UK’s flagrant disregard for the rule of law, by Dr Leonardo Raznovich, February 2018

| 23/02/2018 | 0 Comments

The idea that the people of Bermuda can give themselves any laws they wish is wrong as a matter of Bermudian constitutional law. The Prime Minister was probably confused by the Westminster system of parliamentary democracy in which parliament is sovereign and thus can do as it pleases. The Prime Minister appears to ignore that the UK imposed upon Bermuda a constitutional democracy in which the constitution is sovereign and thus the parliament of Bermuda cannot do as it pleases.

The constitution of Bermuda is codified in one single document, enacted by the UK Parliament under the name of the Bermuda Constitution Act 1967 (the “Constitution”).  The Constitution sets out, and hence limits, the power of each of the three branches of government: the parliament, the judiciary and the executive of Bermuda (the same actually applies in the Cayman Islands, or in the USA, or in France or in any country with a codified written constitution).

This is referred to as division of power: the court interprets the laws (including the Constitution) and the legislature makes and amends laws (excluding the Constitution). The law making powers of the local legislature in Bermuda derive therefore from the Constitution, rather than from the people; hence the laws made by the legislature must conform to the Constitution regardless of the wishes of the majority.

To the extent that they do not conform, they are ‘”repugnant” to the Constitution and the Governor must reserve the bill for the “signification of Her Majesty’s pleasure”, unless authorised by the UK government to give it assent, pursuant to article 35(2)(c) of the Constitution.

However, it does not end there; there is one more protection for the Constitution in case that the Governor and the Legislature conspire to breach the Constitution; thus, to the extent that any law passed by the local legislature (and which received assent by the Governor) is repugnant to the Constitution, it is, and remains, absolutely void and inoperative pursuant to section 2 of the Colonial Laws Validity Act 1865 (the “Validity Act”), which states that “Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate … shall be read subject to such Act … and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

How is this affecting the Partnership Act? The Supreme Court interpreted in Godwin-DeRoche that Bermudian law requires marriage equality. In countries such as Bermuda with a codified written constitution, there are two legal ways to change such a constitutional interpretation: (1) an appeal or (2) a constitutional change. Anything outside these two possible routes, including legislation passed by the legislature, constitutes a flagrant breach of the Constitution and hence of the rule of law of the jurisdiction.

A court of appeal could have reversed the Supreme Court by holding that its interpretation was wrong as a matter of law, but the legislature cannot; its laws must conform to the Constitution. It is a simple matter of division of power: as stated above, the court interprets the laws (including the Constitution) and the legislature makes and amends laws (excluding the Constitution).

The Bermudian government decided not to follow the normal appeal process; the Supreme Court’s interpretation is now, effectively, enshrined in the Constitution. The only way to overturn the effect of this interpretation is a constitutional change, which only the UK Parliament can effect.

The argument of the Bermudian government that the exemption clause of the Human Rights Act can be used to exempt the Marriage Law from having to comply with the Human Rights Act does not work with the Constitution. But even if there were any doubts about this, the second protection inexorably kicks in and the Partnership Act, to the extent that it is repugnant to the Constitution as interpreted by the Supreme Court, is void and inoperative pursuant to section 2 of the Validity Act.

The UK government had the opportunity to stop the bill from becoming law, but instructed its Governor to act against the rule of law of Bermuda and give assent to the bill. The UK government acted, therefore, illegally with respect to the constitutional arrangements that the UK Parliament established for Bermuda in 1967.

Bermudian same-sex couples less worthy of equality in the eyes of the UK government: is segregation an example of “good governance”?

Although Bermuda is largely self-governing, the UK appoints its Governor, retains constitutional power to legislate and has the ability to step-in regarding internal matters (similar arrangements are in place for the Cayman Islands, the British Virgin Islands, Montserrat, Anguilla and the Turks and Caicos). Put simply, they are not sovereign states, but remain colonies of the UK.

This is why they are not part of the Commonwealth of Nations. By example, the UK repealed their sodomy laws in 2000 against their wishes and exercised direct rule in the Turks and Caicos in 2009 by deposing its government for corruption. The UK has the legal duty to ensure that these territories are governed responsibly and comply with their written constitutions and international law.

The European Convention on Human Rights (ECHR) has been extended by the UK to each of them; they are bound to comply with it, but the UK is legally responsible for their breaches because, as the sovereign power, the UK is ultimately responsible for the “good governance” of these territories. A similar duty arises in the internal order.

Pursuant to article 35(2)(c) of the Constitution, the Governor, acting in his/her discretion, ought to have reserved the Partnership Act for the signification of Her Majesty’s pleasure. We know that acting with discretion does not imply acting with arbitrariness, let alone illegally; but at the same time the Governor cannot act contrary to an order of the UK government.

This is where article 17 (2) of the Constitution kicks in, in that it requires that the Governor effects its powers “subject to the provisions of this Constitution”. This is a critical constitutional limit  (which is mirrored by the Cayman Islands Constitution) in that anything the Governor does at his/her discretion, or by instruction from the UK government, has to comply with “the provisions of [the] Constitution.”

This makes constitutional sense, in that otherwise the Governor or the Secretary of State responsible for Overseas Territories can bring about a constitutional change, which only the UK Parliament can effect. This clause protects the supremacy of the UK Parliament (and in the case of the Cayman Islands, the mirrored clause protects the supremacy of the Privy Council with whom the powers to make and amend the Cayman Islands Constitution are vested).

The decision of Boris Johnson, as the Secretary of State responsible for all overseas territories, did not conform to article 17(2) in that the Governor of Bermuda, by giving assent to the bill, acted in breach of the Constitution as interpreted by the Supreme Court inGodwin-DeRoche.

It follows that Johnson’s authorisation was illegal and, as such, is challengeable by judicial review in the High Court in London, as an act contrary to the Constitution (an Act of the UK Parliament).

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