November 29, 2020

Cayman Islands Constitution changes take effect 3 December

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GRAND CAYMAN, Cayman Islands – The Cayman Islands Constitution (Amendment) Order 2020, which the Privy Council approved on 11 November, 2020, comes into effect on Thursday, 3 December, 2020, the day prior to the State Opening and first sitting of Parliament.

The Order makes several amendments to the Cayman Islands Constitution as negotiated between the Cayman Islands and the United Kingdom. These amendments were debated and unanimously approved in the Legislative Assembly in December 2019.

Amongst other things, the amendments change the name of the Legislative Assembly to Parliament; abolish the Governor’s power of disallowance of locally-enacted legislation; remove the requirement for the Governor to approve standing orders made by the Parliament; make clearer that the Cayman Islands has autonomous capacity with respect to domestic affairs; remove the Governor’s exemption from a duty to consult the Cabinet but defines certain exception to this; provide for Parliamentary Secretaries and a Police Service Commission; and provide an obligation for the UK Secretary of State for Foreign Affairs to notify the Premier of proposed Acts of the UK Parliament that would extend directly to the Cayman Islands or Orders in Council extending any provisions of an Act of the UK Parliament to the Cayman Islands so that the Cabinet can provide its views on proposed changes.

EXPLANATORY MEMORANDUM TO
THE CAYMAN ISLANDS CONSTITUTION (AMENDMENT) ORDER 2020 2020 No. 1283

Introduction
This explanatory memorandum has been prepared by the Foreign, Commonwealth and Development Office and is laid before Parliament by Command of Her Majesty.


Purpose of the instrument
This Order makes several amendments to the Constitution of the Cayman Islands, in line with the commitments and strategy of the constitutional framework in the 2012 White Paper on the Overseas Territories available at https://www.gov.uk/government/publications/the-overseas-territories-security- success-and-sustainability). It follows proposals from the Cayman Islands Government and agreement reached between the United Kingdom Government and a Cayman Islands delegation in negotiations in December 2018. However, agreement to the removal of the Governor’s legislative reserved power was withdrawn following its use at the point the Governor assented to the Civil Partnership Act on 4 September 2020.

Matters of special interest to Parliament
Matters of special interest to the Joint Committee on Statutory Instruments
None.
Matters relevant to Standing Orders Nos. 83P and 83T of the Standing Orders of the House of Commons relating to Public Business (English Votes for English Laws)
As the instrument is required to be laid before Parliament, but is not subject to any further parliamentary procedure there are no matters relevant to Standing Orders Nos. 83P and 83T of the Standing Orders of the House of Commons relating to Public Business.

Extent and Territorial Application
The territorial extent of this instrument is the Cayman Islands. The territorial application of this instrument is the Cayman Islands.

European Convention on Human Rights
As the instrument is not subject to parliamentary procedure, no statement is required.

Legislative Context
This instrument is made under the sections 5 and 7 of the West Indies Act 1962 (c. 19) and amends the Cayman Islands Constitution Order 2009 (S.I. 2009/1373, as amended by the Cayman Islands Constitution (Amendment) Order 2016 (S.I. 2016/780)


Policy background
What is being done and why?
The United Kingdom Government’s policy on the constitutional arrangements with the Overseas Territory is set out in the 2012 White Paper: “The Overseas Territories: Security, Success and Sustainability”. The current fundamental structure of the constitutional relationships provides that powers are devolved to the elected Governments of the Overseas Territories to the maximum extent possible consistent with the United Kingdom needing to retain those powers necessary to discharge its sovereign responsibilities. The 2012 White Paper made clear the United Kingdom Government’s commitment to ensure the constitutional arrangements with the Overseas Territories work effectively to promote the best interests of the Territories and of the United Kingdom, and to ensure a dialogue is sustained with all those Territories that wish to engage.

In October 2018, the Cayman Islands Government made a number of proposals to the United Kingdom Government on amending the 2009 Cayman Islands Constitution largely based on precedents in other Overseas Territories’ constitutions. Negotiations took place in December 2018 and this instrument reflects the agreement reached between the United Kingdom Government and Cayman Islands delegation during those negotiations. However, agreement to the removal of the Governor’s legislative reserved power was withdrawn following its use at the point the Governor assented to the Civil Partnership Act on 4 September 2020.

The instrument makes several amendments to the Constitution of the Cayman Islands, to update and clarify the processes of Government. In particular, the instrument changes the name of the Legislative Assembly to Parliament. It abolishes Her Majesty’s power of disallowance of locally-enacted legislation, but introduces instead some pre-legislative controls. It makes clearer that the Cayman Islands Cabinet has autonomous capacity with respect to domestic affairs. It removes the Governor’s exemption from a duty to consult the Cabinet, but defines certain exceptions to this. It also provides for Parliamentary Secretaries and a Police Service Commission. It provides an obligation for the Secretary of State for Foreign Affairs to notify the Premier of proposed Acts of the United Kingdom Parliament that would extend directly to the Cayman Islands or Orders in Council extending any provisions of an Act of the United Kingdom Parliament to the Cayman Islands.


