ONE BERMUDA ALLIANCE OPPOSITION SUBMISSION SUBMITTED TO THE FOREIGN AND COMMONWEALTH OFFICE IN RESPECT OF THE PROPOSED WHITE

PAPER ON OVERSEAS TERRITORIES

CONTENTS
Section I - Introduction ..................................................................................................................................................4 Section II - Constitutional Modernisation ......................................................................................................................7 Independence ............................................................................................................................................................7 The Need for an Amending Formula .........................................................................................................................9 Form of Amending Formula .....................................................................................................................................11 Consultation by the Constituency Boundaries Commission with the Public ...........................................................12 Other changes to the Constitution ..........................................................................................................................13 Section III - Good Governance .....................................................................................................................................14 Electoral Reform ......................................................................................................................................................15 Absentee Voting ......................................................................................................................................................16 Strengthening the Independence of Parliament .....................................................................................................16 Standards in Public Life ............................................................................................................................................18 Auditor General .......................................................................................................................................................26 Empowering the people ..........................................................................................................................................26 Section IV - The Economy ............................................................................................................................................27 Financial Management ............................................................................................................................................27 Protecting Bermudas Financial industry .................................................................................................................28 Section V - Crime .........................................................................................................................................................29 Operation Ceasefire .................................................................................................................................................29 The Double Jeopardy rule ......................................................................................................................................29 Prosecution Right of Appeal ....................................................................................................................................31 Inter-Agency Cooperation .......................................................................................................................................31 Extradition Act 2003 ................................................................................................................................................32 Section VI - Human Rights ...........................................................................................................................................33 Citizenship ...............................................................................................................................................................33

Age Discriminaton....................................................................................................................................................33 Gender Discrimination .............................................................................................................................................34 Conscription .............................................................................................................................................................34 Sexual Orientation ...................................................................................................................................................34 Rights-Compliance Reports For Legislation .............................................................................................................35 Section VII - The Environment .....................................................................................................................................36 Protecting our Open Spaces ....................................................................................................................................36 Protecting our Marine Heritage ...............................................................................................................................36 Protecting our Ocean Waters ..................................................................................................................................37 Protecting ourselves from Climate Change .............................................................................................................37

SECTION I - INTRODUCTION 1. The Government of the United Kingdom has announced its desire to develop a new strategy for the Overseas Territories and will publish a White Paper in 2012 addressed to this goal. The UK Government is presently engaged in a consultative exercise at this preliminary stage to inform and establish priorities in advance of the new White Paper. 2. The One Bermuda Alliance currently forms Her Majestys Loyal Opposition in Bermuda. This paper comprises the One Bermuda Alliances submissions as part of this consultative process. 3. In 1999, the UK Government noted in its 1999 White Paper, Partnership for Progress, as follows: Britains links with the Overseas Territories are long-standing and important. The relationship is rooted in a shared history: but it moves forward, too, in partnership. For Britain, the Overseas Territories are a significant element in its national and international identity, and an important responsibility. For the Overseas Territories, their links with Britain are significant too: but so is their individual character and diversity. This intertwined relationship is strong and constant. But it is subtle and changing too. A new and modern partnership between Britain and the Overseas Territories must reflect this relationship. It must be a partnership for progress and prosperity. 4. The 1999 paper identified four fundamental principles underpinning the modern partnership that has develop between the UK and its Overseas Territories, which we would invite the UK to reaffirm in its 2012 White Paper. These principles are: self-determination; mutual obligations and responsibilities; freedom for the territories to run their own affairs to the greatest degree possible; a firm commitment from the UK to help the territories develop economically and to assist them in emergencies. 5. The Written Ministerial Statement issued on 14th September 2011 by the Secretary of State for Foreign and Commonwealth Affairs sets out the UK governments overall vision for the Overseas Territories: The UK Governments fundamental responsibility and objective is to ensure the security and good governance of the Territories and their peoples. The strategy recognises that our 14 Overseas Territories are remarkably diverse. Policies to meet these objectives need to be tailored
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to the specific circumstances of each Territory. The strategy is designed to provide a framework in which these policies can be developed and implemented consistently and effectively. Much of the Governments work on the Territories is rightly concerned with meeting our responsibilities to the Territories with settled populations. Our new strategy aims to ensure that proper attention is also given to the UKs extensive sovereign territory where there is no settled population. We want to ensure that the significance and value of this territory is better understood. 6. Furthermore, we agree with and welcome the Secretary of States views in respect of the proper constitutional balance to be achieved between the UK Government and the Overseas Territories, namely that powers *be+ devolved to the elected governments of the settled Territories to the maximum extent possible consistent with the UK retaining powers necessary to discharge our sovereign responsibilities. 7. We recognise the UK Governments concern over future constitutional change and its desire to instead focus on ensuring that constitutional arrangements in place work effectively to promote the best interests of the Territories and of the UK. However, it is our wish that the UK reconsider this and to promote the need for limited constitutional improvement, to which we will return in subsequent sections. 8. Nonetheless, this submission paper will address the practical policy goals set forth in the 14th September Written Ministerial Statement, namely: i. ii. to strengthen the engagement and interaction between the UK and the Territories. to work with Territories to strengthen good governance arrangements, public financial management and economic planning where this is necessary; and to improve the quality and range of support available to the Territories.

iii.

9. As part of the global process towards advancing these policy goals, the United Kingdom Government also provided a series of questions intended to assist the Territories in eliciting discussion1:

1.

Challenges What are the main challenges facing your Territory/the Territories?

2.

Cooperation with the UK What are the most important areas of cooperation between your Territory/the

See: http://ukoverseasterritories.readandcomment.com/wp-content/uploads/2011/09/Overseas-TerritoriesConsultation.pdf. 5

Territories and the UK? In what areas would you like to see greater engagement and interaction between the UK and your Territory/the Territories? How can the UK and your Territory/the Territories strengthen cooperation and build more effective partnerships?

3.

Governance, financial management and economic planning How do you assess the quality of good governance, public financial management and economic planning in your Territory/the Territories? What are the priorities for improvement? How can the UK best work with your Territory/the Territories to strengthen these areas?

4.

External support What do you think of the quality and range of external support (i.e. support other than from the UK) available to your Territory/the Territories, including from regional bodies, the Commonwealth, and the European Union? What can the UK best do to help Territories access external support?

5.

Cooperation between Territories What potential do you see for increased cooperation and partnership between Territories? In which areas does your Territory/the Territories provide support to other Territories? How might this be expanded?

6.

Global profile of the Territories How does your Territory/the Territories promote its successes? What more could be done to raise Territories profile internationally? How can the UK best support this?

10. The One Bermuda Alliance has kept these questions in mind in formulating the submissions contained throughout.

SECTION II - CONSTITUTIONAL MODERNISATION

INDEPENDENCE 11. In its 1999 White Paper (at paragraph 2.1), the UK Government outlined its position on the independence of its Overseas Territories as follows: Britains policy towards the Overseas Territories rests on the basis that it is the citizens of each territory who determine whether they wish to stay linked to Britain or not. We have no intention of imposing independence against the will of the peoples concerned. But the established policy of successive British governments has been to give every help and encouragement to those territories which wished to proceed to independence, where it is an option. 12. The position of the UK government was re-affirmed as recently as 6th October 2011 in its statement on the Overseas Territories to the UN General Assemblys 4th Committee2: The UK has no intention of imposing independence against the will of the people concerned. Where independence is an option and is the clear and constitutionally expressed wish of the people of the Territories, the British Government will help those Territories to achieve it. 13. The One Bermuda Alliance further notes that the International Covenant on Civil and Political Rights describes self-determination as an inalienable right of all peoples through which they freely determine their political status and freely pursue their economic, social and cultural development. 14. It is our belief that the UK Government should reaffirm its commitment to these principles. To that end, the One Bermuda Alliance makes the following submissions: The UK must give greater force and definition to what it regards as the clear and constitutionally expressed wish of the people of the Territories; We would prefer to decide the issue of independence by way of referendum as this is the only way of ascertaining the constitutionally expressed wish of the people; The level of support required for independence should be substantial. At a minimum, independence should only be pursued by the government of Bermuda if a clear majority of those who are registered vote in favour. Only then can the clear and constitutionally expressed wish of the people of Bermuda be ascertained. 15. The primary reasons for these submission are:

