The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Two attorneys fear their challenge to the Government’s Hawksbill Creek Agreement review process risks being rendered “nugatory” if there is nothing to stop Cabinet acting on recommendations before it.

Fred Smith QC and Carey Leonard, in their appeal against the Supreme Court’s decision to throw out their application for an injunction restraining the Government’s decision-making ability, said the six-month extension granted to Freeport’s expiring investment incentives did not perform the same task.

Justice Petra Hanna-Weekes, in rejecting the Callenders & Co duo’s injunction application last week, found that the Government’s move to extend those incentives by six months until February 4, 2016, “maintains the status quo” of the Hawksbill Creek Agreement.

She cited the Government’s passage of legislation, extending Freeport’s Business Licence and real property tax exemptions, 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”.

But, outlining their grounds for appeal, Messrs Smith and Leonard said the injunction was designed to prevent the Christie administration from acting on any recommendations supplied by its Hawksbill Creek Agreement review committee.

No decisions had been taken by the Government when they applied for the injunction, and the duo noted that the Prime Minister stated publicly that the six-month incentives extension was to allow for “full analysis and further consultation, if necessary”.

Arguing that there was nothing to stop the Prime Minister and Dr Michael Darville, minister for Grand Bahama, from acting on the committee’s proposals, Messrs Smith and Leonard alleged: “The risk that [they] might make decisions concerning the Hawksbill Creek Agreement provisions based on the recommendations, thereby rendering the Judicial Review a nugatory, still remains.”

They argued that the Government had “repeatedly refused to given an undertaking” not to take any decisions based on the committee’s recommendations while the Judicial Review was still live.

And the Callenders & Co attorneys also claimed that “there is and was no evidence” of the Government embarking on the ‘further consultation’ promised by Mr Christie.

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.

But, 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

Messrs Smith and Leonard, though, alleged that Justice Hanna-Weekes “took into account irrelevant and uncertain considerations” by finding that the six-month extension gave sufficient time for the Supreme Court to decide the Judicial Review.

They also argued that they were not challenging the Cabinet’s decision-making process but, instead, policy decisions by the Prime Minister and Dr Darville that could result from an alleged “unlawful consultation process”.

“The enactment of legislation, which is in any event a constitutional process by Parliament, not Cabinet, is something quite separate from the issue of whether or not the Hawksbill Creek Agreement can be amended - or should be amended - and on what terms by parties to the Hawksbill Creek Agreement,” the Callenders & Co duo alleged.

They also argued that damages were not adequate should the “real risk” that the Prime Minister and Dr Darville act on the committee’s recommendations, without allegedly proper consultation, be realised.

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.