Wednesday 28 October, 2020

Premier: "I will always regret the opportunity that we... have lost"

Premier Alden McLaughlin

Premier Alden McLaughlin

Premier Alden McLaughlin has indicated his dismay that the UK has revoked a proposed constitutional reform, presented last year, to remove section 81 of the current Constitution, granting the Governor the power to legislate where he or she considers it necessary.

After some nine-months of awaiting confirmation, the premier announced on Friday that he had received confirmation from that the package of constitutional reforms contained in what had been called the Cayman Islands Constitution Amendment Order 2019, that was debated in December 2019, is moving forward as an amended Draft Order In Council, entitled “The Cayman Islands Constitutional (Amendment) Order 2020.”

"I think everyone will recall that in December of last year the Legislative Assembly debated and unanimously agreed to support a package of constitutional reforms contained in what was then called the Cayman Islands Constitution Amendment Order 2019.  This package of reforms was negotiated in December of 2018 but unfortunately became bogged down in London as issues with Brexit held the attention of the UK Government.  Later the UK elections and more recently the management of COVID understandably were the main focus of the UK Government," the premier explained.

Baroness Sugg confirmed to the premier, at the end of August, that the package of reforms was being considered but one change would not likely go forward.  

She followed that the UK would not include the provision which would remove section 81 of the current Constitution, which grants to the Governor the power to legislate where he or she considers it necessary to do so in respect of any matters for which the Governor has special responsibility under Section 55. She further noted that the decision to not remove this section was because the Governor has had to use section 81 recently to uphold the rule of law following the failure of the Legislative Assembly to approve the Domestic Partnership Bill.

According to the premier, those who attended the negotiations in London in 2018, including MLA Alva Suckoo, and then Leader of the Opposition, MLA Ezzard Miller, could attest that the negotiated package of reforms, including the removal of Section 81 was "hard-won and brought significant benefits to the Cayman Islands. These wins came about because the UK Government recognised how far we have matured as a country and as a Legislature and in the end had agreed to many of the reforms being sought."  

"I am a pragmatist and so I have come to accept that Section 81 will now remain in the Constitution, but I will always regret the opportunity that we as legislators and as a country have lost.  Hopefully, some future Government will be able to achieve what we came so close to doing," said the premier, in dismay.

The premier extrapolated on what the reforms mean for the Cayman Islands.

But let us focus now instead on what is still a very important and useful set of reforms that will not only advance our Islands and Constitution but will provide our Islands with several protections. 

The often-mentioned Section 125 of the current Constitution reserves unto Her Majesty the power to legislate for peace, order and good government of the territory; a provision that is common through almost all of the Overseas Territories’ constitutions.

In light of some of the issues that we have grappled with over the last few years, involving what we viewed as overreach by the British Parliament in particular.  We sought to put some parameters around this provision and were successful in getting the UK Government to agree to insert a new Section 126, which doesn’t exist in the current Constitution, which would read as follows:

“Notification of proposed Acts of Parliament extending to the Cayman Islands or Orders in Council extending such Acts of Parliament to the Cayman Islands

126. (1) Where it is proposed that—

(a)  any provision of a draft Act of the Parliament of the United Kingdom should apply directly to the Cayman Islands, or

(b)  an Order in Council should be made extending to the Cayman Islands any provision of an Act of Parliament of the United Kingdom,

the proposal shall normally be brought by a Secretary of State to the attention of the Premier so that the Cayman Islands Cabinet may signify its view on it.

(2) This section does not affect the power of the Parliament of the United Kingdom to make laws for the Cayman Islands or the power of Her Majesty to make an Order in Council extending to the Cayman Islands any provision of an Act of Parliament of the United Kingdom.”

This new provision is listed at the end of the package of reforms but I am mentioning it first given its importance to us as a Country.  What this does for the first time is to put into the Cayman Islands Constitution a provision that appears in no other constitution of any Overseas Territory; a mandatory provision that before the UK Government or the Parliament may legislate for us that at a minimum they must consult with the Premier and the Cabinet has to signify its view on the proposal.

This buys not only time but the opportunity for broader consultation across Whitehall and Westminster in the UK so that we don’t wind up with situations where the UK Parliament, simply on a whim, can amend legislation that is progressing through the House of Commons and that has the effect of intervening in areas of domestic policy by legislating for us.

Similarly, and in the same vein, is the agreement to the following provision being added to our Constitution in Section 44:

“(5) For the avoidance of doubt it is declared, subject to this Constitution, that the Cabinet possesses autonomous and exclusive capacity in domestic affairs for any matter that is not one of the following—

(a)  a special responsibility of the Governor under section 55(1);

(b)  a function which the Governor must exercise under this Constitution or any other law in his or her discretion or judgement or in accordance with instructions from Her Majesty through a Secretary of State; or

(c)  a function which the Governor is empowered or directed, either expressly or by necessary implication, to exercise without consulting with the Cabinet or to exercise on the recommendation or advice of, or after consultation with, any person or authority other than the Cabinet”.

This new section makes plain that the responsibility for the domestic policy of these Islands is a matter squarely for the elected Government and not for the UK.  This is similar to a provision that applies in the States of Jersey, in the Channel Islands, and will provide us, as it does them, with some increased insulation from intervention by the UK Parliament and indeed the UK Government, in areas which are devolved responsibilities of the local government. 

The UK has also agreed to remove Section 80 which is the Secretary of States Power to disallow legislation passed by the Legislative Assembly.   This is another significant concession, even with Section 81 remaining in place.

These changes are by themselves significant and will help advance our Islands politically and constitutionally - giving us greater responsibility to control our own destiny.  What also caps this off for me is the UK’s agreement for the Legislative Assembly name to be changed to the Parliament of the Cayman Islands and for the elected members to be called Members of Parliament.

This change reflects the true standing that we will have in constitutional terms.  In addition, as I have said previously this change is hugely important when elected members are dealing with international matters, or indeed when dealing with the UK Government or any other government.  Government Officials understand intuitively that a legislative assembly is an inferior body in constitutional terms to that of a parliament.

I believe that it is less likely that the UK Parliament will seek to deal with another parliament in the way that, on occasion, they have dealt with this Legislative Assembly in the past.

But besides that, this change is an important step for us, particularly as we are now also moving forward with plans to make the administration of the Legislative Assembly independent of the Executive. 

Another important change is an additional section that will allow the introduction of Parliamentary Secretaries who will be an elected representative appointed by the Governor acting on the advice of the Premier.  Parliamentary Secretaries will assume the roles which Councillors now have.  

Other important changes include:

· the UK agreeing to amend Section 71 of the Constitution to confer the power and authority to create standing orders to the Legislative Assembly and to remove that responsibility from the Governor.   

· and section 44(1) will be amended to allow the next Government, following the general election, to increase the number of ministers from 6 to 7 plus the Premier, which makes for a cabinet of 8 elected members in addition to the Attorney General, the Deputy Governor and the Governor as chair.

· And for a new provision in the Constitution to create a police service commission,

The premier indicated that these changes were significant to the Cayman Islands and received unanimous support in the Legislative Assembly, from the financial services industry, from the Chamber of Commerce and from the Cayman Ministers Association.

"We can all be proud of the significance of these constitutional reforms that will help to move this country to a whole new level, where we have greater autonomy, greater responsibility and a greater sense of insulation from international assaults on our right to control our own destiny," said the premier, despite the fact that the Governor continues to have the power to legislate where he or she considers it necessary to do so, a stipulation that many have found robs Cayman of the autonomy to make some of its own decisions.

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