The Commission of Inquiry began publishing more transcripts of its initial hearings regarding potential misconduct and corruption in the VI. Sir Gary Hickinbottom oversaw the hearings. (File photo: DANA KAMPA)

The United Kingdom’s Commission of Inquiry has been pressing forward with seeking evidence of corruption and misconduct in the territory, holding a series of hearings focused largely on document production.

“In respect of production of information and documents, the hearings followed letters of request of mainly ministers and other public officials to make voluntary disclosure to the COI,” the commission announced on May 17. “The disclosure made following those requests, although purportedly full, appeared incomplete; and, after five days of hearings at which the commissioner took evidence from a number of summonsed witnesses, it was clear that the disclosure made was substantially incomplete and in poor order.”

On May 7, Natural Resources, Labour and Immigration Minister Vincent Wheatley became the first elected official to testify before the inquiry, and on May 18 the COI released the transcript of his hearing alongside NRLI Ministry Permanent Secretary Dr. Marcia Potter.

Also on May 18, the COI released the transcript of its May 4 hearing with Cabinet Secretary Sandra Ward, and on May 17 it released the transcript of its May 6 hearing with businesswoman Patsy Lake.

The transcript of a May 13 hearing with BVI Airports Authority Chairman Bevis Sylvester, Chief Immigration Officer Ian Penn, and government lawyer Sir Geoffrey Cox was published as the Beacon went to press on May 19.

The commission also announced that Premier Andrew Fahie was scheduled to testify on May 18 and witnesses including Claude Skelton-Cline, Permanent Secretary Carolyn O’NealMorton, and acting Financial Secretary Jeremiah Frett were also scheduled to appear before the COI in recent days, though the related transcripts were not published before the Beacon’s deadline on May 19.

Wheatley testimony

Mr. Wheatley appeared with Attorney General Dawn Smith and Solicitor General Jo-Ann Williams-Roberts. Attorneys Richard Rowe and Daniel Fligelstone Davies from Silk Legal (BVI) Inc., a law firm based in Road Town, also appeared on his behalf.

Dr. Potter testified at the same hearing, answering questions about her career in civil service and explaining how the NRLI Ministry functions.

The 120-page testimony transcript showed that COI Commissioner Sir Gary Hickinbottom said that the inquiry is in “information-collecting mode,” which is why it is summoning members of the House of Assembly.

He and Mr. Rowe debated whether government leaders would be testifying as representatives or private citizens, especially considering the legal precedent that no person giving evidence to the COI could be compelled to incriminate themselves.

“As soon as any suspicion or allegation or criticism within the scope of the terms of reference is made of a minister, then I think the attorney general accepts that she would have to bow out because of the potential conflict of interest,” Sir Gary noted while discussing Silk Legal’s participation in the proceedings.

Crown land

Once that was established, Sir Gary proceeded to ask Mr. Wheatley about his professional life before becoming a politician, then focused on one of four information requests sent to Mr. Wheatley in his capacity as minister.

The request focused on three matters: the VI government’s process for the disposal of Crown land, including leasing land; the details of all such disposals within the past three years with records justifying the decision and the valuations of the land; and details of Crown land disposed in the last 10 years regardless of whether government received payment for it.

Sir Gary asked Mr. Wheatley and Dr. Potter why the ministry had reported that it didn’t have records for the third point.

“I really cannot say,” Mr. Wheatley responded. “I’ve only been there for the last 27 months. So I have to take them at their word in this case, right?”

When Sir Gary pressed him if it was accurate that the records weren’t available from the more than two years since he took office, Mr. Wheatley said he would have to assume so.

The commissioner asked if government ever received partial payment for Crown land, and Mr. Wheatley said yes, though he wasn’t aware of a time someone received a title before making full payment.

Sir Gary also inquired about the Comprehensive Land and Marine Estate Policy, noting that there is currently no management plan for overseeing Crown lands. Mr. Wheatley said the policy should be finalised within about six weeks.

