The Committee has asked me to write seeking clarification of one aspect of the Cayman Islands (Constitution) (Amendment) Order 2003,[6] which I understand is to be presented to the Privy Council in mid-June.

  The Committee notes that the Order as drafted contains a new definition of "Caymanian", which differs from both that in the existing Constitution and that in the March 2002 draft Constitution. The Committee wishes to receive an explanatory note setting out the reasons for the proposed change, providing a full list of the categories of people who will be disenfranchised or disqualified by the change, and describing its implications for British citizens and British overseas territories citizens who are resident in the Cayman Islands and who have Cayman status but who do not possess their citizenship by virtue of a connection with the Cayman Islands. For example, would a British Citizen residing and working in the Cayman Islands qualify to be registered as an elector?

  The Committee would also find it helpful to receive interpretations of the terms "Caymanian status" and "connection with the Cayman Islands" as used in the draft Order.

  I would be grateful for a response not later than 2 June, in order that the Committee may reconsider the draft Order at its meeting on 3 June.

Clerk of Committee

May 2003

  Thank you for your letter of 22 May.

  I enclose an annex which answers the Committee's specific questions (Annex A). It explains the new definition of "Caymanian" under the Cayman Islands (Constitution) (Amendment) Order 2003, and explains how this new definition—agreed by the FCO, and both the Caymanian Government and Opposition—will widen the franchise.

Parliamentary Relations and Devolution Department

Foreign and Commonwealth Office

May 2003

  1.  The Foreign Affairs Committee asked for an explanatory note relating to the term "Caymanian" as used in the draft Cayman Islands (Constitution) (Amendment) Order 2003 (the draft Order').

DEFINITION OF "CAYMANIAN" FOR THE PURPOSES OF THE DRAFT ORDER

  2.  Section 2 of the draft Order inserts into the Cayman Islands Constitution two new sections—sections 28A and 28B—to provide for the establishment and functions of an Electoral Boundary Commission. This Commission is to make recommendations on the establishment of seventeen electoral constituencies into which the Cayman Islands should be divided with a view to each such constituency returning one member to the Legislative Assembly. This work is a necessary preparatory step to the introduction of a new Constitution for the territory, which it is envisaged would provide for a Legislative Assembly composed of seventeen members elected from single-member constituencies.

  3.  New section 28B(2)(d)(i) requires the Electoral Boundary Commission to ensure (subject to certain other factors) that the seventeen electoral constituencies "shall contain, so far as is reasonably practicable, equal numbers of persons qualified to be registered as electors". New section 28B(3) defines for this purpose who is to be regarded as qualified to be registered as an elector. Section 28B(3)(a) includes within this definition any person entitled to be registered as an elector under the existing Constitution; the effect is that no-one will be disenfranchised. If a person does not fall within section 28B(3)(a), he or she must fulfil all of the conditions set out in section 28B(3)(b). One of these conditions is that the person must be a "Caymanian".

  4.  New section 28B(4)(b) defines for this purpose the term "Caymanian" as meaning "a person who possesses Caymanian status and British overseas territories citizenship or British citizenship by virtue of a connection with the Cayman Islands".

REASONS FOR THIS DEFINITION

  5.  This definition of "Caymanian" corresponds with that proposed for the new Cayman Islands Constitution (set out in section 102 of Schedule 2 to the draft Cayman Islands Constitution Order 2003 also sent to the Foreign Affairs Committee). Moreover, the definition in new section 28B(3) of who is to be regarded as qualified to be registered as an elector corresponds with the proposed qualifications of electors in the new Constitution (see section 73 of Schedule 2 to the draft Cayman Islands Constitution Order 2003). These provisions were agreed in December 2002 in discussions between the Foreign and Commonwealth Office and elected representatives of both Government and Opposition in the Cayman Islands. This agreement reflected the concern of elected Cayman representatives to enlarge the franchise by comparison with both the existing Constitution and the March 2002 draft Constitution proposed by the Constitutional Review Commission. The provisions in question have attracted no adverse comment in the Cayman Islands, where they have been in the public domain since February.

  6.  In particular, the definition of "Caymanian" in the March 2002 draft was regarded as too restrictive: it omits a reference to British citizenship, it contains a domicile test, and it excludes persons with dual citizenship or persons pursuing another citizenship. As regards the franchise, section 25 of the existing Constitution (and the March 2002 draft) is also regarded as too restrictive: it omits a reference to British citizenship, it includes a domicile test, and it requires either birth in the territory (or a parent's or grandparent's birth there) plus two years' recent ordinary residence there or seven years' recent ordinary residence in the territory. The proposed franchise under the new Constitution, and reflected in new section 28B(3) of the draft Order, would—when read with the proposed definition of "Caymanian"—include a reference to British citizenship, eliminate the domicile test, and liberalise and simplify the residence test by requiring in all cases residence in the territory for a period or periods amounting to at least two years out of the preceding four years.

