Withdrawal of same-sex marriage in Bermuda: low hanging fruit in the constitutional living tree?

By Mr Marc Johnson, Teaching Associate in Law (University of Bristol Law School).

© Procsilas Moscas

On 7 February 2018, Bermuda’s Governor approved the Domestic Partnership Act 2017 (DPA) which withdraws the right for same-sex couples to marry in Bermuda. The ‘Domestic Partnership’ purports to offer the same legal standing as marriage though there is a degree of scepticism around whether this will be the case. There is a substantial body of writing in the UK on whether the civil partnerships established under the Civil Partnership Act 2004 were in fact equal to marriage, or whether creating a second form of legal partnership also created a subordinate form of legal partnership.

This may not however, be the end of the story. According to Reuters News Agency, on 20 February 2018, a Bermudian Lawyer has filed a motion asking for the Supreme Court of Bermuda (a court of first instance unlike the Supreme Court of the UK which is the UK’s final appellate court), to consider whether the DPA is inconsistent with the Bermudian Human Rights Act 1981 (HRA). This blog piece will briefly consider whether the Bermudian constitution has been altered by the HRA to include protections for same-sex marriage, to what extent is the HRA constitutional, and can rights given under the HRA be removed.

The first point that I would like to make refers to a seminal case concerning the Canadian constitution, decided before the Judicial Committee Privy Council (JCPC) in the early twentieth century. The case of Edwards v Canada [1930] A.C. 124, 1929 UKPC 86 is a point of interest as it established a constitutional theory known as the living tree doctrine. Simply put, this doctrine establishes that the Canadian constitution is a living or organic entity that has to develop and evolve as the society it represents evolves.

This case came about when a challenge was brought to the ban on women becoming senators in Canada. In handing down their judgment, the Canadian Supreme Court felt that women should continue not to be eligible for two reasons: first, that women under the Canadian common law were not permitted to hold office, and secondly using a narrow reading on the word ‘persons’ found in the relevant Act (British North America Act of 1867) and the male emphasis in section 24 of this Act precluded women. Using both the common law principle and the intrinsic aid above, the Canadian Supreme Court retained the limitation on women becoming senators.

However, on appeal to the JCPC, the authority that had persuaded the Canadian Supreme Court came under scrutiny; in handing down their judgment, the court said “their Lordships do not think it right to apply rigidly to Canada of to-day the decisions and the reasonings therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries to countries in different stages of development”. This is a departure from the reserved approach taken by the domestic courts in Canada and as such is an application of external influence on Canadian constitutional jurisprudence.

The judgment refers to “[planting] in Canada a living tree capable of growth and expansion within its natural limits”. This idea of a gift by the UK legislature, of a growing and evolving constitution in Canada is a particularly relevant point when considering the current issue in Bermuda. If the gift of a constitution by the UK to a commonwealth country is an evolving gift which is everything but stagnant, then it follows to reason that the Bermuda Constitution Act 1967 and the Bermuda Constitution Order 1968 have also gifted a living organic constitution to reflect the society that it serves.

If the Bermudian constitution is living, then the rights contained within it can be expanded upon in the same way that the Canadian constitutional rights were expanded to include women senators. Two questions arise here; firstly, is the Bermudian HRA sufficient in its authority to expand upon constitutional rights? Secondly, can the constitution in its living nature contract as well as expand; can it allow for the removal of rights which have lawfully been given? In considering whether the constitution can contract, will the UK common law on removing rights that have been given influence any potential appeal to the JCPC in the withdrawal of same-sex marriage in Bermuda?

The case of Blackburn v Attorney General [1971] EWCA Civ 7 is often cited when the discussion moves towards removal of rights. In Blackburn Lord Denning exclaimed that “[f]reedom once given cannot be taken away. Legal theory must give way to practical politics.” In relation to Bermuda, there are some fundamental questions to answer including whether allowing same-sex couples to marry would amount to giving a right to those in a same-sex relationship. Secondly, if it does, would the JCPC see it as their role to apply the logic as seen in Blackburn.

