UK’s Minister for Women and Equalities offers “encouragement” for same sex marriage rights in British Overseas Territories

On 12 October 2016, Vicky Foxcroft MP asked the UK’s Minister for Women and Equalities “what steps the UK Government is taking to ensure that same-sex marriages are recognised in all British Overseas Territories; and what recent (a) meetings and (b) correspondence she has had on that issue“?

On 8 November 2016, Caroline Dinenage MP, the Parliamentary Under Secretary of State for Women and Equalities, gave the following written answer:

The Marriage (Same Sex Couples) Act 2013 enabled overseas same sex marriages to be recognised as marriages in England and Wales since 13 March 2014. Non-marital overseas relationships, such as civil unions, are also recognised as civil partnerships in England and Wales under the Civil Partnership Act 2004.

As responsibility for legislating on marriage law is a devolved competency for British Overseas Territories, the UK Government cannot ensure that same-sex marriages are recognised in all Territories. However, following the Marriage (Same Sex Couples) Act 2013, the UK Government wrote to all British Overseas Territory Governments to advise them of the change in UK law; to encourage them to introduce similar provisions in their territories; and to ascertain if they had any immediate plans to legislate in this area.

We received a mixed response. The majority of Territories explained that they had no immediate plans to follow the UK approach but others did identify that they would consider introducing legislation. Since that correspondence, the Pitcairn Islands have legislated to introduce same sex marriage and we understand others will follow.

More widely, the UK Government continues to raise LGBT equalities with the Overseas Territories. Earlier this month, Baroness Anelay addressed LGBT issues when she spoke to the Cayman Islands Legislative Assembly. The Solicitor General will also co-chair a session in November with the Rt. Hon Baroness Anelay, Minister for the Overseas Territories, on human rights at the Joint Ministerial Council.

The UK Government will continue to work with the British Overseas Territories on LGB&T equality and wider human rights issues. We stand ready to offer support to any Territory wishing to follow the UK’s approach“.

The use of the words “devolved competency” is highly debatable, given the subtle differences that arise with respect to each British Overseas Territory’s precise constitutional relationship with the UK and the UK’s Parliament; the role of the Governor in each jurisdiction (subject to the terms of each jurisdiction’s written Constitution); and the role of the UK in its representation of the British Overseas Territories in the sphere of international affairs.

The focus on the phrase “same sex marriage” is also significant: Caroline Dinenage MP’s answer does not go so far as to suggest that the UK Government does not have the power or the obligation to ensure that same sex relationships are legally recognized in the British Overseas Territories (whether as marriages, civil partnerships, or civil unions).

It must be arguable, at the very least, that the UK has both the power, and the legal obligation, to impose a minimum framework for the legal recognition of same sex relationships in the British Overseas Territories, if they do not each enact local legislation as a matter of urgency.

From an ECHR perspective, the UK is the relevant signatory state, and the UK Government would be the Respondent to any appeal that might have to be pursued to Strasbourg, following Oliari v Italy and other recent decisions, alleging a breach of a same sex couple’s human rights.

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