See: http://ukun.fco.gov.uk/en/news/?view=PressS&id=665610382. 7

The principle of self-determination requires that only the people of Bermuda should be able to determine its own destiny, and we regard it is as self-evident that only a referendum truly fulfills the requirement for ascertaining the clear and constitutionally expressed wish; Precedent exists for the people of Bermuda to decide the future of Bermudas constitutional status quo (see the 1995 Independence Referendum); and The past position of the ruling Progressive Labour Party has been that independence can and should be decided following a general election, a position we regard as neither clear nor constitutionally expressed. 16. Popular opinion in Bermuda has always been overwhelmingly against independence. In the 1995 referendum, 73% voted against independence while 23% voted in favour. The latest poll on the issue pegged the numbers at 70% and 16% respectively.3 In recent years, Opposition has normally been within 60-70% while support has hovered from 15-25%. 17. There is sufficient precedent for requiring independence to be ascertained by way of referendum. The following were examples of countries and regions deciding their future constitutional status by referendum: Jamaica in 1961, Saint Vincent and the Grenadines in 1979, Algeria in 1962, Armenia in 1991, Bosnia & Herzegovina in 1992, Cote dIvoire in 1958, Djibouti in 1958, 1967 and 1977, Timor-Leste in 1999, Eritrea in 1993, Georgia in 1995, the Kyrgyz Republic in 1991, Quebec in 1980 and 1995 and Southern Sudan in 2011. 18. Note further that referenda were held in the UK in 1998 on devolution of powers to Scotland and Wales, Australia in 1999 on becoming a republic, and throughout member states of the EU in 2005 on acceptance of the European Constitution. 19. In the UK, the Scottish National Party (the SNP) is proposing to hold a referendum on Scottish Independence at some time in or before 2015. It has always been the avowed goal of the SNP to seek independence from the UK. It is worth noting that despite its overwhelming democratic mandate having won a majority of the seats in the devolved Scottish Parliament elections of 2011, the SNP is still insisting upon a referendum as a precursor to independence.4 20. Furthermore, recent reports in the UK media suggest that its government is considering the passage of legislation akin to the Canadian Clarity Act in anticipation of the Scottish Referendum.5This is an issue that is understandably of concern to the UK Government, and we await to see how the UK
3

New poll reveals little desire for Independence. The Royal Gazette. 25 April 2011. http://www.royalgazette.com/article/20110425/NEWS/704259985. 4 SNP outlines plans for Independence referendum.SNP Official Website. 03 September 2009.http://www.snp.org/media-centre/news/2009/sep/snp-outlines-plans-independence-referendum. 5 Cameron's plan to take charge of Scottish independence vote. The Independent. 11 November 2011. http://www.independent.co.uk/news/uk/politics/camerons-plan-to-take-charge-of-scottish-independence-vote6260514.html?origin=internalSearch. 8

responds to developments on this front. The question of independence is equally of a concern to the residents of Bermuda and other Overseas Territories 21. At such time when the UK Government responds to the need for clarity in relation to the Scottish referendum, we would ask that consideration also be given to the Overseas Territories. 22. The Canadian Clarity Act was itself passed in the aftermath of the Quebec 1995 Referendum in which the people of Quebec, by a razor thin majority, voted to remain within Canada. Following concerns that members of the governing Parti Qubcois favoured immediate secession in the event of a 50%+1 referendum victory for the pro-secession side and of the ambiguous nature of the question put before the people of Quebec, the matter was referred to the Supreme Court of Canada for an advisory opinion. Their Lordships were unanimous that any future referendum would have to produce a clear majority to a clear question in favour of the independence of Quebec6. While not explicitly spelling out what a clear majority would be, for their Lordships, 50%+1 of those turning out would not suffice. It is also important to note that even where there was a referendum result in favour of independence, such a result was not sufficient to effect a change in the constitutional relationship between Quebec and Canada. Rather, it simply involved the obligation to enter into negotiations between the relevant parties. This opinion was founded on the principles, inter alia, of democracy, constitutionalism and the rule of law.
23.

We endorse and adopt these principles in respect of any future move towards independence by Bermuda and the other Overseas Territories.
24.

THE NEED FOR AN AMENDING FORMULA 25. Beyond questions of independence, we are also of the opinion that an amending formula in general should be introduced into the Bermuda Constitution Order (the Constitution). The formula would govern requests by the government of Bermuda for constitutional amendments. Whilst the Secretary of State for Foreign and Commonwealth Affairs indicated in his Written Ministerial Statement of 14 September 2011 that the UK Government believed that the time is not right to embark on further constitutional change, we would ask the UK Government to reconsider this position and to give thought to our proposals on this matter. 26. The rationale for entrenching an amending formula is, in our submission, self-evidently clear. The Constitution is the fundamental law of Bermuda. The legitimacy of all other laws and Government action flows from it. It sets the parameters within which our modern society functions by protecting the fundamental rights of the individual, constraining the exercise and abuse of political power, and protecting the process of democracy itself.
6

Reference re Secession of Quebec [1998] 2 S.C.R. 217 9

27. Former Parliamentary Under-Secretary of State at the Foreign and Commonwealth Office Baroness Scotland of Asthal stated in her speech to the Overseas Territories delegates on April 3, 2000, at Wilton Park, Constitutional change is not a matter to be entered into lightly. She went on to state the need for a process that incorporates full consideration and consultation across political parties and the community as a whole, and adoption only of changes that have been fully discussed locally, that command wide local support, and in addition, are consistent with good government. 28. What gives greater impetus for seeking an amending formula was the process of constitutional modernisation begun by the government of Bermuda in 2000. That process eventually saw substantial and significant changes to the way Bermudians give expression to their collective democratic will: the number of representatives in Bermudas House of Assembly was reduced from 40 to 36, single-seat constituencies were introduced, and constituency boundaries are radically altered. 29. When the changes were first introduced, few in the community disagreed with the sentiment that the Constitution needed modernization. However, at the beginning of that process, the Governments inflexible approach to the changes created enormous controversy and division within our community. There was a perception that the Government was proceeding with the changes summarily. Furthermore, the UK Government assented to these changes in breach of what had been the previous conventions for major constitutional changes : All major changes to the Constitution before 2003 had been preceded by a fullyconvened constitutional conference; and In 1995, a precedent was established for deciding constitutional changes as major as severing ties with the UK by way of referendum. 30. Changes to the fundamental law of Bermuda must be more difficult than for changes to any regular Act of Parliament. The process must be predictable, and the Bermudian people must be consulted for their ultimate consent. 31. The presence of amending formula in respect of Overseas Territories is not without precedent. Section 69 of the Constitution of the Cayman Islands provides as follows: Power to provide for a referendum 69. A law enacted by the Legislature may make provision to hold a referendum amongst persons registered as electors in accordance with section 90, on a matter or matters of national importance, when so resolved by the majority of the elected members of the Assembly; but the question of whether the Cayman Islands should seek any amendment to this Constitution that may result in their independence shall be deemed to be a matter of national importance.

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FORM OF AMENDING FORMULA 32. All constitutional changes should start by some signal for change.

33. The normal course of action should be that such signals come from the elected members of Parliament, by way of a motion introduced in the House of Assembly, initiated either by the Government or the Opposition. In addition, an elected member of the House could sponsor a motion (similar to the current process used for petitions) from an individual or group in the community. A signal could also come from a provision in a political partys election platform, but we believe it should still be formally introduced by way of a motion in the House of Assembly, following the election. 34. The motion would ensure that attention is focused on the proposed change and allow for a more substantive discussion of the issue for the benefit of the broader public. This period of consultation should be formalised, and a minimum period of time must be allowed between the signal for change and final ratification. The above-referenced constitutional changes were initiated by the former Premier of Bermuda in August 2000. This was followed with endorsement by the House of Assembly of a new Boundaries Commission Report in October 2002 and final passage of changes in February 2003.7 Such a timeframe measured in years is preferable to one in months. 35. Ultimately, any proposed constitutional amendment should, as a minimum, require a two-thirds majority of the 36 members of the House of Assembly. However, we believe that there is a distinction to be drawn between constitutional changes of a major nature and constitutional changes of a minor nature. 36. A new provision should be added to the Constitution to enumerate those areas of import which would automatically make any proposed constitutional change of a major nature. In this list, we would include changes affecting the following: a. Provisions relating to fundamental rights; b. The general constitutional relationship between Bermuda and the UK (including, but not limited to, independence); c. Division of powers between the Governor and the Government of Bermuda (without prejudice to the ability of the Governor to delegate); d. Composition of the Legislature, the franchise and mode/method of election and/or appointment; e. Independent functioning of the judiciary, Auditor-General, Ombudsman, Public Services Commission, and all other good governance offices;
7

Bermuda Constitution (Amendment) Order 2003 (UK SI 2003 No. 456) 11

f.

