By
Premier Hon.
Alden McLaughlin, MBE, JP, MLA

13
November, 2019

Good
morning.

Mr.
Speaker, before concluding my Budget Policy Statement last Wednesday
I informed this Honourable House that I had been awaiting a letter
from Lord Ahmad of Wimbledon, the Minister of State for the Overseas
Territories on the final package of Constitutional modernisation
changes that were approved by Her Majesty’s Government. I promised
that when I got that letter I would advise this Honourable House and
the public.

The
letter indeed arrived on Monday Mr. Speaker and with your permission
I would like to read it to this Honourable House and thereafter lay
it and the accompanying draft Order in Council on the table of this
Honourable House.

Mr.
Speaker, the letter is addressed to me dated 10 November, 2019. It
reads:

Dear
Alden

Constitutional
Reform

I
am writing to provide an update on plans to reform the Cayman Islands
Constitution. I am pleased to confirm that I have been able to secure
agreement within the United Kingdom Government to a final package of
proposals that accepts the majority of your suggestions (Order in
Council at Annex A). Of your counter proposals, we have been able to
accept your request for a provision in the Constitution that the
United Kingdom will consult the Cayman Islands on any legislation
affecting them and a narrower definition of the Governor’s duty to
consult Cabinet. I am sure that you will agree that this is a
positive development, not just for the future relationship between
the United Kingdom and the Cayman Islands, but also for the future
governance of the Cayman Islands.

I
have welcomed the fact that our bilateral discussions to date have
included representatives from both the Government and Opposition in
the Cayman Islands. As you know, the next step in agreeing this
package is to obtain the broadest possible cross Party and public
support for these reforms. Generally, the policy of the UK Government
has been to require a referendum, unless the reforms are declared by
the Premier and Leader of the Opposition to be minor or
uncontroversial. However, I would also note that the UK Government’s
position on this matter is reserved, as there may be circumstances
where a referendum may not be possible or appropriate.

Therefore,
I would be grateful if you could outline how you intend to seek the
broadest possible support for the reforms to the Constitution, both
within the Legislative Assembly and the wider public. If the decision
was not to hold a referendum, it would be helpful if you could
explain the case for not doing so.

I
would be grateful for your views on the final package of
constitutional reform proposals. Subject to the points made above, if
you agree to the package the Foreign Affairs Committee will be
notified and the draft Order in Council will be sent to the Privy
Council for the order to be made.

You
will have also seen that a General Election has now been called and
under the rules of Purdah, I will not be able to make any new
decisions that bind any future Government.

Yours
Sincerely,

Lord
(Tariq) Ahmad of Wimbledon

Minister
of State for the Commonwealth and the United Nations

Prime
Minister’s Special Representative for Preventing Sexual Violence in
Conflict

And
Mr. Speaker that letter as indicated attaches a draft Order in
Council, which sets out the changes that the UK Government is
prepared to make to the current Constitution.

Mr.
Speaker, I think it will be helpful to all honourable members and to
the broader public if I spend a little time explaining what those
changes are.

Mr.
Speaker, members will remember, I am sure, that what gave the impetus
to the most recent attempts by us, not just the Government but the
Opposition as well, to have some amendments made to the Constitution
was what we termed as the over-reaching by the UK Parliament when the
Sanctions and Anti-Money Laundering Bill was proceeding through its
stages in the UK Parliament. In the end there was success in
attaching a certain amendment to that bill, which had the effect of
legislating for the Cayman Islands in the area of financial services.

Mr.
Speaker, I think we were all justifiably outraged at this over-reach
and effectively the UK Parliament intervening in a matter, which is
currently the devolved responsibility of this Legislature and the
Government.

And
so Mr. Speaker, we opened discussions with the UK Government to talk
about ways in which our Constitution could be strengthened to
discourage that sort of intervention. We are not just exposed to
matters in respect of financial services but also in relation to any
number of matters including one that is currently on the table, the
issue around the definition of marriage.

You
can sit down and think through a whole range of issues that the UK
Parliament, if it were so inclined, without any changes to our
Constitution would be able to and perhaps be inclined depending on
the complexion the new government takes on to do.

So
Mr. Speaker, one of the most important bits we believe that is
required is to have a provision in the Constitution, which although
acknowledging that ultimately the UK does have the power to legislate
for us would put some parameters around when that was done and how
that was done and what process would have to be followed before it
could be done.

Mr.
Speaker, 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.

We
sought the Leader of the Opposition at the time and the Deputy Leader
of the Opposition who is still the Deputy Leader of the Opposition as
part of a delegation made up of myself, the ministers for Financial
Services and Commerce and the Attorney General and Sir Jeffrey
Jowell.

We
sought to find ways to circumscribe that provision. It was a very
hard fought battle. The UK did not concede on this point until very
recently with this letter we’ve just received. And I think it is
the most important concession of all and there are a number of other
important ones. While it comes at the very end, I want to talk about
it first because I think it is so important.

What
the UK has now agreed to is to insert a new section 126, which
doesn’t exist in the current Constitution, which would read as
follows:

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.

What
it does for the first time is, if we agree to it, to put into the
Cayman Islands Constitution a provision that appears in no other
constitution of any other Overseas Territory; a mandatory provision
that before the UK Government or the Parliament may legislate for us
that at a minimum they have to consult with the Premier and the
Cabinet has to signify its view on the proposal.

This
Mr. Speaker buys not only time, but the opportunity for broader
consultation across Whitehall and Westminster in the UK so that we
don’t wind up with situations as have occurred most recently where
Parliament, simply on a whim, amends legislation that is progressing
through the House and effectively intervenes in areas of domestic
policy in the Cayman Islands by legislating for us. It is an
incredible concession and frankly we would be fools if we were to
look this gift horse in the mouth and say this is not something that
would be good for the Cayman Islands.