On the question of allowing same-sex couples to marry, this is not as straightforward as first may seem. The right of same-sex couples to marry came about following a ruling of the Supreme Court of Bermuda in W Godwin et al v Registrar General [2017] SC (Bda) 36 Civ which found that that the Marriage Act 1944 was discriminatory in accordance with the Bermudian HRA, in not allowing same-sex couples to marry. The Supreme Court of Bermuda issued a mandatory order requiring the registrar to publish banns of marriage for those same-sex couples that apply and as such the right to marry became extant.

Since the judgment of the Supreme Court of Bermuda in May 2017, the Governor of Bermuda gave Royal Assent to the DPA which withdraws the ability for same-sex couples to marry. Although the right was arguably created by the Bermudian common law, it is relevant here to apply some distinctly European (and more-so British) legal reasoning to this Commonwealth issue. The Supreme Court of Bermuda decided the case in the way that it did because of the incompatibility of the Marriage Act 1944 with the provisions of Bermuda’s HRA, which states that a person is discriminated against if they are treated less favourably because of, inter alia, that persons sexual orientation (section 2(2)(a)(ii) of the HRA).

With reference to whether a right has been given, to use Lord Denning’s terminology, and to the more recent issue of the filing of a legal challenge to the constitutionality of the DPA, we can briefly consider whether the HRA in Bermuda is constitutional in nature or simply ordinary law. Helpfully, the HRA contains indications of its status within its own text. To begin with, it is worth drawing to the reader’s attention that Bermuda recognised the European Convention on Human Rights, and the HRA specifies that these rights apply in Bermuda. According to ‘The Schedule to the Constitution of Bermuda: Forms of Oaths and Affirmations’, “no law shall make any provision which is discriminatory either of itself or in its effect” (paragraph 12(1)). Although this seems to answer the question, paragraph 12(4)(c) states that the protection from discrimination does not apply in reference to marriage. Therefore, the status of the HRA is an important factor in determining whether it is possible for an Act succeeding the constitution to expand on constitutional protections without itself being unconstitutional.

The Bermudian HRA does have a status which is over and above that of ordinary laws as it allows the Supreme Court of Bermuda to declare an Act “inoperative” if it conflicts with the provisions of the HRA. A good recent example of this occurred in A and B v Director of Child and Family services and Attorney-General [2015] SC (Bda) 11 Civ. Moreover, the JCPC has gone as far as to call the Bermudian HRA a quasi-constitutional document in the case of Marshall v Deputy Governor [2010] UKPC 9. In a more recent case the Supreme Court of Bermuda compared the authority it receives from the HRA to declare an Act inoperable, with the power to strike down laws that conflict with the Bermudian Constitution (Bermuda Bred Company v Minister of Home Affairs [2015] SC (Bda) 82 Civ). In this last case the court states that although “the rights protected by the HRA do not enjoy quite as elevated a status as the fundamental rights and freedoms provisions of the Constitution, Parliament has clearly conferred on this statute quasi-constitutional status”. However, in both Bermuda Bred Company and in A and B the courts took a “generous and purposive approach” to applying the HRA and followed the higher standard of rights that were allocated under the HRA as opposed to the constitutional rights which precluded express protections for same-sex couples.

In reference to the current legal challenge issued against the removal of same-sex marriage rights by the DPA, it does not seem consistent with the rulings abovementioned to allow an ordinary Act to legislate incompatibly with the HRA. An arguable issue here is whether the exception included in the Constitution to exclude discrimination in terms of marriage would ostensibly lead to the HRA being marginally unconstitutional in its protection from discrimination for those who are same-sex partners seeking marriage. This brings me to my second point, if that right to marry has been given, albeit by the common law, can it then be taken away by an Act (which may or may not be inoperable as it is potentially inconsistent with the HRA)?

