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Apr 1

Court upholds Governor’s use of power on civil unions

On 7 December 2020, Kattina Anglin sought a judicial review of the Governor’s enactment of the Civil Partnership Act (“CPA”), contending that the Governor’s use of s.81 of the Constitution to enact the CPA was beyond the scope of his responsibility as defined by s.55 of the Constitution. She sought an order quashing the Governor’s action and a declaration that the Governor’s action was unlawful.

On 28 March 2021, Mr. Justice Richard Williams delivered his judgment dismissing Ms. Anglin’s claims, holding that:

The Governor had not acted unlawfully when he used his power under section 81 of the Constitution to implement the CPA; and

Providing a legal equivalence to marriage for same-sex couples was within his scope of responsibility by reason of the government’s breach of the European Convention on Human Rights.

This decision secures the rights of same sex couples under the CPA, which Chantelle Day and Bodden Bush’s hard-fought challenge to the Marriage Law had secured, and which would have been threatened had Mr. Justice Williams overturned the Governor’s powers to enact the CPA.

The Civil Partnership Act – How did we get here?

On 14 September 2018, Chantelle Day and Vickie Bodden Bush, represented by Ben Tonner QC of McGrath Tonner, successfully challenged the discrimination embodied in the Marriage Act (2010 Revision) by only providing for marriage between a man and a women. They obtained a declaration from the Grand Court that the Marriage Act did not conform with their rights enshrined in the Cayman Islands’ Constitution (the “Bill of Rights”).

On 29 March 2019, the Chief Justice ruled that the Constitution gave Ms. Day and Ms. Bush the right to marry and that the Governor, the Deputy Registrar of the Cayman Islands, and the Attorney General of the Cayman Islands were in violation of certain rights found in the Bill of Rights.

He said preventing same-sex couples from accessing marriage, and the suite of rights that come with it, was a clear violation of freedoms guaranteed in Cayman’s Constitution, including the right to a private and family life.

Whilst the Chief Justice’s ruling was overturned by the Court of Appeal, and the Court of Appeal’s decision was upheld by the Privy Council in March 2022, with both Courts finding that in the context of the Bill of Rights, the right to marriage is confined to opposite-sex couples, it was a result of Day and Bodden-Bush’s continued fight for the right to marry that during the course of the Court of Appeal proceedings, the Deputy Registrar and the Attorney General acknowledged that the Bill of Rights requires the Legislative Assembly to provide same sex couples with legal status functionally equivalent to marriage.

The Court of Appeal subsequently made the following declaration:

“In recognition of the longstanding and continuing failure of the Legislative Assembly of the Cayman Islands to comply with its legal obligations under section 9 of the Bill of Rights and in recognition of the Legislative Assembly’s longstanding and continuing violation of Article 8 of the European Convention on Human Rights, IT IS DECLARED THAT:

“Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage.”

It was following this declaration, that the CPA was enacted by the Governor on 4 September 2020 acting on behalf of the United Kingdom’s Secretary of State, and despite the Legislative Assembly having voted against the CPA 2 months earlier.

What is Judicial Review?

Judicial review allows applicants with sufficient interest in a decision or action by a public body to ask the Grand Court (the Court) to review the lawfulness of: rules and regulations, or other subordinate legislation; or a decision, action or failure to act in relation to the exercise of a public function.

Contacts

If you have any queries regarding a decision or action of a public body in the Cayman Islands please contact:

Ben Tonner QC, + 1 345 623 2740

Btonner@mcgrathtonner.com

Sally Bowler, +1 345 623 2750

Sbowler@mcgrathtonner.com