Furbert’s law of unintended consequences
It’s a “What if ...” question that can only be speculated upon but not definitively answered, at least not yet.
And it’s one that is being increasingly asked given the likely convergence in the coming months of two seemingly unrelated but rather obviously linked matters on Bermuda’s public agenda.
What if, goes the thinking in some quarters, Government House refused to give its assent to the Private Members’ Bill aimed at reversing the legalisation of same-sex marriage in Bermuda because doing so could put Britain in breach of its international human rights obligations?
Such an unprecedented step, particularly on such a flashpoint issue, would trigger an historic constitutional crisis.
A situation placing the British-appointed governor squarely at odds with the island’s popularly elected government would, almost invariably, transform the subject of independence from its present afterthought status to the major front-burner issue of the day.
Sometimes, of course, such theorising amounts to little more than the type of intellectual parlour game so beloved of students of political science and the nerdier variety of comments section obsessives. And it is also perilously easy for even dispassionate and well-informed speculation of this kind to deteriorate into ginned-up alarmism.
However, in this instance, it would be unreasonable and potentially self-damaging to ignore how the two issues intersect and how they could all too easily become conflated into a single, horribly unwieldy matter.
If that were to happen, resulting events could potentially derail a fragile economic recovery and undermine Bermuda’s hard-won reputation for stability, consistency and reliability.
Few would dispute that former Bermuda attorney-general Mark Pettingill has a sure grasp of the island’s constitutional arrangements with Britain, the mechanics of parliamentary procedure and the fine print of local and international human rights laws and conventions.
And in his private capacity Pettingill was, of course, one of the lawyers who successfully litigated last year’s landmark case, which led to same-sex marriage becoming legal in Bermuda.
His central argument, simple and compelling, was that Bermuda’s 1981 Human Rights Act, which bans discrimination on the grounds of sexual orientation, had primacy over all other laws. And it’s an argument the island’s Supreme Court ultimately sided with.
The former One Bermuda Alliance government opted not to appeal the ruling to the Privy Council in London, despite widespread public opposition to same-sex marriage, in part because the chances of success were negligible given how the local judgment dovetailed with all recent British, European and international decisions bearing on human rights.
But coming off a landslide General Election victory, government backbencher Wayne Furbert is now preparing to reintroduce a Private Members’ Bill in Parliament that would reverse the Bermuda Supreme Court ruling by amending the Human Rights Act, stripping same-sex couples of the right to marry.
The legislation is in keeping with the new Progressive Labour Party government’s election manifesto position that same-sex couples should have all the legal rights of heterosexual couples, save for marriage.
If passed by the House of Assembly, as seems almost a foregone conclusion, the Government says Furbert’s amendment would be followed by legislation ensuring those rights are enshrined in law in the form of the civil union-type legislation adopted in countries such as Italy, which still prohibit same-sex marriage.
The same Bill was approved in the House last year, with 20 MPs voting in favour, 12 PLP members and eight OBA, but was later blocked in the Senate. This time, if it passes in the House in its existing form, the Bill will not need the approval of the Upper Chamber. However, it will require the assent of Government House to become law.
And there lies the potential constitutional rub.
For, according to Pettingill, it is very far from certain that Government House could sign off on Furbert’s proposal to turn back the clock on this emotive and divisive issue without contravening Britain’s own commitments.
He did not overstate the situation at all when he told this newspaper last week that “the British Government is faced with a very significant issue.
“[Furbert’s] particular amendment would put the UK in breach of its international obligations. The Governor, in assenting, has to look at the position.”
Bermuda’s Constitution enables the Governor to “reserve for Her Majesty’s pleasure” any Bill inconsistent with the obligations of the British Government towards any other international organisation.
Among these bodies is the European Court of Human Rights, which has ruled there must be state recognition and protection for same-sex couples, although not necessarily through marriage.
Pettingill argued approval for Furbert’s Bill would put Britain in breach of that, even if the Government does pursue plans for an alternative civil union-type framework providing many of the same rights as marriage to committed same-sex couples.
“The problem with that is that it’s already been done,” he said. “The framework is in place. People have married under a certain scheme. You can’t go ahead and say ‘we are going to remove that scheme’ and later try to impose another scheme. You are going to leave a void in the law.”
From a legal point of view, his argument would seem to be straightforward and, very possibly, unassailable. But from a political point of view, this is where things begin to get murky and, very possibly, ugly.
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