Administrative and Public Law — Cayman Islands Grand Court upholds constitutionality of the Civil Partnership Act 2020
The Grand Court rejected the Plaintiff’s contention that a narrow interpretation should be given to the Governor’s reserved power to legislate. It was a matter of judgment and policy for the Governor whether a given matter was necessary or desirable in the interests of external affairs.
Kattina Anglin v The Governor of the Cayman Islands (Colours Caribbean Intervening)
|Reference:||Cause No. G169 of 2020|
|Court:||The Grand Court of the Cayman Islands|
|Before:||Hon. Justice Richard Williams|
|Appearance:||Tim Parker acted for the Governor, led by Tom Hickman QC, instructed by the Cayman Islands Attorney General’s Chambers.|
|Date of Decision:||28 March 2022|
The Grand Court of the Cayman Islands has rejected a constitutional challenge to the Civil Partnership Act 2020 (the “CPA”). The Governor of the Cayman Islands (the “Governor”), in enacting and assenting to the CPA, had acted within the scope of his reserved powers under section 81 of the Cayman Islands Constitution (the “Constitution”).
The Governor enacted the CPA in the wake of the Judgment of the Cayman Islands Court of Appeal in The Deputy Registrar and the Attorney General v Day and Bush, CICA No.9 of 2019, in which the Court had declared that the Cayman Islands was in breach of its positive obligations under Article 8 of the European Convention on Human Rights (the “ECHR”) and Article 9 of the domestic Bill of Rights (Part I of the Constitution) to enact legislation providing for the recognition and protection of same-sex relationships. The CPA provides for both opposite-sex and different-sex couples to enter into a civil partnership and confers on civil partners rights and obligation corresponding with those enjoyed by married couples.
Section 81 of the Constitution 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”. Following the failure of the Cayman Islands Parliament to pass the Domestic Partnership Bill, the Governor took the view that the enactment of the CPA was necessary or desirable so as to remedy the ongoing breach of the ECHR and the Bill of Rights as declared by the Court of Appeal.
The Plaintiff’s challenge
The Plaintiff challenged the enactment of the CPA on the ground that neither the regulation of inter-personal relationships, nor ensuring compliance with international obligations, fell within the remit of “external affairs” under section 55 of the Constitution. The Governor’s reserved power to legislate should, it was submitted, be construed narrowly so as to promote self-determination and the democratic process through the Cayman Islands Parliament. Whether to make provision for civil partnerships was, in the Plaintiff’s contention, an internal matter that had nothing to do with external affairs. Other provisions of the Constitution were relied on as evidencing a distinction between “external affairs” and ensuring the observation of international obligations.
On behalf of the Governor, it was argued that the correct question was not whether the regulation of civil partnerships falls within the scope of “external affairs”, but whether the Governor had acted lawfully in forming the view that the enactment of the CPA was “necessary or desirable with respect to or in the interests of” external affairs. This was a matter of political judgment on which the Governor was entitled to a wide margin discretion. The Governor had acted lawfully in forming that view, inter alia because the failure to act would leave the United Kingdom in breach of the ECHR, and thus exposed to liability for damages, costs, and potentially enforcement consequences in the event of an individual petition to the European Court of Human Rights.
In the Grand Court, the Hon Justice Williams rejected the Plaintiff’s contention that a narrow interpretation should be given to the Governor’s reserved power to legislate under section 81 (§49). That power, which was subject to local checks and balances including consultation with the Cayman Islands Government, struck a constitutional balance between self-governance in the Cayman Islands and ensuring that the UK Government could act to remedy ongoing breaches of international human rights treaties (§87). The effect of section 81, read together with section 55, was that it was a matter of judgment and policy for the Governor whether a given matter was necessary or desirable in the interests of external affairs (§§49,58).
The Court found that the Governor had acted reasonably and rationally in reaching the view that remedying the ongoing breach of the United Kingdom’s international obligations under the ECHR was necessary or desirable in the interests of external affairs (§§58, 86). The Court therefore held that the CPA had been lawfully enacted, and dismissed the Plaintiff’s claim.
“Tim is a star. A measured yet forceful advocate who has a very tactical mind. He easily holds his own with the most senior of judges.” Legal 500 Asia-Pacific 2021 & 2022: Hong Kong Bar — Leading Juniors
Tim Parker’s practice spans advocacy and advisory work in public international law, constitutional and administrative law, competition, and civil / commercial matters. He practices both in Hong Kong and the United Kingdom, where he is a member of Blackstone Chambers.
Recently, Tim has been ranked as a leading junior in Chambers and Partners 2022, and in Legal 500 Asia-Pacific 2022 for the areas of Administrative & Public Law, Commercial Disputes, and Competition Law.
In the field of discrimination law, Tim’s notable cases include Re The German Swiss International School Association Ltd  HKCFI 1341 (Articles of Association requiring German-speaking directors held to be race discrimination); and QT v Director of Immigration (2018) 21 HKCFAR 324 (exclusion of same-sex couples from Director’s policy of granting dependant visas).
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This article was first published on 4 April 2022.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph (by amõr on Unsplash) which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.