COMMISSION OF ENQUIRY
INTO THE CONSTRUCTION SECTOR
PRESS STATEMENT
First, I would like to emphasise that it is wrong to say, as reported in the press yesterday, that the Enquiry into the Public Construction sector had “fallen down” or that it is “illegal”
Let me deal now with the legal issues. It seems to be generally accepted that the Commission, when issued by His Excellency the President on 9 September 2008 and extended on 10 December 2008 was not, as it should have been, published in the Gazette. That is a formality which can be cured at any time. However, it seems to be the opinion of most of the lawyers involved in the Enquiry that, unless and until it is cured, the Commission cannot take effect under the Commissions of Enquiry Act and the powers provided by the Act are therefore not available. If and when action is taken to regularise the Enquiry, it is suggested that publication in the Gazette at that stage will not have retrospective effect and that a validating statute would be necessary. I should say that a contrary opinion has been provided to the effect that gazetting at this stage would validate the Enquiry retrospectively. This matter is still under review.
Questions have been asked as to when all this came to the notice of the Enquiry team. The defect in our appointment came to my notice only over the last weekend, up to which point I and my colleagues were preparing for the short final hearing substantially on the issues set out in the second extension to Terms of Reference dated 21 May 2009. It appears that the defect came to the notice of others one or two days earlier, but the events which led to its discovery are unknown to me. Likewise I can throw no light at all on how the omission to Gazette the appointments came about.
I next deal with what is to happen about the issues which would have been the subject of this week’s hearing. This refers to the issues in the second extension to the Terms of Reference dated 21 May 2009 which concern alleged defective and delayed work at Cleaver Heights. On those issues the evidence and submissions have yet to be heard. It follows that a fresh commission can be issued (and Gazetted) at any time. That has not happened and as a result we do not intend to take any action with regard to those issues unless invited to accept a fresh Commission. If a fresh Commission is to be issued decisions will have to be taken as to who should be appointed as Commissioners and those Commissioners will have to decide whether they will accept the appointment. There the matter rests.
What of the remaining issues contained in the Commission dated 9 September and the extension dated 10 December? Those issues are now concluded, with the exception only of final submissions from Udecott (which have been partly delivered orally) and from Mr Calder Hart. If action is taken promptly to regularise the Enquiry we are in a position to write our report, subject to giving Udecott and Mr Calder Hart a reasonable opportunity to complete their submissions if they so elect. However we must also consider what is to happen if no action is taken to regularise the proceedings. In that event it does not follow that the proceedings which have taken place over 8 weeks have been “illegal” or of no effect. The Enquiry which has taken place remains perfectly valid under the common law as an ad hoc enquiry into the issues set out in the Commission issued by His Excellency the President. In addition, we have received certain evidence in the form of Statutory Declarations which remain valid independent of the Enquiries Act.
That being the case, there is no reason why the Report should not now be prepared as it would have been had there been no defect in our appointment, and this is what we intend to do. The Report will be prepared and sent to the President and can be retrospectively validated along with the proceedings themselves. We shall similarly give Udecott and Mr Calder Hart a reasonable opportunity to add anything they wish to the material we have before us. A large part of the issues set out in the Commissions do not concern Udecott or Mr Calder Hart and have been concluded. In respect of those issues it follows that the report to be written will be the final report. With regard to Udecott and Mr Calder Hart, should they decline to participate further in this enquiry without retrospective validation, the report which we will prepare will be an interim report, and will not draw final conclusions.
In setting out how we now intend to proceed, we are very mindful that there have been 8 weeks of hearings with many parties having given their time and effort, and many who have also borne substantial legal costs. We have heard evidence and submissions running to many 1000s of transcript pages. And the Government has borne the cost of providing all the facilities and personnel for the Enquiry. None of that can be undone. It goes without saying that many of these parties, as well as the citizens if Trinidad and Tobago, will want the Enquiry to be brought to a conclusion at the earliest possible time; and that is what we now intend to do
John Uff CBE QC 7 September 2009