*/
In an article published in Counsel March 2022, ‘LGBTI rights and the Privy Council’, I argued that the Judicial Committee of the Privy Council (JCPC) was hindering the progress of human rights in the Caribbean. Three decisions handed down by the JCPC after I published that article, namely AG of Bermuda v Ferguson [2022] UKPC 5) (‘Ferguson’), Day et al v The Governor of the Cayman Islands et al [2022] UKPC 6 (‘Day’), and Chandler v The State No 2 (Trinidad and Tobago) [2022] UKPC 19 (‘Chandler’) confirm and reinforce this trend.
In Ferguson and Day, the JCPC was asked whether the constitutions of Bermuda and the Cayman Islands, enacted by the UK Parliament, require equal marriage. The JCPC answered in the negative. The JCPC accepted there is no express language in these constitutions that prohibits same sex marriage but concluded that LGBTQI+ people of these British Overseas Territories have no constitutional right to it because they have no right to be treated equally; the constitutions in each case fall short of protecting these minorities. This outcome is questionable because the JCPC justified exclusion of vulnerable disenfranchised minorities from equal marriage by relying on immutable personal characteristics (i.e., sexual orientation).
In Chandler, the JCPC even went one step further: it facilitated criminalisation of LGBTQI+ people by confirming Matthew v Trinidad and Tobago [2004] UKPC 33 (‘Matthew’). Matthew was a colonial mandatory death penalty case to which the JCPC applied its reasoning in Boyce v the Queen [2004] UKPC 32. In Boyce, the JCPC had held that colonial laws are immune from constitutional challenge regardless of how ‘inhumane or degrading’ they may be, a decision that the Inter-American Court of Human Rights found to be in breach of international law (Boyce v Barbados, ACHR Series C no 169 of 20 Nov 2007). It is very well established that courts must apply the presumption that the relevant constitutional provisions are intended to conform with international obligations where there is ambiguity (R (on the application of Brind) v Home Secretary [1991] 1 AC 696). The JCPC accepted in Chandler that there now exists ‘difference of opinion… with tenable arguments’ as regards whether the decisions in 2004 were right or not, but for legal certainty applied stare decisis.
Issues arise in using stare decisis to let the 2004 case stand and breach international law. Firstly, Lord Millet, in his published memoires (As in Memory Long, Wildy 2015), revealed that the fate of these cases had been sealed before the hearing had even started by a manipulation of the composition of the panel with the purpose of securing that colonial laws are immune from constitutional challenge. This made a mockery of the right to a fair and public hearing by an independent and impartial tribunal. In addition, Chandler perpetuates the harm for which Prime Minister May apologised in 2018 when she expressed deep regret stating ‘these laws were often put in place by my own country. They were wrong then, and they are wrong now. As the UK’s prime minister, I deeply regret both the fact that such laws were introduced, and the legacy of discrimination, violence and even death that persists today.’ (‘Theresa May says she deeply regrets Britain’s legacy of anti-gay laws’, The Guardian, 17 April 2018). Notwithstanding the pernicious genesis and this apology, the UK’s most senior judges upheld in Chandler the enforceability of all colonial laws, including criminalisation of LGBTQI+ individuals, legislation brought to the Caribbean region by the UK itself.
As a matter of statutory construction, the JCPC had competing authoritative choices in Ferguson and Day, as presented by the dissenting voice of Lord Sales, by the unanimous judicial bench of Bermuda and by the Chief Justice of the Cayman Islands. All of them, consistent with the position reached by courts of most Commonwealth jurisdictions, construed the constitutions of Bermuda and the Cayman Islands as requiring equal marriage. However, the JCPC preferred to ignore them and bring about a system of institutionalised segregation by concluding that equality and non-discrimination only works for the ruling majority whose Christian values referred to in the constitution must be elevated over and above the values of human dignity, equality, mutual respect, and social harmony, all of which are also mentioned in the constitution.
