Governor Martyn Roper has made public instructions issued by UK Overseas Territories Minister Baroness Elizabeth Sugg approving use of his reserved powers to push ahead with the Domestic Partnership Bill.
Roper, in a statement issued Friday afternoon, released the letter as he defended the legality of his action in relation to the bill and its accompanying legislative changes, saying it is within his remit.
The release of Sugg’s letter, dated 5 Aug., comes a day after Opposition Leader Arden McLean wrote to UK Foreign Secretary Dominic Raab over the governor’s decision to press ahead with the bill, which was defeated by local legislators last month.
McLean, in his letter to Raab which was dispatched Thursday, called for Roper to provide the legal mandate for his recent constitutional involvement in the bill. In the absence of that being provided, he turned to Raab to ask how Roper could intervene on what McLean described as domestic policy issues.
In her letter to Roper, Sugg stated, “After giving this matter due consideration, I approve, on behalf of the Secretary of State, the use of your powers under section 81 of the Cayman Islands Constitution to: (i) publish in a Government Notice bills on domestic partnerships which is in compliance with the Court of Appeal’s judgment of 7 November 2019; and (ii) assent to the bill on behalf of Her Majesty 21 days after its publication.”
Sugg’s letter continued: “As well as serving as Secretary of State approval under section 81 of the Cayman Islands Constitution, please treat this letter as instructions addressed to you on behalf of Her Majesty (as referred to in section 31(2) of the Cayman Islands Constitution) to act in the manner described above.”
Roper, in his statement, sought to allay fears that his reserved powers will be further exercised.
“As Governor, this is not a position I ever wanted to be in. Such situations have been, and will be, extremely rare. The UK, and I as Governor, fully respect Cayman’s extensive responsibility for domestic affairs. But I am ultimately responsible for good governance,” he said.
Roper, in defence of his decision on the contentious issue, said the court had indicated that if the Cayman Islands legislature failed to act to rectify the discrimination of same-sex couples, “the UK should recognise its responsibility for ensuring that the Cayman Islands complies with its responsibilities under the Constitution and its international obligations”.
He said the Court of Appeal was clear that, by the Cayman Islands’ continuing failure to put in place a legal framework for same-sex couples which was functionally equivalent to marriage, the islands were in breach of the Bill of Rights in the Constitution and the European Convention on Human Rights.
“Ensuring compliance with international obligations falls squarely within my responsibilities under section 55(1) (b) of the Constitution. Given that responsibility, I was instructed, on 5 August, by the Minster for Sustainable Development and the Overseas Territories, Baroness Sugg, who is acting on behalf of the UK Secretary of State, to utilise Section 81 of the Cayman Islands Constitution to rectify this situation. I have today received permission to release that letter,” he said.
That decision related to the appeal lodged by the government after Chantelle Day and Vickie Bodden Bush won their legal case challenging Cayman’s marriage law.
Roper said the instruction by the UK, and his action as governor, “is fully consistent with the UK response to the Foreign Affairs Committee in 2019”.
“The UK stated that these matters are best handled by local legislatures, justice mechanisms and legal processes. In the Cayman Islands, the Legislature rejected the Domestic Partnership Bill providing a legal framework for same-sex couples. In such circumstances, the Court of Appeal declaration was clear, that the UK must step in to rectify this situation,” the governor said.
Roper also pointed out the Cayman Islands government and the attorney general had “already accepted” that Cayman was in breach of the Bill of Rights in relation to same-sex unions.
Weighing in on the ongoing public debate on the issue, Roper called for civility in the discourse.
“I recognise how sensitive this issue is across our Islands. I call on everyone to treat others with dignity, courtesy and respect. The drawing of parallels with Nazi behaviour or making homophobic remarks are completely unacceptable,” he said.
The Nazi reference he pointed out was contained in a comment made by advocate Leonardo Raznovich this week. He said he wanted Cayman’s MLAs to stop what he calls a “political contest” with the rights of same-sex individuals.
Roper, in his statement, stressed that it was important not to lose sight of the discrimination being suffered by many Caymanians and others in our community.
“This is causing great mental anguish for many. It is my fervent hope that once this legislation enters in to force the people of Cayman can put this issue behind them and move forward with mutual respect. The Partnerships Bill will end discrimination, maintain the institution of marriage and uphold the rule of law,” he said.
On Monday, Roper published an amended Domestic Partnership Bill and 11 accompanying pieces of legislation for public consultation.
“As part of the consultation process that runs until 31 August, we have already received several comments on the draft legislation. We will reflect upon all comments before I assent to the Bill at the beginning of September. A number of other Bills need to be amended to ensure a legal framework for same sex couples is provided,” Roper added.