Retaining the term “Governor in Cabinet” in legislation is legal and constitutional, the Attorney General told lawmakers after Opposition member Alden McLaughlin raised concerns that use of the expression indicated that Cabinet was not availing fully of the powers granted it under the new constitution.
Attorney General Sam Bulgin said that according to advice from the UK’s Foreign and Commonwealth Office legal adviser, there is no constitutional or legal objection to the expression “Governor in Cabinet”.
However, he said the issue is one that needs to be looked at more exhaustively and “a definitive position should be articulated by the Foreign and Commonwealth Office as to what their expectation of the role of the governor should be and how that should be reflected in legislation going forward”.
Speaking during the committee stage of discussions on the Tax Concession (Amendment) Bill, Mr. Bulgin said the expression “Governor in Cabinet” does not appear in the new constitution, which came into effect in November 2009, replacing the 1972 constitution. He said the expression was defined as the governor acting in accordance with advice of the cabinet and was usually used in legislation when deemed necessary to make a distinction between the governor acting on his own discretion or on the advice of cabinet.
But Mr. McLaughlin said the Attorney General had to “do violence to the language of the current constitution” to reach his conclusion, adding that the explanation ran counter to the principle of the new provision which was “vastly different from the former one. It is obviously intended to be different.”
He said the new constitution created a “sea change” in the function of Cabinet and the Legislative Assembly, adding that he would write to the Attorney General, and the Foreign and Commonwealth Office if necessary, on the issue.
Cabinet is chaired by the governor and he and the premier determine what appears on the agenda of business for Cabinet to consider. The 2009 constitution states that “Cabinet shall have responsibility for the formulation of policy”, while the 1972 Constitution stated that “the governor shall… consult with the Executive Council in the formulation of policy”.
Cabinet was called the Executive Council at the time the 1972 constitution was drawn up.
Mr. McLaughlin said the governor’s authority is determined by the constitution and other laws or by Queen Elizabeth II and that the governor has to consult with cabinet on all functions other than those which he had specific authority over, including defence, internal and external security, and Civil Service appointments. He said that under the new constitution, cabinet is responsible for formulation and implementation of policies.
“We fought to get responsibility for policy to become the discrete remit of the elected government,” Mr. McLaughlin said. “We did so because of recent and some not so recent issues where the governor or who was acting as the Her Majesty’s representative in the Cayman Islands did things or did not do things in relation to policy which were felt were not in the best interests of the Cayman Islands. We wanted to move away from the situation which existed under the 1972 Constitution whereby the governor was responsible for formulation of policy.”
He added that it is apparent that additional powers conferred on Cabinet are not being used. “What appears to me, based on anecdotes I’ve heard and what is clear through these discussion is business of cabinet has continued as ever it did, not withstanding the fact that the new constitution came into effect on November 6 last year.
It is business as usual with the governor dictating the course of events and assuming it was still within his authority to decide policy matters on behalf of the Cayman Islands when in fact it is cabinet… which actually makes those decisions.”
Mr. McLaughlin added that unless the government avails itself of the new provisions of the constitution, the efforts to draw up the new constitution would have been “for naught”.
“It would be worse than a shame, it would be a disaster for us to revert to [the 1972 constitution] after all the time, money, energy and everything else we have spent to get the constitution to this point,” he said.
The Attorney General put forward the suggestion that the legislation could be reworded to replace the words “Governor in Cabinet” with “government”, a compromise to which Mr. McLaughlin agreed. However, Premier McKeeva Bush said that since there was no legal or constitutional problem with using the wording “Governor in Cabinet”, he preferred to retain that wording.
He said the governor has veto power and that the Cayman Islands does not have the power it had been led to believe it would get under the new constitution.
Mr. Bush informed the legislature that he intended to bring the matter up with the Parliamentary Under-Secretary of State of the UK Foreign and Commonwealth Office, Henry Bellingham.