A Compendium of Papers Outlining Positions the Government Would Take Should the People of Bermuda Vote in Favour of Independence.

FOREWORD The Government's Green Paper on Independence identified a number of matters about which decisions would need to be made if the people of Bermuda were to vote in favour of independence at a referendum. These matters would be placed on the agenda of a Constitutional Conference prior to independence, where they would be discussed and resolved by the Government, the Opposition and the British Government.

Each of the parties involved in such a Conference would be entitled to propose its own methods of dealing with the issues involved. Part of the function of such a Conference is to resolve any differences of opinion which may exist among the parties. The Government, while it can declare its intent to deal with a particular issue in a particular way, cannot itself decide the method of resolution, which must be arrived at through negotiation.

The Position Papers contained in this document are an outline of the Government's intentions with regard to these issues. They explain, where appropriate, why the Government feels it would be correct to move in a particular direction.

These Position Papers have three purposes: First, they represent the positions the Government would take in the event the people of Bermuda vote for independence.

Second, the Government hopes that they will be an aid to voters in coming to a reasoned judgment on the question of independence, and therefore assist them in casting their votes in the coming referendum.

Third, the Government hopes to encourage and assist debate about independence, so that it is best able to represent the true views of the majority of the voters if it is required to make detailed submissions to a Constitutional Conference.

Should the people of Bermuda not vote for independence, the current constitutional arrangements would continue in effect.

The Government expressed its general position on the method of governing a post-Independent Bermuda in the Green Paper, when it stated: Should the people of Bermuda vote for independence, the Constitution would continue to be the supreme law of Bermuda, based on ideals of democracy, freedom and the rule of law, all of which are already well established. The day-to-day implementation of the provisions of the Constitution are already set in Statutes and Statutory Instruments and this would continue to be the case. Obviously, these would be subject to legislative amendment in the normal way, as the social and economic needs of the country suggest from time to time.

"If a conflict between the Constitution and any other law were to arise, then the Constitution would prevail.

"Every person in the Islands of Bermuda is entitled to the fundamental rights and freedoms of the individual under the law, regardless of race, place of origin, political opinion, colour, creed or sex, subject only to the need to respect the rights and freedoms of others, the security of the State and public order and morality. These fundamental rights and freedoms are already provided for in the Constitution of Bermuda and would continue in effect.

The Government does not believe that an independent Bermuda should have a system of government dramatically different from that provided for by the present Constitution.

It is worth repeating two fundamental principles on independence that were established in the Green Paper.

First, the Government intends that an independent Bermuda should remain within the Commonwealth.

Second, the Government believes that stability is the key to Bermuda's continued success. Stability should not be taken to indicate a commitment to government by one particular political party, but rather to the existence of constitutional and democratic processes whereby the people of Bermuda can elect the Government of their choice and be confident that it will respect the Constitution and the principles of democracy, justice and respect for human rights that it contains.

Entrenched Provisions On independence, former Dependent Territories assume full responsibility for the provisions of their own constitutions. Unless there were safeguards to protect the principles which are fundamental to that Constitution, change would be possible if the legislature simply voted in favour of it. In order to safeguard these principles, the Government will, if the people of Bermuda vote for independence, propose that some matters be entrenched in the Constitution, so that they cannot easily be changed without the express consent of the people.

Entrenchment means a much tougher test of legislative and community support than would be the case for matters normally dealt with by Parliament. The two types of entrenchment are as follows: a. Amendments to `ordinarily entrenched provisions would require an affirmative vote of no fewer than two-thirds of all the members of each House.

The amendment would then be submitted to the electors qualified to vote for the election of members of the House of Assembly, to vote on in such manner as Parliament might prescribe, either by way of a referendum or general election.

b. `Specially entrenched provisions' would be more difficult to change. These provisions would require an affirmative vote of three-quarters of all the members of each House. The amendment would then be submitted to the electors qualified to vote for the election of members of the House of Assembly by way of a referendum.

Approval by a majority of those who vote on the matter would also be required.

