BVI’s Referendum on LGBT Rights: The Implications
By Craig Brewin, Head of Research
The Premier of the British Virgin Islands has announced a referendum on same-sex marriage and civil partnerships to be held later this year. This will be after the conclusion of a court case on the issue, currently being heard. This follows on from a case heard in the Cayman Islands related to whether it was legal for the Governor to sign their civil partnerships legislation into law. The outcome of this has some broader implications, but let’s start with a brief summary of what led up to this.
There have been a series of court cases in the Cayman Islands and Bermuda about same-sex couples' legal, financial and property rights. The outcome was a judicially imposed compromise that led to legislation being passed territories that allows couples to get these rights without marrying. This provides the equality guaranteed under the Constitution Orders and the European Convention on Human Rights (ECHR) but prevents same-sex marriage. Same-sex marriage is legal in some overseas territories, but not all, and Bermuda specifically legislated against it. The Bermuda decision to ban same-sex marriage was deemed to be lawful by the Privy Council.
Last month's Court of Appeal case in the Cayman Islands was a challenge to how the legislation on civil partnerships passed into law. It failed to pass in the Assembly, but the Governor, with the full support of the Premier, signed it into law anyway. This was done using the Governor's reserve powers, which allow him to pass legislation relating to the functions he is responsible for. These functions include "external affairs," which the Governor stated includes compliance with the European Convention on Human Rights (ECHR). I find that very interesting.
The case, brought by the Christian Association for Ethics, argued that this was outside the Governor's area of responsibility and the UK should have imposed the legislation through an Order in Council. The Appeal Court stated that this was not a case of the UK imposing legislation on the Islands, but the Governor ensuring a previous direction from the Court of Appeal was complied with. Which legal powers the UK chooses to use is for them to decide. It is unclear why the Christian Association for Ethics wanted an Order in Council, but it was possibly for propaganda purposes.
Arguing against "imposition" is an easier sell than arguing against the right of people you have never met to choose their own next of kin. Ultimately, the judge criticised those who brought the case for wasting public money and creating years of uncertainty for 93 same-sex couples on the islands. He said the decision was a "paradigm example of the sort of case for which the power of the Governor was reserved". But did he mean compliance with court directions or compliance with the ECHR as a whole? The first is very narrow, but the second is very broad.
However, some implications are clear, and one has to assume that the legal settlement in Bermuda and the Cayman Islands applies equally to the four overseas territories without legislation on civil partnerships or same-sex marriage. They are covered by the same European Convention and have almost identical constitutions. But one also has to assume that the LGBT+ community would have to go through the same lengthy and expensive legal process as happened in the Cayman Islands and Bermuda before the Governors respond. The UK Government has no intention of making an Order in Council despite the efforts of organisations such as Colors Cayman (and the Cayman Christian Association for Ethics) to get it to change its mind.
But should it be necessary to fight legal cases in every territory and for every marginalised group covered by the same article of the ECHR? On disability, for example, there have been half a dozen organisations calling for something to be done in Montserrat. There were two relating to the port, two sets of election observers, the UN, and the UN mission. And indeed, the FCDO itself. But the local Government doesn't respond, and the Governor doesn't feel the need to.
The Cayman Appeal Court decision could have ended the debate about equal rights for same-sex partnerships, but it hasn't. Colors Cayman, one of the main LGBT+ campaign groups, lobbied Lord Cashman to publish a Bill last year in the UK that would have overturned the Bermuda settlement and allowed full marriage rights. This caused some outrage among opponents of LGBT+ rights, with the Chairperson of the Montserrat Christian Council (where no gay couples have ever asked to marry) going as far as to threaten suicide. In other overseas territories, those who want to resist the incremental spread of marriage and civil partnership laws have a more pragmatic approach.
Although there was never any prospect of it being introduced into parliament, the Cashman Bill was used by opponents of LGBT+ rights to again raise the prospect of the "imposition" of marriage rights in the Caribbean. This is despite the UK Government's repeated denials. This became an issue in the BVI last year when their Christian Council tried and failed to have the marriage of two women who married abroad annulled. Again, the Court criticised those making that case for wasting their time. But the case continues, with the couple challenging the Government's decision not to issue them a BVI marriage certificate.
The BVI Government has recognised that the threat to their opposition to same-sex marriage is not Lord Cashman or even the UK Government; It is their own citizens, courts, and lawyers. Natalio Wheatly, the BVI Premier, has said that if the couple wins their case, then it will legalise same-sex marriage in the BVI, and this must not happen. Whatever the outcome, he plans to hold a referendum on the issue later this year. He said that the Government will defend its existing law in court but also that the issue is too important for the judiciary to make policy on. He expects the people of BVI to "defend what they believe to be socially and morally right," and legislation will undoubtedly follow if the Government loses the case.
In a challenge to the developing legal settlement in the Caribbean OTs, Wheatly intends to include civil partnerships in his referendum, and although the vote against same-sex marriage would likely be won, the position on civil partnerships is less clear. He could develop legislation similar to that of Bermuda but has chosen not to. The problem this causes for the Governor is that legislation banning civil partnerships would almost certainly be deemed unconstitutional if challenged in the courts and a breach of the ECHR on which the constitution is based. But the debate changes if there is an overwhelming vote to ban civil partnerships in a referendum.
Would the Governor use his "external affairs" brief to protect LGBT+ islanders and block legislation banning civil partnerships, or would he wait for sympathetic lawyers to oppose it through the courts? The former would almost certainly lead to the cries of "imposition" from organisations sympathetic to the values and tactics of the Christian Council for Ethics. The marriage of the two women in the BVI who brought the court case would, in the Cayman Islands, be treated as a civil partnership, and it's hard to see how it could not be recognised at all in the BVI. There may be a storm coming.