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Top barrister will argue against SSM

London lawyer: James Guthrie QC

A top London barrister will argue the Government’s case against same-sex marriage despite an objection from the Bar Council, The Royal Gazette can reveal.

James Guthrie QC will appear on behalf of the Crown next week when it appeals against a Supreme Court ruling that struck down parts of the Domestic Partnership Act.

The move came after at least one lawyer for the other side challenged a request for the UK counsel to conduct the hearing.

The Bar Council also backed a refusal and said the Attorney-General’s Chambers had failed to show there were no local barristers with the expertise to argue the case.

But Chief Justice Narinder Hargun granted the order for Mr Guthrie’s special admission to the Bar after a hearing last month.

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

Former Chief Justice Ian Kawaley ruled in June that parts of the Domestic Partnership Act, which aimed to replace same-sex marriage with civil partnerships, were unconstitutional.

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 local cases in the past, was a “leading silk in civil liberties and human rights work”.

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

The Bermuda Bar Association does not 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 home affairs minister consults the Bar Council for its view on whether an overseas lawyer will be admitted.

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”.

The application was granted by Mr Justice Hargun last month after submissions were made by representatives of the Attorney-General’s Chambers and the Bar Council.

It is believed a work permit has also been secured but no comment was received from the Ministry of Home Affairs after requests from the Gazette.

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.