OT 350: Letter from Gillian Merron MP, Parliamentary Under Secretary of State, Foreign and Commonwealth Office: draft Cayman Island Constitution Order [2009]

 

 

I am grateful to you and your fellow Committee members for the attention you have given to the draft Cayman Islands Constitution Order [2009] which I sent to you last month. I understand that you considered some of the provisions in the draft Constitution at your meeting on 6 May, to which you had invited some members of the Cayman Constitutional Review Team.

 

I am pleased to enclose a Memorandum which sets out further the background to some of the issues discussed and, as requested by your Clerk, gives an indication of the local reactions to the draft Constitution within the Territory.

 

I was closely engaged in the final stages of the Cayman Islands constitutional review process. As Chair of the concluding round of talks I was able to witness at first hand the difficult balance that was struck in marrying the desires of the majority of the population of the Cayman Islands with our own need to see inclusion of strengthened human rights provisions in a new constitution. At the beginning of the final round, there were ten outstanding issues on which we needed to find common ground. One of these issues was the Bill of Rights, which was understandably a matter of considerable significance to the Committee. We made clear that the Bill of Rights would need to reflect the fundamental rights set out in international human rights treaties that have been extended to the Cayman Islands for many years. I do not accept the assertion made by some members of your Committee that the new Constitution as drafted does not provide comprehensive human rights protections for certain groups on the basis that these groups are not specifically named in Section 16 of the Bill of Rights. All groups, whether or not specifically mentioned in section 16, have the same degree of protection under the draft Constitution. The list of grounds of discrimination in Section 16 is extracted from, and is compatible with, Article 14 of the European Convention on Human Rights (ECHR), and, as is the list in Article 14, is open-ended, using both "such as" and "or other status", and thus not excluding sexual orientation as a ground of discrimination. In areas which the Bill of Rights does not explicitly cover, the Legislative Assembly, as the elected representatives of the people of the Cayman Islands, will decide whether and in what form rights should be set out in law, subject to the Governor's assent. This reflects the position under the ECHR and in the United Kingdom, and we are satisfied that it complies with our international obligations.

 

The present Constitution of the Cayman Islands contains no Bill of Rights, and provides for no human rights protection at all. It is our view that the Bill of Rights in the draft new Constitution is a first step in raising awareness of and strengthening respect for (and the protection of) human rights in the Cayman Islands. It includes additional rights that do not appear in the UK's Human Rights Act, or in the constitutions of a number of countries. It provides broad protection for human rights of the people of the Cayman Islands, including for an independent Human Rights Commission which will monitor human rights in a local context. We are aware that the proposed Bill of Rights does not go as far as everyone would have liked. However, it is a significant step forward and is a result of a compromise which was agreed with the Cayman Islands elected representatives, and the majority of NGO representatives present. As I said at the conclusion of the negotiations, I hope and expect that it will raise awareness of and strengthen respect for human rights in the Islands, in accordance with international treaty obligations for which the UK is responsible.

 

I would like to take this opportunity to pick up on another point that was raised at your meeting. I understand that concern was raised about section 22(1)(c) of the draft Constitution, relating to the protection of persons detained under emergency laws and the length of time a person can be detained under this provision. Mr Hendry, the Constitutional Review Team Leader, explained that this was a standard provision in Overseas Territories constitutions for emergency detention, and undertook to let you have details of other constitutions which contained a similar provision. I can now confirm that the constitutions of the British Virgin Islands (2007), Falkland Islands (2008) and Anguilla (1982) contain provisions in the same or very similar terms as section 22(1)(c) of the draft Cayman Constitution. In addition, the Constitutions of Bermuda (1968), Turks and Caicos Islands (2006), Gibraltar (2006) and Montserrat (1989) contain similar provisions but in slightly different terms. However, it is important to note that, under section 21(1) of this provision, a declaration of emergency has to be made by the Governor (although it can be extended by resolution of the Legislative Assembly under section 21(10)).

 

I very much hope that the Constitution will be approved by the people of the Cayman Islands when it is put to a referendum later this month. The document that we agreed is the result of determination on both sides to secure the best outcome, for both the people of the Cayman Islands and the UK.

 

I hope this will be helpful to the Foreign Affairs Committee.

