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Bermuda Bar Council objects to UK QC hiring

The legal profession's governing body has backed an objection to a bid to hire a top London barrister to challenge the Supreme Court ruling that quashed a ban on same-sex marriage.

It is understood the Bar Council has told the Government that it does not support the application for James Guthrie QC to lead the Government's appeal. The council is believed to have ruled the Attorney-General's Chambers failed to show there were no island barristers with the appropriate expertise to argue the case.

Walton Brown, the home affairs minister, confirmed in July that the Government would appeal the landmark court judgment that reversed the same-sex marriage ban.

It is now up to the immigration department, part of his ministry, to decide if a temporary work permit will be approved for the QC.

Mark Pettingill, lawyer for Rod Ferguson, one of the respondents in the case, said yesterday he was not surprised by the Bar Council's decision.

He added: “There are criteria that must be met in order for an application to be made to bring in overseas counsel and in this case the Bar clearly was not satisfied that it was warranted.

“What will be interesting is that it is a matter for the minister who announced the appeal whether he adheres to, or takes the position of, the Bar Council in allowing Mr Guthrie to come in or not.”

Then Chief Justice Ian Kawaley struck down parts of the Domestic Partnership Act, which aimed to replace same-sex marriage with civil partnerships, in June. The appeal is due to be heard next month.

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, a member of London-based 3 Hare Court, to act for the Crown.

The website of his London chambers said Mr Guthrie, who has appeared in island cases in the past, was a “leading silk in civil liberties and human rights work”.

Legal teams acting for the respondents, which also include gay rights charity OutBermuda and Maryellen Jackson, were given chance to object to Mr Guthrie and at least one challenge was submitted.

The Bermuda Bar Association said it cannot comment on special admission applications.

But it is understood the Bar Council, which is made up of nine elected members, as well as the Attorney-General in an ex officio capacity, felt the Attorney-General's Chambers failed to meet the required criteria.

The Bar Association website has an outline of the procedure for hiring an overseas lawyer.

The website 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 minister consults the Bar Council for its view on whether an overseas lawyer 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”.

Bermuda is the only country in the world to have allowed same-sex marriage then banned it. The Domestic Partnership Act 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.

The Government did not respond to a request for comment yesterday.

Work permit challenge: James Guthrie QC

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Published October 13, 2018 at 9:00 am (Updated October 13, 2018 at 8:37 am)

Bermuda Bar Council objects to UK QC hiring

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