The Cayman Islands’ Domestic Partnership Bill, 2020 &
Governor Martyn Roper’s intention to Assent to it
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O P I N I O N
(By Right Honourable Dame Joan A. Sawyer, DBE)
I have been asked to give a legal opinion on Governor Martyn Roper’s statement published on August 5, 2020 in light of the fact that the Legislative Assembly rejected the Domestic Partnership Bill by a 9 to 8 vote after extensive debate in that Assembly.
The material parts of Governor Roper’s statement read:
“Following the failure of the Legislative Assembly to pass the Domestic Partnership Bill on the 29th July 2020 into 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. Both I and the FCO were grateful to the Honourable Premier and Attorney-General for their considerable effort in seeking to put the law in place. 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 Domestic Partnership Bill leaves me, as Governor and the UK Government, with no option but to act to uphold the law. The question of same sex marriage is currently before the Privy Council and it will reach a decision on the appeal early next year. I believe it is therefore imperative that the Domestic Partnership Bill 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.
“Despite calls in many quarters for the UK to legislate for same sex marriage, the FCO decided that passing a version of the current Bill would be the right approach as this would fully comply with the Court of Appeal judgment. Acting on instructions from the Foreign Secretary, I intend to publish on 10 August the Domestic Partnership Bill and allow 21 days consultation for the public and Members of the Legislative Assembly. My team and that of the Attorney General will be available to consider any additional comments on the provisions of the Bill. At the end of this period, acting under instructions from the Foreign Secretary. I will use my Reserved Powers under Section 81 of the Constitution to assent to the Bill. I expect it to be gazetted and come into law at the beginning of September.
“A number of consequential pieces of legislation will be amended at the same time to bring them into line with the new law. These will also be published for consultation on 10 August.”,,,
The following points appear to arise from that statement:
(1)Even though the decision of the Court of Appeal is before the Privy Council, the Governor intends to act as a matter of urgency despite the normal rule that there should not be any public discussion about a matter that is subjudice.
(2)The Governor not only intends to assent to the Domestic Partnership Bill despite the cogent criticisms made during the debate thereon in the Legislative Assembly but also – and this appears for the first time – to amend eleven (11) pieces of legislation to bring them into line with the new law, even though it appears that those proposed amendments were never placed before the Legislative Assembly. This appears to be a kind of legislation by ambush and has never been heard of in any of the Westminster Model Constitutions.
(3) The Governor posits that the Domestic Partnership Bill in its unaltered state (?) would satisfy the legal requirement and at the same time maintain the current definition of marriage. This is a strange conclusion bearing in mind that the Constitution itself states in section 14, that marriage is to be between a male and female and that that section is part of the Bill of Rights in the Constitution.
(4)It is far from clear how persons of the same sex are deprived of any normal human rights to arrange their domestic affairs so as to achieve, for example, protection for their joint property, or making a will for the devolution of their property on death or on the ending of their relationship. The real intent of the Bill in its present form is to equate same sex couples to heterosexual couples and to give them the status of married couples only by another name which would bring the Domestic Partnership Bill into clear conflict with section 14 of the Constitution although by an indirect means. This is not a permissible exercise of the legislative power according to the decision in Ladore v Bennett [1939] AC 468, 482, referred to by Lord Diplock in Hinds v The Queen [1976] 2 WLR 266 at page 383.
Nevertheless, the Governor, in his wisdom purported to discuss the “failure” of the Legislative Assembly to enact the Bill in its present form with the FCO and UK Ministers. It is not clear whether the proposed consequential amendments to eleven (11) other pieces of legislation had been drafted when he spoke with the FCO and UK Ministers. It appears that those drafts were not before the Legislative Assembly at the time when the Bill was being debated. The Governor has stated that he is acting under section 55 of the Constitution in doing so and in proceeding to cure the failure of the Legislative Assembly.
The Governor has not, however, referred to section 23 of the Cayman Islands Constitution.
Section 23(1) of the Constitution provides that if in any proceedings, primary legislation is found to be incompatible with that part of the Constitution – the Bill of Rights – 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”. That is in fact what the Court of Appeal appears to have done in its judgment.
Section 23 (2) states that where a declaration of incompatibility is made under section 23(1) it “shall not constitute repugnancy to the Order and shall not affect the continuation in force and operation of the legislation or section or sections in question” so that the existing marriage law remains valid even though there was said to be an incompatibility with section 9 of the Bill of Rights. In addition, section 14 of the Constitution requires marriage to be between a male and female, not to be between two persons of the same gender; and section 14 is part of the Bill of Rights. Therefore, the fact that the Domestic Partnership Bill failed in the Legislative Assembly means that there is at present no existing conflict between what changes that Bill would have made to the Marriage Law and what is contained in the Constitution. To assent to it would, however, create a conflict with section 14 of the Constitution.
