Corporation of Hamilton v Attorney General and Governor of Bermuda

• Jurisdiction: Bermuda
• Judgment Date: 31 March 2021
• Docket Number: Civil Jurisdiction 2019 No 92
• Court: Supreme Court (Bermuda)

[2021] Bda LR 25

In The Supreme Court of Bermuda

Civil Jurisdiction 2019 No 92

In the matter of an Application under section 15 of the Bermuda Constitution Order 1968

And in the matter of the Municipalities Act 1923 (as amended)

In the matter of the Amendment Acts

In the matter of a decision by the Bermuda Government to either dissolve the Corporation of Hamilton and absorb it or alternatively to convert it to a “Quango”

In the matter of the Bill entitled the Municipalities Reform Act 201 tabled in the House of Assembly on 1 March 2019

Between:

Corporation of Hamilton

Applicant

and

Attorney General

Governor of Bermuda

Respondents

Mr M Diel and Mr R Myers for the Applicant

Mr G Howard and Ms L Sadler-Best for the Respondent

The following cases were referred to in the judgment:

Young v Bristol Airplane Co Ltd [1944] KB 718

Farias v Malpas [1993] Bda LR 18

Olivier v Buttgieg [1967] AC 115

Attorney General v Grape Bay Ltd [1998] Bda LR 6

Grape Bay Ltd v Attorney General [2000] 1 WLR 574

Inchcup (trading as Alexis Entertainment and Plush) v Attorney General [2006] Bda LR 44

Campbell-Rodriques v Attorney General [2008] 4 LRC 526

Ferguson v Attorney General [2009] 1 LRC 673

Jamaicans for Justice v Public Service Commission [2019] 4 LRC 117

Nervais v R [2018] CCJ 19

Newbold v Commissioner of Police [2014] 4 LRC 684

Attorney General v Joseph and Boyce [2006] CCJ 3

Lewis v Attorney General (2000) 57 WIR 275

Bahamas District of the Methodist Church in the Caribbean and the Americas v Symonette and Ors [2000] 5 LRC 196

Unison v Secretary of State for Health [2010] EWHC 2655

Bank Mellat v HM Treasury (No 2) [2013] HKSC 38

Attorney General of Trinidad and Tobago v McLeod [1984] 1 WLR 522

Lucas v South Carolina Coastal Council (1992) 505 US 1003

Penn Central Transportation Co v New York City (1978) 438 US 104

Pennsylvania Coal Co v Mahon (1922) 260 US 393

Attorney General v Lawrence [1985] LRC 923

Panton v Minister of Finance [2001] UKPC 33

Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32

The Traktorer AB v Sweden (1989) 13 EHRR 309

Hazell v Hammersmith and Fulham London Borough Council [1991] 1 All ER 546

Attorney General v Antigua Times Ltd [1975] 3 WLR 232

Whether section 1 of the Bermuda Constitution is directly enforceable — Whether provisions relating to “protection of law” are directly enforceable — Scope of the right to protection of law — Deprivation of property — Regulatory control by central Government over a municipal corporation

JUDGMENT of Hargun CJ

Index of Topics

Topic	Para
Introduction	1–6
The background	7–25
Historical background	7–11
Voting in municipal elections	12–15
Wharfage levy	16–19
The Waterfront development	20–21
The Democracy Trust	22–23
Par-la-Ville Hotel development	24–25
Amendment Acts and the Bill	26–42
The Constitutional provisions	43–45
Discussion	46–127
Direct enforceability of section 1	46–76
Enforceability of “protection of law”	77–97
Breach of section 13(1)	98–127
Conclusion	128–130

Introduction

1. These proceedings, commenced by Originating Summons dated the 20 March 2019, issued on behalf of the Corporation of Hamilton (“the Corporation”) in respect of the decision of the Government of Bermuda to convert the Corporation to a “Quango” (“the Decision”), as implemented by the Municipalities Reform Bill 2019 (“the Bill” or “the proposed Reform Act”) against the Attorney General seek an order declaring that the Decision, the Amendment Acts1 and the Bill, if enacted, contravene (or would contravene) sections 1 and 13 of the Bermuda Constitution Order 1968 (“the Constitution”), in that and insofar as:

• (a) the Amendment Acts, the Decision and the proposed Reform Act deprive (or would deprive, as the case may be) the Corporation of property without compensation or are or would be likely to do so; or

• (b) deny (or would deny or have the effect of denying, as the case may be) the Corporation the protection of law, or are or would be likely to do so,

• (c) and to that extent are therefore void and of no effect. The relief, if granted, would not only affect the Corporation but also the Corporation of St. George's as the legislation complained of affects both municipal Corporations.

