Is your MP transparent about business interests?

The Parliamentary Select Committee on Elections was established in September 2013 with the mandate of examining and reviewing any matter relating to elections and report its finding and recommendations to Parliament. The Committee released its report on Monday, 10 March 2014.

As part of its preparations towards compiling the report, the Committee formally invited Centre for Justice to provide a legal opinion on the obligations of candidates in Parliamentary Elections to make disclosures of contracts that they may have with the Government of Bermuda.

The obligation of disclosure is contained in section 30(6) of the Bermuda Constitution Order (“the Constitution”), as supplemented by the Legislature (Qualification and Disqualification) Act 1968 (“the Act”).

We agreed to provide this legal opinion because (a) the request was made by a bi-partisan committee, (b) it involved a question of general public importance, and (c) it is part of our remit to raise public awareness on constitutional issues and the rule of law in general. However, as Centre for Justice is a non-partisan organization, we have confined our opinion strictly to a legal analysis of the issues involved.

To come to our legal opinion, we broke the issues down as follows:

(1) Whether the provisions of the Act are inconsistent with the Constitution?

(2) If the Act is inconsistent with the Constitution, which prevails?

(3) If the Act is consistent with the Bermuda Constitution, what is the legal obligation for a candidate in a Parliamentary election to declare any interest in any government contract?

(4) If there is such a legal obligation, what is the scope of that obligation?

After some preliminary research, we considered an additional issue:

(5) Whether there is a distinction between political “insiders” and “outsiders” as regards the obligation to declare such an interest?

To come to our conclusion on the issues, we instructed the services of a London-based Queen’s Counsel with expertise in public law. As part of our preliminary research, we collected and read through Hansard transcripts of proceedings in the House of Assembly connected to the Committee’s work, particularly, from the dates of 21 June 2013 and 5 July 2013. We also

collected various media reporting from December 2012 through October 2013. We also attended public hearings of the Committee and reviewed the transcripts of those hearings. This material, together with the relevant law, formed the basis of our opinion.

After seeking independent legal advice, our conclusions to the above-posed questions are as follows:

(1) The provisions of the Act are not inconsistent with the Constitution.

(2) The Constitution obviously prevails, and the significance of this is that the dominate provision is that there must be disclosure of an interest in any Government contract. This is subject to the exemptions and limitations contained in the Act, which should be interpreted narrowly so as to detract to the minimum extent possibly from the dominant requirement. Justification for any lack of transparency must be clearly demonstrated.

(3) The legal obligation for a candidate to declare an interest in a Government contract is that he or she must do so under the Constitution unless they come clearly within one of the exceptions in Section 10 of the Act.

(4) When disclosure is required it is mandatory. The sanction of disqualification for non-disclosure is automatic. The obligation does not apply only if the situation comes four square within one or more of the exemptions or limitations within the Act.

(5) There is no distinction between political “insiders” and “outsiders” as no such distinction is made by the Constitution or the Act. The law does not refine what a Member’s interests are, just the circumstances in which an interest must be disclosed. To that end, there is no obscurity in these legal obligations, and no qualification to the duty of disclosure is made by reference to the concept of “outsiders”.

Centre for Justice would make the following recommendations in respect of the above issues:

(1) To the extent that there are ambiguities in the Act, it would be appropriate to legislate promptly so as to remove them.

(2) The legislation should also provide for by whom and how the requirements are to be policed and enforced.

(3) Prominence should be given to the requirement of disclosure on the nomination papers which Parliamentary candidates must submit to take part in an electoral campaign.

Our full opinion is annexed to the Committee’s report. Centre for Justice wishes to thank the Committee for engaging us as part of its work.