Bermuda’s Cannabis Battle: British Crown’s Unexpected Move

British crown blocks Bermuda’s cannabis bill, straining ties

Posted on October 15th, 2022 to Legal News

HAMILTON, Bermuda — The idea was to bring Bermuda’s drug laws into the 21st century.

The cannabis laws in Britain’s oldest overseas territory harmed Black islanders disproportionately, Attorney General Kathy Lynn Simmons said, and represented the “stain of colonialism.”

So the government in this Atlantic archipelago of 64,000 people approved legislation to liberalize the code. All that remained to enact it was the assent of the governor, the British monarch’s representative in the territory — usually a formality.

But some 3,300 miles away, in Mother Britain, there was a problem. The foreign secretary had concluded that the bill would put Britain in violation of international drug control treaties that prohibit signatories from permitting the recreational use of cannabis.

And so Rena Lalgie, the crown-appointed governor of Bermuda, said last month she had “received an instruction” issued on “Her Majesty’s behalf, not to assent to the bill as drafted.”

The denial came despite warnings by Bermudian Premier E. David Burt that it would “destroy” the territory’s relationship with Britain. It has sparked worries about a constitutional crisis and charges of undue interference by London in a territory where talk of independence has long ebbed and flowed.

Simmons said the decision was “disappointing, but not surprising, given the confines of our constitutional relationship with the U.K. government and their archaic interpretation of the narcotic conventions.”

If not surprising, it was unusual.

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Peter Clegg, a professor of politics and international relations at the University of the West of England, Bristol, said he couldn’t remember another instance in which a territorial governor has withheld assent from a bill approved by the local government.

It’s a “very controversial” step, he said, “because it goes to the heart of a territory’s autonomy and democracy.”

Lynne Winfield, the secretary of Citizens Uprooting Racism in Bermuda, has a name for it.

“I think … it’s a form of new colonialism,” she said.

Momentum to legalize cannabis is picking up speed around the world. Recreational use of the drug, with some restrictions, is legal in countries such as Canada, Mexico and South Africa. Germany’s coalition government plans to join that list.

In the United States, federal law prohibits the possession or use of cannabis. But more than a dozen states and the District of Columbia have legalized its recreational use. And President Biden this month announced plans to pardon anyone convicted of a federal offenses for simple possession of the drug, and urged governors to do the same at the state level.

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Bermuda decriminalized the personal possession of up to seven grams of cannabis in 2017, but stopped short of legalizing the drug. Burt’s Progressive Labour Party won reelection in a landslide in 2020 on a platform that included a pledge to liberalize cannabis laws still further.

Under the bill approved by the territorial legislature, a “cannabis licensing authority” would grant licenses to grow and sell the drug for personal and commercial purposes and regulate the new industry. It set the minimum age to apply for a license at 21, and would allow for cannabis to be consumed in public only at cannabis retail shops or specific cannabis events.

Burt’s government sought initially to introduce legislation that was narrower and focused on legalizing medicinal cannabis, but it changed course after it heard from members of the public that its proposal didn’t go far enough. Backers of legalization here say that’s still the case.

The government says its cannabis regime could help fuel the post-pandemic economic recovery while addressing systemic racism in the territory amid a broader hemispheric reckoning over the sins and legacies of colonialism.

It intended to issue the first licenses to people who have been negatively impacted by prohibition, including those with convictions for simple possession.

When Simmons introduced the bill, she said laws barring cannabis use had been used by the territory’s colonial government and the police during civil uprisings in the 1960s and 1970s to “quell that disquiet and to systematically criminalize Blacks on the front lines of the racial progress movement.”

“If Black lives truly do matter,” she said, “you should not hasten to recognize, deconstruct and reform laws, institutions and systems that are racialized and harmful to Blacks. … The unjust colonial legacy of our local laws has not been fully dismantled.”

