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.

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