ANGLIN v GOVERNOR (COLOURS CARIBBEAN intervening)

• Jurisdiction: Cayman Islands
• Court: Grand Court (Cayman Islands)
• Judge: (Williams, J.)
• Judgment Date: 28 March 2022

ANGLIN

and

GOVERNOR (COLOURS CARIBBEAN intervening)

(Williams, J.)

Grand Court, Civil Division (Cayman Islands)

Constitutional Law — Governor — special responsibilities — external affairs — responsibility for compliance with obligation in ECHR to provide legal status equivalent to marriage for same-sex couples falls within external affairs — having ensured checks and balances in s.81 of Constitution followed, Governor entitled to exercise reserved power and enact Civil Partnership Act 2020

Held, ruling as follows:

(1) The importance of ensuring compliance with international obligations had been in all parties’ minds when the Constitution was created. The United Kingdom’s preferred approach was for the government of each Overseas Territory to act itself by recognizing the responsibility placed upon it to enact internal legislation to conform with applicable obligations arising out of international treaties like the ECHR. The Overseas Territories and the Cayman Islands negotiators would have understood that the UK Government’s position was consistent with an approach that, if a territory continued to fail to address compliance with an international obligation of the United Kingdom, the Constitution provisions would enable the Secretary of State to take on that role in its place to ensure such compliance. There could be little doubt that, in such an extreme situation where the Court of Appeal had (i) found that the Legislative Assembly had failed to “face up” to its legal obligations under the Bill of Rights (and therefore importantly also under the ECHR), and (ii) taken the extraordinary step of expressing its expectation that the UK Government should recognize its legal responsibility and take action to address the “unsatisfactory state of affairs,” the intention of those creating the Constitution was that the Constitution would enable the Secretary of State to take that action or direct that action to be taken by the Governor. The s.125 Order in Council route provided a catch-all option. However, s.81 of the Constitution read together with s.55 of the Constitution was the internal mechanism within the Constitution, with some local checks and balances, that provided a different mechanism which could also be usedwithout having to resort to the more external measure, namely an Order in Council. By this mechanism, the Constitution struck a constitutional balance. In the circumstances where the Court of Appeal had so forcefully set out its expectations, it was understandable and reasonable for the Governor to have felt it necessary to enact the Civil Partnership Act due to the long ongoing breach of the international obligation of the United Kingdom which otherwise would not have been adequately addressed by Parliament. It was reasonable for him, when exercising his discretion, to decide that taking such an action, within the constitutional framework, was in the interests of external affairs. The court was satisfied when reviewing the Constitution as a whole that the responsibility for compliance with the obligation in the ECHR fell within external affairs and was a special responsibility. Therefore, the Governor having ensured that the checks and balances set out in s.81 of the Constitution were followed, was entitled to exercise his reserved power and enact the Civil Partnership Act. The court was satisfied that the Governor had not acted contrary to the Constitution or other laws in force in the Cayman Islands. The court therefore found that the Governor had acted lawfully. His use of s.81 of the Constitution to enact the Civil Partnership Act was not an error of law and was within the scope of his responsibility as defined in s.55 of the Constitution. The order and declaration sought by the plaintiff would not be made (paras. 87–88).

(2) The UK Government had a sovereign responsibility to ensure the good governance of the British Overseas Territories. The Governor was the Queen’s representative in the Cayman Islands. He was charged by Ministers in the United Kingdom with endeavouring to ensure good governance in the Cayman Islands as well as with representing the policies of the UK Government. The Governor retained responsibility for specific areas, including external affairs. The United Kingdom was responsible for compliance by the Cayman Islands with obligations arising under international law, whether from customary international law or from applicable treaties. In exceptional circumstances, the UK Parliament used its powers to legislate for Overseas Territories without their consent, for example by making Orders in Council. Section 125 of the Constitution provided that “there is reserved to Her Majesty full power to make laws for peace, order and good government of the Cayman Islands.” Section 125 of the Constitution could have been a route used by the UK Government to enact legislation the same as or similar to the Civil Partnership Act, instead of the UK Government instructing the Governor to use s.81 of the Constitution (paras. 28–36).

(3) When interpreting the Constitution, the court was not persuaded that the Constitution, and s.55 in particular, should be construed narrowly. The Constitution should be read as a whole and it should not be interpreted with a strict technical analysis of one clause (for example s.87(2)) in isolation. The evidence given about the White Papers which led to the constitutional reforms as well as about the negotiating parties’ positions taken and remarks made during constitutional negotiations, provided helpful contextwhen interpreting the Constitution where there was some uncertainty about the relevant sections. The court had regard to that background material as an aid when interpreting the terms of the Constitution (paras. 49–50).

