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.
The full judgment can be found here.
Tom Hickman QC and Tim Parker acted for the Governor, instructed by the Cayman Islands Attorney General’s Chambers.