The Road to Cannabis Legislation

The Road to Cannabis Legislation

By Reid Orchard and Allan Doughty

The road to legislation is not always a straight path.  This is especially true in a small jurisdiction, such as Bermuda, which is an Overseas Dependent Territory of the United Kingdom.  The creation of a regulated cannabis industry in Bermuda is a perfect example of the challenges a small democracy can face while it remains tied to one of the world’s last great colonial powers.

Since the year 2020, Bermuda’s attempt to create a regulated cannabis industry has followed a tumultuous path.  When the Cannabis (Licensing and Regulation) Act, 2020 was first passed in the House of Assembly in 2021 (which followed a promise made by the ruling party to legalise cannabis), it was then blocked in the Senate, Bermuda’s upper chamber which is comprised of unelected officials.   At the time that the cannabis legislation was first blocked, Bermuda’s Governor, Rena Lalgie, opposed passage of the bill.

Thereafter, on 30 March 2022, Bermuda’s House of Assembly passed another bill, known as the “Cannabis Licensing Act, 2022”.  The second cannabis bill, which was substantially similar to the first, also sought to create a regulated cannabis industry, in Bermuda.  The second bill, like the first, seeks to decriminalize the simple possession of marijuana under 7 grams, establish a licensing authority as well as a licensing scheme for the cultivation, importation, manufacturing and sale of cannabis products.

Although the previous attempt by the Government to pass cannabis legislation failed in the Senate, Bermuda’s Constitution allows the Government to bypass the Senate once it has been passed for a second time by the House of Assembly and then present that bill to the Governor for royal assent. In May 2022, however, the Governor, in the exercise of her constitutional powers, reserved “the bill to the signification of Her Majesty’s pleasure.  At that time, the Governor stated that her unprecedented decision to reserve assent arose from conflicts between the legislative objects of the new cannabis law and Bermuda’s international treaty obligations.

Five months after the Governor’s reservation regarding royal assent, she announced that royal assent of the new legislation had been refused. In making that announcement, the Governor stated that per instructions received from the UK’s foreign secretary, that:

“[T]he Bill, as currently drafted, is not consistent with obligations held by the UK and Bermuda under the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances.”

While the Governor’s announcement concerning the refusal to grant royal assent took few people by surprise, it highlights the conflict felt by some regarding when and if Bermuda should opt for independence.  In the meanwhile we will watch this space as to whether some form of compromise may be reached regarding cannabis legislation between the Government of Bermuda and the UK.