The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Government’s move to extend Freeport’s expiring investment incentives “maintains the status quo” of the Hawksbill Creek Agreement, a Supreme Court judge yesterday explaining this was why she refused to grant an injunction blocking Cabinet decisions on the issue.

Justice Petra Hanna-Weekes cited the Government’s passage of legislation, extending Freeport’s Business Licence and real property tax exemptions until February 4, 2016, as the reason why she found “it would be inappropriate for the court to interfere in the decision-making process of Cabinet at this time”.

Fred Smith QC, who together with fellow Callenders & Co attorney, Carey Leonard, filed the Judicial Review challenge to the Hawksbill Creek consultation/reform process, yesterday said they would be appealing Justice Hanna-Weekes’ decision.

He told Tribune Business that the necessary papers would be filed with the Court of Appal either today or on Friday.

The Callenders & Co duo had been seeking a temporary Order preventing Prime Minister Perry Christie and his government from acting on the recommendations made over Freeport’s expiring tax incentives until the full Judicial Review case is heard.

They also wanted an Order ‘staying’ the “decision-making process regarding potential changes to the provisions of the Hawksbill Creek Agreement, and the economic and fiscal governance of Freeport”, which stem from the report produced by the Government-appointed consultation committee led by Dr Marcus Bethel.

Justice Hanna-Weekes, though, said she found the Government’s contention that Messrs Smith and Leonard’s application was “premature” to be “persuasive”.

Gary Francis, of the Attorney General’s Office, had argued that there was “no decision to be restrained” by an injunction because the Government has yet to act on the recommendations from the Hawksbill Creek Review Agreement Committee.

“The applicants argue that what ought to be maintained is a state where no policy decision has been made on the basis of the flawed consultation,” Justice Hanna-Weekes said of the arguments advanced by Messrs Smith and Leonard.

“The fact that certain provisions of the Hawksbill Creek Agreement have been extended does not prevent a policy decision from being taken in the interim. There is no evidence of an undertaking that such a decision will not be made.”

As for the Government, its case was that it “had already taken action to maintain the status quo by passing legislation to extend the tax concessions for six months”.

The Government’s decision to extend Freeport’s expiring investment incentives for six months by passing the Hawksbill Creek Grand Bahama (Deep Water Harbour and Industrial Area) (Extension of Tax Exemption Period) (Amendment) Act 2015 weighed heavily in Justice Hanna-Weekes’ decision to reject the injunction application.

However, she backed the Callender’s & Co duo in also finding that “there is a serious issue to be tried” in the substantive Judicial Review action, namely whether the Government’s consultation process was “fundamentally flawed”.

Still, in rejecting the injunction application, Justice Hanna-Weekes ruled that the incentives extension “does maintain the status quo, and provides the court with sufficient time to complete the Judicial Review stage of the proceedings”.

While it was “unlikely, although admittedly not impossible”, that the Government could take a policy decision over the Hawksbill Creek Agreement incentives - and its long-term future - before February 2016, she found that Messrs Smith and Leonard would “not suffer any quantifiable loss or damage” in the meantime.

“The court finds it would be inappropriate to interfere in the decision-making process of the Cabinet at this time,” Justice Hanna-Weekes concluded, arguing that this would result from granting the injunction.

The Callenders & Co duo had argued that the six-month extension “may give the Government more time to decide, but it does not prevent the Government from deciding”.

And they had also alleged: “The Government should not be permitted to conduct sham consultations merely in order to rubber-stamp proposals which are kept secret from the very people that they will affect, and whose views the Government purports to seek.”

The Government’s failure to publish the report on Freeport’s future by McKinsey, the international consulting firm, is central to the Judicial Review action launched by the Callenders & Co duo.

They are alleging that the consultation process, on which the report by Dr Bethel’s committee is based, was “fundamentally flawed and a sham” because key documents - especially the McKinsey report - were not released to those it interviewed.

The McKinsey report is seen as especially important because previous statements by Prime Minister Perry Christie suggest it influenced the Hawksbill Creek Agreement Review Committee’s terms of reference, while also playing a vital role in determining the Government’s thinking on Freeport’s short and long-term future.

Messrs Smith and Leonard are ultimately seeking Supreme Court Orders that prevent any decisions being made on the basis of the committee’s report; that require the McKinsey report to be made publicly available; and require that a new consultation process be undertaken with Freeport stakeholders.