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OBA objects to airport inclusion in inquiry

Out of scope: Senator Michael Fahy said documents relating to the project were “protected by public interest immunity” (File photograph)

The island’s first Commission of Inquiry in more than 15 years is due to properly get under way today, but the scope of the investigation has yet to be determined after the Bermuda Government formally objected to the inclusion of its controversial airport redevelopment deal.

The commission issued a statement yesterday highlighting that Government had not made written objections regarding the airport contract sooner; it said it would now have to consider those objections before making a decision.

The statement noted a press conference held on Friday on the subject by acting attorney-general, senator Michael Fahy, and said the formal objection was received “subsequent” to that.

“Government has now followed proper procedure which the commission established for those who wish to make objection to any matter which the commission proposes to examine as part of its inquiry,” it said.

“Written objections to the inclusion of the airport were received yesterday from the Attorney-General’s Chambers on behalf of the Government. In accordance with our published rules, the commission must deliberate on those objections and proposes to make a decision shortly.

“Because the issue has been raised publicly, the commission also wishes to state publicly that no undertaking was ever given to the Government that we would not inquire into the airport project.”

The independent Commission of Inquiry was formed by Michael Dunkley in February this year with a remit to inquire into issues raised by a damning report from the Auditor-General on how civil servants mismanaged public funds during the financial years 2010, 2011 and 2012.

The scope of the commission, as outlined by the Premier in the terms of reference, was to “inquire into any potential violation of law or regulations, including the Civil Service conditions of employment and code of conduct, financial instructions, and ministerial code of conduct, by any person or entity, which the commission considers significant and [to] determine how such violations arose”.

Mr Dunkley said the Auditor-General’s “disturbing” report necessitated the Commission of Inquiry, since it concluded that official government financial controls were regularly overridden or ignored and those responsible were “seemingly immune” to any sanctions.

Four commissioners — Sir Anthony Evans, Fiona Luck, John Barritt and Kumi Bradshaw — were appointed by the Premier and they announced in June they would look beyond the years 2010 to 2012, probing into government contracts awarded both before and after that period.

Commission chairman Sir Anthony told the first public hearing that the Government’s airport redevelopment contract would be investigated, along with contentious projects of the past.

Mr Dunkley gave the commission power to consider “any other matter” which it considered relevant to the scope of its inquiry, but Mr Fahy told Friday’s press conference that the LF Wade International Airport project — the subject of much criticism from the Progressive Labour Party and the People’s Campaign — was not within that scope.

He said: “Government has been consistent in its representations to the commission that the LF Wade project is not within their terms of reference or scope. The commission has persisted in requesting documents and has asked civil servants to provide information about the airport project.”

Mr Fahy added: “Civil servants need not reply to requests for information that is not relevant to the terms of reference.”

The Minister said the Government asked the commission to hold off on requesting documents until the commercial close of the $250 million project with the Canadian Commercial Corporation. But the commercial close was delayed so the commission, according to Mr Fahy, went ahead with its requests to civil servants.

This is the second time an oversight body has sought to get the Government to disclose further details about its agreement with CCC. The bipartisan parliamentary Public Accounts Committee has repeatedly tried — and failed — to obtain nine schedules which explain how the deal would work.

Mr Fahy said on Friday: “Certain documents relating to the project are protected by public interest immunity.

“They are contract documents subject to negotiation ... They contain information and documentation that is proprietary to the developer. Until the negotiations are finalised, Government cannot release those documents.”

A recent Supreme Court judgment considered how far the commission would be able to stray from its terms of reference, with Chief Justice Ian Kawaley finding that “there can be no serious contention that the COI has been given a roving brief to investigate whatever it sees fit”.

He said the commission’s legal mandate was “primarily anchored to the financial years 2010, 2011 and 2012” and matters in the Auditor’s report. “This finding may (not must) have implications for the range of documents falling outside this time period which can properly be sought.

“It may also have implications, as I observed in the course of the hearing, for the COI’s evinced intention of investigating the current airport project.”

The commission has until the end of the year to submit its final report and recommendations. It is budgeted to cost taxpayers more than a half a million dollars.

The most recent commission of inquiry in a British Overseas Territory was prompted by allegations of government corruption in the Turks and Caicos Islands in 2008/9 and resulted in the British Government imposing direct rule. Later, former Premier Michael Misick was arrested on suspicion of corruption and his trial is still ongoing.

The last commission of inquiry in Bermuda was opened in August 2000 to look at serious crime and was sparked by the botched investigation and prosecution of the case against two men accused of the July 1996 murder of schoolgirl Rebecca Middleton, although the commission’s terms of reference did not mention the Middleton case.

Previous commissions looked at the drugs squad and the last-minute postponement of the referendum on independence.

Until December 2014, only the Governor could form a commission of inquiry in Bermuda. Legislation was passed that month giving the Premier power to do the same.

Today’s public hearing is at 10am at St Theresa’s Church Hall, Laffan Street, Hamilton.