The next sitting of the Cayman Islands Legislative Assembly is being eagerly anticipated for what will be an historic legislative development.
The controversial Domestic Partnership Bill has been published for public consultation and is expected to be tabled when the LA meets in the last week of this month.
If passed it would be precedent-setting for the UK’s Overseas Territories where the issue has been a thorny and intractable one.
The issue in Cayman has already seen the high profile case of same-sex couple Chantelle Day and Vickie Bodden Bush, who have been seeking to have their marriage recognised.
After winning a court battle in the Cayman Islands court, the ruling was subsequently overturned on appeal with the judge directing that the Cayman Islands Legislature acts on the issue.
The couple say they intend to take the matter to the Privy Council in London.
A government statement published on June 26th advised that the issue will be tabled at the upcoming meeting of the LA, expected the week of July 27th.
"Although the Court of Appeal found against Chantelle Day and Vicki Bodden Bush, the court went on to make a very unequivocal and strongly-worded declaration to the effect that Day and Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage.
“The court observed, among other things, that it was apparent for several years that there is an obligation to provide such a framework and that the failure to do so was “woeful”. The court observed that this failure of the Legislative Assembly is a continuing violation of Article 8 of the European Convention on Human Rights.
“Further, the Court made the point that the Executive and the Legislature are expected to obey the law and to respect decisions of the Court. It went on to state that it would be wholly unacceptable for this declaration by the court to be ignored whether or not there is an appeal to the Privy Council.
“Accordingly, in keeping with the declaration of the Court of Appeal, the Government has agreed to have the Domestic Partnership Bill, 2020 considered by Legislative Assembly following a 30 day public consultation period.”
PUBLIC CONSULTATION WILL BE KEY
The government statement said comments on the Bill by members of the public may be forwarded to the Legislative Drafting Department at email@example.com or c/o the Portfolio of Legal Affairs, 4th floor, Government Administration Building.
Already, concern has been expressed over whether there is adequate time for public consultation.
During the recent sitting of the LA, Hon. Leader of the Official Opposition Arden McLean asked if the 30-day consultation requirement would be met.
“Is someone is going to formulate all that response in a few days, and compile that and put it in the law?” he queried.
“Importantly,” Mr McClean wondered, “how are we going to consult with our people because there is no public gathering and the easiest way to do this is public meetings. And you are somehow restricted from going house to house because of the social distancing.”
He was of the view that the consultation process was going to be “an uphill battle” as he described it.
Meanwhile, Hon. MLA for Bodden Town West Chris Saunders has taken to social media to get feedback on the Domestic Partnership bill.
In a serialised posting of sections of the proposed legislation he stated:
“Please note that my intention is not to influence your decision but rather to present the information for you to tell me how you want me to vote.
"Unlike previous Bills and Motions that I either campaigned on or you reached out to be on an individual level to bring awareness - this Domestic Partnership Bill is new territory for all of us," he added.
Mr Saunders also said, while his first preference would be that a Bill as important as this be decided via a referendum, he has a constitutional responsibility to debate all Bills that are presented to the Legislative Assembly.
And he added: “…cast my vote in a manner that best reflects the wishes of the majority of the people in Bodden Town West that I was elected to represent and serve. This is democracy at work.”
The Bodden Town West MLA said he planned to hold community meetings and private discussions on the bill.
Hon. MLA George Town Central, Kenneth Bryan, being interviewed on the TO THE POINT TALK SHOW via social media, said he wanted “an informed directive from my people."
Encouraging wide public discussion of the landmark legislation, he said: “This is the first time in the history of our country that we are going a serious vote, a decision that would ultimately change or keep things the same."
GOVERNOR CHANNELS BLACK LIVES MATTER
His Excellency The Governor Mr Martyn Roper has added his voice to the public information campaign.
In a statement dated June 26th, the date the bill was published, he wrote:
“The publishing of the Domestic Partnership Bill today is a welcome step on the path to ensuring that the rights of everyone in the territory are upheld and that Cayman law is compliant with the recent ruling of the Cayman Islands Court of Appeal.”
Governor Roper further commented that:
“Our constitution recognises our Christian values, the importance of the rule of law and our respect for human dignity, equality and freedom. These values apply to us all and I hope that we all continue to show a spirit of tolerance and compassion to all members of our society.”
And, he cited the ongoing Black Lives Matter global campaign as a reference point:
“At a time when the Black Lives Matters campaign is rightly forcing all of us to look carefully at our own behaviours, I urge everyone to treat each other with renewed courtesy, dignity and respect at all times.”
NO UK INTERVENTION
Same-sex marriage was one of the key issues addressed in the recommendations of the 2018/2019 UK Parliament’s Foreign Affairs Committee(FAC) inquiry into relations with the Overseas Territories.
The FAC had recommended that the British government should set a date by which it expects all OTs to have legalised same-sex marriage.
If that deadline is not met, it advised that the UK government - being the administering authority - should intervene through legislation or an Order in Council.
However, the government at the time of then-Prime Minister Theresa May said it had “no plans to introduce an Order-in-Council on this issue.”
Noting then that nine Overseas Territories have legal recognition and protection for same-sex relationships (at that time the matter was still in court in Cayman), the UK government said:
“As marriage law is an area of devolved responsibility it should be for the territories to decide and legislate on.
"As has been demonstrated by recent LGBT cases, the Territories’ justice mechanisms and processes should be allowed the space to address these matters.
It had also stated: “We are working to encourage those Territories that have not put in place arrangements to recognise and protect same-sex relationships, to do so, and continue to engage with all the Overseas Territories to ensure that their legislation is compliant with their international human rights obligations.”
Since that report, there has been a change of government in the UK but no change in policy on the same-sex marriage matter as it relates to the Overseas Territories.