Centre for Justice v Attorney General and Minister of Legal Affairs, Bermuda

• Jurisdiction: Bermuda
• Judgment Date: 11 July 2016
• Neutral Citation: [2016] SC Bda 72 Civ
• Date: 11 July 2016
• Docket Number: CIVIL JURISDICTION 2016: No. 176
• Court: Supreme Court (Bermuda)

[2016] SC (Bda) 72 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2016: No. 176

In the Matter of an Application for Judicial Review

Between:

Centre for Justice

Applicant

and

The Attorney General and Minister of Legal Affairs (acting on his own behalf and on behalf of the Government of Bermuda, including the Premier and the Parliamentary Registrar)

Respondent

and

Preserve Marriage Limited

1st Intervener

and

OUTBermuda

2nd Intervener

Mr. Alex Potts, Sedgwick Chudleigh Limited, for the Applicant (‘CfJ’)

Mr Melvin Douglas, Solicitor-General, and Mr Gregory Howard, Attorney-General's Chambers, for the Respondent

Mr Delroy Duncan, Trott & Duncan Limited, for the 1 ^st Intervener (‘PML’)

Mr Peter Sanderson, Wakefield Quin Limited, for the 2 ^nd Intervener (‘OB’)

Judicial review-jurisdiction to join intervening parties-standing to seek declaratory relief in relation to fundamental constitutional rights and in relation to the Human Rights Act 1981 — legality of Referendum (Same Sex Relationships) Act 2016 and proposed referendum-Referendum Act 2012-undue influence-neutrality of polling stations-enforceability of fundamental common law rights

REASONS FOR DECISION

(in Court) 1

Background

1 By its Notice of Application pursuant to leave to seek judicial review granted on May 23, 2016, the Applicant sought the following relief:

• (1) A declaration that the Referendum (Same Sex Relationships) Act 2016, and any purported Referendum held thereunder, is unconstitutional and/or unlawful and/or inoperative, in that the provisions and effect of the Referendum (Same Sex Relationships) Act 2016, when read with the Referendum Act 2012, contravene certain fundamental rights and freedoms guaranteed under the Constitution, namely those rights provided for by sections 6(8), 8(1), 9(1), and/or 10(1) of the Constitution;

• (2) A declaration that the Referendum (Same Sex Relationships) Act 2016, and any purported Referendum held thereunder, is unlawful and/or inoperative, in that the provisions and effect of the Referendum (Same Sex Relationships) Act 2016, when read with the Referendum Act 2012, contravene certain fundamental rights and freedoms guaranteed under the Human Rights Act 1981, namely those rights provided for by sections 2(2) and/or 3(1) of the Human Rights Act 1981;

• (3) A declaration that the Referendum (Same Sex Relations) Act 2016, and any purported Referendum held thereunder, is unlawful and/or inoperative, in that the provisions and effect of the Referendum (Same Sex Relationships) Act 2016, when read with the Referendum Act 2012, contravene and/or are repugnant to certain fundamental rights at common law, including rights of natural justice, equality of treatment, and the rule of law;

• (4) A declaration that the Referendum (Same Sex Relations) Act 2016, and any purported Referendum held thereunder, is unlawful and /or legally void and/or legally inoperative, in that section 39 of the Referendum Act 2012, which prohibits the exercise of undue influence in the context of a Referendum, has already been breached and/or will inevitably be breached (unless the holding of such a purported Referendum is restrained);

• (5) A declaration that the decision of the Parliamentary Registrar to designate Holy Trinity Church Hall, St Patrick's Church Hall, First Church of God Hall, Seventh-Day Adventist Church Hall, Calvary Gospel Church Hall, and/or Allen Temple Church Hall as polling rooms for the holding of the proposed Referendum was procedurally unfair, substantively unfair, Wednesbury unreasonable, and/or contrary to the express or implied provisions of the Referendum Act 2012, and/or the Human Rights Act 1981, and/or the Constitution, with a consequential quashing of such decision by the Court;

• (6) A permanent injunction prohibiting or restraining the Government of Bermuda, its servants or agents, from holding any purported Referendum, or taking any further steps or actions associated with holding any purported Referendum, of the sort contemplated by the Referendum (Same Sex Relationships) Act 2016.