Given the unorthodox relevance placed on Christian values by the JCPC in Ferguson and Day, endorsing discrimination of LGBTQI+ due to perceived unique religious and cultural backgrounds, it is difficult to avoid contrasting that with the remarks of the Archbishop of Canterbury and Pope Francis on their return trip from Sudan against criminalisation and discrimination of homosexual individuals (as they referred to them). The Pope particularly takes a starkly different position to the JCPC by highlighting that cultural backgrounds are irrelevant to criminalisation and discrimination and shows more compassion by attributing greater significance to human dignity, something that the unanimous judiciary of Bermuda and the Chief Justice of the Cayman Islands had done in their judgments upholding same-sex marriage, which the JCPC reversed or chose not to follow.
It is regrettable that the most senior judges in the UK have not shown the same degree of compassion, rationality and overarching respect for securing equality and the right to human dignity, critical foundations of the rule of law and required for sound constitutional judgment, as stated by the JCPC itself in Matadeen v Pointu [1998] 1 AC 98: ‘equality before the law requires that persons should be uniformly treated, unless there is some valid reason to treat them differently. Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution’.
In Chandler, the JCPC could have returned to its own precedent of Roodal v Trinidad and Tobago [2003] UKPC 78 or followed the Caribbean Court of Justice, which had reversed Boyce on three occasions between 2018 and 2022 for Barbados and Guyana (see Nervais v Regina [2018] CCJ 19 (AJ), McEwan v Guyana [2018] CCJ 30 (AJ), and Bisram v DPP (Guyana) [2022] CCJ 7 AJ (GY) (President Saunders citing with approval at [62] an article ‘Privy Council’s Errors of Law Hinder Progress of LGBTI Rights in the Caribbean’ (2022) (1) 33 European Human Rights Law Review 65 in which ambiguity in the relevant constitutional text and a serious error of law in Matthew are identified, which, in themselves, would constitute in common law legal reasons why not to apply stare decisis).
These cases do not involve statutory construction, however. They involve constitutional construction of codified written constitutions. In that context, the JCPC’s attempts to justify its choices also remain highly unpersuasive: the JCPC failed to follow its own long-established principles of constitutional interpretation (such as the ‘living tree’, generous and purposive interpretation of bills of rights, strict and narrow interpretation of derogations from human rights, and carefully focusing on the language rather than the intention of the drafter). Lord Bingham explained in Bowe v R [2006] UKPC 10 that constitutional adjudication of primary legislation under a written constitution is unfamiliar and even resisted by some in the JCPC. However, the JCPC, by virtue of these decisions, is not just failing in its legal role of constitutional court to expound fundamental rights, but rather shows a willingness to intervene and prevent progress on LGBTQI+ rights in the region by making choices overtly inimical to the rights of LGBTQI+ people in the Caribbean.
In fact, the JCPC has never delivered in its history a decision that furthers LGBTQI+ rights in the Caribbean and, indeed, has even reversed judicial progress regarding LGBTQI+ rights delivered by Caribbean judges in the last 20 years, e.g., in addition to Ferguson, discrimination on grounds of sexual orientation was enabled by the JCPC in Surratt v Trinidad and Tobago [2007] UKPC 55 by reversing the Court of Appeal of the jurisdiction, which had concluded excluding people from the protection of the law on grounds of their sexual orientation was unconstitutional.
No apex court in the Americas has so consistently denied LGBTQI+ people the ability to assert and advance their legal rights under their constitutions in modern times. The question is why. In a seminal review into the treatment of, and outcomes for Black, Asian and Minority Ethnic (BAME) individuals in the UK criminal justice system published in 2017, the Right Honourable David Lammy concluded that BAME individuals still face bias, including overt discrimination, in parts of the UK justice system. More recently, in February 2022, the Independent Office for Police Misconduct unveiled racist, sexist, and homophobic messages exchanged by Metropolitan police officers. These messages are a reminder that racism and homophobia (and misogyny) often come together. There is no trace of what our most senior judges said when they deliberated these same sex marriage cases. Their decision to allocate costs to the respondent in Ferguson evidences, at the very least, however, an unconscious bias. This allocation of costs on a matter of constitutional rights is contrary to Ahnee v DPP (Mauritius) [1999] UKPC 11 in which a unanimous JCPC concluded ‘[G]iven that the real substance of the appeal concerned important matters of constitutional law, and that bona fide resort to rights under the Constitution ought not to be discouraged, their Lordships make no order as to costs.’. The JCPC has not explained in Ferguson the grounds upon which it felt compelled to depart from its own precedent. The sad message that the JCPC is conveying is one of dissuading LGBTQI+ people in the Caribbean from bringing constitutional cases.
