Committee calls on UK to intervene if Overseas Territories do not legalize same-sex marriage

The U.K. Parliament passed an amendment to the Sanctions and Anti-Money Laundering Bill in the House of Commons Tuesday, which will require British Overseas Territories to adopt public beneficial ownership registries.

A committee of U.K. lawmakers is urging its government to intervene if the British Overseas Territories do not legalize same-sex marriage or abolish rules tied to belongership, the equivalent to Caymanian status, or a similar status.

A report by the Foreign Affairs Committee of the House of Commons has recommended that the U.K. government should set a date by which it expects all overseas territories to have legalized same-sex marriage and, if necessary, legislate itself for the territories through an Order in Council, if such a date is not met.

The committee also put forward that belongership and equivalent concepts should be phased out to enable British citizens in the territories to vote or hold elected office.

“While we recognize that the OTs are small communities with unique cultural identities, we do not accept that there is any justification to deny legally resident British Overseas Territory and U.K. citizens the right to vote and to hold elected office,” the Foreign Affairs Committee report said.

“This elevates one group of British people over another and risks undermining the ties that bind the UK and the OTs together in one global British family.”

The cross-party parliamentary committee members further reiterated demands for a clear and detailed timetable for the establishment of public beneficial ownership registers in all territories, calling it “a matter of national security” for the U.K. and stating that a recently agreed delay until 2023 was “simply unacceptable.”

The report presents the results of a parliamentary inquiry into the future and resilience of the overseas territories and the Foreign and Commonwealth Office’s management of its responsibilities toward them.

After hearing evidence last year from a range of U.K. government and overseas territories representatives, including Eric Bush as head of Cayman’s London Office and chair of the UK Overseas Territories Association, the committee concluded that the relationship between the U.K. government and the British territories is “stuck in the past.”

“The U.K. and the OTs are family, but that relationship must be underpinned by shared duties to each other and values,” said the Chair of Committee, Tom Tugendhat. “That is why we call for the U.K. government to reconsider the relationship and [why we] are critical of Belongership and its equivalents. We also call on the OTs which have not yet done so to legalize same-sex marriage.”

The committee chair said it was time to “tackle tensions and reset the relationship.”

The report recommended an independent review of cross-government engagement with the overseas territories, which should include how the FCO manages its responsibilities and consider the costs, benefits and risks of moving the primary responsibility for the OTs away from the Foreign Office.

In giving evidence, some territories argued that the FCO should not lead the relationship between the U.K. and its territories because it reinforced the notion that the overseas territories are foreign, which was not fit for purpose given the modern nature of the relationship.

“We are calling for government to step back and take a considered view of how we engage with each other. Providing certainty for the OTs will strengthen our ties,” Mr. Tugendhat, a Conservative MP, said. “Just as we must stick to the date Parliament set as part of the Sanctions and Anti-Money Laundering Act 2018, we must reopen the discussion on the best way to manage the relationships between us [that] will give voice to the Overseas Territories in Whitehall so that future changes required by our shared security include wider input from the Overseas Territories.”

The Sanctions and Anti-Money Laundering Act threatens an Order in Council, an extreme and rarely used measure by which the U.K. legislates for the devolved territories, if overseas territories have not established public registers of beneficial ownership by the end of 2020. This deadline was later extended until 2023 in discussion between FCO and territory representatives.

In the territories, the threat of an Order in Council raised essential questions about the constitutional relationship with Britain. The overseas territories have devolved responsibilities and their own parliaments, but they are not represented in the House of Commons or the House of Lords, and they struggle to have their voice heard in the U.K. government.

The Cayman Islands government said it would challenge such an order in court, if it were ever made. Government subsequently held talks with the U.K. seeking assurances that the British government would not legislate in devolved matters without consultation.

Written evidence to the committee submitted by the Cayman Islands government also highlighted the strains in the relationship caused by frequent statements made by British lawmakers, stating, “We would particularly like this to include a conversation on sanctions against individual members, parliamentary committees, and [All Party Parliamentary Groups], who are found to have either failed to engage with the Government of the Cayman Islands in relation to reports or inquiries which directly affect our reputation, or who have misused parliamentary privilege to malign our Islands without a sufficient factual basis.”

Other “points of friction” in the relations identified by the committee are the lack of a legalization of same-sex marriages and “belongership and its equivalents,” which the report called “wrong.”

The FCO acknowledged that Caribbean OTs are “notably slower” on the issue and that “rights to same-sex marriage are being contested.”

In the Cayman Islands, Chief Justice Anthony Smellie will decide within the next few months whether the Cayman Islands ban on same-sex marriage should be overturned. He is adjudicating a judicial review and constitutional challenge brought by Caymanian Chantelle Day and her partner Vickie Bodden Bush, who were refused a marriage license.

The Foreign Affairs Committee members demand that the U.K. must do more than simply support the legalization of same-sex marriages in principle.

The U.K. government “must be prepared to step in, as it did in 2001 when an Order in Council decriminalized homosexuality in OTs that had refused to do so,” the report said.

Meanwhile, belongership and its variants are enshrined in the constitutions of Anguilla, Bermuda, BVI, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat and Turks and Caicos. Typically, those who do not have belonger status, or the equivalent, cannot vote or hold elected office, even if they are permanently resident British Overseas Territories or U.K. citizens. The committee asked the various territories for the reasoning behind the special status. Bermuda argued it was a devolved matter, the BVI government said that its constitution “recognizes the distinctive character and culture of the BVI and seeks to ensure its protection” and “Cayman did not respond,” according to the report.

The committee called on the U.K. government to initiate a consultation process and to work with OT governments “to agree a plan to ensure that there is a pathway for all resident U.K. and British Overseas Territory citizens to be able to vote and hold elected office in [the] territor[ies].”

The FCO should, in response to the report, set “a deadline for phasing out discriminatory elements of belongership, or its territory-specific equivalents,” the committee said.

Government departments are expected to respond to a select committee report within 60 days. The committee may then publish a further report addressing the government response. The Foreign Affairs Select Committee can also recommend its report for debate in the House of Commons.

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  1. In your report above, a critical point in the FAC Report which the media is ignoring or not giving enough coverage to (apparently not juicy/sensational or enough of a hot-button issue for some!!) which addresses the unequal treatment historically of our people.  Our people have a right to be fully informed. Please consider updating it and report the full facts.

    Page 3 (Summary) “the UK Government needs to ensure that those who should be able to claim British Overseas Territories citizenship can do so.” 

    Paragraph 4, Pages 58 “The issue of citizenship by descent stems from an anomaly in the British Nationality Act, which means that fathers with British Overseas Territories Citizenship cannot pass it on to children born outside the OTs between 1948 and 2006 if they were not married to the child’s mother at the time of birth.103 In May 2018, the Joint Committee on Human Rights described this anomaly as an unacceptable form of discrimination, while Montserrat’s representative, Janice Panton, said it “has caused a lot of anguish among some parents.” Lord Ahmad was not able to indicate when the matter would be resolved. He said that “discussions are ongoing across Government on this.”

    Paragraph 4, Point 60. “The Government should urgently address concerns in the OTs about the issue of citizenship by descent and anomalies in the British Nationality Act that have taken too long to resolve.