Although the right has in fact been taken away by the DPA, the pending case raises some issues which are relatively infrequently addressed in Bermudian domestic courts. Having rights, provided under the common law ,which are consistent with the HRA as a quasi-constitutional law, taken away by an ordinary law is inconsistent with UK jurisprudence and legal theory, though there seems to be limited Bermudian case law to refer to in this area. Given that the UK jurisprudence will inevitably filter into the argument if the matter is appealed beyond the Bermudian Court of Appeal to the JCPC, some UK points will be considered to add flesh to the bones of the argument.

Earlier, reference was made to Blackburn and specifically to Lord Denning’s point that “[f]reedom once given cannot be taken away”. This statement is used anecdotally rather than asserting it as authority. It could be argued that a legislature could legislate to remove rights; the UK Parliament could repeal the Human Rights Act 1998, and withdraw from the European Convention on Human Rights, and therefore remove rights from the individual. However, this is an abstract argument given that doing so would invariably result in a considerable, politically charged argument.

There is a common law presumption in the UK that Parliament does not legislate contrary to the common law unless it does so explicitly (Leach v R [1912] AC 403; (1912) 7 Cr. App. R. 157). In s.53 of the DPA, the Bermudian legislature has explicitly, by reference to the case name, stated that the judgment and rule allowing same-sex couples to marry is void, and so the legislature has clearly expressed its will explicitly in legislation. Although this seems express and certain in its application, there is a slightly confusing caveat that has been included in s.53. The first phrase states “[n]otwithstanding anything in the Human Rights Act 1981…” Given that the HRA specifically precludes less-favourable treatment on the basis of sexual orientation, it is difficult to reconcile s.53 of the DPA with the provisions contained in HRA, specifically section 2(2)(a)(ii). The Bermudian Government states that the DPA gives a statutory right to all couples to enter into a legally recognised partnership, but the result of that is simply that same-sex couples can no longer get married, and that all previous marriages between same-sex couples are void.

This does directly discriminate against same-sex couples as (using the standard set out in s.2 of the HRA) same-sex couples cannot enter into a legal marriage and so are treated less-favourably, thus making out the grounds for discrimination under the Bermudian HRA. If the DPA does in fact discriminate against same-sex couples, then the Supreme Court of Bermuda can declare the DPA inoperable as the HRA carries the quasi-constitutional status mentioned earlier. The only potential sticking point is whether the quasi-constitutional HRA is inconsistent with the Bermudian Constitution.

As abovementioned, the Bermudian Constitution includes a clause exempting marriage from discriminatory protection, whereas the HRA does not and so the discriminatory protections contained in the HRA do apply to marriage (Godwin and DeRoche v The Registrar General and others [2017] SC (Bda) 36 Civ (5 May 2017)). Here, we need to take a somewhat theoretical approach to answering the question. In the Bermudian case of A v Attorney General [2017] SC (Bda) 90 Civ (23 October 2017), the Supreme Court grapples with a post-constitution statute (Companies Act 1981), which seems inconsistent with the constitution. The court affirmed that it is the duty of a court to construe an Act “subject to the presumption of constitutionality” if it precedes the Bermuda Constitution Order 1968. Where this is not possible, to declare that the later Act is repugnant in accordance with the Colonial Laws Validity Act 1865. The presumption of constitutionality asserts that an Act passed is constitutional unless a subject can prove that it is not (Eoin Carolan, ‘Leaving behind the Commonwealth model of rights review: Ireland as an example of collaborative constitutionalism’ and Cliona Kelly, ‘A tale of two rights-based reviews or how the European Convention on Human Rights Act 2003 has impacted on the Irish model of review’ in J Bell and M Luce(eds) Rights-Based Constitutional Review Constitutional Courts in a Changing Landscape (Edward Elgar, 2016)).