 

 

7 May 2009

 

 

 

 

 

 

 

 

 

 

 

MEMORANDUM

 

This memorandum is provided in response to an invitation from the Select Committee on Foreign Affairs to provide information about the debate within the Cayman Islands surrounding the draft Constitution in advance of its meeting on 6 May 2009, at which it intends to consider the draft Cayman Islands Constitution Order in Council.

 

Background

 

The draft Cayman Islands Constitution is the result of three rounds of negotiations with the Cayman Islands Government, the Opposition party and (for the first time) local stakeholders, including the churches and the Human Rights Committee, held since September 2008. The first two rounds were held in the Cayman Islands and the third and final round in London, attended by Minister for the Overseas Territories, Gillian Merron.

 

As set out in the 1999 White Paper on Britain and the Overseas Territories: A Partnership for Peace and Prosperity, we regard the establishment and maintenance of high standards of observance of human rights as an important aspect of this partnership. Overseas Territory legislation should comply with the same international obligations to which Britain is subject, such as the European Convention on Human Rights and the UN International Covenant on Civil and Political Rights.

 

Throughout the Cayman constitutional review process, the UK's insistence that any new Constitution must include a Bill of Rights has provoked the greatest debate amongst the general public. There has long been widespread suspicion of human rights laws in the Cayman Islands; a proposal to add a Bill of Rights to the current Constitution in 1997 foundered on the opposition of the churches. Both political parties wanted to be seen to defend Cayman's traditional, cultural and moral Christian values - particularly in the run-up to the elections. To date, no other OT has voiced the same level of concerns about the inclusion of a Bill of Rights in its Constitution.

 

Cayman sensitivity in relation to the draft Constitution has, therefore, centred on the non-discrimination provisions in the draft Bill of Rights, and in particular the extent to which they encompass sexual orientation. During the negotiations the Cayman Islands Government, the Opposition and the churches accepted language that defines discrimination non-exhaustively - thus including sexual orientation without expressly saying so - provided that the prohibition on discrimination applies only to the other rights set out in the Bill of Rights. This solution accords with the UK's international obligations under the ECHR, Article 14 of which requires the same, and thus with the UK Human Rights Act. It is therefore acceptable to the UK.

 

Local reactions

 

Following publication of the draft Constitution in the Cayman Islands in early February, almost all reaction has been about the Bill of Rights. The Cayman Islands Human Rights Committee demanded an additional question on the referendum on the Bill of Rights, although this was not accepted by the Government. Surprisingly, the Human Rights Committee's position has in general been supported by the media, although this could be due in part to the media capitalising on a disagreement between the Government and the Human Rights Committee in the interests of a good story.

 

The governing People's Progressive Movement (PPM) has called for a Yes vote, whilst the United Democratic Party (UDP) (Opposition), has declined to state its position, stating that acceptance of the Constitution is a matter of personal conscience. Several independent candidates have spoken against the proposed Constitution, on the grounds that it does not provide enough protection against discrimination, or that it had inadequate checks and balances: giving the Premier too much power. These two themes have dominated commentary on the talk shows and radio phone-ins, although there is far more interest in the debate about the non-discrimination section in the Bill of Rights.

 

It is difficult to judge whether the draft Constitution will be accepted at the Referendum. The Cayman Islands Government Constitutional Review Secretariat has sought to involve the public in each stage of the constitutional review process, through public consultation meetings, advertisements in the media and the preparation of a Constitutional Explanation Guide which was has been distributed via supermarkets, public libraries and post offices. However, there is limited evidence that the public have fully engaged in the constitutional process, which has led to a focus on the views of a minority and a distortion of the true picture. In addition, the decision taken by the Cayman Islands Government to hold the referendum at the same time as the general election risks those voters who are dissatisfied with the current government linking the two issues, and consequently rejecting the Constitution too.

 

The result of the referendum is expected by the evening of 21 May.

DRAFT CAYMAN ISLANDS CONSTITUTION

OPENING STATEMENT TO FOREIGN AFFAIRS COMMITTEE

 

Historical background and process

 

The process of constitutional reform in the Cayman Islands has been protracted. The current Constitution of the Cayman Islands dates back to 1972. Over the years it has been amended eight times. The motivation for constitutional modernisation was the 1999 White Paper, Partnership for Progress and Prosperity - Britain and the Overseas Territories.

