Attorney General for Bermuda v Roderick Ferguson and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodge,Lady Arden,Lord Reed,Dame Victoria Sharp,Lord Sales |
| Judgment Date | 14 March 2022 |
| Neutral Citation | [2022] UKPC 5 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0077 of 2019 |
[2022] UKPC 5
Lord Reed
Lord Hodge
Lady Arden
Lord Sales
Dame Victoria Sharp
Privy Council Appeal No 0077 of 2019
Hilary Term
From the Court of Appeal for Bermuda
Appellant
Jonathan Crow QC
Tom Cross
(Instructed by Charles Russell Speechlys LLP)
Respondents
Lord Pannick QC
Rod S Attride-Stirling
Sean Dunleavy
(Instructed by Freshfields Bruckhaus Deringer LLP)
Lord Hodge AND( with whom Lord Reed and Dame Victoria Sharp agree)
This appeal is about whether the law of Bermuda recognises same-sex marriage. Section 53 of the Domestic Partnership Act 2018 of Bermuda (“the DPA”) confines marriage to a union between a man and a woman. However, both the Supreme Court and the Court of Appeal of Bermuda have held that this restriction is invalid, and so the Attorney General of Bermuda appeals to the Board. The question of invalidity turns on three matters: (1) religious purpose — is section 53 inoperative because it was enacted for a religious purpose? (2) freedom of conscience — do the respondents have a constitutional right to freedom of conscience with regard to their belief that same-sex unions should be legally recognised as marriage, and, if so, does section 53 contravene that right? and (3) creed-based discrimination — is the respondents' belief that same-sex marriage should be legally recognised a “creed” entitling the respondents to constitutional protection from discrimination on that basis, with the consequence that section 53 violates that protection? The Supreme Court of Bermuda (Chief Justice Kawaley) found for the respondents on points (2) and (3) and the Court of Appeal found for the respondents on points (1) and (2). For the reasons in this judgment, the Board considers that the respondents should not have succeeded on any of the three points and that this appeal should be allowed. A short statement of the Board's reasons will be found in the section headed “Conclusion” at the end of this judgment.
The first respondent is Mr Roderick Ferguson, a Bermudian who currently resides in Boston, who is gay. His complaint is that the DPA deprived him of the right to marry, offering instead a separate relationship status. The second respondent is OUTBermuda, a charity devoted to addressing the challenges faced by LGBTQ Bermudians. The third respondent is Ms Maryellen Jackson, a lesbian Bermudian. The fourth to sixth respondents are Dr Gordon Campbell, a trustee of the Wesley Methodist Church, Ms Sylvia Hayward-Harris and The Parlor Tabernacle of the Vision Church of Bermuda.
The DPA principally provides for the legal recognition of relationships between two individuals. These are domestic partnerships and may be entered into by any two persons. The DPA regulates the conditions of eligibility, and formalities, for domestic partnerships, and their termination. The preamble to the Act describes its purpose as follows and makes no reference to any religious purpose:
“WHEREAS it is expedient to provide for the formalisation and registration of a relationship between adult couples, to be known as a domestic partnership, to clarify the law relating to marriage, and to make connected and related provision;”
Section 53 of the DPA provides:
“53. Notwithstanding anything in the Human Rights Act 1981, any other provision of law or the judgment of the Supreme Court in Godwin and DeRoche v The Registrar General and others delivered on 5 May 2017, a marriage is void unless the parties are respectively male and female.”
Section 54 provides that it does not apply to same-sex marriages entered into between the date of the decision in Godwin and the commencement date of the DPA.
Section 48(1) of the DPA states that section 53 and other specified provisions of the DPA and section 15(c) of the Matrimonial Causes Act 1974, which provides that a marriage is void unless the parties are male and female, are to take effect notwithstanding anything to the contrary in the Human Rights Act 1981 of Bermuda (“the HRA”). The protections of the Human Rights Act are therefore not available in support of same-sex marriage.
The Legislature of Bermuda can make laws subject to the Constitution of Bermuda (“the Constitution” or the “Bermudian Constitution”). This is set out in Schedule 2 to the Bermuda Constitution Order 1968 (“the Constitution Order”) enacted by the United Kingdom. So, the Constitution derives its legal attributes from UK legislation, and that is a signal that the Constitution of Bermuda is not like that of a fully independent state. A very special feature of the Bermudian constitutional position is that it is multi-layered. The UK Parliament may have retained powers in relation to the Constitution of Bermuda. The UK is as a matter of international law responsible for its international affairs as the Board explains below.
The Constitution sets out the main political institutions of Bermuda. The Legislature consists of a Senate, whose members are appointed by the Governor, and the House of Assembly (“the Assembly”), which is an elected body. Subject to the Constitution, the Legislature has power to make laws for the peace, order and good government of Bermuda (section 34 of the Constitution). In addition, Bermuda has a ministerial system of government with an executive, and this is the principal body for making policy. The Legislature may determine its own privileges (see section 46 of the Constitution) but there is no information about any privilege attaching to the proceedings of the Legislature. As to the role of religion under the Constitution, there is no preamble to the Constitution and thus no statement about religion. The Constitution does not, however, provide that laws must not be passed for a religious purpose.
Chapter 1 of the Constitution sets out fundamental rights and freedoms. The Constitution does not confer any right to marry. Relevant to this appeal are sections 8 and 12, which (among other matters) guarantee freedom of conscience and protection from particular forms of discrimination, including creed-based discrimination, respectively. Under section 8(5), a law may interfere with constitutional rights where reasonably justified on the specified grounds. The presence of sections 8(1) and 12 indicate that Bermuda is a society in which different views may be held on religious matters and matters of conscience, and that difference must be respected. Sections 8 and 12 provide:
“ Protection of freedom of conscience
8(1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief and freedom, either alone or in community with others, and both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance. …
(5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required:
(a) in the interests of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited interference of persons professing any other religion or belief,
except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
Protection from discrimination on the grounds of race, etc
12(1) Subject to the provisions of subsections (4), (5) and (8) of this section, no law shall make any provision which is discriminatory either of itself or in its effect.
(2) Subject to the provisions of subsections (6), (8) and (9) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
(3) In this section, the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”
In this section the Board explains why the European Convention on Human Rights (“the Convention”) applies to Bermuda as a matter of international law and is relevant to the interpretation of its constitutional rights.
The UK signed the Convention in 1950 and by a declaration dated 23 October 1953 the UK government declared that the Convention should extend to certain territories, including Bermuda, for whose international relations they were (and are) responsible. By a declaration dated 12 September 1967 pursuant to article 63 (now article 56) of the ECHR, and in light of the UK being responsible for the international relations of Bermuda, the UK declared that the European Commission and now the European Court of Human Rights (“the Strasbourg Court”) had “competence … to receive petitions … by any person claiming, in relation to any act or decision occurring or any facts or events arising on or after [12 September 1967], to be the victim of a violation of the rights...
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