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Published 30th October 2019, 1:33pm

Our purpose here today is to pass this bill and create the legislation necessary to facilitate the holding of Cayman’s first people-initiated referendum. Mr. Speaker, before I talk about the legislation itself, I hope the House will allow me just to reflect a little on the history and the process that has brought us to this point. 

Mr. Speaker, I know you do not need to be reminded that in your party’s 2013 Manifesto you and your colleagues campaigned on providing the country with a cruise and enhanced cargo port facility. And again in 2017 your party Manifesto had again on its platform finding a solution for cargo and cruise.  

The Progressives in our 2013 Manifesto campaigned on providing cruise berthing and during the last term, we began the work to provide the country with a much-needed cruise berthing and enhanced cargo port. In 2017 our Manifesto promised that we would continue the projects we started the previous term, including the cruise berthing and cargo port project. So Mr. Speaker, for at least the past two election cycles the majority of us who make up the Unity Government supported a cruise berthing and cargo improvement port project.  

I pause here to point out that in 2013, three members now sitting opposite were part of the Progressives slate of candidates. They were the Member for Savannah; the Member for Newlands; and the Member for George Town Central. Indeed their smiling faces appear on the cover of the Progressive’s 2013 Manifesto, which I would like to now lay on the table of this Honourable House. For completeness Mr. Speaker I also lay on the table a copy of the Progressives 2017 Manifesto. 

Mr. Speaker everyone in this House, and indeed the wider public, are well aware that a cruise berthing facility has been talked about for more than 20 years. Certainly, every Government elected since 2000 has had promises of a cruise port in their election manifesto or as part of their delivery plans.  

When the last Government that I led took office in 2013 we set out on a complex process that we knew was necessary to get the port project to the finish line. Two years later, in September 2015, I advised the country that whilst the Cabinet would be m making a formal decision in the coming weeks, I was able to state then that the Government had done the work necessary and carefully considered the information before us and was convinced on the merits of building a cruise berthing and enhanced cargo port. 

On the 28th October, 2015, four years ago to the very day Mr. Speaker, the Deputy Premier and I announced to the country at a press conference that the Cabinet had considered the various professional reports on the project and had agreed to move the cruise berthing and enhanced cargo port project forward. This included progressing the work to devise a workable financing model. Throughout we have followed a rigorous process that included independent legal and accounting experts, engaged the major cruise lines, and satisfied the United Kingdom Government as well as local Government officials. This is not some ‘Johnny-come-lately’ project Mr. Speaker that we have pulled out of our back pocket. This is the result of years of hard work by the best professionals available and that rigorous process has been carried through to the selection of the preferred bidder Verdant Isle and the extraordinary professionals that they have working with them. 

That is, in brief, the history of the project, Mr. Speaker. But despite all that we have done there are a number of people who do not agree with the project and have been able to obtain the required number of signatures to trigger a people-initiated referendum to decide the future of the cruise and cargo port.  

And that brings us to the process that we are here today to debate. A people-initiated referendum is provided for under Section 70 of the Cayman Islands Constitution Order, 2009. That provision is not there by accident, Mr. Speaker. I am sure you will recall that I and my Progressive colleagues campaigned hard for its inclusion and I believe it is an important democratic safeguard within our governance arrangements. Creating a power that allows voters to call a referendum in this way means that no government is able to exercise unfettered authority without any check between our four-yearly elections. This is particularly important should voters become concerned that a Government is acting recklessly or carrying out major initiatives that are controversial and were not part of its election platform. 

That said, the referendum power cannot be a vehicle for special interests to seek to over-ride the results of free and fair elections. Therefore, the power to trigger and to pass a binding people-initiated referendum is rightly subject to high thresholds. If government’s ability to carry on its business is subject to check by “the will of the people” then we must be sure that it is truly the will of the people that is being demonstrated. 

The threshold that petitions for a people-initiated referendum have to reach in Cayman is 25% of registered electors - and that is a high bar indeed. As it should be. Which is why the verification process was necessary to confirm beyond doubt that, in this case, the required threshold had been reached. Once again in this House, I would like to thank the Supervisor of Elections and his staff for the efficient and effective way in which they went about verifying that the necessary signatures had indeed been collected from registered electors. I had no doubt that it could be done despite the accusations and fear-mongering of the opponents to the port project – but they were proven wrong Mr. Speaker. The process was done in a timely manner and the Government moved swiftly to set the referendum question and date as we promised the country that we would. 

