IN THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL PCA No. 2020/0033

B E T W E E N:-

CHANTELLE DAY

AND ANOTHER

Appellants

-AND-

THE GOVERNMENT OF THE CAYMAN ISLANDS

AND ANOTHER

Respondents

-AND-

BISHOP NICHOLAS SYKES OF THE CAYMAN ISLANDS

AND OTHERS

Interveners

_____________________________

APPLICATION TO INTERVENE

In the Judicial Committee of the Privy Council

On behalf of Bishop Sykes and Others

_____________________________

Introduction:

1. The Application to Intervene is made pursuant to Rule 27 seeking permission to intervene and in accordance with Practice Direction 6.8. The Applicant interveners seek to intervene by written submission and, if the Privy Council wishes, by representation by Counsel for oral submission.

2. The Applicant Interveners seek to intervene on the basis of Rule 43(3) that there will be no Order as to costs given against them. This is a public interest intervention.

Applicant Interveners

3. Bishop Nicholas Sykes was ordained as a priest in 1976; and he was formerly Rector of St. Albans Anglican Church in George Town. On 26^th January 2012, he was ordained as Bishop in George Town and Representative of the Lord Bishop of Richmond for the Church of England in the Cayman Islands. The Bishop retired in 2018.

4. Bishop Sykes was appointed in February 2009 in the Cayman Islands to the delegation to London negotiating the revised Constitution. He served as a representative of civil society. Upon appointment by the Governor, he sat as a Commission Member on the Human Rights Commission of the Cayman Islands 2010-14, operating under the terms of the 2009 Constitution. On 26^th May 2012 the Bishop was awarded the Cayman Islands Medal of Honour (Commander Class) by the Premier.

5. Pastor Garett Haylock represents the Cayman Ministers Association (CMA) which represents pastors and religious ministers on the Cayman Islands. The CMA subscribes to Christian doctrines that have been universally held by orthodox Christians from the time of the Apostles until the present time. The CMA seeks to manifest an agreed voice on public issues and has published a Statement on the Civil Partnership Law¹.

6. Kattina Anglin is the Plaintiff in an Application for Judicial Review in the Grand Court of the Cayman Islands. Leave for permission for Judicial Review was granted on 20^th November 2020 on the use of Section 81 of the Constitution by the Governor of the Cayman Islands to enact the Civil Partnership Law. Kattina Anglin is active on the issues affecting her community including the issue of same sex marriage.

Grounds for Intervention:

7. By virtue of the fact that the Attorney General made important concessions in the Cayman Islands Court of Appeal, it is submitted that the legal reasoning is erroneous and there is an error of law. There is a concern that these concessions will prevent the Privy Council from a full consideration of the relevant legal issues².

8. The Declaration made by the Cayman Islands Court of Appeal (hereafter ‘CICA’ or ‘the learned Court’) – that the Appellants are entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage [117] - was per incuriam, based on a misapprehension of the current state of European Court of Human Rights (ECtHR) jurisprudence of the protections to be granted to same-sex couples. The learned Court was incorrect to hold that the Appellants are entitled to legal protection functionally equivalent to marriage. Currently ECtHR jurisprudence, while allowing for legal protection for same-sex couples, permits a considerable margin of appreciation in respect of the degree/extent of such protection.

9. As mentioned in the Declaration’s preamble, the learned Court based its Declaration on a ‘recognition of the Legislative Assembly’s longstanding and continuing violation of Article 8 of the European Convention on Human Rights’ (ECHR). Interpretation of ECHR, and thus a finding of a violation of it, is the responsibility of ECtHR. The learned Court is not empowered to identify and find violations of ECHR; thus, the learned Court exceeded its powers in its ‘recognition’ of a violation. In its ultra vires exercise of powers of interpretation of ECHR, it has in any event based its decision on the misapprehension of the current state of ECtHR jurisprudence described above, and has failed to give due deference to the specific cultural conditions in the Cayman Islands, as required under Article 56(3) ECHR.

10. In its final observation the learned Court called upon the United Kingdom Government, in the absence of “expeditious action by the Legislative Assembly”, “to recognise its legal responsibility and take action to bring this unsatisfactory state of affairs to an end” [121]. In the absence of any finding by the ECtHR of a violation of ECHR by the Cayman Islands, the learned Court acted prematurely in holding there to be an “unsatisfactory state of affairs” requiring intervention by the United Kingdom Government, and thus encouraged the United Kingdom Government to unsettle the delicate constitutional balance achieved in the relationship between the United Kingdom and the Cayman Islands.