 

A local Constitutional Review Commission was set up in the Cayman Islands and reported in 2002 with recommendations for a new Constitution. UK and Cayman Islands delegations met in December 2002 and negotiated most of the text of a new Constitution. But the Cayman Islands Government then in power seemed to lose enthusiasm, and when the Islands were hit by Hurricane Ivan in 2004 recovery naturally took priority.

 

A new Government was elected in 2005 and embarked on a lengthy process of local public consultation. It published a paper in the summer of 2008 making a series of proposals for constitutional modernisation. This formed the basis for renewed negotiations with the UK Government. The first meeting was held in September 2008, during which the Cayman Islands Government tabled a working draft of a new Constitution. A second round was held in January 2009, and a third and final round in February. The first two rounds were held in Grand Cayman. The final round was held in London and was chaired by the Minister for the Overseas Territories, Gillian Merron.

 

The Cayman Islands negotiating team consisted of elected representatives from both Government and Opposition, plus a number of representatives of civil society from the local churches, chamber of commerce, and Human Rights Committee. It had expert advice from Professor Jeffrey Jowell QC, who attended and contributed throughout.

 

The result of these negotiations is the text of the draft Cayman Islands Constitution Order 2009, which the Minister has sent to the Committee. This text was negotiated word for word and represents the political agreement between the UK and Cayman Islands delegations. At the final round the only reservation to this text was expressed by the representative of the Cayman Islands Human Rights Committee, who was dissatisfied with the terms of the non-discrimination provision in section 16. The draft Constitution was published in the Cayman Islands a few days after the final round in February, and it will be put to a referendum in the territory on 20 May, the same day as the forthcoming general election.

 

Summary of draft Constitution

 

The draft Constitution includes several innovations. Most importantly it introduces, for the first time, an enforceable Bill of Rights in the Cayman Islands Constitution. This subject has for years been highly controversial in the Cayman Islands, and it proved difficult to agree a generally acceptable text. The outcome is a Bill of Rights that is similar to, but in some respects goes beyond, the UK Human Rights Act 1998. Section 16, prohibiting discrimination, caused (and continues to cause) particular controversy. As worded it reflects the position under the Human Rights Act, and the European Convention on Human Rights, that discrimination on any ground is prohibited - subject to closely defined exceptions - in so far as it relates to the other rights and freedoms set out in the Bill of Rights. The Cayman Human Rights Committee advocated a provision of broader effect, prohibiting discrimination across the board, whether related to the other listed rights or not. But that was unacceptable to the elected Cayman representatives and the other civil society representatives.

 

The draft Constitution also establishes a Judicial and Legal Service Commission, a Human Rights Commission, a Commission on Standards in Public Life, a Constitutional Commission, a Director of Public Prosecutions, and an obligation to enact freedom of information legislation. All of these would be constitutional innovations in the Cayman Islands and would strengthen democracy and good government there.

 

The draft Constitution also modernises the framework for government, while retaining many of the existing institutions. It provides for a Governor as Her Majesty's representative in the islands, and a Deputy Governor who must be a Caymanian. On the executive side it provides for a Premier and other Ministers who form a Cabinet together with the Deputy Governor and the Attorney General. Most matters are devolved to the Cabinet or local Ministers. Special responsibilities reserved to the Governor are defence, external affairs, internal security including the police, and certain public service matters. Provision is made for the Governor to delegate to Ministers considerable responsibility for external affairs, especially in the Caribbean region, and a new National Security Council is established to advise the Governor on internal security matters.

 

On the legislative side, the draft provides for a Legislative Assembly consisting of a Speaker, 18 elected members, and two non-voting ex officio members, the Deputy Governor and the Attorney General. The Legislative Assembly together with Her Majesty form the Legislature, with power to enact local legislation for the islands with the assent of the Governor.

 

The draft provides for a Grand Court and a Court of Appeal as superior courts, as now, and makes new provision for a Judicial and Legal Service Commission to advise on judicial and senior legal appointments.

 

The draft also provides for the public service in terms that protect its impartiality, and for public finance. It also continues existing provisions dealing with a Complaints Commissioner and a Register of Interests. Finally, it reserves general legislative power to Her Majesty, as is currently the position.