The Government intends that the following matters should be entrenched.

Ordinarily entrenched provisions would include: a. Procedures for the appointment of the Governor-General and his or her powers.

b. Qualifications for Members of the House of Assembly and the Senate, and their tenure of office.

c. Matters relating to public officers.

d. Matters relating to the Public Service Commission, the Judicial and Legal Service Commission and the Police Service Commission. e. Protection of pension rights of public officers.

f. Powers of the Commissions in relation to the grant of pensions.

Specially entrenched provisions would include: a. The legal force of the Constitution.

b. Citizenship.

c. The fundamental rights and freedoms of individuals and their enforcement.

d. The establishment of Parliament.

e. Sessions of Parliament.

f. Prorogation and dissolution of Parliament.

g. General elections.

h. The executive authority of Bermuda.

i. Procedures for amendments to the Constitution.

j. Establishment of the Supreme Court, Appeal Court and Magistrates' Court.

k. Appointment, tenure, discipline and removal of Judges of the Supreme and Appeals Courts and Magistrates.

l. The right of appeal to the Judicial Committee of the Privy Council.

m. Boundaries Commission.

n. Procedure for Review of Constituency Boundaries.

CITIZENSHIP Introduction This paper summarizes the important and complicated subject of citizenship and sets out the Government's intentions should the people of Bermuda vote in favour of independence for Bermuda in the forthcoming referendum.

Two opposing principles which underpin Bermudian citizenship are as follows.

The first principle is to ensure that citizenship of this tiny island is not so easy to acquire as to unduly disadvantage Bermudians.

The second opposing principle is to ensure that all people are treated fairly.

If citizenship law were too restrictive, it would run roughshod over the legitimate aspirations of people who have lived here and have an expectation of becoming Bermudians or of being able to transmit their Bermudian citizenship to their children.

The Government intends that a policy should be adopted which allows Bermuda to keep grants of citizenship to a minimum, yet which allows the flexibility to deal justly and fairly with those who have legitimate claims - a balanced approach which protects the interests of Bermudians.

Bermudian Status and Bermudian Citizenship The Government intends that every person who, immediately before Independence Day, possesses Bermudian status would automatically acquire Bermudian citizenship.

Apart from changes that would make it easier for everyone to know without a doubt whether they possessed Bermudian citizenship, a Bermudian citizenship law could be crafted by taking the current law on Bermudian status and substituting the word `citizenship' for the word `status'.

Over many years, the Bermudian status law has been fashioned into a coherent set of rules that meets the requirements of fairness and justice. For this reason, should the people of Bermuda vote in favour of independence, the Government intends to take the basic rules for the acquisition of Bermudian status as the basis for Bermuda's citizenship law.

Transmission of Citizenship One of the major features of citizenship is the ability to transmit it to one's children.

It has to be recognised that the citizens of any country do not want to be overwhelmed by people from overseas who have no close ties to the country claiming citizenship and demanding jobs and housing. To prevent overcrowding, there must be a mechanism in Bermuda, as in many other countries, to prevent the automatic transmission of citizenship indefinitely to generation after generation born outside Bermuda.

Common Law Domicile Currently, the Bermudian status laws limit the transmission of Bermudian status to children born abroad by requiring that, at the time of the child's birth, the Bermudian parent must be domiciled in Bermuda under British common law.

Essentially, "domicile'' means the place where a person's home is. However, there are no hard and fast rules governing British common law domicile. The administration of the concept is based on decisions made in individual cases, over the years, by law courts throughout the Commonwealth.

Using common law domicile to test whether a Bermudian's child is Bermudian has the effect of limiting the transmission of Bermudian status to one or perhaps two generations born overseas. Its operation is indirect, however.

Although the notion of "domicile'' provides for flexibility in dealing with unusual cases, it is very difficult for the ordinary person to know whether he or she is Bermudian if the workings of British common law domicile are not understood by that person.

In order to make it very clear who would, and would not, automatically become a Bermudian citizen by birth after independence, the Government intends to replace the notion of domicile with a more direct test. The test would be based on where the Bermudian's child and the Bermudian parent were born: Q1. Was the child born in Bermuda? A1. Yes -- then the child is Bermudian.