Provisions relating to amendment of the Constitution; and

g. Any other area of public importance which may be so designated by resolution of three quarters of the House of Assembly. 37. If the proposed amendment is a major matter (or it is decided by the Legislature to be a major matter as per paragraph g. above), it would then be put to a committee (a select committee or joint select committee, or some type of Constitutional conference) to settle the form of the amendment (perhaps to produce a White Paper), and it would go to the House of Assembly as a substantive motion. It would require a two-thirds majority in the House of Assembly before being put to the public in the form of a referendum. 38. With respect to the referendum, the requirements would need to be decided in advance. At a minimum, a result should only be regarded as valid where there is a clear majority to a clear question, as per the principles discussed above. This should involve a supermajority of the people in favour of the amendment. As examples, this could include either an elevated percentage of the electorate with a minimum turnout, or, as a minimum, a simple majority of those registered to vote, regardless of turnout. 39. All constitutional changes not coming within paragraphs a. to g. as per above would be of a minor nature. The proposed change would be put to the House of Assembly by way of a substantive motion; and if that motion passed by a two-thirds majority, it would be put to the British Government for a change to the Constitution. 40. Following either route, an Order in Council would be required to put into effect either major or minor changes to the Constitution. The foregoing paragraphs are obviously without prejudice to the ability of the UK Government to agree or disagree with any changes proposed by Bermuda. It is simply envisaged that these provisions would prevent any future government of Bermuda from making a request to the UK Government or entering into any material negotiations without following the appropriate steps.

CONSULTATION BY THE CONSTITUENCY BOUNDARIES COMMISSION WITH THE PUBLIC 41. Constituency Boundaries Commissions (a Commission) are provided for under the Constitution to consider changes to constituency boundaries to allow for population changes occurring over time. In a community where electoral contests have been decided by wafer-thin margins, the need for accurate levels of voter registration is vital. 42. In future, such Commissions should be held as close in time to the completion of a census to ensure that accurate data is available for the Commissions work. Where it is not practical to hold a Commission close in time to a census, a mandatory voter re-registration process should be considered. It
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is envisaged that, should our proposed fixed-term elections become a reality, the question of when to hold Commissions and/or voter re-registration will become far more predictable. 43. In regard to how future Commissions should consult the public, we believe that the invitation for the views of the public should be extended in such a way as to make their participation meaningful. 44. This can only be done by giving the public the opportunity to make both written and oral submissions to a Commission during its deliberations and by making available a draft report for public inspection and comment prior to a final report and recommendations to the Governor. This practice would be consistent with that undertaken by similar bodies in other modern, democratic jurisdictions when electoral districts are redrawn. 45. In light of this recommendation, the Constitution should be amended to direct a Commission on how it should permit the public to participate. Section 53(6) allows a Commission to regulate its own procedure, while section 53(8) of a Commission shall not be subject to the direction or control of any other person or authority. Absent any such amendment, it will fall to a Commission upon appointment to determine how to discharge its duties under section 53(6A) of the Constitution, which compels the Commission to invite views from members of the public. Any attempt to give the Commission any prior direction, or any direction at all, on how to proceed could therefore be properly ignored and rejected by a Commission. 46. Amending the Constitution in the manner suggested in this section will safeguard changes proposed and ensure Bermuda meets democratic best practices.

OTHER CHANGES TO THE CONSTITUTION 47. The One Bermuda Alliance supports the modernisation of the Constitution in general. It is expected that should certain of the proposals made in subsequent sections be acted upon, this would require further changes to the Constitution. 48. In particular, it is envisaged that changes would be put in place to give effect to the good governance institutions detailed in the subsequent section, and enhanced provisions relating to the Register of Members' Interests should be constitutionally entrenched. 49. The UK may wish to convene a Constitutional Conference to consider not only such amendments proposed but also to assist in the general process of constitutional modernisation.

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SECTION III - GOOD GOVERNANCE 50. The Leader of the One Bermuda Alliance in his Reply to Throne Speech 2011 provided a statement of purpose for our party which also encompasses our approach to good governance:8 [The One Bermuda Alliance] wants to bring change to Bermuda; change that gives people a greater say in the work of this country; change in our political culture from one of confrontation to one of collaboration; change in the way we go about our business as a country, and change to a government that works for people 51. Unfortunately, the manner in which the affairs of our country have been conducted in recent years has not lived up to the highest standards of probity and integrity. It is for this reason that our party make the following submissions as it relates to good governance in Bermuda. The need for good governance is of universal applicability and the UK Government should consider these proposals in preparing its White Paper on Overseas Territories. 52. The One Bermuda Alliance believes that the five main pillars of Good Governance are: (1) accountability/transparency; (2) legitimacy; (3) vision; (4) effectiveness & efficiency; and (5) equity/equality. 53. The UK could assist the Overseas Territories in strengthening good governance by holding a conference between it and the Territories. The conference would be held to develop and set out an agreed set of principles or benchmarks by which individual Territories would measure their progress. Delegations to the conference must include members of opposition parties from throughout the Overseas Territories. This would allow the conference to receive as many views as possible and ensure the proposed principles or benchmarks are not disproportionately in favour of executive power. The standards would be made publicly available so that residents and the UK government could hold Territorial governments to account. The conference would be an opportunity for the Territories to exchange ideas on best practices for smaller jurisdictions, while being facilitated by the good offices of the FCO and benefiting from British technical assistance. The UK could seek the assistance of the Commonwealth Parliamentary Association, which has demonstrated a keen eagerness for reform and raising standards of governance throughout the Commonwealth. 54. Some of the proposals which follow have the potential to be costly. One of the key aims of the proposed conference on good governance would be to assist Bermuda and the Overseas Territories to identify areas of duplication so that these and other good governance initiatives could be modified to avoid any unnecessary increases in costs.

Reply to the Throne Speech. Royal Gazette.19 November 2011. http://www.royalgazette.com/article/20111119/COMMENT05/711199974/-1 14

ELECTORAL REFORM 55. In respect of electoral reform, the matters touched upon in the following paragraphs are of concern to a growing number of Bermudians. They should be of interest especially to the UK, and we anticipate that electoral reform in general would be a subject of the conference for good governance recommended in the previous paragraph. 56. The One Bermuda Alliance believes that proportional representation (PR) is something which Bermuda may wish to consider in future. In favour of such a reform, it could be said that PR would provide electoral outcomes in direct line with the will of the people. The adoption of proportional representation may ultimately help shift Bermudas political culture from one of confrontation to one of collaboration. As a possible first step, proportional representation could be introduced to voters as a means by which appointments to the Senate are made. 57. Fixed term elections could be used to prevent politicians from cynically manipulating general elections when it is advantageous to them. They also allow voters to know with certainty when they are next expected to go to the polls. As our leader indicated in his recent reply to the Throne Speech, we should *t+hink of fixed term elections as the peoples deadline.9 Western Australia became the most recent common law jurisdiction to introduce fixed terms.10 This trend is clearly in keeping with any commitment to good governance. 58. In addition, fixed-term Parliaments can be preceded by a mandatory re-registration period 6-12 months before an election was due. The need for accurate lists is critically important in a small jurisdiction like Bermuda. Swing seats are won or lost by as few as 7 votes and a critical number of seats by no more than 50 votes. We and the Parliamentary Registrar are aware that, on average in each constituency, about 10 percent of voters are incorrectly registered. These individuals mostly live in one constituency but are registered in another. Holding re-registration every 4 to 5 years represents an excellent best of both worlds by avoiding the inconvenience and expense of annual re-registration, which was characteristic of Bermudian elections before 1999, and by ensuring as accurate a voters list as possible for election day. 59. The apparatus by which elections are governed and monitored in Bermuda should also be strengthened. This can be achieved by creating a new Electoral Commission. Electoral Commissioners would be completely non-partisan; they would not be members of any registered political party, nor have been active either as a member, volunteer, employee or donor for a certain period of time immediately prior to their appointment or throughout their tenure.11 60. There should also be established a Code of Conduct in respect of election campaigns which governs the behaviour of national parties, candidates, their volunteers and agents, and any third parties
9

