“Trott & Duncan was retained to represent the Government in an action brought by the Corporation of Hamilton challenging a series of statutory provisions that provide oversight to the Corporation and to prevent the Government from introducing legislation abolishing municipal elections. The Corporation claimed that this would be an infringement of the Constitution in two respects, first, that they were being deprived of the property they hold on behalf of the people of Hamilton and second, that abolishing municipal elections would be an infringement of voters’ freedom of expression and political opinion.
The Corporation lost on both counts, in the Supreme Court before Hargun CJ (as he then was), the Court of Appeal and now before the Judicial Committee of the Privy Council. Indeed the Privy Council, whilst expressing no concluded view, doubted whether the Corporation was a body capable of bringing any fundamental rights claims under the Constitution.
However, of fundamental importance beyond the specific issues, the Privy Council has definitively determined that whilst section 1 of the Constitution is not generally, directly enforceable, there may be a separate and independent enforceable right to the protection of law within section 1 by an individual where that right is not specifically guaranteed in the remaining sections of the Constitution.”
Justices: Lord Reed (President), Lord Lloyd-Jones, Lady Rose, Lady
Simler, Dame Janice Pereira
Background to the Appeal
The Corporation of Hamilton challenges the compatibility of certain provisions of, and
proposed amendments to, the Municipalities Act 1923 (“the 1923 Act”) with the rights
conferred by Chapter 1 of the Constitution of Bermuda.
In broad terms, the Corporation administers the City of Hamilton, the capital of Bermuda. It is
a corporate body with a long and complex history. In recent years, the relationship between the
Corporation and the central Government of Bermuda has been turbulent. However, this appeal
does not concern the reasons for their disagreements, and the Board has not formed any view
on them. Instead, the Board has been asked to consider the proper interpretation of the
Constitution and its application to the facts presented to it, which are largely not disputed.
The 1923 Act has been amended by successive Municipalities Amendment Acts over many
years. In 2015, section 7AA was inserted into the Act. This empowers a Government Minister
to give directions to the Corporation if he considers it to be in the best interests of Bermuda for
him to do so. It also imposes a corresponding obligation on the Corporation to carry out those
directions. An amendment introduced in 2018 deems anything required to be done by, or in
fact done by, the Corporation in compliance with a Ministerial direction to be for a municipal
purpose and to be a function of the Corporation.
Further amendments were proposed in the Municipalities Reform Act (No 2) 2019 (“the 2019
Reform Bill”). If it had been passed, this Bill would have had the effect of transferring control
from the current elected members of the Corporation to Ministers in central Government or to
new members who would have been appointed by those Ministers, in place of those elected to
office by the voters of Hamilton. It also purported to expand the scope of the deeming provision
introduced in 2018. The Corporation submits that this would have enabled a Government
Minister to direct the Corporation to act beyond its powers.
The Corporation asserts that these recent and proposed amendments amount to an expropriation
of the Corporation’s property without compensation contrary to sections 1 and 13 of the
Constitution. The Corporation contends that they also interfere with the residents of Hamilton’s
right to freedom of expression contrary to section 9 of the Constitution, by removing their
current right to vote for the Corporation’s members.
The Chief Justice dismissed the Corporation’s claim in his judgment of 31 March 2021. The
Court of Appeal dismissed the Corporation’s appeal on 18 March 2022. The Corporation now
appeals to His Majesty in Council.
Judgment
In a judgment of the Board, the Judicial Committee advises His Majesty to dismiss the
Corporation’s appeal.