Given that the HRA has not yet been declared repugnant to the constitution, it is possible that the former option viz. the HRA is being read compatibly with the constitution and so affording rights in addition to the constitution, is true. This is however, a weak assumption as it is based on the lack of evidence to the contrary. Notwithstanding this point, assuming that the HRA is compatible with the constitution, the constitutional rights have therefore, been extended under the HRA to include discrimination protections for same-sex couples and that these are not exclusive of marriage as was originally the case. If this logic is upheld by the Supreme Court of Bermuda when it considers the pending case, then the DPA may very well be declared inoperable in part as it seeks to treat same-sex couples differently, and does not occupy a similar constitutional status to either the constitution or the HRA.

There is however, an alternative argument which should be considered; does the HRA provide protection against discrimination on the basis of sexual orientation, save for the marriage exception which is found in paragraph 12(4)(c) of the Constitution? If this logic is adopted by the courts, then there is a strong possibility that the DPA would be constitutionally valid in its operation. In order to make this argument fit, a number of commonwealth principles need to be ignored. Including (but not limited to), the living tree doctrine established in the Canadian constitutional case and the logic invoked by Lord Denning in Blackburn above. The statement of the Supreme Court of Bermuda in A v Attorney General would also need to be reviewed; it would no longer be sufficient to read an Act compatibly with the presumption of constitutionality, the Act would need to be construed as to apply subject to any exceptions which can be found in the constitution.

This seems like a considerable step from the current path trodden by the Supreme Court of Bermuda in terms of logical reasoning. Furthermore, this takes no account of the political impact both nationally and internationally, of removing rights from same-sex couples and invalidating marriages which had been entered into lawfully at the time. The removal of rights which have been awarded by a court with original jurisdiction is a strong move and one that may incur criticism from far and wide. Invalidating previously lawful marriages is a very strong statement of intent and this does lead one to wonder whether the DPA has been a knee-jerk reaction to a move by the Supreme Court of Bermuda to apply the HRA in a liberal fashion. With these points in mind, the next few weeks will be very important in terms of Bermudian constitutionalism and potentially, of interest for the JCPC and UK lawyers also.

Bad Work: the Government’s Response to the Taylor Review

By Dr Katie Bales, Prof Alan Bogg, Prof Michael Ford QC, Prof Tonia Novitz and Ms Roseanne Russell, Centre for Law at Work (University of Bristol Law School).

© Alexander Baxevanis

Don Lane was a DPD courier, whose written contract described him as an ‘independent contractor’, aiming to ensure that he was neither an ‘employee’ nor a ‘worker’ and therefore was not entitled to the legal rights such as  protection against dismissal, the national living wage, paid holidays, or even statutory sick pay. He suffered from diabetes and, having already been fined £150 for attending a hospital appointment earlier in the year, died in January 2018 after working through the Christmas season despite illness. His employers knew that he had suffered from a diabetic collapse at work but adopted a system which strongly discouraged him taking any time off for sickness: no income for sick leave and, worst of all, fines. The media has documented other examples of the abusive treatment of ‘gig’ workers in courier companies such as Hermes and Amazon.

In July 2017, ‘Good Work’, Matthew Taylor’s Review of ‘Modern Working Practices’ was published. The Report aimed to promote ‘good work’ through the adoption of 53 recommendations. In February 2018, the Government published its response, also entitled Good Work, mostly accepting the Review recommendations, but ducking their implementation by offering further ‘consultation’. Accompanying the thinly reasoned Response were four hastily drawn up consultation papers, on employment status, transparency in the labour market, agency workers and enforcement of employment rights.

