INTERVENOR FUNDING – (H. Malcolm Gibbs-Taitt)
IT IS ESTABLISED, in this country of ours, that if someone is accused of committing murder, the courts allow the accused murderer to be legally represented, in much the same way that representatives of the dead person are permitted to pursue justice by bringing evidence to show how the innocent may have suffered at the hands of the accused.
With an application for a Rates Review, as is the case with the Barbados Light & Power Company Limited (BL&P), in 1983 when Objectors were allowed to be awarded costs, and, currently, where there is a state of flux as was with Cable & Wireless (Barbados) Limited in 2003, these are not by any stretch of the imagination to be equated to murder.
This writer is reminded when a former Prime Minister of this country took him aside and suggested there is no need to come across to the public in an aggressive manner in order to make a point. The admonishment was given, as an example, that to kill someone it may be possible to use a feather and a smile rather than a cutlass. To this day, I have remembered this lesson. For what it teaches, there are other ways to achieve a given result.
With a rate hearing, the intent of the Applicant is to have increased rates imposed on its rate payers who are their consumers. Therefore, without consumers, there would be no Utility. May I suggest, neither would there be any need for a Fear, Unfair or Fair Trading Commission (FTC). To go further, one has to question why Governments have not seen the obvious need to include the most powerful and important people in society – consumers – into the Social Partnership. All of us are consumers, unless by the mere dent of our financial position or ignorance we opt out of the loop.
By now we would know that as part of the process the Law allows for interested parties, called Intervenors, to represent fellow consumers in society. Unfortunately, the consumers of Barbados do not yet understand or appreciate the power they wield and will put up with whatever others in society throw at them, without creating much fuss, other than ‘the lotta long talk’ at the village bars and elsewhere.
The case for Intervenor Funding, as is conducted throughout the developed world by people who care about their communities, is nothing new. It is not some venture to discriminate against those who were called Lay Litigants, as if a perverted breed, but rather for people more accurately described as Public Interest Litigants to be a part of Participatory Funding.
At an Issues Conference, just concluded Thursday, 3 September, it was suggested that we put our case for funding to the Government. This shows a level of ignorance that people charged with commissioning a Regulatory Authority should not be credited.
I have to submit, that just as the Applicant will write the cheques to the FTC, as mandated by Law, its own army of Lawyers, Consultants and others attached to it, that those representing consumers must have similar treatment. They must not be told to be good volunteers. Let them alone decide for what they will volunteer. In fact, regardless of who writes the cheques, the consumers are the eventual payers of everything. To not understand this simple reality is to deny a people their rights in a democratic society.
There are two (2) fundamental and overriding recommendations for this type of funding:
- To establish the right to participate in the decision-making process
- To ensure adequate resources to make public participation in decision making meaningful.
Establishing the right to participate in the decision-making process
The legislation governing the FTC already permits for Intervenors to be a part of the process. Further, the Constitution of Barbados also provides for this right of assembly and participation.
Even the right to participate is not fully established by the FTC. Calls, on the eve of a Confidentiality Hearing, to the President of the Barbados Consumers Research Organisation, Inc. (BARCRO), Mr. Carl L. Ince – a former Ombudsman of Barbados – and me, as Representatives, were hastily made from the FTC to inform that as Intervenors to this Hearing, we were not welcomed at the Hearing conducted earlier on the morning of 3 September. We became members of the Public.
We have not grown up yet. Apart from the discretion of the FTC, nowhere in the Legislation or the Utilities Regulation (Procedural) Rules, 2003 does it stipulate that those who are party to the process are to be excluded from the very process. To think that those making these decisions are not those horrible Colonialists but people who look like us, is indefensible. One is reminded of the proverbial crab-like behaviour that will climb on the backs of others and once out of the barrel, carry on their merry way without even a glance at those on whose backs they trod.
Ensuring adequate resources to make public participation meaningful.
Let me quote from the Canadian Environmental Defence Fund, commissioned by their Ministry of the Environment (MoE) to conduct a study of the effectiveness of intervenor funding in Ontario. The study concluded:
- “Intervenor funding is an important part of the environmental decision making process in Ontario, and although it can be taken for granted, it is essential in providing environmental justice. Funding intervenors should not only be made a permanent regulation, it should be strengthened as recommended in this study and the province should make a continuing commitment to the funding of participants so that private or environmental interest group resources are not constantly threatened by new projects or policy changes.”
The study also states, “Funding is not an endpoint – it simply provides a means for the public being at the table. Progress forward requires the inclusion of participant funding rather than just intervenor funding.”
Reference to the above quotations is apt, since the very Fair Trading Commission Act, CAP.326B, owes as part of its Genesis, sections borrowed from the Act in Ontario, Canada. Section 46 of the Act, gives the FTC the discretion to award costs to parties. Except that the word “costs” is problematic and the High Court has already ruled on this matter. So, as Intervenors, we have to rely on Out-of-Pocket Expenses based on Cost Assessment Guidelines until this is corrected by our Parliament.
In a Notice of Motion to the FTC, the Representatives for BARCRO cited two (2) distinct issues for agreement: that Intervenors be awarded as per the High Court OPINION and “that WITNESSES, as may be summoned by Intervenors, be recompensed as per a schedule, in accordance with standard accounting procedures that shall be determined, at an ISSUES CONFERENCE of the Fair Trading Commission.”
Instead, the FTC never addressed the schedule but suggested that witnesses be “public spirited”. This is ridiculous and a travesty of justice. Since no one is suggesting that the Lawyers, Consultants and those attached to the BL&P and putting the case for the Applicant and, hence, against the consumers who will be the eventual payers, be public spirited, it is a gross insult to our justice system to deny WITNESSES, putting the case on behalf of consumers, equality of opportunity. This is not equity.
After all, during the 23 years from 1983 to 2005, BL&P’s Audited net income, prepared in accordance with the Historical Cost Convention as modified by the revaluation of property, plant and equipment, racked up profits of $220.948 million. For the 3 years from 2006 to 2008. Audited net incomes, without modifications, were $95.090 million or $31.697 million per year. It is to be noted that during those 26 years the Grand Total of, at least, $316.038 million have accumulated and, for not one year did BL&P make a loss.
Moreover, there is a cost for justice but to show that the results are fair and reasonable; injustice, too, carries a cost, except that added to that burden are unfairness and unreasonableness being the attendant baggage that the consumers eventually must carry.
H. Malcolm Gibbs-Taitt
Consumer Analyst
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