Reasons for the Judgment
The first issue addressed in the judgment is whether section 1 of the Constitution confers free
standing rights or is an introductory section only. The Corporation argues that the reference in
section 1(c) to the right to protection from deprivation of property without compensation
confers a broader right than is conferred by section 13 which refers to property being
“compulsory taken possession of” or “compulsorily acquired”. The Board reviews the
authorities from the Bermuda courts and from the Board on appeal from other jurisdictions
some of whose constitutions have introductory sections in similar terms to section 1. The Board
concludes that section 1 is not separately and independently enforceable. The opening word
“Whereas” indicates that section 1 is in the nature of a preamble or recital. There are other
textual elements in the section and in later sections which also indicate that it is not separately
enforceable. Further, to construe it as having independent force would give rise to difficulties,
in particular as to the effect of important limitations, qualifications and exceptions contained
in the later provisions of the Constitution which set out in more detail the scope of the
individual rights that are introduced by section 1 [821-[89].
Secondly, the Board considers whether the right conferred by section 1(a) of the Constitution
to “the protection of the law” may be independently enforceable even if, in general, section 1
is not. This is relevant to the current and proposed provisions in the 1923 Act which appear to
limit the jurisdiction of the court to review the legality of the Corporation’s actions because
they deem whatever action the Corporation takes to be within its statutory powers, if it takes
that action in compliance with a Ministerial direction. The Board considers that the protection
of the law referred to in section 1(a) may be independently enforceable even though section 1
is generally not [109]-|111]. However, it is premature to determine that issue in light of the
Attorney General’s acceptance in his submissions to the Board that the exercise of the powers
conferred by section 7AA, both with its current wording and as it would have been amended
by the 2019 Reform Bill, would be subject to the normal public law constraints imposed on a
statutory body with limited powers [112], [1191-[123], [127].
The third issue addressed was raised with the parties by the Board prior to the hearing (42)-
[47]. That issue is whether the Corporation is a body which enjoys rights conferred by the
Constitution at all. Since the Board has come to clear conclusions on the other issues in the
appeal, it does not express a concluded view on the Corporation’s standing [131]. However the
Board notes the lack of relevant case law on this issue, explains its doubts as to whether the
Corporation does enjoy constitutional rights of its own and describes some of the consequences
that might follow if it did [144], [146], [156]-[157).
Fourthly, the Board considers whether the provisions of the 1923 Act which take away the
effective management of the Corporation from its current elected Mayor and Corporation
members who are independent of the Government and which give control instead to
Government Ministers amount to taking of property without compensation. The Board decides
first that the scope of section 13(1) is not influenced by the apparently broader wording of
section 1(c). Although the case law establishes that constitutions protecting fundamental rights
and freedoms should be construed generously, the wording of section 1(c) cannot create rights
or expand the rights conferred by section 13(1) [1701-|174]. The Board further decides that the
authorities relied on by the Corporation do not establish that a change in the management and
control of an enterprise in these circumstances can amount to a taking of property or of an
interest in property (175]-[188].
The Board concludes that there has been no “taking” of the Corporation’s property without
compensation in breach of section 13(1) of the Constitution. The Corporation has limited
powers and rights in relation to the property owned by it; it can use and enjoy its property only
to the extent it is empowered to do so by the 1923 Act. The Corporation continues to own its
land and property and it also continues to have day to day control over that land and property.
Regulatory measures which are introduced in the public interest do not amount to the taking of
property even if they have an adverse economic effect on the property owners. The Board
accepts that the “taking” of property does not have to involve a transfer or change of ownership
or possession from one person to another. But the measure being challenged has to be a really
serious interference with the owner’s rights before it can amount to a “taking” for the purposes
of section 13(1). The Minister’s powers to direct the Corporation in the legislation which the
Corporation challenges does not meet that threshold of seriousness and so does not amount to
a “taking” within the meaning of section 13(1) [1911-|197).
Finally, the Board rejects the Corporation’s submission that the 2019 Reform Bill would have
stifled the opportunity for political expression by the current electors of Hamilton, contrary to
section 9 of the Constitution. The Board considers the jurisprudence of other courts including
the European Court of Human Rights on the corresponding provision in article 10 of the
European Convention on Human Rights and article 3 of the First Protocol to that Convention.
The Board concludes that it is very doubtful whether there is a right to vote in elections in
relation to municipal authorities [218].
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