Mr.
Speaker, along with that and in the same vein, is that the UK has
agreed to the following provision being added to our Constitution in
Section 44 to again make plain that the responsibility for the
creation of domestic policy is a matter squarely for the Government
of the Cayman Islands and not for the UK.

So
Mr. Speaker, it is proposed that Section 44 of the Constitution,
which deals with the Cabinet, be amended by adding the following
subsection:

(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..

This
is something we have borrowed from the states of Jersey. We have
known over the many years that the Crown Dependencies are treated
differently in almost every respect when it comes to constitutional
matters than the Overseas Territories and so we felt that to get a
provision similar to what they have in their constitution in our
Constitution will give us some increased insulation from intervention
by the UK Parliament and indeed the government in areas, which are
indeed devolved responsibilities of the local government.

Mr.
Speaker, the UK has also agreed that they will remove the Governor’s
right to disallow legislation passed by this Honourable House. That
is a massive concession.

If
we truly are to be a mature democracy, what we decide in this
Honourable House as legislation ought to be the legislation subject
of course to it being constitutional because it’s always subject to
challenge in the courts if it is unconstitutional.

But
for the UK to concede that their appointed Governor would give up the
right, which they currently have, to disallow legislation passed by
this Parliament is I think a clear indication of the degree of
maturity at which the UK is satisfied these Islands currently enjoy
in terms of its Government and its Legislature.

There
is another provision, which many members are not aware of. That is
the power in the Constitution for the Governor all by him or herself
to legislate for this jurisdiction in areas of the Governor’s
special responsibility. There is on the cards right now the ability
of the Governor, if this parliament does not act in the way that the
UK thinks we ought to act, to effectively legislate with respect to
the definition of marriage. There is implicit, in what the UK has
said, that clear warning that if this Legislature does not act, they
will. They can do so in two ways: one, the Governor can legislate
directly for us under the current constitutional provisions or they
can act by Order in Council.

The
first is a fairly simple exercise and can happen very swiftly. The
other is a much more complex exercise. But in this deal we have
negotiated, the UK has agreed to remove the power for the Governor to
legislate unilaterally for this territory. Now I don’t know how
other members of this House may feel, but we all battle through the
political campaigns for the right to represent our people and to make
those decisions with respect to legislation.

Mr.
Speaker I have always bristled at the prospect of a UK governor
having the ability in one fell swoop, by one stroke of the pen, to
legislate for my country.

We
would be fools in this House and we ought to be tarred and feathered
if we, having negotiated this, allow this opportunity to pass to
remedy that situation.

Those
are the key and important bits that really move Cayman into a whole
new dimension politically and constitutionally giving us greater
responsibility to control our own destiny. And Mr. Speaker, what caps
all of that off is the UK’s agreement for this Legislative
Assembly’s name to be changed to reflect the true standing that we
will have in constitutional terms and for this august assembly to be
renamed the Parliament of the Cayman Islands and for the members to
be called Members of Parliament.

Mr.
Speaker, you have been there as often as I have if not more. You know
that when you are dealing with international matters; when you are
dealing with the UK Government or any other government, they
understand intuitively that you as an MLA, a member of the
Legislative Assembly, that a legislative assembly is an inferior body
in constitutional terms to a parliament.

It
is far less likely that the UK Parliament will seek to deal with
another parliament in the way they have dealt with this Legislative
Assembly in the past.

I
hope members are appreciating the significance of the constitutional
changes that collectively we can all take credit for; of moving 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.

There
is also the provision for the creation of a public police service
commission, and a number of other changes, but one other truly
important one in the same vein is that the UK has agreed to amend
Section 71 of the Constitution, which gives to the Governor the power
and authority to create standing orders for this House; to remove
that responsibility from him and to confer it on the House.

I
hope, God willing, to bring to this House early in the New Year the
bill finally severing executive authority for this assembly being
exercised by the Governor.

We
will have an independent legislature in every sense and this
assembly, which is populated by people who have been elected by the
people of the Cayman Islands; they will have the authority to decide
what standing orders govern the proceedings here.

These
are important changes to the overall advancement of these Islands.
There is one other provision, which I understand is giving some
members pause and that is the provision that will increase the number
of ministers from 6 to 7 plus the Premier, which makes 8.

I
have heard that some members have said that I am trying to do this
for myself. We do not have to have an eighth minister during my term.
I only have 16 or 17 months here. I have carried this weight for six
and a half years and I will carry it to the end if it kills me.

I
don’t need to have another minister. What I am trying to do,
because I carry three big ministries plus the premiership I can’t
be Premier again nor do I want to, is put in place a system that
works best for my beloved country. Those who aspire to this role of
Premier and Government ought to welcome these changes with open arms.
This Government has 16 months left to run and then there will be
another election and the complexion of Government will be different.

These
are changes that are good and in some cases critical to the
well-being of these Islands and they have been hard fought for and
hard won. I lay this letter and this draft order on the table of this
Honourable House. I welcome members to debate this as part of the
budget and Throne Speech and policy statement debate, which will
ensue shortly.

I
look forward to what members have to say about it and based on what
members say is how I will be guided over the course of the next
little while as to how we move this down the road.

I
have had clear indications from major players in the financial
services Industry, from the Chamber of Commerce and more broadly
based on the statement I made on Friday of how welcomed these sorts
of advancements will be and how much comfort people will take in
knowing that we have greater control of what happens here and less
risk of our affairs being interfered with by people who not only have
no idea of what truly goes on here but in many cases, sadly, do not
mean us well.

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