During the apartheid regime in South Africa many lawyers and judges assisted in the application of laws that were designed to demean and de-humanise people on grounds of race. The post-apartheid ‘Truth and Reconciliation Commission’ found that judges had connived ‘in the legislative and executive pursuit of injustice’. During colonial times, as acknowledged by Prime Minister May, anti-LGBTQI+ laws were exported by the UK to the Caribbean. The charade of the UK government apologising while at the same time judges in the UK upholding those anti-LGBTQI+ laws based upon wrongly construed constitutional texts that the UK itself drafted must change.
It is unacceptable for UK judges to ignore principles of human dignity in favour of attributing more significance to oppressive majorities, thereby showing ignorance or contempt for the role of codified constitutions in those countries. This is a populist attitude that is anathema to the rule of law. Absent a change in approach, I would argue that legislation is needed to restrict the role of our judiciary in foreign jurisdictions so that it is unable to hinder human rights progress. The JCPC is, after all, a creature of statute (The Judicial Committee Act 1833), not a divine creation. There is no reason why British judges should continue to be called upon and held responsible for deciding, or advising His Majesty, to enforce abhorrent colonial laws preventing the growth of human rights in the Caribbean region. Especially where the local Caribbean governments are unable to persuade their own Caribbean judiciary to refrain from expounding constitutional human rights for, among others, the LGBTQI+ members of their populations.
Dr Leonardo Raznovich, barrister, 5 Chancery Lane, academic and Co-Chair of the Diversity and Inclusion Council of the International Bar Association.
In an article published in Counsel March 2022, ‘LGBTI rights and the Privy Council’, I argued that the Judicial Committee of the Privy Council (JCPC) was hindering the progress of human rights in the Caribbean. Three decisions handed down by the JCPC after I published that article, namely AG of Bermuda v Ferguson [2022] UKPC 5) (‘Ferguson’), Day et al v The Governor of the Cayman Islands et al [2022] UKPC 6 (‘Day’), and Chandler v The State No 2 (Trinidad and Tobago) [2022] UKPC 19 (‘Chandler’) confirm and reinforce this trend.
In Ferguson and Day, the JCPC was asked whether the constitutions of Bermuda and the Cayman Islands, enacted by the UK Parliament, require equal marriage. The JCPC answered in the negative. The JCPC accepted there is no express language in these constitutions that prohibits same sex marriage but concluded that LGBTQI+ people of these British Overseas Territories have no constitutional right to it because they have no right to be treated equally; the constitutions in each case fall short of protecting these minorities. This outcome is questionable because the JCPC justified exclusion of vulnerable disenfranchised minorities from equal marriage by relying on immutable personal characteristics (i.e., sexual orientation).
In Chandler, the JCPC even went one step further: it facilitated criminalisation of LGBTQI+ people by confirming Matthew v Trinidad and Tobago [2004] UKPC 33 (‘Matthew’). Matthew was a colonial mandatory death penalty case to which the JCPC applied its reasoning in Boyce v the Queen [2004] UKPC 32. In Boyce, the JCPC had held that colonial laws are immune from constitutional challenge regardless of how ‘inhumane or degrading’ they may be, a decision that the Inter-American Court of Human Rights found to be in breach of international law (Boyce v Barbados, ACHR Series C no 169 of 20 Nov 2007). It is very well established that courts must apply the presumption that the relevant constitutional provisions are intended to conform with international obligations where there is ambiguity (R (on the application of Brind) v Home Secretary [1991] 1 AC 696). The JCPC accepted in Chandler that there now exists ‘difference of opinion… with tenable arguments’ as regards whether the decisions in 2004 were right or not, but for legal certainty applied stare decisis.
