Recent amendments to the laws governing Bermuda’s municipalities have stripped the City of Hamilton of much of its regulatory powers.
Commuters can park for free within the boundaries of the municipality, and ratepayers can withhold their rates – without consequence.
But Home Affairs Minister Michael Fahy has failed to take the necessary corrective action – which would involve a simple legislative measure – causing the City to lose potentially hundreds of thousands of dollars in foregone revenue.
Lawyers for the Corporation of Hamilton warned the Government of adverse consequences of section 17(2) of the Municipalities Amendment Act 2013 in November last year.
Correspondence seen by Politica reveal some disagreement between the Attorney General’s chambers and the City over the impact of the amendments.
In November 2014, Chief Justice Kawaley ruled as invalid two Corporation of Hamilton ordinances – one (from 2007) providing for City Hall to clamp vehicles deemed to be illegally parked, and the other (2010) requiring parking vouchers for loading zones and 15 minute parking areas.
He said the two ordinances were invalid because they were not properly published and debated in parliament as required by laws in existence at the time. Kawaley said that the ordinances would have in any case been invalidated by the 2013 amendment to the Municipalities Act which retroactively voided ordinances which did not go through a process required by a 1977 law.
Kawaley also ruled as invalid a 2014 City Council resolution intended to extend the areas in the City for charging on-street parking fees and modifying certain fees.
Following the ruling, City Hall warned Government that the 2013 amendments to the Municipalities Act had a far wider impact – beyond invalidating the two ordinances and the 2014 Resolution.
In a November 22 letter to the Attorney General, the City’s lawyers told Bermuda Government that its 2013 amendments had voided a total of 39 ordinances – ten of which were financial ordinances, 15 concerning Traffic and Parking, six to do with Docks and Wharfs, and eight Parks, Lands and Buildings ordinances.
The letter asked Government to enact corrective validation legislation as “a matter of urgency” and hinted that the City may charge a flat all day rate for parking to stem the loss of “thousands of dollars” a day from commuters who fail to pay their parking fees.
The City also raised the question of penalties for on street parking offences going to the central Government’s coffers suggesting that the arrangement may be in violation of the Constitution.
See letter below
Government’s lawyers responded by saying not all the ordinances on the City’s list had in fact been invalidated and urging the council to talk with the Minister to rectify those that needed validation.
Regarding any ordinances that may be invalid and subject to the procedure for enactment in the Municipalities Amendment Act 2013, new validation legislation must have the support of the Minister responsible.
Some invalid instruments may require a simple validation procedure but others may require an amendment.
Discussions with the Minister should commence as soon as possible, so that the ordinances proposed to be validated may be reviewed, to determine whether they may be given effect in their current form.
See Government’s response in full below
Fahy, whose portfolio includes responsibility for the island’s two munis, refused to answer our emailed queries submitted in January this year.
The City is now under the Minister’s stewardship.
About $4.2 million of the City’s $21 million budget came from parking fees in 2013. Another $8.4 million was collected in property taxes.
Trouble began for the Corporation of Hamilton when it sought a declaration from the Supreme Court on the legality of its policy to clamp vehicles which were parked without proper payment on City property. The action was brought after the Center for Justice publicly declared that the policy was illegal.
The 2007 and 2010 Ordinances were not validly made because they failed to comply with the lighter touch procedural requirements then in force,” the Chief Justice ruled.
Alternatively, they were rendered invalid by section 17(2) of the Municipalities Amendment Act 2013, which Act subjected the Corporation’s law-making powers to more rigorous central Government scrutiny. The concerns informally expressed by then Senior Magistrate Archibald Warner and formally raised by the CfJ about the legality of the clamping scheme were fully justified. The 2014 Resolution, purportedly made under the Corporation’s general property-owning powers, was also invalidly made.
The Chief Justice went on to suggest that the Government push through validating legislation to address concerns about the law’s consequences.
In the course of the hearing I expressed concerns about the consequences which might flow from acceding to the arguments of the Attorney-General and the Centre for Justice and finding in favour of invalidity of the instruments in question. Those concerns may well have been exaggerated or misplaced. Those concerns in any event potentially could be met were the Government to see fit to enact validating legislation along the lines of section 7 of the Municipalities Amendment and Validation Act 1995. Be that as it may, inconvenient consequences afford no answer to a valid complaint that a statutory authority has exceeded its powers in a fundamental respect.
We asked Corporation Secretary Ed Benevides for comment and clarification. He declined, but sent us this statement which he said was the Minister’s response to similar queries by Bermuda Broadcasting Company.
The Minister of Home Affairs today advised that he has had ongoing discussions with the Corporation in light of what they perceive to be invalid Ordinances. In summary the Ministry of Home Affairs view is neither the Municipalities Act 2013 nor the recent decision by Justice Kawaley invalidated any Ordinances. The Supreme Court of Bermuda confirmed that the Ordinances had to be validly enacted. Therefore, all validly enacted Ordinances are, valid.
Scroll down for our questions to the Minister, which he ignored.
Queries for Minister Fahy (Text)
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