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Same-sex marriage appeal at risk

The Bermuda Government's landmark appeal against same-sex marriage risks being thrown out by the Privy Council after a crucial deadline for the case was missed last month.

The case in London would settle the issue for Bermuda, after years of wrangling in the island's courts and Parliament.

It would also set a precedent for the same-sex unions in the UK's Crown Dependencies and Overseas Territories, as well as a host of former territories, if heard at Britain's top court.

However, The Royal Gazette understands that a key document for the Government's side missed a deadline with the Privy Council on December 13.

Rod Attride-Stirling, one of the lawyers for the side backing same-sex unions, said yesterday: “The whole appeal could be struck out tomorrow by the Privy Council.”

He added: “We had an agreement with the Government that in a case of this importance, we would both use our best endeavours to have this dealt with quickly.

“That agreement was made early last year. Since then, the Government has done everything to frustrate and delay the hearing taking place.

“In an instance involving human rights issues, delaying the process of the application is wrong.”

The battle over same-sex marriage was referred to the Privy Council after the Bermuda Court of Appeal ruled against the Government in November 2018.

The Government had an automatic right of appeal, as the issue rested on a constitutional matter.

Gay couples were first able to wed in Bermuda after a key ruling in the Supreme Court opened the way for the unions in May 2017.

Parliament responded by passing legislation that December, replacing same-sex marriages with domestic partnerships.

In June 2018, a ruling by then Chief Justice, Ian Kawaley, backed a constitutional challenge to the areas of the Domestic Partnership Act revoking same-sex marriage.

Same-sex marriages became legal on the island again after the Court of Appeal ruling, and have continued since.

The Privy Council, as the highest court of appeal available for Bermuda, marks the last hurdle after same-sex marriage was pushed to the forefront by a petition in 2015.

A spokeswoman for the Ministry of Home Affairs said this month that the Government's appeal had been “duly lodged with the Privy Council on 12 July, 2019, in advance of the applicable deadline”.

She added: “Going forward, we are in the hands of the Privy Council.”

But under the directions of the Privy Council's judicial committee, the Government as the appealing side must file a statement of agreed facts and issues, with the agreement of the opposing side, for the appeal to get its date in court.

That statement must set out the relevant issues, explaining what items are disputed if the parties cannot agree, and should be a “neutral document” signed by counsel from both sides.

Under Privy Council rules, the statement should have been filed on December 13 — or an application should have been filed for an extension.

The Gazette asked home affairs this week whether the document had been filed.

No response was received by press time last night.

Mr Attride-Stirling, who represents the LGBTQ rights charity OutBermuda with four other respondents, said that the Government had “delayed every single step”.

He added: “We had an agreement with the Attorney-General that they would move expeditiously to bring this forward as soon as possible. That would have been early in 2019.”

The lawyer also questioned the costs incurred by the delay, noting: “The legal team they have working for them is very senior.

“They are first-rate — and as expensive as money can buy.”

The case's total cost to the public purse is not known.

Last May, OutBermuda estimated a bill as high as $3 million for the Government's legal fight against same-sex marriage.

On that occasion, the spokeswoman for home affairs responded that the ministry “cannot and will not speculate” on the cost of taking the case to the Privy Council.

On the case: Rod Attride-Stirling has queried the costs incurred by delay (File photograph).

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Published January 16, 2020 at 8:00 am (Updated January 16, 2020 at 8:00 am)

Same-sex marriage appeal at risk

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