P.O. Box 719, Grand Cayman KY1-1603, CAYMAN ISLANDS

Mon 8 June 2020

The Hon Samuel Bulgin, Attorney General

Cayman Islands Legal Department

Dear Hon AG,


I am writing to you with regard to the captioned issue, requesting your urgent consideration of this matter.

I refer you also to the letter recently sent by the Andrew Storch solicitors to the UK Government Legal Department on behalf of a number of church pastors, which may be found through the email link accompanying this letter.

This profoundly significant letter from UK churches ("the UK Letter") to the UK Government Legal Department describes the principle of Church Autonomy in the UK as historically granted and in recent times protected in respect of the powers of secular government. Its reasons are set out, drawing on both "the domestic constitutional tradition, starting at least from c. 1 of Magna Carta", and "ECHR jurisprudence under Article 9 (see Metropolitan Church of Bessarabia v. Moldova, no. 45701/99, ECHR Reports 2001-XII, 13 December 2001, § 118)".

ECHR Jurisprudence under Article 9.

In particular the Article 9 derogation "Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others" is not seen to justify any action by state authorities of the suppression of the church in the practical absence of a consultative relationship with the Church. Quoting the UK Letter, "In the circumstances where the Church has responded adequately to the public health threat, there was no lawful basis for the state to interfere with its rights and liberties in this drastic fashion. If it was necessary to supplement the Church self-regulation with any degree of state regulation, that interference had to be proportionate, and confined to exercising the powers which have a proper basis in law. A blanket ban imposed by the state on all church activities (with three prescribed exceptions) does not meet those requirements."

The letter goes on later to say: "One of the most unwavering and established principles found in the jurisprudence of the European Court of Human Rights is the doctrine of church autonomy. A public authority may not interfere with the internal workings of a church or religious organization and may not impose rigid conditions on the practice or functioning of religious beliefs." ... "The forced closure of churches by the state is an extreme interference with Article 9 rights. That extremity is not mitigated by the exception in Reg. 5(6), which allows the churches to remain open only for social welfare purposes. On the contrary, this amounts to an enforced secularization of the purpose of churches. The state has usurped the right to prioritise certain aspects of the church life over others using its own criteria, and identified the spiritual aspects as dispensable.

"Such a far-reaching and large-scale intervention may only be justified by the most compelling scientific evidence of a resulting benefit to public health. The broader the impact of the Regulations on the Convention rights, the more compelling must be the justification: R (on the application of UNISON) v Lord Chancellor.

"For interference with freedom of worship to be legitimate, the interference in question must be necessary in a democratic society. The term ‘necessary’ does not have the flexibility of such expressions as ‘useful’ or ‘desirable’. Svyato-Mykhaylivska Parafiya v. Ukraine, App. No. 77703/01 § 116 (Eur. Ct. H.R. June 14, 2007). Fundamentally, only convincing and compelling reasons can justify restrictions on a fundamental Convention freedom, see Wingrove v. United Kingdom, 1996-V Eur. Ct. H.R. 1937, 1956.

"Proportionality in relation to Article 9, and the supervisory authority over any restrictions imposed on the freedom to manifest all of the rights inherent in freedom of religion, call for “very strict scrutiny: ECHR, Manoussakis and Others v. Greece, Reports 1996-IV: AFDI, 1996, p. 1354, § 44.

"It is clear that the wholesale manner in which churches were closed is anything but a narrowly tailored means of achieving public health. Indeed, it appears that the Secretary of State has given hardly any consideration to balancing competing rights and interests, or to achieving his public health objectives by lesser interference with Article 9 rights."

All these considerations are entirely pertinent to the Cayman Islands, which are "signed on" to ECHR Art 9. They need to be taken into account in any governmental restriction of the churches, but appear not to have been noticed.

The Magna Carta Settlement

An incontrovertibly historical legal connection of the modern Cayman Islands Church to the Magna Carta settlement in England in 1297 - "a prime example of a constitutional statute which is not subject to the doctrine of implied repeal" (quoting the UK Letter) - may be more difficult, though, in my view, not at all impossible to assemble. However it would be surprising if the rights and privileges of any British Overseas Territory Church to manage its own affairs were determined to be fundamentally different and less than those in the Mother Country. If the UK Letter is correct that in the UK "all denominations are entitled to the same constitutional rights as the Church of England", then the Cayman Islands State also may not exercise its powers in a way which interferes with any of the “Rights and Liberties” of the Church within the meaning of c. 1 of Magna Carta.

This too appears to have been unnoticed.

The Cayman Islands Constitution

The Cayman Islands Constitution, as is well known, mirrors ECHR Art 9 with its "Conscience and Religion" s.10, and of immediate note is s.10(7) - a subsection which may on occasion have appeared to be overlooked by the bench. It reads: "If a court's determination of any question arising under this Part might affect the exercise by a religious organisation (itself or its members collectively) of the right to freedom of conscience as protected by this section, it must have particular regard to the importance of that right." It would appear that the Cayman Islands Church as a whole might claim in a court to have been restricted unjustifiably in its public expressions by the exercise of state powers, especially in the context of ECHR Art. 9 jurisprudence (see above). As was stated in the UK letter, mildly amended in square brackets and emphasised to fit the Cayman context, "The forced closure of churches by the state is an extreme interference with Article 9 [as well as CI Constitution s. 10] rights. That extremity is not mitigated by [any exception] which allows the churches to remain open only for social welfare purposes. On the contrary, this amounts to an enforced secularisation of the purpose of churches. The state has usurped the right to prioritise certain aspects of the church life over others using its own criteria, and identified the spiritual aspects as dispensable." s.11 "Freedom of Expression" might also be contravened if the state action were not found to be "reasonably justified in a democratic society." - s.11(2)

The above of course must be read in the context of s.1 where in 1(2) the Bill of Rights, Freedoms and Responsibilities is clearly stated to "recognise" (rather than ignore or usurp) the Christian values of the Cayman Islands.

These important aspects of our Constitution appear to have been overlooked.


In case it may be suggested that this letter is written by someone that is without due recognition of the dangers of the pandemic or without sympathy for the predicament of the government authority I can only stress that this is not the case at all. On the contrary my colleagues and I are very much in sympathy with the pressures that have been put on government, and are eager to work constructively with the authorities for a document that properly respects the principle of church autonomy while providing to all concerned appropriate guidance. In addition, and even more importantly for our beloved Cayman Islands, I am concerned that long into the future, and for the sake of the public good and proper continuity, the principle of the historic and just autonomy of the Christian Church, that was secured for us by the faith and labours of our forefathers in the foundational Magna Carta settlement and has been protected for us constitutionally, will continue to remain strongly within the general consciousness.

Yours in faithfulness,


Bishop Nicholas J G Sykes,

Christian Episcopal Church Bishop for the Cayman Islands