European Union (Withdrawal) Act/Withdrawal of the United Kingdom from the European Union
This instrument does not relate to withdrawal from the European Union / trigger the statement requirements under the European Union (Withdrawal) Act.

Consolidation
This instrument does not involve consolidation.

Consultation outcome
This instrument follows negotiations during December 2018 between the United Kingdom Government and a delegation from the Cayman Islands comprising members of the Cayman Islands Government, the Cayman Islands Opposition and officials. A draft of this instrument was subsequently debated in the Cayman Islands Legislative Assembly on 6 December 2019. The Premier of the Cayman Islands communicated consent to the draft instrument on 10 December 2019 along with details of the public consultation that had taken place. Agreement to the removal of the Governor’s legislative reserved power was subsequently withdrawn following its use at the point the Governor assented to the Civil Partnership Act on 4 September 2020.

In accordance with the agreement reached between the Secretary of State for Foreign Affairs and the Chairman of the Foreign Affairs Committee in 2002, a draft of this instrument was shown to the Foreign Affairs Committee for information 28 sitting days before it was due to be made.

Guidance
No guidance has been prepared for this instrument.


Impact
There is no, or no significant, impact on business, charities or voluntary bodies.
There is no, or no significant, impact on the public sector in the United Kingdom.
An Impact Assessment has not been prepared for this instrument because no impact on business is foreseen.


Regulating small business
The legislation does not apply to activities that are undertaken by small businesses in the United Kingdom.


Monitoring & review
The operation of this instrument will be kept under review by the Foreign, Commonwealth and Development Office in consultation with the Cayman Islands Government.


Contact
Tina Hamilton at the Foreign, Commonwealth and Development Office Telephone: Telephone: 020 7008 3392 or email: [email protected] can be contacted with any queries regarding the instrument.
Adam Pile, Deputy Director in the Overseas Territories Directorate at the Foreign, Commonwealth and Development Office can confirm that this Explanatory Memorandum meets the required standard.
Baroness Sugg at the Foreign, Commonwealth and Development Office can confirm that this Explanatory Memorandum meets the required standard.

END

STATUTORY INSTRUMENTS

2020 No. 1283

CARIBBEAN AND NORTH ATLANTIC TERRITORIES

The Cayman Islands Constitution (Amendment) Order 2020

Made – – – – 11th November 2020

Laid before Parliament 18th November 2020

Coming into force in accordance with article 1(3)

At the Court at Windsor Castle, the 11th day of November 2020

Present, The Queen’s Most Excellent Majesty in Council

Her Majesty, in exercise of the powers conferred upon Her by sections 5 and 7 of the West Indies Act 1962(a) and of all other powers enabling Her to do so, is pleased, by and with the advice of Her Privy Council, to order, and it is ordered, as follows:


Citation, construction and commencement

1.—(1) This Order may be cited as the Cayman Islands Constitution (Amendment) Order 2020.
(2) The Cayman Islands Constitution Order 2009(b) and this Order shall be construed together as one and may be cited together as the Cayman Islands Constitution Orders 2009 to 2020.
(3) This Order comes into force on such day as the Governor, acting in his or her discretion, may appoint by proclamation published in a Government Notice.


Interpretation

2. In this Order, “the Constitution” means the Constitution set out in Schedule 2 to the Cayman Islands Constitution Order 2009.

Change of name of Legislative Assembly

3.—(1) In the Constitution, wherever the words “Legislative Assembly” and “Assembly” occur,
substitute the word “Parliament”.
(2) In any law in force in the Cayman Islands, any reference to the Legislative Assembly shall be construed as a reference to the Parliament.
(a) 1962 c. 19. (b) S.I. 2009/1379 as amended by S.I. 2016/780.

Amendment of section 32 of the Constitution

4.—(1) Section 32 of the Constitution (exercise of the Governor’s functions) is amended as
follows. (2) In subsection (1), for “subsection (2)” substitute “subsections (2) and (5) to (8)”. (3) In subsection (2), omit paragraph (c). (4) For subsection (5), substitute—
“(5) Before exercising any function with respect to any matter mentioned in section 55(1)(a), (b) or (c), the Governor shall consult the Cabinet.
(6) For the avoidance of doubt, the Governor may act against any advice given to him or her by the Cabinet under subsection (5);
(7) The Governor is not obliged to consult the Cabinet concerning any function with respect to any matter mentioned in section 55(1)(a), (b) or (c) in any case in which the Governor considers, acting in his or her discretion—
(a) it is in the public interest that he or she should act without consulting the Cabinet;
(b) the matters to be decided are too trivial to require the advice of the Cabinet; or
(c) the matters to be decided are too urgent to admit the Governor obtaining the advice of the Cabinet by the time within which the Governor considers it may be necessary for him or her to act.
(8) The Governor is not obliged to consult the Cabinet with respect to any matter mentioned in section 55(1)(d).
(9) When the Governor acts in accordance with subsection 7(c), he or she shall, as soon as reasonably practicable thereafter, inform the Cabinet.”.

