OT 380: Letter from Chris Bryant, Parliamentary Under Secretary of State, Foreign and Commonwealth Office, to the Chairman of the Committee: Draft Cayman Islands Constitution

 

 

Thank you for your letter of 22 May relaying the Committee's concerns about two aspects of the new Cayman Islands Constitution. As you are aware, I was appointed as FCO Minister responsible for the Overseas Territories on 8 June, but thought it important you receive a response to your earlier letter.

 

I note what you have said about the references to the Christian religion and "Christian values" in the preamble and section 1 of the Constitution. As you may be aware, the vast majority of the population of the Cayman Islands is Christian. These references were proposed by the Cayman Islands delegation and were clearly regarded as an important expression of the traditional values of the Cayman Islands. We respect that and do not consider these references inappropriate. I would add, however, that in negotiating this point with the Cayman Islands delegation we suggested the addition of the words "tolerant of other religions and beliefs" so that the preambular clause reads: "A God-fearing country based on traditional Christian values, tolerant of other religions and beliefs." This language was readily accepted by the Cayman Islands delegation. Moreover, the reference to "Christian values" in section 1 is balanced by the reference in the same section to "human dignity, equality and freedom". Therefore, we do not accept that the inclusion of this language in the Constitution is likely to have an unhelpful effect on the interpretation of the non-discrimination provision.

 

I also note your specific reference to the Strasbourg judgment in the case of Karner v Austria (2003), and the point you have made that case-law on ECHR Article 14 is clear that sexual orientation is a "status". Sexual orientation will indeed fall within the words "other status" in the non-exhaustive list of grounds of discrimination in section 16(2) of the Constitution, just as it does without explicit mention in Article 14 ECHR itself which is incorporated without change in the Human Rights Act 1998. While it might well have been ideal to include a direct reference to sexual orientation, and the UK team pressed for that, it did not prove acceptable to the Cayman Islands delegation, who were not slow to point to the language of Article 14 ECHR and the Human Rights Act.

 

We do not regard the reference to public morality in section 16(3) as presenting an unacceptable risk that any discrimination on the ground of sexual orientation will be found to be justifiable. Public morality is just one element of the proportionality test reflected in section 16(3), and it may play a justified role in controlling certain activities, in this and in other areas. But to suggest that it could undermine the prohibition on sexual orientation discrimination is tantamount to saying that any homosexual activity is of itself immoral. We do not of course accept that.

 

It should be remembered too that the final court of appeal for the Cayman Islands is the Judicial Committee of the Privy Council. Moreover, the right of individual petition to the European Court of Human Rights has been accepted on a permanent basis in respect of the Cayman Islands, so the rights of people in the Islands will ultimately be protected judicially by the Privy Council and the Strasbourg Court.

 

You have drawn a comparison with the proposed new Constitution for St Helena, Ascension and Tristan da Cunha, particularly that it does refer to sexual orientation in its list of prohibited grounds for discrimination and does not contain a "public morality qualification". As I hope you will understand, each new Overseas Territory constitution is the result of a negotiation with the representatives of each individual Territory and therefore the results will not be identical.

 

You have also raised a concern about the strength of the provision in section 78 of the Constitution regarding assent to laws which appear to be inconsistent with the United Kingdom's international obligations. In fact section 78 makes clear that a Bill does not become a law until either the Governor or Her Majesty has assented to it. A Bill which appears to the Governor to be inconsistent with an international obligation of the United Kingdom must be referred to British Government Ministers and not assented to without their approval. That is a strong control. Moreover, if a Governor were nevertheless to assent to a Bill that the British Government considered inconsistent with its international obligations, the resulting law could be disallowed under section 80. That is a second, fallback control.

 

There are other controls. Section 81 provides the Governor with a reserved power to legislate in the interests of any matter for which he or she is responsible under section 55. One of these matters is external affairs, which plainly includes compliance with international obligations. Furthermore, section 125 reserves the power to legislate for the Cayman Islands by Order in Council.

 

As regards action in the executive field, section 33(2) allows the Governor to act against the advice of the Cayman Islands Cabinet if instructed to do so by a Secretary of State, or if in his or her judgement such advice would adversely affect any of the Governor's responsibilities under section 55, which include external affairs and therefore compliance with international obligations.

 

I would also draw your attention to the role that the new Human Rights Commission will play in monitoring human rights in the local context. The Cayman Islands already has an extremely effective Human Rights Committee, which played an important part in the constitutional review talks, and this will be replaced by the Commission when the new Constitution comes into force. The Commission will consist of a Chairman and four other members appointed by the Governor, acting after consultation with the Premier and the Leader of the Opposition, at least two of whom shall be experienced lawyers. Section 116 of the Constitution sets out the functions of the Human Rights Commission. In brief, the Commission will have power to investigate complaints of breaches or infringements of any right or freedom contained in the Bill of Rights or international human rights treaties that have been extended to the Cayman Islands, and investigate such possible breaches or infringements on its own initiative. It will also be obliged to make an annual report to the Legislative Assembly.

 

The new Constitution will not in any way preclude the enactment of additional legislation securing human rights protection beyond that provided for in the Bill of Rights, and the United Kingdom Government will continue to support this process. In particular, with regard to the extension of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and International Labour Organization (ILO) Convention No.182 on the elimination of the worst forms of child labour, we are aiming for extension to all populated Territories by November 2009 and will continue to encourage the Cayman Islands Government to be in a position to meet that deadline.

 

In addition to all these mechanisms, we regularly impress upon Territory Governments the importance that the United Kingdom Government attaches to good governance and compliance with the United Kingdom's international obligations. We will, of course, also continue to make best use of the opportunities that are afforded to us to reiterate such messages at fora such as the annual Overseas Territories Consultative Council and the Overseas Territories Attorneys General Conference.

 

We firmly believe that the new Constitution both reflects the needs and values of the Cayman Islands and forms a solid, workable basis for the future partnership between the Territory and the United Kingdom. I am delighted that it was accepted by such a large majority of the people of the Cayman Islands. As you may know, 62.66% of people voted in favour, which constituted 45.91% of those eligible to vote. Close to 73% of the electorate took part and all six electoral districts voted for the new Constitution. We look forward to working with the new Government of the Cayman Islands towards the effective implementation of the new Constitution.

 

I hope this information is helpful. I am grateful to you and your colleagues for your continued input into the constitutional review process.

 

 

23 June 2009