While the Government says it is contemplating ‘the single largest shift in employment status since the Employment Rights Act in 1996’, its focus is on clarifying rather than extending its ambit. The reason seems to lie in its endorsement of the ‘flexibility’ of the current UK labour market, following Taylor’s lead, enabling individuals and employers ‘to make the choices that are right for them’. The notion that such choices are structurally constrained is ignored; rather the blame is laid at the door of the exceptional ‘bad’ employer. While some improvements are contemplated, they do not broaden the scope of access to statutory rights at work in a way that would have helped Don Lane or will prevent other forms of abuse. Continue reading

Retained EU law in the EU (Withdrawal) Bill: A Reaction to the House of Lords Constitution Committee Report

By Prof Michael Ford QC, Professor of Law, and Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).*

On 29 January the House of Lords Constitution Committee delivered a withering assessment of the EU (Withdrawal) Bill, describing it as ‘fundamentally flawed from a constitutional perspective in multiple ways’. Alongside trenchant criticisms of the delegated powers in the Bill, and the effects for the devolution settlement, the Committee’s Report focuses on the definition and status of ‘retained EU law’.

The aim of this short post is to explore some of the implications of the Committee’s approach to this vexed question. If, as the Committee recommends, ‘retained EU law’ is defined narrowly, it will have the virtue of restricting the scope of the Henry VIII Henpowers in clause 7, which only apply  to operational problems and deficiencies in relation to ‘retained EU law’. But a narrow definition gives rise to problems elsewhere. ‘Retained EU law’ is also the definition used for the purpose of the continuing application of existing CJEU case law and retained general principles of EU law under clause 6. Questions as to the validity, meaning and effect of pre-Brexit UK law which is not ‘retained EU law’ are therefore excluded from these interpretative provisions. In the Bill as worded, it is not clear if this difficulty is resolved by the operation of the principle of supremacy of EU law referred to in clause 5, the meaning and effect of which is very opaque. The Committee recommends that the principle of the supremacy of EU law be abandoned altogether; but if its approach were to be followed, there would be no EU principles which would apply to any law currently in the field of EU law which is not ‘retained EU law’. The implications are assessed by reference to the Equality Act 2010 (EqA). Continue reading

Sanctuary Scholarships as a commitment and first step towards truly inclusive access to higher education

By Dr Katie Bales, Lecturer in Law (University of Bristol Law School).*

Sanctuary Scholarship rep and undergraduate student Stella Ogunlade presenting at a conference on the importance of sanctuary scholarships.

On 8 June 2016, the University of Bristol announced the launch of the ‘Sanctuary Scholarship scheme’ which provides access to higher education for forced migrants facing major barriers in accessing education. In doing so, Bristol joined a cohort of like-minded Universities seeking to provide space and sanctuary for those forced to flee their countries of origin. At present, for example, there are approximately 40 Universities in the UK offering scholarships to forced migrants.

This seemingly noble position is a necessary one as there are many obstacles facing forced migrants wishing to pursue University education – the most significant of which is that student loans are not available to: asylum seekers claiming refugee status; refused asylum seekers; or those with discretionary leave to remain in the UK. As the majority of these persons are also prohibited from working, University fees remove any possibility of their accessing higher education. Continue reading

Planning Law and the Housing Crisis in Bristol

By Mr Ed Burtonshaw-Gunn, PhD Researcher and Land Law Tutor (University of Bristol Law School).

The housing crisis ignites local and national media coverage. It is near impossible to pick up a newspaper or turn on the evening news without reading or hearing a story about the nation’s obsession with (or need for) housing. Soaring house prices, new housebuilding targets championed by politicians or think tanks, or calls to abolish on the much-loved green belt land protection are all on the news agenda. Yet, while covering these stories the media often focus on the effects of the housing crisis, and not the root cause(s). My research is examining how planning law, policy, and practice, shape the production of housing in Bristol, and argues that the housing crisis can be fundamentally reduced to one major factor. For 40 years, the supply of new housing has failed to meet nation’s demand.

