In a perplexing twist, legislators have chosen to decline the services of Attorney General (AG) Dawn Smith as their Counsel in the ongoing Commission of Inquiry (COI).
The lawmakers have opted instead to be represented by BVI law firm, Silk Legal.
The legislators, citing concerns of conflict of interest through Silk Legal attorneys Richard Rowe and Daniel Davies, argued that the AG had “been requested to give evidence before the Commission of Inquiry”.
Rowe confirmed at a hearing on May 7, 2021 that his application was not made by the House of Assembly as a body – but rather by 14 of the 15 Members of the House (excluding the AG) as individuals in their official capacity as part of the legislature.
Previously, Smith argued steadfastly before Commissioner Sir Gary Hickinbottom that there was no inherent conflict of interest in her ability to represent the Members of the House of Assembly and said she was “uniquely well placed” to do so.
In that previous hearing, despite her heavy workload and whilst indicating she maintained a neutral stance in respect of the application, the AG expressed herself ready, willing and able to represent each of the Members of the House in respect of the COI.
“As appeared to be common ground at the time, there was no conflict of interest in her acting for both Ministers and Members of the House, particularly as their respective interest in the COI was essentially the same.” Sir Gary said in his ruling on the issue.
Part of Silk Legal’s contention was that AG Smith has a conflict given that she was a Permanent Secretary to the Office of the Premier as recently as 2019 and was also the General Counsel to the Financial Services Commission (FSC).
They felt that she would, as such, be made a “compellable witness before the Commission of Inquiry”.
This, however, did not appear to be the main or even the most important challenge to the AG’s prior denial of a conflict of interest.
Silk Legal further argued that AG Smith has a “vested interest in the outcome of the enquiry [sic]” because she has two brothers who will also be subject to the inquiry; namely former Financial Secretary Neil Smith and Managing Director of the BVI Airports Authority, Clive Smith.
In yet another submission by Silk Legal, they argued that “it would be open for the representatives of the present House of Assembly to cross-examine [the AG], as they are no doubt to be considered participants in the Commission of Inquiry.”
Three the hard way
Sir Gary said while he did not express a view on the submissions for a change of representation, three of the Ministers who are before the COI expressed confidence in the AG’s representation and will continue to be represented by her.
He stated that they are now making arguments that are of a “diametrically opposite effect”.
While accepting that a Member of the House who is also a Minister has two constitutionally distinct public posts, Sir Gary said, “the three Ministers cannot have it both ways”.
Those ministers have been identified as Andrew Fahie (Premier and Minister of Finance), Carvin Malone (Minister for Health and Social Security) and Vincent Wheatley (Minister for Natural Resources, Labour and Immigration).
Sir Gary, in his assessment of the submissions by Silk Legal said, while part of the submissions lack clarity, “whatever they have in mind, it is clear that the Members of the House for whom Silk Legal act reserve the right to be antagonistic to whatever she might put forward and may wish to controvert her and “cross examine” her on it.”
Just recently, attorneys Rowe and Davies of Silk Legal appeared on the Honestly Speaking radio show with host, Claude Skelton Cline.
There, Rowe decried the apparent colonial bent of the Inquiry and referred to it as a “last lick from the outgoing Governor [Gus Jaspert]”.
Openly questioning its foundation in the process, he further argued that no prima facie case had been established to begin the COI.
Meanwhile, it remains unclear what kind of bill taxpayers will be left to face now that yet another law firm in the form of Silk Legal has been brought into the fold to defend the interests of the legislators.
Already, Queens Counsel Sir Geoffrey Cox has joined the team at the BVI government’s behest to represent their interests.
While the AG accepted the proposition that, by instructing Silk Legal, there would be an additional burden on the BVI public purse, Attorney Rowe told Sir Gary that it was “unlawful” for him to question the financial prudence of the move and whether it would result in a duplication of efforts.
In the ruling, Sir Gary stated: “The obvious, efficient and cost-effective course would, on the face of it, therefore have been for the Attorney [General] to represent the Members of the House as well as the Ministers, etcetera whom she already represents.”
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