2. These proceedings were commenced with a degree of urgency given that the House of Assembly had passed the Bill and the Senate was expected to debate the Bill on the 20

March 2019. In the circumstances, the Court heard an urgent application by the Corporation, on 24 – 25 February 2019, to restrain His Excellency the Governor from giving assent to the Bill. In the event, it was unnecessary to deliver a Ruling in relation to that application as the Senate decided not to pass the Bill on 20 March 2019.

3. The Corporation has decided to proceed with the relief sought in the Originating Summons against the Attorney General given that the Government has signaled that it will table the Bill again in substantially the same form, which will not require the approval of the Senate for its passage.

4. In summary, the Corporation's case is put on two principal bases. First, it is said that the effect of the Amendment Acts and the proposed Reform Act is to exert overwhelming control by the Government over the affairs of the Corporation so as to amount to deprivation of property within the meaning of section 13 (1) of the Constitution.

5. Secondly, the Corporation contends that the fundamental right to the protection of law referred to in section 1 (c) of the Constitution imports the dual concepts of due process and equal protection, as well as the rule of law, fundamental justice, fairness, certainty and rationality and, given the circumstances asserted by the Corporation, the Amendment Acts and the proposed Reform Act would be contrary to due process, and the rule of law and inconsistent with the protection of law enshrined in section 1 (c). In relation to this submission, the Corporation asserts that there was no proper consultation with the Corporation in relation to the proposed Reform Act; and the Government's rationale for the Reform Act is entirely fatuous as the City of Hamilton is well-run, and has been well-run for a long time, without government interference. The Corporation also asserts that the general public is strongly against the proposed Reform Act.

6. The proposed Reform Act is controversial and has generated highly emotive debate in the community. Indeed, in the written submissions filed on behalf of the Corporation, the Court is asked to conclude that the legislative proposals are irrational, arbitrary and unfair. In considering this application the Court reminds itself of the separation of powers between the Legislature, the Executive and the Judiciary enshrined in the Constitution. The responsibility for considering, debating and passing legislation, such as the proposed Reform Act, lies solely with the Legislature. In the ordinary case the Courts do not express any opinion in relation to the merits or wisdom of adopting a particular legislative measure. The practice of self-restraint on the part of the judicial branch is of long standing and continues to be relevant to this day. Accordingly, this Court is only concerned with the legal challenge to the Amendment Acts and the proposed Reform Act and in particular in relation to the legal issues of whether the Amendment Acts and the proposed Reform Act are in breach of the Constitutional rights of the Corporation relating to (i) the protection of law under section 1; and (ii) deprivation of property under section 13 (1). Beyond these legal issues it would not be proper for this Court to express any view as to the merits of the Amendment Acts and the proposed Reform Act. The merits of the Amendment Acts and the proposed Reform Act are matters of political debate and are to be debated and decided upon by the Legislature. Beyond the determination of legal issues arising out of the alleged breaches of section 1 and section 13 of the Constitution, the merits of the Amendment Acts and the proposed Reform Act are not the proper subject matter of the judicial determination.

The background

Historical background

7. The Town of St George's, in the east end of the Island, was settled in 1612 and remained the capital of the Bermuda until 1815. As explained in Bermuda's Architectural Heritage: Hamilton Town & City2, the establishment of a town in its centre, was a logical progression for an island of Bermuda's shape. Seafarers and merchants found it inconvenient to have to check in with the authorities in St George's every time they

entered or left if their business was elsewhere on the Island. The assemblymen often found it difficult to get to St George's to attend the Assembly because of bad weather. With most of the members living west of Ferry Reach, there was always considerable support for moving the capital westward.

8. The Corporation was originally incorporated by the St George's and Hamilton Act, 1793 (“the 1793 Act”). By an earlier Act of 1790, the “Collection of Trade” at the west end of Bermuda was provided; and a Commission was appointed whose purpose was to deal with the landowners of the site proposed for the new town. The site for the new town was comprised of 145 acres all of which land was to be bought by the Commissioners at a fair price. The Government paid the owners the purchase price and was repaid in turn by the sale of lots in the township by auction. The auctions commenced in 1790 and the last auction took place in June 1794. The 1790 Act provided that after the lands were purchased by the Government “the said lands should be vested in His Majesty, his heirs and successors, and, after having been laid out into lots, sold at public outcry…”.

9. By the 1793 Act, the Corporation was established as a body corporate consisting of the Mayor, Aldermen...