Colours Cayman calls for action on same-sex marriage

Advocacy group warns of impact of constitutional reforms

Colours Cayman has called upon Governor Martyn Roper to establish a deadline for government to act on the issue of same-sex marriage.

In November, the Court of Appeal placed the onus on the Legislative Assembly to act “expeditiously” in establishing legal protection for same-sex couples that is “functionally equivalent to marriage”.

In a 3 Feb. letter to the governor, the LGBTI-advocacy group said there has been no indication that the legislature is working on the matter.

Billie Bryan, Colours Cayman

“The Court of Appeal declared in November that LGBTI+ people have a constitutional right to a legal framework and ordered the government to put that framework in place ‘expeditiously,’ yet there is no evidence of anything having been done,” wrote Colours Cayman president Billie Bryan to Roper.

“In this respect, could you, Your Excellency, publicly state by when the UK would deem the Cayman Islands government not to have acted ‘expeditiously’ in accordance with the order of the Court and, as such, would step in and legislate by Order in Council as you have previously suggested would happen in those circumstances. Respectfully, we need a definitive deadline.”

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The Court of Appeal ruling stated that in the case of delay by the Cayman Islands government, the UK would be expected to take action.

“We … state that it would be wholly unacceptable for this declaration to be ignored: that there can be no justification for further delay or prevarication,” the Court of Appeal wrote in November. “That 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.”

During the opening of the Grand Court in mid-January, Attorney General Samuel Bulgin said his office was working on a civil partnership bill that would be considered by government.

“The process is starting, and the AG’s office is working on a draft bill. Hopefully, the premier can say more at the next [Legislative Assembly] meeting if things progress,” a statement from the Premier’s Office read at the time.

That bill has not yet been presented to the Legislative Assembly for debate.

The same-sex marriage issue is also being taken to the UK Privy Council by lawyers representing Chantelle Day and Vicki Bodden Bush, who have been fighting for the right to marry in the jurisdiction.

“It will be submitted that the Cayman Islands Court of Appeal should have interpreted the Constitution in a manner which protects and promotes fundamental rights and freedoms (as the Chief Justice did) rather than adopting an approach that does the very opposite,” wrote attorney Ben Tonner, who represents Day and Bodden Bush, in a statement to the Cayman Compass last month.

Constitutional reforms

In a separate letter to Premier Alden McLaughlin, dated 21 Jan., Colours Cayman explained its concern that proposed constitutional reforms could be detrimental to human rights and minority groups.

The reforms, announced in November, would amend Section 81 to remove the governor’s reserved power to write legislation, disallow legislation and write standing orders for the Legislative Assembly, and would establish a mandatory requirement for consultation on any proposed legislation or orders in council.

“This constitutional reform will effectively force minorities to go to Buckingham Palace, i.e., 5,000 miles away, to seek effective legal remedy whenever local courts find that violations of human rights have been made by local legislators, unless you are able to articulate in law otherwise. This is, in our view, a violation of good governance and human rights in and of itself,” Bryan wrote in the letter to the premier.

She argues that by amending Section 81, the jurisdiction is left with no local authority to redress mistakes or misuse of power by the legislature in regard to human rights.

“The power of the courts in the Cayman Islands – which includes the Privy Council – is limited to declarations of incompatibility, with the effect that local laws found by the courts to be in breach of the Bill of Rights of the Constitution remain in force and rectification of any declared incompatibility is entirely left for the local legislature to address, if it wishes to do so,” Bryan’s letter states.

She goes on to write that the proposed constitutional reforms will disrupt the power balance with London and “would turn the legislature of the Cayman Islands into a quasi-sovereign parliament, albeit for human rights matters only”.

“LGBTI people fall within a minority group that is likely to suffer most, but not uniquely, as a result of this proposed change due to the anti-LGBTI sentiment and ongoing discrimination they suffer in the hands of the Cayman Islands Government,” she continued.

In the absence of action by the premier to address human rights concerns, Colours Cayman intends to lobby the UK Parliament on the matter and pursue a challenge in the High Court in London regarding the reforms.

Read more:
Colours Cayman letter to Governor Martyn Roper
Colours Cayman letter to Premier Alden McLaughlin

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