In May 2017, the Supreme Court of Bermuda established marriage equality for same-sex couples in Godwin-DeRoche v The Registrar General [2017] SC (Bda) 36 Civ. The court used neither international law nor imperial law but relied on local Bermudian law to hold that the Human Rights Act of Bermuda requires marriage equality. Governments that respect the rule of law and are dissatisfied with a first instance court’s decision would acknowledge the separation of powers and appeal such a judgment in the ordinary manner. The Bermuda government, however, brought forward a bill, the effect of which was to cancel the judgment. Its argument was that the exemption clause of the Human Rights Act permits it to exempt the Marriage Law (and any other local law) from having to comply with the prohibition of discrimination in the Human Rights Act.

The bill was passed by the Bermudian legislature and given assent in February 2018 by the Governor. This Domestic Partnership Act 2018 (the ‘Partnership Act’) withdraws the right to marry for same-sex couples and implements, in its place, a so-called ‘domestic partnership’. Theresa May, the UK Prime Minister, said she was ‘seriously disappointed’ but stated that ‘the bill has been democratically passed by the Parliament of Bermuda, and our relationship with the overseas territories is based on partnership and respect for their right to democratic self-government’.

These words evidence an apparent lack of understanding of the constitutional arrangements in place in Bermuda and, this article contends, a disregard for Bermudian law and self-determination (rather than self-governance). Perhaps more disturbingly, it is suggested here that the UK government’s endorsement of such an action demonstrates disregard for ‘good governance’, a central policy of the UK government with regards to the constitutional arrangements in place between the UK and its overseas territories. I shall address each of these issues in turn.

Understanding Bermuda’s constitutional arrangements

The idea that the people of Bermuda can adopt any laws they wish is, in my view, wrong as a matter of Bermudian constitutional law (Bermuda Constitution Act 1967 passed by the UK Parliament (the ‘Constitution’)) and, I argue, constitutes a breach of s 2 of the Colonial Laws Validity Act 1865 (the ‘Validity Act’) (together referred to in this article as the ‘Imperial Law’). Whereas the Westminster system of parliamentary democracy is one in which parliament is sovereign and thus can, within very few constraints, do as it pleases, the UK imposed upon Bermuda a constitutional democracy in which the Constitution is sovereign. Thus, I would argue that the Parliament of Bermuda cannot do as it pleases.

The Constitution sets out, and hence limits, the powers of each of the three branches of government (similar to the USA, or France or any country with a codified written constitution). The court interprets the laws (including the Constitution) and the legislature makes and amends the laws (excluding, and in conformity with, the Constitution). The law-making powers of the local legislature in Bermuda derive, therefore, from the Constitution, rather than from the people; hence the laws passed by the legislature must conform to the Constitution, and in particular to its bill of rights, regardless of the wishes of the majority.

To the extent that they do not conform or are simply inconsistent with the Constitution, they are ‘repugnant’ to the Constitution and the Governor must reserve the bill for the ‘signification of Her Majesty’s pleasure’, unless authorised by the UK government to give it assent (pursuant to article 35(2)(c) of the Constitution). However, there is one more protection in case the UK government, the Governor and the legislature conspire to breach the Constitution: to the extent that any law passed by the local legislature (and which received assent by the Governor) is repugnant to the Constitution, it is, and remains, absolutely void and inoperative pursuant to s 2 of the Validity Act: ‘Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate… shall be read subject to such Act … and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.’

How does this affect the Partnership Act?

The Bermuda Supreme Court interpreted in Godwin-DeRoche that Bermudian law requires marriage equality. In countries such as Bermuda with a codified written constitution, the court could have relied on the Constitution and the Validity Act, but the court did not need to rely on Imperial Law. Rather, the Human Rights Act was sufficient to deal with the discriminatory issue. The Supreme Court may not have wanted to rely on Imperial Law as it could have been seen as a sign of colonialism. A court of appeal could have reversed the Supreme Court by holding that its interpretation of the Human Rights Act was wrong as a matter of law, but the Bermuda government decided not to follow the normal appeal process; probably because they knew that they would lose. The court’s interpretation was then, effectively, enshrined in Bermuda law.

Against this background and, surprisingly, relying on the Imperial Law, the Bermuda government engaged s 35 of the Constitution and requested authorisation from Boris Johnson, Secretary of State for Overseas Territories, to get the Governor to assent to the bill which appeared to him inconsistent with the Constitution. Had Johnson refrained from intervening, the unchallenged decision of the court, constitutional self-determination in itself, would have prevailed. However, the Foreign Secretary effected his imperial powers and authorised the Governor to give assent. In these circumstances the second protection kicks in and so the Partnership Act, to the extent that it is ‘repugnant’ to the Constitution and the prohibition of discrimination contained in its bill of rights, is and shall remain absolutely void and inoperative pursuant to s 2 of the Validity Act.

