The Corporation of Hamilton v Attorney General of Bermuda and another (Bermuda)

Section 1 of the Bermuda Constitution is a preamble and does not confer separately enforceable rights. Section 1(a) may nevertheless provide independently enforceable protection of the law beyond the procedural guarantees in section 6, but a challenge to a statutory power may be premature where its future exercise remains subject to constitutional and common-law controls.

Protection from deprivation of property under section 13 requires an identifiable property interest and an interference reaching a sufficient level of seriousness. Regulatory oversight of a public authority did not meet that threshold. The legislature may create, alter or abolish municipal authorities and their electoral systems. Abolishing municipal elections therefore did not infringe freedom of expression.

The Corporation challenged provisions of the Municipalities Act 1923, successive amendment Acts and a proposed reform Bill under the Bermuda Constitution. It alleged that ministerial control over its governance and property infringed constitutional protection of the law, protection from deprivation of property and freedom of expression.

The Supreme Court dismissed the challenge on 31 March 2021. The Court of Appeal dismissed the appeal in [2022] CA (Bda) Civ 6. The central issues before the Board were whether section 1 created enforceable rights, whether section 7AA was unlawful or prematurely challenged, whether the Corporation could invoke Chapter 1, whether the measures amounted to a taking of property, and whether abolishing municipal elections infringed section 9.

1. Appeal dismissed. The Board advised His Majesty accordingly.
2. Section 1 of the Bermuda Constitution is a preamble or introductory provision. Reading Chapter 1 as a whole, the detailed provisions following section 1 provide the operative protection. Section 15(1), although expressed by reference to the foregoing provisions, does not alter that character. The Board followed the established approach in authorities including Grape Bay Ltd v Attorney-General of Bermuda [2000] 1 WLR 574 and distinguished the contrary approach in Nervais v R [2018] CCJ 19 (AJ).
3. The Board did not finally determine whether section 1(a) independently protects the law beyond section 6. The challenge to section 7AA was premature. The Attorney General accepted that the ministerial power, whether in its existing form or as proposed to be amended, remained subject to the Constitution, common-law principles and judicial review. The legality of any direction could therefore be considered when an actual direction was given.
4. The Board expressed provisional doubts about the Corporation’s capacity, as a public authority, to enjoy constitutional rights in its own right. Its powers and property existed for municipal and public purposes, rather than for its independent benefit. No concluded determination on standing was necessary.
5. Section 1(c) could not expand or distort the detailed protection in section 13(1). A taking may occur without a formal transfer of ownership, but the interference must reach a sufficient level of seriousness. Substantial or total restrictions on control, use or enjoyment, or serious adverse effects on value or goodwill, may suffice. Public-interest regulation ordinarily falls within the regulatory exception. The Corporation retained ownership and day-to-day control, subject to statutory oversight. Its statutory power to levy wharfage was not private property. The measures therefore did not amount to a taking.
6. Proportionality arises only after an interference with the protected right has been established. Since no taking occurred, no proportionality analysis was required. Finally, municipal authorities are creatures of statute. The legislature could abolish municipal elections and replace elected members with appointed members. The proposed changes therefore did not contravene section 9.

1. Privy Council: Appeal dismissed and advice given to His Majesty to that effect.
2. Court of Appeal for Bermuda: Appeal dismissed in [2022] CA (Bda) Civ 6.
3. Supreme Court of Bermuda: The Corporation’s constitutional challenge was dismissed on 31 March 2021.