Background³:

11. The Cayman Islands Constitution Order 2009⁴ (‘the Constitution’) was adopted by the Privy Council on 10^th June 2009; and laid before Parliament on 17^th June 2009. It came into force on 6^th November 2009, save for the Bill of Rights, Freedoms and Responsibilities (‘BoR’) ([Part 1] of the Constitution) which came into effect on 6^th November 2012.

12. The Marriage Act (Amendment) Law 2008 came into effect on 27^th October 2008. The Marriage Law (2010 Revision) is the current statute. Marriage is defined as a union between a man and a woman.

13. On 7^th November 2019, the Cayman Islands Court of Appeal (CICA) gave judgment in (1) Deputy Registrar of the Cayman Islands (2) The Attorney General of the Cayman Islands v (1) Chantelle Day and (2) Vickie Bodden Bush⁵ . It overruled the decision of the Chief Justice at first instance (which held that the claimants had a right to recognition of same-sex marriage), and made a Declaration that same sex couples are entitled to legal protection that is ‘functionally equivalent to marriage’.

14. Consequential to the Declaration, the Domestic Partnership Bill was introduced into the then Legislative Assembly (now Parliament)⁶; and on 29^th July 2020 the Domestic Partnership Bill was voted down by 9 votes to 8.

15. On 4^th August 2020, the Governor issued the following Statement:-

The Court also made it clear that, should the Cayman Islands Legislature fail to act to rectify the situation, the UK should recognise its responsibility for ensuring that the Cayman Islands complies with its responsibilities under the Constitution and its international obligations. Ensuring compliance with international obligations falls squarely within my responsibilities under section 55(1) (b) of the Constitution.”

16. On 5^th August 2020, Baroness Sugg, acting on behalf of the United Kingdom’s Secretary of State, by virtue of Section 31(2) of the Constitution instructed the Governor to use Section 81 of the Constitution to introduce legislation on domestic partnerships.

17. On 14^th August 2020, the Governor introduced the now Civil Partnership Act; which he signed into law on 4^th September 2020.

18. On 4^th September 2020, the Governor issued a Statement:-

The United Kingdom therefore had no option but to step in to ensure we comply with the rule of law and international obligations under the terms of the European Convention of Human Rights

19. The decision of the CICA has now been appealed to the Privy Council and is listed to be heard in February 2021.

Judicial Review:

20. On 23^rd October 2020, an application for leave to apply for Judicial Review against the Governor of the Cayman Islands was filed in the Grand Court of the Cayman Islands. On 20^th November 2020, Hon. Justice Richard Williams granted permission for Judicial Review.

21. Permission for Judicial Review was granted in relation to the scope of the powers of the Governor as expressed in section 81 of the Constitution; namely as to whether obligations arising from the ECHR or any other international instrument extended to a British Overseas Territory fall within the definition of being an ‘external affair’ of the Cayman Islands.

22. It is argued that ‘external affairs’ does not extend to compliance with international obligations. Section 81 (as read with Section 55) applies to ‘external affairs’ solely as opposed to wider ‘international obligations’

23. The Attorney General asserts that the Governor possesses jurisdiction to introduce the Civil Partnership Law 2020 as such act falls within the definition of ‘external affairs’ within Section 55(1)(b) of the Constitution as it remedies a breach of Article 8 ECHR

GROUND A: The learned Court’s Declaration is based on a misapprehension of the current state of ECtHR jurisprudence of the protections to be granted to same-sex couples.

24. In (1) Deputy Registrar of the Cayman Islands (2) The Attorney General of the Cayman Islands v (1) Chantelle Day and (2) Vickie Bodden Bush⁷, Day and Bush sought Declarations that the Marriage Law⁸ does not comply with their rights as enshrined in the Bill of Rights, Freedoms and Responsibilities (BoR)

25. The Attorney General asserted that opposite sex marriage did not offend the Constitution of the Cayman Islands [5]; but made a number of considered concessions [6] premised on the judgment of the ECHR in Oliari and Others v Italy⁹.

