No formal UK decision yet on removal of Section 81

Governor: Failure of Domestic Partnership Bill gave UK pause for reflection

Local legislators’ failure to reach agreement on the Domestic Partnership Bill has given the United Kingdom “pause to reflect” on the removal of Section 81 from the Cayman Islands Constitution, Governor Martyn Roper has said.

While Roper stopped short of saying the removal of the section is completely off the table when it comes to finalising Cayman’s constitutional changes, he said a formal decision has not been taken by the UK as it relates to the provision.

That section gives him, as governor, the power to enact legislation with the approval of a UK Secretary of State.

“It was a very united and effective Cayman delegation that went to London, that had a big impact on the UK. Cayman was talking with one voice. What we’ve just seen in the Legislative Assembly clearly will give some pause for reflection because the legislators have not followed through on their obligations to follow the rule of law,” Roper said Thursday, adding that he thinks there will be further discussions on Section 81.

“But we need to focus for now on this (domestic partnerships) issue at hand. But I hope that the overall package can move forward,” the governor said.

Roper, in a sit-down interview with the Cayman Compass, said at the time of the negotiations, he was an observer at the discussions, having only been governor for one month when the first talks took place back in December 2018.

The Premier Alden McLaughlin-led delegation during a meeting in London to discuss Cayman’s constitutional changes in December 2018.

He said he supported the proposed constitutional changes and believes they will move forward.

“I’ve said all along that that is a very good package for Cayman because it recognises for the first time that when the UK passes Orders in Council, more effort needs to be made to consult Cayman and allow the views out of Cayman to be fed back into that process. It recognises for the first time in our Constitution that Cayman has an extensive responsibility for domestic affairs,” he said.

Roper said once the changes are confirmed, the Foreign Affairs Committee will then review the document and comment upon it.

The committee, he said, has no veto.

“They will simply give their views, and then we need a meeting of the Privy Council, which has to finalise the Order in Council, at which point it comes back to Cayman and the changes will have taken effect,” he said.

Roper declined to comment on whether Section 81 would be among the constitutional changes undertaken, “but clearly what happened in the Legislative Assembly will give the UK pause for reflection on that point”.

No return to the negotiating table for the changes is foreseen at this time, whatever the outcome.

“I don’t think that would be the way it would go. I think that we’ll have to see. But the main elements in the package, a lot of them are very good elements, very sensible, and there’s a lot of those could move forward, but the UK will clearly have to decide what its position is on Section 81,” he said.

Premier Alden McLaughlin, in his 6 Aug. statement following the defeat of the Domestic Partnership Bill in the Legislative Assembly and the governor’s subsequent announcement earlier this month that he will assent to the bill, said he believes “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 change”.

It is through this section that Roper can assent to an amended version of the Domestic Partnership Bill, which will be renamed the Civil Partnership Bill, in the coming weeks.

The Cayman delegation, led by McLaughlin, initially secured the UK’s agreement to remove Section 81, as well as place a requirement on Britain to consult with local leaders before any legislation or Orders in Council are issued for these islands. Former Opposition Leader Ezzard Miller was part of the negotiating team.

Miller later stepped down as leader and left the official opposition. East End MLA Arden McLean then took the reins of the Opposition.

McLaughlin, after discussions with McLean, achieved consensus to move the process forward, and last December lawmakers approved the proposed changes. Since then, the proposals have been with the UK, awaiting execution on Britain’s end.

Roper said he believes the changes will be finalised within the next few months.

“My expectation is that, leaving aside what the UK decides on Section 81, that the overall package, a lot of other very good elements in that, can move forward and the UK process needs at least a couple of months for the Foreign Affairs Committee and the Privy Council side of it. There has to be a Privy Council meeting to approve the Order in Council. I would expect that shouldn’t take more than a few more months,” Roper said.

Issue of independence one for Cayman

In the wake of Roper’s looming assent of the Civil Partnership Bill, calls for independence are once again emerging in the community.

“The question of independence is clearly one for Cayman,” he said. “I know the UK’s position is very clear. The starting point is the principle of self-determination. It’s for the people of the territories to decide whether they want to be independent or not, and there would have to be at a referendum, and if a majority of people voted for independence, the UK would respect that and would support the decision and would work with Cayman.”

The governor said he does not believe there is a “very strong push out there for independence”.

“But I would say again that UK stepping in like this is incredibly rare. This is really exceptional situation and is only happening because of the court case,” he said.

That court case involved a constitutional challenge brought by same-sex couple Chantelle Day and Vickie Bodden Bush.

Roper stands by the UK’s decision to intervene in the issue in Cayman and enact the legal framework for same-sex couples.

“I believe that was the right thing to do because we have to comply with the rule of law, but the fact that the LA was not able to pass the law, requires the UK, through me, to step in. That’s how our constitution works. I am the ultimate good-governance check,” he said.

He also reminded that the Civil Partnership Bill not only gives protection to same-sex couples, but also to heterosexual couples in common-law relationships.

He said the 11 additional law changes he will assent to, together with the Civil Partnerships Bill, are merely administrative and relate to removing the word ‘spouse’ and replacing it with ‘civil partner’. Among the pieces of legislation to be amended are the Immigration Law, Adoption Law and Wills Law.

The consultation for the Civil Partnership Bill and the accompanying amendments will end on Monday, 31 Aug.

Roper said he has not received many drafting suggestions, but he has received letters of support and “a lot of people writing in who were against it”.

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