Written evidence from Peter Sanderson and Saul Dismont (OTS0081)

SUBMISSIONS ON THE FUTURE OF THE OVERSEAS TERRITORIES

About the authors

1. Peter Sanderson is a barrister and attorney originally from the UK, married to a
Bermudian and has a Bermudian child. He is called to the Bar of England & Wales and
the Bermuda Bar, and is the head of litigation at Benedek Lewin Limited, a Bermuda law
firm. His practice includes litigation in the areas of public law, constitutional law and
human rights / fundamental rights and freedoms. He has appeared in dozens of cases
before the Bermuda Supreme Court and Court of Appeal, with cases reported in
international legal journals such as Law Reports of the Commonwealth and West Indian
Reports. Some highlights include the following:

Minister for Home Affairs v Carne1 - setting a precedent allowing around 1,000 long-
term residents who had lived in Bermuda for over 25 years, along with many of their
children who were in many cases born in Bermuda, to finally obtain Bermudian
status.

Minister of Home Affairs v Williams2– establishing that non-Bermudian Belongers in

Bermuda cannot be treated worse than Bermudian Belongers in terms of being able to
work without a permit.

Minister of Home Affairs v Barbosa3 – concerning the rights of a British Overseas

Territories citizen born in Bermuda to work or reside in Bermuda without a permit –
currently on appeal to the Privy Council.

2. Saul Dismont is a Bermudian barrister and attorney and is called to the Bar of England &
Wales and the Bermuda Bar. He is an Associate in the Litigation and Advice Team at the
Bermudian firm, Marshall Diel & Myers Limited. He has appeared in all levels of court
in public law matters, constitutional law, human rights and criminal law. He has

1 (2014) 84 WIR 163

2 [2016] 5 LRC 154
3 [2016] CA (Bda) 28 Civ

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 regularly represented children and vulnerable adults in the Supreme Court and
Magistrates’ Court, including ‘Special Courts’, such as Family Court, Juvenile Court and
Mental Health Treatment Court. His cases include:

Human Rights Commission and Childwatch et al v Attorney General et al4 - Settling

that children must be appointed litigation guardians in the vast majority of cases
falling within the specified proceedings under the Children Act 1998 and that a failure
to fund the provision will often result in the breach of a child’s constitutional rights.

Somner and Tucker v the Queen5 - Establishing Bermuda’s first DUI court, as it was
ruled that (i) the sentencing provisions of the Criminal Code Act 1907 apply to road
traffic offences, (ii) Drug Treatment Court is a sentencing option for road traffic
offences and (iii) substance misuse for the purpose of Drug Treatment Court includes
alcoholism.

Re: A child involved in divorce proceedings6 - The first time an attorney and a
litigation guardian were appointed to represent a child in the Supreme Court.

Re: A child involved in care proceedings in the Family Court7 - The first time an
attorney and/or a litigation guardian were appointed to represent a child in the
Magistrates’ Court.

Introduction
3. These submissions to the Select Committee focus on the issue of governance of overseas
territories and adherence to human rights frameworks, from the authors’ experience in
Bermuda. Two cases are put forward; firstly, for a legal aid fund to be provided and
operated by the UK for the purposes of public law litigation in overseas territories, and
secondly, for the Bermuda Constitution (and those of other overseas territories) to be
amended to contain the same rights and protections available under the UK Human
Rights Act 1998.

4 [2018] SC (Bda) 54 Civ

5 [2016] SC (Bda) 81 App
6 (2015) SC (Bda) (unreported)
7 (2014) Family Court (unreported)

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4. As Bermuda is the most populous overseas territory, it is hoped that the points raised are
significant regardless of their relevance to other territories. However, as one contention
is that the small population of Bermuda creates challenges in ensuring protection of
human rights, it is believed that these points will also be of relevance to the other
overseas territories. All of which have even smaller populations.

Access to justice in Bermuda to ensure good governance and protection of human rights
5. First, the good news. Bermuda has a robust court system that upholds and enforces
fundamental rights protected by the Bermuda Constitution and the Bermuda Human
Rights Act 1981. Further, although international conventions and treaties such as the
European Convention on Human Rights (“ECHR”) have not been incorporated into
Bermuda law, our courts interpret domestic statutes as far as possible so as to conform to
Convention rights, and there may in certain circumstances be a legitimate expectation
that public authorities will not act in a manner inconsistent with an international treaty
applicable to Bermuda.8
6. However, there are two major weaknesses of the legal system in Bermuda (and,
presumably, other overseas territories): access to justice and protection of fundamental
rights, particularly for the most vulnerable.