A2. No -- then: Q2. Did the child's parent acquire Bermudian citizenship automatically at independence, or after independence as a former Bermudian status-holder or long-term resident, or by birth in Bermuda, or by naturalisation? Or was the child's Bermudian parent working overseas for the Bermuda Government at the time of the child's birth? A3. Yes -- then the child is Bermudian.

A4. No -- then the child is not Bermudian.

One Generation Born Abroad The Government intends to set the limit of transmission of citizenship on the principle of one generation born abroad. This is the principle adopted by the United Kingdom Government in its current citizenship laws.

It is necessary to make clear who can pass on his or her citizenship automatically to a child born anywhere in the world and who cannot. Depending on whether a Bermudian is born abroad or whether he or she is born in Bermuda, so the person's Bermudian citizenship will be qualified as being by descent or otherwise than by descent respectively. Citizenship By Descent and Otherwise Than By Descent The British Nationality Act 1981, which currently governs the transmission of British Dependent Territories citizenship, uses the terms by descent and otherwise than by descent to qualify a person's citizenship.

As the British Nationality Act 1981 applies to Bermuda, a citizen by birth in Bermuda can transmit his or her citizenship automatically to children born abroad anywhere in the world. Such children are citizens by descent.

A parent who is a citizen by descent can only pass on his or her citizenship to a child: Who was born or adopted in Bermuda; or Who was born abroad at a time when the parent was in Bermuda Government service overseas in the country of the child's birth, having been recruited for that service in Bermuda.

The child is automatically, from birth, a citizen otherwise than by descent if he or she is: Born in Bermuda of a parent who is a Bermudian citizen; or Born abroad to a Bermudian citizen in Bermuda Government service in the country of the child's birth, having been recruited for that service in Bermuda; Application of these principles to an independent Bermuda would limit automatic Bermudian citizenship to the child who was: Born or adopted in Bermuda (Bermudian citizen otherwise than by descent) to a parent who was Bermudian at the time of the child's birth, or Born abroad (Bermudian citizen otherwise than by descent) to a Bermudian citizen in Bermuda Government service in the country of the child's birth, having been recruited for that service in Bermuda; or Born abroad (Bermudian citizen by descent) to a parent who was a Bermudian citizen otherwise than by descent at the time of the child's birth.

The characterisation of a person's citizenship as being otherwise than by descent or by descent only refers to that person's ability, or not, to transmit citizenship automatically to children born outside Bermuda. Apart from this one difference, all citizens of Bermuda would have equal rights under the law.

Bermudian Citizens Putting all these concepts and principles together, should the people of Bermuda vote in favour of independence at the forthcoming referendum, the Bermudian citizenship law would define exactly who would become citizens automatically, who could become citizens by right and who could become citizens by discretionary grant.

Those Who Would Become Bermudian Citizens Automatically at Independence Should the people of Bermuda vote in favour of independence at the forthcoming referendum, it is the Government's intention that everyone who possessed Bermudian status immediately before Independence Day would acquire Bermudian citizenship otherwise than by descent. This is so that all Bermudians -- whether by birth, or by right, or by grant -- will start off at independence with exactly the same rights. Only from the Day of Independence onwards will the concept of citizenship by descent become active.

Upon Independence Day, the following groups of people would automatically become citizens of Bermuda otherwise than by descent.

(a) Every person who, on that day, possessed Bermudian status whether by birth, by right or by grant. This excludes those people who were only deemed to possess Bermudian status by reason of being the wife, or widow, or child under the age of 22 years, of a Bermudian.

(b) Every person who, immediately before independence, was a British Dependent Territories Citizen having become such a citizen by virtue of having been naturalised or registered in Bermuda under the British Nationality Act 1981 and in respect of whom the Bermuda Government has given an undertaking to grant Bermudian status.

