Civil partnership law stands following appeals court ruling

The Court of Appeal has ruled that it was within the former governor’s rights to enact the Civil Partnership Act 2020 allowing same-sex legal partnerships in the Cayman Islands.

In his judgment, published on Tuesday, 4 July, appeals court president Sir John Goldring dismissed an appeal over an application for judicial review held in the Grand Court in 2021.

He agreed with Justice Richard Williams’ verdict that Martyn Roper’s use of his reserved powers under section 81 of the Cayman Islands Constitution was not in error.

According to Colours Caribbean, LGBTQIA+ rights activists and the intervener in the case, 93 couples who underwent civil unions have been “thrown into limbo” over the past two years.

In a press statement, the non-profit organisation said: “It is our sincere hope that those with a difference of opinion can respect this judgement and this matter can now be laid to rest.

“At the end of the day, same-sex couples have a human right to build and nurture their families per the Civil Partnership Act and the Constitution.

“We as a society should support and respect the rights of the vibrant members of our LGBTQIA+ community.”

‘Years of uncertainty’

In his judgment, Sir John Goldring said it seemed clear that on any proper analysis that attorney Kattina Anglin’s application for judicial review was bound to fail.

He said it was brought by someone who had “no direct interest in the outcome”.

Goldring added that the description of the proceedings by Colours Caribbean’s lawyer Alex Potts, KC, as an ‘academic exercise’ was “not without substance”.

“The unfortunate consequence of the proceedings has been years of uncertainty for those who entered civil partnerships in the understandable belief that the CPA was lawful,” he said.

Goldring stressed it is always open to a judge at the leave stage of an application for judicial review to invite the respondent – in this case, Roper – to attend and make submissions.

“Had that happened here, it may well be that these proceedings, conducted, as I understand it, entirely at the public’s expense, would have been stopped at the outset.”

Colours Caribbean shared concerns that the Grand Court should not have granted permission to proceed, partly because Anglin lacked standing to bring the case forward.

“The Court of Appeal rightly admonishes the Grand Court for failing to invite the governor at the permission stage,” the Cayman Islands-based advocacy group added.

Two years later

Anglin’s application for judicial review was first heard on 2 Dec. 2021 before Justice Richard Williams.

She argued that the governor erred in law by using section 81 of the constitution to enact the Civil Partnership Act 2020 and said it was beyond the scope of his responsibility.

Meanwhile, the defendant said the UK government was entitled to instruct the governor to push forward the legislation due to inaction from the Legislative Assembly, now Parliament, to pass a bill.

Williams concluded that the governor was entitled to exercise his reserved power and enact the law.

“I am satisfied that the governor has not acted contrary to the constitution or other laws in force in the Cayman Islands,” he said.

Anglin, represented by Hugh Southey, KC, appealed the decision and the matter was heard in the Court of Appeal on 9 and 10 May this year.

She submitted that if the British government wished to introduce a law in the Cayman Islands, it should have followed section 125 of the constitution.

This provides reserved powers to Her Majesty (now His Majesty) to make laws for the peace, order and good government of the Cayman Islands.

In his judgment, Goldring said the government of the Cayman Islands was in breach of its international obligation to abide by the European Convention on Human Rights.

He said the governor’s action in enacting the civil partnership law was a “paradigm example” of the sort of case for which power is reserved.

“It reflects the balance struck under the constitutional settlement between local democracy and the protection of the international obligations of the Cayman Islands for which the United Kingdom was responsible,” the appeal court president said.

He concluded: “It is in my judgment clear that the governor…far from failing to respect the constitution, acted entirely in accordance with it.”

Goldring dismissed the appeal.