Legal expert: UK has left door open for cannabis compromise
London may be willing to cut a deal with Bermuda over controversial moves to legalise cannabis after the UK rejected the Government’s flagship legislation, a leading legal expert has said.
With the threat of a constitutional crisis over the issue looming, Nicola Barker, a law professor at Liverpool University, said the matter could also end up being decided by the Privy Council if no compromise is reached.
In a dramatic move, Rena Lalgie, the Governor, stated she had been “instructed” by the UK foreign secretary not to give Royal Assent to the Cannabis Licensing Act, a move that prevents it becoming law.
Dr Barker said the wording of the statement hinted London wants a compromise on the matter so that any reform would allow the UK to adhere to its international treaty obligations.
She told The Royal Gazette: “My assumption from the phrase ‘as drafted’ in the Governor’s statement would be that if certain revisions were made to the legislation it could then be capable of coming within those international obligations and at that point would receive assent.
“The reference to working with Bermuda on reforms suggests that there are discussions happening about what revisions would be necessary to make the Bill compatible with the UK's international obligations and whether those revisions would be acceptable to Bermudians.
“If the UK and Bermuda can work that out, I would imagine that would be the preferable outcome all around because there are no simple solutions to a political stalemate on this, absent independence.”
Dr Barker, who has extensively studied the Bermuda Constitution, said legal avenues for the Government were limited.
She said: “There may be some legal options, but none seem particularly promising - if the attorney-general thinks that the secretary of state has made an error of law in his assessment of the UK’s international obligations or has otherwise gone outside of his jurisdiction in doing so, she may seek judicial review of the decision to withhold assent; or, if there were a right to recreational cannabis in Bermuda’s constitution, there seems to be some suggestion that this may provide an exception, within these particular conventions.
“Even if that is the case, I would imagine that the UK would be unlikely to agree to constitutional reform that explicitly included a right to recreational cannabis, as that would go against the spirit of the international obligations so the only possibility would be to ask the court to read in that right through an existing provision.”
Prof Barker, who is also a human rights lawyer, suggested the Government’s success in banning marriage equality at the Privy Council could work against it on the cannabis issue.
She said: “Until the Privy Council decision on same-sex marriage, I would have suggested that the protection of the right to manifest one’s beliefs in section eight of the Bermuda Constitution, could be broad enough to create such a right - in the right circumstances. But as the same-sex marriage decision narrowed the Government’s obligation to protect Bermudians' abilities to manifest their beliefs, that now seems unlikely to succeed, certainly absent going all the way back to the Privy Council, because the Bermuda courts would be bound to follow that precedent.
“That would make it a long and expensive process with a limited chance of success.”
Ms Lalgie previously reserved assent on the legislation in May and suggested dialogue between Hamilton and London on the matter at that point.
David Burt, the Premier, said last year that if Royal Assent was not given to the Bill it would “destroy” relations between Bermuda and Britain.
The Government reacted to the refusal of Royal Assent by insisting it would push on with its cannabis initiative as voters had given the PLP a mandate to do so.
Kathy Lynn Simmons, the Attorney General, said: “The Government of Bermuda intends to continue to advance this initiative, within the full scope of its constitutional powers, in keeping with our 2020 general election platform commitment.”
Mr Burt has previously said: “If Her Majesty’s representative in Bermuda does not give assent to something that has been passed lawfully and legally under this local government, this will destroy the relationship we had with the United Kingdom.”
The One Bermuda Alliance branded the Bill “deeply flawed” and suggested the PLP knew it could not get Royal Assent and it was a ploy to try and push for independence.
Ministers admitted last year that the PLP’s cannabis plans went beyond the limits of international conventions on drugs, to which Britain has signed up, and that the legislation was not in line with Britain’s obligations under the United Nations 1961 Single Convention on Narcotic Drugs.