October 21, 2020

Cayman: Premier responds to legal opinion issued by CPR – [Part of legal opinion follows]

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From The Office of the Premier

The Cayman Port Referendum (CPR) group on Saturday issued a legal opinion to the media.

Responding to this Legal Opinion Premier Hon. Alden McLaughlin said “The Government has taken legal advice on the conduct of this matter from our customary noted constitutional counsel in London and we are more than satisfied that the process being followed is fair and proper in every respect. What is becoming increasingly clear, however, is that CPR is not really interested in holding a referendum, presumably because they think they will likely lose, but are simply intent on derailing the cruise port and cargo port project by any means possible, including frustrating it by delay. The Government will not allow that to occur – we intend to provide the country with a referendum that is fair to all sides. If CPR really believes it has a legitimate challenge to the process being followed by the Government, it should immediately apply to the court for leave for judicial review and have the matter adjudicated by the court rather than debated in the media.”

In his statement on October 3rd 2019 the Premier provided a summary as to the process followed by Cabinet in determining the question. This is worth noting again.

Specifically, whilst no guidance is given in the Constitution on how Cabinet should go about settling the wording of the referendum, the Cabinet as far as possible had followed several common sense and natural justice principles. These were that the question should be:

• clear and simple, easy to understand and written in plain language;

• to the point, that is directed at the core issue in contention;

• definitive and not ambiguous or open to a variety of interpretations; and

• neutral, which means the wording should not create any encouragement for voters to consider one response more favourably than another and should not mislead voters.

Again Cabinet did follow the above principles. Cabinet also had regard to the Council of Europe’s Commission for Democracy Through Law (the Venice Commission) in its Code of Good Practice on Referendums.

In addition, Cabinet sought to ensure that the referendum question reflected the intention of the petitioners, specifically Cruise Port Referendum Cayman (CPR). The wording of the CPR referendum petition did not readily assist in helping determine a question that met the criteria above as it is not written in plain language, nor does it set out any definitive proposition. Rather it simply asks that “the proposed cruise berthing facility……be decided solely by referendum”.

However, CPR’s initial referendum website (https://cprcayman9.wixsite.com/website) offered two rationales for the petition that people were being asked to sign.

First, it states: “The purpose of the Petition is….to bring about a people-initiated referendum in which registered voters can vote through ballot ‘Yes’ or ‘No’ on whether the country should proceed with the proposed Cruise Berthing Facility.” (emphasis added)

Secondly, it states “The aim of this petition is…to start a people-initiated referendum…on whether the country should move forward with the proposed Cruise Berthing Facility.” (emphasis added)

These statements make clear the underpinning the rationale for the CPR petition and can be relied upon to represent what it was people were signing up for. Taken together, therefore, they provided a starting point for the Cabinet in drafting an appropriate question, including the question requiring a clear yes or no response and whether the country should proceed or move forward with the project.

Whilst the petitioners have focused solely on cruise berthing, an enhanced cargo port has always been an intrinsic part of the Government’s plans to provide for a long-needed, modern port facility that includes cruise berthing and an enhanced cargo port.

The Government has at all times acted in good faith and will ensure that the referendum process is completed timely and in a manner that is fair to all sides.

The Referendum (People-Initiated Referendum Regarding the Port) Bill, 2019 will be debated in the Legislative Assembly tomorrow (Monday 28th October). The debate will be aired live on CIGTV or on the CIGTV YouTube channel.

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Part of Cruise port referendum legal opinion by Helen Mountfield QC.

The following is the beginning and concluding sections of the legal document compiled by Helen Mountfield QC

IN THE MATTER OF A PEOPLE INITIATED REFERENDUM REGARDING THE CONSTRUCTION OF A CRUISE SHIP PORT IN THE CAYMAN ISLANDS

OPINION

A. INTRODUCTION

1. The Cayman Islands Constitution Order 2009 (“the Constitution”) provides for people initiated referendums on matters of national importance if a petition signed by not less than 25% of registered electors is presented to the Cabinet. On 12 June 2019, Cruise Port Referendum Cayman (“CPR Cayman”) presented a petition to the Governor (the chair of the Cabinet) calling for a referendum on the question of whether to proceed with the cruise port project at George Town. After significant delay, the Cabinet accepted that the petition was valid and, on 3 October 2019, laid the Referendum (People-Initiated Referendum Regarding the Port) Bill 2019 before the Legislative Assembly.

