Corporation of Hamilton v Attorney General and Governor of Bermuda

• Jurisdiction: Bermuda
• Judge: Clarke P,Bell JA,Gloster JA
• Judgment Date: 18 March 2022
• Neutral Citation: BM 2022 CA 3
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2019 No 92

[2022] Bda LR 17

In The Court of Appeal for Bermuda

Before:

Clarke P; Bell JA; Gloster JA

Civil Appeal 2019 No 92

Between:

Corporation of Hamilton

Appellant

and

Attorney General

Governor of Bermuda

Respondents

Sir J Jowell QC and R Myers for the Appellant

Mr D Duncan QC and R Hawthorne for the Respondents

The following cases were referred to in the judgment:

Olivier v Buttigieg [1967] AC 115

Farias v Malpas [1993] Bda LR 18

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

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

Inchcup (t/a Alexis Entertainment and Plush) v Attorney General [2006] Bda LR 44

Ferguson v Attorney General [2009] 2 LRC 621

Campbell-Rodriques v Attorney General [2008] 4 LRC 562

Newbold v Commissioner of Police [2014] 4 LRC 684

Nervais v R [2018] CCJ 19

Jamaicans for Justice v Police Service Commission [2019] UKPC 12

Young v Bristol Aeroplane Co Ltd [1944] KB 718

Lewis v Attorney General [2001] 2 AC 50

R (Privacy International) v Investigatory Powers Tribunal [2019] 2 WLR 1219

Attorney General v Lawrence [1985] LRC 923

Panton v Minister of Finance [2001] UKPC 33

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

Selection of Mayor and Councillors — Control of activities — Deprivation of property without compensation — Protection of law — Freedom of expression — Binding effect of judgments of Court of Appeal and Privy Council — meaning of “per incuriam”

JUDGMENT of Clarke P

Introduction

1. The Corporation of Hamilton (“the Corporation”) contended before the Chief Justice that the decision of the Government of Bermuda to convert the Corporation into (as the Corporation would characterise it), a quango, would, if implemented, as was proposed, by the Municipalities Reform Bill 2019 (“the Bill” or “the proposed Reform Act”) result, if the Bill became Law, in the passing of an Act which would contravene sections 1 and 13 of the Bermuda Constitution Order 1968 (“the Constitution”), and that a number of Municipal Amendment Acts (“the Amendment Acts”) already contravened those sections. As things turned out the Senate decided – on 20 March 2019 – not to pass the Bill. But the Government has indicated that it will table the Bill again in substantially the same form.

2. As the Chief Justice recorded, the legislation with which we are now concerned is deeply controversial; but the Court is not concerned with the political decisions involved, or whether the legislation at issue is, or is not, wise or appropriate, but only with whether or not it is unlawful as being contrary to the Constitution or the common law.

3. The judgment of the Chief Justice helpfully summarised the history of legislation in relation to the Corporation, together with the facts and key findings in a number of cases. I gratefully acknowledge the assistance provided by his so doing and, in many cases, respectfully adopt, with minor changes, his summaries of cases and events.

4. The main Amendment Acts complained of at the hearing before the Chief Justice were the Municipalities Reform Act 2010 (“the 2010 Reform Act”), the Municipalities Amendment Act 2013 (“the 2013 Amendment Act”), the Municipalities Amendment (No 2) Act 2015 (“the 2015 Amendment Act”) and the Municipalities Amendment Act 2018 (“the 2018 Amendment Act”).

5. The basis upon which the Corporation contended, before the Chief Justice, that the Amendment Acts and the Bill, if enacted, would contravene the Constitution was as follows:

• i. the Amendment Acts:

  • (a) deprive the Corporation of property without compensation; and

  • (b) deprive it of the protection of the law; and

• ii. the Bill, if passed into law, does the same and will deny the Corporation and/or its electors freedom of expression in the choice of Councillors; and

to the extent that they do so they are, therefore, void and of no effect.

6. The Chief Justice summarised the case of the Corporation before him in the following terms:

“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.

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.” [Underline added in this, as in other citations]

7. I would add that the Corporation relies on the fact that Constitutions such as that of Bermuda, which recognise fundamental rights and freedoms, should receive a generous interpretation and a purposive construction: see Lord Wilberforce in Minister of Home Affairs v Fisher[1980] AC 319, 328; Lord Diplock in Attorney General of Gambia v Jobe[1984] AC 689, 700; and Lord Bingham in Reyes v R[2002] 2 AC 235 at [26]. See, also the dissentients, led by Lord Bingham, in Matthew v The State (Trinidad & Tobago)[2005] 1 AC 433, [42]; and Commissioner of Prisons v Seepersad[2021] UKPC [22] and [26].

8. The Chief Justice set out in his judgment a summary of the historical background which I gratefully repeat:

“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 & City1, 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 and Common Council, which officers were elected by Freeholders of the Town who would own and manage lands (including the land forming the port of Hamilton) and have the power to use a common seal to seal deeds, grants, conveyances, contracts and agreements to transact business for the encouragement and development of trade in the Town of Hamilton and for the convenience of the inhabitants in the area.”

9. The Chief Justice also summarised some of the frequent legislative changes that have taken place over the last 250 years in relation to many issues affecting the Corporation. I set out that summary in an Appendix to this judgement. The latest Act to which he referred was the Municipalities Act 1923 (“the 1923 Act”), which consolidated a number of previous enactments, repealing and replacing, and in some cases amending, many of them in whole or in part. The existence of the Corporation of Hamilton as a body corporate with perpetual succession was reaffirmed. Section 39 confirmed that the Corporation was vested with seisin in all lots not sold at the prior auction, as well as unoccupied and unclaimed lots.

Voting in municipal elections

10. The 1793 Act provided for an election from among landowners, referred to as freeholders, of the municipal area and for the election of municipal officials. The vote was to be under the supervision of Commissioners appointed by the central government, who were granted authority to conduct a vote by a “plurality of voices or votes” to elect the Mayor, Aldermen and a Common Council. For most of its history voting in Hamilton was through a one person, one vote system. But in 1978 the Municipalities Amendment Act 1978 gave a vote to any kind of business entity occupying a valuation unit in the municipality: i.e. to corporations, partnerships and “associations of persons corporate or incorporate or their nominees”. The 2010 Reform Act – see [12] below – abolished the business ratepayer vote. This was restored with certain modifications by the 2013 Amendment Act.

11. The Government maintains that the impetus behind the legislative changes emanates from some of the issues that have bedevilled the Corporation in the past, one of which is the effect of the business ratepayers franchise in concentrating...