Roulstone v Cabinet of The Cayman Islands and Legislative Assembly of The Cayman Islands (National Trust for The Cayman Islands Intervening)

• Jurisdiction: Cayman Islands
• Judge: (Owen, Ag. J.)
• Judgment Date: 02 March 2020
• Date: 02 March 2020
• Court: Grand Court (Cayman Islands)

ROULSTONE

and

CABINET OF THE CAYMAN ISLANDS and LEGISLATIVE ASSEMBLY OF THE CAYMAN ISLANDS (NATIONAL TRUST FOR THE CAYMAN ISLANDS intervening)

(Owen, Ag. J.)

Grand Court (Cayman Islands)

Constitutional Law — people-initiated referendums — framework law — Referendum (People-Initiated Referendum Regarding the Port) Law 2019 declared to be incompatible with Constitution, s.70 and quashed

Held, ordering as follows:

The court would declare that the defendants’ decision to make the 2019 Referendum Law was unlawful because it was incompatible with s.70 ofthe Constitution. The court would also make an order quashing the Referendum Law. The effect of the court’s judgment was that the Referendum Law was incompatible with s.70 of the Constitution and thus a nullity. It would be wrong in principle and pointless in practice to refrain from making a quashing order. If the court were to accede to the defendants’ request not to make a quashing order on the basis that the legislature had the power and function to repeal/revise the Referendum Law, there would be a danger of obfuscation. The consequence of the finding that the Referendum Law was a nullity was that it was incapable of being revised or amended. To decline to quash it would risk giving the impression that it remained in force pending its revision/repeal. The object of making a quashing order was to make plain that that was not the case. The court should not encourage the appearance of what would be a legal fiction. No countervailing principle applied to restrain the court from making a quashing order in the present case in light of the incompatibility found. The Cayman Legislative Assembly’s power to legislate was limited to making laws that were compatible with the Constitution. Any law that was incompatible would be ultra vires. The strong presumption that ultra vires legislation would be quashed applied. Section 23 of the Constitution did not have the effect that the court had no power to quash incompatible legislation. Finally, from a practical perspective, there was nothing to be achieved by the court declining to make a quashing order in the circumstances (paras. 7–14).

Cases cited:

(1)Bennett v. Speaker, 2019 (1) CILR 1, not followed.

(2)H.M. Treasury v. Ahmed, [2010] UKSC 5; [2010] 2 A.C. 534, followed.

(3)R. (C) v. Justice Secy., [2008] EWCA Civ 882; [2009] Q.B. 657; [2009] 2 W.L.R. 882; [2009] UKHRR 688, referred to.

(4)R. (Liberty) v. Home Secy., [2018] EWHC 975 (Admin); [2019] Q.B. 481; [2018] 3 W.L.R. 1435, distinguished.

(5)R. (Lumba) v. Home Secy., [2011] UKSC 12; [2012] 1 A.C. 245; [2011] 2 W.L.R. 671; [2011] 4 All E.R. 1; [2011] UKHRR 437, referred to.

(6)R. (Tal) v. H.M. Coroner, [1985] Q.B. 67, referred to.

Legislation construed:

Cayman Islands (Constitution) Order 2009 (S.I. 2009/1379), Schedule 2, s.23:

“(1) If in any legal proceedings primary legislation is found to be incompatible with this Part, the court must make a declaration recording that the legislation is incompatible with the relevant section or sections of the Bill of Rights and the nature of that incompatibility. (2) A declaration of incompatibility made under subsection (1) shall not constitute repugnancy to this Order and shallnot affect the continuation in force and operation of the legislation or section or sections in question.

(3) In the event of a declaration of incompatibility made under subsection (1), the Legislature shall decide how to remedy the incompatibility.”

The plaintiff applied for judicial review.

The court found that the Referendum (People-Initiated Referendum Regarding the Port) Law 2019 was incompatible with s.70 of the Constitution. Section 70 required a general or framework law setting out ground rules for the conduct of all referendums, not specific laws enacted for particular referendums. The court stated that it would hear further argument on the appropriate relief (that decision is reported at 2020 (1) CILR 442).

The plaintiff submitted that the proper remedy would be to quash the 2019 Referendum Law. There was a strong presumption that ultra vires legislation would be quashed. Under the Cayman legislative system, the Legislative Assembly’s power was limited to making laws that were compatible with the Constitution. Where, as in the present case, the court found a law was incompatible with the Constitution, it must be held to be ultra vires. It would be wrong in principle to follow the approach taken by UK courts to a finding that domestic legislation was incompatible with EU or ECHR law because under the UK system primary legislation could not be ultra vires.

The defendants submitted that in light of s.23 of the Constitution, the court’s power to grant relief was limited to making a declaration of incompatibility, leaving it to the legislature to decide how to remedy the incompatibility. The court should be slow to quash primary legislation as it reflected the will of a democratically elected...