The Court of Appeal has refused an application for the Privy Council to review the former governor’s use of emergency powers to enact same-sex civil partnership legislation in the Cayman Islands.
Appellant Kattina Anglin, an attorney and spokesperson for the Christian Association for Civics, requested leave to take the matter to the Judicial Committee of the Privy Council.
In her argument, she said she was raising a point of law of great general or public importance, and to deny her a right of appeal would be acting against the Constitution.
However, in his judgment, which was circulated on 18 Oct., appeals court president Sir John Goldring said Anglin’s submissions were “wholly without merit” and had already been rejected by two courts.
He denied her application.
The decision is not quite the “end of the road” for the long-running claim. The judgment notes that it is still open to Ms. Anglin to apply directly to the Judicial Committee of the Privy Council for “special leave” to have the case heard.
A long process
On 4 Sept. 2020, then governor Martyn Roper enacted the Civil Partnership Act, 2020, making same-sex civil partnerships legal in the Cayman Islands.
The move came after the formerly named Domestic Partnership Bill was voted down in the Legislative Assembly on 29 July that year.
Following instruction from UK government ministers, Roper used his reserved power, under section 81 of the Cayman Islands Constitution, to approve amended legislation.
The Constitution allowed him to do this if “enactment of legislation is necessary or desirable with respect to or in the interests of any matter for which he or she is responsible”.
However, it had to also appear that the legislature was unlikely to pass the bill.
At the time, Roper said intervention from the United Kingdom “in this manner is extremely rare” and reiterated Cayman’s autonomy in domestic affairs.
“This action does not alter or undermine the strong Christian heritage and values of the people of the Cayman Islands,” he said.
In October 2020, Anglin filed for a judicial review to the Grand Court of the governor’s decision to use his reserved power.
She said it set a “dangerous precedent” and claimed she had no choice but to intervene in what she saw as a “blatant violation of the rule of law”.
At that hearing, Grand Court Judge Richard Williams ruled that the governor acted properly.
He accepted that failure to pass legislation had left the jurisdiction in breach of multiple human rights treaties, to which Cayman is a signatory as a British overseas territory.
During an appeal of his decision in May this year, Anglin’s lawyers argued that same-sex relationships are a “devolved issue” falling within the remit of Cayman’s Parliament.
In his judgment, appeals court president Sir John Goldring dismissed the appeal and agreed with Judge Williams’s ruling.
The latest action
In the leave for appeal to take the matter to the Privy Council, Anglin “in essence” repeated her former arguments, Goldring said in his judgment.
He said the proposed appeal “does not raise an arguable point of law of great general or public importance which ought to be considered” by the Privy Council.
“All the issues now raised by the proposed appellant have been comprehensively considered by two courts which were entirely consistent in their rulings,” he said.
“Their legal reasoning was orthodox and conventional.”
He added that the meaning of the words ‘a matter with respect to external affairs’ is “plain and obvious”.
The arguments relied upon by the appellant to the contrary were without merit, and fresh consideration of their meaning by the Privy Council is not warranted, he said.
Goldring added that it is “indisputably the case” that the UK government had “unfettered legislative power” to remedy an incompatibility with the Constitution.
He said this is “effectively rendering the proposed appeal academic in terms of its potential impact on the laws of the Cayman Islands”.
The appeals court president said Anglin should pay the respondent’s costs if she no longer has a legal aid certificate.
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