In an opinion piece which appeared in The Royal Gazette on August 19th, 2014, Progressive Labour Party Senator Marc Daniels challenged the notion that the Bermuda legislature cannot repeal Section 20B of the Immigration Act without being subject to legal action.

Mr Daniels claimed that Section 20B, which allows Long Term Residents to apply for Bermudian Status after meeting its requirements, was a “loophole” and it was the prerogative of the legislature to repeal or replace a law that it found to be “insufficient”. Mr Daniels then said that the legislature should do so to protect the interests of Bermudians as such a repeal would, among other things, preserve their preference in hiring as is required by a policy he attributes to the Department of Immigration.

Mr Daniels then takes the position that the application of a PRC holder for Bermudian Status does not amount to a human right. With the greatest of respect to Mr Daniels, who is a colleague of mine at the Bermuda Bar, I disagree.

I have written about the issue of whether Section 20B of the Immigration Act creates a “loophole” or a “back door” in a previous opinion that I have written for The Royal Gazette.

To avoid repeating myself I will say that on reading the Immigration Act and the case law; it is clear that when the Immigration Act was amended in 1989 and again in 1994, the intention of the legislature was to afford Long Term Residents of Bermuda a means of applying for Bermudian Status.

For that reason I disagree with the notion that the process of obtaining Bermudian Status, as enacted by Section 20B, did not reflect the will of the legislature when it was passed or amounts to an inadequacy in the law. With regards to the immigration policy that Mr Daniels refers to, which is not a law, all legislation, regulations and policies of the Government of Bermuda are subject to the Human Rights Act which is supreme to all other Bermudian legislation save that of Bermuda’s Constitution.

The policy described by Mr Daniels, however, appears to run contrary to the Human Rights Act. For that reason if the Government intends to rely upon or impose that policy, there may be grounds for legal action to be taken pursuant to the Human Rights Act in certain circumstances.

As to the assertion that the right to vote is not covered by the greater law concerning human rights, I see the issue as being broader than the way that it was framed in Mr Daniels’ opinion. The United Kingdom has signed the European Convention on Human Rights on behalf of Bermuda.

The UK is therefore liable for any breaches of the rights guaranteed by the Convention (“Convention Rights”) which may result from actions of the Government of Bermuda.

There is also case law from the European Court of Human Rights which says that the right to the respect of a person’s “private and family life” also governs laws concerning the application for citizenship, which is really what the current debate concerning PRC holders is about.

That issue, however, has not been fully explored by the European Court of Human Rights and I expect that it will be the subject of further litigation. Chief Justice Ian Kawaley, however, also found in his ruling on PRC holders that an application for citizenship does fall within the broad realm of the Human Rights Law of Bermuda. This then brings us to the issue of whether the Legislature can retroactively remove a right to apply for citizenship which has been in place for the last 20 years.

Kevin Comeau, in another forum, recently expressed the view that such retroactive action would be unconstitutional. I am grateful for that analysis and agree with that opinion.

Mr Daniels, however, is correct that in circumstances that do not involve constitutional or convention rights, that it is open to the legislature to pass a law that has a retroactive effect.

While such an action would be extraordinary, it would fall within the powers of the legislature to do so.

Having said that, when the Legislature considers taking such action, it must be mindful not only of whether such an action may be barred by the Constitution, but also of its international obligations; namely those prescribed by the European Convention on Human Rights.

In this case, while the provisions of the European Convention on Human Rights concerning the respect for “private and family life” have not been fully implemented into our local laws, our legislature must keep those obligations in mind before passing or repealing a law which can negatively impact those fundamental rights.

If it fails to do so, and breaches a convention right, it may then be open to a complainant to bring an action against the UK in the European Court of Human Rights.

It is for the above reasons that I disagree with Mr Daniels. The decision of Chief Justice Kawaley, in my view, was correct. I also do not think that the Government would have succeeded if it attempted to appeal the matter further.

I am further of the view, echoing those of Mr Comeau, and on the basis of my own analysis that it would be no simple matter to repeal Section 20B given the potential Constitutional and Convention Rights litigation that may follow such an action.

Allan Doughty is a Litigation Attorney who practices with ISIS Law Limited