Chantelle Day and another v The Governor of the Cayman Islands and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sales |
| Judgment Date | 14 March 2022 |
| Neutral Citation | [2022] UKPC 6 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0033 of 2020 |
[2022] UKPC 6
Lord Reed
Lord Hodge
Lady Arden
Lord Sales
Dame Victoria Sharp
Privy Council Appeal No 0033 of 2020
Hilary Term
From the Court of Appeal of the Cayman Islands
Appellants
Edward Fitzgerald QC
Ben Tonner QC
Peter Laverack
(Instructed by Simons Muirhead & Burton LLP)
Respondents
Sir Jeffrey Jowell QC
Dinah Rose QC
Timothy Parker
Reshma Sharma
Celia Middleton
(Instructed by Attorney General's Chambers (Cayman Islands))
The appellants, Ms Chantelle Day and Ms Vickie Bodden Bush, are in a committed relationship and wish to enter into a same-sex marriage recognised in law in the Cayman Islands. When they applied for the appropriate licence at the Cayman Islands General Registry in April 2018 the Deputy Registrar refused to grant a licence on the grounds that section 2 of the Marriage Law (2010 Revision) (“the Marriage Law”) defines marriage as “the union between a man and a woman as husband and wife”. Ms Day and Ms Bush claim that the Bill of Rights, Freedoms and Responsibilities (“the Bill of Rights”), which forms Part 1 of the Cayman Islands Constitution (“the Constitution”) set out in the Cayman Islands Constitution Order 2009 (“the 2009 Order”), confers on them a constitutional right to legal recognition of such a marriage and that the Marriage Law should be read in such a way as to reflect that right. Their claim was successful in the Grand Court (Chief Justice Smellie), but an appeal by the Government of the Cayman Islands was allowed by the Court of Appeal (Sir John Goldring P, Field and Morrison JJA). The Court of Appeal held that, on its proper interpretation, the Bill of Rights does not confer a right on same-sex couples to marry and have their marriage recognised in law. Ms Day and Ms Bush now appeal to the Board.
It was common ground in the Court of Appeal and is common ground before the Board that under section 9(1) of the Bill of Rights (right to respect for family and private life) the Legislative Assembly of the Cayman Islands was required to provide the appellants with a legal status functionally equivalent to marriage, such as civil partnership. The Government and Legislative Assembly were in breach of this obligation, so the Court of Appeal made a declaration to that effect. The Government does not appeal against that declaration. This obligation has now been complied with, by the promulgation of the Civil Partnership Law 2020.
The United Kingdom is responsible for the international relations of the Cayman Islands. Pursuant to article 56 of the European Convention on Human Rights (“the ECHR”) the United Kingdom has declared that the ECHR shall apply in relation to the Cayman Islands. Accordingly, the United Kingdom is concerned to ensure that local law in the Cayman Islands should be compatible with the obligations of the United Kingdom under the ECHR in respect of the Cayman Islands. The Foreign and Commonwealth Office proposed the introduction of a new constitution for the Cayman Islands which would reflect the provisions of the ECHR and scheduled formal negotiations on that constitution with local representatives to commence on 29 September 2008.
Shortly before the negotiations began, a proposal to change the law in relation to marriage to make it clear that it did not apply in relation to same-sex relationships was before the Legislative Assembly, on 5 September 2008. The Marriage (Amendment) Law 2008 was passed, to come into effect on 27 October 2008. The introduction to that Law stated that it was promulgated “to expressly provide that a marriage is a union between a man and a woman”. It amended the Marriage Law (2007 Revision) by inserting into the definition section, section 2, the statement that “‘marriage’ means the union between a man and a woman as husband and wife”. That definition has been retained in the 2010 Revision of the Marriage Law.
The negotiations on the constitution between the United Kingdom Government and local representatives were chaired by Mr Ian Hendry of the Foreign and Commonwealth Office. The Cayman Islands delegation comprised the Governor, the Attorney General, five representatives of the elected government, four backbenchers of the governing party, five representatives of the official opposition, two church representatives, three members of the Chamber of Commerce and two members of the Cayman Islands Human Rights Committee. The ambit of the right to marry to be included in the Bill of Rights was the subject of debate in the negotiations. Various representatives of the Cayman Islands wished to have it made clear that the proposed right to marry should apply only to marriage between a man and a woman. The provision which became section 14 of the Bill of Rights was drafted to meet this concern. In the third and final round of negotiations, on 3 February 2009, Mr Hendry stated that the boundaries of the provision had been made clear in that “marriage is so defined in this text without peradventure that marriage can only be between an unmarried man and an unmarried woman, it can't be anything else”. The transcript of the negotiations, from which this statement is taken, was not published. The draft constitution was approved to be put to a referendum.
On 20 May 2009 there was a referendum in the Cayman Islands in which 62% of those who voted approved the draft constitution. On 10 June 2009 the 2009 Order adopting the Constitution was promulgated by the Queen in Council. On 6 November 2009 it came into force, except for the Bill of Rights. That came into force later, on 6 November 2012.
