challenging matter of disclosure be swept under the carpet. It is not playing politics. It is making sure that we have the right rules, that they are clearly understood, and that they are made clearer where they are not, and that they are being followed and adhered to by all. That’s politics all right, the politics of transparency and accountability.

• Share your views on The Royal Gazette website or write jbarritt@ibl.bm.

<p>The reports</p>

The two reports of the Select Committee on Elections make for very good reading — if you can get a copy. It has not yet been posted on the Legislature’s website (www.parliament.bm) but I am told that it will be shortly. Stay posted. If you cannot wait, you might also try getting copies from your favourite MP.

The reports include the QC’s opinion as well as transcripts of those who did appear before the Committee, including the Parliamentary Registrar and yours truly.

They also serve to show the scope of work which can be performed by cross party parliamentary committees and, hopefully, underscore their potential for tackling issues of concern to the wider community.

The House on the Hill has still to consider and debate the reports which were tabled a week ago. I am reliably informed however, that will likely not be until after the Easter recess, possibly in May.

Members of the committee were: MPs Walton Brown (chair), Jeanne Atherden, Susan Jackson, Glen Smith and Kim Wilson.