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Same-Sex Marriage in Bermuda

Volume 635: debated on Thursday 8 February 2018

(Urgent Question): To ask the Secretary of State for Foreign and Commonwealth Affairs why he has allowed Her Majesty’s Governor of Bermuda to assent to a Bill that will abolish same-sex marriage in Bermuda.

We are obviously disappointed about the removal of same-sex marriage in Bermuda. The Domestic Partnership Act, to which the Governor of Bermuda assented yesterday, ensures that Bermudians who have been legally married in Bermuda since the Supreme Court decision will retain their married status and enjoy the same legal rights as those in domestic partnerships.

Less than a year ago, same-sex couples had no legal recognition at all under Bermudian law. While the Act withdraws the entitlement for same-sex couples to marry, it replaces it with a provision for domestic partnerships for all couples, regardless of gender. The intent of the Act is to provide domestic partners with the same benefits as married couples, including provision for pensions, inheritance, healthcare, tax and immigration.

After full and careful consideration of Bermuda’s constitutional and international obligations, the Secretary of State decided that in these circumstances, it would not be appropriate to use the power to block legislation, which can only be used where there is a legal or constitutional basis for doing so, and even then, only in exceptional circumstances. It is important to recognise that the regime for domestic partnerships implemented by Bermuda in its Domestic Partnership Act can also meet the European Court of Human Rights requirement for legal recognition of same-sex relationships.

The Government are committed to promoting lesbian, gay, bisexual and transgender equality globally through projects, partnerships and persuasion. In engaging with the British overseas territories, we have to respect that they are separate, self-governing jurisdictions with their own democratically elected representatives and the right to self-government.

However the Government try to dress this up, it is a backward step for human rights in Bermuda and in the overseas territories. Same-sex Bermudian couples who have been married under the ruling of the Bermudian Supreme Court have now been rendered an anomaly. Gay and lesbian Bermudians have been told that they are not quite equal to everyone else and that they do not deserve—this is the word being used—the full marriage rights that other Bermudians enjoy. Cunard and P&O’s Bermuda-registered ships will be banned from holding same-sex marriages at sea.

Does the Minister not worry that when she tells the Russians to respect LGBT rights in Chechnya, or when she tries to convince India, Pakistan or Indonesia to change the law to benefit LGBT people, those countries will just laugh at her and say, “The first territory in the world to repeal same-sex marriage is British Bermuda, and they did it with your express permission.”

The Minister for Europe and the Americas, the right hon. Member for Rutland and Melton (Sir Alan Duncan), said last week in the House that the Government were absolutely committed to “promoting equal rights”—a point that the Minister has repeated today—but did the Government make any attempt to persuade the Bermudian Government to accept the ruling of the Bermudian Supreme Court in favour of same-sex marriage? Did the Minister or any Minister—the Foreign Secretary, the Prime Minister or anybody on behalf of the Government —ring the Bermudian Premier or any of the Ministers in Bermuda to try to change their minds?

Do the Government not see that the Domestic Partnership Act expressly contradicts the Bermudian Human Rights Act 1981? It even states as much in the Act itself. Will the Bermudian Supreme Court not conclude exactly the same now as it did earlier last year, so we will be back to square one? Most importantly, how can it possibly be right that lesbian and gay British citizens in Bermuda—and, for that matter, in Northern Ireland—are worth less than British citizens in this country?

I want to put on the record that I fully appreciate the voice the hon. Gentleman has given to this issue in Parliament not only today, but in his recent Adjournment debate, at business questions and so on. I want to make it clear that we are disappointed that the right to marry has been removed, but we have to recognise that the Act provides legal recognition of same-sex relationships, as required under the European Court of Human Rights. The Secretary of State considered the implications extremely carefully at Bill stage. Without going into the details, Mr Speaker, of the range of conversations that were held, I can say that we are seriously disappointed—

Order. May I say that the Minister is perfectly welcome to go into the detail of those conversations about which the hon. Member for Rhondda (Chris Bryant) had inquired? There is certainly no prohibition from the Chair.

I was not implying that, Mr Speaker. I was saying that I do not have the full details in front of me, but obviously there were extensive conversations internally—

I am very happy to commit to following up on that with the hon. Gentleman in writing. As he will appreciate, this was carefully discussed by those at our end and, balancing the issues concerned in this particular case, the Secretary of State decided not to intervene in the matter.

I respect the right of overseas territories to set their own laws, but in her discussions with the Bermuda Government, will the Minister communicate the fact that there is discomfort with the decision among Members on both sides of this Chamber?

Yes, I will. By allowing the urgent question today, Mr Speaker, you have allowed colleagues to express the views held very strongly in this House. On the ongoing discussions, as my hon. Friend will be aware, there will be a range of opportunities for Government interlocutors from the United Kingdom to interact with those from Bermuda. He will also be aware that this was put into the manifesto of the party that was successful at the last election. Although we in the United Kingdom may disagree with the direction of travel, we have decided in these circumstances not to intervene.

Thank you, Mr Speaker, for granting this urgent question. I thank my hon. Friend the Member for Rhondda (Chris Bryant) for so eloquently and passionately putting the case against this shameful piece of legislation, which turns same-sex couples into second-class citizens just a year after they had won their equality through the courts.

Following a year in which Australia and Chile have joined the march towards marriage equality, this legislation is a significant step backwards. For that to happen anywhere in the world would be shameful, but for it to happen in a British territory—with the legislation signed by a British Governor, and permitted by a British Foreign Secretary—makes us complicit in something that this House has repeatedly voted against.

The Government say they are disappointed, that there is a difficult balancing act to be made between the will of Bermuda’s Parliament and the views of the British Government and that this legislation tries to bridge the gap between the two. That is not really the case: the legislation is in conflict with Bermuda’s own constitution and Human Rights Act. When it comes to the rights of British citizens, there should be no such thing as a balancing act.

