Should the UK force its overseas territories to legalise same-sex marriage?

Feb 9, 2021 by

by Andrew Rothman, The Critic:

The UK Government is keen to ensure legalisation of same-sex marriage throughout its dominions, but exercising its colonial authority is not the most prudent tactic.

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.

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