The Constitution is set out in Schedule 2 to the 2009 Order, entitled “The Constitution of the Cayman Islands”. It includes a preamble which states, in material part:
“The people of the Cayman Islands …
Affirm their intention to be —
A God-fearing country based on traditional Christian values, tolerant of other religions and beliefs …
A country in which religion finds its expression in moral living and social justice.
A caring community based on mutual respect for all individuals and their basic human rights.
A country committed to the democratic values of human dignity, equality and freedom …
A community protective of traditional Caymanian heritage and the family unit …”
Section 5 of the 2009 Order has the heading, “Existing laws”. It provides:
“(1) Subject to this section, the existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution and shall be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution.
…
(3) In this section ‘existing laws’ means laws and instruments … having effect as part of the law of the Cayman Islands immediately before the appointed day [6 November 2009].”
The Bill of Rights is headed “Guarantee of Rights, Freedoms and Responsibilities” and has a preamble as follows:
“Whereas all peoples have the right of self-determination and by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development and may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law.”
Section 1 of the Bill of Rights states:
“(1) This Bill of Rights … is a cornerstone of democracy in the Cayman Islands.
(2) This part of the Constitution —
(a) recognises the distinct history, culture [and] Christian values … of the Cayman Islands and it affirms the rule of law and the democratic values of human dignity, equality and freedom;
(b) confirms or creates certain responsibilities of the government and corresponding rights of every person against the government; and
(c) does not affect … rights against anyone other than the government …
(3) In this Part ‘government’ shall include public officials (as defined in section 28) and the Legislature, but shall not include the courts (…).”
The Bill of Rights is based on the ECHR. The form and content of the rights contained in the Bill of Rights substantially follow the Convention rights. The appellants seek to rely on sections 9, 10, 14 and 16 of the Bill of Rights. Section 9 of the Bill of Rights (“Private and family life”) corresponds with article 8 of the ECHR (right to respect for private and family life); section 10 (“Conscience and religion”) corresponds with article 9 (freedom of thought, conscience and religion); section 14 (“Marriage”) corresponds with article 12 (right to marry); and section 16 (“Non-discrimination”) corresponds with article 14 (prohibition of discrimination).
Section 14 of the Bill of Rights, headed “Marriage”, is the only provision in the Bill of Rights which refers specifically to marriage. This is the provision which is of most significance in the appeal. So far as relevant it states:
“(1) Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family.
(2) No person shall be compelled to marry without his or her free and full consent.
(3) Nothing in any law or done under its authority shall be held to contravene subsection (1) to the extent that the law makes provision that is reasonably justifiable in a democratic society — (a) in the interests of public order, public morality or public health; (b) for regulating, in the public interest, the procedures and modalities of marriage; or (c) for protecting the rights...
To continue reading
Request your trial
-
The Attorney General v The Jamaican Bar Association
...to be brought to bear for this task are clearly set out in the recent opinion of the Board in Day v Governor of the Cayman Islands [2022] UKPC 6 at paras 34–38 and need no 25 Both the Charter and the allegedly offending legislation must each be interpreted to ascertain whether there is any......
-
Attorney General for Bermuda v Roderick Ferguson and Others
...is to heterosexual marriage, and, as the Board explains in paras 45 to 50 of its judgment in Day v The Governor of the Cayman Islands [2022] UKPC 6, the right to marry under article 12 of the Convention, to which the constitutional right in that case corresponds, is lex specialis. The Boar......
-
Jean-Rony Jean Charles v The Honourable Carl Bethel (in his Capacity as Attorney General of the Bahamas) and 4 others
...4315, para 26; Attorney General for Bermuda v Ferguson [2022] UKPC 5; [2022] 3 WLUK 176, para 46; Day v Governor of the Cayman Islands [2022] UKPC 6, paras 22 More specifically, the Board in interpreting equivalent provisions in the Guyanese Constitution has emphasised the clear intention......
-
The Partnership Act (2013 Revision) and the Exempted Ltd Partnership Act (2021 Revision) and the Companies Act (2021 Revision) and Formation Group (Cayman) Fund I, L.P. Between (1) Country Garden (Hong Kong) Development Company Ltd (2) Faircharm Global Ltd (3) Drakesville Investment Ltd (4) Fortune Bridge (China) Ltd (5) Yousu Hong Kong Ltd (6) Perfect One Ventures Ltd Petitioners v Formation Group (Cayman) Fund I, L.P. Respondent
...36(3) is justified by the following rule of statutory interpretation articulated by Lord Sales in Day v Governor of the Cayman Islands [2022] UKPC 6 (and applied to my mind in a somewhat novel way in that case) as follows: “ 30… This means that the principle of interpretation encapsulated ......
-
Privy Council Dismisses Appeal To Recognise Same Sex Marriage In The Cayman Islands
...March 2022 the Privy Council handed down its decision in Day and others v The Governor of the Cayman Islands and another [2022] UKPC 6 dismissing the Appellants' appeal for recognition of same sex marriage in the Cayman In brief, the background to the decision is as follows: in early April ......