Same-sex marriage in Bermuda and pro bono

In Ferguson and Others v United Kingdom, same-sex marriage in Bermuda is coming before the European Court of Human Rights (ECtHR). This case combines extremely interesting constitutional questions with LGBTQI+ rights and an examination of the Art 12 European Convention on Human Rights (ECHR) regime. I have cared deeply about the expansion of LGBTQI+ rights for a long time, so when this pro bono opportunity came along, it was very clear to me that I had to get involved.

As readers may know, the intervention is brought by Colours Caribbean, an organisation based in the Cayman Islands that promotes the rights of LGBTQI+ people. Dr Leo Raznovich – barrister, academic and Co-Chair of the Diversity and Inclusion Council of the International Bar Association – has for years supported Colours Caribbean’s litigation to achieve full equality in the British Overseas Territories of the Caribbean and North Atlantic (CBOTs) and has written about this for Counsel Magazine. In the CBOTs, which include the Turks and Caicos, the British Virgin Islands, Montserrat, Anguilla, the Cayman Islands and Bermuda, LGBTQI+ people unfortunately still face marginalisation and discrimination.

Leo explains: ‘While all other Contracting States of the ECHR have extended equal rights to their Caribbean territories, including same-sex marriage, in the CBOTs, ECHR protections that exist for LGBTQI+ people have not been consistently enforced or respected locally.

‘UK government policy has been that improvement of LGBTQI+ rights should be resolved locally through devolved legislation and/or by local litigation rather than by legislation from the UK government.

‘However, in my view, this policy imposes a disproportionate burden on affected individuals, particularly on those brave enough to pursue expensive, time-consuming and high-profile litigation against local governments.’ *

The ECHR is relevant because the UK has extended both the Convention and the right of individual petition to Bermuda. In addition ‘through a 2013 local amendment to the Human Rights Act 1981 of Bermuda discrimination on grounds of sexual orientation is prohibited,’ Leo says. ‘In 2017, a court in Bermuda held that, as a result of this amendment, same-sex couples should be allowed to marry and for a few years, this was possible and legal in Bermuda.’

However, in 2018, the Domestic Partnership Act was enacted which took away this right by defining marriage as a union between a man and a woman [s 53]. Leo says: ‘The legality of this section of the Act was challenged and the local courts at all levels unanimously (including the Supreme Court of Bermuda) found in favour of the LGBTQI+ claimants. However, the Privy Council, which is still the apex court for Bermuda, disagreed and rejected the various grounds on which the case had been brought. Lord Sales dissented.’

It is Leo’s view, ‘and one shared by many’, that this finding ‘demonstrated that the Privy Council regarded religious and cultural values as having more prominence and relevance for the outcome than the acknowledgement of universal human dignity and equality’.

Given the ostensibly hands-off policy stance adopted by the UK, why would the Privy Council overturn the findings of the unanimous judicial bench of Bermuda, including its Supreme Court?

Leo says: ‘The present situation seems deeply unsatisfactory, where Bermuda has neither the full protection of the ECHR, nor the independence to make its own final judicial decisions. I fear that the Privy Council’s decision may further entrench segregation based on an immutable personal characteristic [i.e. sexual orientation] and may permit a majority to impose its religious views cloaked in “secular” legislation at the expense of a minority.’

Alex Potts KC has also worked pro bono on matters involving LGBTQI+ rights in Bermuda and the Cayman Islands for many years. ‘Like all members of the Bar, I feel strongly about pro bono,’ he says, ‘particularly when there is an issue of public importance at stake, in the context, for example, of human rights, environmental protection, or professional discipline and regulation.’

I ask Alex to summarise our submissions before the ECtHR for those who may be considering similar litigation.

‘Firstly, we have submitted that the current legal position with respect to same-sex marriage rights in the CBOTs is unjustifiably inconsistent with the legal position in other constituent parts of the UK and other British Overseas Territories, and it also inconsistent with the current legal position in the rest of the Americas, including the overseas territories of the USA, the Netherlands, France, and Denmark,’ says Alex.

‘Secondly, we argue that the UK has no relevant “margin of appreciation” in this context, and that the UK cannot justify any differential treatment of LGBTQI+ persons with respect to same-sex marriage rights as between, or within, the different constituent parts of the UK. It is irrational, we suggest, for some British citizens and other lawful residents to be allowed to be lawfully married in one part of the UK, but not in another.

‘Thirdly, we say to the ECtHR that no material weight can be placed by the court (or by the UK) on the partisan political views that have been expressed in Bermuda against same-sex marriage (whether in the course of local elections, local referendums, or local political debates), given the facts that the 2016 referendum in Bermuda was legally treated as ‘unanswered’ (due to an insufficient voter turnout), and that a substantial number of lawful residents simply do not have the right to vote locally.’