Issues arise in using stare decisis to let the 2004 case stand and breach international law. Firstly, Lord Millet, in his published memoires (As in Memory Long, Wildy 2015), revealed that the fate of these cases had been sealed before the hearing had even started by a manipulation of the composition of the panel with the purpose of securing that colonial laws are immune from constitutional challenge. This made a mockery of the right to a fair and public hearing by an independent and impartial tribunal. In addition, Chandler perpetuates the harm for which Prime Minister May apologised in 2018 when she expressed deep regret stating ‘these laws were often put in place by my own country. They were wrong then, and they are wrong now. As the UK’s prime minister, I deeply regret both the fact that such laws were introduced, and the legacy of discrimination, violence and even death that persists today.’ (‘Theresa May says she deeply regrets Britain’s legacy of anti-gay laws’, The Guardian, 17 April 2018). Notwithstanding the pernicious genesis and this apology, the UK’s most senior judges upheld in Chandler the enforceability of all colonial laws, including criminalisation of LGBTQI+ individuals, legislation brought to the Caribbean region by the UK itself.
As a matter of statutory construction, the JCPC had competing authoritative choices in Ferguson and Day, as presented by the dissenting voice of Lord Sales, by the unanimous judicial bench of Bermuda and by the Chief Justice of the Cayman Islands. All of them, consistent with the position reached by courts of most Commonwealth jurisdictions, construed the constitutions of Bermuda and the Cayman Islands as requiring equal marriage. However, the JCPC preferred to ignore them and bring about a system of institutionalised segregation by concluding that equality and non-discrimination only works for the ruling majority whose Christian values referred to in the constitution must be elevated over and above the values of human dignity, equality, mutual respect, and social harmony, all of which are also mentioned in the constitution.
Given the unorthodox relevance placed on Christian values by the JCPC in Ferguson and Day, endorsing discrimination of LGBTQI+ due to perceived unique religious and cultural backgrounds, it is difficult to avoid contrasting that with the remarks of the Archbishop of Canterbury and Pope Francis on their return trip from Sudan against criminalisation and discrimination of homosexual individuals (as they referred to them). The Pope particularly takes a starkly different position to the JCPC by highlighting that cultural backgrounds are irrelevant to criminalisation and discrimination and shows more compassion by attributing greater significance to human dignity, something that the unanimous judiciary of Bermuda and the Chief Justice of the Cayman Islands had done in their judgments upholding same-sex marriage, which the JCPC reversed or chose not to follow.
It is regrettable that the most senior judges in the UK have not shown the same degree of compassion, rationality and overarching respect for securing equality and the right to human dignity, critical foundations of the rule of law and required for sound constitutional judgment, as stated by the JCPC itself in Matadeen v Pointu [1998] 1 AC 98: ‘equality before the law requires that persons should be uniformly treated, unless there is some valid reason to treat them differently. Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution’.
In Chandler, the JCPC could have returned to its own precedent of Roodal v Trinidad and Tobago [2003] UKPC 78 or followed the Caribbean Court of Justice, which had reversed Boyce on three occasions between 2018 and 2022 for Barbados and Guyana (see Nervais v Regina [2018] CCJ 19 (AJ), McEwan v Guyana [2018] CCJ 30 (AJ), and Bisram v DPP (Guyana) [2022] CCJ 7 AJ (GY) (President Saunders citing with approval at [62] an article ‘Privy Council’s Errors of Law Hinder Progress of LGBTI Rights in the Caribbean’ (2022) (1) 33 European Human Rights Law Review 65 in which ambiguity in the relevant constitutional text and a serious error of law in Matthew are identified, which, in themselves, would constitute in common law legal reasons why not to apply stare decisis).
