In May 2017, the Supreme Court of Bermuda established marriage equality for same-sex couples in the case of Godwin-DeRoche v The Registrar General(“Godwin-DeRoche“). The Bermudian court did not use international law but relied on local Bermudian law to hold that the Human Rights Act of Bermuda (which “affirms and protects” the rights and freedoms of the Bermudian Constitution) requires marriage equality. The government could have appealed, but instead decided to support a bill in order to, in effect, cancel the judgment. That bill was passed by the legislature and given assent early this month by the Governor. The effect of this law (the Domestic Partnership Act 2018, hereinafter the “Partnership Act”) is to withdraw the right to marry for same-sex couples and implement in its place a so-called ‘domestic partnership’.  Mrs Theresa May, the UK Prime Minister, justified her support to such a move by stating publically that “the bill has been democratically passed by the Parliament of Bermuda, and our relationship with the overseas territories is based on partnership and respect for their right to democratic self-government”.

These words evidence ignorance regarding the constitutional arrangements in place in Bermuda and a complete disregard for Bermudian law.  Secondly, and more disturbingly, the UK government’s endorsement of such an action, which is illegal with respect to the written constitution of Bermuda as interpreted by its Supreme Court, shows disregard for “good governance”, a central policy of the constitutional arrangements in place between the UK and its overseas territories.  I shall address each of these issues in turn.

UK’s flagrant disregard for the rule of law 

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 wasprobably 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 in Godwin-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).

These developments with Bermuda are exceptionally disturbing.  This bill could not have become law without the UK’s endorsement.  The UK is not simply a passive bystander with regards to segregation in this instance, but an active accomplice.  It has actively engaged with the Bermudan government in undermining the rule of law, ignoring an order of the local court and facilitating the withdrawal of equality.  It has indeed facilitated the taking away of legally established constitutional rights (i.e. access to marriage) from a section of the population.  What if, instead of taking away the right to marry and implementing a domestic partnership framework for same-sex couples, the Bermudan government had done this for non-Christian couples, or interracial couples?  Would the UK government consider it ‘good governance’ to permit such a legislative change too? I doubt it.  Why then are Bermudian same-sex couples less worthy of equality in the eyes of the UK government?

Conclusion

This appalling move by the UK government is just one more, albeit extreme, example of the many ways in which the UK disregards human rights in its Overseas Territories.  Some recent examples with respect to the Cayman Islands are still fresh in our minds: (1) Incitement to violence in August 2015, by local legislators who incited violence and sexual hatred against LGBTI people, avoiding prosecution through parliamentary privileges, (2) Petition to the Queen by Colours Cayman for the ECHR to be complied with by Her Majesty government in September 2016 ignored by the UK government, (3) expulsion of LGBTI Caymanians by the Immigration Authority by forcing them to live overseas with their love ones by refusing to apply its own precedent set in July 2016 (establishing rights for the same-sex spouse of a foreign worker to reside in the Cayman Islands as a dependant). These breaches of the ECHR in the Cayman Islands and this latest despicable act in Bermuda call into question the UK’s respect for human rights.  The UK clearly has its own policies and agenda in place with regards to governance of these territories that, for whatever reason, endorse oppression and segregation against LGBTI people, in breach of the local rule of law and international law.  This agenda is in stark contrast to the approach taken by the US, France and the Netherlands, each of which respects the right to democratic self-governance throughout their dependant Caribbean territories, without neglecting equality for all, including LGBTI people.

The UK government must come clear now and explain why LGBTI citizens are less worthy of equality and how ‘good governance’ permits segregation of LGBTI people.  Until then, the message sent for LGBTI people in other British Overseas Territories, such as the Cayman Islands, is lugubrious: you can fight for, and secure, equality under local law, but the UK government will support the taking away of that right in defiance of the rule of law and disregard for the promise of securing “good governance” for all persons.

Dr Leonardo J Raznovich, Barrister 

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Visiting Senior Research Fellow 

Intersectional Centre for Inclusion and Social Justice 

Canterbury Christ Church University 

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Co-Vice Chair of the LGBTI Law Committee of the International Bar Association 

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IMAGE: Dr. Leonardo Raznovich FILE