A bill to outlaw fast food franchises was designed to protect the uniqueness of Bermuda.

But a lawyer told the Court of Appeal yesterday no-one had actually said what was uniquely Bermudian.

And Mark Diel -- appearing for would-be burger barons Grape Bay Ltd. -- said: "Maybe it's unique to have white roofs, that's a maybe, I don't know.'' But he said that the Island already had laws like planning restrictions to protect it.

And he added the controversial Prohibited Restaurants Act, passed to prevent Grape Bay from opening a McDonald's franchise on the Island, was an "absurd'' over-reaction -- with potentially disastrous implications for hotels, cruise ships and even airlines.

Mr. Diel claimed the Act was wide enough to catch a host of other firms which have overseas connections -- like bottling firms who do business with Coca Cola.

He said: "It would be absurd to ban all existing hotels from Bermuda, but, by definition, they detract from Bermuda's unique character. This is perhaps the best example of the absurdity of this.'' Mr. Diel, of new legal firm Diel and Myers, was speaking on the fourth day of an appeal by Solicitor General William Pearce and Jamaican constitutional lawyer Dr. Lloyd Barnett against a Supreme Court decision last year which ruled the Act flouted the Island's Constitution.

Puisne Judge Vincent Meerabux ordered that the Act should be axed after finding that contracts Grape Bay Ltd. had with McDonald's in the US and others were property -- which is protected under the Constitution.

The Act was forced through the House of Assembly last year after the Senate used its power to vote it down for 12 months.

But it was finally signed into law last August after a rebel group of Goverment MPs combined with the Opposition to push it through again.

Mr. Diel told the three-judge Court of Appeal: "The House of Assembly position is that any restaurant in Bermuda associated with a foreign restaurant should be banned.'' But he pointed out that the Act contained a "grandfather'' clause to protect businesses already up and running by the cut-off date of May 10, 1996.

Mr. Diel said: "To have a grandfather clause in this is a nonsense -- Kentucky Fried Chicken own property and so does Grape Bay.'' He added that an overseas developer for the old Club Med in St. George's could commit a criminal offence by opening up for business -- and even the Minister of Finance might find himself in court if he allowed it.'' And he said: "This Act attempts to freeze Bermuda as it was on May 10, 1996.'' "But surely there can be no dispute that Bermuda wishes to encourage investment in hotels to boost Bermuda's tourism industry.'' Mr. Diel said that a special committee set up to hear the pros and cons of fast food franchises had come down in favour of them -- but under strict controls.

He added: "There is no dispute that there needs to be proper controls in place.

"But that is not what this case is about. This case concerns the banning of all the establishments which were mentioned earlier.'' He added that fears about litter were common to all fast-food type operations, whether their origins were foreign or not.

And Mr. Diel said: "But again that is a regulatory issue. We have continuous references to Bermuda's unique lifestyle. But that is really a regulatory issue.'' But Appeal Court judge Michael Kempster stepped in and said that the Court of Appeal was "very loath'' to infringe on the role of the legislature.

The hearing continues today.

RESTAURANT EAT