UK Parliament: Human RightsAct 1998 does not extend to the Cayman Islands
A current debate in Parliament concerningthe introduction of the UK's Human Rights Act of 1998 into theCayman Islands has revealed that basic human rights outlined inthe statute do not apply to Cayman.
And an independent review is to be carriedout to determine whether human rights are being violated in theCayman Islands. The review is being carried out by a private UKConsulting Firm. However, there is no timetable for the completionor release of the review.
On July 23, during House of Commons DailyDebates, Mr. David Chidgey, a Liberal Democratic member of theHouse of Parliament, asked the Secretary of State for Foreignand Commonwealth Affairs, Mike O'Brien: "What assessmenthe has made of the compatibility of legislation passed in theCayman Islands with the UK Human Rights Act 1998 and with theEuropean convention on human rights 1972?"
The Secretary was also asked: "Whatdecisions he has made as to whether such legislation is ultravires with Orders in Council made by the Secretary of State underUK Acts of Parliament?"
Mr. O'Brien responded: "Cayman Islands'legislation is scrutinized by the Foreign and Commonwealth Officeto ensure its constitutionality and its compatibility with theIslands' obligations arising under the European Convention onHuman Rights and other international agreements."
He continued: "The UK Human RightsAct 1998 does not extend to the Cayman Islands and is thereforenot directly considered."
On May 17, the Committee on Economic, Socialand Cultural Rights to the State Party and its delegation, inwhich the Honorable Roy Bodden, Minister of Education, Human Resources,and Culture, was a member, issued its observations on discussionsinvolving, among other items, human rights in British Territories.The Committee documented that:
"The Committee regrets that the Stateparty has not yet prepared a national human rights plan of actionas recommended in paragraph 71 of the 1993 Vienna Declarationand Programme of Action, and is deeply concerned about the delegation'sstatement of having no intention of doing so.
The Committee is concerned that human rightseducation provided in the State party to school children, thejudiciary, prosecutors, government officials, civil servants andother actors responsible for the implementation of the Covenantdoes not give adequate attention to economic, social and culturalrights."
According to O'Brien, no Cayman Islands'legislation has been disallowed in recent years because it wasfound to be ultra vires, or outside the power and authority ofan Order in Council made under a UK Act of Parliament.
Yet, several pending issues on the compatibilityof British law and Cayman law have been resolved. For instance,in March of 1999 the UK released a White Paper stating that itwanted to give full citizenship rights to the 150,000 residentsof its remaining colonies, including the Caymans. However, theUK made clear that before such measures were taken, certain lawsin these territories had to be brought in line with Great Britain.The laws in question included the prohibition of capital punishmentand anti-homosexual laws as well as the reigning in of bank practices.
Although the Cayman Islands Government,claiming the country as a mainly Christian community, refusedto acknowledge homosexuality as a legal act in April 1999, thecountry has since come about as the result of an Order in Council,passed by the British Government in December of 2000 mandatingthat Cayman accept their ruling that homosexuality between consentingadults is not a crime.
Also at the request of British Parliament,Legislative Assembly of the Cayman Government passed an amendedpenal code on September 18, 2000, acknowledging the abolishmentof the Death Penalty.
The former Governor signed the amendmentinto law on March 2, 2001.
The final matter of bank practices has beenon the table since 2000 and is currently under debate.
The EU savings directive would require automaticprovision of information on interest paid to EU citizens on savingsincome outside of their home state to their home state tax authorities,to enable such authorities to then apply the relevant level oftax to that income.
In other words, Cayman residents will paytaxes to Great Britain for savings earned in the Cayman Islands.
The directive is currently in draft formand is due to be considered for formal adoption at the end ofthis year.
What is clear is that the UK has agreedto actively promote the adoption of the directive in their independentterritories along with Great Britain's suggestion that the EUfinance ministers are automatically notified of every interestpayment made to any EU citizen within the EU to their home revenueauthority.
The EU initially proposed that member countriesbe required to collect European value-added taxes and send themoney to European Governments.
As an alternative to this mandate, GreatBritain has proposed a virtual weakening of financial privacylaws so that they can reach across the Atlantic and Pacific andtax the money that Europeans have deposited in Cayman banks andinvested in Cayman interests.
Even with the tax initiative unresolved,the UK Government granted its thirteen territories, includingthe Cayman Islands, citizenship rights this May, 21 years afterformer Prime Minister Margaret Thatcher revoked citizenship rightsin 1981 through the British Nationality Act of 1981.
It is the opinion of the Cayman Government,then, that legislative mandates issued by the British Governmenthave been adopted and, thus, equitable human rights should apply.
According to the Human Rights Act of 1998,such inalienable rights as, the right to life, liberty, security,and a fair trial should be awarded to all British citizens. Similarly,the right to respect for private and family life, freedom of thought,conscience and religion, freedom of expression, assembly and association,as well as the right to an education, free elections, and theprotection of property.
Meanwhile, the Cayman Government continuesto examine its own Human Rights initiatives.
Last September, Cayman host its fellow Caribbeanand British Overseas Territories in a human rights symposium.
During the symposium, participants discussedand, at times, debated fundamental human rights as stated in theUniversal Declaration of Human Rights and other treaties and conventionsapplicable to the Caribbean and British Overseas Territories.
Similarly, the Cayman Human Rights Workshopset the following directives as its focus for its March Meeting:
· To introduce the concepts of universal,fundamental, and inalienable human rights.
· To examine the balance between rights and obligationsinherent in international human rights law using pertinent issuesin the Cayman context as working examples.
· To raise awareness on international human rights standards,particularly in relation to women's and child rights and relatethem to the Cayman context.
· To recognize and value local human rights achievementsto date in Cayman.
· To agree on priorities for action.
· To identify and agree on further activities and projectsfor raising public consciousness and moving on beyond the workshopboth at the Territory and UK level
The Cayman Islands Government intends tomonitor the UK Consultant's review process closely and arrangefor a copy of results as soon as they are available.