Letter to the Editor
UK Human Rights Act: Settingthe Record Straight
Dear Sir,
We refer to the article appearing in anothernewspaper on 20th December, 2000 and entitled "UK Human RightsAct - Far Reaching Legislation." The article highlights astatement that "the UK Human Rights Act has relevance notonly in the UK but to its Overseas Territories such as the CaymanIslands."
It does not attribute that statement to anyone, nor does it articulateany reasoning for that conclusion. However, the implication isthat the statement is derived from either the quote from the BritishHome Secretary or the summary of the UK Human Rights Act (the"Act") (which the article incorporates).
This is inaccurate, both factually and legally, and is misleadingto the public: the summary of the Act (and indeed the Act itself)contains no reference to the Overseas Territories and the quotefrom the Home Secretary is clearly taken out of context.
The Act incorporates the European Convention on Human Rights intoUnited Kingdom law. The United Kingdom comprises England, Scotland,Wales and Northern Ireland. Cayman Islands law is quite distinctfrom United Kingdom law and the Act has no direct relevance tothe laws or administrative procedures in the Cayman Islands orin any of the UK's Overseas Territories. Under basic principlesof constitutional law, an Act of the UK Parliament may have applicationin an Overseas Territory only if:
(a) it is extended to that Overseas Territory by Order in Council;or
(b) it is specifically expressed as an Act affecting the OverseasTerritories, or the particular Overseas Territory.
It was not suggested in the White Paper that led to preparationof the Act, nor in the speech of the British Prime Minister whenintroducing the Act into Parliament, nor in the Act itself, thatthe Act was intended to apply to the Overseas Territories.
Where neither (a) nor (b) above applies, the laws of the CaymanIslands, and of every other Overseas Territory, may be affectedby the Act only by the respective Legislature actually passinga Law to make the Act applicable in that Overseas Territory.
Nonetheless, it must be borne in mind that the British Governmenthas expressed its commitment to ensuring that the Overseas Territoriescomply with its international human rights obligations and extendingthe Act would be a comprehensive means of achieving that objective.However, to date that has not occurred.
Given the very important and controversial nature of the issue,and the need for the public to have full and correct information,the Caymanian Bar Association considered it its duty to submitthis letter for publication.
M. Theresa Lewis-Pitcairn
Vice-President
The Caymanian Bar Association