This is the case where the person qualified for the grant of Bermudian status and the first step had been completed but the Bermudian status certificate had not been issued by Independence Day. This person could be left stateless as soon as Bermuda ceased to be a British Dependent Territory, hence the need for this provision.

Other Commonwealth citizens would not have their citizenship affected by Bermuda becoming independent. Any such Commonwealth citizen, or any alien not yet naturalised as a British Dependent Territories Citizen, who had an active Bermudian status application on Independence Day would have his or her application for Bermudian status treated as an application for Bermudian citizenship.

Government position papers on Independence Long Term Residents who Would be Eligible to Apply for Bermudian Citizenship In common with other British Dependent Territories that have become independent, were the people of Bermuda to vote in favour of independence, Bermuda would be expected to make provision for non-Bermudian long term residents in the citizenship law.

The Government's position in this regard is that any person who had been ordinarily resident in Bermuda for at least 20 years immediately before Independence Day would be eligible to apply for citizenship of Bermuda. Such a person would be granted Bermudian citizenship, on application, provided that he or she had been of good conduct and character for at least the 10 years immediately preceding his or her application for Bermudian citizenship.

Any person who qualified as a long-term resident on Independence Day would be allowed a period of a year's grace, up to the first anniversary of Independence Day, in which to apply to be registered as a Bermudian citizen.

After that period had elapsed, the right to apply to be registered as a Bermudian would end. The right of these long term residents would therefore be limited in time and would only apply to those who had already been ordinarily resident in Bermuda for at least 20 years on Independence Day.

These long term residents once registered would become Bermudian citizens otherwise than by descent.

Those who Would Automatically Become Bermudian Citizens at Birth After Independence The following persons born after Independence would become Bermudian citizens automatically: (1) Bermudian citizens Otherwise Than By Descent: (a) Any person born in wedlock in Bermuda, at least one of whose parents was a Bermudian citizen at the time of the person's birth.

(b) Any person born out of wedlock in Bermuda whose mother was a Bermudian citizen at the time of the person's birth.

(c) Any person adopted in Bermuda, at least one of whose adoptive parents was a Bermudian citizen at the time of the person's adoption.

(d) Any person born in wedlock outside Bermuda to a Bermudian citizen in Bermuda Government service in the country of the child's birth, having been recruited for that service in Bermuda; or (e) Any person born out of wedlock outside Bermuda to a Bermudian citizen in Bermuda Government service in the country of the child's birth, having been recruited for that service in Bermuda.

(2) Bermudian citizens by Descent: (a) Any person born in wedlock outside Bermuda, at least one of whose parents was a Bermudian citizen otherwise than by descent at the time of the person's birth.

(b) Any person born out of wedlock outside Bermuda whose mother is a Bermudian citizen otherwise than by descent at the time of the person's birth.

Those People who Could Acquire Bermudian Citizenship After Independence Should the people of Bermuda vote in favour of independence for Bermuda in the forthcoming referendum, the Government intends that there should be a Bermuda Nationality Act under which people who were not citizens of Bermuda would be able to qualify and apply for Bermudian citizenship either through registration (by right under the law) or through naturalisation (at the discretion of the Government).

People who Would Have the Right to Register as Bermudian Citizens Otherwise Than By Descent Any person who was in the process of acquiring Bermudian status before Independence Day would have his or her accrued rights to Bermudian status preserved so that those rights would count towards Bermudian citizenship. Once all conditions set down in the citizenship law had been met, the person would have the right to apply for citizenship and be registered as a Bermudian citizen otherwise than by descent.

Everyone who possessed Bermudian status immediately before Independence Day would acquire Bermudian citizenship otherwise than by descent. Those who had accrued any rights under the current Bermudian status law would also, if granted Bermudian citizenship, be entitled to have it otherwise than by descent.

The following groups of people are accruing rights towards the grant of Bermudian status under the current law. Under the Bermuda Nationality Act, the rules for them would be the same as they are under the Bermuda Immigration and Protection Act 1956.

