PRESIDENT of the Senate Floyd Morris has temporarily halted debate on a controversial order signed by Prime Minister Portia Simpson Miller in June, removing regulatory power over public transportation from the Office of Utilities Regulation (OUR).

Senator Morris’ decision came at the start of the debate on Friday, after the Senate’s regulations committee ruled that the order was flawed because the necessary consultations prior to its issue and gazetting were not done and wanted it to be annulled.

However, Government member KD Knight, who is a member of the committee, said that there was no decision at that level to annul the order.

The issue dates back to June when a motion was tabled in the House of Representatives seeking to have the order approved by negative resolution, which allows the minister to issue orders subject to a negative decision by the regulations committees in both Houses of Parliament.

The gazetted ministerial order stated that: “In exercise of the power conferred upon the minister by section 2 (2) of the Office of Utilities Regulation (OUR) Act, the following Order is hereby made:

“(1) This Order may be cited as the Office of Utilities Regulation (Amendment of First Schedule to the Act) Order, 2014.

(2) The first schedule to the Office of Utilities Regulation Act is amended by — (a) deleting item 2; and (b) renumbering items 3, 4 and 5, respectively… dated this 13th day of June 2014.”

The publication was referring to an order signed by the prime minister which, under the first schedule of the regulations to the OUR Act, removed regulation of the transport sector from the OUR, but did not state where the authority would be transferred to.

The Order was approved by the regulations committee of the House of Representative, but encountered traffic passing through the similar committee of the Senate. Opposition senators, led by Senator Kamina Johnson Smith, objected to its approval, on the basis that the requirement for consultations with the stakeholders was not met before the Order was made.

This criticism was reinforced by a declaration at the meeting of the House of Representatives regulations committee in July by legal counsel for the OUR, Cheryll Lewis, who admitted that the first time the regulatory body became aware of the order was through an article in the press.

She pointed out that the OUR had extensive discussions, over the years, with the Transport Authority and the Ministry of Transport and other stakeholders on the issue of regulation, and settled on a position that the OUR would be the economic regulator to fix fares for the transport sector.

The regulations committee of the Senate, in its report, cited a breach in the way the Government handled the transfer of regulatory authority. The committee said it accepted that the lack of consultation constituted “an unusual or unexpected use of the powers conferred by the order, under which it was made”.

The committee recommended that the breach should be brought to the “special attention” of the Senate. It expressed concern about the exclusion of the OUR from any consultations leading up to the decision, and made it clear that “even though there was no evidence that there were any legislative breaches, the entity, as the economic regulator, (the OUR) should have been consulted”.

Opposition senators, who thoroughly opposed the move was done, issued a minority report, which agreed with the conclusion, but accused the Government’s majority of failing to explore other excesses exposed at its meetings.

The matter was sent back to the regulations committee, which met on Friday prior to the start of the Senate.

Committee chairman, Government Senator Navel Clarke, on Friday said that the matter was of grave concern to both sides, as a major procedural breach had been exposed regarding the lack of consultation in the approval process, which was inconsistent with Standing Order 69 (c) of the Senate.

“It constitutes an unusual and unexpected use of power conferred by the order under which it was made,” Senator Clarke explained.

He said that he had been advised that the issue should be referred back to the full Senate to be debated. He added that there is a further recommendation that the order be annulled.

Senator Johnson Smith agreed with that position, including to have the order annulled on the basis of the failure to consult with the OUR, which had been its regulator for the preceding 20 years.

“The order was made without any indication of the arrangement to be made in respect of the substantive impact; whether the intent was to rely on the Transport Authority for regulation; why amendments were not made to the Transport Authority Act, and why they were not taken at the same time, so that the matter could have been debated in a holistic way,” she insisted.

But, Senator Knight said that there was no decision taken by the committee for the order to be annulled.

“And since there was no argument there, I don’t know how it can come here with a recommendation. It cannot and, therefore, it is prematurely before the Senate. It has to go back to the committee,” he said.

Senator Clarke explained that, at the meeting held prior to the sitting of the Senate, the legal advice he was given was that the committee’s referral needed an explanation. He said that, on that basis, it was decided to ask the Senate to have the order annulled.

“So, what I was doing today was acting on the advice that I was given, legally, as to how we should approach the matter,” Clarke said.

President of the Senate Floyd Morris ruled that the debate be suspended to accommodate further consultation and clarification on the issue. However, Senator Johnson Smith was concerned about a comment by Minister of Justice Mark Golding made earlier in the debate.

“If it is that this Senate causes time to run deliberately, in order to ensure that an action takes place that the regulations committee has already said that it finds in breach, that would be a travesty,” she stated.