Centre for Justice v Attorney General and Minister for Legal Affairs

• Jurisdiction: Bermuda
• Judgment Date: 11 July 2016
• Date: 11 July 2016
• Docket Number: Civil Jurisdiction 2016 No 176
• Court: Supreme Court (Bermuda)

[2016] Bda LR 82

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 for Legal Affairs (acting on his own behalf and on behalf of the Government of Bermuda, including the Premier and the Parliamentary Registrar)

Repondent

and

Preserve Marriage Limited

1^st Intervener

and

OUTBermuda

2^nd Intervener

Mr A Potts for the Applicant

Mr M Douglas and Mr G Howard for the Respondent

Mr D Duncan for the 1^st Intervener

Mr P Sanderson for the 2^nd Intervener

The following cases were referred to in the judgment:

Smith v Minister of Culture and Social Rehabilitation; Ombudsman Intervening [2011] Bda LR 7

R v Minister of Agriculture, Fisheries and Food, ex parte Anastasiou (Pissouri) [1994] EWHC J0223—1

Cashman v Parole Board [2010] Bda LR 45

R (on the application of Cart) v The Upper Tribunal et al [2011] UKSC 28

R v Secretary of State for Industry ex parte Greenpeace Ltd [1999] EWHC J1105—13

Bulford and Jefferis v Commissioner of Police [2015] Bda LR 79

Minister of Home Affairs v Bermuda Industrial Union et al [2016] Bda LR 5

Minister of Home Affairs v Fisher [1980] AC 319

Robinson v R [2009] Bda LR 40

Forrester Bowe v R [2006] UKPC 10

Mirbel v State of Mauritius [2010] UKPC 16

Bermuda Bred Co v Minister of Home Affairs [2015] Bda LR 106

Obergefell v Hodges 576 US (2015)

Attride-Stirling v Attorney General [1995] Bda LR 6

Eweida and ors v United Kingdom [2013] ECHR 48420/10

Nationwide News Pty Ltd v Wills [1992] HCA 46

Richardson v Raynor (Police Sergeant) [2011] Bda LR 52

R (Plantagenet Alliance Ltd) v Secretary of State for Justice et al [2014] EWHC 1662

Oliari v Italy [2015] ECHR 716

Steinfeld v Secretary of State for Education [2016] 4 WLR 41

Hammond v DPP [2004] EWHC 69 (Admin)

Abdul v DPP [2011] EWHC 247 (Admin)

Erlam v Rahman [2015] EHC 1215

Ghaidan v Godin-Mondoza [2004] 2 AC 557

AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46

Moohan v Lord Advocate [2014] UKSC 67

judicial review — jurisdiction to join intervening parties — standing to seek declaratory relief — constitutional rights — human rights — legality of referendum on same sex marriage — undue influence — neutrality of polling stations — enforceability of fundamental common law rights

JUDGMENT of Kawaley CJ

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:

• i. 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;

• ii. 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;

• iii. 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;

• iv. 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);

• v. 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;

• vi. 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 Food ex 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...