In what amounts to a case of ‘some you win some you lose’ the vexatious Section 81 stays, but the Cayman Islands has won several significant constitutional concessions from the British government.
Hon, Premier Alden McLaughlin in updating on the state of constitutional reform talks with the British government, reported that Section 81 - the power of the Governor to unilaterally pass laws - will remain, despite the concerted effort of the government and opposition to have it expunged from the constitution.
However, some leeway has been granted regarding the equally controversial Section 125 which also empowers the UK with ultimate legislative authority over the jurisdiction.
That is being modified with the addition of a new Section 126.
The bid to remove Section 81 has had cross-party support in Cayman, but the recent action by HE Governor Martyn Roper in utilising it under his Reserve Powers to enact the divisive Civil Partnership Law has cemented its retention.
Reporting on the outcome of his recent conversations with Baroness Liz Sugg, the UK Minister for Overseas Territories, Premier McLaughlin confirmed that was the breaking point.
“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,” he reported.
“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,” Mr McLaughlin said.
NEW SECTION 126 UNIQUE TO CAYMAN
While the failure to remove that clause is seen as a setback, a number of concessions granted by the British government are portrayed by the Premier as confirmation of Cayman’s continuing constitutional maturity.
One such example is the agreement to insert a new Section 126, seen as a constraint on the current Section 125 which also puts considerable power in the hands of the UK government over Cayman.
“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,” the Premier explained.
It’s an area in which the local government has been at odds with the UK as administering power.
“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,” the Premier said, “ 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.
What this means, according to Premier McLaughlin, is that “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.”
Expounding on what he described as “the importance of this to us as a country,” Mr McLaughlin explained, “ 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.”
He said it’s 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.”
Mr McLaughlin further stated that crucially “this buys not only time but the opportunity for broader consultation across Whitehall and Westminster in the UK.”
He said this would prevent “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.”
Other amendments favouring Cayman include amendments to Section 44 “which 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 the Premier explained, 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, which Mr McLaughlin regards as another significant concession, even with Section 81 remaining in place.
Overall, the outgoing Premier said, “these changes are by themselves significant and will help advance our Islands politically and constitutionally - giving us greater responsibility to control our own destiny.”
Premier McLaughlin who demits office at next May’s election, the end of his constitutionally-limited two terms as Premier, added: “ 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.”
He defined this change as reflecting, “the true standing that we will have in constitutional terms.”
For what is likely to be regarded as a key part of his legacy, Mr McLaughlin declared that “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”, he pointed out, “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, “ he added.
There are also plans to make the Legislative Assembly independent of the Executive branch of government by assigning its own departmental budget as a separate entity.
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.
The UK has also agreed to amend Section 71 of the Constitution to remove from the Governor the power and authority to create standing orders and to transfer that to the Legislative Assembly.
From the upcoming general election, the number of ministers will be increased with a change to Section 44(1) which will be amended with the addition of another portfolio.
That will take 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.
A further provision under the constitutional changes will be the creation of the Police Service Commission.
According to Premier McLaughlin, this package of reforms, including several other administrative changes, “constitutes important changes to the overall advancement of these Islands and indeed some are critical to the well-being of these Islands.”
“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,” he said.
The package of reforms was negotiated in December of 2018 and is now going through the UK’s review process as an amended Draft Order In Council – which is entitled 'The Cayman Islands Constitutional (Amendment) Order 2020'.
That process includes being reviewed by the Foreign Affairs Committee and the Privy Council.
Commenting on the process to date, the Premier noted that “those who attended the negotiations in London in 2018, including MLA Alva Suckoo, and then Leader of the Opposition, MLA Ezzard Miller, can 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,” he pointed out.