The controversy over Dinah Rose QC’s involvement in the forthcoming Privy Council case on same-sex marriage in the Cayman Islands triggered important discussions about barristers’ role in the administration of justice and the value of the “cab rank” rule. But the case also raised issues of constitutional law that merit consideration: the reach of the European Convention of Human Rights (ECHR), and the proper law-making relationship of the UK Parliament and Government and the local legislature in a British colony.

This is timely. The relationship with the European Court of Human Rights (ECtHR) will be considered in the recently launched independent review of the Human Rights Act. And #RhodesMustFall and other decolonisation initiatives have sharpened the focus on the legacies of British colonial rule.

Cayman Islands is one of fourteen British Overseas Territories, the last vestiges of the British Empire. (Other BOTs include Gibraltar and the Falkland Islands.) Its 2009 Constitution (adopted after eight years of negotiations and approval by referendum) provides for a governor appointed by the Queen and the three branches of government: an executive Cabinet, a single-chamber Parliament (until recently called the Legislative Assembly) with 21 members (19 elected and two ex officio), and a “judicature” consisting of a lower court (the Grand Court) and the Cayman Islands Court of Appeal. For the purposes of international law, the Cayman Islands are part of the United Kingdom, and the ECHR has been extended to them.

Legal recognition and protection for same-sex couples is very much a live issue for the ECtHR

The case the Privy Council will hear later this month is an appeal against a November 2019 Cayman Islands Court of Appeal judgement. The appellants are a same-sex couple, Chantelle Day and Vickie Bodden Bush. After their marriage licence application was refused, they took the Government to court, arguing that the Cayman Islands Marriage Law (which defines marriage as “the union of a man and a woman as husband and wife”) contravenes their constitutional rights. (The Bill of Rights – part of the 2009 Constitution – is based on the ECHR.) They won. The Government (now represented by Dinah Rose QC) appealed to the Court of Appeal, which ruled in the Government’s favour: The Bill of Rights does not guarantee same-sex couples the right to marry. Day and Bodden Bush have appealed to the Privy Council.

But the parties to this dispute are not far apart. In the Cayman Islands Court of Appeal the Government conceded that the Legislative Assembly must provide Day and Bodden Bush with a “legal status functionally equivalent to marriage, such as civil partnership”. Its failure to do so would be a violation of the right to respect for private and family life, in breach both of the Bill of Rights and of Article 8 of the ECHR.

The court agreed. It declared that Day and Bodden Bush were entitled “expeditiously” to legal protection functionally equivalent to marriage. And it made clear that, if the Legislative Assembly failed to move quickly to pass a law recognising civil partnerships for same-sex couples, the United Kingdom Government should step in to do so itself.

The Cayman Islands legislature did not oblige. After a heated two-day debate the Domestic Partnerships Bill (introducing civil partnerships – equivalent to marriage in every respect – for same-sex couples) was rejected by a vote of 9 to 8. So the Governor, acting on the instructions of the UK Government and using reserved powers under the Constitution to make law relating to “external affairs”, passed the bill. As Dinah Rose QC said in her recent statement on her involvement in the case: “This makes the Cayman Islands one of the most progressive countries for LGBTQ+ rights in the Caribbean.”

Legal recognition and protection for same-sex couples is very much a live issue for the ECtHR. In the past decade or so the court has heard cases involving same-sex couples in Austria (Schalk and Kopf v Austria in 2010) and Italy (Oliari v Italy in 2015 and Orlandi v Italy in 2017). Cases challenging the lack of legal recognition for same-sex couples in Russiaand Poland are on its docket for consideration soon. (“Soon” is a relative term in respect of the ECtHR: cases take years to come to court.)

The ECtHR is mindful of “evolving attitudes in democratic society” across Council of Europe member-states, and careful not to usurp the democratic function of those countries’ legislatures or judiciaries. In rejecting the claim of a right to same-sex marriage in Austria, the court in Schalk and Kopf noted that only six out of the 47 Council of Europe member-states had introduced same-sex marriage. The court in Oliari five years later noted that 11 recognise same-sex marriage, and a further 18 authorise some form of civil partnership.

