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Bermuda to ask Britain for more constitutional powers

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Researcher: Cordell Riley (Photograph supplied).
Phil Perinchief, a former attorney-general and constitutional lawyer (File photograph)

Bermuda is poised to ask for more power to run its own affairs after the British government allowed the island to draw up “areas for constitutional reform”, the Throne Speech has revealed.

The speech, the blueprint for business for the new session of Parliament, said the Government would call for changes allowing the island’s economic growth under a “revised Constitutional model”.

Cordell Riley, a researcher at Bermuda College, suggested the Throne Speech pledge was designed to give the island more scope over its foreign relations.

Mr Riley said: “The only things that the UK Government handles is foreign affairs and defence. It doesn’t sound like they’re talking about defence, so it suggests foreign affairs.”

He added: “If it would advance economic activity, it could be something like transportation and air routes, where the Bermuda Government could negotiate these under their own merit.

“Otherwise, if I wanted an airline coming here from, say, Germany, I would have to go through the British government.”

The Royal Gazette understands that changes to the Constitution will be on the table at the British government’s Joint Ministerial Council for its Overseas Territories, to be held this month in London.

The gathering is a forum for heads of government from the Overseas Territories to meet UK ministers and officials.

The Governor is responsible for “external affairs, defence, including armed forces, internal security, and the police” under the present Constitution.

Mr Riley said extra power to direct foreign relations opened up “wide possibilities”.

He added: “Even to go and meet with overseas officials at the government level, if the British are not attending, we would have to get their permission first.

Mr Riley said: “The British have always said there would not be more amendments to the constitution without independence.

“They must have had a change of heart – that wasn’t their position a few years before.“

Mr Riley added giving Bermuda more room to control its own destiny could be a concession short of independence to retain the island as an Overseas Territory.

He said: “It appears the Government have had some communication from the British Government, and they are acting on it. What that means, we’ll see.”

Philip Perinchief, a former Attorney-General under the Progressive Labour Party and a constitutional lawyer, said the intent of the Throne Speech’s commitment was “difficult to discern”.

He said when the Bermuda Constitution Act was passed in 1967, it was said in the UK parliament to be “one step away from an independent nation’s constitution”

Mr Perinchief said the Throne Speech pledge, short of a desire for independence, could only be “a sharing of section 62 of our Constitutional Order, which currently gives exclusive and discretionary rights to the Governor to handle, among other matters, our foreign or external affairs”.

He added: “The Bermuda Government today, as an Overseas Territory and in the normal scheme of things, is constitutionally obliged by way of entrustments or agreements between our Government and the UK Government representatives, to obtain such entrustments before it can handle its foreign or international affairs on its own account, within very precise and circumscribed parameters.

“Once those entrustments have been utilised, then all future matters of foreign affairs will have to be applied for anew.”

He added: “It would require a fundamental constitutional reform to make section 62 more flexible for all practical purposes.“

Mr Perinchief speculated whether the promise was driven by factors such as the European Union and the Organisation for Economic Cooperation and Development’s push for a global minimum rate of taxation for multinational companies, which would hit jurisdictions like Bermuda and Cayman.

He said that could mean that “Bermuda may need flexibility to negotiate a proper tax rate for its 13,000 international companies”.

Mr Perinchief highlighted the island’s legal standoff with the Isle of Man after Britain allowed the Crown Dependency to use a satellite slot already allocated to Bermuda.

Bermuda lost its lawsuit over the controversy in London’s High Court in 2008.

But Mr Perinchief said: “I can only speculate on the rationale for this initiative.

“We are in early days and will have to wait and see.”

Rod Attride-Stirling, a lawyer experienced in insurance, reinsurance and captive business, said the move “could be a way of getting some protection from UK legislation that’s unwelcome” – such as Britain’s insistence on a register of beneficial ownership before it became “an international norm”.

Mr Attride-Stirling highlighted the UK’s imposition of rules on tax requirements and economic substance on the island.

The lawyer, who is handling a Privy Council case to ensure the legalisation of same-sex marriage, which the Government has opposed, said Bermuda’s constitution was “antiquated” and needed stronger human rights protections.

He warned: “That process should be addressed with care.

“We need to keep a careful eye unless some in the PLP see it as a backdoor way of getting rid of same-sex marriage.”

The topic of more island control at the 50th anniversary commemoration of universal adult suffrage on the island two years ago.

David Burt, the Premier, said the UK wielded an unfair level of control over Bermuda’s affairs.

Mr Burt told the House of Assembly that Bermuda should “start laying the groundwork in Constitutional reform necessary for what will one day be an independent Bermuda”.

The topic of more island control was raised at the 50th anniversary commemoration of universal adult suffrage on the island two years ago.

David Burt, the Premier, said at the time the UK wielded an unfair level of control over Bermuda’s affairs.

Mr Burt told the House of Assembly Bermuda should “start laying the groundwork in Constitutional reform necessary for what will one day be an independent Bermuda”.

The proposed Constitutional changes are part of the portfolio of the Attorney-General, Kathy Lynn Simmons, whose is also Minister of Legal Affairs and Constitutional Reform.

Ms Simmons did not respond to a request for comment on what the proposals to the UK would be.

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Published November 09, 2020 at 11:51 am (Updated November 09, 2020 at 11:51 am)

Bermuda to ask Britain for more constitutional powers

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