By: Lucy McCann


Privy Council rules on the constitutional status of same-sex marriage in Bermuda

6 April 2022 by

The constitution of Bermuda was the subject of the first case. Image: Flickr

Attorney General for Bermuda v Roderick Ferguson & Ors (Bermuda) [2022] UKPC 5 — Judgment here, links to hearings here

Chantelle Day & Anor v The Governor of the Cayman Islands & Anor (Cayman Islands) [2022] UKPC 6 –Judgment here, links to hearings here

The Bermuda Case

In the Bermuda case, the Attorney General of Bermuda appealed the decision of the Court of Appeal for Bermuda (decision here), which found in favour of the Respondents: a gay Bermudian, OUTBermuda (a Bermudian LGBTQ charity), a lesbian Bermudian, and three Bermudians associated with Bermudian churches, holding that s.53 of the Domestic Partnership Act 2018 (“the DPA”) of Bermuda, which confines marriage to a union between a man and a woman, was invalid under the Bermudian Constitution (“the Constitution”).

Lord Hodge and Lady Arden (Lord Reed and Dame Victoria Sharp agreeing) gave the judgment of the Board, allowing the appeal of the Attorney General. Lord Sales gave a dissenting judgment.

Background

Same-sex marriage is highly controversial in Bermuda. The political backdrop to this case is outlined at [25-30]. Importantly, following a general election in 2017 the Progressive Labour Party introduced the Domestic Partnership Bill, which was subsequently passed, in an attempt to reach a viable compromise on the issue of same-sex marriage. The DPA provides for legally recognised domestic partnerships between any two adults, but s.53 confines marriage to a union between a man and a woman.

The Legislature in Bermuda is bound by the Constitution, summarised at [7-9]. Chapter 1 of the Constitution sets out fundamental rights and freedoms. The Constitution does not confer a right to marry. Section 8 provides for the protection of freedom of conscience:

no person shall be hindered in the enjoyment of his freedom of conscience…the said freedom includes freedom, either alone or in the community with others, and both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

Although Bermuda is not in Europe, the European Convention on Human Rights (“the Convention”) applies to Bermuda as a matter of international law through declarations made by the UK pursuant to the Convention (when it was responsible for Bermudian foreign policy) and subsequently permanently renewed after Bermuda became independent. Although it does not apply in domestic Bermudian law, as one of the “antecedents” to the Constitution, it is relevant to the interpretation of constitutional rights [10-21].


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Court of Appeal refuses permission to judicially review infected blood compensation scheme

21 February 2022 by

CN v Secretary of State for Health and Social Care [2022] EWCA Civ 86

Judgment here, hearings here: part 1 and part 2.

In a judgment handed down on 4 February 2022, the Court of Appeal dismissed an appeal for permission to apply for judicial review concerning the lawfulness of the England Infected Blood Support Scheme (EIBSS) (the “Scheme”). The Court of Appeal concluded that the Scheme’s exclusion of those infected with hepatitis B was not discriminatory. In any event, the Secretary of State’s justification for who was to be compensated under the ex gratia Scheme was to be given a wide margin of appreciation by the courts.

Background

CN

The Appellant, CN, suffers from hepatitis B virus (“HBV”) which he alleges he contracted when given blood transfusions on or after 14 April 1989. Consequently, CN has suffered from serious health problems, and was forced to abandon his business to receive medical treatment; he has been reliant on state benefits for the last 13 years. CN is a core participant in the ongoing infected blood inquiry, which was established to examine the circumstances in which NHS patients in the UK were given infected blood and blood products (read more about the Inquiry here).

In 1995, CN issued a civil claim against the NHS and the National Blood Authority (now the NHS Blood and Transplant Service). Despite obtaining expert evidence to the effect that his infection was obtained from infected blood, he had to discontinue his claim when legal aid was withdrawn.

Infected blood and the England Infected Blood Support Scheme (EIBSS)

The Scheme was set up on 1 November 2017, to provide ex gratia support to people historically infected with hepatitis C virus (“HCV”) and/or human immunodeficiency virus (“HIV”). Specifically, the 2017 Directions set out the EIBSS’s purpose as:

a scheme to make payments and provide support in respect of individuals infected with HIV or Hepatitis C (or both) from blood or blood products used by the NHS and to provide support to family members of such individuals.

The Scheme addresses the ongoing social issues concerning those infected and affected by HIV and HCV from unscreened products. The Scheme recognises a moral imperative to compensate those infected with HCV and HIV in circumstances where attempts to allege negligence against the NHS would run into significant difficulties of fault-based liability and evidential issues surrounding the state of scientific knowledge at the time. It also helps families and partners after the death of someone infected, who would otherwise be unable to make a civil claim. 

Those infected with HBV do not fall within the remit of the Scheme. In basic terms, this is because the NHS screened blood and blood products for HBV from the mid 1970s, so the number of patients infected with HBV were low after screening. Within the Scheme, the cut-off date for HCV claims is September 1991, when screening was introduced. For HIV there is no cut-off, but the eligibility criteria make clear that after October 1985, when the NHS screened for HIV, it was very unlikely that HIV would be transmitted through infected blood.


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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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