2 On June 10, 2016, the day after the two-day hearing, I refused the application for an injunction to prevent the referendum scheduled to take place on June 23, 2016 (‘the Referendum’) and declined to grant the related, foundational, declaratory relief. I granted the relief sought under paragraph (5) of the Notice of Application and quashed the decision of the Parliamentary Registrar nominating six churches (which were prominent campaigners for a ‘no’ answer to the two Referendum questions) as polling rooms. Effectively by consent, I made no Order as to costs.

3 I gave brief reasons in case any party wished to appeal my judgment to the Court of Appeal before the Referendum took place and indicated that I would give fuller reasons later. These are the full reasons for that decision. CfJ's application raised complicated issues of considerable public importance which were argued and decided within a necessarily compressed timeframe. I am indebted to all counsel for the assistance which their careful and thoughtful submissions provided.

4 At the beginning of the hearing on June 8, 2016, I reserved judgment on the applications by the two interveners and agreed to hear their submissions de bene esse. I expressed the strong provisional view that the Court should adopt a flexible approach to their standing to intervene. On June 10, 2016 I granted leave to PML and OB to intervene, without hearing full argument and without any or any serious dissent. Included in the present Judgment are my reasons for granting the two Intervention Summonses.

The Intervention Summonses

5 By Summons dated June 6, 2016, PML applied for leave to intervene on the grounds that, inter alia, it had been instrumental in persuading Government to hold the Referendum and that the submissions it would make would not overlap with the parties' submissions. Its primary submission was that the Referendum should proceed because it was important for community views to be canvassed before legislation validating same sex civil unions was considered by Government. OB applied to intervene by Summons dated June 6, 2016, on the grounds that it was Bermuda's first organisation dedicated to advocating for LGBTQ people on the Island. Its primary submission was that the Referendum was inappropriate and/or should not proceed on an expedited timetable, because this would minimize the possibility of the greatest possible voter participation. Intervention applications have in the past been dealt with flexibly and without serious controversy. For instance, in Smith v Minister of Culture and Social Rehabilitation, Ombudsman Intervening [2011] Bda LR 7, I merely noted: ‘ I granted leave to the Bermuda Ombudsman to intervene in the proceedings to deal with any submissions which might be made as to the jurisdiction of the Ombudsman. This intervention was extremely propitious and assisted the Court significantly in adjudicating the legality of the Minister's decision as a matter of public law’ (at paragraph 2).

6 In the present case it was obvious that the two interveners each had a special interest in the outcome of the present application which could not adequately be advanced by either of the two primary parties, even though the general position of one intervener was broadly aligned with the Applicant's position and the general position of the other intervener was broadly aligned with the Respondent's. I accordingly granted both intervention applications on the express understanding. In so doing, I exercised a case management discretion following the approach of Popplewell J in R v Minister of Agriculture, Fisheries and Foodex parte Anastasiou (Pissouri) [1994] EWHC J0223-1 (at page 10):

‘ It seems to me that there is an inherent jurisdiction in the Court to ensure in judicial review proceedings that all those who may be affected by the decision have the opportunity to present their case. The fact that their case may differ not at all from that presented by MAFF is no bar to them being present and presenting oral argument.’

Standing to seek relief

7 The Respondent submitted that CfJ lacked standing to seek declaratory relief in relation to an alleged breach of constitutional rights and/or a breach of the Human Rights Act 1981. This was essentially because (a) it was not a victim as required by both the Constitution and the Human Rights Act 1981, and (b) because the issues raised were premature and the conditions for granting declaratory relief were not met. I rejected the lack of standing arguments. Each limb of the standing objections will be dealt with in turn.

Jurisdiction to grant declaratory relief in relation to the Constitution

8 The Respondent submitted that (a) the application was procedurally irregular because it was not possible to seek constitutional relief within a judicial review application and/or the Applicant lacked standing to seek relief under section 15 of the Constitution, (b) that the application was premature, and (c) that the questions raised were political in nature and not justiciable.

9 Reliance was placed on my own observations in Cashman v Parole Board [2010] SC (Bda) 36 Civ; [2010] Bda LR 45:

‘ 42. An application under section 15 ought to be filed at the same time as the Order 53 application, so that the two applications can (if appropriate) be heard together. This will likely be appropriate in all cases where: (a) the judicial review application is opposed; and/or (b) the judicial review application is not demonstrably a very strong case; and (c) the urgency of the judicial review application being heard on its merits is not incompatible with a fair hearing of an application under section 15 of the Constitution. The merits of the judicial review application will usually be relevant to this case management exercise because dealing with constitutional matters at the...