Section 23(3) provides that, “In the event of a declaration of incompatibility made under subsection 23(1), the Legislature shall decide how to remedy the incompatibility”. That subsection 23(3) of the Constitution, in effect, gives the Legislative Assembly the power and the duty to decide how to remedy an incompatibility of primary legislation with a constitutional provision. There appears to be no provision in the Constitution which places that duty on either of the other two branches – that is the Executive and the Judicial Branches – to enable either of those branches to make the decision which, according to section 23(1) is for the Legislative Assembly to decide – see for example, Sammut v Stickland [1938] AC 678. This principle is particularly important where a proposed Bill like the Domestic Partnership Bill, has a distinct probability of creating a conflict with a provision of the Bill of Rights, such as section 14 of the Constitution.
In this case, the fact that the Governor and the FCO may have “expected” or wished for a different result, cannot confer on the Governor and/or the FCO the power to reverse the decision of the Legislative Assembly, the Branch of Government charged by the Constitution with making the decision as to how to remedy an incompatibility between primary legislation and the Constitution itself. Nor can it confer on the Governor the power to legislate by Proclamation a Bill that has been rejected by the Legislative Assembly in the due exercise of its powers and responsibilities.
If, therefore, the Governor proceeds to assent to the Domestic Partnership Bill as well as the consequential amendments to eleven (11) other laws (which proposed amendments were not placed before the Legislative Assembly at any time before the Bill was rejected) may appear to be an attempt by the Executive Branch to take over and exercise the powers expressly reserved by the Constitution to the Legislative Assembly. And to assent to and bring into force the Domestic Partnership Bill may be seen as the Governor exercising a power to legislate for the Cayman Islands by way of proclamation - a practice that was held to be unlawful from as long ago as the 17th century - see for example, the Case of Proclamations (1610) 12 Co. Rep. 74
While the Governor has referred to his powers under section 55 of the Constitution, there is no mention of his primary duty under section 33 of the Constitution. For example, section 33(2) requires the Governor, in exercising his powers under the Constitution to act in accordance with the provisions of the Constitution. There is nothing in the Governor’s published statement to indicate that he addressed his mind to the provisions of sections 23 and 33. As to his mention of section 55, there is no express reference to which part or parts of that section he is following in the exercise of those powers.
Section 55 provides that the Governor shall be responsible for the conduct, “subject to this Constitution and any other law, of any business of the Government with respect to the following matters:
(a) defence: (b) external affairs, subject to subsections (3) and (4); (c) Internal security, including the police without prejudice to section 58 (d) appointment to an office…”.
Subsections (a) and (d) do not appear to be relevant in this matter. As to external affairs, presumably this was a reference to the decision of European Court/Commission of Human Rights in the case of Oliari v Italy - but see Chapin and Charpentier v. France (no. 40183/07) to the contrary. If that is the basis for the exercise of the Governor’s power under section 55 of the Constitution, it becomes even more difficult to understand how the Bill could possibly be discussed, let alone assented to by the Governor, while there is a pending appeal before the Privy Council.
The heading to section 81 of the Constitution is the “Governor’s reserved power. That section reads:
“81. If the Governor considers that the enactment of legislation is necessary or desirable with respect to or in the interests of any matter for which he or she is responsible under section 55 but, after consultation with the Premier, it appears to the Governor that the Cabinet is unwilling to support the introduction into the Legislative Assembly of a Bill for the purpose or that the Assembly is unlikely to pass a Bill introduced into it for the purpose the Governor may with the prior approval of a Secretary of State, cause a Bill for the purpose to be published in a Government Notice and may (notwithstanding that the Bill has not been passed by the Assembly) Assent to it on behalf of Her Majesty, but the Bill shall be so published for at least 21 days prior to assent unless the Governor certifies by writing under his hand that the matter is too urgent to permit such delay in the giving of assent and so informs a Secretary of State”.
According to that section, there are two alternative pre-conditions, one of which would have to be satisfied if the Governor is to exercise such an exorbitant power. They are:
(a) it must appear to the Governor, after consultation with the Premier, that the Cabinet was unwilling to support the introduction of the Bill into the Legislative Assembly. In the circumstances that have happened, that precondition does not appear to have been satisfied because the Bill was, in fact, introduced into the Legislative Assembly, presumably by a member of the Cabinet. Or (b) it must appear to the Governor that the Assembly is unlikely to pass a Bill – in this case, the unamended Bill which was seriously criticized in the Legislative Assembly – introduced into it for the purpose. Since the voting on the Bill, it appears that nothing has been done to it to remedy the deficiencies in it to which attention was drawn during the debate in the Legislative Assembly.
In those circumstances it may not appear fair to say that the Bill, if properly drafted – including the drafts of the proposed consequential amendments to the eleven (11) other pieces of existing legislation, if presented to the Legislative Assembly would not be considered by them.