Governor’s use of reserved powers reviewed

A two-day judicial review into Governor Martyn Roper’s use of his reserved powers began in the Grand Court on Thursday, 2 Dec.

The civil proceeding has been initiated by Kattina Anglin, who argues that by enacting the Civil Partnership Law, the concept of which was initially voted down by the then-Legislative Assembly, Roper acted outside the scope of his powers, in a manner that was “unlawful and irrational”.

At the heart of the judicial review is the question of whether the reserved powers granted to the governor by Section 81 of the Cayman Islands’ Constitution gives him the right to enact legislation, and, if so, to what extent; or, whether the Constitution limits such powers to Cayman’s Parliament.

Anglin’s case

Arguing on behalf of Anglin, Hugh Southey, QC, accepted that Section 81 of the Constitution does grant the governor the power to implement legislation, “but in a very limited sense”.

Section 81 reads, in part, “If the Governor considers that the enactment of legislation is necessary or desirable with respect to or in the interests of any matter for which he or she is responsible under section 55… after consultation with the Premier, it appears to the Governor that the Cabinet is unwilling to support the introduction into the [Cayman Islands Parliament] of a Bill for the purpose or that the [Parliament] is unlikely to pass a Bill introduced into it for the purpose, the Governor may, with the prior approval of a Secretary of State, cause a Bill for the purpose to be published in a Government Notice and may… assent to it on behalf of Her Majesty.”

Section 55 states that the governor is responsible for matters such as defence, external affairs, internal security, including police, the appointment of people to public office, taxation and tourism-related matters.

“The governor’s powers are very limited, so as not to step on the toes of the legislatures, which, of course, in this case, is the Cayman Islands Parliament,” said Southey. He added that, while the Constitution does task the governor with duties related to external affairs, there is no clear definition as to what those
duties entail.

“There is no clarity on what exactly external affairs means,” said Southey. “Even if it was a case… that the governor was acting so as to ensure Cayman remained compliant to international treaties, it would still be unlawful for him to enact the legislation because international treaties are secondary to primary legislation, which is, of course, created by the legislature.”

He argued that, although the Domestic Partnership Bill was initially defeated when it came before lawmakers, it was not the governor’s place to push the law through, even if he was acting under instructions by the UK Foreign, Commonwealth and Development Office.
“If the governor found that the Cayman Islands was incompatible with its international obligations, the scope of his emergency powers would not allow him to push through domestic legislation to bring Cayman in line with international treaties,” said Southey. “The true purpose of his emergency powers… is to prevent a political ping-pong or back and forth.”

“Let’s say the UK Parliament created legislation which was to be introduced into Cayman, but the Cayman Islands Parliament then created legislation to block the UK legislation, the UK Parliament would be forced to create further legislation which would then be blocked by Cayman,” Southey explained. “The role of the governor is to be able to step in and push through that legislation in Cayman on behalf of the UK and act as a tie-breaker if you would.”

Southey called on Justice Richards Williams, who is presiding over the review, to declare that Roper acted ultra vires [meaning: outside the law].

“If my Lord finds in favour of us and rules the governor acted ultra vires, then naturally the court should set aside the enacted legislation, which would have been deemed to be unlawful,” he said. “If the court does not set aside the legislation, the court runs the risk of overstepping and legislating by giving legality to the unlawful act.”

The governor’s case

Tom Hickman, QC, who represents the governor, argued that Roper acted lawfully because he did so to bring the jurisdiction into compliance with human rights obligations, which had been breached by Cayman’s failure to provide a legal framework for same-sex couples.

“The UK parliament has granted its Overseas Territories with the right of self-determination on topics such as same-sex marriage and, therefore, it would not implement such legislation by way of an Order in Council,” said Hickman. “However, the absence of a legal framework, which protects the rights of same-sex couples, meant that the UK was in breach of meeting its international obligations and the correct way to address this breach was through using the governor’s powers under Section 81.”

He added, “It is wrong for the claimant to say that the only way for this to be rectified is by an external act of the UK government and not under the constitutional framework.”
The fact that Section 81 grants the governor permission to enact legislation, coupled with the requirement for him to consult the premier, shows clear checks and balances, Hickman said.

He argued that the fact that the governor “can and must proceed to enact legislation, under instruction from the UK, demonstrates that he has the legal ground to do so”.

Hickman warned that by finding in favour of Anglin, the court could significantly reduce the powers of the governor, which may go against the wishes of Parliament. He also requested that, if the court does rule against the governor, then a further hearing should be held to present potential remedies.

Colours Caribbean

Colours Caribbean, an LGBTQ+ advocacy group, joined the judicial review as an interested party and is expected to present its case on 3 Dec. Colours Caribbean says, while it understands the narrow arguments being presented, the review should be done in a manner that takes into consideration the potential impact of removing the law.