A (a minor, by J B, her father and next friend) v Minister for Education
| Jurisdiction | Bermuda |
| Judge | Hargun CJ |
| Judgment Date | 22 April 2022 |
| Court | Supreme Court (Bermuda) |
| Docket Number | CIVIL JURISDICTION 2021: No. 368 |
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
AND IN THE MATTER OF THE BERMUDA CONSTITUTION
[2022] SC (Bda) 28 Civ (22 April 2022)
Hon. Chief Justice Hargun
CIVIL JURISDICTION 2021: No. 368
In the Supreme Court of Bermuda
Mr. Peter Sanderson of BeesMont Law Limited, for the Applicant and Mrs. Shakira J Dill-Francois, Deputy Solicitor General, for the Respondent
Whether the requirement of a saliva COVID-19 test is a “search” within the meaning of section 7(1) of the Constitution; whether the Applicant “consented” to the test; whether the Minister had lawful authority to implement the policy; whether the lawful authority complied with the principle of legality
These judicial review proceedings relate to the decision by the Minister for Education (“ the Minister” or “ the Respondent”) to (i) require pupils to undergo a COVID-19 test prior to each return to school and (ii) not to open schools unless a certain percentage of pupils have submitted to a COVID-19 testing. The Applicant, a pupil at an aided or maintained school, established under section 15 of the Education Act 1996 (“ the Education Act”), seeks a declaration that this decision by the Minister was unlawful. The Applicant seeks an order of mandamus requiring the Minister to allow the Applicant to attend school regardless of whether she has submitted to a COVID-19 test. The Applicant also seeks an order of prohibition, prohibiting the Minister in closing the Applicant's school on the grounds that insufficient children have submitted to a COVID-19 testing. The Applicant also seeks to challenge the Minister's decision as being in breach of her fundamental rights set out in section 7 of the Bermuda Constitution Order 1968 (“ the Constitution”).
In support of the application the Applicant has filed three affidavits by her father and next friend, Mr J B dated 17 November 2021, 11 February 2022 and 17 February 2022. On behalf of the Minister there are two affidavits by Ms Kalmar Richards, the Commissioner (“ the Commissioner”) of education for the Department of Education dated 17 January 2022 and 1 March 2022; and two affidavits by Dr Ayoola Oyinloye, the Chief Medical Officer (“ the CMO”) dated the 17 January 2022 and 18 February 2022.
The Applicant's application requires the Court to consider the following provisions of the Education Act, section 7(1) of the Constitution and certain provisions of the Occupational Safety and Health Act 1982 (“ OSHA”).
The relevant provisions of the Education Act provide that:
“ Parents must secure the education of their children
42 (1) It shall be the duty of the parent of every child of compulsory school age to cause him to receive suitable education either by regular attendance at a recognized school or otherwise.
(2) If any question arises whether a child of compulsory school age is or is not receiving suitable education—
(a) otherwise than by regular attendance at a recognized school; or
(b) at a recognized school, that question shall be referred to, and determined by, the Minister, and the decision of the Minister shall be final.
Parents must secure regular attendance of children at school
44 (1) If any child of compulsory school age who is enrolled as a pupil at a recognized school fails to attend regularly at the school, the parent of the child commits an offence against this Act.
Interpretation of Part VI
50(1) In this Part “free education” in relation to any child, means education for which no fee for the tuition of the child is payable by or on behalf of the child or for which the fees for the tuition of the child are payable by the Minister by way of a grant-in-aid.
Entitlement to free education
51(1) Subject to the provisions of this Act, every child who is resident in Bermuda shall have a right to receive free primary school, middle school and senior school education, suited to his age, ability, special needs (if any), aptitude and health, at an aided or maintained school.
Implementation of right to free education
52(1) Subject to the provisions of this section, with respect to the implementation of the right of children to receive free education pursuant to this Act, such right shall be implemented by the provision of free education at all maintained schools and by making suitable arrangements for such education in aided schools.
Section 7 of the Bermuda Constitution provides that:
“ Protection for privacy of home and other property
7 (1) Except with his consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—
(a) that is reasonably required—
(i) in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development of mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit; or
(ii) for the purpose of protecting the rights and freedoms of other persons;
(b) to enable an officer or agent of the Government, a local government authority or a body corporate established by law for a public purpose to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government or that authority or body corporate, as the case may be; or
(c) to authorise, for the purpose of enforcing the judgment or order of a court in any civil proceedings, the search of any person or property by order of a court or the entry upon any premises by such order, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
The relevant provisions of the OSHA provide that:
“ General duties of employers
3(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
(2) Without prejudice to the generality of an employer's duty under subsection (1), the matters to which that duty extends include in particular—
…
(f) arrangements for consulting and co-operating with the safety and health committee or the safety and health representative at the place of employment for the purpose of resolving concerns on matters of health, safety and welfare at work.
(3) In such cases as may be prescribed, every employer shall prepare and as often as may be appropriate revise a written statement of his general policy with respect to the safety and health at work of his employees and the organization and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all his employees.
…
General duties of employers and self-employed persons to persons not in their employment
4(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
…
(3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being their employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.”
The Applicant contends that every child has a right to free education at an aided or maintained school and Mr Sanderson submits, on her behalf, that the Court should be very wary of any incursions on that right, given the fundamental importance of all children being able to effectively exercise that right. The decision of the Minister means that if a child does not undergo a COVID-19 test, she cannot attend school; and if insufficient children consent to a COVID-19 test, then the school will remain closed.
Mr Sanderson submits that a mandated COVID-19 test amounts to a search for the purposes of section 7(1) of the Constitution. The threat of denying a child access to free education means that the consent to the search is not freely given. It follows, Mr Sanderson argues, that such a scheme can only be done under the legal authority, as required by section 7(2) of the Constitution. If there is no legal authority, then the demand to undergo a search is unlawful.
Ms Dill-Francois, on behalf of the Minister, acknowledges that the children between the ages of 5–18 are entitled to free education but submits that there is no requirement that such education must take place in a school. If this was the case, Ms Dill-Francois argues, it would mean that the Ministry would not be able to implement remote learning during the pandemic.
On behalf of the Minister, it is argued that even if a child is not permitted to enter the school premises, the Ministry will not restrict them from their right to free education, as they will be provided with the necessary learning material to ensure that they can continue to learn at home. In the circumstances, it is submitted on behalf of the Minister, that the Applicant has a choice whether to take a COVID-19 test and if she elects not to do so at the Ministry will take the necessary steps to provide her...
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