We don’t want gay marriage, says Bermuda. Oh yes you do, insists meddling Britain
by Andrew Tettenborn, TCW:
We always suspected that the bien-pensants of Blackheath and the human rights enthusiasts of Hampstead didn’t really like democracy, especially when it gave the kind of answer they didn’t want to hear. In the UK this issue is still playing out over Brexit, where the plebs notably failed to vote as their betters said they should. Last week, however, the same establishment got a new shock, this time from 60,000 people on a tiny island in the Atlantic. Its reaction was instructive.
Thirty-seven years ago Bermuda’s House of Assembly enacted a Human Rights Act, including a general equality clause. Last year a judgment of the island’s Supreme Court interpreted this, entirely plausibly, as requiring acceptance of gay marriage. The ruling was unpopular with the socially conservative Bermudians. Legislation was in due course tabled and passed by the House of Assembly setting aside the court decision and for the future restoring the definition of marriage as the union of one man and one woman, while preserving existing same-sex marriages and leaving civil partnerships open to same-sex couples. Bermuda being a British colony, the UK government had a technical veto on this Bill, but it declined to exercise it. The measure passed, and gay marriage is no longer legal in Bermuda.
Most TCW readers will, one suspects, approve. But that’s not the point. The legislation was as impeccable a democratic development as you could get. There was, it seems, no Bermudian constitutional bar to it. Although the European Convention on Human Rights applies in Bermuda, this was not a bar either, since it did not require recognition of gay marriage. The new law clearly reflected the views of a conservative electorate (who had voted nearly 70-30 against gay marriage in a 2006 referendum); the issues were fully debated; and indeed a general election intervened shortly after the court decision in which the issue could be aired. The UK government reaction was entirely principled, too: it might not welcome the legislation, but, it pointed out, Bermuda had colonial self-government and there were no constitutional or other reasons to intervene.
All was well, then? A triumph of constitutional propriety that even Gina Miller would be proud of? Not quite.
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