GRAND CAYMAN, Cayman Islands
- His Excellency, Martyn Roper, OBE, Governor of the Cayman
Islands, yesterday confirmed that he has received instructions from
the UK Government, by way of the Foreign Secretary, to utilise the
Governor’s Reserve Power under Section 81 of the Constitution to
publish the Domestic Partnership Bill as presented to, and rejected
by, the Legislative Assembly last week. After a 21-day
consultation period, the Bill, with possible amendments depending on
what arises during consultation, will be made law in early September.

This was entirely to be expected. I and other
members of Government, as well as the Hon. Attorney General, took
pains over and over again to remind members of the Legislative
Assembly during debate that if the Legislative Assembly failed to do
its duty and uphold the law and respect and act upon the declaration
of our own Court of Appeal, then the UK Government would be obligated
to do so. The declaration was explicitly clear: “Chantelle
Day and Vickie Bodden Bush are entitled, expeditiously, to legal
protection in the Cayman Islands, which is functionally equivalent to
marriage.” 

The Court of Appeal continued “Moreover,
proper fulfilment of its legal duty by the Legislative Assembly
should provide the protection sought. We feel driven to make this
final observation. This court is an arm of government. Any
constitutional settlement requires the executive and the legislature
to obey the law and to respect decisions of the court. It would be
wholly unacceptable for this declaration to be ignored.”

The Court also noted “… in the absence of
expeditious action by the Legislative Assembly, we would expect the
United Kingdom Government, to recognise its legal responsibility and
take action to bring this unsatisfactory state of affairs to an end.”

Those members of the House who are now seeking to
deflect responsibility by pretending that this declaration of the
court is merely akin to a suggestion are woefully wrong. The
Grand Court of the Cayman Islands as well as the Court of Appeal of
the Cayman Islands both ruled that the Cayman Islands and the
Legislative Assembly are in breach of the Bill of Rights in our
Constitution, and the European Convention on Human Rights, by the
failure over many years to put in place a legal framework for
same-sex couples that is functionally equivalent to marriage between
heterosexual couples.

The Bill that I introduced to the Legislative
Assembly satisfied the declaration and the law and provided the
required framework that protected the rights of same-sex couples to
private and family life whilst at the same time maintaining the
institution of marriage as between a man and a woman. The Bill
could not be some mere ‘watered down version’ of rights for
same-sex couples. It would have to withstand the scrutiny of the
courts and in particular the Privy Council that will be deciding
early next year on whether same-sex couples here have a right to
marriage or not. This decision in large part will turn on
whether there is in place a sufficiently strong legal framework that
protects the rights of same-sex couples as the Court of Appeal has
ruled they are entitled to under our Bill of Rights. If the answer is
no then the Privy Council will likely rule against us and introduce
same-sex marriage.

I said when I introduced the Bill that this was
about the rule of law and whether the Legislative Assembly understood
its role in not only making laws but in respecting and observing
them. I pointed out several times that if the Legislative
Assembly did not do its duty then the UK Government or the Courts
would stand in for us and do what is required under law.

These points were indeed painstakingly debated in
the Legislative Assembly. But I also made them many times over
many years to Church leaders as well as to all members of the
Legislative Assembly.  In addition, in the weeks prior to
the introduction of this Bill, and in the days preceding the debate
and vote, I spoke to many on the Opposition bench, including the
Leader of the Opposition, on what was at stake if we failed in our
duty to abide by the law. 

Not only would we be depriving our own Caymanians
of rights that they have under the law, but we would also be saying
to the UK and the world that the Cayman Islands Legislative Assembly
has not sufficiently matured and cannot be trusted to carry out a
fundamental duty to respect the rule of law. The matter at hand
was not one that was up for public consultation or debate. The
matter was one of law that required the Legislative Assembly to pass
suitable legislation to protect the rights of Chantelle and Vickie
and other Caymanian same-sex couples as required in a modern society
governed by the rule of law.  So with the failure of the
Legislative Assembly to do what it was obligated to do, the UK, by
way of Section 81 of our Constitution, has now instructed the
Governor to pass a law that recognises and protects the rights
enshrined in our own Bill of Rights. 

The result is that some version of the Domestic
Partnership Bill will become law in a few weeks without further
reference to the Legislative Assembly. What form this law will take
is now beyond our control and will be decided by the UK and the
Governor. This is a very shameful event and one that should have been
avoided. I also know that both Baroness Sugg and Governor Roper
deeply regret that they have been forced to take this action. But the
failure of the majority of the elected members of the
Legislative Assembly to discharge their constitutional duty has left
the UK Government with no other option. What is also regrettable as a
result of this is that the UK will undoubtedly now decide to retain
Section 81 of the Constitution despite my having gotten them to agree
to remove it as part of the pending Constitutional changes. I
have always argued that it is unwise to encourage, and even worse to
force the UK, as we have done, to act on behalf of the Legislative
Assembly as having done so once they may find it easier to do so
again in other circumstances. The failure of the Legislative Assembly
to do its duty last Wednesday has set back our efforts at increased
autonomy immeasurably. 

I am grateful though that the UK Government was
open to persuasion to not utilise Section 81 to introduce same-sex
marriage but to put forward the Domestic Partnership Bill for
consideration. When enacted as law, this will preserve the
institution of marriage as being between a man and a woman whilst
protecting the rights of same-sex couples. It will also allow us
the best opportunity to avoid the Privy Council putting in place
same-sex marriage when they consider the matter next February. 

May the current division among our people soon
disappear, may we all grow to love each other as God has loved us,
and may He who hath founded these Islands continue to bless and
protect us all.