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Lawyer says cannabis clash could be sidestepped

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Constitutional crisis over cannabis legalisation could be averted (Photograph Christopher Katsarov/The Canadian Press)

A constitutional clash with the UK over cannabis legalisation could be avoided if the drug was removed from the list of controlled substances, a legal expert claimed yesterday.

Barrister Peter Sanderson (File photograph)

Peter Sanderson, a barrister with experience in several constitutional law cases, said the move could be a way to avoid a showdown between the Government and London over the controversial plan as it would not require a new law.

Mr Sanderson explained: “The minister has the power to change regulations under existing law.

“If the Government then persuaded the Senate to let it go through it could be a way of preventing a constitutional crisis.

“Cannabis could be exempted from the Misuse of Drugs Act regulations.

“Regulations can exempt activities like production, supply, possession.

“Regulations could extend for many pages, in the way the Licensing Act does.”

Mr Sanderson said: “In 1974, Bermuda passed the Misuse of Drugs Act, which allowed the minister to make exceptions – and London signed off on that.”

He was speaking as the ruling Progressive Labour Party continued to put off pushing through its controversial legislation to legalise the production and sale of cannabis.

The second reading of the proposed law has been listed on the House Assembly order paper for weeks but it has not been brought forward for a vote.

Government House and David Burt, the Premier, were asked if the delay was because of intervention from London, but neither have responded.

The legalisation was rejected by the Senate last year, but the Upper House no longer has the power to delay it if the House of Assembly – where there is a 30 to six PLP majority – approve it again.

If MPs again back the change, the final decision will lie with Rena Lalgie, the Governor, who must give Royal Assent before it can become law.

The Premier appears to be on a collision course with the Governor over the legislation.

Ms Lalgie has made it clear legalisation of cannabis for recreational use was not allowed under the UK’s international obligations.

But Mr Burt warned that if the Cannabis Licensing Act, which allows recreational use of the drug and sets up a regulated framework for its sale and consumption, did not get Royal Assent it would “destroy” Bermuda’s relationship with the UK.

The Government admitted last year that its cannabis plans went beyond the limits of international conventions on drugs, which the UK has signed up to.

The Bermuda proposals breach the UK’s international obligations under the United Nations 1961 Single Convention on Narcotic Drugs.

A spokeswoman for the Governor said: “When a Bill is received by a Governor for assent, they will consider it in accordance with the Governor’s role, which is clearly set out in the Constitution.

“That includes considering whether the Bill is inconsistent with any international obligation.

“The relevant international obligations permit, subject to necessary controls, legalisation of cannabis for medicinal and scientific purposes, and for certain industrial purposes.

“Legalisation of cannabis for other purposes is not permitted. However, decriminalisation of possession of small amounts of cannabis is possible within the conventions.”

David Burt, the Premier (File photograph by Blaire Simmons)

The Government House spokeswoman said earlier: “UK officials continue to make themselves available to the Government of Bermuda to discuss approaches that would enable Bermuda to meet their objectives while remaining compliant with the conventions.

“Indeed, UK officials have also been working with several Overseas Territories and Crown Dependencies to help them establish a framework for medical cannabis industries.”

Mr Burt said that after meetings with British ministers and leaders from other Overseas Territories in London last November: “It was critical to make it clear that there is no intention by the Government of Bermuda to amend the current legislation to conform to the 60-year-old convention that allows cannabis supply for medicinal purposes only.”

He added: “Many countries, such as Canada, that allow regulated supply of cannabis for non-medicinal purposes, are signatories to that convention.

“The overall intent of the legislation is clear and it enjoys the support of the Bermuda electorate, which was confirmed at the last General Election.”

Mr Burt added that, once the legislation had passed the House, the “expectation” was that permission would be given by the UK Foreign Secretary for Royal Assent by Ms Lalgie.

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Published March 24, 2022 at 10:08 am (Updated March 24, 2022 at 10:27 am)

Lawyer says cannabis clash could be sidestepped

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