By Craig Brewin, firstname.lastname@example.org
The British Overseas Territories, along with the overseas territories of the other European nations, are covered by the European Convention on Human Rights (ECHR). This is important, particularly for the UK Territories, because it protects OT citizens where the UN Conventions have not been extended. For example, the UN Convention on Disability Rights has not been extended to the Overseas Territories, but Article 14 of the European Convention provides the same right to protection from discrimination.
Under Article 73 of the UN Charter, the UK must uphold human rights in its Overseas Territories. It must ensure "protection against abuses" while having "respect" for the local culture, which has been reinforced by the UN Declaration of Human Rights and subsequent resolutions. The ECHR forms the basis for the constitution orders for the OTs produced a decade ago. But under the new Liz Truss administration, there is a possibility of the UK pulling out.
Over the years, the ECHR has been an essential touchstone in court cases regarding LGBT cases, particularly in the Cayman Islands and Bermuda. Earlier this year, the Privy Council ruled that these Territories could outlaw same-sex marriage, but only because the rights that marriage brings can be obtained through other legal partnerships. These include choosing your next of kin, visas for partners, and inheritance rights. But the right to these partnerships only came about because of previous legal cases quoting the ECHR.
Cases from the OTs involving the ECHR do not go to the European Court of Human Rights or even the UK's Supreme Court but to the Privy Council, where the decisions on same-sex marriage were ultimately determined. The UK Parliament can overturn these decisions, but, despite some recent lobbying by Lord Cashman on behalf of Colors Cayman, it has shown no inclination to do so.
During the Tory leadership contest, Liz Truss said that she would be willing to pull the UK out of the ECHR if the offshore processing of Asylum Seekers was deemed illegal. The defeated candidate, and new Home Secretary, Suella Braverman, has said the same. If the UK went down this road, it would almost certainly mean the UK is joining Belarus and Russia (who have just been expelled) as one of only three European countries outside the Council of Europe. Whether offshoring is affordable, effective, or humane is still moot.
The argument about the European Convention is an old one within the Conservative Party. David Cameron suggested it before the EU referendum, when the number of asylum seekers crossing the channel was 1% of what it is now. Some of the candidates in the recent contest opposed withdrawal, but Theresa May, when she was Home Secretary, argued that it would be more beneficial for the UK to pull out of the Convention than it would be to pull out of the EU. In her view, the Convention hindered her attempts to deal with potential terror suspects, but the single market was good thing.
David Davis, however, one of her predecessors in the role, argued that this would be impossible to achieve, given that EU law was based on the Convention. He was an advocate for leaving the EU but strongly supported staying with the ECHR. This was also Boris Johnson's position at the time, declaring it Britain's greatest gift to Europe.
Would withdrawing be legal? Braverman has said that, in her view, it would be, but the Convention is also enshrined in the Belfast agreement, which represents both domestic and international law. It is deliberately designed to ensure that the UK justice system is not the final arbiter in human rights cases relating to Northern Island. The USA and EU are both guarantors of the Belfast agreement. The Johnson Government had been pursuing a new British Bill of Rights that gave more power to the British Courts and restricted people's right to use human rights arguments to avoid deportation, but it kept the UK in the ECHR. It was a bit of a Frankenstein Bill that seemed to please no one, and the Truss government has pulled it, pending a review. We will have to wait to find out what the alternative will be.
But if Braverman's position prevails, what would the UK put in its place for the Overseas Territories? FCDO would have no doubt argued that a new British Bill of Rights would have had no impact on OT domestic law, which may have been true had the UK remained in the Convention. But outside the Convention, would imposing such a Bill on the OTs be a good idea? What would it say? Would it "cancel" the European case law? Will conservatives in the OTs cry "imposition" or "neo-colonialism" on social issues? This has happened before in respect of the abolition of the death penalty and decriminalisation of homosexual acts.
But there is a solution. The Island Rights Initiative is a collection of Human Rights lawyers from small islands, and they submitted written and oral evidence to the Foreign Affairs Committee Inquiry into Britain’s relationship with the OTs back in 2018. They said that in their view, the UK Government should roll out all the UN Conventions to the Overseas Territories as a matter of principle. For example, in the Caribbean, only the British Overseas Territories are not covered by the UN Convention on Disability Rights. The UK has said it will not roll out any more of the conventions it is signed up to until the Territories comply. Some are working towards it, but others would need far greater support than they are currently getting.
The Island Rights Initiative also argued that the UK should fund a study of the effectiveness of human rights legislation in its OTs, to benchmark against the basic standards applicable in the UK. It is a central component of the White Paper governing the relationship between the OTs and the UK that the OTs strive for the same standard of human rights that their citizens would have in the UK.
Research carried out by Island Rights has shown that where other European nations have adopted a similar approach, it has provided a wealth of information and motivation to address the issues. However, rather than impose a British Bill of rights on the OTs, it would probably be more diplomatic to ensure compliance with Article 73 by working under the UN Conventions instead.