Land costs

Sir Gary asked how the cost for Crown land lots is calculated. The minister said it is typically calculated as $1 or $2 per square foot, depending on the location and history. For commercial use, he added, the rates are much higher.

The commissioner asked if a valuation report would be obtained for disposing of Crown land regardless of commercial or residential use, and Mr. Wheatley answered in the affirmative.

Sir Gary also asked Mr. Wheatley about his power to recommend a land sale to Cabinet and what criteria are used to allocate property — especially given that the minister had noted there are thousands of applications and a limited amount of land.

Mr. Wheatley said allocations are guided by specific land committees, but ultimately his ministry is responsible for making a recommendation to Cabinet.

He also noted the role of the Premier’s Office in assessing the impact of the sale on the community and environment before a sale is approved.

Mr. Wheatley also noted that more research is needed into how frequently people who are leasing Crown land have been late in making payments.

Valuation reports

At the conclusion of the hearing, Sir Gary sought the valuation reports Cabinet uses to make decisions on disposing of Crown land.

Mr. Wheatley said the reports only became a requirement within the last year, but they would sometimes be provided anyway.

Sir Gary said he didn’t believe that all the relevant papers for how the decision is made to sell Crown land were provided to the COI.

Dr. Potter said that confirming this suggestion would require a search through physical records boxed up during the recent move from the Ralph T. O’Neal Administration Building.

Sir Gary replied, “Now, you may be right that the officer may have taken a decision for practical reasons as to why they couldn’t comply with the request. As you’ve explained, the files are held in boxes in another building. The difficulty for the commission was that we were not told that. We simply were given what we were given.”

He suggested that the commission assist in inspecting the hard copies, and Mr. Wheatley and Dr. Potter agreed.

“I can’t tell you how much time would be needed to research them, but we certainly will do our best to try to identify all that are necessary for this inquiry, but it’s a lot of files and a lot of boxes to go through,” Dr. Potter said, noting a mould issue as well.

Sir Gary also requested any digital versions of documents created after the ministry switched to using ExcoTrack in 2019, specifically regarding missing documents for the transfer of Crown land to the BVI Airports Authority.

Patsy Lake

At Ms. Lake’s hearing on May 6, the commissioner sought more information about contractual arrangements she entered into with government within the past three years. These, he said, include documents for arrangements with any company or business with which she is associated.

Ms. Lake is deputy chair of the BVI Airports Authority, a member of the Social Security Board, and a director for Cyril B. Romney Pier Park, she told the commission.

Sir Gary noted that Ms. Lake was invited to produce documents voluntarily, “which she has refused to do.”

“We have summonsed her so that she can assist the commission because, in my view, she has documents which may be relevant to the terms of the Commission of Inquiry,” he said.

Terrance Neale, her legal representative, and Sir Gary spent much of the hearing debating the need for her participation. She eventually agreed to participate as a witness.

Sir Gary inquired about her board appointments and stipends, and also sought details of her career as a businesswoman. She responded that she facilitates rentals for events and owns commercial and residential real estate and a small hotel — enterprises that sometimes do business with government — as well as other businesses not involved in government services, including a beauty salon, barbershop, health spa and restaurant.

She also said that after receiving payment for her businesses, she typically destroys all paperwork.

Sir Gary later asked about any records she may have retained for tax purposes. Asked if she would look for records of providing services to government, she indicated that she would try.

“If I can find it, you’re more than welcome to it,” she said. “If not, there should be an agreement written in the Health Ministry.”

Ms. Lake expressed frustration at a delay in being paid by government for her hotel, Paradise Suites, to be used for quarantine as a prison during the pandemic.

Regarding equipment rentals and events, she said she does not have a standing contract with government.

She noted that she rents property to the Premier’s Office and BVI Ports Authority.