2. We are now asked to advise CPR Cayman on the following matters:

2.1. The lawfulness of the proposed procedure for the referendum, in relation to (a) the referendum question, (b) the date of the referendum, (c) campaign financing and (d) bars and alcohol.

2.2. The significance of a vote against the port by the majority of voters, but which constituted less than 50% of the electorate.

3. Our opinion is structured as follows:

3.1. The constitutional right to a people-initiated referendum (section B).

3.2. International law and guidance (section C).

3.3. The lawfulness of the proposed procedure (section D).

3.4. The effect of a vote against the port by the majority of voters but by less than 50% of the electorate (section E).

THE EFFECT OF A VOTE BY LESS THAN 50% OF THE ELECTORATE

46. We have watched the Premier’s interview with the Cayman Compass3 and note his statement that, in the event of a non-quorate majority of voters opposing the port project,

“We would proceed with the project because essentially people not turning out to vote is a clear indication they are not opposed to the project”.

47. In our view, the Premier is incorrect to state that people not turning out to vote is a clear indication that they are not opposed to the port project. People may not vote for a variety of reasons, including other commitments or feeling that they are insufficiently informed on the issues.

48. Although we do not consider that the Premier’s comments cross the line into unlawful conduct, he and the Cabinet do need to be careful not to create the impression that those turning out to vote oppose the port development because that would undermine the secrecy (or, at least, the perceived secrecy) of the ballot and would therefore be contrary to the purpose of s 70 of the Constitution.

49. Further, if the Government were to take more active steps to suppress turnout, for example by offering incentives to those staying at home or by actively discouraging civil servants from voting, then that would in our view be clearly unlawful. It would be plainly contrary to the purpose of s 70 of the Constitution and might well constitute electoral fraud.

50. We understand that those instructing us are concerned that the Premier’s comments indicate that the Government has predetermined its response to the referendum in the event that the quorum is not reached. However, we do not consider that the Premier’s comments can be taken as any kind of binding decision. As the majority of the UK Supreme Court observed in R (Miller) v Secretary of State for Exiting the European Union [2018] 1 AC 61, para 119: “such public observations, wherever they are made, are not law: they are statements of political intention”.

3 https://www.caymancompass.com/2019/10/06/premier-lets-get-on-with-it/

51. Further, although a majority vote with less than the approval quorum would not be legally binding under s 70 of the Constitution, it would be advisory. An advisory referendum may still have substantial political force, as the EU referendum in the United Kingdom has shown. As the Supreme Court observed in the Miller case, although the force of the referendum was political rather than legal, “It has already shown itself to be of great political significance” (para 124). Furthermore, we note that, in the UK, the House of Lords Select Committee on the Constitution (Referendums in the United Kingdom, HL Paper 99,para 197) noted that “because of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory”. However, it went on to state that: “it would be difficult for Parliament to ignore a decisive expression of public opinion”, a recommendation with which the UK Government agreed (HL Paper 34, p12). The Venice Commission made a similar point, as set out above.

52. It is not for us to prejudge the political significance of any outcome of the referendum.

However, in light of the observations of the eminent bodies recorded above (which accord with common sense), we anticipate that the effect of a significant majority vote against the port proposal might well have a powerful political effect.

F. CONCLUSION

53. For the reasons set out above, we consider that:

53.1. The proposed referendum procedure would be unlawful.

53.2. Although we suspect that the Premier has underestimated the political significance a non-quorate majority vote, without further evidence of efforts to supress voter turn-out we do not consider his comments to have been unlawful.

HELEN MOUNTFIELD QC

CHRIS BUTTLER

MATRIX

23 OCTOBER 2019

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