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Bermuda’s 36-member House of Assembly passed the bill in 2021, but the Senate rejected it. Under the territory’s constitution, the lower house can pass a new bill identical to the old one a second time and present it to the governor for assent, even if the Senate blocks it a second time.

Lalgie reserved assent in May, and refused it last month. She said she was open to working with Bermuda “on reforms within the scope of our existing international obligations.” Tanya Davis, a spokeswoman for the governor, told The Washington Post that “the offer of discussions remains open.”

Bermuda, a 21-square-mile archipelago with pink sand beaches, is the oldest of Britain’s 14 overseas territories. It has its own constitution and parliament. Britain is responsible for its defense, foreign policy and security.

A playground for the wealthy and home to the descendants of enslaved people brought here centuries ago by British colonists, Bermuda is the most recent overseas territory to hold a referendum on independence. About 73 percent of voters in 1995 opted to remain a territory.

Many other jurisdictions that have liberalized their cannabis laws — including Canada, a commonwealth realm in which, like Bermuda, King Charles III is head of state — are in contravention of the U.N. treaties that Britain is worried about, said Damon Barrett, a lecturer at the University of Gothenburg in Sweden.

The treaties bar states from cultivating and exporting cannabis outside of medical or scientific purposes. But enforcing those treaties requires diplomatic will from member states, Barrett said, and there’s not “a lot of desire to expend political capital on that.”

Britain, the overseas territories and the crown dependencies make up one undivided realm. It is separate from the other Commonwealth realms — countries such as Jamaica, Australia and Canada — where the British monarch is also head of state.

Unlike the realms, the overseas territories don’t have separate representation at the international level. When Britain ratifies a treaty, it usually does so on behalf of its overseas territories and crown dependencies. It can also extend treaties to them.

Britain has a constitutional responsibility for the laws passed in overseas territories and crown dependencies, which can include ensuring they’re consistent with its international obligations.

When Simmons introduced the bill, she acknowledged that its provisions would go beyond what the treaties allow. But it would be “disingenuous,” she said, for international bodies to impose sanctions on Bermuda for easing its cannabis prohibitions when they have rebuked but not punished countries such as Canada.

“Even though we are officially represented by the U.K. government at the international level,” she said, “Bermuda’s own voice on issues which affect all political, economic or financial interests must be represented.”

One Bermuda Alliance, Bermuda’s main opposition party, did not support the bill. It has charged that the government knew the governor would refuse assent but pushed forward to force a clash with London with the goal of ginning up support for independence.

Political strategist Corey Butterfield said the government could work around the issue by reclassifying how cannabis is scheduled under its drug laws. That would not require parliament’s approval.

“So the real question is why not do that?” he asked. “Why set up the fight in the first place in parliament?”

Tina Evans, a spokeswoman for Bermuda’s government, declined to respond to questions sent by The Post. She said the “matter continues to evolve” but did not elaborate.

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Relations between Britain and its overseas territories can be thorny.

A British government proposal this year to impose direct rule from London on the British Virgin Islands after a public inquiry detailed systemic corruption in the territory drew recriminations across the Caribbean and accusations of overreach. Britain eventually backed down.

Clegg said disagreements between Britain and its territories have stemmed mostly from London seeking to impose changes, such as recognizing same-sex marriage or abolishing the death penalty, on its overseas possessions.

Bermuda’s governor in 2018 granted assent to a bill that reversed the right of same-sex couples to marry. The British government said it disapproved of the law, which was condemned by LGBTQ advocates and human rights groups, but couldn’t step in.

In 2019, a parliamentary committee in Britain said the government must be prepared to “intervene” in territories where same-sex marriage was restricted, as it did in 2001 when it decriminalized homosexuality in the territories. So far, Britain hasn’t gone down that road.

On cannabis, the question now is what comes next.

“Constitutionally, the U.K. does have the authority not to give assent,” Clegg said. “But what happens if Bermuda makes the change anyway? That could be unchartered waters, but might be a way of testing the U.K.’s resolve.”

Source Washington Post

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