Judicial review granted over 'fundamentally flawed' HCA consultation


Attorney Fred Smith QC


Tribune Freeport Reporter


FREEPORT attorneys Fred Smith QC and Carey Leonard have been granted leave by the Supreme Court for a Judicial Review seeking a declaration against the government that the consultation process of the Hawksbill Creek Agreement Review Committee (HCARC) is illegal and “fundamentally flawed”.

Mr Smith, a partner at Callenders and Co, and Mr Leonard, a senior associate with the firm, filed an application on July 24 for leave to apply for Judicial Review, which was granted on August 7 by Supreme Court Justice Petra Hanna Weekes.

The case is being brought against three respondents - Prime Minister and Minister of Finance Perry Christie, Dr Michael Darville, Minister for Grand Bahama, and Dr Marcus Bethel, chairman of the HCARC.

According to the application filed, the proposed Judicial Review proceedings relate to the actions and decisions of the respondents and/or each of them in relation to a fundamentally flawed consultation exercise, initiated by the government, regarding proposals to amend or extend certain provisions of the Hawksbill Creek Agreement (HCA) and to increase the amount of government revenue raised from Freeport.

The consultation process was conducted on behalf of the government by the HCARC, which was appointed by government. The consultation exercise itself was founded upon a report commissioned by the government from management consultants, McKinsey & Co (the McKinsey Report).

Messrs Smith and Leonard surmise that the McKinsey Report includes factual information which has informed the committee’s deliberations on the recommendations which they have made to the government, and specific proposals which the committee has considered before making its recommendations to the government.

They suggest that the respondents, in clear violation of the principles of proper and lawful consultation, refused at any time to make the vital report available to the public, or even to the people whom the committee was purporting to consult.

On April 10, Mr Leonard was invited to appear before the Committee on April 17. Prior to his appearance, he had made a request through his personal assistant to the secretariat of the committee for a copy of the McKinsey Report, but was informed that it was unavailable for the public.

On April 17, when he appeared before the committee, Mr Leonard asked directly for a copy of the McKinsey Report. Dr Bethel denied his request. Mr Leonard explained that without the sight of the report he was not able to a make informed or substantive representations on the topics he wished to address, including the Customs regime, industrial area and the cost of electricity and how to reduce it.

Mr Smith received an email on April 29 sent on behalf of the respondents informing him of town meetings which the committee intended to hold in Grand Bahama from May 4 to 7. He replied by email asking for a copy of the McKinsey Report to be circulated beforehand, but no response was received to that request. Both Mr Smith and Mr Leonard wrote a letter to Dr Bethel dated May 7, requesting a copy of the report, but no response was received to their letter.

In their application for Judicial Review, Messrs Smith and Leonard maintain that the McKinsey Report “is central to the consultation exercise”.

“So we have challenged the government using that report as a basis for our consultation, yet it is being kept secret,” Mr Smith told The Tribune on Friday. “We brought this case for a declaration that the consultation process is fundamentally flawed because we were not properly consulted, we were not given a copy of the McKinsey Report and we are asking for an order that this report be produced to everyone in Freeport.”

On September 4, the attorneys’ application for an Interlocutory Relief in the form of an injunction to stay the first and second respondents’ decision-making process regarding the potential changes to the provisions of the HCA and the economic and fiscal governance of Freeport, will be heard in the Supreme Court.

“We are going to be asking the court to give an injunction until the trial stopping any further consultation until production of the McKinsey Report, and for an order of the production of the report,” said Mr Smith.

The trial for Judicial Review is set for September 24.


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