Providenciales, Turks and Caicos Islands, 23rd July 2024 - On 8th November 2023, Fortis TCI Limited (“Fortis”) brought judicial review proceedings against the current Energy and Utilities Commissioner and Her Excellency, the Governor of the Turks and Caicos Islands alleging that the Commissioner has a personal background in and a vested financial interest in the supply of solar installations which was incompatible with his role as the Commissioner under the Electricity Ordinance and proposed new Renewable Energy and Resource Planning Bill and was therefore affected by apparent bias. Fortis also challenged Her Excellency the Governor’s decision not to reconsider the continued appointment of the current Energy and Utilities Commissioner considering their allegations.
Fortis urged the Supreme Court to:
- Declare that the Commissioner is subject to apparent bias and should recuse himself from all matters concerning Fortis, as a result, and thereby that it is impractical for the Commissioner to continue in office.
- An order of mandamus directing the Governor to consider whether the Commissioner can continue in that post in light of those allegations.
Following many months of arguments about whether the matter should be allowed to go ahead at all, the Governor was removed from the proceedings because she was not the correct party, and the Deputy Governor was substituted. The substantive Judicial Review Hearing took place on 20th June 2024 during which the Court heard arguments from both sides and had the benefit of substantial affidavit evidence from both sides.
In a decisive ruling, delivered on 19th July 2024, His Lordship Mr. Justice Chris Selochan found in favor of the Government, affirming that there was no evidence to support the claims of apparent bias against the Energy and Utilities Commissioner.
While the written ruling is pending the Court read out in open court a summary of its decision to dismiss Fortis’ application for judicial review.
The central issue the Court had to ask itself was whether the Commissioner should be disqualified from holding that position on the ground of his personal interest in a company involved in solar energy in the Bahamas.
The Hon. Attorney General Rhondalee Braithwaite Knowles OBE KC, Principal Crown Counsel Clemar Hippolyte and Senior Crown Counsel, Khadija Mac Farlane made robust arguments and provided affidavit evidence demonstrating the Commissioner’s early disclosures, compliance with the Integrity Commission’s advice and his general adherence to legal and ethical standards.
Having agreed that the test for apparent bias was not whether Fortis or any other interested party thought there was bias but rather is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased, the Court found that the fair-minded and informed observer would consider, inter alia, the following:
- The position of the Commissioner requires specialist knowledge and experience;
- The TCIG and Fortis had on 22 April 2022 signed a climate change charter which predated the Commissioner’s appointment;
- The Commissioner’s role and functions do not primarily involve the formulation of policy.
While the fair-minded observer may have concerns about the Commissioner’s involvement in his company in the Bahamas, these concerns are assuaged by the fact that the Commissioner disclosed the same to the TCIG and the Integrity Commission at the earliest opportunity.
The Court also stated that it cannot be disputed that the Commissioner’s role involves interfacing with Fortis on energy-related issues. However, the Court was of the view that the fair-minded and informed observer would not conclude that the Commissioner was involved in advancing the cause of renewable energy for his own self-interest.
The Court was of the view that the fair-minded and informed observer would find that the fact of the Commissioner having a business in Bahamas as opposed to the Turks and Caicos Islands, was too tenuous of a link to establish apparent bias.
The Court further found that the fair-minded and informed observer would also note that the Commissioner sent several correspondences to the Integrity Commission seeking to clarify its advice upon taking up his office and had adhered to that advice.
The Court was, therefore, not satisfied that the Commissioner was subject to apparent bias and dismissed Fortis’ application for judicial review.
The Minister for Public Safety and Utilities, Hon. Kyle Knowles, said, “The Government is undertaking significant reforms in the energy and utilities sector, which will build a firm foundation for a strong energy future in the Islands. The Government’s successful defense in this matter signals that while the Government remains committed to maintaining the integrity and transparency of its regulatory processes, independent judicial scrutiny of the Deputy Governor’s decision not to remove the current Commissioner in the face of the allegations brought by Fortis, give credence to the Government’s well-placed confidence in the professionalism, fairness, and impartiality of the current Energy and Utilities Commissioner’s actions. The government is committed to upholding the rule of law and ensuring that all officials perform their duties to the highest ethical and professional standards. This ruling is a testament to the rigorous standards of accountability and transparency that the Government strives to maintain.”
Commenting on the ruling, the Honourable Attorney General said, “We are incredibly pleased with the Court’s decision. This confirms our position that the Deputy Governor and the Energy and Utilities Commissioner acted appropriately throughout, without bias, and in full compliance with the law. This outcome reaffirms my Chambers’ dedication to assisting TCIG decision-makers in ensuring their decision-making is sound, fair, and impartial. It also affirms the advice of the Compliance Unit of the Integrity Commission, which had earlier considered the circumstances and advised the Commissioner on how to handle them. Having acted faithfully in keeping with that advice, the Commissioner is also vindicated. We are relieved for the Commissioner who ably withstood the personal and professional pressures this challenge brought yet continued to press forward with the Government’s agenda in the face of it.”