Tuesday, 21 August 2012

law report - transfer of principals, legitimate expectation

Ming & anor. v the Minister for Education and anor. [2012] SC (Bda) 39 Civ (1 August 2012)

The Applicants were seeking judicial review of the Minister's decision to transfer two school principals. Kawaley CJ found that the school PTAs had a legitimate expectation of being consulted prior to such a transfer [34]. The court exercised its discretion to quash the Minister's decision in order to give effect to this finding [44], putting the transfer plans on hold for another school year. Kawaley CJ said that it was only by granting the relief that the Minister would be stirred to honour its commitments to involve the PTAs as partners. He cited the fact that half of the island's parents have abandoned the public school system for consumer-friendly private schools which are more respectful of the aspirations and needs of citizens served by those schools.

The judgment is notable for Kawaley CJ's discussion of the principles of legitimate expectation and judicial review in the context of Bermuda [25]-[26]. He starts by drawing on the English principles, going back to Magna Carta. He says that Bermudian public law canot ignore Bermuda's own distinctive legal roots in the historical context of slavery, post-emancipation, oligarchical government and racial segregation, through to a parliamentary democracy with a written constitution.

This gives rise to tensions between democratic aspirations from civil society and Executive institutions not yet fully purged of more authoritarian notions of power.

He cites Rose-Marie Belle Antoine, who suggested an activist approach for judges in societies similar to Bermuda.

The Caribbean man and judge has an active role to play in re-interpreting the legal framework to build a more just society. The judge and legislator must perform the role of social engineer.

Kawaley CJ includes this quote to illustrate the role of the Court when interpreting legislation designed to promote social change.

Law report - arbitration clause covering individuals

Buchanan v Lawrence [2012] Sc (Bda) 38 Civ (27 July 2012)

The plaintiff had paid membership fees to The Finest Golf Clubs of the World Limited. He subsequently met with the defendant, a director of the company, who allegedly agreed to personally refund the fees.

The plaintiff brought a claim against the defendant for the failure to refund. The defendant relied on an arbitration clause in the agreement with the company, which covered disputes between the club, its officers, directors, affiliates, and any club member, relating to the rules and regulations and transactions arising out of them.

Kawaley CJ held that the correct test is that proceedings should be stayed when there is a prima facie case that the dispute is caught by the arbitration clause [5]-[6].

In this type of case, there is no clear distinction between a claim against a director as a director and in his personal capacity, when the Defendant's involvement was due to his position as a director [8].

In terms of costs, Litigants were also warned that the court was likely to follow the judgment of Colman J in A v B (No 2) [2007] EWHC 54 (Comm), in that a party who has been found to have deliberately ignored an arbitration clause would have costs awarded against them on the indemnity basis [10]-[11].

Friday, 17 August 2012

Julian Assange, Ecuador, and Bermuda's curious right to sanctuary

The fascinating legal case of Julian Assange is making headlines again. He is holed up in the Ecuadorian embassy in London, having been granted political asylum in Ecuador. Ecuador is trying to get him safe passage out of UK territory. The UK, meanwhile, is considering what options it has to pluck him from the embassy. The legal situation has been superbly presented by UK legal blogger, Carl Gardner.

It's not unheard of for political figures to seek refuge in an embassy. General Noriega of Panama holed up in the Vatican's embassy to Panama in 1990. Eventually the Americans blasted him out not with grenades but with unbearably loud heavy metal music.

The untouchable status of embassies makes them akin to the medieval right to church sanctuary. In medieval England, fugitives who had committed crimes involving life or limb could seek sanctuary in a church, where the law was unable to touch them. They were then attended to by a coroner, to whom they would confess their crime. They then had forty days to "abjure the realm", which meant to renounce their allegiance to England. They were then dressed in a white robe with a red cross, which gave them safe passage to leave England aboard the first available ship, provided that they kept to the King's highways on their journey to port.

Of course, all that medieval stuff has now been abolished by statute and no longer applies in England.

So what's the significance of this to Bermuda?

By a quirk of history, it appears* that the right to sanctuary still exists in Bermuda.

Bermuda was established as a colony in 1612. The Supreme Court Act states that the common law and the Acts of Parliament of England which were in force in 1612 shall be the laws of Bermuda.

The right to sanctuary was not abolished in England until 1623 (by King James I), a mere eleven years after Bermuda was settled. I cannot see any reference to the right being abolished in Bermuda and so, presumably, it still exists in Bermuda for criminals who have committed violent offences. Due to the quirk of the chronologies of when Bermuda was founded and when the right was abolished, it is quite possible that Bermuda is the only place in the modern world where the medieval right to sanctuary still exists.**

However, a note of caution for anyone who is thinking of bumping somebody off and then adjuring the realm: Henry the Eighth passed an Act in 1530 vastly curtailing the right. From then on, the right still existed, but abjurers were not allowed to leave the realm. Instead they were required to spend the rest of their days in a church sanctuary of their choice and if they left the sanctuary, they would be tried for their original offence.