Ibid. Fixed term election laws pass. The West Australian. 3 November 2011. http://au.news.yahoo.com/thewest/a//breaking/11312255/fixed-term-election-laws-pass/ 11 The corresponding time limit in the UK is 5 years; see section 3 of the Political Parties, Elections and Referendums Act 2000 (UK)
10

15

seeking any influence in the electoral process. The Electoral Commission would be responsible for policing the Code, investigating any breaches, and punishing infractions. The Commission would enjoy the same powers as the Integrity Commission discussed below. 61. The introduction of fixed-term Parliaments and mandatory voter-registration would alleviate many concerns over the accuracy of the electoral register. However, the voter registration process should still be vigilantly maintained to ensure that there are no anomalies with the voting process. Amendments to the Parliamentary Election Act should be made to strengthen the process of dealing with voters who are incorrectly registered to an address. 62. Broader reform to the conduct of elections could also touch upon the following: Registration of political parties; Annual reporting by parties to the Commission; Greater transparency regarding spending, donations and possible limits; or State support, including free, fair broadcasting, during election campaigns and as public service messages in between.

ABSENTEE VOTING 63. Bermuda should adopt a system of absentee ballots for any registered voter off-island at election time. Proposals aimed at plugging this gap have been languishing in Bermuda for many years due to a lack of interest from the government. In line with its commitment to good governance, the UK should press Bermuda and the other Overseas Territories to implement such reforms. This would not only bring our jurisdictions in line with the vast majority of democratic nations, but would also mean that their citizens right to vote is properly ensured. This could be easily and efficiently handled by the introduction of internet and/or postal voting for those who are not present on Election Day.

STRENGTHENING THE INDEPENDENCE OF PARLIAMENT 64. At the core of responsible government is the idea that the executive of the state is directly responsible to the peoples representatives in Parliament. However, with the growth of modern government and party politics, this idea has increasingly come under strain. The One Bermuda Alliance believes firmly that the legislature should never be seen nor treated as another department within the

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executive. We are committed to redressing this balance and strengthening the legislature vis--vis the government of Bermuda. 65. Consideration should be given to the appointment of a politically independent Speaker of the House of Assembly. A Speaker not beholden to any party in the legislature could effectively administer its affairs in the manner envisaged by this section. An independent Speaker is not without precedent. Many Overseas Territories and independent nations presently make such an appointment: Antigua & Barbuda, the British Virgin Islands, the Cayman Islands, Gibraltar, Montserrat, St Kitts &Nevis, St Lucia and Trinidad & Tobago. Indeed, the President of the Senate of Bermuda is also an independent appointee. 66. Bermuda should either by resolution or legislation establish an independent and/or corporate body (which is also bi-partisan in composition) to be responsible for the following: a.
b.

the provision of services and funding entitlements for parliamentary purposes; the administration of the Integrity Commission and Ethics Commissioner provided for in subsequent sections of this submission; and the overall governance of Parliament.

c.

67. Funding for this body should be insulated from the regular budgetary process to further enshrine Parliament's independence. For example, funds can be appropriated in multi-year blocks. More resources than are available at present should be given to Parliamentarians to assist in research and policy formulation. 68. A Library of Parliament should be created. This would be modeled after the similarly named institution in the Canadian Parliament which provides information, reference, and research services to the Members of Parliament.12 Resources and personnel would be made available to Parliamentarians on a non-partisan basis to support them in carrying out their work. 69. Note further that the Canadian Parliamentary Budget Officer (PBO) is an independent officer coming within the jurisdiction of the Library. This office was created out of concern that Ministry of Finance officials were manipulating budgetary estimates for political advantage. The UK recently created a similar institution, the Office for Budgetary Responsibility. In future, Bermuda and the Overseas Territories could consider transferring personnel and responsibility for budgetary and economic modeling from their Finance and Treasury ministries to a local version of the PBO coming under the auspices of the corporate body proposed in paragraph 66. Such an officer could liaise closely with the Public Accounts Committee in its work.

12

The Library of Parliament. Parliament of Canada. http://www.parl.gc.ca/About/Parliament/Publications/LOP/lope.asp. 17

70. Bermuda could make greater use of Parliamentary committees. In accordance with our view that collaboration leads to better solutions, a bipartisan approach should be taken. The recently concluded Joint Select Committee on Crime is an excellent example of how this can work. The people should expect bipartisan arrangements to be a regular feature of our Parliament. 71. Such reforms should start with strengthening the Public Accounts Committee by expanding its functions, providing it with more resources to guarantee its independence, and ensuring it continues to work closely with the Auditor General. A number of other standing committees could be created to have permanent oversight over certain Government Ministries and Quangos. Ad hoc joint select committees should be used liberally. These committees should all be endowed with sufficient resources to carry out their functions (or they could depend upon a newly constituted Library of Parliament, as discussed above), they should be free from any and all interference during the course of their work and deliberations, and they should be given certain powers to assist in their work including, but not limited to, ordering production of documents or compelling witness testimony. Most importantly, meetings of these committees should be open to the public, unless compelling reasons relating to national security requiring that a committee meet in camera. . 72. Other examples of where the role of Parliament could be strengthened include the following: Opposition days there should be a regularly-scheduled number of days allocated in the House of Assembly in each session for the discussion of subjects chosen by the Opposition. Motions by Opposition members would take precedence over Government motions. In the UK, 20 such days are set aside per session (17 for the Official Opposition and 3 for the second largest opposition party). In Canada, 20 days are also set aside, and they are called Supply days. Private Members Bills there should be greater opportunity and resources for certain Parliamentarians to propose private members bills. While this could be achieved in conjunction with dedicated Opposition days, some time could be set aside where a number of parliamentarians are chosen by ballot to introduce bills in each session. Alternatively, a local version of the UK House of Commons 10 Minute Rule could be introduced. Televised proceedings in the legislature by televising proceedings, members of the public can hold their elected representatives more easily to account. The content of debates is made more accessible, and quality of debate improves under the watchful eye of the Bermudian public.

STANDARDS IN PUBLIC LIFE 73. Good governance requires higher expectations from those who serve Bermudians, whether as Premier, Cabinet Minister, Parliamentarian or Civil Servant. To that end, Bermuda should pass Integrity
18

in Public Office Legislation and thereby create an Integrity Commission and Ethics Commissioner.

Combating corruption 74. In addition, allegations of corrupt behaviour have plagued public officials in recent years. If the people are to regain their confidence in governing institutions, and if Bermuda is to maintain its sterling reputation as a place to do business, any and all corruption must be rooted out. Never again should Bermudians be told by prosecutors that public officials have engaged in unethical but not illegal behaviour. Concerns especially have arisen recently relating to the transparency and fairness of the allocation of Government contracts, the hiring of consultants, and the placement of government leases. 75. To that end, our legislation should be updated. Serious consideration should be given to extending to Bermuda the UN Convention Against Corruption. Initiated by resolution 55/61 of the UN General Assembly in 2000, this convention entered into force in late 2005. Representing current international best practices, the Convention addresses in detail the prevention and criminalisation of corruption, the need for international cooperation, and asset recovery as a result of corrupt practices. 76. The Convention currently has 140 Signatories and 158 States Parties, including the UK which ratified it in February 2006. 77. By extending the UN Convention Against Corruption to Bermuda, the UK will be assisting Bermudians to combat the scourge of corruption and corrupt practices as legislation giving effect to the Convention must follow. Taking such a position in respect of the Overseas Territories will also have the effect of raising their global profile and promoting each territory as a place where international investors can do business. 78. The UKs Bribery Act 2010 could be a useful model for Bermuda to begin the process. The Act already touches upon Bermuda by subjecting British Overseas Territories Citizens to its provision should an offence under the Act be established. Any assistance the UK could render following its own experience implementing this Act would be most welcome.