There are also some practice points that need to be borne in mind when making such an intervention before the ECtHR in Strasbourg. As a third-party intervenor, permission is needed from the court to make submissions and it is important to read the rules and guidelines of the ECtHR carefully to be aware of relevant changes and deadlines. In this case, the window for seeking permission was 12 weeks from publication of the case on the court’s case-law database. However, it is important to check whether other directions have been given and the relevant practice direction needs to be consulted. If permission is given, the court will set a deadline for the written submissions – this is often not very far in the future, so it is advisable to have the substance of the submissions ready in advance.

Permission is granted ‘only if the Court is satisfied that it would be ‘in the interest[s] of the proper administration of justice’ (Article 36 § 2 of the Convention; Article 3, second sentence, of Protocol No. 16; and Rule 44 § 3 (a) of the Rules of Court). 

It is also important to keep an eye on the administrative requirements of the court – and these will likely change over time. For example, bear in mind that filing via email may not be accepted, in which case documents need to be sent by mail and/or faxed, which needs additional time.

Lastly, and substantively, an intervenor should assess what useful additional perspective they can bring to the table and, as Alex says, ‘in this case the legal team felt that Colours Caribbean had an important role to play in highlighting the wider situation on this important issue throughout the region against which the legal argument develops’.

I am fortunate to be able to often act pro bono where it strikes me that an important issue is at stake and/or access to justice is needed. I realise that many barristers are not in a position to do so, and that pro bono work is not an alternative to a properly funded justice system. I would also add that especially for junior barristers, pro bono can be a good opportunity to work in new areas of law and/or with new leaders and teams of solicitors.

The solicitors working on this case tell me about their own involvement in pro bono. They explain that their law firm has a longstanding commitment to the principle that justice can be made available to all. ‘Our work with Colours Caribbean is a great example of that approach,’ says James Hulmes. ‘It has been a cornerstone of our pro bono efforts since 2019 and enables us to contribute to a social cause that we ardently support.’ His work on this case ‘offers everything that a lawyer could ask for – a committed and highly talented team, fascinating and novel legal issues, and a chance to use the justice system to correct an obvious wrong. It is some of the most meaningful and engaging work that I personally have undertaken in my career to date.’ 

Philippe Lopeman agrees, saying it was the opportunity to contribute to something meaningful that drew him to participate. ‘It has been incredibly rewarding to be involved in something where we are fighting for the rights of the LGBTQI+ community in the Caribbean on matters of real constitutional importance.’ David George-Carey says the case presented a unique opportunity to be ‘on the right side of history in the fight for the rights of the LGBTQI+ community in the Caribbean’ and Natalie Puddicombe finds working on the case ‘both empowering and intellectually rewarding – the type of contribution I aspired to make in my career.’

Pro bono can advance your practice in many (often unforeseen) ways, so I would encourage anyone in the position to consider such work, to seek it out. Signing up to Advocate is a great first step.

Meanwhile, Leo remains very concerned that the Privy Council has never delivered a decision that has expanded the rights of LGBTQI+ people in the Caribbean. ‘In my view, the Privy Council has so far failed to ensure compliance with constitutional and international obligations related to equality, non-discrimination and human dignity pertaining to LGBTQI+ people in that region. The decisions in Ferguson and Day are only the tip of the iceberg and there are unfortunately plenty of examples where the Privy Council’s decisions have in fact had a highly detrimental effect on the protection of LGBTQI+ rights.

‘At the moment, I am deeply worried about the recent permission to appeal granted to Ms Anglin in Kattina Anglin v The Governor of the Cayman Islands and Colours Caribbean. Ms Anglin is challenging the validity of the Civil Partnership Act 2020 which protects same-sex partnerships. Permission to appeal had been refused by the Court of Appeal of the Cayman Islands in October 2023 on the basis that the case did not raise an arguable point of law of great general or public importance. Despite unanimous findings by the Cayman local courts in favour of LGBTQI+ rights, the Privy Council has deemed it appropriate to grant permission to appeal, perpetuating a state of uncertainty for the many civil partnerships formed since the introduction of the Act. Colours Caribbean will seek to intervene on this appeal.

‘A line can and, in my view, must be drawn from the decision by the Privy Council in 2022 in Chandler to affirm the decision in Matthew and the criminalisation of LGBTQI+ people last year in Jamaica in which a court relied on the same principles and declared it impossible to inquire into the constitutionality of the anti-sodomy colonial law because it was bound by the Privy Council on this matter [Tomlinson].

‘There seems to me to be a profound disconnect between the UK government apologising for such colonial laws, as Theresa May as Prime Minister did in 2018, while at the same time our most senior judges in the UK uphold anti-LGBTQI+ laws – a problem that is recognised internationally including by the UN Human Rights System, for example in a report issued last year by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity [para 47].’

Nevertheless, Leo remains optimistic: ‘I hope that this case can bring about a change in this pattern.’