WHO WOULD BE DISENFRANCHISED BY THE CHANGE?

  7.  No-one. Any person who is entitled to be registered as an elector under section 25 of the present Constitution, at the date when the Electoral Boundary Commission is appointed, is to be regarded as qualified to be registered as an elector for the purposes of the Commission's work: see new section 28B(3)(a) of the draft Order. Similarly, by virtue of section 73(l)(a) of Schedule 2 to the draft Cayman Islands Constitution Order 2003, the proposed new Constitution would preserve the franchise for any person entitled to be registered as an elector on the day immediately preceding the date of commencement of the new Constitution.

WHO WOULD BE DISQUALIFIED BY THE CHANGE?

  8.  As noted above, the proposed change in the franchise removes some of the restrictions imposed by the present Constitution. The following categories of people would be disqualified, unless in any particular case a person qualified by virtue of being currently entitled to be registered as an elector:

(a)

persons who do not possess "Caymanian status" under Cayman Islands immigration legislation;

(b)

persons who do not have British overseas territories citizenship or British citizenship by virtue of a connection with the Cayman Islands;

(c)

persons under the age of eighteen;

(d)

persons not resident in the Cayman Islands at the relevant date (ie: the date when the Boundary Commission is appointed, or, under the new Constitution, the date of registration);

(e)

persons who have not been resident in the Cayman Islands for periods amounting to at least two years in the last four years before the relevant date;

(f)

persons disqualified on grounds of having been sentenced for a serious offence, certified insane or otherwise adjudged of unsound mind, or disqualified by any local law relating to offences connected with elections.

  9.  As far as citizenship is concerned, under the present Constitution to qualify for the franchise a person must be a British overseas territories citizen by virtue of a connection with the Cayman Islands. This condition applies in addition to the requirement that a person must possess Caymanian status: see section 25(b)(i) and (iii) of the present Constitution. The definition of "Caymanian" in the draft Order (and in the proposed new Constitution) would produce the same effect, except that a person would qualify if he or she possessed Caymanian status and British citizenship by virtue of a connection with the Cayman Islands. This addition reflects the enactment of the British Overseas Territories Act 2002, under which persons may acquire British citizenship (as well as British overseas territories citizenship) by virtue of a connection with the Cayman Islands; and under the British Nationality Act 1981 such a person may renounce either or both citizenships.

  10.  The term "connection with the Cayman Islands" in this context refers to the various types of connection by which citizenship may be acquired under British nationality law. These are birth, adoption, descent, registration and naturalisation. So, for example, a British citizen residing and working in the Cayman Islands would qualify for registration as an elector (unless disqualified for some other reason) if he or she derived British citizenship from one or other of the above connections with the Cayman Islands, and provided he or she also possessed Caymanian status.

DEFINITION OF "CAYMANIAN STATUS"

  11.  The term "Caymanian status" is defined in section 50(1) of the present Constitution as meaning "Caymanian status as provided under the Caymanian Protection Law 1971 (as amended) or any law repealing and replacing such law". This definition applies for the purposes of the draft Order, because the term "Caymanian status" in new section 28B(4)(b) is contained within a provision which the draft Order will insert into the Constitution. In the proposed new Constitution, "Caymanian status" is defined to mean "Caymanian status as provided for under the Immigration Law (2001 Revision) or any law amending or replacing that law" (see section 102(1) of Schedule 2 to the draft Cayman Islands Constitution Order 2003). The new definition reflects the current position that Caymanian status is regulated by local immigration legislation, which replaced the 1971 Caymanian Protection Law. The legislation defines the circumstances in which Caymanian status (and thus the right of abode in the Cayman Islands) is acquired as of right, and the circumstances under which Caymanian status may be applied for, granted, and removed. Whilst most people who possess Caymanian status are British citizens and/or British overseas territories citizens, there are some who do not possess any form of British nationality. Such non-British Caymanian status-holders do not at present have the right to vote, nor would they acquire it under the changes proposed.

Local agreement to the draft order

  12.  The terms of the draft Order have been agreed by the elected Government and Opposition in the Cayman Islands, following its publication in the territory in February this year.

Foreign and Commonwealth Office

May 2003