A way out of trouble on cannabis reform
We are seeing an interesting, although possibly unnecessary, tussle play out over plans for legalisation of cannabis.
The recent Throne Speech references the Government’s intention to continue with its plans for legalisation of cannabis. This was previously defeated in the Senate, and Government House has now suggested any new Act concerning cannabis may not be approved by the Governor if it does not comply with international conventions concerning cannabis. If this leads to an impasse between the Government and Britain, then it could well lead to a constitutional crisis or even a bid for independence.
All this may be unnecessary because the existing form of the Misuse of Drugs Act already gives the minister responsible for drug prevention very broad powers to make any regulations to exclude the criminal provisions of the MDA in prescribed cases. This effectively gives the minister the power to rewrite the Cannabis Regulation Bill as the Cannabis Regulations, and bring it into effect without any involvement whatsoever of the Governor or Britain.
When a minister makes regulations, they have to be tabled before the House of Assembly and Senate, and either body can vote them down. Given what happened earlier this year in the Senate, it might be thought that this would just happen again. However, I believe there is a strong case to be made that the Senate should not interfere on this occasion and, if it were to interfere, it could have severe implications for the rule of law.
When the Cannabis Regulation Bill was previously defeated by the Senate in March 2021, the Progressive Labour Party said: “It is unfortunate that in the 21st century that jobs and opportunities as well as the will of so many Bermudians can be blocked by a politically rejected Opposition and independent senators appointed by an unelected, unaccountable Governor.”
Although many may shrug off this statement by the PLP as a normal political riposte, it in fact points towards something quite important. For reasons I shall get into, this Senate vote appears unprecedented in modern times, and tells us something about where the fault lines of power lie in Bermuda.
Unusually for Bermuda, the Cannabis Regulation Bill of early 2021 was a Bill that had gone through a transparent and extensive prior consultation exercise. An illustrative draft was made available for comment for many months, and the consultation was heavily publicised to give everybody an opportunity to comment. The Government then published significant revisions to the draft Bill as a result of the consultation, giving further opportunities to comment on the revisions, and then made it a central plank of its 2020 election platform to introduce a regulated cannabis scheme.
When you add in the votes of the Freedom and Democracy Movement, 67 per cent of those who voted in 2020 voted for parties with cannabis licensing as a central plank of their electoral platforms — an overwhelming mandate. The President of the Senate’s justification for voting it down at the time — that there had been insufficient consultation — makes little sense when this is set out. If this Bill lacked consultation, then so has every other law that the Senate has nodded through in its existence.
Bermuda’s Parliament is modelled on the Westminster system of government. The House of Assembly is equivalent to the UK House of Commons, with representatives elected by the people. The Senate is equivalent to the UK House of Lords: an unelected chamber with limited powers to amend, vote down and delay new legislation. That the Senate is unelected means that it lacks the legitimacy of the House of Assembly, and is supposed to defer to it on issues where the Government has an electoral mandate to fulfil a promise made to the electorate. This is an intentional element of the system so as to prevent any discussion as to which chamber has the greater legitimacy.
Over the course of almost 200 years, the British Parliament has developed careful conventions as to when the unelected House of Lords will use its power to delay legislation. The Salisbury Convention is an understanding whereby the Lords will not delay, vote down or introduce a “wrecking amendment” to a law resulting from a government’s election platform.
For example, in 1945, the Labour government was elected on a platform that included putting the coal industry under public ownership. The upper-class lords were overwhelmingly opposed to what they saw as a sharp turn towards socialism. However, in the spirit of sober reflection, Viscount Cranborne said:
“Whatever our personal views, we should frankly recognise that these proposals were put before the country at the recent General Election and that the people of this country, with full knowledge of these proposals, returned the Labour Party to power. The Government may, therefore, I think, fairly claim that they have a mandate to introduce these proposals. I believe that it would be constitutionally wrong, when the country has so recently expressed its view, for this House to oppose proposals which have been definitely put before the electorate.”
The lords did their duty and voted through the coal laws. Many historians credit the British ruling class’s reluctant but insightful acceptance of democratic mandates as a critical reason as to how Britain managed to avoid the violent revolutions or dictatorships of many other emerging modern countries. The Conservative Lord Hailsham had said, a couple of years before the coal laws, that if you do not give the people social reform, they will give you social revolution.
In Bermuda, I cannot think of any other instance of the Senate voting down a government’s electoral commitment. I have asked around and no one else has been able to identify another example.
Let’s set out the problem in clear terms. The balance of power in the Senate is controlled by senators who serve at the pleasure of the Governor. They are often referred to as the “independent senators”, but this term appears nowhere in the Bermuda Constitution, which refers to them as senators appointed or removed by the Governor in her discretion. That they can be removed and replaced at any moment negates any notion of actual independence.
The senators’ appointment by the Governor, who is in turn appointed by Britain, creates an issue of trust and confidence, especially when voting on laws where there is suspected to be a difference of opinion between the Bermuda Government and the British Foreign, Commonwealth and Development Office — as has been now apparently confirmed in the case of cannabis reform. This can serve to unnecessarily increase local ill feeling towards Britain and the Governor. Various people have expressed the sentiment that the governor-appointed senators voted in line with the views of the Governor, or that the Governor hand-picked senators who were opposed to the PLP’s reform agenda. The point I am making is not whether these allegations are true or not, but that the present appointment process feeds this kind of corrosive distrust.
I would suggest that people stop referring to or thinking about the governor-appointed senators as “independent senators”. They may be independent of party affiliation, but to describe them as independent, when they lack security of tenure, reduces our ability to think clearly about the issue. This is not meant with any disrespect to those individuals who are appointed by the Governor, and who are doing their best to serve their country.
Another aspect of the problem is that the Governor tends to appoint senators who can be relied on as a solid force of the Centre, to balance out any extremes of the governing and opposition parties. However, if the centre of gravity has shifted, then these very forces that were intended to maintain the Centre can themselves become forces of destabilisation. Sixty-seven per cent of the voting public in 2020 voted for parties promising cannabis licensing. Yet not a single one of the governor-appointed senators was willing to support these proposals. This suggests that the Governor is appointing senators from a particularly shallow pool of opinion.
So where do we go from here? The PLP condemned the Opposition and governor-appointed senators for thwarting its democratic mandate to take cannabis licensing forward. If the Senate persists with this type of behaviour, it may escalate a constitutional crisis that could result in the severing of Bermuda’s ties with Britain. I suspect this is the last thing that it wants.
My modest and humble proposal, then, for the resolution of this quagmire on cannabis reform is as follows: the Government should rewrite its Bill as the Cannabis Regulations and then table it before the Senate. The Opposition and governor-appointed senators should then do their duty, and allow the Government’s democratic mandate to be implemented, and not be blocked by unelected appointees.
If the Government is able to pass its cannabis reforms as regulations, then if the Governor — or anyone else — believed any particular aspects of the reforms were susceptible to legal challenge, then those aspects could be challenged in court, while allowing the main substance of the reforms to be implemented.
I believe this could be a mature and sensible way to allow the Government’s democratic mandate to be respected without triggering constitutional crises or bids for independence.
• Peter Sanderson is a barrister and attorney who has been involved with many cases involving constitutional law