Court rules Governor had power to pass Civil Partnership law

(CMR) The Cayman Islands Court of Appeal has dismissed an appeal by Kattina Anglin that sought to quash the actions of former Governor Martyn Roper to exercise his reserve power under Section 81 of the Constitution to assent to Civil Partnership Act 2020.

The Court ruled that “there is no doubt that the Governor purported to exercise a function prescribed by, and in accordance with the Constitution and instructions addressed to him, as s.31(1) and (2) required.”

Kattina Anglin had filed an appeal stating that the then Governor acted outside his reserved powers when he introduced and assented to the Civil Partnership Act (“CPA”), which states that two persons may enter into a civil partnership under this Act if either person is sixteen years of age or older but under the age of eighteen and the person’s parent, legal guardian or the court consents to the civil partnership in accordance with this Act. 

The CPA also states that two persons may enter a civil partnership if both persons are over eighteen years; neither person is currently married, in a civil partnership or overseas relationship; and neither person is within the prohibited degrees of civil partnership.

It also allows for a civil partnership to be formalized by the Registrar or a Civil Registrar or by a civil partnership officer. After a civil partnership is formalized, a party to the civil partnership shall register it under section 21.

Anglin argued that the Grand Court should have quashed the Governor’s decision as being ultra vires. She submitted that if the British Government wished to introduce a law in the Cayman Islands for such partnerships, it should have done so by the enactment of an Order in Council by Her Majesty under s.125 of the Constitution, by which the Crown has full power to make laws for the peace, order and good government of the Cayman Islands.

In a judgment released today, 4 July, the court dismissed the appeal. The Rt Hon. Sir John Goldring, President, said:

“It seems to me clear that on any proper analysis, this application for judicial review was bound to fail. Moreover, it was brought by an applicant who had no direct interest in the outcome.”

He said that given Anglin's (inevitable) concession that the CPA could have been enacted by an Order in Council, Alex Potts’ description of the proceedings as an academic exercise is not without substance.  Potts represented Colours Caribbean during the hearing.

“It is also of note, again as Mr. Potts observed, that no challenge to the Governor’s use of s.81 has been brought by the Cayman Islands Government. The unfortunate consequence of the proceedings has been years of uncertainty for those who entered civil partnerships in the understandable belief that the CPA was lawful. It is always open to a judge at the leave stage of an application for judicial review to invite the Respondent to attend and make submissions. Had that happened here, it may well be that these proceedings, conducted, as I understand it, entirely at the public’s expense, would have been stopped at the outset,” the Court of Appeal President added.

Meantime, Colours Caribbean said, “The monumental decision brought by the Cayman Islands Court of Appeal is today being celebrated by Colours Caribbean and by the wider LGBTQIA+ community in all Caribbean British territories in our region.”

“It is our sincere hope that those with a difference of opinion can respect this judgment and this matter can now be laid to rest—at the end of the day, same-sex couples have a human right to build and nurture their families per the Civil Partnership Act and the Constitution. We as a society should support and respect the rights of the vibrant members of our LGBTQIA+ community.” Colours Caribbean stated in a release following the release of the judgment.