Amendment of section 44 of the Constitution


5.—(1) Section 44 of the Constitution (the Cabinet) is amended as follows. (2) In subsection 1(b), for “six” substitute “seven”. (3) In subsection (2), after “two-fifths” insert “plus one”. (4) After subsection (4), insert—
“(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.”.

Amendment of section 48 of the Constitution


6.—(1) Section 48 of the Constitution (Cabinet Secretary) is amended as follows. (2) After subsection (4) insert—
“(5) The functions conferred on the Cabinet Secretary by subsection (4) may be exercised by the Cabinet Secretary in person or by officers subordinate to him or her acting under and in accordance with his or her general or special instructions.”.


Insertion of a new section 54A in the Constitution

7. After section 54 of the Constitution insert—
“Parliamentary Secretaries
54A.—(1) The Governor, acting in accordance with the advice of the Premier, may appoint by instrument under the public seal one or more Parliamentary Secretaries from among the elected members of the Parliament to provide assistance to the Ministers.
(2) A Parliamentary Secretary shall be subject to the directions of the Minister or Ministers concerned.
(3) A Parliamentary Secretary shall vacate his or her office if—
(a) he or she resigns it by writing under his or her hand addressed to and received by the Governor;
(b) he or she ceases to be a member of the Parliament for any reason other than its dissolution;
(c) he or she is required by section 64(1) to cease to perform his or her functions as a member of the Parliament;
(d) he or she is not an elected member of the Parliament when it first meets after a general election;
(e) the Premier vacates his or her office; or
(f) his or her appointment is revoked by the Governor, acting in accordance with the advice of the Premier, by instrument under the public seal.”.

Amendment of section 58 of the Constitution

8. In section 58(4) of the Constitution (National Security Council), for “he or she considers”
substitute “the Governor is instructed by a Secretary of State”.

Insertion of new sections 58A and 58B in the Constitution

9. After section 58 of the Constitution, insert—
“Police Service Commission

58A.—(1) There shall be in and for the Cayman Islands a Police Service Commission,
which shall consist of—
(a) the Governor as Chair;
(b) three members, experienced in matters of the police, law enforcement, the criminal law or other matters related to national security, two of whom shall be appointed in writing by the Governor acting in accordance with the advice of the Premier and the other in accordance with the advice of the Leader of the Opposition; and
(c) two members with qualifications described in paragraph (b), appointed in writing by the Governor acting after consultation with the Premier and the Leader of the Opposition.
(2) No person shall be qualified to be appointed as a member of the Police Service Commission if he or she is a member of, or a candidate for election to, the Parliament.
(3) The office of a member of the Police Service Commission (other than the Governor) shall become vacant—
(a) at the expiration of five years from the date of his or her appointment or such earlier time as may be specified in the instrument by which he or she was appointed;
(b) if he or she resigns office by writing under his or her hand addressed to and received by the Governor;
(c) if he or she becomes a member of, or a candidate for election to, the Parliament; or
(d) if the Governor, acting in his or her discretion, directs that he or she shall be removed from office for inability to discharge the functions of that office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.
(4) If the office of a member of the Police Service Commission (other than the Governor) is vacant or a member is for any reason unable to perform the functions of his or her office, the Governor, acting in the manner prescribed by subsection (1) for the appointment of that member, may appoint a person who is qualified for appointment as a member of the Commission to act as a member of the Commission, and any person so appointed shall, subject to subsection (3), continue so to act until he or she is notified by the Governor, acting in his or her discretion, that the circumstances giving rise to the appointment have ceased to exist.
(5) No business shall be transacted at any meeting of the Police Service Commission if there are less than four members of the Commission (in addition to the Governor) present.
(6) Any question proposed for decision at any meeting of the Police Service Commission shall be determined by a majority of the votes of the members present and voting; and if on any question the votes are equally divided the Chair shall have and exercise a casting vote.
(7) The Police Service Commission shall be served by a secretariat, the members of which shall be public officers.
(8) Subject to this Constitution, in the exercise of its functions the Police Service Commission shall not be subject to the direction or control of any other person or authority.

