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Press Release, 6 February 2021

The Significance Of The Same-Sex Marriage Case In The Cayman Islands And Dinah Rose QC's Involvement

Colours Caribbean finds Dinah Rose QC’s portrayal of the Cayman Islands as one of “the most progressive countries for LGBTQIA+ rights in the Caribbean” offensive to the very many LGBTQIA+ persons in the Cayman Islands that have suffered at the hands of Dinah Rose QC’s client for many years.

Background

Currently, in all but five of the territories that fall within the Privy Council’s jurisdiction, same-sex marriage is legal. In two of them—the Cayman Islands and Bermuda—British Citizens have taken the matter to court and have now reached the Privy Council. The Privy Council has the historic opportunity to decide that there is no legal justification of discrimination on grounds of sexual orientation or gender, on any British territory. It has the opportunity to afford all British Citizens the same dignity and equality, ending the segregation on grounds of sexual orientation and gender that is still alive and pertinent in the British Caribbean context. In light of recent media coverage of Dinah Rose QC’s roles as lead counsel in the Cayman Islands case as well as her title of President of Magdalen College, we find it necessary to comment on statements made by her in defence of the case and her involvement.

Even law firms in the Cayman Islands have not been safe from the climate of oppression perpetuated by the state but have often been reluctant to represent and support LGBTQIA+ individuals for fear of repercussions (e.g. in regards to obtaining and renewing work permits for their employees).

When our organisation finally found a lawyer willing to assist us on a pro bono basis, the Cayman Islands’ legislators pushed the Attorney General to declare Leonardo Raznovich—a practising barrister in England and Wales and our current legal counsel—a prohibited immigrant purely on the basis of his human rights work for LGBTQIA+ people in the Cayman Islands. It was even suggested that he should be deported and taken from his family home in the middle of the night and sent back to the UK on the first available flight.

We are British citizens that are being oppressed by our government, a suffering most evident by the fact that it has led some LGBTQIA+ persons in the jurisdiction to take their own lives and many others finding it necessary to emigrate in order to settle and found a family elsewhere. This was particularly the case prior to 2016 when there were no immigration rights for same-sex couples.

Dinah Rose QC also made the rather misleading claim that concessions made by her client before the Court of Appeal resulted in the Civil Partnership Act 2020, providing for civil partnerships with legal rights equivalent to marriage. This is far from accurate as it was rather due to Colours Caribbean‘s actions. Even now, the Cayman Islands Government has not agreed that same-sex couples should have the same rights as married different-sex couples. In the paperwork that her client filed with the Privy Council, the Cayman Islands asked the Privy Council to modify the declaration in this regard. Dinah Rose QC cannot ignore this.

Moreover, it was only following a letter threatening with court action sent by Colours Caribbean to the Governor and to the UK Secretary of State, Dominic Raab, that the UK forced the Cayman Islands government to introduce an initial bill which was nonetheless rejected by legislators of the Cayman Islands. This is what led the UK to introduce legislation, which is not a concession by the Cayman Islands Government as Dinah Rose QC has suggested.

Furthermore, the notion advanced by Dinah Rose QC that LGBTQIA+ rights have been secured by the introduction of the Civil Partnership Act by the Governor is, again, far from accurate and indeed misleading: the means by which the rights conferred under the Civil Partnership Act came into existence have themselves been subject, since 20 November 2020, to judicial review in the Cayman Islands.

Until last week, and in blatant contradiction to the principles of open justice and the rule of law, this judicial review had been conducted in secret. This secret judicial review is neither minor nor irrelevant: If Dinah Rose QC succeeds for her client in the Privy Council and the judicial review in the Cayman Islands is also successful, LGBTQIA+ people of the Cayman Islands will be left without same-sex marriage and without civil partnerships, leaving same-sex couples without any legal framework in the jurisdiction. This would be a flagrant breach of our rights under the Cayman Islands Constitution and of the European Convention of Human Rights and we would essentially be back to square one!

It is disappointing that the judiciary, in proceedings that were secret up until 22 January 2021, decided to review the implementation of the Civil Partnership Act that the UK obligated Dinah Rose QC’s client to implement. Having expressed our concerns about the secrecy of the judicial review at the Governor’s Office in person with the Governor a number of days ago, we are still awaiting an appropriate investigation to establish how the judgment authorising the judiciary to proceed was embargoed for over two months and only made public by the work of investigative journalism.

It is also disappointing that it is the President of Magdalen College, an elite academic institution, who is leading legal efforts by the Cayman Islands Government to prevent same-sex marriage in the Cayman Islands.

I was present at the Court of Appeal hearings and listened to the final concluding remarks of Dinah Rose QC at a time when Chantelle and Vickie’s lawyers could no longer address the Court to correct her. It was concerning to me to hear questions raised by Dinah Rose QC such as whether the Cayman Islands was a secular jurisdiction or not, whether marriage equality may lead to polygamous marriage and the denial that the Inter-American Court of Human Rights had concluded that equal marriage was required under the Inter-American Convention on Human Rights (IACHR). Dinah Rose QC did not need to make such obvious misplaced points and so unfairly timed.

Dinah Rose QC’s decision shows that the rights and well-being of our LGBTQIA+ community are of little interest to those who have power and influence over them. It shows that, even today, some think it is not an issue to be the most visible representation of a prestigious academic institution whilst simultaneously representing a discriminatory government that violates the principles of equality and the rule of law.

We contend that Dinah Rose QC is not able to hide behind the cab-rank rule to fend off criticism and have written a complaint about this, amongst other things, to Blackstone Chambers, to which Dinah Rose QC belongs.

For one, the statements used to downplay her involvement and the case’s impact are, as outlined, in blatant contradiction to the lived LGBTQIA+ experiences in the Cayman Island and incredibly misleading. For another, the English cab-rank rule does not apply to barristers instructed by foreign clients. As held in Willers v Joyce & anr [2016] UKSC 43, the Privy Council “is not a court of any part of the United Kingdom.” The Privy Council could, for instance, be sitting in the Cayman Islands as it sat in Bahamas in 2009 when it heard appeals from the Bahamas and Turks and Caicos.

The Privy Council in this case is acting as the final Court of Appeal of the Cayman Islands jurisdiction, not as an English court applying English law. She accepted the brief out of her own volition, and not because she was forced by a rule.She should be honest enough to take responsibility for her own decisions and representation of our government. It is this very government that will seemingly stop at nothing to intentionally rid already marginalised people of any support, be it lawful or otherwise, even going so far as to breach the law itself and cause constitutional crises and conflict with the UK.

We will not stand by whilst the issue at hand is downplayed and misconstrued by misleading statements.

In the words of Chantelle Day and Vickie Bodden-Bush, the couple acting in the Cayman case who have spoken to us, “Same-sex couples who have had civil partnerships in Cayman may sadly find their partnerships to be voided if the judicial review is successful, which makes our marriage equality appeal all the more important.”

They rightly have also pointed out that there is no reason “why same-sex couples should be satisfied with a separate institution to marriage that forever segregates us as different, an institution which further reinforces existing social stigmas and entrenches discrimination.”

It is this ‘othering’ of LGBTQIA+ individuals, couples, and families that we continue to fight against, as part of the minority of British Citizens who still do not have access to equal rights. We sincerely hope that the court will see the justice of helping end this prolonged segregation and inequality.

Billie Bryan, Founder & President,
Colours Caribbean

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