July 16, 2014

Dear Sir,

I refer to your recent articles on “Same-Sex Marriage” Implying that same-sex couples, which do not presently enjoy the same legal rights in Bermuda as opposite-sex couples, can look to the Bermuda courts for re-dress.

Presently:

A: Bermuda law does NOT recognise same-sex marriage.

B: Until same-sex marriages are legally recognised in Bermuda, our government agencies and courts cannot lawfully grant to same-sex couples the consequential legal benefits of marriage currently enjoyed by opposite­ sex couples.

C: The European Convention on Human Rights (‘’the Convention”) has yet to be implemented into Bermuda law and Bermuda courts cannot rely upon it when adjudicating disputes.

D: The Bermuda Constitution and the Human Rights Act are the principal pieces of legislation for the Supreme Court when hearing cases involving human rights.

E: The granting of equal rights to same-sex couples has to be legislated into Bermuda law by the Government and cannot be mandated by the courts.

The Human Rights Act is a misnomer to the extent that it does not actually grant individual rights, but proscribes discriminatory behaviour. It also misleads by stating in its preamble: “... the European Convention on Human Rights applies to Bermuda”. This is only correct in so far as the UK did extend the Convention to Bermuda by declaration; however, only the Bermuda Government can legally, through domestic legislation, specifically implement the Convention into Bermuda law. This was clearly stated by the Court of Appeal for Bermuda in 2003 and was confirmed in the Supreme Court of Bermuda in 2005, when the Chief Justice stated that this was a well-established fact of Bermuda law.

The Constitution of Bermuda sets out the fundamental rights and freedoms of the Individual, but “sexual orientation” or the guarantees relating to the right to marry and to found a family granted in the Convention, are not to be found in our Constitution.

Accordingly, until the Bermuda Government passes legislation to specifically implement the Convention into Bermuda law, it does not have the force of law and cannot be applied by the Bermuda courts.

The right to marry and found a family (which is guaranteed by the Convention and upon which the European Court of Human Rights has ruled applies to same-sex couples) applies only to the extent that if a contracting state to the Convention does not permit same-sex couples to marry, then such state must provide its citizens with an alternative means of legal recognition such as civil partnership.

This Convention guarantees, in so far as it applies to same-sex couples and to the degree it has been recognised in the European Court of Human Rights, cannot be replicated by the Bermuda courts until such time as the Convention Is passed into Bermuda law.

Sincerely,

Michael J. Mello QC