Acting AG: Airport Not Within Commission Scope

September 24, 2016

Addressing reports there has been “improper contact” between Government and the Commission of Inquiry regarding its request for information about the airport project, Acting Attorney-General Minister Michael Fahy said that “Government has been consistent in its representations to the Commission that the LF Wade Project is not within their Terms of Reference or ‘scope’.”

Speaking at a press conference in his capacity as Acting Attorney-General, Minister Fahy said, “I would like to address reports that there has been improper contact or agreement between Government and the Commission of Inquiry regarding its request for information about the LF Wade Project.

“The Commission of Inquiry is an independent body. It is carrying out its duties as set in its Terms of Reference that are limited to the period of the Auditor General’s Report for the years 2010, 2011 and 2012.

“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.

“Although Government has advised that civil servants must cooperate with the Commission, our position has not changed that the LF Wade Project is not within the Commission’s Terms of Reference or ‘scope’.

15-minute video of Minister Fahy’s full press conference

“To be clear, there was no undertaking given to the Government by the Commission. The Government asked that the Commission hold its request for LF Wade documents in abeyance pending commercial close of the airport redevelopment project. But Commercial Close has been delayed, so the Commission went ahead with its requests to civil servants.

“Civil servants need not reply to requests for information that is not relevant to the Terms of Reference.

“The Supreme Court recently confirmed in BECL v. Commissioners and AG [2016] SC [Bda] 82 Civ [7 September 2016] that a Commission of Inquiry is not a roving inquiry and it cannot set its own Terms of Reference. The court confirmed that ‘witnesses are only required to answer relevant questions’.

“Therefore, questions relating to the LF Wade projects are not relevant to any issue before the Commission. Witnesses before the Commission have the same rights and privileges they would have when appearing before the courts in legal proceedings. They may and should advise the Commission that the LF Wade documents are not relevant.

“The Court stated that the Commission’s ‘mandate is primarily anchored to the Financial Years 2010, 2011 and 2012 and the matters addressed in Section 3 of the Auditor-General’s Report.

“This finding may have implications for the range of documents falling outside this time period which can properly be sought.’ This is a strong indication that the Project is outside the Terms of Reference.

“Therefore and in short, the Commission and the Government disagree, and the Commission will have to make a ruling. Certain documents relating to the Project are protected by public interest immunity. They are contract documents subject to negotiation. Some documents are already in the public domain and have been provided to the PAC.

“Other documents cannot be disclosed at this time. They contain information and documentation that is proprietary to the developer. Until the negotiations are finalized, Government cannot release those documents. It would be in violation of a non-disclosure agreement.

“The release of confidential proprietary information would cause real and substantial harm to the commercial development partners and not be in the public interest. It would harm their commercial position and be in violation of our agreement.

“The release of this information would harm Bermuda’s reputation as a good place to do business. So it is for these reasons the request for information in these matters cannot be honored. After this Process is completed we look forward to working with the various parties to provide relevant information.

“I trust that these remarks make the Government’s position clear.”

click here Bermuda Commission of Inquiry into the Auditor's Report

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Comments (26)

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  1. dick francis says:

    so, the question is: why does the commission want to investigate the airport deal?

  2. mmm says:

    The redevelopment of the Airport, the projected cost, and parties involved has generated a lot of debate, a lot of serious, serious debate given its a very valuable source of income for the Bermuda economy….unfortunately it is not listed on the agenda for this Comission of Inquiry. The issue is not going to go away. With a wider lens one needs to look at whether or not individuals will have to pay out of their own pockets if it is determined that there has been gross over-spending within government departments.

  3. Aware says:

    How about the Commission completes its work with the projects everyone agrees are in scope and then, at a later date, if it is seen necessary, there is a second Commission relating to the airport project? This debate is actaually slowing down the original remit and matters that all agree are in scope which is unfortunate.

    • mixitup says:

      After we’ve committed too giving away 1 billion in revenue we should investigate why we did it? Brilliant idea!! smh at you and your 30 likes

  4. Vote for Me says:

    There is a very big issue at stake, beyond whether or not the airport should be within the remit of the Commission.

    If the Government does not agree with the Commissions underlying professionalism and integrity to determine what it thinks are relevant topics for review, then it should disband the Commission.

    In the absence of full cooperation from the Government, voters can rightly infer that the impetus for the Commission was a witch hunt, fuelled by political intent, to undermine the former PLP government.

    To add insult to injury, didn’t the Emissions Facility (Donal smith) recently appeal a decision by the Commission to review the Emissions contract? Are we seeing Government and Donal Smith on the same side of a legal argument??

    • thetruth says:

      The airport isn’t within the remit. It’s not a debate, it’s just a fact.

      If the Donal Smith thing is within the remit, it can be investigated. If not, it can’t.

      Commissions aren’t meant to be free-for-all fishing expeditions.

    • Zaob Yob says:

      The remit of the Commission was to investigate the findings of the Auditor Generals report which listed concerns regarding specific actions of a specific Government. The Emissions Facility was one of those specifically cited concern, the airport is not. The actions of Donal Smith and the OBA are in no way comparable.

      As simple as this is, it has the hall marks of another PR mess for the OBA

  5. Widget says:

    I say be transparent and let the commission do their job, investigate, Why because if there is nothing to hid then there is nothing to uncover.