Legal aid
7. There is a lack of resources available to litigants to hold the authorities accountable when
it is believed they have acted unlawfully. Although Bermuda has a legal aid scheme, it is
only available to those who have a disposable household income of less than $18,000 per
year.9 This means that if the combined disposable income of all the occupants exceeds
$18,000 per year, no one in the household will be granted legal aid, even if they are a
vulnerable adult, a child, or an adult with no income.
8. Due to the extremely high cost of living, many households can be occupied by three
generations of a family or adult siblings and their children. Though such households are
commonly struggling financially, having an income stream from just one person can be
enough to bar every other inhabitant from obtaining legal aid. The rationale appears to be
that the person requiring legal aid should be able to obtain legal funds from the income

8Marshall v Wakefield [2009] SC (Bda) 22 Civ (24 April 2009).

9Legal Aid Act 1980, s.10(1). This is after deductions of $2,000 for a spouse and each member of the
household who is not financially independent, and rent not exceeding $9,600.

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 earner, even though that person may have no obligations towards the applicant
whatsoever.
9. Using 2016 census data10, rough calculations indicate that at least 84% of Bermuda
households are not eligible for legal aid due to household income. An applicant from
within a household of the remaining 16% is still not eligible if their disposable capital is
more than $20,000. This includes the sum value of a person’s car, clothes, occupational
tools, household furniture and effects.11 Again, due to the extremely high cost of living in
Bermuda a person can be indigent but have assets worth more than $20,000, particularly
as many own a vehicle due to the limited public transport system. The customs duty on
vehicles ranges from 75% to 150% tax.
10. Consequently, there is a tiny proportion of the population who are able to obtain legal
aid.

The vulnerable
11. It is the vulnerable population that are often most affected by discrimination and/or
government maladministration, yet they are the least represented. They are more likely to
lack the ability to initiate legal proceedings themselves, and less likely to be able to
complete an application for legal aid. Further, the Legal Aid Office will only accept an
application made by a child if it is co-signed by a parent, a guardian or a litigation
guardian. And if the applicant suffers from significant mental illness an application must
be signed by a parent, guardian or an intermediary, which is only appointed in criminal
matters. In any event, the vulnerable are often not eligible for legal aid due to them being
cared for by a family member, and the household income exceeding the limit.
12. Where the vulnerable are in the care of a government department or ministry, the person
is wholly dependent on them to make an application for legal aid or fund legal services.
We are not aware of any cases where either has been done for civil matters. More often
than not, the department or ministry caring for them is the exact body the person has a
complaint against.
13. Further, it is a rarity for the courts to appoint someone to manage a vulnerable person’s
welfare and affairs. In any event, of course such an application requires a person to have
legal funds to seek such an order in the first place.

10Table 12.2, https://bit.ly/2NA7ivi, last accessed 12.09.18

11Legal Aid Act 1980, s.10(1). This is after deductions of $2,000 for a spouse and each member of the
household who is not financially independent, and rent not exceeding $9,600.

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Alternative funding
14. Unlike the UK, modern legal reforms such as contingency fee arrangements, damages
agreements and after-the-event legal insurance remain unlawful, or are at best, of
dubious legality in Bermuda. Currently, the Supreme Court has only accepted third party
litigation funding for commercial matters, which is obviously of little help to the average
person on the street with a claim against the government.
15. For many years the Bermuda Bar Association has repeatedly called for the government
to introduce alternative funding agreements. Following the last recommendation in 2016,
the then Attorney General of Bermuda was reported as openly saying that one of the
reasons the Bermuda Government opposed contingency fee arrangements was that, “it
would result in more cases against Government”.12
16. It is our view, as it was the view of the Bermuda Bar Council and the Chief Justice of
Bermuda at that time, that permitting contingency fee agreements would enhance access
to justice, particularly for the impecunious and the vulnerable.

Limited redress
17. Due to its small population, Bermuda (and presumably other overseas territories) also
lacks the large infrastructure of a well-resourced civil society, which would include
numerous charities, organisations and pressure groups that can investigate, highlight,
campaign on and support legal action regarding unlawful or unjust government action. It
is further complicated in Bermuda, as many of the charities that may be inclined to
embark on such actions have very limited resources and are funded by the government.
18. There is also a limit to the amount of pro bono work that can be carried out by the
handful of barristers and attorneys in Bermuda who are experienced in public law
matters, and prepared to do so.
19. The result is that litigants who feel that they have been treated unjustly or unlawfully by
government are deterred by the financial burden of seeking justice. When combined with
the natural deterrent to stick one’s neck out to challenge a government decision in a
small community (especially if one is a vulnerable person or member of a minority
adversely affected by a decision), the lack of resources available to litigants undermines
government accountability. There are numerous instances where, despite legal advice

12Kawaley makes case for contingency fees, Royal Gazette, 19.01.17, https://bit.ly/2xglY8P, last accessed
12.09.18

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 that a case has a very strong prospect of success, a client has decided not to proceed due
to the various deterrents and disincentives operating against them.

