Ministerial discretion: Handle with care

There’s a lot to write about recently, and Indy has been tied up with day to day stuff like earning a living.

Two political events have been begging for comment though.

The first is the Total Marketing poll published by the Bermuda Sun which showed the One Bermuda Alliance Government’s popularity falling. The second story was Home Affairs Minister Michael Fahy’s decision not to grant temporary work permits to a TV film crew who wanted to come to the island to make a show about Rebecca Middleton’s 1996 murder as part of the not very originally-named series Murder in Paradise.

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Michael Fahy

It may not be apparent at first, but these stories are connected. Why? Because the decline in the Government’s popularity is due to decisions like Mike Fahy’s, which are eroding the public’s confidence in the OBA to make good, measured decisions.

Of course, Fahy’s decision did not affect the poll, which was conducted previously, but it is part of the pattern that is hurting the OBA’s standing.

First, the poll. Total Management polls differ from other local political surveys because they survey everyone, regardless of nationality, ability to vote and so on. They just have to be adults, presumably.

So the poll gives the OBA government a 58% performance rating, which is 13% lower than it was a year ago.

That is in line with the Gazette poll earlier which had the PLP And OBA running neck and neck in an election at about 35-33%.

The difference between the polls can be attributed to non-Bermudian residents, who tend to favour the OBA. The Gazette has not reported on the effectiveness of the two parties, which is a different question from whom you might vote for.

Unfortunately, that was the only question the Sun published. The Sun was a little misleading in tying Premier Craig Cannonier directly to the poll. Premiers may be more or less popular than their parties, and while their leadership is always a big factor, it’s not the only one.

Still, the OBA should be worried as any decline is of concern. The question is why is the OBA’s popularity falling?

The first reason is jobs. Even though the OBA is moving the economy in the right direction and has put many of the right changes in place to get a recovery going, jobs haven’t followed yet.

Nothing much changes that; jobs will come in time, and the OBA’s standing will improve as a result, and then the question will there’s been enough employment growth to get the OBA re-elected.

Aside from that, the OBA has made a number of missteps recently. None of them are life-threatening, but the cumulative effect is damaging.

Political pundits may be more obsessed with “Jetgate” than anyone else, but it has damaged the Premier’s credibility because he has changed his story a number of times.

More damaging was the allegedly connected U-turn on the gaming referendum. Breaking a promise and coming up with a not very good reason for it is damaging.

The list goes on, and the latest is Fahy’s decision to refuse work permits to a TV crew planning to come to Bermuda to do a documentary on the 1996 murder of Rebecca Middleton.

Few Bermudians have a desire to see this dreadful episode revisited, but the reality is that if someone is going to revisit it, Bermuda needs to take the opportunity to show how things have changed and improved since then.

Instead Fahy made the worst possible decision by exercising his legal discretion and refusing to let them come to the island. It’s debatable whether the grounds he used would stand up to a legal challenge, but discretion is famously wide. Ministerial discretion should be used, well, discreetly, and with great care. There has to be a compelling reason to exercise it, assuming all normal requirements are met. Fahy says that the visit of the film crew posed “some potential reputational risks to Bermuda associated with the ultimate airing of this documentary”.

He noted that under the Bermuda Immigration and Protection Act 1956, the Minister should “take particularly into account the protection of local interests” and “generally the requirements of the community as a whole”.

That’s a very low bar to meet, but the question is did the Minister meet the tests required?

Does a “potential reputational risk” mean the Minister has a compelling need to protect local interests? One catch is the use of “potential”. In other words, there is a possibility, but not a certainty, that the airing of the documentary would harm Bermuda’s reputation.

Even assuming that it would – and that’s a very big assumption – there’s the question of whether such a reputational damage would require a step to protect local interests. How big an audience would watch the show?  What would the actual harm be from rehashing events of almost two decades ago?

None of this is proven. If the TV crew came, it might do some harm. Much of that, of course, depends on their reception. Although there’s no denying the facts of the Middleton case, it is possible to show that things in Bermuda have changed a great deal.

Instead, by refusing to allow the film crew to come, we have missed that opportunity. They will still do the show, our point of view will be missed, and somewhere in the show, it will be reported we refused to allow the crew to Bermuda. We could not have handled this any worse.

So what does this have to do with the Sun’s poll? These are the kinds of short-sighted decisions that hurt the Government’s reputation for measured decision making and an ability to deal with other countries in a mature way. Taken singly, there is little harm. Taken together, they have an effect. And they take away from what is supposed to be the main focus of this government – job creation.

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