Privy Council deliberating on Cayman’s same-sex union legislation

The legal battle to quash Cayman’s same-sex union legislation has reached its final stage before the UK’s Privy Council where five judges will determine whether former Governor Martyn Roper overstepped his role when he enacted the Civil Partnership Act in 2020.

That legislation, which gives same-sex couples the legal equivalent to marriage rights, has been challenged by lawyer Kattina Anglin, who believes that Roper’s action was unlawful and, therefore, is seeking a judicial review to rescind the law.

The matter has wound its way through Cayman’s Grand Court and Court of Appeal, both of which dismissed it. The Court of Appeal had also dismissed an application by Anglin to take her case before the Privy Council, but she succeeded in applying directly to the UK court to be heard.

On Tuesday, 18 March, the matter came before the jurisdiction’s highest appeals court. There, Anglin’s legal team argued that Roper’s use of his reserved powers to push through the legislation — a version of which had been rejected earlier by the then Legislative Assembly, now Parliament — was beyond his remit.

At the heart of the civil dispute are two questions — did Section 81 of the Cayman Islands Constitution Order give the governor the power to enact the Civil Partnership Law and, if not, what is the appropriate relief?

Section 81 gives the governor of the Cayman Islands the power to enact legislation with the approval of a UK secretary of state.

Roper had explained at the time that he had exercised his reserved power in order to meet his responsibilities under Section 55(1)(b) of the Constitution, namely to ensure compliance with the UK’s international obligations under the European Convention on Human Rights.

Anglin’s counsel, Hugh Southey, KC, accepted that Cayman’s Constitution Order lists the governor as the monarch’s representative in the Cayman Islands government and gives him responsibility for external affairs.

However, he argued that Roper’s use of Section 55 of the Constitution to justify enacting the legislation in question, so that Cayman was in compliance with international obligations, was incorrect in this instance.

“If the governor was wrong, and compliance with international obligations is not within Section 55, which is how the governor approached it, the legislation was ultra vires [beyond the power],” Southey told the Privy Council judges.

The outcome of the civil battle could have significant ramifications for the LGBTQ community in the Cayman Islands, where, following the enactment of the legislation, same-sex couples could enter into civil unions, which effectively gave them equivalent marriage and adoption rights as heterosexual couples.

If the Privy Council rules that Roper was wrong to enact the Civil Partnership Act, this could also have a knock-on effect on several other pieces of legislation that were amended to reflect that law, such as the Adoption of Children Act, Health Insurance Act, Immigration Act and the National Pensions Act.

Southey told the judges that if the civil partnership legislation is struck down, it is “likely to be highly arguable — and I don’t think this court can decide this because this isn’t before it — that the state can’t treat the couples who have entered into civil partnerships in any other way … that is effectively inconsistent with them being married”.

He gave the example of immigration matters, saying the state would have to exercise its powers to treat the couples who have entered into a union under the civil partnership law as though they are married, even if the legislation is negated.

Southey said if the court upholds the Civil Partnership Act, it would “effectively … be legislating, because it would be giving effect to a piece of legislation which, if our arguments are correct, was ultra vires“.

Tom Hickman, KC, representing the governor, argued that Anglin’s legal team was wrong in its contention that compliance with international obligations did not fall with the governor’s external affairs remit. If that is accepted by the judges, then the case hangs on whether Roper had constitutional responsibility to make legislation on a matter of domestic policy, he said.

Referring back to Section 81 of the Constitution, Hickman noted that it provides that the governor may enact and assent to legislation if he considers it “necessary or desirable with respect to or in the interests of any matter for which he or she is responsible under Section 55”, which includes “external affairs”.

Determining that compliance with international obligations did not fall within external affairs would have the “nonsensical consequence” of the governor not having the executive power to sign treaties or take other actions in relation to international obligations, he said.

After a day-long hearing, the five justices — Lord Robert John Reed, Lord David Lloyd Jones, Lord Andrew Stephen Burrows, Dame Ingrid Ann Simler and Dame Janice Pereira — adjourned the matter to deliberate on their decision.

Additional reporting by Compass journalist Andrel Harris