Kattina Anglin Appellant v The Governor of the Cayman Islands Respondent Colours Caribbean Intervener
| Jurisdiction | Cayman Islands |
| Judge | Sir John Goldring,Sir Richard Field JA,Sir Alan Moses JA |
| Judgment Date | 04 July 2023 |
| Docket Number | CICA (Civil) Appeal No. 6 of 2022 (G 169 of 2020) |
| Court | Court of Appeal (Cayman Islands) |
The Rt Hon. Sir John Goldring, President
The Hon Sir Richard Field, Justice of Appeal
The Rt Hon Sir Alan Moses, Justice of Appeal (remotely)
CICA (Civil) Appeal No. 6 of 2022 (G 169 of 2020)
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS
ON APPEAL FROM THE GRAND COURT
Mr Hugh Southey KC instructed by Mr Rupert Wheeler of KSG Attorneys at Law, for the Appellant,
Mr Tom Hickman KC and Mr Tim Parker, instructed by Ms Reshma* Sharma KC, Solicitor General, and Ms Heather Walker of the Attorney General's Chambers, for the Respondent
Mr Alex Potts KC and Dr Alecia Johns of Conyers, for the Intervener
The Rt Hon Sir John Goldring, President:
Introduction
On 4 September 2020, in the purported exercise of his reserve power under s.81 of Schedule 2 to the Cayman Islands Constitution Order 2009 (“the Constitution”), the Governor of the Cayman Islands introduced and assented to the Civil Partnership Act (“CPA”), which, by s.3, provides:
-
“ (1) Two persons may enter into a civil partnership under this Act if-
-
(a) either person is sixteen years of age or older but under the age of eighteen and the person's parent, legal guardian or the court consents to the civil partnership in accordance with this Act;
-
(b) both persons are over eighteen years;
-
(c) neither person is currently married, in a civil partnership or overseas relationship; and
-
(d) neither person is within the prohibited degrees of civil partnership.
-
-
(2) A civil partnership may be formalised by the Registrar or a Civil Registrar or by a civil partnership officer.
-
(3) After a civil partnership is formalised, a party to the civil partnership shall register it under section 21.
-
(4) The dissolution of a civil partnership is governed by the Matrimonial Causes Act (2005 Revision) …”
The primary issue in this appeal is whether the Governor was entitled to exercise his reserve power under s.81 to assent to the CPA: whether he could lawfully ‘consider’ that the enactment of the CPA was necessary or desirable with respect to or in the interests of any matter for which he…was responsible under s.55(1)(b) of the Constitution, namely external affairs. The Appellant, who has no interest other than as a citizen of the Cayman Islands, submits he was not, and that Williams J, sitting in the Grand Court, should have quashed the Governor's decision assenting to the CPA as being ultra vires. She submits that if the British Government wished to introduce a law in the Cayman Islands for such partnerships, it should have done so by enactment of an Order in Council by Her Majesty under s.125 of the Constitution, by which the Crown has full power to make laws for the peace, order and good government of the Cayman Islands. The secondary issue, which only arises if the Governor did act outside his reserve power, is the nature of any remedy, given, among other things, that since the enactment of the CPA some 93 couples have become civil partners in reliance upon the lawfulness of the CPA. At the hearing, the court indicated it would hear submissions on remedy at a further hearing should that become necessary.
Mr Hugh Southey KC represented the Appellant, Mr Tom Hickman KC the Respondent and Mr Alex Potts KC the Intervener, which is an advocacy group in the Cayman Islands for ‘LGBTQI+ rights.’
Part 1 of the Constitution is the “ Bill of Rights, Freedoms and Responsibilities” (“the BoR”). S.9 (“ Private and family life”) states:
“ 9(1) Government shall respect every person's private and family life, his or her home and his or her correspondence…
(3) Nothing in any law or done under its authority shall be held to contravene this section to the extent that is reasonably justifiable in a democratic society…”
Article 8 of the European Convention on Human Rights (“ECHR”) (“ Right to respect for private and family life”) states:
-
“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
-
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and necessary in a democratic society…”
Pursuant to A.56 of the ECHR the United Kingdom has declared that the ECHR is to apply to the Cayman Islands. The United Kingdom Government is answerable to the residents of the Cayman Islands and the European Court of Human Rights for any violation of the ECHR by the Government of the Cayman Islands.
