In March 2022, the UK Privy Council ruled the constitutions of the Cayman Islands and Bermuda (two Overseas Territories) do not provide the right for same-sex marriage, with the choice instead with their local assemblies.

While the first same-sex marriages took place in the UK in 2014, the Territories have their own constitutions and laws.

The rulings do not affect other protections in place for LGBT+ people.

This Insight explains the background to the judgments, the situation in other UK Overseas Territories (OTs), and what the next steps might be.

What are Overseas Territories?

There are 14 UK OTs across the globe, but only 10 are permanently inhabited. The majority of their 260,000 inhabitants are British citizens.

The Cayman Islands and Bermuda have a combined population of 128,000 and are the two most populous Territories.

Where are the UK Overseas Territories?

Source: Foreign & Commonwealth Office, The OTs: Security, success and sustainability, 2012, p10. Contains public sector information licensed under the Open Government Licence v3.0

The Territories all have historic links to the UK and with the UK and Crown Dependencies like Jersey form one undivided realm, where the Queen is sovereign. This means they have no separate representation internationally.

Each inhabited territory has its own constitution and parliament or council. They also have a UK-appointed Governor. Generally, they are responsible for the Territory’s defence and other external issues, while local legislatures govern domestic policy.

Why was the Privy Council involved?

The Judicial Committee of the Privy Council is the final court of appeal for the UK OTs. The Committee is primarily constituted of UK supreme court justices.

Cases can be considered once local legal channels are exhausted. Bermuda’s local supreme court had ruled in favour of same-sex marriage, while the Cayman Islands appeals court ruled against it. Both decisions were then appealed to the Privy Council.

What did the Privy Council decide?

Bermuda

The Council ruled that Bermuda’s 2018 Domestic Partnership Act is constitutional. It allows same-sex couples to form partnerships but prohibits them from marrying.

Under the Territory’s constitution, which was introduced by the UK in 1968, the Privy Council determined there were insufficient grounds to support the challenge brought by local Bermudians (though one judge dissented).

Cayman Islands

In a separate case, the Privy Council determined there is no right to same-sex marriage under the Cayman Islands’ Constitution, but its Parliament can introduce legislation to recognise it.

The ruling does not affect civil partnerships, which were introduced in 2020 and confirmed in a local legal judgment.

What is the situation in the other OTs?

Same-sex sexual acts have been legal in all OTs since at least 2000, and all permanently inhabited territories have at least some limited protections in law for LGBT+ people.

Four Territories allow neither same-sex marriage or civil partnerships.

Same sex marriage and civil partnerships in the UK Overseas Territories

Source: Gov.UK, Foreign Travel advice: Local customs, accessed 1 April 2022; PQ 14718 [British OTs: Civil partnerships], 13 February 2020
Same-sex marriage Other type of union No provisions
Ascension, St Helena and Tristan da Cunha Akrotiri and Dhekelia (UK military personnel) Anguilla
British Antarctic Territory Bermuda British Virgin Islands
British Indian Ocean Territory Cayman Islands Montserrat
Falkland Islands Turks and Caicos
Gibraltar
Pitcairn
South Georgia & South Sandwich Islands

Can the UK Parliament impose change?

In short, yes. Parliament has unlimited power to legislate for the OTs.

In practice, the UK Government generally takes responsibility for the Territories’ external affairs and endorses domestic self-government by elected governments and assemblies.

In response to the Foreign Affairs Committee in 2019, which urged the UK Government to prepare to “step in” and set a date for all Territories to legalise same-sex marriage or face UK legislative intervention, the Government said:

As policy on marriage law is an area of devolved responsibility it should be for the territories to decide and legislate on. […] We are working to encourage those Territories that have not put in place arrangements to recognise and protect same sex relationships […]

As of 2022, this engagement continues.

Has the UK intervened on LGBT+ rights before?

There is a precedent for intervention.

In 2000, the Government legislated through an Order in Council to decriminalise consensual homosexual acts between adults in private (PDF) in five Territories: Anguilla, the British Virgin Islands, the Cayman Islands, Montserrat and the Turks and Caicos Islands.

Orders in Council are legal instruments that have the force of law, and are made by the Privy Council in the UK. They are the primary mechanism for the UK to make Territory-related law.

UK-appointed Governors can also act in some OTs to make law without local consent.

The Cayman Islands’ 2020 Civil Partnership Law was introduced by the Governor following an instruction from the UK Government. The local assembly, it argued, had failed to comply with local legal orders when it rejected similar legislation.

How might the Territories respond if the UK acts?

Several Territory Governments have already raised concerns about constitutional overreach by the UK, and called for greater consultation before laws affecting the Territories are made.

In 2018, Montserrat’s Premier said they would not welcome “imperial impositions” on LGBT+ rights, arguing these to be a domestic matter.

In Bermuda, both same-sex marriage and civil unions were rejected in a non-binding referendum in 2016. Its Government has welcomed the Privy Council decision and emphasised other protections in place for LGBT+ people.

What next?

The European Convention on Human Rights applies to all OTs. Some commentators have argued an appeal under the Convention is the next step.

Further reading


About the author: Philip Loft is a researcher in the House of Commons Library, specialising in international affairs.

Image: Bermuda flag by dmitri_66, under CC BY-NC 2.0.

Correction

This Insight was updated on 14.4.2022 to remove reference to a Westminster Hall debate on 19.4.2022, which is no longer taking place.

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