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‛Top silks’ to face off over same-sex marriage

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Timeline of the campaign for same sex marriage in Bermuda. To see the full size graphic, click here (Infographic by Sharneil Paynter)
Jonathan Crow QC (Photograph from 4 Stone Buildings website)
Lord Pannick QC (Photograph from Blackstone Chambers website)
Barrister Tom Cross (Photograph from 11KBW website)

Two of Britain’s top barristers will battle it out in front of the Privy Council in London from tomorrow over whether same-sex marriage should be banned in Bermuda.

The Government has hired Jonathan Crow QC – said by the Legal 500 ranking agency to be “probably the most persuasive advocate at the Bar” – to make its case that gay couples should not be allowed to marry.

OutBermuda, an LGBT rights charity, and four other litigants have retained David Pannick QC to argue the opposite case.

Lord Pannick, who Legal 500 said was a “superstar of the Bar” on civil liberties and human rights, successfully represented OutBermuda in the Court of Appeal in 2018, which gave a judgment that allowed same-sex marriages to take place again.

He will be assisted by Rod Attride-Stirling, a Bermudian barrister.

The Government dropped another top English lawyer, James Guthrie QC, after it lost the Court of Appeal case.

The Government has added a junior barrister, Tom Cross, from 11KBW Chambers, to assist Mr Crow, of 4 Stone Buildings Chambers.

It has also hired solicitors from global law firm Charles Russell Speechleys, which is headquartered in London.

A member of the group that supports the same sex marriage side said the Government had hired a “very large and very expensive team” to represent it before Bermuda’s highest court of appeal.

QCs – known as silks – are barristers who have achieved the high rank of Queen’s Counsel.

Top practitioners can earn several million pounds a year.

The source said: “Jonathan Crow is a top silk. He is going to lead the Government’s army of lawyers.

“OutBermuda’s smaller legal team is like David opposing the Government’s Goliath.”

The source predicted that if the Government lost its appeal and had to pay costs for both sides “it will exceed £1 million” – about $1.3 million.

But the source suggested the massive price tag may be viewed as worth it by David Burt, the Premier, and his Cabinet, because of the message it would send to Progressive Labour Party voters who opposed gay marriage.

The source added: “Even though they have a very generous majority in the House of Assembly, they want to continue to show that core constituency that no expense was spared in prosecuting this.”

Renée Webb, a former PLP Cabinet minister who has campaigned for same-sex marriage, said: “The truth is that governments all over the world spend tax dollars how they choose.

“They do not get permission from the public. Lord knows, they would never get an agreement from the public.”

The amount of public funds that the Government will have to spend on the bid to outlaw same-sex marriage is not yet known.

But it will have to pay costs for both sides if it loses the case.

Mark Pettingill, a former attorney-general, said even if the Government wins, it will probably have to pay its own costs.

Mr Pettingill said the Privy Council case of Michael Barbosa in 2019 determined that ordinary citizens could challenge the Government on important constitutional issues without having to pay the other side’s costs if they lost – so long as the case was not frivolous.

He added: “This human rights issue clearly is not.”

The Government’s financial involvement in the current legal case started in 2018, when the Attorney-General was named as a defendant in a civil case launched by Bermudian Rod Ferguson, who was represented by Mr Pettingill.

The Government had earlier unsuccessfully defended a discrimination case brought by Winston Godwin and Greg DeRoche in 2017, which first enabled gay marriages to go ahead.

Mr Ferguson’s case was joined with a case brought by OutBermuda and other litigants, represented by Mr Attride-Stirling.

The Government lost the Ferguson/OutBermuda case in June 2018, when the Chief Justice ruled that a section of the new Domestic Partnership Act banning same-sex marriage breached the Constitution.

It appealed and the case went to the Court of Appeal in November 2018.

The three-judge panel ruled that the section in the DPA was included for a religious purpose, which was barred under Bermuda’s secular Constitution.

The Government said after the judgment it was “not yet aware of any costs filed by the opposing counsels” but that Mr Guthrie’s legal fees were $53,339 and his travel and accommodation was $7,848.

A Ministry of Home Affairs spokeswoman said last week the legal cost to date was $180,923.

She said: “This includes legal costs in the amount of $161,185.24. The remaining costs of $19,738.16 were for travel and accommodation.”

The figure referred to external costs but no further breakdown was given.

It did not factor in any hours spent by government lawyers working on the Supreme Court, Court of Appeal or Privy Council cases.

The Royal Gazette made a public access to information request to the Attorney-General’s Chambers for records about the cost of the failed Court of Appeal case, but it was rejected.

The refusal is under review by the Information Commissioner.

Walter Roban, the home affairs minister, promised in November 2018 that once a final figure was determined, he would share it with taxpayers.

The minister did not respond to a request for an interview last week.

OutBermuda’s case has been funded by donations, including from the Carnival Cruise Line.

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Published February 02, 2021 at 12:19 pm (Updated February 02, 2021 at 12:19 pm)

‛Top silks’ to face off over same-sex marriage

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