Human rights
20. The fundamental rights protected by the Constitution do not prohibit discrimination on
the grounds of age, sexuality, or mental health, and there is no right to respect for private
and family life, other than protection from interference with correspondence.13
Furthermore, the Human Rights Act 1981 only prohibits discrimination in notices,
employment, organizations, the disposal of premises and the provision of goods,
facilities and services. Age has limited protection.
21. As children, the elderly, and those with ill mental health are not provided specific
protection under the Constitution, and they are unlikely to obtain legal aid, as detailed
above, their rights are considerably behind the times. The government departments
‘caring’ for them never arrange for them to receive counsel on civil law matters.
22. Under the Children Act 1998, section 35, the courts are mandated to appoint children
litigation guardians for the purpose of specified proceedings, ‘unless satisfied that it is
not necessary to do so in order to safeguard his interest’. Also, under the UK rules of
court,14 which the Supreme Court has ruled apply in Bermuda,15 children are required to
be represented by lawyers. As an added safety measure, section 35 further provides the
courts with the discretion to appoint a lawyer if a child appears without one.
23. For sixteen years since the Act was passed, not a single child was afforded either a
litigation guardian or a lawyer. Children were removed from their parents, forced
medication, detained in treatment facilities and forced abroad to secure treatment
facilities in the United Sates, all without any independent representation or legal advice.
Further, the magistrates, the panel and the government social workers have no training in
child law, such as is required to appear in Family Courts in the UK.
24. As the government refuses to pay those appointed under section 35, even now children
are appointed representation on the rarest of occasions. This is despite a recent ruling by
the Supreme Court that children must be appointed litigation guardians in the vast

13 Section 7 just provides “that no person shall be subjected to the search of his person or his property or the
entry by others on his premises.” Section 9 provides for freedom from interference with correspondence.
14 The Family Procedure Rules 2010 and Practice Direction 16A
15 as the rules relate to litigation guardians and counsel for a child and where the rules do not conflict with

Bermuda law, Re: A child involved in divorce proceedings (2015) SC (Bda) (unreported), KS v DCFS (2017) No.70
SC (Bda) (unreported).

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 majority of cases falling within ‘specified proceedings’ and that a failure to fund the
appointees will frustrate children’s constitutional rights.
25. Adults detained under the Mental Health Act are also rarely represented. On counsel
appearing for a patient at a Mental Health Review Tribunal four years ago, they were
informed by the Chairperson that it was the first time a patient had been represented.
Counsel has also encountered hospitals refusing to allow access to adult clients who are
patients, and to children detained. The relevant departments believed that the right to a
lawyer did not extend to an adult psychiatric patient or a child in general. On one
occasion, a lawyer’s name was even added to a ‘restricted list’, prohibiting all
communication between him and an unlawfully detained child.
26. Consequent to the constitutional issues, the lack of legal aid and slow recognition that the
vulnerable have legal rights, Bermuda has no child law, no senior law or mental health
law to speak of. It is imagined that the other overseas territories, which all have smaller
populations than Bermuda, are impacted even more greatly by all the above
circumstances.

Conclusion
27. In summary, there are definite barriers and challenges in ensuring access to justice in
Bermuda. These are difficult to solve at the domestic level, as successive local
governments do not necessarily have the right incentives to improve access, and those
worst affected are often those without a voice, being the vulnerable or members of
minority groups who cannot afford, or face various disincentives, to hold the government
accountable.
28. Ultimately, the UK has a moral responsibility to uphold the rule of law in all of the
overseas territories and ensure that all their populations are afforded basic human rights.
Further, according to various international conventions, including the European
Convention on Human Rights (article 6(1)), the UK has a legal responsibility to ensure
access to justice in the overseas territories. This includes, and requires, the provision of
legal aid for those individuals with a public law case where its complexity or the
capability of the applicant to take conduct of their own case demands it.16

Recommendations

16 Airey v Ireland at [26]; McVicar v United Kingdom at [47], Steel & Morris v United Kingdom at [61]

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29. It is recommended that the UK could help ensure it meets its obligations in respect of the
good governance of the overseas territories by setting up a legal aid fund for the
provision of legal assistance to residents of the overseas territories. It is envisaged that
this could be limited only to public law and constitutional litigation, as it would be
targeted only towards cases touching on good governance, rather than a fund for
litigation generally. If a means test is included, it should be pegged to the cost of living
in the territory of the applicant. The fund could be administered either via the British
Legal Aid authorities, or via an office set up in one of the overseas territories.
30. For the relatively modest sum of money that a legal aid fund would cost, the UK could
help to guarantee good governance in the overseas territories, and also win the
confidence of those in the overseas territories who might otherwise feel marginalised or
abandoned by both the local government and by the UK government.
31. Another step to guaranteeing good governance in the overseas territories and confidence
in the UK government would be to amend Bermuda’s Constitution (and all others) so as
to contain the rights and protections available under the UK Human Rights Act 1998 in
respect of the right to a family and private life, and the broader scope of anti-
discriminatory provisions. Without it, vulnerable and minority populations in the
overseas territories will remain second-class citizens, and many of the overseas
territories have already suffered a history of inequality enforced, supported or permitted
by the UK.

September 2018