Former Governor Martyn Roper’s use of his reserved power to push through legislation on same-sex partnerships faced a renewed challenge in the Court of Appeal Tuesday.
Legal arguments focused on the distinction between domestic and international legislation and how each is enacted.
Though the challenge is connected to the debate over the rights of same-sex couples, the court action raises much broader questions around if and when the governor can intervene to pass legislation for the Cayman Islands.
Roper used the controversial Section 81 of the Constitution to pass the Civil Partnership Act in 2020 – after it had been voted down by the Cayman Islands legislature.
Kattina Anglin, an attorney and leader of a local Christian association, brought a judicial review of that decision, arguing that same-sex relationships was a ‘devolved issue’ that fell within the remit of the Cayman Islands Parliament. She claimed the governor could not use that clause to unilaterally introduce legislation in the way he did.
The Section 81 power, lawyers for Anglin argue, is restricted to areas that fall directly within the governor’s remit, such as defence and external affairs.
At the original hearing, Grand Court Judge Richard Williams ruled that the governor acted properly, accepting the argument that failure to pass such legislation had left the jurisdiction in breach of multiple human rights treaties, to which Cayman is a signatory as a British Overseas Territory.
During the Court of Appeal hearing Tuesday, lawyers for Anglin insisted the appropriate means for the UK to enforce its treaty obligations on Cayman would have been through an Order in Council passed in the the UK parliament.
Tuesday’s hearing centred on the division between domestic and international legislation, seeking to unravel the complex relationship between the UK and Cayman, and determine when and how the UK is able to intervene in Cayman’s affairs.
The difference of prerogative – Royal, Parliamentary and Executive
Hugh Southey, KC, who represents Anglin, argued that there needs to be a clear distinction between external affairs and domestic matters as well as their corresponding legislations.
Southey claimed that the law in the UK gives the executive branch of the British government the power to enter international treaties but reserved the right for Parliament to put those treaties into action through legislation.
“If the Executive enters the UK into an international treaty, the corresponding domestic legislation that would need to be created or passed can only be done by Parliament as this is Parliamentary Prerogative,” said Southey. “Otherwise, the Executive would be able to agree to international treaties and pass them into law which could undermine the position or wishes of Parliament.”
“Ultimately it is up to the UK Parliament to decide which treaty, if any, is to be introduced as domestic legislation and when to do so,” said Southey.
He added that in the case of Cayman, the power to enter into international treaties remains an external affair, which is strictly the remit of the Governor’s Office as the representative to the UK.
However, he added that ultimately it is for the Cayman Islands Parliament to determine whether or not to introduce corresponding domestic legislation in line with the international obligations, in spite of any potential breach.
“The preamble of the current Constitution gives rise to greater self-determination,” said Southey, who added that the failure of Cayman’s government to pass the Civil Partnership Act was not a breach of other sections of the Constitution.
In rebuttal, Tom Hickman, KC, claimed Southey’s arguments “proved too much”, and warned that if the court adopted such an interpretation it ran the risk of jeopardising Royal Prerogative.
“Cayman’s prolonged and sustained breach runs the risk of jeopardising Royal Prerogative where the matter in question breaches the UK’s commitments to other countries, territories or jurisdictions,” said Hickman.
When refuting Southey’s claims, Hickman told the court the claims were based on a false hypothesis.
“The hypothesis is that if the Governor doesn’t pass the law, then (the Cayman Islands) Parliament would,” said Hickman. “But as we can see, that is clearly not the case.”
Hickman added that there were adequate braces and belts, in Cayman’s Constitution, and that Southey was trying to create an illusion that the governor might somehow abuse his position to pass laws that would undermine Cayman’s parliamentary democracy.
“The Constitution requires the governor to first consult with the Premier and to give Parliament the chance to first pass legislation, before acting,” said Hickman, adding that this case in particular was a perfect demonstration of the governor acting in a manner with the court’s recommendations that brings about an end to an “unsatisfactory situation”.
More than a legal debate
For LGBTQ+ advocacy group Colours Cayman, Anglin’s legal challenge is more than just a debate on which section of the Constitution should have been used to pass the Civil Partnership Act. Instead, it is viewed as an assault on the personal freedoms, rights and privileges provided by the law.
“There are now 93 couples who have either entered into or had their Civil Partnerships recognized since the law was first passed,” explained Alex Potts, KC, who represents Colours Cayman.
Potts told the appeals court judges the civil partnership couples include same-sex and heterosexual couples; with some partners residing in foreign jurisdictions.
He said, “It is also important to note that although it is the Civil Partnership Legislation that is being challenged there is a whole raft of legislation that was amended which would have to be changed if the appeal was allowed.”
Potts added the fact that the legal challenge was being brought by Anglin and not by the government nor the then elected officials spoke volumes about whether Cayman’s MPs fear any interference with domestic legislation by the governor or the UK.
“The appellant is simply acting in her capacity as a citizen when challenging these matters, but perhaps more notable is the fact that we do not have any actual party who would have been adversely impacted by the Governor’s use of his powers, challenging the matter with her,” said Potts.
The Court of Appeal did not return its ruling Tuesday, choosing instead to deliver its decision at a yet-to-be-disclosed day and time.
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