These cases do not involve statutory construction, however. They involve constitutional construction of codified written constitutions. In that context, the JCPC’s attempts to justify its choices also remain highly unpersuasive: the JCPC failed to follow its own long-established principles of constitutional interpretation (such as the ‘living tree’, generous and purposive interpretation of bills of rights, strict and narrow interpretation of derogations from human rights, and carefully focusing on the language rather than the intention of the drafter). Lord Bingham explained in Bowe v R [2006] UKPC 10 that constitutional adjudication of primary legislation under a written constitution is unfamiliar and even resisted by some in the JCPC. However, the JCPC, by virtue of these decisions, is not just failing in its legal role of constitutional court to expound fundamental rights, but rather shows a willingness to intervene and prevent progress on LGBTQI+ rights in the region by making choices overtly inimical to the rights of LGBTQI+ people in the Caribbean.
In fact, the JCPC has never delivered in its history a decision that furthers LGBTQI+ rights in the Caribbean and, indeed, has even reversed judicial progress regarding LGBTQI+ rights delivered by Caribbean judges in the last 20 years, e.g., in addition to Ferguson, discrimination on grounds of sexual orientation was enabled by the JCPC in Surratt v Trinidad and Tobago [2007] UKPC 55 by reversing the Court of Appeal of the jurisdiction, which had concluded excluding people from the protection of the law on grounds of their sexual orientation was unconstitutional.
No apex court in the Americas has so consistently denied LGBTQI+ people the ability to assert and advance their legal rights under their constitutions in modern times. The question is why. In a seminal review into the treatment of, and outcomes for Black, Asian and Minority Ethnic (BAME) individuals in the UK criminal justice system published in 2017, the Right Honourable David Lammy concluded that BAME individuals still face bias, including overt discrimination, in parts of the UK justice system. More recently, in February 2022, the Independent Office for Police Misconduct unveiled racist, sexist, and homophobic messages exchanged by Metropolitan police officers. These messages are a reminder that racism and homophobia (and misogyny) often come together. There is no trace of what our most senior judges said when they deliberated these same sex marriage cases. Their decision to allocate costs to the respondent in Ferguson evidences, at the very least, however, an unconscious bias. This allocation of costs on a matter of constitutional rights is contrary to Ahnee v DPP (Mauritius) [1999] UKPC 11 in which a unanimous JCPC concluded ‘[G]iven that the real substance of the appeal concerned important matters of constitutional law, and that bona fide resort to rights under the Constitution ought not to be discouraged, their Lordships make no order as to costs.’. The JCPC has not explained in Ferguson the grounds upon which it felt compelled to depart from its own precedent. The sad message that the JCPC is conveying is one of dissuading LGBTQI+ people in the Caribbean from bringing constitutional cases.
During the apartheid regime in South Africa many lawyers and judges assisted in the application of laws that were designed to demean and de-humanise people on grounds of race. The post-apartheid ‘Truth and Reconciliation Commission’ found that judges had connived ‘in the legislative and executive pursuit of injustice’. During colonial times, as acknowledged by Prime Minister May, anti-LGBTQI+ laws were exported by the UK to the Caribbean. The charade of the UK government apologising while at the same time judges in the UK upholding those anti-LGBTQI+ laws based upon wrongly construed constitutional texts that the UK itself drafted must change.
It is unacceptable for UK judges to ignore principles of human dignity in favour of attributing more significance to oppressive majorities, thereby showing ignorance or contempt for the role of codified constitutions in those countries. This is a populist attitude that is anathema to the rule of law. Absent a change in approach, I would argue that legislation is needed to restrict the role of our judiciary in foreign jurisdictions so that it is unable to hinder human rights progress. The JCPC is, after all, a creature of statute (The Judicial Committee Act 1833), not a divine creation. There is no reason why British judges should continue to be called upon and held responsible for deciding, or advising His Majesty, to enforce abhorrent colonial laws preventing the growth of human rights in the Caribbean region. Especially where the local Caribbean governments are unable to persuade their own Caribbean judiciary to refrain from expounding constitutional human rights for, among others, the LGBTQI+ members of their populations.
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