Sir Gary concluded by asking about her role with the BVIAA board, specifically mentioning the runway extension. He said Mr. Sylvester, the board chair, had not yet responded to letters of request from the COI from April 6 and 7. Mr. Sylvester was summoned to appear before the COI on May 13.

The commissioner later issued a ruling explaining why he refused to set aside her summons and denied her request to participate in the whole of the inquiry.

Cabinet secretary

Ms. Ward, whose hearing was held on May 4 with Ms. Williams-Roberts and attorney Sara-Jane Knock of Withers LLP, answered questions about Cabinet reports, government policy matters and declarations of interest. The transcript was published on May 18.

Sir Gary asked her about avenues for civil servants to share any concerns over the conduct of a minister.

“During your time in the civil service, did you ever become aware of other civil servants who had legitimate concerns about politicians or ministers but did not feel able to raise them?” Sir Gary asked, to which she said no.

She also said she was unaware of any instances where a member of government has failed to declare his or her interests before Cabinet when required.

COI Counsel Bilal Rawat also asked about the extent to which legislators can discuss private policy matters outside of Cabinet, and what oversight measures are in place. Ms. Ward said she wasn’t aware of any current conventions.

She also noted a recent lapse in producing Cabinet reports during the pandemic last year, describing the difficulty of keeping up with about 94 Cabinet meetings — about double the yearly average — that could sometimes last as long as 12 hours, especially with a limited staff.

Sir Gary asked about the possibility of the COI team coming to inspect the electronic Cabinet records. Ms. Ward said she would have to seek advice.

The commissioner also sought more information about a proposed app for Covid-19 contact tracing.

Procedural matters

The commission also published several orders on May 17 related to participation in the hearings and what information witnesses still need to give the commission regarding issues like the BVIAA runway expansion.

Order No. 1, originally dated May 4, directs the attorney general to lodge written submissions with the COI regarding the role of Sir Geoffrey Cox and Withersworldwide. The order said Sir Gary would determine if they could appear for government ministers based on instruction from Ms. Smith.

Order No. 2 outlined how Ms. Ward would conduct further searches and follow up on the COI’s letter of request to her. It instructed her to provide final Cabinet minutes or copies of draft minutes if that was the only available record.

Order No. 3, dated May 6, permitted Terrance Neale of McW Todman & Co. to be present while Ms. Lake gave evidence.

Order No. 4 was dated May 10, and it declared that all members of the House of Assembly would be represented by Silk Legal (BVI) Inc based on Mr. Wheatley’s request that Mr. Rowe and Mr. Fligelstone represent him in the COI.

Order No. 5, dated May 13, dealt with the legal representation of representatives Kye Rymer, Dr. Natalio Wheatley, Sharie de Castro, and Shereen Flax-Charles, as well as the departments and offices they oversee. The order said they requested Silk Law represent them “on the basis that they had no confidence in the attorney general as a result of her conflict of interest but have now made an application to be represented by the attorney general in that capacity.”

Order No. 6 allowed Nelcia St. Jean to be present while Mr. Sylvester gave evidence. It also asked Mr. Sylvester to provide a substantive response to the COI’s request for information regarding his role as board chair of the BVI Airports Authority; confirmation of his date of appointment; correspondence between him and government about his appointment; all documents relating to his acquisition of Crown land; correspondence between him and Terrance Neale about board members’ declarations of interest; a report from December 2019 assessing the future of air transportation in the VI and the organisation of the BVIAA; government reports from the past 10 years related to the airport runway expansion; and BVIAA board minutes from the past three years related to the runway expansion.

Order No. 7 directed Chief Immigration Officer Ian Penn by May 18 to provide: the expedited extract of Cabinet Memo Number 008-2020; two attachments to an email sent from Greg Romney on July 19, 2020 regarding a joint task force; the confirmed dates for when the Immigration Department started background checks; and any other information falling within the scope of a letter of request sent to him April 13.