On the 6th December, I was invited to present my research to the Property Network of the Bristol Junior Chamber. The audience was made up of a range of Bristol housing stakeholders; property and planning lawyers, planning engagement and public-relations consultants, and housing association managers. The presentation covered three areas; the national housing crisis, house building in Bristol, and a prominent finding from my research, the importance and methods of delivering affordable housing in Bristol. Continue reading

New book on enforcement of labour standards through public procurement

By Dr Albert Sanchez-Graells, Reader in Economic Law (University of Bristol Law School).

Smart procurement aims to leverage public buying power in pursuit of social, environmental and innovation goals. Socially-orientated smart procurement has been a controversial issue under EU law. The extent to which the Court of Justice (ECJ) has supported or rather constrained its development has been intensely debated by academics and practitioners alike. After the slow development of a seemingly permissive approach, the ECJ case law reached an apparent turning point a decade ago in the often criticised judgments in Rüffert and Laval, which left a number of open questions.

More recently, Bundesdruckerei and RegioPost have furthered the ECJ case law on socially orientated smart procurement and aimed to clarify the limits within which Member States can use it to enforce labour standards. This case law opens up additional possibilities, but it also creates legal uncertainty concerning the interaction of the EU rules on the posting of workers, public procurement and fundamental internal market freedoms. These developments have been magnified by the reform of the EU public procurement rules in 2014.

This freshly-released book assesses the limits that the revised EU rules and the more recent ECJ case law impose on socially-orientated smart procurement and, more generally, critically reflects on potential future developments in this area of intersection of several strands of EU economic law. The book includes four contributions by Bristol scholars, including Prof Phil Syrpis‘ perspective from an EU constitutional law standpoint, Prof Tonia Novitz‘s reflections on collective bargaining and social dumping in posting and procurement, Ms Nina Boeger‘s thoughts on public procurement and business for value, and my own views on the competition and State aid implications of the use of procurement to enforce labour standards.

The collection of essays includes additional insights by colleagues at Oxford, Cambridge, Turin, Birmingham, Leicester, Warsaw, and the UNCITRAL, and is the result of a conference held at the University of Bristol Law School in May 2016. The papers have been constantly updated and include an assessment of the agreed revision of the Posted Workers Directive in the fall of 2017.

Full details of the book are as follows: A Sanchez-Graells (ed), Smart Public Procurement and Labour Standards–Pushing the Discussion after RegioPost (Hart, 2018).

Sex and the City Culture

By Ms Roseanne Russell, Lecturer in Law (University of Bristol Law School).

Last week’s reports of the Presidents Club charity dinner once again revealed the troubling culture of the City: ‘that weird mix of cutting-edge high finance and caveman misogyny’ (Patrick Jenkins, Financial Times, 24 January 2018). Journalist Madison Marriage’s exposé recounted how 130 ‘hostesses’ were recruited for a fundraising dinner to be attended by 360 men from the worlds of politics, business and finance (Financial Times, 23 January 2018). Although it is not clear who attended, press reports have stated that the guest-list included senior executives from well-known corporate groups, bankers and hedge fund managers.

The well-intentioned aim of the evening’s auction was to raise money for charity. According to the Club’s website, ‘over the years, esteemed members of the investment, real estate, sports, entertainment, motor industry and fashion world have come together to support and raise millions of pounds for the trust in its work to help as many worthy children’s causes.’ Marriage’s report, however, painted a picture of the highly sexualised City culture that Linda McDowell so vividly captured in her 1997 book Capital Culture and by the Fawcett Society in its 2009 report on Sexism and the City. While ‘hostesses’ were apparently groped, subjected to lewd comments, and, in one instance, asked to join an attendee in his bedroom, the men attempted to outdo each other’s bids for lots including ‘an exclusive private night’ at a strip club, plastic surgery to ‘take years off your life or add spice to your wife’, and a combined lot of lunch with the Foreign Secretary and tea with the Governor of the Bank of England. The winning bid for this last lot was reportedly £130,000. The hostesses were asked to dress as though attending a ‘smart, sexy place’ and asked to sign a non-disclosure agreement (“NDA”) relating to the evening. Continue reading