Published Thursday 10th September 2009

Last week’s Property Matters ended on the note of predicting that ‘amazing scenes would be witnessed’ and here they are, in spades.

The shocking news that the Uff Commission has been functioning in breach of the Commissions of Enquiry Act could only increase the cloud hanging over these proceedings. From the outset, there have been questions as to the underlying purpose of the Enquiry; the behaviour of UDeCOTT’s and Calder Hart’s attorneys; the continuing probe into the Cleaver Heights housing project and the official silence on the Bob Lindquist findings, to name just a few. This latest news that the Enquiry was ‘stilborn’ is likely to increase these concerns and deepen the atmosphere of public skepticism.

A key part of my concern is with the official version, which has recently taken root, that the Enquiry must be completed and its report considered by Cabinet, before any possible criminal charges can be laid. That is a most alarming informal statement that the police are under the direction of Cabinet. If that is really the case, we are seeing two detrimental things at once.

Firstly, the reason why the vast majority of the Commission’s time has been spent on matters better explored by the Police Service and the Courts. That focus on investigating alleged illegal acts has denied the Enquiry the time necessary to probe the broader strategic issues which underlie the performance issues in the public-sector construction industry. To have made a difference, the greater part of the Enquiry’s time should have been spent on probing the decisive issues of project selection, ranking, costs, quality and delivery. Even if all the wrong-doers are found guilty and punished by the Courts, we have not, in my view, made a proper enquiry into the failures of process that got us into this mess. If we did not ask the right questions, there is no way we can do better.

Secondly, we are being told, in not so many words, that unless and until the Cabinet approves such, no one is to face criminal charges. To my mind, that is plainly wrong and could only undermine our progress to ‘developed nation status’. Despite the stated goal of modernity, we seem to remain in thrall to Sacred Cows. How to escape the culture?

I was present on Monday morning (7th September) at the press conference held by Professor John Uff, the Chairman of the Enquiry. The text of his prepared statement can be accessed here.

Despite several questions, Professor Uff, declined comment on what could be the cause of this failure to properly establish the Enquiry on a legal footing. It seems that the fact that the Uff Commission was not published in the T&T Gazette only emerged on Friday 4th September and Professor Uff told us that he was only told on Saturday afternoon.

The Uff Commission was a remarkable spectacle, even by our unique standards. I have never seen so many lawyers in one room and it did make me nervous from the start, for whatever reason. Two of the original Commissioners and the head of the team of legal advisers to the Enquiry are silk and there was an impressive roll-call of other silk representing their clients –

• Frank Solomon, appearing for Calder Hart;
• Russell Martineau (former Attorney General), appearing for NIPDEC;
• Deborah Peake, appearing for the Housing Development Corporation;
• Gilbert Peterson, appearing for Dr. Keith Rowley MP;
• Douglas Mendes, appearing for the Attorney General;
• Alvin Fitzpatrick, appearing for the JCC;
• Andrew Goddard, appearing for UDeCOTT.

I am finding it very difficult to believe that so many learned colleagues missed this legal oversight and one has to wonder when it was really discovered. I leave that there.

What is the solution? By now, we have heard the conflicting opinions as to whether a retrospective ‘gazetting’ of the Enquiry can imbue it with legality and whether a ‘Validating Act’ of Parliament can have better effect. However you look at it, there is no doubt that the decisions on what, if anything, to do and how to do it, are for the government to make. That is where the whole situation gets fascinating, since this new twist to the Enquiry is both an opportunity and a threat to the government.

Throughout this process our PM has been unswerving in his support of UDeCOTT as a flagship State Enterprise, doing outstanding work on the road to ‘developed nation status’. In his historic address to the Senate on 13th May 2008, the PM was absolutely clear that his government has nothing to hide and further, that he was confident that any Enquiry would vindicate their faith in UDeCOTT. Considerable political capital has been invested in supporting UDeCOTT and the stakes are clearly very high.

At this point, cynics might say that the Enquiry has uncovered troubling issues in the operation of UDeCOTT, which must have been of growing concern to the PM, given his earlier declaration of faith. One could even go further to say that the recent discovery of this legal oversight would give a nervous government a handy way to thwart what could have been a damaging report.

I have another view. It seems to me that the PM’s declaration of support was an unmistakeable statement of integrity and purpose. It would be impossible to resile from that position without inflicting deep damage to ones own notions of integrity in public life. I cannot easily imagine our PM leaving this situation to fester without ensuring that the necessary legal steps are taken to ensure the Enquiry’s legality and proper completion. It would be an ‘own-goal’ of shocking proportions and it seems to me very doubtful that the PM would allow that outcome.

Which leads to the dreaded possibility of the ball being ‘kicked into the long grass’. Yes, I am referring to the probability of this entire Enquiry descending into a legal mangle of epic proportions. Professor Uff did say that he was trying to have the issues resolved by agreement. Given the atmosphere at the Enquiry, I am doubtful that an agreement between the parties is possible, or indeed, even desirable.

I have taken the unusual, and possibly unwise, step of making a political prediction in this column and yes, only time will tell.

Afra Raymond is Managing Director of Raymond & Pierre Limited. Comments can be sent to afra@raymondandpierre.com