OPPOSITION REFERS GOVERNOR TO FCO ON DP BILL

OPPOSITION REFERS GOVERNOR TO FCO ON DOMESTIC PARTNERSHIP BILL

The Official Opposition has escalated its concerns to the Foreign and Commonwealth Office(FCO) over the Governor’s intervention in the Domestic Partnership Bill.

In a letter to Secretary of State Dominic Raab who is responsible for the Overseas Territories, Hon. Leader of the Official Opposition, Arden McClean, said he is seeking clarity on the constitutional mandate of the Governor in this matter.

“Since Governor Martyn Roper has not responded to my letter of 6th August 2020 requesting a copy of the FCO’s instructions to him, I am writing to you in the hope that you will provide the same as well as some rationale for such as a decision in the interest of good governance, transparent and partnership.”

Shortly after the Legislative Assembly rejected the Domestic Partnership Bill, His Excellency The Governor, Martyn Roper, announced that he was utilising his Reserve Powers under the constitution to ensure that it becomes law.

“The failure of the Legislative Assembly to pass the Domestic Partnership Bill leaves me, as Governor and the UK Government, with no option but to act to uphold the law.

(…)

“I will use my Reserved Powers under Section 81 of the Constitution to assent to the Bill. I expect it to be gazetted and come into law at the beginning of September.”

https://www.facebook.com/ukincayman/posts/1731921196956536?__tn__=K-R

Mr Roper had also said that he had discussed the legal implications of the decision with the FCO and UK Ministers.

A period of public consultation towards this started on August 10th.

GOVERNOR’S RATIONALE CHALLENGED

In his letter to the UK Secretary of State, Mr McClean said he was “troubled by the Governor’s statement and the unintended consequences that might follow.”

He questioned the conclusions reached by Mr Roper in arriving at his decision to use his constitutional authority to force through the Domestic Partnership Bill which was defeated by a one-vote margin in the LA.

Where the Governor refers to “the failure of the Legislative Assembly”, Mr McClean suggested that “the word ‘failure’ should apply to the bill itself which he argued was badly drafted.

He also said the phrase “regrettably implied that the democratically elected members have done something wrong when this far from the case.”

Mr Roper had said in his statement that the outcome of the vote left him with “with no option but to act to uphold the law.”

But Opposition Leader McClean questions that on the basis of a pending related case before the Privy Council on the matter of recognising same-sex marriage in the Cayman Islands.

DEVOLVED RESPONSIBILITY

He also references the position taken by the then-government of former UK prime minister Theresa May which determined in 2019 that “as policy on marriage law is an area of devolved responsibility it should be for the territories to decide and legislate on.”

“Clearly,” Mr McLean said in his correspondence to the Foreign Secretary, “if this position has changed, then it needs to be communicated and the Caymanian people advised of the new policy.”

Where Governor Roper states his duty to “uphold the law,” the Cayman Opposition Leader counters that “the Governor’s use of Section 81 in this instance is clearly contrary to the letter and spirit of the Constitution.”

Section 81 outlines the Governor’s reserved power to enact laws unilaterally. https://www.legislation.gov.uk/uksi/2009/1379/schedule/2/paragraph/81/made

Mr McLean also suggested that “it is also arguably the persistence of colonial governance and an attempt to bypass the democratic accountability of the duly elected members of the Legislative Assembly.”

“The way the Governor is seeking to legislate directly for the Caymanian people amounts to an act of modern-day colonialism, which is unacceptable in the 21st century,” Mr McClean declared in the letter.

“I would therefore, as a matter of urgency, like a reconciliation of how the Governor with the implied support of the FCO, can intervene on domestic policy issues such as with the aptly named Domestic Partnership Bill.

“I would also welcome your assurance that the direction of travel for the constitutional rights of our islands and mutual relationship with the United Kingdom will continue to develop and not return to colonial governance.”

The Leader of the Official Opposition’s letter to the UK Secretary of State for Foreign Affairs is copied to Baroness Liz Sugg, the Minister of State for the Overseas Territories as well as to all of the leaders of the Overseas Territories.

FULL DISCLOSURE DEMANDED

Meanwhile, in a separate statement on the Domestic Partnership Bill, the Official Opposition voiced its concern with the Governor’s use of reserve powers.

The group is calling on Governor Roper to provide the legal mandate for his recent constitutional involvement in the Domestic Partnership Bill (DPB).

The opposition MLAs refer to the Foreign and Commonwealth Office (FCO) which they argue “was quite clear” in its 2019 response on the issue.

Leader of the Official Opposition, Arden McClean said he remains adamant that the Caymanian people deserve, at the very least, to have full disclosure of the facts behind the Governor’s decision:

“It is quite clear that the Caymanian people have been misled by the Governor with the full support of the Premier. In the absence of the requested release of the Foreign and Commonwealth Offices instructions to the Governor, it can only be assumed at this point that this action has been initiated by the Governor with the full support of the Premier,” he stated.

According to Mr McClean, “The original Domestic Partnership Bill was clearly flawed and not fit for purpose, which is now evident by the Governor proposing ‘a version’ of the original Bill.”

“The Governor’s version, released on August 10th, 2020, impacts 11 pieces of domestic legislation,” the Opposition leader pointed out.

“These were never mentioned in the proposed Bill that failed to pass.

When it was presented only three additional pieces of legislation were identified for amendment.”

Regarding the Governor’s decision to use Section 81 of the Constitution to pass into law a version of the DPB Mr McLean adds:

“The reserve powers held by the Governor are quite specific. These are matters relating to the civil service, internal security and external affairs. This attempt to intervene in a domestic affair is no different from what is being done to the people of Hong Kong by the Chinese government, which has met with international condemnation, and offers of citizenship from both the U.K. and Australian governments to Hong Kong citizens.”

He also stated: “The Cayman Islands operates as a participatory democracy with the right to pass local legislation. These actions are not the expression of a genuine commitment to a modern relationship based on partnership between the UK and our islands.”

WORRIES ABOUT PRECEDENT

The Official Opposition said it believes that the Governor’s recent decision needs to be challenged “as this will set the dangerous precedent going forward where this Governor or future Governors may want to change other domestic legislation such as our Immigration laws or our company ownership laws.”

They also accuse the local government of hypocrisy and of colluding with the Governor.

“The Government is quick to intervene when it believes that the Courts of the Cayman Islands are legislating from the bench and overreaching their remit, as was the case with the recent cruise berthing challenge.

However, is suddenly silent on the current actions of the Governor, where there is a clear breach of his constitutionally defined authority.”

Opposition Leader McClean said: “The hypocrisy of the Government on this, is in my opinion, an attempt to hide its incompetence.”

With the issue now referred to the UK Secretary of State for the Foreign and Commonwealth Office, the group says they “owe it to this and future generations to stand up for our history and traditions to ensure the peace, prosperity, and stability of the Cayman Islands.”

MEANWHILE...

In the same statement, the Official Opposition MLAs has points to a separate issue which they claim “is also an agenda item for some within the UK’s political landscape.”

That has to do with the issue of taxation.

“We are even more concerned having read today where the Minister of Finance brought up the issue of Direct Taxation which is also an agenda item for some within the UK’s political landscape.”

They did not elaborate.