The precise parameters of legal recognition for same-sex couples under the ECHR remain uncertain

In her October 2020 report (submitted as a “third party intervention” in the Formela v Poland case) the Council of Europe Commissioner for Human Rights noted a continuation of this trend: 16 have introduced same-sex marriage and 24 provide for some form of registered partnership – some with the same legal rights as civil marriage and some with fewer rights. “Considering that the first registered partnership for same-sex couples was made available in Denmark in 1989 and that only 20 years ago not one single member state recognised same-sex marriage”, she added, “this is a truly remarkable evolution.”

The court in Oliari concluded that, while Article 8 of the ECHR does not require states to recognise same-sex marriage, Italy was in breach of Article 8 for failing to give stable and committed same-sex relationships some form of legal recognition. The precise scope of this legal recognition is within a state’s discretion (“margin of appreciation”, in ECtHR-speak). The court distinguished between “core” rights (which must be protected) and other “supplementary” rights (not requiring protection), without giving examples of which specific rights it envisaged in either category.

The two judgements against Italy were not clear-cut. In Oliari three of the seven judges, while agreeing with the outcome (that same-sex relationships must be given legal recognition in Italy), disagreed on the basis for this. In their view this obligation arose from the Italian Government’s breach of its “duty of trust” to its citizens, for its failure to act on the Italian Constitutional Court’s order to grant such recognition. In light of this there was no need to consider whether Article 8 of the ECHR might require any Council of Europe member-state to accord appropriate legal recognition and protection to same-sex unions. Similar qualifications were made by two of the seven judges in Orlandi.

In considering “evolving attitudes” the ECtHR is also mindful of the particular country’s history and traditions. The Cayman Islands Constitution abounds with references to the Islands’ Christian heritage and values. Its opening words acknowledge the “distinct history, culture and Christian heritage and its enduring influence and contribution in shaping the spiritual, moral and social values that have guided their development and brought peace, prosperity and stability to those islands” and “affirm their intention to be a God-fearing country based on traditional Christian values, tolerant of other religions and beliefs.”

So, for the time being the precise parameters of legal recognition and protection for same-sex couples under the ECHR remain somewhat uncertain. One thing is clear, however: the position taken by the Cayman Islands Government and accepted by the Court of Appeal – that failure to give same-sex couples protection functionally equivalent to marriage is a breach of the ECHR – is overstated.

This difference in attitudes has long been a point of contention in relations between the UK and its Caribbean BOTs

The Governor’s use of his powers to enact the Domestic Partnerships Law rejected by the Legislative Assembly is being challenged in a Cayman Islands judicial review due to be heard this Spring. The claimant’s argument is that the Governor acted ultra vires: his law-making powers in respect of “external affairs” are intended to cover matters impacting foreign relations, and do not extend to obligations under an international treaty such as the ECHR. The Constitution envisages a different mechanism for this: powers reserved to the Queen to legislate for the “peace, security and good government” of the colony. These powers are exercised by Order in Council, so are subject to greater oversight of the UK Parliament.

The difference in attitudes to legal recognition for same-sex couples has long been a point of contention in relations between the United Kingdom and its Caribbean BOTs. In its February 2019 report on BOTs, the House of Commons Foreign Relations Committee noted that, “from a UK perspective, a notable point of divergence and friction is same-sex marriage, which has been legalised in all but the five [BOTs] in the Caribbean”. “The [UK] Government should set a date by which it expects all [BOTs] to have legalised same-sex marriage”, it concluded. “If that deadline is not met, the Government should intervene through legislation or an Order in Council.”

The UK Government is keen to ensure legalisation of same-sex marriage (or its equivalent) throughout its dominions. However laudable this goal may be, the approach taken – the exercise of powers by a colonial governor, over the heads of the elected local parliament, based on a stretched reading of ECtHR case law – is not the most prudent tactic. The case before the Privy Council may be an opportunity to correct this.

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Andrew Rothman is a lawyer with an interest in human rights.