In a guest post, Elijah Z Granet analyses the Judicial Committee of the Privy Council’s judgment in AG for Bermuda v Ferguson & Ors.

Introduction

In AG for Bermuda v Ferguson & Ors [2022] UKPC 5, a majority of the Judicial Committee of the Privy Council held (Lord Sales dissenting) allowed the Bermudian Government’s appeal against two earlier Bermuda decisions (previously covered here on Law & Religion UK) holding that a law defining marriage as between a man and a woman was unconstitutional.

Background

Bermuda is a British Overseas Territory, whose laws exist under the Constitution of Bermuda, enacted through UK secondary legislation. The bicameral legislature has the standard colonial plenary power to make laws for ‘peace, order, and good government’ (POGG) of the territory, within the scope of the power granted by the Constitution. For these purposes, the most relevant provisions are s 8(1), which provides broad freedom of conscience, thought, and religion (including the manifestation of religion) and s 12, which provides limited protection against discrimination on certain bases (here, it is only relevant that ‘creed’ is a protected characteristic, but sexual orientation is not). The Constitution has no equivalent provision to art 12 ECHR (right of men and women to marry). While the UK has responsibility in international law to ensure the application of the European Convention on Human Rights (ECHR) to Bermuda and Bermudians may apply to the Strasbourg Court if they feel the UK has failed in this regard, the ECHR itself is not part of domestic Bermudian law and cannot be relied on by Bermudian courts except as persuasive authority on rights. Bermuda does have a Human Rights Act (HRA) which enshrines additional rights in law (viz, prohibiting discrimination on the basis of sexual orientation) but because the HRA is ordinary legislation, the Legislature may enact legislation notwithstanding its provisions. Continue reading →