26. It was conceded by the Attorney General that:-

1. The ECHR required that the State must provide a legal status for same sex couples that is functionally equivalent to marriage;

2. The Legislative Assembly is in breach of the law by its inaction;

3. The United Kingdom is in violation of Article 8 ECHR due to its responsibilities for the Cayman Islands

4. That opposite sex marriage does not offend against the Constitution.

27. The learned Court held that the Chief Justice was wrong to conclude that same sex marriage may require an amendment to the Constitution [108]:-

… the Legislative Assembly could legislate for same sex marriage. If it did, the resultant right to marry would merely not form part of, or not be enforceable under the BoR. This is what has happened in many instances in Europe.

28. The concessions made by the Attorney-General were central and crucial to the Judgment and the Declaration subsequently made. The learned Court held [116]:-

As we said in paragraph 6 above, the Appellants have finally accepted that Section 9(1) of the BoR requires the Legislative Assembly to provide the Respondents with legal status functionally equivalent to marriage.

29. The concession made by the Attorney General has resulted in a lack of argument and discussion on the issues in dispute. The concessions by the Attorney General in relation the legal regulations of civil partnerships that are functionally equivalent to marriage: with the Appellants seeking same sex marriage reduced the case to little more than a debate over a name (civil partnership and marriage and whether this caused stigma)

30. This raises questions as to whether the decision of the CICA is per incuriam¹⁰. It is submitted that the concessions were erroneous and the CICA has mis-applied Oliari v Italy.

Oliari v Italy:

31. Oliari and Others v Italy¹¹ is a decision of a Fourth Chamber consisting of 7 Judges. It is not a decision of the Grand Chamber; nor does it represent a consistent jurisprudence of the ECtHR.

32. The facts of the case are closely related to socio-legal developments in Italy; and whether of wider pan- European import remains to be decided.

33. Fedotova and Shipitko v. Russia (no. 40792/10), Chunosov and Yevtushenko v. Russia (no. 30538/14) Shaykhraznova and Yakovleva v. Russia (no. 43439/14) and Formela v. Poland (no. 58828/12, 40795/17, 55306/18 and 55321/18) are currently before the ECtHR which will consider the Russian and Polish prohibitions on same sex marriage; and the lack of any other form of civil partnership law or recognition of same sex couples.

34. Oliari v Italy has a number of distinct features:-

1. The Italian Constitutional Court in 2010 accepted the need for the recognition of same sex relationships;

2. The Italian Supreme Court in 2012 has similarly recognised this need for recognition of same sex relationships;

3. The Italian Government had introduced ‘cohabitation agreements’ in 2013;

4. 3 Judges (Mahony (the British Judge), Tsotsoria and Vehabovic) of the 7 Judges only voted for such recognition of same sex unions in this specific case - because of the domestic decisions of the Italian Courts;

5. The internal Italian system was incoherent; and it was accepted as such. The two highest Italian Courts had required the protection of same sex couples to be addressed;

6. The Italian Government did not seek to argue for the protection of traditional family life, but argued that the Italian Parliament needed more time (in addition to the then period of 2010-2015) to introduce legislation on protection of same sex couples;

7. The European Consensus was relevant; including public opinion in Italy;

8. In Oliari, the content of the protection of same sex couples is unclear and uncertain; and only applies to non- controversial core rights such as inheritance [169-177];

Analysis of Oliari:

35. The ECtHR emphasised the need to have a ‘fair balance’ between the positive obligations on a State; and the wider interests of the community: [160] [175].

36. The ECtHR considered the positive obligations under Article 8 (private and family life) in sensitive moral and ethical issues and held that same sex couples are in need of legal recognition: [165] which includes ‘moral and materialistic support, maintenance obligations and inheritance rights’ [169].

37. The national Courts have recognised this: [170] which the current cohabitation agreements fail to achieve.

38. It is important to note that the Italian government did not argue any interests on behalf of the wider community for the ECtHR to consider and balance. The Italian Government ‘categorically denied’ a need to ‘… protect the traditional concept of family, or the morals of society’ [176]. The Italian Government accepted that there should be recognition of same sex unions as their national Courts had so ruled; and they merely sought a ‘choice of times and the modes of a specific legal framework’.

39. After an assessment of factors (relevant to the specifics of Italy), the ECtHR notes the clear judicial precedent of the Constitutional Court and Court of Cassation: [180]; and the widespread popular support: [181]; and the fact that the Italian government accepted that there should be legal protection for same sex couples [182].

40. In the absence of any argument of a prevailing community interest [185] there were no grounds for further delay.

41. In short, the issue was administrative and not substantive: further there is no requirement that civil partnerships are to be functionally equivalent to marriage.