I recognize that the collection of over 5,000 signatures on any petition is the product of a lot of hard work and perseverance by a great many people. As a politician, I admire and welcome good-spirited political activism. In the long run, our democracy is stronger if more people engage in the political process. Despite reports to the contrary, I have no argument with the principle of utilising the referendum process to challenge the government’s plans.  

However, I think we can all agree that this referendum process has not been without its challenges for all sides involved. And so I believe this House should return to the issue of how the people-initiated referendum provision in the Constitution should operate once this experience is behind us - but those are practical issues; not points of principle.  

For those who falsely claim that I and the Government deliberately omitted passing a Referendum Law, I can tell this House and everyone outside of it that I join the voices of those who say they wish that one was in place. For if it was, Mr. Speaker, a Referendum Law would not have allowed any group to take a year or more to gather the signatures required for a referendum. Nor would it likely have allowed a referendum to be called against an important national project that was part of an election campaign and has been ongoing for over five years, and where millions of dollars from the public purse had already been spent – particularly where nothing fundamental has changed during the course of the project. My point is that if we did have a Referendum Law in place, Mr. Speaker, it is unlikely that we would be having this debate here today. 

Interestingly, Mr. Speaker, there is no requirement in the Constitution or elsewhere for any campaign behind a petition for a referendum to be based on truth. Nor is there any requirement to keep vested interests, including commercial interests, from being involved in such a campaign. Nor is there anything to prevent the government’s opponents from using a petition as a vehicle for their wider opposition to the government’s agenda.  

Certainly, during their campaign, the leadership of the CPR group has utilised all manner of scare tactics and misinformation to persuade people to sign the petition for a referendum. Indeed, Mr. Speaker, in my view the leadership was disingenuous when they told the public that their goal was not to stop the port, rather they merely wanted more information on the project. Their real aim as everyone in the House knows full well, was to get enough people to sign their petition by fair means or foul with the hope to derail the project. And they were ably assisted by an online blog and a radio talk show.  

Mr. Speaker, now that they have obtained those signatures we can see their true stripes emerge as they now actively campaign to stop the port project; even as we are finally in a position to provide the information they claim they need. They understood Mr. Speaker that a people-initiated referendum is a numbers game and, in this case, the campaign has done what it thought it needed to do to achieve the numbers required for one to be called. And I and the Government accept that. 

In response, and acting in good faith, the government has therefore moved as quickly as possible to bring forward the Bill before the House today. But the Government acting in good faith should be no surprise Mr. Speaker – we have at all times ensured that we have not only acted legally but in good faith. The Country will recall Mr. Speaker that when we announced the preferred bidder back in July that I gave an undertaking on behalf of Government that we would not move to finalise a contract with Verdant Isle in order to allow sufficient time for the Referendum process to come to a conclusion. And even as we head to the requested referendum the leadership of the CPR group have moved from one complaint to another to seek to either delay the referendum or have the government change the rules in the Constitution and in the election law that govern the process for a binding people-initiated referendum so as to improve their position for success and to derail the port project.  

This morning the Compass published a letter from an individual who signed as Francis Ebanks. I will read the letter because I find it very instructive. 

Permit me a few lines in your paper to share my views on the debate about the referendum on the port. 

I’ve heard campaigners opposed to the project, those who clamoured to let the public decide the fate of the project, now complaining that government has respected the wishes of the people and set the referendum date. 

First, they complained that it was taking too long to verify the signatures. They wanted this process rushed through. 

They then complained that government might drag their feet on setting a date. Referendum Day has been set for the earliest government has found feasible, especially with having to return to the Legislative Assembly to formalise the process. Now, these campaigners, along with opportunistic Opposition MLAs, are saying it is set for the worst possible date. 

They previously complained about dredging and government took that into consideration and revised the plans to ensure there would be as little dredging as possible. Yet, their complaining continues. 

I am puzzled why many of these people are opposed to a project that will bring considerable economic benefits to Cayman. They call themselves campaigners, but I think they’re more aptly called complainers because every step along the way, they have found something to complain about. 

Perhaps it is the public who should be complaining about the undue concern these campaigners caused by claiming China Harbour had the deal at a cost of $300 million-$400 million. The country was in near uproar. When the truth was announced, Verdant Isle turned out to be building the dock and cargo port for $200 million. 

Wild campaign claims and propaganda will not fool me anymore. My source for information will now be the government. 

