Governor Martyn Roper has announced that he is “pleased” with the outcome of Monday’s Grand Court ruling which found that he acted within his rights as Cayman’s local representative of the United Kingdom- via Section 81 of the constitution- when he implemented the Civil Partnership Act to enable persons to enter into partnerships that provide them with the same legal rights as marriage.
The Civil Partnership Act went into effect on September 28, 2020 following the failure of Cayman’s Legislative Assembly to pass what was then called the Domestic Partnership Bill into law– which was contrary to the Bill of Rights of the Constitution and the European Convention on Human Rights (ECHR).
Before Governor Roper implemented the law, he referred the matter to the Foreign and Commonwealth Office (FCO) and UK Ministers for their recommendation with respect to an intervention that would put the Cayman Islands in a position in which it is compliant with the rule of law.
Acting on instructions from the Foreign Secretary, the governor indicated that he would publish the Domestic Partnership Bill on August 10 2020 and allow a period of consultation for the public and members of the Legislative Assembly, which would be then considered.
At the end of this period, and acting under instructions from the Foreign Secretary, the governor advised that he would use his Reserved Powers under Section 81 of the Constitution to assent to the Bill.
Following the assent of the bill, a request for judicial review of the governor’s action was made by Kattina Anglin, public relations officer for the Christian Association for Civics (CAC), on the grounds that the issue of civil partnerships is a domestic issue and not one of international concern.
On November 20 2020, Justice Richard Williams, sitting at the Grand Court of the Cayman Islands authorized the judicial review of the governor’s actions.
On March 28 2022, the Grand Court found that the governor acted within his rights in doing so.
Said the governor of the March 28 ruling:
I note the Grand Court’s Judgment on March 28 that my use of Governor’s reserved powers in section 81 of the Constitution to enact the Civil Partnership Act 2020 (“CPA”) was entirely in line with the rule of law and the Constitution. The judgment confirms that passing the legislation was within the scope of my responsibility for external affairs as set out in s.55 of the Constitution.
I am pleased that the Judgment provides welcome certainty for those couples who have relied on the CPA to date as well as those looking to do so in the future.
Same sex unions in the Cayman Islands
In March 2019, same-sex marriage was legalised in the Cayman Islands; however, in November of the same year, the islands’ government won an appeal to overturn the legalisation.
The Court of Appeal ruled that although same-sex marriage will be re-criminalised, the territory should immediately offer unions which have a “legal status equivalent to marriage”.
The Domestic Partnership Bill 2020 was defeated in the Legislative Assembly on July 29.
The governor upheld that the Cayman Islands was in breach of the law by its continuing failure to put in place a framework for same sex couples that is functionally equivalent to marriage.
The governor’s implementation of the Civil Partnership Act- as Cayman’s local representative of the United Kingdom- via Section 81 of the constitution, was pursuant to instructions of the UK Secretary of State, Baroness Sugg, which read:
“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.” (August 5, 2020)
Under the law, Cayman Courts are unable to overturn the actions of the governor when the governor acts at the “instruction of the Secretary of State,” as he had done in this instance.
The governor described the legal intervention on the part of the UK as, “a position I would ever have wanted to be in.”
On February 21 2021, the Privy Council, Cayman’s court of final appeal, would begin deliberations on whether the Cayman Islands law that defines marriage as an institution between a man and a woman could be rewritten without specification of gender, thus allowing same sex marriage to be legalized.
On March 14 2022 same sex marriage was found to be unconstitutional by the Privy Council on the grounds that “the Marriage Law in Cayman Islands defines marriage as ‘the union between a man and a woman as husband and wife’.
The decision to legalize same sex marriage can still be made by the elected Government.