These groups are: (1) The wife, widow or child of a Bermudian who, immediately before independence was deemed to possess Bermudian status, would be eligible to apply for Bermudian citizenship provided: (a) In the case of a wife, upon application if she is still married to her Bermudian husband at the time; (b) In the case of a widow, upon application; (c) In the case of a child, upon application if he or she: Is under the age of 22 years; and Would have been deemed to possess Bermudian status for at least five years had Bermuda not become independent; and Had been ordinarily resident in Bermuda for at least five years on the day of application.

(2) The spouse of a Bermudian citizen where the applicant is of good character and conduct and has been: (a) Married to the Bermudian for at least 10 years; and (b) Ordinarily resident in Bermuda for the two years immediately before the application for registration; and (c) Ordinarily resident in Bermuda for a total of at least seven years in aggregate while married to the Bermudian; and (d) Living with his or her Bermudian spouse as husband and wife for the two years mentioned at (b) above.

(3) The widow or widower of a Bermudian where the applicant is of good character and conduct and: (a) Celebrated the marriage to the Bermudian at least 10 years before the application for registration as a Bermudian citizen, and Policy on citizenship (b) Has been ordinarily resident in Bermuda for the two years immediately before the application for registration, and (c) Has been ordinarily resident in Bermuda for a total of at least seven years in aggregate while married to, or widowed from, the Bermudian spouse, and (d) Had been living with his or her Bermudian spouse as husband and wife for at least the last six months before the death of the Bermudian spouse.

(4) People with a qualifying Bermudian connection, namely: (a) The child who, before his or her 16th birthday (or 22nd birthday if it occurred after 1 July 1956), either: Was born in wedlock, and Was at any time the natural born child, stepchild or adopted child of a person who was, or became, a Bermudian, or Was born out of wedlock, and Whose natural mother at any time was, or became, a Bermudian, or Being legitimated through the marriage of his or her natural parents, the child's natural father was, or became, Bermudian, or Was adopted by a Bermudian.

(b) Any person who, at any time, either: Had been deemed to be domiciled in Bermuda under the Immigration Act 1937 by reason of ordinary residence in Bermuda, or Had possessed Bermudian status by grant.

(5) Certain long term residents who qualify, or are qualifying, for Bermudian status under the present Bermudian status laws, namely anyone who: Was born in Bermuda or first arrived in Bermuda before his or her sixth birthday, and Is at least 18 years of age, and Was ordinarily resident in Bermuda on 31 July 1989 and on 13 July 1994, and Makes his or her application for Bermudian citizenship before 1 August 2008.

(6) People who have the right to Bermudian citizenship in certain other cases: practice suggests that Americans who have been granted Bermudian status have not been required to give up their American citizenship.

Certificates of Residence Should the people of Bermuda vote in favour of Independence, the Government intends that, as is now the case, people who live in Bermuda permanently or who have vacation homes in Bermuda, but who do not work here, should be able to apply for certificates of residence, primarily to facilitate their entry into the country.

A person who acquires and holds a residential property under a licence from the Minister of Labour and Home Affairs would be eligible for a Certificate of Residence, provided that he or she is of good character, of substantial financial means and is retired.

ERROR RG P8 25.5.1995 Position on citizenship Due to a computer error, the last segment of the paper on citizenship in Tuesday's paper was deleted. The full text of the deletion follows: (6) People who have the right to Bermudian citizenship in certain other cases: A person would be eligible to apply to be registered as a Bermudian citizen if he or she was ordinarily resident in Bermuda on 31 July 1989 and either: Immediately before Independence Day, was a British Dependent Territories citizen through naturalisation in Bermuda, and had been approved for the grant of Bermudian status but had failed to apply for the grant, or Being a woman who was, immediately before Independence Day, a British Dependent Territories citizen through registration as the wife of a Bermudian, with the result that she became deemed to possess Bermudian status but lost that status upon divorce.

Provided in all cases from (4) to (6) inclusive that the person: Has been ordinarily resident in Bermuda continuously for at least 10 years immediately before making the application for registration as a Bermudian citizen, and During the 10 year residence period, has not been convicted of an offence which in the Government's opinion shows moral turpitude on the applicant's part, and Is not otherwise disqualified on the basis of his or her character and conduct.

