Kattina Anglin v Governor of the Cayman Islands (Cayman Islands)

The expression ‘external affairs’ in a territorial constitution may extend to legislation needed to secure compliance with international obligations. Where a Governor has reserved legislative power for matters within that responsibility, the power is not confined to executive conduct of foreign relations. A dualist legal system does not require a narrower reading: legislation is the means by which treaty obligations receive domestic effect. Provisions dealing with assent, declarations of incompatibility, or alternative law-making powers do not necessarily create exclusive or mutually exclusive categories. The constitution must be read as a coherent whole, including its safeguards for consultation and approval.

The appeal arose after the Court of Appeal of the Cayman Islands held that the absence of legal protection functionally equivalent to marriage for same-sex couples breached constitutional and Convention rights in Deputy Registrar and Attorney General v Day and Bush 2020 (1) CILR 99. The Legislative Assembly later defeated a Domestic Partnership Bill. The Governor then used the reserved power under section 81 of the Cayman Islands Constitution Order 2009 to enact the Civil Partnership Act 2020.

Anglin sought judicial review, arguing that legislation implementing international obligations was outside the Governor’s responsibility for external affairs and that section 23(3) reserved the remedy to the Legislature. Williams J dismissed the application on the permitted ground, and the Court of Appeal dismissed the appeal on 4 July 2023. The central issue was whether sections 81 and 55 authorised the Governor to enact legislation securing compliance with the ECHR.

1. Disposition. The Board dismissed the appeal and advised His Majesty accordingly.
2. Constitutional interpretation. The provisions had to be construed according to their language, read in the context and purpose of the constitutional instrument and as part of a coherent whole. The Board applied the approach stated in Matadeen v Pointu [1999] 1 AC 98. The meaning of ‘external affairs’ was a question of construction, as illustrated by Secretary of State for the Home Department v Rehman [2001] UKHL 47.
3. Sections 81 and 55. ‘External affairs’ was a broad expression covering the relationship of the Cayman Islands and the United Kingdom with other countries and international organisations. It included securing compliance with international obligations. The Cayman Islands’ continuing breach of the ECHR and legislation designed to remedy that breach were a paradigm example of Government business concerning external affairs.
4. Dualism. The dualist principle means that treaty obligations require domestic legislation before they operate in domestic law. It did not restrict section 55 when read with section 81. The Governor was exceptionally exercising a legislative power, and giving domestic effect to an international obligation by legislation fulfilled rather than contradicted dualism. The Board applied the principles stated in R(Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 to that analysis.
5. Further constitutional arguments. The categories in section 78(2) were not discrete. The express reference to inconsistency with international obligations was a belt-and-braces provision and did not narrow ‘external affairs’. Section 55(3) regulated the Governor’s power to undertake international obligations and did not prevent later implementation under section 81. Section 23(3) assigned the remedying of incompatibility to the Legislature rather than the courts, but did not confer exclusive legislative competence or remove the Governor’s reserved power. The declaration in Day and Bush concerned an absence of legislation, so section 23 did not apply.
6. Alternative law-making powers and context. The availability of the plenary powers under section 125 of the Constitution and section 5(1) of the West Indies Act 1962 was no reason to construe section 81 narrowly. Section 81 was intended, where possible, to avoid direct legislation imposed by the United Kingdom and contained appropriate safeguards, including consultation with the Premier and prior approval by a Secretary of State.

• Privy Council: Leave to appeal was granted on 22 May 2024. The Board dismissed the appeal and advised His Majesty accordingly: [2025] UKPC 30.
• Court of Appeal of the Cayman Islands: The appellant’s appeal from Williams J was dismissed on 4 July 2023. Leave to appeal to the Privy Council was refused on 18 October 2023.
• Grand Court of the Cayman Islands: Williams J dismissed the judicial review application on 28 March 2022.