It is unclear whether a serious criminal would prefer to spend the rest of their life in a church yard, or risk 15 years in Westgate.

And, to bring it back to Julian Assange, just how long is he willing to live in the Ecuadorian embassy to avoid arrest? If the UK government decides to just wait it out, his attempt at asylum could end up mirroring the conditions of a Bermudian sanctuary-seeker. He could be there for years and, as embassy residences go, this is not Chelston we're talking about, but a first floor flat in central London.

For anybody interested in finding out more about the right of sanctuary, there is an out of copyright book available to read online here which gives a reasonable overview.

* I am not 100% sure about this, as the abolition of ecclesiastical law in Bermuda may have affected the right to sanctuary, - however, it appears to have been a right recognised by both church law and common law, and was regulated by Acts of Parliament.
** other candidates might be Newfoundland, Virginia, Massachusetts and Maine, as they were also settled before 1623, but I am unfamiliar with how their law is determined

Tuesday, 14 August 2012

Born Bermudian?

A couple of articles in the Royal Gazette have highlighted the case of a woman born to a Bermudian father, currently trying to obtain Bermudian status.

I decline to make any comments on the individual case, and note that the woman has been invited by the Immigration Dept to make an application. However, the comments to the articles raise some questions of concern.

Under section 18 of the Bermuda Immigration and Protection Act (the "Act"), a person born in Bermuda with a Bermudian parent shall possess Bermudian status. They must also possess commonwealth citizenship, but this is not normally a problem, as practically every Bermudian has commonwealth citizenship and will confer this to a child born in Bermuda.

This is very straightforward and there are no other requirements.  However, some commenters have claimed that applicants are being required to prove that their Bermudian parent was involved in their upbringing. This is completely irrelevant and should not be required in order to get status. Whether one has a Bermudian parent is a question of fact, and there is no element of discretion as to the involvement of a parent in a child's upbringing.

In order to prove that one is a mother of a child, all that is normally required is to show the birth certificate. There is a common law presumption that a child born to a married woman is also the child of her husband. Obviously when a mother is unmarried, there can be no presumption as to who the father is, so it must be proved. This might be done by looking at the birth certificate, or perhaps by a DNA test.

Furthermore, the Act provides that where it is necessary to determine that a parental relationship exists, the Minister must be satisfied that the parent held him/herself out as the parent before the child's 15th birthday of the child by bringing up the child or providing maintenance and support and taking an active role in the child's life.

It must be stressed that this applies only where it is necessary to do so - i.e. that the relationship cannot be otherwise determined. Perhaps no father's name appears on the birth certificate. Or perhaps the father is deceased or uncontactable or uncooperative.

A child born to a Bermudian parent possesses Bermudian status as of right. There should be no additional test of parental involvement imposed. To do so is unlawful as it is beyond the powers given to the Minister under the Act, and also unjust, as it imposes an additional penalty on a child who has had the misfortune to have a useless father (or to have tragically lost a father) that they also lose their Bermudian birthright.

Law report - Using hand-held devices while driving

Farnworth v R [2012] SC (Bda) 36 App (20 July 2012)

The Appellant had been convicted in the Magistrates' Court of using a hand held device (an iPod) while driving a motorcycle, contrary to regulation 44 of the Motor Car (Construction, Equipment and Use) Regulations 1952. There was no evidence that she had touched the device with her hands whilst driving.

The decision of the Magistrate was upheld, as listening to an iPod via earphones amounted to "use" [17]-[18], [20]. Kawaley CJ mooted whether the enactment was a disproportionate response to objectively identifiable public safety concerns, a question that he suggested might arise in a constitutional complaint regarding the right to receive information and ideas under section 9 of the Constitution [21].

Comment - this was a conviction of a motorcyclist. It is unclear whether a car driver who has plugged a hand-held device into a car audio system, in the same way that one might insert a CD, would also be liable. For example, the music would be turned on or off via the dashboard controls, rather than having to handle the device. Is he using the device, or merely using the car's audio system?

Liability is even less clear if there is a passenger in the car who has control of the hand-held device plugged into the audio system. Presumably the driver could claim that it is the passenger using the device, but this is still open to interpretation.

Law Report - land valuation - statutory construction

Director of Land Valuation v Banks [2012] SC (Bda) 37 App (27 July 2012)

In a dispute about ARV and land tax, it was held that tax was payable from when a building was capable of being beneficially occupied, regardless of whether a planning certificate has been obtained [26]-[27].

Section 5(1) of the Land Valuation & Tax Act, requiring the Director to treat a complex or series of valuation units as a single unit, does not apply to high-end residential properties, but only to properties where the units supporting the main house are used for some commercial or business purpose (including furnished short-term lets but not unfurnished residential lets) [42]-[44].

If a taxpayer is challenging an ARV assessment, then it is clear that the Director should amend the confirmed valuation list if the objection has not been heard before the final confirmation. If the position were ambiguous, such ambiguities should be resolved against the Director [49]-[50].