Recently published research in the Caribbean and Latin America has answered ‘yes’ to the above question. In The human right to respect for sexual orientation and gender identity in the Caribbean and Latin America: current situation and prospects (Inter-American Institute of Human Rights, 2021), L Raznovich and E R Zaffaroni show that all countries in the continent have achieved – or are making strides towards – formal equality for LGBTI people, save only for the countries for which the Judicial Committee of the Privy Council (JCPC) remains the final appellate court. (See the research here.)

In these countries, no progress with regard to LGBTI rights has been made, the authors argue. In fact, discrimination on grounds of sexual orientation was enabled by the JCPC in Surratt v Trinidad and Tobago [2007] UKPC 55, after the domestic Court of Appeal found, inter alia, that such treatment was unconstitutional, only to be later overturned by the JCPC. More recently, the JCPC heard two appeals – Bermuda and Cayman Islands (February 2021) – as regards whether their constitutions, enacted by the UK Parliament, require equal marriage. The Chief Justices in each jurisdiction and a unanimous Court of Appeal in Bermuda concluded in the affirmative, holding that non-discrimination requires equality of treatment and that to interpret otherwise would be akin to upholding criminalisation of interracial marriage (per the Chief Justice of the Cayman Islands).

Disturbingly, the JCPC has been deliberating for over a year without any indication as to when judgment will be given. A delay defined by the JCPC itself as ‘excessive’ in Cobham v Joseph Frett [2000] UKPC 49 – and not even in a case concerning human rights. It is, however, the JCPC’s interpretation of a particular constitutional clause found in five Caribbean nations, referred to as the general savings clause (which in essence prohibits a court to rely upon the fundamental rights and freedoms of the constitution to nullify colonial laws), that remains a significant barrier to LGBTI equality.

The historical background of this clause deserves explanation. When the UK Parliament granted independence to the Bahamas, Barbados, Jamaica, Guyana and Trinidad and Tobago in the 1960s, it delegated to the Crown, by and with the advice of its Privy Council, the power to make their constitutions (as opposed to what it had done with India where it vested those powers in its legislative assembly); that is, the original de iure ‘constituent’ power in the Caribbean did not emerge from their peoples but rather from the Crown.

In the exercise of these powers, the Crown kept all existing colonial laws in force, but subject to their being construed by the courts with such modifications, exceptions, adaptations and qualifications as required to conform with the new constitutions. However, the constitutional texts included a general savings clause. This led to a tension between two parts of the constitution: the declaration of rights and freedoms and the general savings clause. Clearly, it would become necessary to give each of them a rational scope if a clash were to occur. A clash materialised after the JCPC found in Reyes v The Queen [2002] 2 AC 235 that the colonial mandatory death penalty was an inhuman and degrading punishment.

The tension that unfolded after Reyes was addressed in Roodal v Trinidad and Tobago [2003] UKPC 78 in which the JCPC held, in a split judgment (3-2), that the general savings clause prohibits the court from relying upon the declaration of rights and freedoms to invalidatea colonial law, but not to modify it. Relying upon the powers of modification vested in the courts by the Crown when it enacted the Constitution, it concluded that colonial laws should be modified so that they conform with the constitution. The following year the JCPC in a split decision (5-4) reversed Roodal for Trinidad and Tobago in Matthew v Trinidad and Tobago [2004] UKPC 33 (along with interpretation of a similar clause in the constitutions of Barbados and Jamaica). In three separate judgments, the JCPC found that Roodal was ‘irrational’ because it would immunise from constitutional challenge only laws that cannot be modified. Further, it held that it would be ‘perverse’ to interpret, as the majority did in Roodal, that subordinate legislation used by the Crown to enact the constitution could be relied upon to modify the constitutional general savings clause. Lord Hoffmann, for the majority, stated that colonial laws, regardless of their being ‘inhuman or degrading’, cannot be held inconsistent with the declaration of fundamental rights and freedoms of the constitution; such immunity is absolute.

Therefore, the JCPC, less than a year after Roodal (and despite the principle of stare decisis) made an extraordinary U-turn. In Roodal, the JCPC had resolved the tension by narrowly construing the general savings clause in order to prevent enforcing inhuman and degrading colonial laws where modification of such laws was possible. In Matthew et al, a split JCPC instead assigned the general savings clause its full effect and turned the fundamental rights and freedoms of the constitution, in perpetuity, absolutely otiose. Such a shift in the way of resolving the tension between these constitutional clauses is unprincipled and premised on two errors in law.

Firstly, the JCPC deemed the Crown to be acting in its role as sovereign of the colonies. This is incorrect; the Crown was acting as the ‘constituent’ power for these new nations. In essence, this is the role the Philadelphia convention had in the aftermath of the 1776 revolution. This confusion led the majority to try to justify disregarding the order in council, lest being seen as perversely using ordinary imperial subordinate legislation to frustrate the constitutional clause of an independent nation. Ironically, it is the JCPC that was now perverting the constitutional process: without legal reasoning, it disregarded the enactment of the constituent power save for the schedule containing the constitution itself. At the most basic level, this is contrary to Bennion’s principles of statutory construction regarding interaction between sections and schedules. The application of these principles leads to the conclusion that Roodal was correctly decided, ie colonial laws were construed by applying the power of modification to bring them into conformity with the new constitution before those colonial laws benefitted from the effect of the general savings clause. This is the standard form and effect with which constitutions were enacted during colonial times and continue to be enacted for the remaining 14 British Overseas Territories. Even if such construction may ‘largely’ destroy the effect of the general savings clause, as Lord Hoffmann suggests, this is justifiable since derogations from constitutional rights and freedoms ought to be narrowly interpreted (see R v Hughes [2002] 2 AC 25). Further, it ought to be preferred in that the effect of the alternative choice to resolve the constitutional tension, followed when Roodal was reversed, is ‘totally’ rather than ‘largely’ to destroy the protection of the rights and freedoms, in perpetuity, in relation to inhuman and degrading colonial laws.

Barbados and Guyana have since Roodal renounced the JCPC and adopted the Caribbean Court of Justice (CCJ) as their final appellate court. The CCJ reversed the JCPC’s interpretation for them in 2018 in Nervais v Regina [2018] CCJ 19 (AJ) and McEwan v Guyana [2018] CCJ 30 holding that it was ‘incongruous, frustrates in perpetuity the constitutional supremacy and the independence of the judiciary, and is an unacceptable diminution of freedoms’. The JCPC’s interpretation, however, remains binding legal precedent in the rest of the Caribbean nations that fall within its jurisdiction.

The JCPC heard in November 2020 arguments to revise once more the general savings clause in Chandler No 2 v The State (JCPC 2020/0051). This is an opportunity for the British judges sitting in the JCPC to address the legal errors in which the JCPC fell foul when it reversed Roodal and to show the human decency of following the CCJ’s interpretation. Not doing so will have consequences beyond the mandatory death penalty. For instance, there are in Trinidad and Tobago 28 colonial laws that discriminate against LGBTI people, including criminalisation of sexual intimacy between two consenting adults of the same sex. These archaic laws, following Matthew, would remain immune from constitutional scrutiny by the judiciary of an independent nation! It is this outcome, ie enforcing inhuman and degrading colonial laws, which is indeed perverse and irrational and which the Crown, in its role as constituent power, aimed to prevent by vesting the judiciary of these nations with the powers to modify those colonial laws when it enacted their constitutions so that the basic human rights standards therein are required to be respected by all laws.