Better Standards - General 79. Integrity in Public Office would involve a regime of transparency and accountability for all those in public office founded upon principles such as those espoused by the UKs Committee for Standards in Public Life: selflessness, integrity, objectivity, accountability, openness, honesty and leadership. 13 Building on these vital principles, detailed and robust codes of conducts should be drafted for all those
13

The Seven Principles of Public Life. Committee on Standards in Public Life. http://www.publicstandards.org.uk/About/The_7_Principles.html 19

who are engaged in public life. These codes would touch upon, inter alia: Theft and fraud; Improper use of public property and spaces; Bribery and influence peddling: Access to public officials; Conflicts of interest and self-dealing; Protection of confidential information; Improper conduct following public employment; and Regulation of other forms of conduct, such as political activities by civil servants There should be general rules of conduct which are applicable to all those who work within the public service of Bermuda, from front-line civil servants and public agents through to the Premier of Bermuda. This could be contained within a general Code of Conduct or within general provisions common to all Codes of Conduct. 80. A number of useful models exist for Bermuda when it comes to establishing our own Codes of Conduct: 81. Canada a. Values and Ethics Code for the Public Service, tabled in Parliament on 21 December 2011, to come in force on 2 April, 2012 (see http://www.tbssct.gc.ca/pubs_pol/hrpubs/tb_851/vec-cvetb-eng.asp). 82. UK a. Code of Conduct for Members of the House of Lords, updated and published in November 2011 (see http://www.publications.parliament.uk/pa/ld/ldcond/code.pdf) b. House of Commons the Code of Conduct, updated and published in June 2009 (see http://www.publications.parliament.uk/pa/cm200809/cmcode/735/73501.htm)

20

83.

Australia a. Australia Public Service Code of Conduct (see http://www.apsc.gov.au/conduct/index.html) b. Standards of Ministerial Ethics, updated and published in September 2010 (see http://www.dpmc.gov.au/guidelines/docs/ministerial_ethics.pdf) c. In addition, the Australian Public Services Commission publishes an extensive website on the Foundations of Governance in the Australian Public Service (see http://www.apsc.gov.au/foundations/index.html)

Parliamentarians 84. Our Parliamentarians should lead the way and adhere to the highest of standards. While there are some Rules which govern the behaviour of MPs inside the House of Assembly, the enforcement of which is left to the Speaker or chairperson at the relevant time, there is little else by way of regulation. A robust Parliamentarian's Code of Conduct should be put in place which covers a wide range of behaviour, both within and beyond the Parliamentary chamber. 85. There is currently a Register of Members' Interests (the Register) under which Parliamentarians members are expected to voluntarily disclose required, relevant financial assets and holdings. The Clerk to the Legislature maintains the Register but there is no sanction should a member decline to make disclosure. 86. The Register and obligations relating thereto should be entrenched under the Constitution and should occupy an integral role within the Parliamentarian's Code of Conduct. Obligations of disclosure to the Register should be made mandatory rather than voluntary. Punishments should be meted out to offending members who decline to make disclosure or who make incomplete disclosure. 87. The Rules of the House of Assembly provide that no member shall vote on any question in which he has a direct or pecuniary interest, peculiar to such member as distinguished from the public at large. Members are expected to voluntarily disclose that interest or be challenged by any other member prior to any vote. The Speaker then rules whether or not the member can vote. 88. Disclosure of interests is presently required under the Constitution with respect to government contracts, the relevant two sections of which read as follows: 30 (6) Subject to such exceptions and limitations as may be prescribed by the Legislature, a person shall not be qualified to be elected as a member of the House of Assembly if he has an interest in any Government contract and has not, within seven days of his nomination as a
21

candidate for election, disclosed the nature of the contract and his interest therein by means of a notice published in the Gazette or in a newspaper published and circulating in Bermuda. 31 (1) The seat of a member of either House shall become vacant(f) subject to such exceptions and limitations as may be prescribed by the Legislature, if he acquires an interest in any Government contract and has not, within seven days of acquiring that interest, disclosed the nature of the contract and his interest therein by means of a notice published in the Gazette or in a newspaper published and circulating in Bermuda. A number of exceptions and limitations are prescribed by section 10 of the Legislature (Qualification and Disqualification) Act 1968 (the 1968 Act). At present there is no established independent mechanism for oversight and enforcement of the disclosure obligations contained in the proceeding paragraphs. The potential for conflict is likely in a small community like Bermuda where Parliamentarians are typically part-time and are permitted to pursue their private business interests and professions during their tenure in office. It is our proposal that enforcement of these obligations would fall upon the Integrity Commission and Ethics Commissioner discussed below.
89.

Cabinet Ministers 90. Cabinet Ministers will automatically be covered by the ethical obligations applicable to Parliamentarians. However, owing to the special position they occupy within the public service, more onerous obligations still should apply to these individuals. 91. A register of Ministerial expenses should be maintained and made publicly available for scrutiny.

92. Strict rules regulating the distinction between full-time and part-time ministers should be created and criteria clearly set out assigning ministers into either category. The general rule should be that those who become full-time ministers be prohibited from receiving financial benefit relating to any professional endeavour within the private sector. Appropriate exceptions to this can be put in place. 93. Those owning shares in a company which could put the Minister in any actual or perceived conflict of interest should be required to divest themselves of those shares or to place them in a blind trust. 94. All Ministers should be barred from accepting any gifts at or above a certain financial value. Gifts below such a value should be reported to the Integrity Commission from individuals or companies within or beyond Bermuda which could place the Minister in any actual or perceived conflict of interest.

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95. The relationship between Ministers and Civil Servants should be properly defined and policed so as to safeguard the independence and non-partisan nature of the latter. Civil servants must not be ordered to do any deed or engage in any conduct which is properly within the domain of the ruling political party. An example of such would be to prepare ministerial statements which centre less on explaining government policy than on partisan attacks. Any breach of this principle may warrant punishment by both the offending Minister and Civil Servant. However, any punishment meted out should reflect the asymmetric power dynamic between the two positions. 96. Ministers should not ask or pressure another Parliamentarian or a Civil Servant to do any deed or engage in any conduct with the intention or effect that he or she would breach any ethical obligations placed upon them by their respective Codes of Conduct.

Civil Servants and Public Agents 97. Civil servants and public agents should be covered under any proposed integrity in public office legislation. The enforcement procedure arising under such legislation would apply as much here as it would to parliamentarians and cabinet ministers. 98. Ethical obligations which would apply to those within the traditional Civil Service should extend to those who directly or indirectly could be said to be agents of the public service. This would include employees of private companies contracted by the government who provide services to the public or who would otherwise perform a role uniquely of a public nature. 99. Certain public employees are covered by the Conditions of Employment and Code of Conduct (CECC). However, civil servants should be subject to an ethics regime whose robust nature is comparable to those of Parliamentarians and Cabinet Ministers. Many of the aforementioned submissions should be incorporated into a new Code of Conduct for Civil Servants with such adjustments as are appropriate. Particular emphasis should be placed on protecting the independence and integrity of public servants and public spaces.

Government Boards 100. As with civil servants and public agents, members of government boards should be covered under integrity in public office legislation and subject to the same enforcement procedures. 101. Appointments to government boards should be opened up and placed on a more meritocratic footing. While some constituting statutes for certain boards place certain standards constraining appointment (e.g. the Immigration Appeal Board requires some legal expertise), Ministers appear able to fill public boards at will. There is little public scrutiny of the actions of many of these boards, and
23

there are precious few opportunities for some members of the community to put themselves forward for consideration. This state of affairs runs the serious risk that government boards become instruments for political patronage. 102. The general process for appointment should include a public application and publicly available criteria for appointment; all members of the community would be able to put themselves forward for public service and the influence for partisan appointment is thereby diminished. However, there may be appropriate exceptions to be made. It is also our view that we must come to a position where no political party instructs any of its members not to serve on boards. 103. Transparency should be a defining characteristic of the conduct of these boards. While it may not be practical or desirable to conduct all meetings in public, there should be made available some record of proceedings and decisions taken by these boards. 104. A scaled down version of the Civil Servants' Code of Conduct should be enacted to cover the conduct of government board appointees. Particular focus should be placed on avoiding any conflict of interest which could arise during the course of any decisions being made by the appointees.