UK’s legal duties towards overseas terroritories

The UK has the legal duty to ensure that Bermuda is governed responsibly and complies with international law. The same is true of its other British Overseas Territories, including the other five in the Caribbean (Cayman Islands, the British Virgin Islands, Montserrat, Anguilla and the Turks and Caicos). Although the UK has devolved some powers, including self-determination, they remain under international law non self-governing territories (see www.un.org/en/decolonization). The UK, for instance, appoints their Governors, who are responsible for good governance and have the power to withhold assent to legislation. Further, the UK retains constitutional power to legislate and has the ability to step-in regarding internal matters, even against the wishes of the majority, in areas of law which have been devolved or where the interest of the UK requires so.

Put simply, they are not sovereign states, but remain colonies of the UK. This is why they are not part of the Commonwealth of Nations. By example, the UK repealed their sodomy laws in 2000 against their wishes and exercised direct rule in the Turks and Caicos in 2009 by deposing its government for corruption. In 2015, the UK government threatened them with an Order in Council to ensure compliance with international tax law and information exchange. This led then to an agreement between them and the UK government by which the overseas territories would make information concerning beneficial ownership of companies incorporated in their jurisdictions available to all appropriate tax authorities and law enforcement agencies. Notwithstanding this agreement being in full compliance, the House of Commons early in May introduced an amendment to the Anti-Money Laundering Bill with the effect that all British Overseas Territories must adopt public registers of company ownership or be forced to do so by Order in Council by the end of the decade. These examples show that devolution of powers and self-determination can be withdrawn by the UK government partially or totally at the UK discretion. This is in principle because the UK has the legal duty to ensure that these territories are governed responsibly and comply with their written constitutions and international law.

The European Convention on Human Rights (ECHR) has been extended by the UK to each of its overseas territories. They are bound to comply with it, but the UK is the party legally responsible for their breaches because, as the sovereign power, the UK is ultimately responsible for the ‘good governance’ of these territories. Without getting into the assessment of how wise the Anti-Money Laundering Bill amendment is, particularly given that information concerning beneficial ownership is currently available to any tax authority, including HM Revenue and Customs, it is rather doubtful whether Parliament adopted such a step on grounds of good governance and compliance with international law in the territories. This is particularly so given the Parliament’s failure to adopt a similar attitude in relation to human rights and protections from discrimination of LGBTI individuals in circumstances where there are actual serious and ongoing breaches of the ECHR by the government of the territories.

A similar duty arises in the internal order. As highlighted above, pursuant to article 35(2)(c) of the Constitution, the Governor, acting in his/her discretion, ought to have reserved the Partnership Act for the signification of Her Majesty’s pleasure. We know that acting with discretion does not imply acting with arbitrariness, let alone illegally; but at the same time the Governor cannot act contrary to an order of the UK government. This is where article 17 (2) of the Constitution kicks in, in that it requires the Governor to effect its powers ‘subject to the provisions of this Constitution’. This is a critical constitutional limit in that anything the Governor does at his/her discretion, or by instruction from the UK government, has to comply with ’the provisions of [the] Constitution.’ This makes constitutional sense, in that otherwise the Governor or the Secretary of State responsible for Overseas Territories can bring about a constitutional change, which only the UK Parliament has the power to effect. This clause protects the supremacy of the UK Parliament. The decision of Johnson, as Secretary of State responsible for all overseas territories, did not conform to article 17(2), in that the Governor of Bermuda, by giving assent to the bill, acted in breach of the prohibition of discrimination of the Constitution. It follows that Johnson’s authorisation was illegal and, as such, is challengeable by judicial review in the High Court in London, as an act contrary to an act of the UK Parliament.

There are examples of breaches of the ECHR in other British overseas territories. For example, in the Cayman Islands, in August 2015, local legislators incited violence and sexual hatred against LGBTI people, avoiding prosecution through parliamentary privileges. A petition to the Queen by Colours Cayman for the ECHR to be complied with by Her Majesty government in September 2016 was ignored by the UK government. The expulsion of LGBTI Caymanians by the Immigration Authority forces them to live overseas with their loved ones by refusing to apply its own precedent set in July 2016 (establishing rights for the same-sex spouse of a foreign worker to reside in the Cayman Islands as a dependant). The UK clearly has its own policies and agenda in place with regards to governance of these territories. This is in stark contrast to the approach taken by the US, France and the Netherlands, each of which respects the right to democratic self-determination throughout their dependent Caribbean territories, without neglecting equality for all, including LGBTI people.

The UK government should explain why LGBTI citizens are ‘less worthy’ of equality and how ‘good governance’ permits segregation of LGBTI people. Neither the will of the majority nor devolution or self-determination can actually explain it. Until then, the message sent to LGBTI people in other British Overseas Territories, such as the Cayman Islands, is lugubrious: you can fight for, and secure, equality under local law, but the UK government will support the taking away of that right in defiance of the rule of law and disregard for the promise of securing ‘good governance’ for all persons.

Contributor Dr Leonardo Raznovich is a barrister, Co-Vice Chair of the LGBTI Law Committee of the International Bar Association and Visiting Senior Research Fellow at Canterbury Christ Church University