The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An outspoken QC warned that the recommendations on Freeport’s future presented to the Prime Minister yesterday are all “liable to be set aside” via a second Judicial Review action he plans to launch.

Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business that “the nature” of his legal action would switch from the consultation process to challenging the findings of the report handed to Mr Christie yesterday by the Government-appointed committee (see Page 3B lead).

The campaigning attorney said the Government’s failure to publicly release the report produced by its own consultants, McKinsey, prior to accepting its committee’s recommendations, meant that the Freeport consultation exercise was “just for show as opposed to substance”.

Suggesting that the term ‘consultation’ was “political gobbledygook speak”, Mr Smith said the way discussions on Freeport’s long and short-term future had been handled again demonstrated the Government’s “secretive modus operandi”.

He added that, apart from a lack of transparency, the failure to disclose the McKinsey report also showed the Government’s “low regard” for Freeport’s residents and 3,500 Grand Bahama Port Authority licensees.

Mr Smith, who together with fellow Callenders & Co attorney, Carey Leonard, has been rebuffed twice by the Bahamian court system in his bid to challenge the consultation process, said the committee’s report presentation would lead to a refocused Judicial Review challenge.

“This means that the nature of our action has to change to challenge the report’s standing and its findings,” he told Tribune Business.

“We will be launching another Judicial Review, unfortunately, challenging the recommendations and the failure to have a legitimate and proper consultation process. Everything that flows from it [the committee’s report] is liable to be set aside.”

That remains to be seen, but the prospect of further Judicial Review action will likely only add to the uncertainty gripping Freeport’s business community and investment climate. Either way, the present situation is not conducive to the city’s economic growth.

The report, presented to Mr Christie by committee chairman, Dr Marcus Bethel, likely contains recommendations dealing with both the investment incentives that expire on August 4 this year and measures to foster Freeport’s longer-term growth and development.

No details were disclosed yesterday, but the report will be presented to government ministers and discussed in Cabinet today.

Yet Mr Smith again emphasised that the failure to publicly release the earlier report by McKinsey, which will likely have a significant influence and bearing on the Government’s final Freeport policy response, had undermined the consultations with the city’s business and civic stakeholders.

“I am very disappointed that the Government and the committee would have such low regard for the licensees of Freeport, myself and Carey Leonard, in particular, not to have slowed down and given us a copy of the McKinsey report,” the QC told Tribune Business.

“What it means is that consultation is just political gobbledygook speak, as opposed to really engaging sincere stakeholders in a real consultation process. It’s all just for show as opposed to substance.

“That is, unfortunately, a modus operandi that pervades public affairs generally in the Bahamas, hence the tremendous disconnect between the people and the Government,” Mr Smith added.

“In the face of the Government talking about passing a Freedom of Information Act, that they have not shared the McKinsey report with us is an indication of how secretive they want to be as opposed to open and transparent.”

Mr Smith said the way the Freeport consultation had been conducted, and failure to release the McKinsey report, meant that stakeholders “with responsible contributions to make have been left out of the loop and debased”.

It is uncertain what the Government-appointed committee has recommended, although most observers believe they will likely advocate extending Freeport’s expiring Business Licence and real property tax breaks in return for specific obligations being performed by the Grand Bahama Port Authority (GBPA) and Hutchison Whampoa.

Apart from Dr Bethel, other committee members included ex-finance minister and Central Bank governor, James Smith; the Prime Minister’s senior policy advisor, Sir Baltron Bethel; and current and former Grand Bahama Chamber of Commerce presidents, Kevin Seymour and Doswell Coakley.

Mr Smith and Mr Leonard, in their first Judicial Review action, argued that the Government had failed to engage in “proper and meaningful consultation” with Freeport stakeholders due to the failure to provide the public with the McKinsey report.

They claimed that the principle for the Government to engage in proper and meaningful consultation with all impacted parties was set by the Court of Appeal in the case involving BEC’s Wilson City power plant.

However, this was rejected by the Supreme Court, which refused the duo’s application for permission to bring the Judicial Review action.

Justice Petra Hanna-Weekes, at a May 22, 2015, hearing said she was “not satisfied” that the Government was obligated by law to publish the report by its consultants, McKinsey.

She added that the challenge to the consultations was “premature”, and accepted the need for a short consultation period with Freeport stakeholders, given that the city’s Business Licence and real property tax exemptions are due to expire on August 4.

The Callenders & Co pair subsequently appealed to the Court of Appeal, which sent them back to the Supreme Court.

Mr Smith yesterday said he and Mr Leonard had been unable to obtain a new Supreme Court hearing date, which he blamed on a lack of “co-operation” by the Attorney General’s Office.