Objection to British barrister for SSM case
An objection is understood to have been made against a request for a top London barrister to fight a Supreme Court ruling that quashed a ban on same-sex marriage.
It is believed lawyers argued that the Crown failed to show why an overseas counsel was needed after an application was made for James Guthrie QC to lead the appeal.
The barrister is a member of London-based 3 Hare Court. The chambers website said he was a “leading silk in civil liberties and human rights work”.
Mr Guthrie has appeared in island courts before.
Walton Brown, the Minister of Home Affairs, confirmed in July that the Government was to appeal against a landmark court judgment that reversed the same-sex marriage ban.
It came a month after then Chief Justice Ian Kawaley struck down parts of the Domestic Partnership Act, which aimed to replace same-sex marriage with civil partnerships.
A request for a special practising certificate must be made to the Bar Council for an overseas lead counsel before they can appear in Bermuda courts.
Permission was sought for Mr Guthrie to act for the Crown when the case is called at the Court of Appeal next month.
It was estimated his fee for the job could be up to $400,000.
Legal teams acting for the respondents, which include gay rights charity OutBermuda and Maryellen Jackson, had until the end of September to challenge the request.
The Royal Gazette understands at least one formal objection was submitted. It was said to be on the grounds that lawyers felt the Crown had not made a “full and proper application” in line with Bar Council practice to show that the QC was needed.
A source close to the case said: “These policies and procedures are in place for a reason and clearly they’ve not been followed; that’s the basis for the objection.”
The Bermuda Bar Association website outlines the procedure for hiring an overseas lawyer.
It said: “Under the guidelines, Bar Council review the propriety of the use of foreign leading counsel for each hearing in which a client wishes them to appear before the Bermuda courts and for each application for a work permit from the Department of Immigration.
“If Bar Council determines that the use of foreign leading counsel is appropriate, then it issues a special practising certificate to that counsel for that hearing.”
The Bar Council is consulted by the minister for its view on whether a QC will be admitted under immigration laws.
The council must consider the legal complexity of the case and its importance before deciding if there are “exceptional circumstances” that need foreign expertise.
It also takes into account the availability of local counsel who can “adequately present the case” and “the impact of the case upon the individual client”.
The guidelines also said, if an application is supported, junior counsel must be island-based and that preparation for the case is expected to be carried out by Bermudian law firms.
Bermuda is the only country in the world to have allowed same-sex marriage then banned it.
The Domestic Partnership Act, which came into force in June, reversed a Supreme Court ruling from May last year, which had paved the way for gay couples to marry in Bermuda and on island-registered ships around the world.
But Mr Justice Kawaley ruled the legislation was at odds with the Constitution, which protects the right to freedom of conscience and outlaws discrimination on the basis of creed.
Mr Guthrie has referred inquiries to the Attorney-General’s office. The Bar Council and the Government did not respond to requests for comment.
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