In a recent interview early this year with a local news channel , the Hon Ezzard Miller again rightly expressed his dissatisfaction with legislation that is enacted by the legislative assembly but not brought into force. He specifically mentioned the Standards in Public Life Law. This law was gazetted on March 10, 2014, after assent, but to date has not come into force. This is not a new problem of course. In my own appearance on a local radio show some months ago, I cited about 12 pieces of legislation, both major and minor, including the standards law, which are not yet in force. The Children Law, which is now in force, also took a long time before it was made operational.
Lack of necessary finance and other administrative arrangements are often cited for such delays. There can be no doubt that some of these delays are genuine while others are occasioned by ulterior motives. Specifically in relation to the standards legislation, the government has highlighted the provisions of that law which will require members of government boards to disclose property and connections that may cause a conflict of interest. It is said that many people are not willing to serve under such an intrusive regime. To try and address this and other issues, the law was amended in 2016, but the legislation as a whole has not been brought into force.
The problem exists largely because in new legislation (as opposed to amending legislation, which generally comes into force upon being gazetted) the general practice in Cayman [is] to grant Cabinet power by the assembly to name a date when a law is to come into force. No time limit is set and there is no default which can automatically bring the law into force if Cabinet decides to take its sweet time.
Cayman therefore needs a real solution. Litigation is not feasible because it is expensive and, more importantly, any person who takes up this mantle is likely to face the usual consequences. Even if someone were to be brave enough to take the risk, the proceedings are likely to fail. Courts in the U.K., Canada, Australia and elsewhere have refused to compel a government to bring into force legislation. They have insisted this must remain a political decision.
To address this issue, some countries have a general rule that legislation brought to the legislative assembly must contain a date on which it is expected to come into force. If Cabinet or other relevant authority is to be given the authority to bring it into force, the government has to make a special case acceptable to the assembly. Even if an acceptable case is made, there is often legislation of general application by which, if Cabinet does not bring it into force, the legislation automatically comes into force on the first anniversary of its passing. Other countries at least require the Attorney General to make an annual report to the legislative assembly on laws which have come into force or not come into force, stating why the latter are still pending.
Years ago, when I was in government, I developed a one-day course on Cayman’s legislative process and offered to teach it pro bono in government. The course not only describes the system in Cayman but also incorporates practices in other countries. Indeed, such courses are common elsewhere. The chief officers approved the course be taught but the political directorate opposed it and it was never taught at the time. My attempt to obtain permission to teach it part-time with a local Caymanian-owned company was not only refused but opposed by the government so much so that when I brought judicial review proceedings to challenge the refusal, they hired a highly-priced QC from the U.K. to oppose me.
I have taught it more than once since leaving government. If it had been widely taught, the course would have helped make the legislative system more efficient and accountable. Meanwhile, the government persists in systematically limiting the knowledge available to civil servants and the public, continuing to perfect its timeless political art of seeming to be accountable.
Attorney and former Cayman government senior legislative counsel