The recent controversy over whether or not a constitutional conference should be held prior to the implementation of changes to Bermuda's Parliamentary constituency system cannot be reduced to a simple "yes/no'' question and answer. How a colonial constitution such as Bermuda's ought to be amended raises legal, conventional and political issues, all of which need to be taken into account. However, there appears to be no clear legal or conventional rule under UK or Bermudian constitutional law mandating that such a conference be held, despite the fact that contentious amendments in the past have been preceded on two occasions by constitutional conferences.

Who can amend Bermuda's Constitution? Bermuda's Constitution derives its authority from United Kingdom law, not local law, and can only be amended by Order-in-Council made by the Queen (and laid before the UK Parliament) under the Bermuda Constitution Act 1967. This is why our Constitution, unlike those of independent nations, contains no provisions for its amendment.

There is probably a conventional UK rule (i.e. an established rule of custom or practice which the courts will not enforce) that no amendment of the Bermuda Constitution will be effected without the consent of Bermuda's government and/or its people. There is no conventional or other rule prescribing how such consent should be ascertained or obtained.

What Constitutional Amendment is proposed? Bermuda's existing constituency boundaries are inequitable in that no real parity exists between the value of votes in different areas of Bermuda. A vote in Paget East, for example, is worth roughly twice as much as a vote in Warwick East where twice the number of voters elect the same number of MPs.

This is a legacy of Bermuda's undemocratic past.

The principal amendment proposed in the Premier's August 18, 2000 Paper presented to the House is to amend section 52 of the Bermuda Constitution which defines the existing constituencies to permit Parliament, based on recommendations of the Boundaries Commission, to mandate what those constituencies should be, disregarding parish boundaries. Consequential amendments to section 54 are also proposed .

Additional amendments to section 30 to eliminate any suggestion that persons with dual citizenship are ineligible for membership of either House and the proposed creation of an Ombudsman through a new section 93A have seemingly attracted no controversy in the recent debate.

What must Bermuda's Government do before it requests the UK Government to amend Bermuda's Constitution? There is no legal rule and probably no established inflexible conventional rule as to what Bermuda's Government should do before requesting the UK government to amend the Constitution. At least two constitutional conferences have been held (in London in 1966 and at Warwick Camp in 1979) prior to significant changes in Bermuda's Constitution, but other changes in 1973 were introduced without such a conference. Political factors surrounding any particular reform proposal will usually dictate how the changes are introduced.

Elizabeth W Davies in `The Legal Status of British Dependent Territories: The West Indies and North Atlantic Region' (Cambridge University Press: Cambridge, 1995) writes of the need for the overseas territory to communicate the "perceived need'' for constitutional reform to the UK Government thus (at page 288): "...the constitution is such a fundamental instrument that an individual voice would have little impact. Communication of a more widely perceived need may be made by way of a resolution of the legislative assembly or council or, where the problem is not recognised by that body, by group petition, through the Governor to the Secretary of State. In any of these situations, the perceived needs might relate to discrete provisions in the constitution, so that ad hoc amendment may be appropriate, or may be broad so that the holding of a constitutional conference, or the appointment of a constitutional commission, is more suitable.'' Davies also points out the constitutional changes can be mandated on the basis of campaigns conducted in the course of General Elections as happened in the Cayman Islands in 1992 when the earlier recommendations of a Constitutional Commission were overridden by the election result. As far as UK constitutional law is concerned, therefore, there is no mandatory requirement that the Bermuda Government convene a constitutional conference before requesting the UK Government to amend our constitution.

As the amendments to the existing constituency system do not constitute a comprehensive overhaul of the Constitution as a whole, the UK Government's apparent disinterest in how the Bermuda Government seeks a mandate for the proposed changes appears to be consistent with past British constitutional practice in this regard.

Is there a Bermudian Constitutional Convention that a Conference be convened? There appears to be an established local practice that major contentious constitutional changes have been preceded by constitutional conferences.

In 1966, a conference was held in London prior to the enactment of the 1968 constitution, and in 1979 at Warwick camp (prior to changes introducing, amongst other things, the Senate). In both cases, the Government of the day had not been elected on a constitutional reform platform. As the power to amend the Constitution rests with the UK Government and under UK constitutional law there appears to be complete flexibility as to how the Bermudian Government demonstrates it has a mandate to seek constitutional amendment, it is difficult to argue that a less flexible position appertains under Bermudian constitutional law.

It is ultimately a matter for the Government of the day, taking into account its electoral mandate and public sentiment, to decide to what extent, beyond Parliamentary debate, to involve the Opposition and/or the public in the process of constitutional change.

The present PLP Government has a clear popular mandate for introducing single seat constituencies so the need for extensive debate or a constitutional on this issue is far from clear.

The position is surely different on the important question of what size the new Parliament should be, within a new framework of single seat constituencies no longer based on existing parish boundaries.

This issue requires some public consultation and bi-partisan discussion, but there is no single mechanism for achieving this consultative process that Government can be compelled to adopt. While the constitutional conference mechanism at first blush seems appealing on the basis of past practice in this regard, having the recommendations on the size of the House made by the Boundaries Commission (with its constitutionally mandated independent chairman and bi-partisan membership) would appear to achieve the same substantive result. The only difference would be that Bermuda's House of Assembly itself will make the final decision on the size of the House rather than the British Government, to whom the report of a constitutional conference would normally be addressed.

Concerns about Government's approach to the issue of constitutional reform appear, on closer scrutiny, to be more questions of style than substance. The present Government has a clear electoral mandate to amend Bermuda's Constitution to abolish the existing dual-seat constituencies based on parish boundaries and to replace it with a more equitable (in terms of constituency size) single-seat system. The proposal is that after the UK Government amends the Constitution, our Parliament should be able to prescribe the number and size of constituencies, and that the Boundaries Commission should be empowered by the Constitution to make recommendations in this regard (as it does presently on the make-up of constituencies within existing boundaries), ignoring if it sees fit to do so existing parish boundaries.

Since Government has no clear electoral mandate to reduce the size of the House to a specific number of single seats, clearly bipartisan debate and public consultation (whether within or without the work of the Boundaries Commission) should take place before the work of the Boundaries Commission is concluded and a final recommendation made to the House. There are no compelling reasons why this consultative process should be concluded before Government requests the UK Government to amend the Constitution to give our own Parliament, and the Boundaries Commission, the power to determine the make-up of the House of Assembly to be constituted after the next General Election.

The proposed amendment will not decide this issue, but merely empower the Boundaries Commission and the House of Assembly to decide the issue at some future date which will leave adequate time for wide public debate. As the reforms proposed are avowedly designed to increase the quality of Bermuda's democracy, the consultative process before the size of Parliament is finally determined should logically be as extensive as possible.

The author is a Litigation and Insolvency Partner with Milligan-Whyte & Smith, and an Adjunct Professor of Constitutional Law on the Bermuda College/ Kent Law School programme. The views of the author are his and his alone.