I can’t wait for the referendum to be over so we can move forward and have a modern port that will keep food on the table of countless working-class Caymanian families. However, I will not be surprised if on 20 Dec. they find something new to complain, oops, I mean campaign, about. 

The CPR will not succeed Mr. Speaker not even with their most recent tactic of obtaining a legal opinion on a variety of issues to do with the referendum. I will repeat here what I have told the media - the government has also taken legal advice on the conduct of this matter from our customary noted constitutional counsel in London and we are more than satisfied that the process being followed is fair and proper and constitutional in every respect.  

I will say again that what is becoming increasingly clear, however, is that the CPR leadership and their financial backers are not really interested in holding a referendum, presumably because they think they will lose, but are simply intent on derailing the cruise port and cargo port project by any means possible, including frustrating it by delay.  

The Government will not allow that to occur. If the CPR leadership and their financial backers (and perhaps the real leaders of the CPR campaign) really believe they have a legitimate challenge to the process being followed by the Government, they should immediately apply to the court for leave for judicial review and have the matter adjudicated by the court rather than debated in the media. 

To further demonstrate the real purpose of the port opponents Mr. Speaker I note that even before the petition had been received by Cabinet, there was public speculation by the opponents to the port that the government would do all in its power to avoid a public vote. They said we would ignore the petition and declare that the project did not rise to the level of being an issue of national importance as required by Section 70 of the Constitution. Yet again this was proven untrue. Indeed the government has always maintained that the project to deliver new cruise berthing facilities and enhanced cargo facilities is essential for Cayman’s future. The project is and has always been, an issue of national importance and that is confirmed in Section 4(1) of the Bill before the House today. 

Section 4(2) of the Bill goes on to set out the question that will be put to the people in the referendum. Again, prior to the publication of the question, there were all sorts of conspiracy theories being circulated that the government would introduce a biased question. At no point, Mr. Speaker was there ever any discussion within government to create a biased question. Quite the opposite. As I said when the question was published, we have bent over backwards to ensure that the question is as fairly worded as it can be. We have drawn as far as we could on the intent of the petition and the campaign behind it and we have developed the wording in accordance with very clear principles. As a result, the wording of the question as far as possible accords with the position of the Council of Europe’s Commission for Democracy Through Law in its Code of Good Practice on Referendums, last revised in October 2018. The Code has been accepted by 47 European democracies and thus provided an appropriate yardstick by which Cabinet could consider the question. 

Mr. Speaker, from the inception this project has been envisioned, planned, designed, financed, and put forward in the Request for Proposals as an integrated cruise berthing and enhanced cargo port facility. That cannot be factually disputed. A vote for or against one part of the project is a vote for or against the other. But again, rather than accepting what is fact, the CPR leadership is misleading the public into believing that the projects are separate. And so they are objecting to the inclusion of the planned enhancement of the cargo port facility within the question. Members of the CPR group and some members of the opposition argue that the petition was about cruise berthing, not the cargo enhancements and that therefore the referendum question should only relate to cruise berthing. 

Let me then deal now with that objection. There are reasons of principle why the objection cannot stand and reasons of practicality. The principle is this: Just as the government has striven to ensure the question is fair to opponents of the port development, it must also be fair to the project’s supporters. This has always been a single project in which the two elements would be taken forward together. I am aware that some Caymanians are convinced of the need for enhanced cargo facilities and see the cruise berths as necessary to fund those enhancements. Their support for cruise berthing is therefore dependent upon and cannot be separated from the cargo elements.  

From its inception, as I have said often, this has been an integrated project and the procurement was begun and has proceeded on the basis that the successful bidder would deliver both the cruise berthing the tourism industry needs and the cargo port enhancements that the whole country needs. The two things cannot now be disentangled. They are indivisible.  

This leads us to the practical problems. While I disagree, as I will detail later, our opponents believe that the government is not putting enough information before the people to allow them to decide this issue. What information could we put forward solely on cruise berthing? There is none. Just as an obvious example, there is no disaggregated financing model to show how the costs would be met and there is no design we can show people of just a cruise facility. In any case, that does not make sense as no-one (I don’t think) is advocating that the cruise berthing should go ahead without any cargo enhancement. 

Some people believe the cargo facilities should be moved but similarly, that is not an available option either. Nor, if the question just dealt with cruise berthing, could we answer people’s very obvious questions about how the necessary cargo enhancements will proceed without the cruise berthing going ahead.