The Application of Oliari by the Cayman Islands Court of Appeal (CICA):

42. The CICA reviewed Oliari and Others v Italy¹²; and held:-

57 … It decided, in other words, that States no longer had a margin of appreciation (to which reference had been made in Schalk and Kopf) as to whether or to provide legal protection to same sex Unions

43. The CICA held at [57] that:-

As to the applicants’ complaint of a lack legal safeguard regarding their relationships, the court concluded that in the absence of marriage, the failure of the Italian state to provide for a type of civil union did amount to a violation of Article 8. It referred to the rapid development of legal recognition of same-sex couples (see paragraphs 177 and 178). It decided, in other words, that states no longer had a margin of appreciation (to which reference had been made in Schalk and Kopf) as to whether or not to provide legal protection for same-sex unions.

44. The CICA premised this proposition on paragraphs [177 -178]. However, these paragraphs assert:-

1. There is a distinction between core rights and ‘supplementary’ rights. Core Rights are discussed in paragraphs [169-172] and include ‘moral and material support, maintenance obligations and inheritance rights’ accessible by a settle procedure as opposed to an individual case assessment. Core Rights are limited to ‘support, maintenance obligations and inheritance rights’. Supplemental Rights would be, inter alia, parental rights, adoption, artificial insemination;

2. The means by which States protect such core rights is with the margin of appreciation;

3. It is submitted that there is no obligation to provide supplemental Rights; and many Contracting States do not provide Core Rights (paragraph 31 above) and paragraphs [53-55] of Oliari;

4. In Schalk and Kopf v Austria¹³ provides in [108]:-

The Court starts from its findings above, that States are still free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples. Nevertheless, the applicants appear to argue that if a State chooses to provide same-sex couples with an alternative means of recognition, it is obliged to confer a status on them which – though carrying a different name – corresponds to marriage in each and every respect. The Court is not convinced by that argument. It considers on the contrary that States enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition.

45. The preceding paragraph [176] focuses on the lack of any argument from the Italian Government before considering the minimalist demands of Mr. Oliari in paragraph [177].

46. It is unclear where the holding that same sex partnerships require legal protection that is functionally equivalent to marriage other than from the concessions made by the Attorney General. As such, it appears an unsustainable Declaration was made by the CICA.

47. Even if the case of Oliari had been corrected understood by the leanred Court, there is no reason for the learned Court to apply it.

48. In R (Hicks) v Commissioner of Police of the Metropolis¹⁴, the Court of Appeal considered the prior authorities on the status of Strasbourg case-law, and held in paragraph [80]:

(3) The UK courts will be bound to follow an interpretation of a provision of the Convention if given by the Grand Chamber as authoritative, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which, properly explained, would lead to that interpretation being reviewed by the European Court of Human Rights when its interpretation was being applied to English circumstances.

(4) The same principle and qualification applies to a “clear and constant” line of decisions of the European Court of Human Rights other than one of the Grand Chamber.

49. Oliari v Italy is not a decision of the Grand Chamber, nor is there a clear and consistent line of decisions on this issue¹⁵. As noted, the European Court is considering Russia and Poland’s lack of civil protection for same sex couples; and the level of any such protection that is required.

50. The current state of ECtHR jurisprudence on this issue is that that is no obligation on Contracting States to provide same sex marriage or civil partnership that is functionally equivalent to marriage. The margin of appreciation applies to alternative recognition of same sex relationships; and subject to further clarification of the scope of Oliari only applies (if at all) to Core Rights.

51. In the absence of any decision by the Grand Chamber or of a “clear and constant” line of decisions of lower Chambers of ECtHR, there is no basis under ECtHR jurisprudence to declare that the Appellants are entitled to protection functionally equivalent to marriage.

GROUND B: The learned Court exceeded its powers in its ‘recognition’ of a violation.

52. Only the ECtHR can give a correct interpretation of the ECHR: and an unsustainable application of an ECHR judgement is a question of law.

53. Article 32 of the ECHR defines the jurisdiction of the European Court:-

The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto …

54. Article 46(1) ECHR provides:

The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

55. The Strasbourg Court defines the meaning of the Convention; but in a complex international system lacking strict precedent or stare decisis it is for the national Courts to consider the application of any decision without Article 46(1) ECHR.

