Centre for Justice v Attorney General and Minister of Legal Affairs

• Jurisdiction: Bermuda
• Judgment Date: 10 June 2016
• Neutral Citation: [2016] SC Civ Bda 64
• Date: 10 June 2016
• Docket Number: CIVIL JURISDICTION 2016: No. 176
• Court: Supreme Court (Bermuda)

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

OUT Bermuda

2nd Intervener

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

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-Referendum Act 2012-constiutionality of Referendum (Same Sex Relationships) Act 2016-legality of decision of Premier to hold referendum on same sex marriage and civil union questions-legality of decision of Parliamentary Registrar to designate churches involved in referendum campaign as polling rooms

(in Court)

Background

1 The present application arises out of a collision of rights. The right of the courts to uphold the rule of law has clashed with the right of the Executive and legislative branches of Government to formulate and make laws. The recently protected right not to be discriminated against on the grounds of one's sexual orientation under the Human Rights Act 1981 has clashed with older but still comparatively new rights of freedom of conscience and freedom of expression which are protected by the Bermuda Constitution. In the interests of transparency, it is helpful to look at these rights in the local historical context which has tacitly informed the way in which I have both digested the various submissions advanced and decided the present application.

2 Nearly 400 years ago, on June 15, 1616, Bermuda's first Court of General Assize sat in the original St Peter's Church in St. George's in an era in which Church and State and the Executive and the Judiciary were all closely intertwined. Religious minorities were, in the decades which followed, frequently forced to leave Bermuda in the face of persecution. The Courts were regularly involved in criminal trials for prohibited forms of sexual conduct between consenting adults based on religious prohibitions. When Methodist Minister John Stephenson arrived in Bermuda at the turn of the 19 ^th century with the avowed aim of preaching to ‘African blacks and captive Negroes’, a special Act of Parliament was passed to criminalize such preaching. In June1801, the Reverend was convicted of contravening this Act and sentenced to six months imprisonment, despite his attorney James Christie Esten pleading freedom of conscience as a defence.

3 Freedom of conscience and freedom of expression and the right not to be discriminated on racial and other grounds only came to be fundamental, constitutionally protected rights with the enactment of the Bermuda Constitution Order (a United Kingdom Order-in-Council) in 1968. That Constitution created an independent judiciary based on the separation of powers and general governance structure which was explicitly secular, thus completing what had been an evolving separation of Church and State. The courts were empowered to declare that legislation which was inconsistent with the fundamental rights and freedoms in the Constitution was invalid. The antecedents for these protections included the Universal Declaration on Human Rights (1948) and the European Convention on Human Rights and Fundamental Freedoms (1950) (‘ECHR’). Those international instruments were inspired by the explicit goal of deterring the “tyranny of the majority”, based on the very recent and chilling experience that a regime in a “sophisticated” modern Western democracy, led by a man who was originally democratically elected, had perpetrated large-scale acts of genocide against an ethnic and religious minority community. Similar impulses inspired the British Government, when granting Independence to its former colonies (starting with Nigeria in 1960) and when granting self-Government to its remaining colonies (such as The Bahamas in 1963 and Bermuda in 1968), to incorporate fundamental rights and freedoms provisions into constitutions enacted by way of United Kingdom Orders-in-Council.

4 Bermuda's Parliament extended the protection of human rights through the enactment of the Human Rights Act 1981. It did so by reinforcing protections against discrimination on the grounds of race and religion by prohibiting discrimination on other grounds (notably sex) that were not constitutionally protected. That Act was not only given primacy over all other legislation unless such other legislation said otherwise. It also empowered this Court to declare that legislation inconsistent with the Human Rights Act 1981 was invalid. In 2013, the Human Rights Act was amended to prohibit discrimination on the grounds of sexual orientation, giving partial effect to rights which had by then long been recognised as an international human right under article 8 of the European Convention on Human Rights and Fundamental Freedoms.

5 In Bermuda Bred Company v Minister of Home Affairs [2015] SC (Bda) 82 Civ (27 November 2015); [2015] Bda LR 106, I held that provisions of the Bermuda Immigration and Protection Act 1956 providing residential rights to foreign spouses of Bermudians (a) afforded different immigration treatment to foreign heterosexual spouses of Bermudians and foreign same sex partners of Bermudians, and that (b) this differential treatment constituted discrimination in the provision of goods and services contrary to section 5 of the HRA. I further declared that the relevant provisions of the Act which omitted any comparable rights for foreign same sex partners in stable relationships with Bermudians were inoperative so that the Minister was legally obliged to provide comparable residential rights to such persons on such administrative terms as he might decide. This decision took place against the backdrop of campaigns for same sex same marriage to be legalised in Bermuda and created the prospect that statutory provisions including, inter alia, the Matrimonial Causes Act 1974 incorporating the common law definition of marriage, might on similar grounds be held to be inoperative for inconsistency with the Human Rights Act prohibition of discrimination on the grounds of sexual orientation.

6 The Government could have appealed this decision. They did not. The Minister merely sought a year's suspension of my judgment, not because so long was required to implement the narrow requirements of the Bermuda Bred Company decision. Rather because he ambitiously, and in human rights terms admirably, intended to embark upon a comprehensive legislative regime to recognise same sex relationships across the entire legal landscape. Conscious that the political landscape in which these issues were likely to be debated resembled a minefield, at a subsequent hearing I erred in favour of giving deference to the litigation rights of the applicant in that case and suspended the decision for only three months 1. Again, the Minister could have appealed this decision but did not.

7 A passing comment in my main judgment in Bermuda Bred, made after explaining that how the judgment was to be implemented was entirely a matter for the Minister's decision, was to note that ‘ the Crown in right of Bermuda appears to be under a positive international law duty under article 8 of the ECHR to create some coherent legal framework for the recognition of same-sex relationships formed by Bermudians’. As every lawyer knows, international obligations do not become part of Bermudian (or British) law until they are formally incorporated by local legislation. National governments...