On the powers of the Governor to veto this legislation, the Foreign Office states that

“British Ministers expect the Governor to observe international obligations and protect key values.”

The Minister has just said that the law should be in line with the constitution. How does the Governor’s decision to sign this legislation square with that expectation of protecting key values? Surely LGBT equality is a key value. How is it right for the Governor to sign legislation that overturns the independent decision of the judiciary, conflicts with the constitution, and enshrines not integrity but rank inequality into Bermuda’s administration of justice?

The hon. Lady is right to highlight the progress being made around the world on this issue, and our overseas territories observe different states of that legislative progress. Five Caribbean territories—Anguilla, the British Virgin Islands, the Cayman Islands, Montserrat, and the Turks and Caicos Islands—currently have no recognition at all of same-sex unions, and I repeat our disappointment that the Act in Bermuda removes the right for same-sex couples to marry. Against that, however, we must balance issues of self-determination, and having carefully considered those issues, the Secretary of State decided that in this case it would not be appropriate to use his powers to block the legislation. Such powers can be used only where there is a legal or constitutional basis for doing so, and even then only in exceptional circumstances. His judgment was that when engaging with the British overseas territories we must respect the fact that they are separate, self-governing jurisdictions with their own democratically elected representatives that have the right to self-government.

My family has links with Bermuda going back some years, so on a personal level, and across the House, there is deep regret that we find ourselves in this position. Ultimately, however, would it not also be a profound step if Britain were to take action in relation to Bermudian democracy?

Those are the issues that need to be balanced in this case, and to withhold assent would require limited circumstances and need to be based on a legal or constitutional issue. Having considered the circumstances very carefully, the Secretary of State decided that in this case it would not be appropriate to use that power.

I echo the views that have already been stated about our deep regrets about this step. Human rights groups have argued that the new legislation contradicts Bermuda’s constitution, which guarantees freedom from discrimination, and the repeal of the Act is a blow to LGBT campaigners in Bermuda and much further afield. How many representations did the Foreign Secretary make to Bermuda’s Governor before this decision was given assent? Will the Minister urge the Foreign Secretary to use this year’s Commonwealth summit in London to lobby for LGBT equality throughout the 52 Commonwealth states?

I assure the hon. Lady that the Secretary of State considered carefully a range of different views that were communicated to him by a range of different groups. I also understand that the Commonwealth Heads of Government meeting in April will include a strong strand on lesbian, gay, bisexual and transgender rights.

The first slaves were brought to Bermuda in 1620: oppressed, segregated and discriminated against. That is why leaders such as Nelson Mandela, Desmond Tutu and Barack Obama have fought not just for race rights, but the rights of lesbian, gay and bisexual people. This country has been one of the world leaders on this subject, so if this is not the issue on which to refuse assent I do not know what is. The Minister has come to the Dispatch Box and, frankly, I can see the discomfort on her face. Can she get into the detail, or ask the Secretary of State to get into the detail, of the discussions with the Bermudian Government and what our representations entail? Can she at least put them in the House of Commons Library? It is a shame that we stand on the wrong side of human rights in Parliament this morning.

I fully accept the eloquent way in which the right hon. Gentleman makes his case. He will be very aware that the rights on which he speaks so eloquently need to be balanced against the rights of self-determination, based on a democratically elected Government. That is the judgment the Secretary of State had to make. In this case, he decided that the situation was not exceptional enough for him to use those rights.

I am personally stunned by what has happened. Surely this is an exceptional case? The hon. Member for Rhondda (Chris Bryant) is to be congratulated on raising it. May I press the Minister again? Will she please come back to the House with more detail on the conversations between the Governor and the Foreign Secretary? This place deserves that.

How do we expect to be leaders of the world on this issue, and how do we expect to raise this issue seriously in the Commonwealth as the Minister suggests, if they can all turn around and say, “Well, in the territories you sanction it. In Northern Ireland you sanction it”? We are making our country a laughing stock in the international human rights field. Will we be able to think again? Will we put pressure on all our territories to introduce same-sex marriage? Will we consider the self-determination—the phrase the Minister uses—of LGBT people in our territories and stop going on about the self-determination of some usually rich elected politicians, far up in their ivory towers in their islands, who do not represent a lot of the minorities on their islands who we need to stand up for today?

In championing the human progress, as we see it, in England, Scotland and Wales, the hon. Gentleman rightly points out that it is somewhat different in Northern Ireland. As I pointed out, five Caribbean territories currently have no general recognition. There are, of course, a range of other territories that do. Around the world we are moving in the right direction. I strongly believe that in due course the direction of travel will continue to be in the direction he seeks, but in this case we are balancing this issue with allowing the right to self-determination on the back of a democratic manifesto and a vote in the Parliament of Bermuda.

What action will the Minister or the Foreign Secretary take if and when a gay married couple take a case to the Supreme Court and the Bermudian Supreme Court overrules that decision and says it is unconstitutional?

The hon. Gentleman is absolutely right that routes such as the one that he described would be open to people. At this point it would not be possible to speculate about any future legal challenge. Clearly, should such a legal challenge occur, we would, depending on its progress, potentially have to— [Interruption.] Yes, we do have something called the Magna Carta fund, which I understand people might be able to apply to.

When the 2016 referendum in Bermuda failed to reach the turnout threshold, what advice did the Foreign Office give to the Governor of Bermuda on this issue?

Again, I re-emphasise that in terms of UK Government policy, we are explicitly committed to rights for equal marriage. We have to emphasise that, in this particular case, there are not grounds for intervention in the first instance.