56. No argument appears to have been submitted on these principles.

57. In R (Ullah) v Special Adjudicator¹⁶, Lord Bingham held:-

[20] …This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

58. As mentioned above, in R (Hicks) v Commissioner of Police of the Metropolis¹⁷, Court of Appeal considered the prior authorities on the status of Strasbourg case-law, and held in paragraph [80] (emphasis added):-

What conclusions can be drawn from this domestic case law on how English courts should deal with Strasbourg decisions on the interpretation of the ambit of a provision of the Convention itself, as opposed to a European Court of Human Rights decision on how a provision in the Convention is to apply to particular factual circumstances? We think that the following principles are clear:

(1) It is the duty of the national courts to enforce domestically enacted Convention rights.

(2) The European Court of Human Rights is the court that, ultimately, must interpret the meaning of the Convention.

(3) The UK courts will be bound to follow an interpretation of a provision of the Convention if given by the Grand Chamber as authoritative, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which, properly explained, would lead to that interpretation being reviewed by the European Court of Human Rights when its interpretation was being applied to English circumstances.

(4) The same principle and qualification applies to a “clear and constant” line of decisions of the European Court of Human Rights other than one of the Grand Chamber.

(5) Convention rights have to be given effect in the light of the domestic law which implements in detail the “high level” rights set out in the Convention.

(6) Where there are “mixed messages” in the existing Strasbourg case law, a “real judicial choice” will have to be made about the scope and application of the relevant provision of the Convention.

GROUND C: The learned Court failed to give due deference to the specific cultural conditions in the Cayman Islands, as required under Article 56(3) ECHR.

59. The Preamble to the ECHR provides:-

Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration,

60. The ECHR is a regional human rights treaty: with relevant to local histories and cultures (which are varied enough in Europe). The Court has emphasised the Convention’s role as a “constitutional instrument of European public order” in the field of human rights¹⁸: the regional convergence of values in Europe enabling this. This concept has been described as a ‘European constitution of human rights’, a ‘substantive common European constitution’, a ‘constitution of human rights’ or as a ‘process of constitutionalisation’¹⁹.

61. The ECtHR applies principles such as ‘European consensus’ ‘Common ground between the contracting States’ ‘evolving Rights’ which are specific cultural norms applicable to Europe.

62. Even in the context of Europe, many socio-ethical issues lack consensus. As Lord Sumption held in R (Nicklinson and another) v Ministry of Justice²⁰:

[229] There is a variety of reasons why the resolution of some issue may lie within the margin of appreciation of the state. It may be because the Strasbourg court has recognised that a legitimate diversity of cultural values among member states of the Council of Europe makes a range of possible answers equally consistent with the Convention. Such issues as the prohibition of abortion in Ireland (A v Ireland (2011) 53 EHRR 13) and the presence of crucifixes in Italian classrooms (Lautsi v Italy (2012) 54 EHRR 3) are cases in point. In cases like these, if the Strasbourg court has held the rule or practice of the particular state to be within the state's margin of appreciation, then absent a fundamental shift of cultural values either within the state in question or among the members states of the Council of Europe generally, there is usually little if any scope for a national court in that state to say that the rule or practice in question is contrary to the Convention. …

63. Within Europe, the position on same sex marriage is not uniform; and many European States have constitutional provisions on marriage reserving such marriage to men and women²¹- (similar to the Cayman Islands) and other European States have introduced civil partnerships²².

Article 56 ECHR:

64. Socio cultural and national differences are complex enough in the European Common Area: where Contracting States have responsibilities for overseas territories, it is submitted that there is an enhanced margin of appreciation.

65. Article 56(3) of the ECHR provides:-

3. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.

66. The use of the term ‘local requirements’ (under Article 56(3) ECHR) is designed to address societal development of societies outside of Europe (or possessing distinct local characteristics. This Article will not justify non- compliance with the Convention: but rather the local conditions of a region will be a factor to be taken into account in any proportionality assessment²³:

67. The purpose of Article 56(3) is to recognise differing cultures and values. The ECHR is not a tool for the exporting of European socio- cultural values.

68. There are many complex evolving rights on which there is no agreement within a region, let alone across the globe²⁴. Issues such as: Abortion, same sex marriage, marriage relations, religious principles, hate speech, embryo destruction, euthanasia, assisted dying, freezing of embryos and even smoking are issue of differing views based on local customs.