Cases cited:

(1) Day v. Governor, Cause Nos. 111 and 184 of 2018, Grand Ct., March 29th, 2019, unreported; reversed, sub nom. Deputy Registrar v. Day, 2020 (1) CILR 99; affirmed, 2022 (1) CILR 447, considered.

(2) Ebanks (K.F.) v. United Kingdom, 2010 (1) CILR 200, referred to.

(3) Edwards v. Att.-Gen. for Canada, [1930] A.C. 124, referred to.

(4) Hewitt v. Rivers, 2013 (2) CILR 262, considered.

(5) Home Affairs Min. v. Fisher, [1980] 1 A.C. 319; [1979] 2 W.L.R. 889; [1979] 3 All E.R. 21, considered.

(6) Home Secy. v. Rehman, [2001] UKHL 47; [2003] 1 A.C. 153; [2001] 3 W.L.R. 877; [2002] 1 All E.R. 122; [2002] INLR 92; [2002] Imm. A.R. 98, referred to.

(7) JH Rayner (Mincing Lane) Ltd. v. Trade & Indus. Dept., [1989] Ch. 72; [1990] 2 A.C. 418; [1989] 3 W.L.R. 969; [1989] 3 All E.R. 523, referred to.

(8) McLaughlin v. Governor, 2007 CILR 321, referred to.

(9) Matadeen v. Pointu, [1999] 1 A.C. 98; [1998] 3 W.L.R. 18, considered.

(10) Matthew v. The State, [2004] UKPC 33; [2005] 1 A.C. 433; [2004] 3 W.L.R. 812, referred to.

(11) R. (Bancoult) v. Foreign & Commonwealth Affairs Secy., [2008] UKHL 61; [2009] 1 A.C. 453; [2008] 3 W.L.R. 955; [2008] 4 All E.R. 1055, referred to.

(12) R. (Miller) v. Exiting the European Union Secy., [2017] UKSC 5; [2018] A.C. 61; [2017] 2 W.L.R. 583; [2017] 1 All E.R. 593; [2017] HRLR 2; [2017] NI 141; [2017] 2 CMLR 15, referred to.

(13) R. (SC) v. Work & Pensions Secy., [2021] UKSC 26; [2022] A.C. 223; [2021] 3 W.L.R. 428; [2021] HRLR 14, considered.

(14) Reyes v. R., [2002] UKPC 11; [2002] 2 A.C. 235; [2002] 2 W.L.R. 1034, considered.

Legislation construed:

Cayman Islands (Constitution) Order 2009 (S.I. 2009/1379), s.23: The relevant terms of this section are set out at para. 71.

s.31: The relevant terms of this section are set out at para. 51.

s.55: The relevant terms of this section are set out at para. 56.

s.78: The relevant terms of this section are set out at para. 59.

s.81: The relevant terms of this section are set out at para. 54.

s.125: The relevant terms of this section are set out at para. 33.

The plaintiff brought judicial review proceedings.

In 2018, declarations were sought from the Grand Court by two women that the Marriage Act (2010 Revision) did not conform to the Bill of Rights. The Chief Justice ruled that the BoR gave the applicants the right to marry and ordered certain amendments to the Marriage Act. The Court of Appeal allowed the appeal against the Chief Justice’s order (Deputy Registrar v. Day, 2020 (1) CILR 99). It was noted that the Deputy Registrar accepted that s.9 of the BoR required the Legislative Assembly to provide the applicants with legal status functionally equivalent to marriage. The Court of Appeal declared that in recognition of the longstanding and continuing failure of the Legislative Assembly to comply with its legal obligations under s.9 of the BoR and the violation of art. 8 of the ECHR, the applicants were entitled, expeditiously, to legal protection which was functionally equivalent to marriage. The court said that in the absence of expeditious action by the Legislative Assembly, it would expect the UK Government to recognize its legal responsibility and take action to end the unsatisfactory state of affairs.

The Legislative Assembly introduced the Domestic Partnership Bill 2020, which was defeated.

The UK Secretary of State approved the Governor’s use of his powers under s.81 of the Constitution to publish a Bill which complied with the Court of Appeal’s judgment and to assent to the Bill 21 days after its publication. The Domestic Partnership Bill was duly published and the Governor assented to the Civil Partnership Act 2020 (the title was changed due to views expressed during the consultation process). The Governor stated that the United Kingdom had no option but to step in to ensure compliance with the rule of law and international obligations under the ECHR.

The plaintiff challenged the Governor’s use of his powers under s.81 of the Constitution to enact the Civil Partnership Act. The plaintiff contendedthat the Governor erred in law by using s.81 of the Constitution to enact the Civil Partnership Act beyond the scope of his responsibility as...