Child Born Abroad of a Bermudian Citizen by Descent A child born abroad to a Bermudian citizen by descent would not automatically be Bermudian. Provision would be made so that such a person would have the right to be registered as a Bermudian citizen by descent if, at the time of the child's birth, his or her mother or father (the parent in question) was a Bermudian citizen by descent, provided that either: (1) The child is registered as a Bermudian citizen by descent within a year of his or her birth; and The mother or father of the parent in question (the child's grandparent) was a Bermudian citizen otherwise than by descent at the time of the child's birth, or would have become such a citizen upon independence had he or she not died; and The parent in question had been ordinarily resident in Bermuda for a period of at least five years at some time before the birth of the child; or (2) Before the child reaches the age of 18 years; The child and his or her Bermudian parent or parents become ordinarily resident in Bermuda for at least five years before applying for the grant of Bermudian citizenship on behalf of the child; and Application is made for the grant of Bermudian citizenship to the child.

These provisions prevent people with no connection to Bermuda from acquiring Bermudian citizenship automatically while, at the same time, they ensure that families with close connections to Bermuda are not disadvantaged where citizenship is concerned.

Discretionary Grant of Bermudian Citizenship All nationality laws have a provision for granting citizenship to people at the discretion of the Government. This form of acquiring citizenship is termed `naturalisation'.

Should the people of Bermuda vote at the forthcoming referendum, in favour of Bermuda becoming independent, then the Government intends to make provisions, in the Bermuda Nationality Act, for naturalisation of a person as a Bermudian citizen.

In order to become a naturalised Bermudian citizen, the person would be required to swear allegiance to Bermuda. Upon naturalisation, he or she will become a Bermudian citizen otherwise than by descent with full citizenship rights, because Government has chosen that person to be a citizen.

Loss of Citizenship A person who acquires Bermudian citizenship by discretionary grant might subsequently lose his or her citizenship if it were discovered that he or she had misrepresented the facts in order to get it, or if he or she were convicted of an act of treason or sedition.

Any Bermudian over the age of 18 years should be entitled to renounce his or her citizenship, although to ensure that this process did not create a stateless person, anyone who failed to become a citizen of another country within six months of renouncing his or her Bermudian citizenship would be considered still to be a Bermudian and never to have lost that citizenship.

Dual Nationality A person acquiring Bermudian citizenship would not be required to renounce any other citizenship or nationality which he or she might enjoy at the time that person becomes a Bermudian citizen. However, should the people of Bermuda vote for independence, upon Bermuda becoming independent of the United Kingdom, Bermuda would cease to be a British Dependent Territory. Therefore, those people who become Bermudian citizens on independence and were British Dependent Territories citizens by reason only of their connection with Bermuda would automatically cease to be British Dependent Territories citizens.

Under current Bermuda law, the basic requirement for a person to be Bermudian is that he or she be a Commonwealth citizen. This requirement has existed in Bermuda's law since 1937. The effect of this law is that many Bermudians are citizens of other Commonwealth countries, e.g. British citizens, Canadian citizens and citizens of practically all of the Caribbean Commonwealth countries, as well as of Australia, New Zealand and the Commonwealth countries of Africa and Asia.

Furthermore, many Bermudians were born in the United States of America or of one American parent. These persons are currently not only Commonwealth citizens because of their Bermudian parentage, but also American citizens by birth or registration. Recent practice suggests that Americans who have been granted Bermudian status have not been required to give up their American citizenship.

Certificates of Residence Should the people of Bermuda vote in favour of Independence, the Government intends that, as is now the case, people who live in Bermuda permanently or who have vacation homes in Bermuda, but who do not work here, should be able to apply for certificates of residence, primarily to facilitate their entry into the country.

A person who acquires and holds a residential property under a licence from the Minister of Labour and Home Affairs would be eligible for a Certificate of Residence, provided that he or she is of good character, of substantial financial means and is retired.