OT 359: Letter to Gillian Merron MP, Parliamentary Under Secretary of State, Foreign and Commonwealth Office, from the Chairman of the Committee: draft Cayman Islands Constitution Order

 

The Foreign Affairs Committee has now had an opportunity to consider the draft Cayman Islands Constitution Order.

 

We are grateful to the FCO Cayman Constitutional Review Team for giving us written and oral briefing.

 

However, we regret that we were given an unnecessarily short time to consider and comment on the draft Constitution. We are grateful for your assurances (in your letter of 12 May) that in future we will be sent the text of proposed changes to the constitutions of Overseas Territories "at the earliest opportunity".

 

We wish to place on record that we are concerned about two aspects of the draft Constitution.

 

First, we consider it inappropriate that both the preamble and the main text contain specific reference to the Christian religion and "Christian values". This gives the impression, even if it is a misleading one, that Christians will be granted more favourable treatment under the Constitution than people of other faiths or of none.

 

Second, we regret the absence of explicit mention of sexual orientation as a prohibited ground for discrimination in clause 16.

 

We note the argument put forward in your letter of 7 May, that the list of grounds for discrimination is open-ended and thus does not exclude sexual orientation. However, the case-law on ECHR Article 14 is clear that sexual orientation is a "status" and that differential treatment on that basis requires particularly weighty justification - see, for instance, paragraph 37 of the Strasbourg judgment in the case of Karner v Austria (2003).

 

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.

 

We note that the proposed new Constitution for St Helena, Ascension and Tristan da Cunha, on which the FCO is currently consulting, does explicitly refer to sexual orientation in its list of prohibited grounds for discrimination; and that there is no public morality qualification (clause 21). This makes the omission of reference to sexual orientation in the equivalent Cayman Islands text all the more pointed.

 

Although we note the provision in clause 78 about the Governor not assenting to laws which appear to be inconsistent with the UK's international obligations, we do not regard that as being a strong guarantee. It is much weaker than the certification requirement imposed on the Speakers of the devolved legislatures in the UK (requiring certification that Bills are compatible with the UK's international obligations before they are introduced) and it only applies to enacted laws, not other executive, administrative or judicial action.

 

We appreciate that the draft Constitution has now been approved by referendum and that it would therefore not be realistic for us to recommend that changes be made to the text.

 

In these circumstances, we consider it important that the FCO should supply us with explicit undertakings as to how it will ensure that law, policy and practice under the new Constitution will be compatible with the UK's obligations under the ECHR.

 

 

22 May 2009