Transparency and Openness 105. Vital to enforcing accountability is the need for transparency and openness. If ethical rules are broken, transparency allows us to know when such violations are taking place. Public officials should never be able to hide or keep secret their behaviour if the public are to maintain the highest of confidence of public institutions. 106. Firstly, public officials will be subject to strict disclosure requirements. As an example, the Register of Members Interest provides information of any pecuniary or material benefit any member of the legislature receives which may be though to influence that members conduct in office. This Register should be strengthened and the scope of those covered by it could be expanded. 107. All Codes of Conduct should be publicly available so that public officials can be judged by the public. 108. Whistle blower legislation is a must for ensuring openness by alleviating any fear of reprisal by those who witness unethical behaviour in the public sector. Bermuda introduced changes to its Employment Act 2000 which aims at giving some whistle blower protection. These provisions should be extended to allow for further protection of disclosure relating to any ethical violation arising from the above reforms. Indeed, consideration should be given to imposing a duty to report any perceived criminality or unethical behaviour.

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109. Public disclosure should be the default setting relating to the public service. Registers as outlined above, findings of government reviews, reports and investigations, etc, should be made available to the public and media as a matter of course, and only in exceptional circumstances should this principle be departed from (e.g where national security or an internal investigation would be prejudiced). 110. Finally, as an ultimate means of enforcing disclosure, it is vitally important that members of the public can enforce timely access to information from those who serve Bermudians. The Public Access To Information Act 2010 has been passed in Bermuda; however, we have concerns that this legislation continues to remain inoperative. 111. A recent example of how this principle has not been honoured concerns the accountability and transparency of the Bermuda Monetary Authority (the BMA). Details of the operations of the BMA, including such matters as executive remuneration, have not been publically available. It is vital that public bodies such as the BMA be accountable to the people of Bermuda, both through its representatives in Parliament and through public access petitions. We do not believe that such transparency and accountability would affect the operational independence of the BMA. 112. Parallel to the need for transparency is the need to protect the sensitive information of members of the public in their interaction with the public service. The privacy of the citizen is of paramount concern. Confidential information and computer data will need to be secured and protected.

Enforcement All those in public life must be held accountable. The One Bermuda Alliance would recommend the creation of an Integrity Commission and an Ethics Commissioner which would be responsible for policing the need for better standards in public life. Parliamentarians, the Premier, Cabinet Ministers, civil servants, public agents and board members would be subject to the regime envisaged. Legislation would distribute between the Commission and Commissioner responsibility for:
113.

Provision of advice and recommendations for improvement by way of annual and/or ad-hoc reports to the legislature; Administering Public Access to Information requests; Protecting confidential data; Maintenance of the Members Register of Interests; Investigation and adjudication of any alleged unethical conduct by anyone in public office, including wide powers to compel documents and summons witnesses; and
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Punishment of unethical conduct, including by way of public censure, fine, and/or recommendation for criminal prosecution.

AUDITOR GENERAL 114. The Auditor Generals office must be held in the highest regard as an autonomous institution which can hold Government financially accountable. Key to this goal, sufficient resources should be granted to the office so that it is able to conduct its work effectively. 115. The Auditor General should have the power to compel disclosure of all documents within the control of public officials, and the results of all audits and reports should be made public as soon as is practicable. Any attempts to derogate from these principles by the Government should be referred to an impartial third party such as the courts or the above-proposed Integrity Commission. Unfortunately there were no reports published by the Auditors office in the second half of 2011 due to issues of the functioning of the Audit Committee.

EMPOWERING THE PEOPLE 116. Many of the preceding recommendations have at their centre a commitment to empowering the people of Bermuda to take control of their political processes and institutions. This objective could be further by introducing greater use of referenda and popular initiatives, and by giving the people the power to recall Parliamentarians. 117. Finally, the people can be empowered by ensuring equal rights and protections for everyone within our community on equal terms, as outlined in subsequent sections.

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SECTION IV - THE ECONOMY

FINANCIAL MANAGEMENT 118. While Bermuda has traditionally been very fortunate in terms of our economic output and productivity, we are nevertheless currently facing tough times. It is a testament to the work and foresight of previous generations and governments that we have a solid foundation for solving the current predicament we find ourselves in. 119. Bermudas declining economic position, particularly with respect to the ballooning national debt, is because of poor financial planning and Government overspending. This has resulted in increased unemployment and a depressed economy affecting all Bermudians. 120. The current government persists in laying the blame for our current economic challenges exclusively on the world wide recession. In reality, it is poor financial management that has led to the governments current account deficits and unsustainable growth in Bermudas public debt. The good governance initiatives proposed throughout this submission paper would go a long way towards preventing the reckless disregard for the public purse that has been characteristic of Bermuda in recent years. 121. Problems relating to over budget expenditures long preceded the onset of the global banking crisis in late 2008. Instead of building its reserves during the good years, the government increased its debt and thus was unable to respond appropriately as the economy softened. As a result, untold numbers of Bermudians lost their jobs, and an exodus of international business has taken hold. 122. The position of international business has been further exacerbated by the growth in regulation on business, higher levels of taxation, and the inefficiency of our work permit programme. 123. Standard & Poors (S&P) recognised this dire situation when it downgraded Bermudas long-term sovereign rating from AA to AA- in December 2011. This is the first time Bermuda has seen its rating change since achieving its AA rating in the early 1990s. The UK knows firsthand the necessity of keeping borrowing costs down; despite the current economic climate, it has managed to maintain its AAA rating with S&P. This was so because of its credible medium- to long-term plan to address its own deficit and debt-levels. The government of Bermuda could learn a lesson here. 124. It is our submission that poor financial management on the part of the present administration is one of the biggest challenges facing Bermuda today. This should especially be a concern to the UK as it is always conscious of reducing any contingent liability arising from its Overseas Territories. 125. If the government of Bermuda is committed to meeting the current economic challenges, then it must reign in government spending, punish those who abuse the public purse, curate a newfound sense of accountability in respect of public expenditures, and address the very real concerns of the people and industry in Bermuda.
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PROTECTING BERMUDAS FINANCIAL INDUSTRY 126. The UK is currently negotiating with other members of the European Union as it tries to address the expanded regulatory reach of Brussels over British interests. Prime Minister David Cameron has sought to safeguard British interests by vetoing a proposed new treaty in December of 201114, and central to the UK government has been the need to protect the City of Londons financial industry. Notwithstanding the current economic downturn, the City remains a major contributor towards the UKs employment and economic well-being. 127. Bermudas offshore financial industry plays a similar role to the economic well-being of Bermuda. The One Bermuda Alliance asks that the UK, in a similarly robust manner, seek to protect the offshore financial industries of the Overseas Territories. It is vital that in respect of any negotiations the UK enters into, either with its EU or other international partners, teams representing the UK should be briefed about the particular interests of the Overseas Territories. It may also be that the UK should allow attachments from the Overseas Territories in any such negotiations. 128. It is also important that, if the UK remains committed to the Overseas Territories, efforts to promote the City of London as a financial centre should not work at cross-purposes with efforts to promote Bermuda.

14

David Cameron blocks EU-wide deal to tackle euro crisis. BBC News. 9 December 2011. http://www.bbc.co.uk/news/uk-16104275. 28

SECTION V - CRIME 129. While crime occurs everywhere, the surge in gang-related violence in recent years has given the people of Bermuda cause for serious concern. Gang-related gun attacks occur on a regular basis. Bermuda has been slow to respond to the spread of gang culture and gun violence. 130. Thankfully, the Bermuda Police Service is now taking the fight to gangs and the One Bermuda Alliance supports their efforts. This is a complex challenge that must be addressed through investments in education, job-training, after-school programmes and partnerships with community and church leaders. It is also an area in which cooperation between the UK and Bermuda (and the other Overseas Territories) could produce results.

OPERATION CEASEFIRE 131. The One Bermuda Alliance has championed importing Operation CeaseFire to address gangrelated problems on the Island. The programme, which has recorded dramatic successes in American cities, focuses on identification and detection, intervention and risk reduction, then finally changing behaviour and peoples norms.15 In our research, we are well aware that all such programmes have been tailor-made to each jurisdiction in which they have been introduced. Bermuda needs to do the same. 132. The One Bermuda Alliance is pleased that the current government has committed to rolling out Operation CeaseFire this year.16The UK could assist Bermuda and other Overseas Territories who may themselves be interested in the programme either with resources or technical assistance of some form. Should any other Overseas Territory in future import Operation CeaseFire itself, then perhaps this could be the springboard for future collaboration amongst the Overseas Territories.