In the case of The Deputy Registrar and the Attorney-General v Day and Bush [ 2020 (1) CILR 99], in a judgment subsequently upheld by the Judicial Committee of the Privy Council, this court allowed an appeal from the decision of Chief Justice Smellie in which, in broad terms, he decided that the BoR required that s.2 of the Marriage Act (2010 Revision), which defined marriage in terms of “ the union between a man and a woman as husband and wife,” should be modified so as to read, “ marriage means the union between two people as one another's spouses.”
Although the court did not uphold the Chief Justice's decision in respect of marriage, it made it clear that under the Constitution Ms Day and Ms Bush were entitled to legal protection which was functionally equivalent to marriage. It made a declaration in the following terms:
“ In recognition of the longstanding and continuing failure of the Legislative Assembly of the Cayman Islands to comply with its legal obligations under section 9 of the Bill or Rights
And in recognition of the Legislative Assembly's longstanding and continuing violation of Article 8 of the European Convention on Human Rights,
IT IS DECLARED THAT:
Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands which is functionally equivalent to marriage.”
In the final paragraph of its judgment the court said that:
“ …in the absence of expeditious action by the Legislative Assembly, we would expect the United Kingdom Government to recognise its legal responsibility and take action to bring this unsatisfactory state of affairs to an end.”
On 29 July 2020 the Legislative Assembly (now Parliament) rejected the Domestic Partnership Bill (“DPB”), by which the then Cayman Islands' Government sought to introduce civil partnerships. The Governor, conscious of the continuing violation by the Cayman Islands of the ECHR, and following consultation with the then Premier, informed the Foreign and Commonwealth Office, (“the FCO,” as it then was), that there was no likelihood of the required legislation being enacted. Among the options he set out to remedy the position was the use of his reserve power under s.81, as well as an enactment of an Order in Council. On 5 August 2020, Baroness Sugg, the Minister for Sustainable Development and the Overseas Territories, acting on behalf of the Secretary of State, informed the Governor that:
“After giving this matter due consideration, I approve, on behalf of the Secretary of State, the use of your powers under section 81 of the Cayman Islands Constitution to: (i) publish in a Government Notice bills on domestic partnerships which is in compliance with the Court of Appeal's judgement [sic] of 7 November 2019; and (ii) assent to the bills on behalf of Her Majesty 21 days after its publication. As well as serving as Secretary of State approval under section 81 of the Cayman Islands Constitution, please treat this letter as instructions addressed to you on behalf of Her Majesty (as referred to in section 31(2) of the Cayman Islands Constitution) to act in the manner described above.”
On 5 August 2020 the Governor published the following statement:
“ Following the failure of the Legislative Assembly to pass the [DPB]…on the 29th July 2020 in to law, I have discussed the legal implications of the decision with the FCO and UK Ministers.
The Cayman Islands Court of Appeal was clear that Cayman is in breach of the Bill of Rights in the Constitution and the European Convention on Human Rights (ECHR) by its continuing failure to put in place a framework for same sex couples that is functionally equivalent to marriage. ……
It was clear to me that the Bill would satisfy the legal requirement and at the same time maintain the current definition of marriage. I fully recognise how sensitive and controversial this issue is. But it was my expectation, and that of the FCO, that all lawmakers would recognise their legal responsibility and pass the Bill after debate in the Legislative Assembly.
The failure of the Legislative Assembly to pass the [DPB]…leaves me, as Governor and the UK Government, with no option but to act to uphold the law.
…. I believe it is therefore imperative that the [DPB]…is passed into law so that the discrimination suffered by Chantelle Day and Vicky Bodden-Bush, and others in same sex relationships, is brought to an end as required by the Court of Appeal.
…… As Governor, this is not a position I would ever have wanted to be in. Since arriving in October 2018, I have fully respected Cayman's extensive responsibility for dealing with domestic matters. But I cannot simply stand aside when it comes to upholding the rule of law and complying with international obligations, which fall squarely within my responsibilities as Governor.”
On 10 August 2020, the Governor published the Civil Partnership Bill (a revised version of the DPB). He indicated that he intended to enact the CPA after the 21 day consultation period required by s.81 had elapsed.
On 14 August 2020, the Governor issued a further statement:
“In its ruling of 7 November 2019 the Cayman Islands Court of Appeal was clear that, by its continuing failure to put in place a legal framework for same sex couples, functionally equivalent to marriage,...
To continue reading
Request your trial