The Tribune

An outspoken QC yesterday made good on his threat to launch Judicial Review proceedings against the consultation on Freeport’s future, warning: “No more secrets. It’s finally time for government in the sunshine.”

Fred Smith QC, and his fellow Callenders & Co attorney, Carey Leonard, filed their application for permission to launch Judicial Review proceedings with the Supreme Court yesterday afternoon, arguing that the Government’s consultation process was “fundamentally flawed”.

Their case is grounded in the alleged failure of the Christie administration, and the committee it appointed to lead the discussions, to make public the report that the Government commissioned from international consulting firm, McKinsey & Co.

Messrs Smith and Leonard are arguing that the committee’s consultation efforts were “procedurally unfair”, because Freeport stakeholders were unable to give ‘proper and meaningful’ feedback without access to the McKinsey report.

Alleging that this report is “pivotal” to the Government’s “policy proposals”, and the action it will take over both Freeport’s expiring tax exemptions and the Hawksbill Creek Agreement’s long-term future, the pair also argue that it is “irrational” not to make the document public.

The Callenders & Co duo are seeking a Supreme Court declaration that the consultation process was “fundamentally flawed”, and not “proper or meaningful”.

They also want it to Order that the Government make the McKinsey report public, and that the committee conduct a fresh consultation process.

And, in the meantime, they want the Supreme Court to impose an interlocutory block on the committee’s work until the Judicial Review matter is determined.

The three defendants named in the court papers are Prime Minister Perry Christie; Dr Michael Darville, minister of Grand Bahama; and the committee chairman, Dr Marcus Bethel.

Setting out his concerns, Mr Smith said the Government’s response to the expiring Business Licence and real property tax exemptions, which sunset on August 5, 2015, “will significantly affect” both his businesses and the other 3,500 Grand Bahama Port Authority (GBPA) licensees.

“However, the impact of that policy response is likely to reach far beyond the tax exemptions themselves. This is because the Government views their expiry as an opportunity to institute a fundamental change in the fiscal and economic regime in Freeport,” Mr Smith alleged.

He added that in announcing the consultative committee’s appointment, the Prime Minister indicated that the exemptions’ expiry would be used as an opportunity for “‘aggressive policy interventions’ in the governance of Freeport, and of Grand Bahama more generally, for the purpose of increasing that island’s contribution to the Government’s net tax income”.

Mr Smith said Mr Christie’s comments made clear that the committee’s work, and ultimate government policy response, would be heavily influenced and guided by the McKinsey report.

After expressing his concerns to the Government, and making several failed requests to receive the McKinsey report, Mr Smith said he and Mr Leonard decided to wait a further week before launching their Judicial Review challenge.

“True to form, there has been no further communication from the respondents or the Attorney General,” he alleged.

There continues to be an abject failure to respect our rights. Silence, secrecy and disdain of my and others’ legitimate requests and desire to participate in a meaningful consultation on an informed basis have instead reigned supreme.”

And Mr Smith continued: “I have not been able to make informed and meaningful representations to the committee regarding these issues because the respondents have not provided me with sufficient information about the Government’s proposals.

“I do not know what proposals the Government is considering in relation to either the tax exemptions or a wider programme of ‘aggressive policy interventions’, or to the environment.

“In particular, the Government has not provided me with a copy of the McKinsey report. That report is obviously pivotal to the consultation process. It contains the advice given to the Government in respect of these issues, it is the reason why the committee was appointed and its author, McKinsey, continues to advise the Committee.”

Mr Smith also alleged that he and others were not given adequate notice of the committee’s hearings, or its requests for written submissions.

He claimed: “It is to be inferred from these facts that the proposals are not at a formative stage at all, and rather that the purpose of the committee is merely to ‘rubber stamp’ proposals that the Government has already decided upon but insists on keeping secret from us. Well, I say ‘no more secrets’. It is finally time for ‘Government in the Sunshine’.”