THE DOUBLE JEOPARDY RULE 133. The One Bermuda Alliance proposes that the prohibition against double jeopardy contained in section 6(5) of the Constitution be removed in cases where new and compelling evidence arises. Specifically, the Constitution must allow a legislative regime comparable to part 10 of the Criminal Justice Act 2003 (UK).

15

For more information: CeaseFire founder is ready to help tackle gang problem. The Royal Gazette. 18 October 2011. http://www.royalgazette.com/article/20111018/NEWS03/710189955. 16 Operation CeaseFire should be operating by the Spring. The Royal Gazette. 23 December 2011. http://www.royalgazette.com/article/20111223/NEWS03/712239943 29

th

Part 10 relaxed the age-old double jeopardy rule in England & Wales and was inspired by the brutal killing of Stephen Lawrence in 1993. Mr Lawrence was killed in a racist attack. 5 suspects were originally arrested. Charges in respect of 3 were later brought to court but were dismissed on the basis of weak identification evidence. Later forensic evidence emerged linking these suspects to the original murder, and 2 were found guilty following a retrial at the Old Bailey in late 2011/early 2012. The original investigation and prosecution have attracted much attention leading many to argue they were mishandled from the very beginning.
134.

The relaxation of the double jeopardy rule in England followed recommendation by a judicial inquiry into the Lawrence murder headed by Sir William Macpherson and similar recommendations by the Law Commission of England & Wales and the Auld Inquiry into the English criminal justice system.
135.

Bermuda has its own unfortunate account of a cold case demanding justice, and it very much follows a similar trajectory to that of Stephen Lawrence. The Canadian teenager Rebecca Middleton was brutally raped and murdered while on vacation to Bermuda in 1996. Two suspects were initially arrested. The charge for murder against one suspect was wrongly dismissed, while the other suspect, who received a 5 year sentence to being an accessory after the fact following a plea bargain, should have faced more serious charges. At no stage during the original investigation or prosecution were sexual assault charges considered.
136.

In 2006, the DPP gave consideration to laying fresh charges of sexual assault against the two suspects. She decided against the charges citing legal principles preventing a successful outcome should the Crown have brought the matter to trial. Her decision was subsequently upheld in judicial review proceedings in 2007.17
137.

Section 17B of the Court of Appeal Act1964 (Bda) was a step in right direction. That section allows a court to revisit a previous acquittal for murder or premeditated murder where new and compelling evidence comes to light subsequent to trial. In our opinion, limiting this to murder and premeditated murder is insufficient and these provisions should be extended to cover a wider scope of serious offences, including sexual assault. Furthermore, despite being sound policy and reflecting best practices in the UK, we have concerns as to whether this section would withstand constitutional challenge. It is for this reason that the One Bermuda Alliance has recommended a relaxation of the rule against double jeopardy.
138.

Just as the Lawrence family finally saw justice this month, so too can the Middleton family see Rebeccas killers be brought to justice. Together with any fresh evidence, legislation akin to Part 10 of the Criminal Justice Act 2003 would allow a different outcome in her case.18
139.

17

Chief Justice upholds Middleton ruling. Royal Gazette. 5 May 2007. http://www.royalgazette.com/article/20070505/NEWS/305059957 18 The matter was considered in the ruling of the Chief Justice in the judicial review proceedings mentioned in the text. See D Middleton v Director of Public Prosecution [2007] SC (Bda) 33 Civ (4th May 2007) at paragraph 49 (the full judgement can be found online at http://www.gov.bm/portal/server.pt/gateway/PTARGS_0_2_10809_204_226633_43/http%3B/ptpublisher.gov.bm %3B7087/publishedcontent/publish/non_ministerial/judiciary/judgments___legal_references/33a.pdf). 30

PROSECUTION RIGHT OF APPEAL 140. At present the right of the prosecution to appeal against final and terminatory rulings following trials on indictment is more restricted than that of an accused. With the exceptions of cases of murder and premeditated murder,19 decisions by judges to direct a verdict of acquittal or to exclude important pieces of evidence cannot be challenged. Even legally unsound decisions cannot be challenged. Together with the prohibition against double jeopardy, the practical consequence is that individuals who may pose a risk to the community can never again be brought to justice for certain offences. This lacuna in the law must be addressed. Ideally, a statutory regime similar to Part 9 of the Criminal Justice Act 2003 (UK) should be adopted in Bermuda. Those provisions provide for a toolbox of powers for general prosecution rights of appeal and rights of appeal in respect of evidentiary rulings. They clarify the powers of higher courts during the course of appeal and provide safeguards protecting the accused coming through the appellate system.
141.

At a minimum, the prosecution should be given comparable powers to that it has in respect of summary appeals to the Supreme Court. Section 4 of the Criminal Appeals Act 1952 (Bda) allows the prosecution to appeal upon points of law where an information is dismissed or where there is any decision in law made leading to an convicted person being treated in a certain way. A similar power should be extended to trials on indictment, modified to allow such an appeal where leave is given by the Court of Appeal.
142.

INTER-AGENCY COOPERATION 143. Now that Bermudians have access to UK passports and can move freely throughout the UK, there is a greater need for cooperation amongst law enforcement agencies between the two countries. Targeted access to the UKs Police National Computer and the UK Border Agency files and databases should be encouraged to assist the Bermuda Police Service (BPS) in vital intelligence-gathering, with reciprocal rights and privileges to UK-based policing agencies. 144. Inter-agency cooperation could also be encouraged amongst the BPS and the City of London Police and the Serious Fraud Office (SFO) to help develop expertise in investigating white collar crime, and the Serious Organised Crime Agency (SOCA) to help combat organised crime in Bermuda and to assist in implementing the new Extradition regime recommended in the next section, as SOCA is the central authority managing extradition requests in England, Wales and Northern Ireland.

19

See section 17B of the Court of Appeal Act 1964 (Bda) 31

145. Finally, the UK might give thought to assisting in developing and formalising various secondment programmes for law enforcement and prosecuting officials from the Overseas Territories to help them develop indigenous technical knowledge and to lessen the need to rely on expatriate officials in future years.

EXTRADITION ACT 2003 146. At present, the UKs Extradition Act 1989 is the law governing extradition to and from Bermuda (see the Extradition (Overseas Territories) Order 2002). The UK should give thought to extending its Extradition Act 2003 to cover the Overseas Territories instead. 147. The key innovation of that Act laid in giving effect to the European Arrest Warrant (EAW) scheme, as required by 2002/584/JHA: Council Framework Decision of 13 June 2002, and to the US-UK Extradition Treaty of 2003. The 2003 Act divides all territories to which the UK will extradite suspected or convicted individuals into two groups; category one territories are governed by Part 1 of the Act and generally overlap with EU countries and other advanced democracies, while category two territories, governed by Part 2 of the Act, comprise those not coming within category one. 148. While procedures similar to those under the 1989 Act are in place in respect of category two territories, Part 1 of the 2003 Act introduced a streamlined process to make it easier to extradite wanted individuals from the UK (a process which is mirrored throughout the EU). The purpose of this is to encourage greater cooperation on matters of criminal justice, and the ease with which individuals can be extradited reflects the increased mobility within the EU. Furthermore, as all category one territories adhere to a minimum standard of fundamental rights and freedoms for those accused of criminal offences comparable to those standards found in the UK, there is no reason in principle why those arrested on an EAW shouldnt be extradited as soon as possible. 149. Extending the 2003 Act would allow Bermuda to take part in the EAW Scheme. Furthermore, the UK and Bermuda may wish to extend the US-UK Extradition Treaty to Bermuda as well since the United States is also a key location for Bermudian fugitives of justice. However, the UK should also include Bermuda and the Overseas Territories in its list of designated category one territories to make extradition to Bermuda easier by amending the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003/3333. 150. By extending the 2003 Act to Bermuda and the Overseas Territories and categorising Bermuda as a category one territory, this would be a vital way in which the UK could encourage cooperation amongst the OTs and itself. It is a logical next-step given the extension of citizenship rights in 2002. It would make it easier to those who commit crimes in Bermuda and the Overseas Territories to be brought to justice. Those white collar criminals wanted in the UK, Europe or the USA could not escape by flight to Bermuda or any Overseas Territory; this could help improve Bermudas reputation as an offshore business jurisdiction.

