Law report - Appeals from Human Rights Board of Inquiry

Smith v Minister of the Environment [2013] SC (Bda) 8 App

A Board of Inquiry had decided against Ms Smith in her human rights complaint against the Minister of the Environment.

It did not make any subsequent order, as orders are generally made to order a party to do something, whereas in this case the complaint was merely dismissed.

Ms Smith appealed against the decision to the Supreme Court. The Respondent applied to have the appeal struck out, on the grounds that the Human Rights Act only allows for appeals against orders, not against decisions.

S.21 states that "any party against whom an order has been made ... may appeal"

However, Hellman J noted that the sidenote or heading to s.21 read "Appeal from decision of Board of Inquiry" [17]. This indicated that parliament intended "order" to include "decision".

It would produce an anomalous result to apply a literal approach to the meaning of the word "order". In some contexts, order can have the meaning of covering all decisions of a court [21].

Given the purposes of the Human Rights Act, it should be interpreted broadly so as to attain the objectives of the Act [23].

Furthermore there was no rational basis for not allowing appeals against decisions as opposed to orders [26], and it would merely result in an unsuccessful party having to bring judicial review, a remedy of last resort [27]. If somebody wished to challenge both a decision and an order, they would have to start two sets of proceedings, which would not make any sense. This indicated that "order" was intended to include "decisions"

Is the Attorney General right on sex offenders' register?

Attorney General of Bermuda has responded to public concerns about sex offenders by suggesting that, as Bermuda's laws are modelled on UK laws, it's impossible to have a public register.

It's true enough that a public register is contrary to the common law as, in the words of Justice Waite in ex parte M [1989] 2 All ER 359, it operates as a blacklist, and as such  has the dangerous potential as an instrument of injustice and oppression.


But the Attorney General is arguably wrong that this means that it is impossible for Bermuda to have a public register. As all who have studied law will know, it is perfectly legal for Parliament to override the common law and it does so every time it passes an Act of Parliament.

Bermuda is, of course, also signed up to the European Convention on Human Rights (ECHR), and the European Court might also have something to say about a public register in that it violates privacy, but the ECHR is nothing to do with English Common Law.


There are arguments for and against a public register but the relationship with the UK has nothing to do with it.

PS - as an aside it might be argued that the most immediate obstacle to a public register in Bermuda is Bermuda's home-grown Human Rights Act as passed by Bermuda's own members of parliament. Section 2(2)(a)(vii) prohibits discrimination on the basis of somebody's criminal record.

We have the bizarre situation in Bermuda where it is perfectly lawful to discriminate against gays and lesbians - but a no-no to discriminate against convicted sex offenders.