Her Majesty, in exercise of the
powers conferred upon Her by sections 5 and 7 of the West Indies Act
1962(1)
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

— This Order may be cited
as the Cayman Islands Constitution (Amendment) Order 2019.

The Cayman Islands Constitution
Order 2009(2)
and this Order shall be construed together as one and may be cited
together as the Cayman Islands Constitution Orders 2009 to 2019.

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

 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

— The Constitution is
amended by substituting for the words “Legislative Assembly” and
“Assembly”, wherever they occur, the word “Parliament”.

In any law in force in the
Cayman Islands, any reference to the Legislative Assembly shall be
construed as a reference to the Parliament.

Amendment of section 32 of
the Constitution

— Section 32(1) of the
Constitution is amended by substituting for the words “subsection
(2)” the words “subsections (2), (5) and (6)”.

1() 1962
c. 19.

2() S.I. 2009/1379, as amended by S.I. 2016/780.

Section 32(2) of the
Constitution is amended by omitting paragraph (c).

Section 32 of the Constitution
(exercise of the Governor’s functions) is amended by substituting
for subsection (5) the following subsection—

“(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 but may act
against any advice given to him or her by the Cabinet; but the
Governor shall not be 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 it may be necessary for the Governor
to act.

(6) The Governor shall not be
obliged to consult the Cabinet with respect to any matter mentioned
in section 55(1)(d).

(7) When the Governor acts in
accordance with subsection 5(c), he or she shall, as soon as
reasonably practicable thereafter, inform the Cabinet.”.

Amendment of section 44 of
the Constitution

— Section 44(1) of the
Constitution is amended in paragraph (b) by substituting for the word
“six” the word “seven”.

Section 44(2) of the
Constitution is amended by inserting the words “plus one” after
the word “two-fifths”.

Section 44 of the Constitution
(the Cabinet) is amended by adding the following new subsection after
subsection (4)—

“(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

 Section 48 of the
Constitution (Cabinet Secretary) is amended by the addition of the
following new subsection after subsection (4)—

“(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

 The following new section
is inserted in the Constitution after section 54—

“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
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

 Section 58 of the
Constitution (National Security Council) is amended in subsection (4)
by substituting for the words “he or she considers” the words
“the Governor is instructed by a Secretary of State”.

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

 The following new sections
are inserted in the Constitution after section 58—

“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 (apart from 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

 Section 71 of the
Constitution (Standing Orders and committees) is amended in
subsection (1) by omitting the punctuation and words “; 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

— Section 77 of the
Constitution (introduction of Bills) is amended by substituting for
subsection (2) the following subsection—

“(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.”.

Section 77 of the Constitution
is amended by the addition of the following new subsection after
subsection (3)—

“(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.
In the event of a dispute concerning whether a matter falls within
the scope of section 55(1), the Premier may refer the question to a
Secretary of State, whose decision on the matter shall be final.”.

Revocation of section 80 of
the Constitution

 Section 80 of the
Constitution (disallowance of laws) is revoked.

Amendment of section 81 of
the Constitution

 Section 81 of the
Constitution (Governor’s reserved power) is revoked and replaced by
the following section—

“Governor’s
right to address the Parliament

81. If the Governor
considers that the enactment of legislation is necessary or desirable
with respect to or in the interests of any matter for which he or she
is responsible under section 55(1), but after consultation with the
Premier it appears to the Governor that the Cabinet is unwilling to
support the introduction into the Parliament of a Bill for that
purpose or that the Parliament is unlikely to pass a Bill introduced
into it for that purpose, the Governor shall be entitled, with the
prior approval of a Secretary of State, to address the Parliament.”.

Amendment of section 124 of
the Constitution

 Section 124 of the
Constitution (interpretation) is amended—

in subsection (1) by omitting
the words ““Assembly” means the Legislative Assembly”;

by substituting for subsection
(2)(a) the following—

“(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

by substituting for subsection
(2)(c) the following—

“(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;”.

Insertion of new section 126
in the Constitution

The following new section is
inserted in the Constitution after section 125—

“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

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, it replaces the Governor’s reserved legislative power with a right for the Governor to address the Parliament of the Cayman Islands in defined circumstances, 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.