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SECTION VI - HUMAN RIGHTS 151. The UK noted in 1999 that the Human Rights record of many Overseas Territories was positive, but that further work was needed to ensure compatibility with the commitments which Britain made on their behalf. The One Bermuda Alliance believes that this statement holds true today in 2011. 152. Bermudas legal framework should always be reviewed and updated or so as to ensure equal rights and protections for everyone within our community on equal terms.

CITIZENSHIP 153. Reacting to the sense of grievance by some residents in the Overseas Territories at the loss of historical UK citizenship rights and responding to the feeling of Britishness held by many, the UK extended full rights of citizenship to all the Overseas Territories. The legislative changes giving effect to this were contained in the British Overseas Territories Act 2002. 154. This was the highest profile reform coming out of the 1999 White Paper process, and rightfully so. It has also been a strong success. Many Bermudians are taking advantage of these new rights seeking to study, live, work and compete in sport in the UK and throughout the European Union. 155. The One Bermuda Alliance supports the continuation of this policy. It is our belief that access to UK citizenship is very important to the people of Bermuda. We ask the UK to continue to do everything it can to maintain and enhance these rights. Before any changes are made in future, we would ask the UK to engage in bipartisan consultation within the Overseas Territories.

AGE DISCRIMINATON 156. The One Bermuda Alliance supports any efforts to outlaw age discrimination, and were it the party in power, it would introduce an amendment to the Human Rights Act to give effect to this important principle. The present government has made various promises in recent years to do just that, but the issue remains outstanding.

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GENDER DISCRIMINATION 157. Section 12 of the Constitution prevents the enactment of any law which is discriminatory either of itself or in its effects. Subsection (3) expands upon the grounds of discrimination for the purposes of this section. However, gender is not present as a prohibited ground of discrimination. We believe the UK should permit changes to section 12 to prevent such discrimination. Prohibiting discrimination on the basis of gender would have the positive effect of encouraging the equal treatment of males and females in the content and application of laws in Bermuda.

CONSCRIPTION 158. The policy most likely to be affected by the change suggested in the previous section would be male-only conscription to service in the Bermuda Regiment. Many have served their community with honour. However, we must ask if the model currently in place is serving us well. To that end, the One Bermuda Alliance feels that the time is right to examine whether male-only conscription can be justified in the 21st century and to explore alternative avenues by which young Bermudians can serve their community. 159. In light of our recommendation to include gender discrimination within section12 of the Constitution, the status quo cannot hold. It may be that the best solution is to introduce a proviso that specifically saves regimental service from constitutional attack. However, our sympathy is with the youth of our community. We must have an honest debate about whether or not young Bermudian males should continue being forced to serve.

SEXUAL ORIENTATION 160. The issue of sexual orientation is a troubling one for some in Bermuda and the Overseas Territories. In the past, the UK had expressed concern about the lack of protections provided to some engaged in consensual homosexual activity. Bermuda has been in this respect a trailblazer for Overseas Territories having decriminalised homosexual acts between consenting adult males in 1994.20 161. Today, the issue of discrimination remains to be resolved. The One Bermuda Alliance is committed to non-discrimination within its constitution and includes sexual orientation as a prohibited ground for discrimination for membership.

20

Criminal Code Amendment Act 1994 (Bda) 34

162. Although we are not clear as to the reason why the matter is being dealt with by separate legislation, in its recent Throne Speech, the government of Bermuda committed itself to assessing the feasibility of introducing an Equality Act.21 We are in principle supportive of such efforts by the government, but we wait to see the result of any developments on this file.

RIGHTS-COMPLIANCE REPORTS FOR LEGISLATION 163. When proposing legislation, governments in both Canada and the UK are required to specifically consider the human rights implications of all government bills before presentation in their respective Houses of Commons. In Canada, the requirement is enshrined in s 4.1 of the Department of Justice Act 1985 which requires the Federal Justice Minister to scrutinise every Bill to be presented to the Commons by a Federal Minister, and every statutory instrument to be registered with the Clerk to the Privy Council, specifically to ascertain whether the proposed legislation is compliant with the purposes and provisions of the Canadian Charter of Rights and Freedoms. In practice, this takes the form of appending a report flagging any human rights compliance issues to the proposed Bill or statutory instrument for debate in the House of Commons. The relevant Minister will often have to justify any view that the proposed measure is compliant.
164.

In the UK, a Minister is similarly required to examine any proposed Bill by section 19 of the Human Rights Act 1998 to ascertain whether the legislation is compliant with rights contained in the European Convention of Human Rights and to issue a statement of compatibility with those rights before Second Reading.
165.

166. A similar requirement should be introduced in Bermuda to ensure that some appropriate legal scrutiny is applied to all proposed statutory measures. By appending even the briefest of compliance reports, this process will highlight any issues for debate by Parliamentarians and provide for better scrutiny of legislation. Ministers and their drafters will clearly have to think about such as issues as whether the proposed measure is rationally connected to the mischief being remedied, whether its justifiable in a free and democratic society, and whether the means chosen for alleviating the mischief is proportionate.

21

Let us build one another, together. Royal Gazette. 4 November 2011.http://www.royalgazette.com/article/20111105/COMMENT05/711059981. 35

SECTION VII - THE ENVIRONMENT 167. The natural environment of the Overseas Territories is a rich heritage. However, they face specific challenges relating to their small size.

PROTECTING OUR OPEN SPACES 168. Sustainable practices to protect our natural surroundings are necessary, including curbing the use and abuse of special development orders (SDOs). To assist in reaching sustainability, future governments should encourage greater development of brown field sites. Bermuda and the Overseas Territories, together with help from the UK, should put in place 5-10 year plans for greater urbanisation of our cities as a means to protect green spaces and to develop and utilise more efficient services and infrastructure. 169. In respect of SDOs, there is the continuing problem of Ministers of the Environment ignoring the advice of their technical officers and independent inspectors when considering appeals in the case of politically-connected person. This problem is particularly acute in small jurisdictions such as Bermuda and the other Overseas Territories. Once the good governance initiatives proposed are fully realised, this problem should be alleviated.

PROTECTING OUR MARINE HERITAGE 170. The government of Bermuda proposes to establish an international shipwreck exploration industry as a possible new revenue stream for Bermuda. The government proposes that the UK render assistance in this regard. The One Bermuda Alliance has concerns about this and asks the UK to resist acceding to such a request. This proposal goes against the regulatory regime established in Bermuda and current international best practice. The Bermuda Historic Wrecks Act 2001 was based on and is in accordance with the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage.
171.

172. The UNESCO Convention sets out basic principles for the protection of underwater cultural heritage by providing widely recognized practical Annexed Rules for the treatment and research of underwater cultural heritage. The main principles are the obligation to preserve underwater cultural heritage; in situ preservation as a preferred option; no commercial exploitation of cultural heritage; and the training of underwater archaeology and sharing of information. It is strongly supported by underwater archaeologists worldwide and expected to be universally ratified in the near future.

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173. Notwithstanding the speculative nature of the Governments hope and expectation, the One Bermuda Alliance strongly opposes any proposal which would threaten Bermudas valuable marine heritage.

PROTECTING OUR OCEAN WATERS 174. Bermudas exclusive economic zone is a vast area extending 200 nautical miles out to sea. This translates to over 125,000 square miles of ocean that must be patrolled. This is clearly a major task for any country to undertake, much less a small community such as Bermuda. 175. The One Bermuda Alliance would ask that the UK provide assistance in this endeavour. This is the sort of task the Royal Navy or the Maritime and Coastguard Agency, together with the assistance of the Bermuda Police Service, marine section and the Bermuda Regiment, would be suited for. While helping to protect our environment and marine heritage as envisaged above, it has the added benefit of tackling crime by way of maritime smuggling and illegal fishing by non-Bermudian vessels.

PROTECTING OURSELVES FROM CLIMATE CHANGE 176. Bermuda has been a world leader on oceanic research thanks to the presence of such worldclass institutions as the Bermuda Institute of Ocean Sciences. Key research has been undertaken into the waters around Bermuda and vital long-term series studies play a key role globally in understanding the impact of climate change. A view to providing any assistance to these vital endeavours should be taken by both Bermuda and the UK. We also flag this as a potential area of cooperation amongst the Overseas Territories.

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