69. The Cayman Islands is in a very different part of the world. The Constitution of the Cayman Islands specifically references its Christian heritage. The Cayman Islands is recognised as a ‘God fearing country based on traditional Christian values’; and further provisions specifically apply to the Bill of Rights. Article 14 BoR specifically delimits marriage to that of a man and a woman.

70. Another relevant provision is Section 73 of the Charter of the United Nations which provides:-

Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:

  a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;

  b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;

….

GROUND D: The learned Court acted prematurely in holding there to be an “unsatisfactory state of affairs” requiring intervention by the United Kingdom Government, and thus encouraged the United Kingdom Government to unsettle the delicate constitutional balance achieved in the relationship between the United Kingdom and the Cayman Islands

71. In R (Miller (No. 2) v The Prime Minister²⁵, the Supreme Court identifies two important fundamental principles that should not be over-ridden by the Executive. The first is that of Parliamentary sovereignty; the second is Parliamentary accountability.

72. The first is that a common law, statutory or prerogative power should not be used to undermine Parliamentary sovereignty. As Lord Browne -Wilkinson held²⁶ ‘the constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body’. [41].

73. Lord Sumption in R (Nicklinson and another) v Ministry of Justice²⁷ [230-32] discuss the vexed question as to when an issue is for Parliament and when an issue is for the Courts (and, by implication, whether for the Governor):-

1. the subject matter raised issues of personal moral values (in this case, assisted dying),

2. Parliament has considered the issue (that is in dispute) and had determined the matter. Parliament sovereignty would be subverted if its views were to be ignored,

3. the subject matter is controversial and one of societal dispute necessitating legitimacy for the decision -making body. Parliament by means of democratic accountability has the necessary legitimacy,

And Lord Sumption considered the provision in Article 8(2) ECHR

4. a restriction ‘for the protection of morals’ as a Ground for restricting Article 8 Rights. The question of morality is in itself a controversial issue; but a matter for full debate by the lawmaker.

74. In Wilkinson and Kitzinger v Her Majesty’s Attorney General and Lord Chancellor²⁸ a same sex couple married in British Columbia, Canada sought a Declaration that their marriage was valid in the United Kingdom. The President of the Family Division noted that:

37 …. It is wrong for the Court by an exercise of purported interpretation, effectively to legislate by making a decision in an area for which only Parliament, following legislative deliberation in respect of its ramification or practical repercussions is equipped to evaluate.

…

118. It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or "nuclear family") in which both maternal and paternal influences are available in respect of their nurture and upbringing.

…

122. The position is as follows. With a view (1) to according formal recognition to relationships between same sex couples which have all the features and characteristics of marriage save for the ability to procreate children, and (2) preserving and supporting the concept and institution of marriage as a union between persons of opposite sex or gender, Parliament has taken steps by enacting the CPA to accord to same-sex relationships effectively all the rights, responsibilities, benefits and advantages of civil marriage save the name, and thereby to remove the legal, social and economic disadvantages suffered by homosexuals who wish to join stable long-term relationships. To the extent that by reason of that distinction it discriminates against same-sex partners, such discrimination has a legitimate aim, is reasonable and proportionate, and falls within the margin of appreciation accorded to Convention States.

75. Executive law-making and (to a lesser extent) Court law-making is, in principle, contrary to the separation of powers and have to be used sparingly. This is a matter for the Cayman Islands Parliament. The local population has differing norms from other counties. As Lord Bingham held in Reyes v R²⁹:

[28]… this does not mean that in interpreting the constitution of Belize effect needs to be given to treaties not incorporated into domestic law of Belize or non -binding recommendations or opinions made by foreign courts or human right bodies. It is open to any Country to lay down the rules by which they wish their State to be governed and they are not bound to give effect in their Constitution to norms and standards accepted elsewhere, perhaps in very different societies. But the Courts will not be astute to find that a Constitution fails to conform with international standards of humanity and individua right unless it is clear on a proper interpretation of the Constitution, that it does.

76. In the current state of the jurisprudence of the ECtHR, this issue should have been for the Parliament of the Cayman Islands.

77. Ms. Day and Ms. Bush have the right of individual petition to the European Court, Strasbourg. The national law in the Cayman Islands is clear and unambiguous: and Section 9 cannot be used so as to vitiate Section 14 BoR.

Paul Diamond:

chambers@pauldiamond.com

7^th January 2021.

11^th January 2021.