    • Onion says:

      It’s not a matter of transparency. The government can’t ignore its obligations under a non-disclosure agreement.

    • Onion Juice says:

      Whats that a new drink, these jokers were crying Transparent, Honesty,Openess and Integrity when they were in opposition and P.L.P gave in to them.
      Then they turned around and put a spin on P.L.P. and their supporters and the FOOLS drank de corruption and 2000 jobs kool-aid.
      Watch how America drinks de Trump kool-aid.

  6. Terry says:

    Lots of “Acting” in this present government.


  7. Flikel says:

    The task of the Commission is simple…..find dirt on the PLP prior the next election. Other investigations and investigative bodies have failed to find any illegal PLP acts thus far. With the election relatively close, the OBA realizes they cannot win based on their record. They need help…..

    • Toodle-oo says:

      Multiple qualified audits and there was nothing going on ?
      If the OBA can’t win on their record does that make the disaster known as ‘the PLP’ re-electable ? Hardly

    • jt says:

      No dirt, no problem.

    • Zevon says:

      Looks like you’re concerned about the PLP record.

  8. Vote for Me says:

    @ thetruth and Zaob Yob (boaz boy?) Respectfully, you have missed the point. The OBA appointed international and local Commissioners to provide a report on government finances. during the appointment, each commissioner was lauded for the professionalism and integrity.

    The professionalism and integrity of the Commissioners now leads them to believe that the airport contract should also be reviewed.

    The OBA is now saying, notwithstanding the integrity and professionalism of the Commissioners, that they are incorrect in their assessment that the airport contract should be included.

    If that is the OBA conclusion, then why should the general public accept anything that the Commission includes in their final report.

    Put more simply, if the OBA can accept what the Commission says about the PLP, then why can’t they accept what the Commission wants to say about the OBA. You cannot have it both ways.

    This seems to be yet another PR disaster for the OBA, no matter how they spin it.

    • Zaob Yob says:

      If I contract with a mechanic to service my car, it does not authorise that mechanic to respray the car as well, no matter how good they be may be even if the car has rust spots. The truth is that the Commission was given clear guidelines to investigate the findings of an authoritative report which suggested wrong doing, by a prior Government.

      If you dismiss the political mud slinging and opportunism there is no substantive evidence of wrong doing with the airport deal. If such evidence is unearthed, then by all means commission an enquiry with a term of reference to deal with it.

      The Commission does not have the authority to write its own terms of reference.

      • Vote for Me says:

        If we except your analogy of the mechanic, a more complete example is that you suspect something is wrong with your car and take it to your trusted mechanic (lets say it takes a while to start and you suspect it is the starter).

        He then calls and says he thinks you need a new carburetor or perhaps an overhaul of your engine (an exaggeration but it works for your analogy)

        Because you trust his judgment, what do you do? Tell him to only check the starter because that’s where you thought the problem was?

        Now back to the real issue. The OBA was politicking when they set up the Commission. Having reviewed whatever information they have reviewed and conducted whatever interviews they conducted, the Commission apparently believes that a review of information related to the airport is relevant to their primary task (in general terms) to review ineffective or inappropriate government spending.

        It would be interesting to know what triggered the Commission to ask about the airport project. I think prior press reports also indicated that the Commission wanted to expand its review period beyond the period covered by the Auditor’s report. I don’t recall the same objection by the OBA.

        As indicated in my earlier email, irrespective of our individual opinions, this is another PR nightmare for the OBA.

        • Zaob Yob says:

          I think we are agreement in many aspects. Perhaps where we differ is in the intent behind the appointment of the Commission and the validity of the examination of the Airport Deal.

          An independent Auditor has evidenced what amounts to political wrong doing within a specific time frame and of a specific Government. What should we do about this? We could ignore it, or (and I believe correctly) examine it further to substantiate or dispel the concerns raised by the Auditor.

          You ask (correctly) what has triggered the Commissions interest in the Airport Deal. Is there some substantive evidence of wrong going rather than the political hog-wash we have heard to date? If so, and to use your expanded analogy, the Commission should recommend and ask permission to investigate further and not assume the right to do something that they have not been commissioned to do.

          Thanks for the discourse.

          • Vote for Me says:

            Thank you,
            May our comments be an example for others to follow. We can disagree without descending into unnecessary name calling.

            An interesting observation is that the OBA (Min. Richards) regularly ask for everyone to be patient while the airport deal is finalized. They will then release all details. At that point, if there are significant concerns, it will be too late for anything to be changed!!

            There must be a legitimate body that can be proactive in reviewing the contract before it is signed. If not the Public Accounts Committee or this Commission then who??

            Hopefully the Commission will at least inform the public about the basis for requesting the information related to the proposed airport contract.

    • Zevon says:

      Nope. The scope of the commission was clear. It wasn’t open-ended.

      • G30 says:

        So if the scope of the commission included the airport you’d have no problem looking into the deal?

  9. somuchless says:

    I’m still waiting on the report on jetgate.

  10. mmm says:

    Gross over-spending needs to be addressed, if its at the point of being incompetent remove the persons from office..if behaviour is criminal than prosecute and upon conviction or an admission of blatant wrong-doing garnish their wages.

  11. T says:

    Hmmnn. Hadn’t heard that name, Fahy, in a while. Was getting comfortable. The CoI was set up to review three years of mess, only?
    Well my my……
    How much sleep does one need to mince words? We can’t sleep.