By Susie Alegre
Last month the Supreme Court in Bermuda in R Ferguson v AG & OUTBermuda et al v AG SC (Bda) 46 Civ (6 June 2018) upheld the right to same-sex marriage in the Island despite legislative attempts to repeal it through the Domestic Partnerships Act (DPA). Bermuda is a non-self-governing British Overseas Territory and the UK has responsibilities for its international obligations, including under international human rights law. The legislation, while produced by the Bermudian Parliament, is signed off by the Governor, a British Crown appointment reporting to the Foreign and Commonwealth Office. The UK ultimately has responsible for Bermuda’s compliance with the European Convention on Human Rights and other international instruments.
Last year, in Godwin and Deroche-v-Registrar-General and others  SC (Bda) Civ (5 May 2017) the Bermudian Supreme Court had held that the definition of marriage as a union between a man and a woman was invalid because it discriminated against the applicants as same-sex partners. This judgment was based on the Bermuda Human Rights Act 1981 which empowered the Supreme Court to declare any laws inconsistent with the Act as having no legal effect.
Despite a range of arguments, the recent Ferguson case was ultimately decided on the basis of arguments around the Bermudian Constitution, in particular the freedom of conscience rights of the applicants under s. 8 and the prohibition of discrimination on the basis of creed in s. 12 of the Constitution. The Court found that there had been an interference with the applicants’ rights to practise their belief in same-sex marriage in a permissible way. The Constitution could be used to protect the rights of one group to practice their beliefs, but not to force their beliefs on others. Therefore, the contested provisions of the DPA were unconstitutional. The Court also found that those applicants who complained that their ability to manifest their beliefs by celebrating same-sex marriage had been taken away had been discriminated against on the basis of their creed as opposed to those applicants whose complaint arose from discrimination based on their sexual orientation. It is interesting to note that the Court chose to approach the complex issues raised in this case from the perspective of rights to freedom of conscience and discrimination on the basis of creed rather than possible arguments about the right to marry or the right to private life.
But this case is important, not only for its impact on the rights of Bermudians and for LGBTI rights more broadly, but also because of the fundamental principles of international human rights law that it raises. While same-sex marriage is not recognised across the world, Bermuda is the first jurisdiction to legalise and then revoke the right to same-sex marriage. But rights, once granted, cannot simply be taken away at the stroke of the legislator’s pen. If it were so, none of us could be safe in the knowledge that our hard-won rights may not be taken away as the political climate changes. In an age of populism, this is something that we should all be concerned about. The principle of non-regression (or non-retrogression) in international human rights law – that is that rights, once granted, cannot be taken away – seems so self-evident that it has not needed to be tested in international courts. This case, however, puts that principle into the spotlight.
Susie Alegre of Doughty Street International developed arguments on the application of the ECHR to this case that were included in the written submissions of OUT Bermuda. In particular, Susie focused on the principle of non-regression and the idea that international human rights law instruments are ‘living instruments’ which means they evolve to reflect developments in society. Although these arguments were not taken up by the Supreme Court which concentrated on Bermudian constitutional law, such points will become more relevant now the case has been appealed. Her submissions can be read here.
Now that the Bermudian Government has appealed the decision, this case is likely to take on increased significance far beyond the shores of Bermuda raising, as it does, complex questions of constitutional law around the relationship between the UK and its overseas territories, the principle of the sovereignty of parliament in relation to international human rights obligations and the fast-evolving status of marriage in international human rights law.