8 Overseas Territories
295. The UK is responsible under international
law for ensuring that its Overseas Territories meet their obligations
arising from international human rights conventions which have
been extended to them.[417]
During our inquiry into Overseas Territories in 2007-08, the FCO
told us that it had an objective to extend every key international
human rights convention to all the inhabited Overseas Territories.[418]
In our subsequent Report, published in July 2008, we considered
issues of human rights in the territories.[419]
We discussed in particular five issues on which we received evidence
that human rights were being infringed: homosexual rights; conditions
of migrant workers; rights of prisoners and illegal immigrants;
rights of 'non-Belongers'; and conscription.[420]
Our conclusions and recommendations are set out in the Report.
296. Since publication of that Report, the FCO
has submitted to us in draft form two proposed new constitutions
for Overseas Territories: for the Cayman Islands, and for St Helena,
Ascension and Tristan da Cunha. Although we were given limited
time to consider these drafts, we were able to identify a number
of matters of concern which we raised in subsequent correspondence
with the FCO. We publish that correspondence with this Report,
and will summarise here its main points.
297. Both draft constitutions contained references
in their preambles to the Christian religion. The preamble to
the Cayman Islands draft constitution referred to that Territory
as being "a God-fearing country based on traditional Christian
values, tolerant of other religions and beliefs". There were
also reference to "Christian values" in the main text
of the draft. The preamble to the St Helena, Ascension and Tristan
da Cunha draft constitution refers to those islands "wishing
to continue as communities of tolerance, with respect for government
and the law, Christian and family values and protection of the
environment".
298. The Cayman Islands draft constitution does
not explicitly mention sexual orientation as a prohibited ground
for discrimination. In addition, there is an exemption for any
claim of discrimination on grounds of, inter alia, "public
morality".
299. The St Helena, Ascension and Tristan da
Cunha draft constitution, by contrast, does explicitly mention
sexual orientation as a prohibited ground for discrimination,
and it does not contain a "public morality" qualification.
300. In correspondence with the then Parliamentary
Under-Secretary responsible for the Overseas Territories, Gillian
Merron MP, and with her successor in the post after the June 2009
reshuffle, Chris Bryant MP, we expressed our concern at the possible
effect of these provisions. Our arguments are set out in detail
in that correspondence. We are not persuaded by the Ministerial
responses we received. We note that from those responses it is
clear that the references to Christian values were inserted in
the drafts at the behest of the Islanders themselves, whilst the
FCO in turn insisted on adding the references to "tolerance"
with which they are bracketed.
301. It is also clear that it was at the behest
of the Islanders that explicit reference to sexual orientation
was dropped from the Cayman Islands draft constitution. The FCO
argues that the list of grounds for discrimination is open-ended
and thus does not exclude sexual orientation. However, the case-law
on European Convention on Human Rights Article 14 is clear that
sexual orientation is a "status" and that differential
treatment on that basis requires particularly weighty justification.[421]
In our view, the references to Christian values throughout the
draft constitution, in conjunction with the public morality qualification
on the non-discrimination provision, must give rise to a risk
that Cayman Islands courts will not necessarily follow the Strasbourg
Article 14 case-law in the apparent absence of anything in the
constitution which requires them to do so.
302. We conclude that the deliberate
omission of reference to sexual orientation as a prohibited ground
for discrimination in the Cayman Islands draft constitution is
deplorable. The possibility cannot be ruled out that the drafting
of the constitution in this regard may result in Cayman Islands
courts affording to citizens of those islands less than the full
protection which they are entitled to under the European Convention
on Human Rights.
303. We recommend that in all
future discussions with Overseas Territories about revisions to
their constitutions, the FCO insists that no specific religion
or faith community be singled out for privileged mention, and
that anti-discrimination provisions make explicit mention of sexual
orientation.
417 Foreign Affairs Committee, Seventh Report of Session
2007-08, Overseas Territories, HC 147-I, para 246 Back
418
Ibid., para 245 Back
419
Ibid., paras 245-85 Back
420
Ibid., para 246 Back
421
See, for instance, paragraph 37 of the Strasbourg judgment in
the case of Karner v Austria (2003). Back
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