Human Rights Annual Report 2008 - Foreign Affairs Committee Contents

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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