Constitutional
changes affecting Overseas Territories
38. Changes to the constitutions of the United Kingdom's
Overseas Territories are made by the Privy Council, which causes
the Foreign Secretary to lay a draft Order before Parliament.
Although such Orders are laid in draft, they are subject to no
parliamentary procedure, which means they may neither be amended
nor rejected by Parliament. Following correspondence between this
Committee and the FCO in 2002, Ministers agreed that all such
draft Orders would, where possible, be sent to the Committee for
comment 28 days before being made by the Privy Council.[36]
39. In our Report on the Committee's work in 2005
and 2006, we commented that:
We accept that the constitutional changes brought
about by this archaic procedure will have been the subject of
consultation with the people affected by them. In the case of
the recently agreed changes to the constitution of Gibraltar,
for example, a popular referendum has been held. However, it is
only in the United Kingdom Parliament that Ministers are held
to account. We continue to find it unsatisfactory, therefore,
that no real parliamentary scrutiny of these Orders is possible.[37]
40. In our 2008 Report on the Overseas Territories,
we recommended that the Government should continue to send us
draft constitutional Orders in Council at least 28 sitting days
before they are made.[38]
In its response, published in September 2008, the Government undertook
to do so.[39] However,
in our Report on the Work of the Committee in 2007-08 we noted
that for the only draft Order we have received since then, proposing
an amendment to the constitution of the Cayman Islands, we were
not given the full 28 days' notice. We accepted the FCO's explanation
that in this instance practical considerations prevented the full
period of notice being given, but we regard it as important in
terms of parliamentary scrutiny that wherever possible we should
be given adequate time to consider proposed changes to the constitutions
of Overseas Territories.[40]
These assurances were repeated in a letter to the Committee from
the then Parliamentary Under-Secretary of State, Gillian Merron
MP, which said that we would receive a text of proposed changes
to the constitutions of Overseas Territories "at the earliest
opportunity".[41]
41. During Session 2008-09, we were given sight of
the draft Constitutions for the Cayman Islands, for St Helena,
Ascension and Tristan da Cunha, and for Pitcairn Island. We raised
a number of matters of concern arising from these documents in
correspondence with the FCO published on our website. In particular,
we raised concerns in relation to the reference to "Christian
values" in the preamble to the draft Constitutions of both
the Cayman Islands and St Helena, Ascension and Tristan da Cunha,
and the deliberate omission of reference to sexual orientation
as a prohibited ground for discrimination in the Cayman Islands
draft constitution.[42]
We also commented on these issues in our Annual Human Rights Report
2008.[43]
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