Bill is inconsistent with UK obligations
On February 12, Wayne Furbert brought a Bill to the floor of the House entitled the “Human Rights Amendment Act 2016”.
As reported, the substance of this Bill is that it amends the existing Human Rights Act to legalise a discriminatory definition of marriage by defining marriage as restricted to opposite-sex couples.
To become law, Mr Furbert's Bill would require passage by the Bermudian legislature and Royal Assent from the Queen acting by the Governor of Bermuda. Section 35(2)(a) of the Bermuda Constitution provides that the Governor shall, unless authorised by the relevant UK Secretary of State, “reserve for the signification of Her Majesty's pleasure” Royal Assent from any Bill which is “inconsistent with any obligation of Her Majesty or of Her Majesty's Government in the United Kingdom towards any other state or power or any international organisation”.
Mr Furbert's Bill is inconsistent with the United Kingdom's obligations as a signatory of the Treaty of the European Union and the Treaty on the Functioning of the European Union (both as amended by the 2009 Treaty of Lisbon). Article 6 of the Treaty of European Union enshrines in law the December 2000 Charter of Fundamental Rights of the European Union which in turn prohibits in Article 21: “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.”
The Treaty on the Functioning of the European Union complements this by providing in Article 19 that the EU (and by extension its member states) will “combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.
Patently, the substance of Mr Furbert's Bill is discriminatory on the basis of either sex or sexual orientation and therefore clashes with the avowed intentions of the United Kingdom in these European treaties to support equal rights for all regardless of (among other things), sex and sexual orientation. That Mr Furbert's Bill would have only domestic effect is beside the point; section 35(2)(a) of the Bermuda Constitution is broad in its drafting and makes no mention of the geographical scope of the impugned Bill, merely requiring the Governor, in his discretion, to identify any inconsistency between the Bill in question and any of the UK's international obligations.
It would be a matter of international embarrassment for the UK if one of its overseas territories passed laws that flew in the face of the human rights the UK has undertaken to protect by way of the European treaties. This is the mischief that 35(2)(a) of the Bermuda Constitution seems designed to prevent.
I respectfully suggest the legislature and the Governor consider whether, under our existing constitutional framework, it is possible for Mr Furbert's Bill — a Bill that is diametrically opposed to the UK's international treaty obligations — to receive Royal Assent and become law in Bermuda without involving the UK Secretary of State for Foreign and Commonwealth Affairs. I, for one, would watch with interest any attempt to justify Mr Furbert's Bill to the same UK Government responsible for legalising same-sex marriage in the UK.
CONCERNED CITIZEN, Smith's