Power to appoint, etc, to offices in the Police Force


58B.—(1) Power to make appointments to offices in the Police Force and to remove and to exercise disciplinary control over persons holding or acting in such offices shall vest in the Governor, acting in accordance with the advice of the Police Service Commission; but the Governor, acting in his or her discretion, may act otherwise than in accordance with that advice if he or she determines that compliance with that advice would prejudice Her Majesty’s service.
(2) Where the Police Service Commission advises that any person should be appointed to an office in the Police Force of a rank superior to Chief Inspector, that advice shall require the approval of the National Security Council before being submitted to the Governor; but the Governor, acting in his or her discretion, may act without the approval of the National Security Council if he or she determines that to do otherwise would prejudice Her Majesty’s service.
(3) Before exercising the powers vested in the Governor by subsection (1), the Governor may, acting in his or her discretion, refer the advice of the Police Service Commission back to the Commission for reconsideration by it.
(4) The Governor may make the referral described in subsection (3) only once.
(5) If the Police Service Commission, having reconsidered its original advice under subsection (3), substitutes for it different advice, subsection (3) shall apply to that different advice as it applies to the original advice.
(6) The Governor, acting after consultation with the Police Service Commission, may, by regulations published in a Government Notice, delegate to any member of the Commission or any public officer or class of public officer, to such extent and subject to such conditions as may be prescribed in the regulations, any of the powers vested in the Governor to make appointments to offices in the Police Force and to remove or exercise disciplinary control over persons holding or acting in such offices; and except in so far as regulations made under this subsection otherwise provide, any power delegated by such regulations may be exercised by any person to whom it is delegated without reference to the Police Service Commission.
(7) No member of the Police Service Commission shall participate in any proceedings of the Commission which affect him or her personally.”.

Amendment of section 71 of the Constitution

  1. In section 71(1) of the Constitution (Standing Orders and committees), omit “; but no such Standing Orders or amendment or revocation of them shall have effect unless they have been approved by the Governor”.
    Amendment of section 77 of the Constitution
    11.—(1) Section 77 of the Constitution (introduction of Bills) is amended as follows. (2) For subsection (2), substitute—
    “(2) Every Bill shall be published in a Government Notice, and the Parliament shall not proceed upon any Bill until the expiration of 28 days after the date on which the Bill was so published, unless the Premier certifies by writing under his or her hand that consideration of the Bill is too urgent to permit such a delay.”.
    (3) After subsection (3), insert—
    “(4) Except with the consent of the Governor, acting in his or her discretion, signified by the Premier, the Parliament shall not proceed upon any Bill (including any amendment to a Bill) that, in the opinion of the Governor, acting in his or her discretion, signified as aforesaid, concerns a matter for which the Governor is responsible under section 55(1) or a matter that by law is the responsibility of the Governor.
    (5) In the event of a dispute concerning whether a matter falls within the scope of section 55(1) for the purposes of subsection (4), the Premier may refer the question to a Secretary of State, whose decision on the matter shall be final.”.
  2. Revocation of section 80 of the Constitution
  3. 12. Section 80 of the Constitution (disallowance of laws) is omitted.
    Amendment of section 124 of the Constitution
    13.—(1) Section 124 of the Constitution (interpretation) is amended as follows. (2) In subsection (1), omit the definition of “Assembly”. (3) For subsection (2)(a), substitute—
    “(a) references to the office of Speaker, Deputy Speaker or elected member of the Parliament, Premier, Deputy Premier or other Minister, Parliamentary Secretary, Leader of the Opposition or Deputy Leader of the Opposition;”; and
    (4) For subsection (2)(c), substitute—
    “(c) references to a member of the Judicial and Legal Services Commission, the Human Rights Commission, the Commission for Standards in Public Life, the Constitutional Commission, the Police Service Commission, the National Security Council, an Advisory District Council, an Electoral Boundary Commission, or the Advisory Committee on the Prerogative of Mercy, or to the Complaints Commissioner;”.

  4. Insertion of new section 126 in the Constitution 14. After section 125 of the Constitution, insert—
    “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.”.

Richard Tilbrook
Clerk of the Privy Council


  1. EXPLANATORY NOTE
    (This note is not part of the Order)
    This Order makes several amendments to the Constitution of the Cayman Islands. In particular, it changes the name of the Legislative Assembly to the Parliament, it abolishes the power of disallowance and introduces instead some pre-legislative controls, and it makes clearer that the Cayman Islands Cabinet has autonomous capacity with respect to domestic affairs. It also changes the circumstances in which the Governor must consult the Cabinet, and provides for Parliamentary Secretaries and a Police Service Commission. It provides an obligation for the Secretary of State to notify the Premier of proposed Acts of the United Kingdom Parliament that would extend directly to the Cayman Islands or Orders in Council extending any provisions of an Act of the United Kingdom Parliament to the Cayman Islands.
    A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.

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