New Bill for tabling
The need for transparency and flexibility
It is not uncommon these days to hear Bermudian politicians on the campaign trail pledge to introduce policy regimes based around “consultation”, “collaboration” and “transparency” if their party is elected to power.
Sadly, experience would suggest they are only talking about the very loosest of guidelines rather than any hard-and-fast rules.
Heightened expectations about incoming Bermuda governments of all stripes being prepared to openly engage with the public, interest groups and individuals on major policy fronts have been dashed against the rocks of experience all too many times in recent years.
Too often their actions once in office give the lie to all of those grandiose campaign promises we have heard about administrations operating in “the sunshine of public scrutiny”, as well as being open to differing points of view when it comes to the crafting of policy frameworks on a whole range of issues.
Unfortunately for some at either end of the ideological spectrum in Bermuda, “consensus” and “inclusiveness” clearly remain dirty words.
Bermuda witnessed another such case in point just this week.
With no forewarning or advance publicity, Minister of Home Affairs Walton Brown announced plans in Parliament last Friday to introduce legislation giving Bermuda’s immigration laws primacy over the Human Rights Act.
The draft legislation has yet to be released publicly.
Nor was it even shared in advance with interested parties, most notably Bermuda’s Human Rights Commission, which reacted to news of the pending change with unvarnished concern.
That body has since described government plans as “reckless”. The commission argues that for the government of the day to selectively tamper with the supremacy of human rights legislation could threaten the “shield” that protects internationally recognised freedoms and standards in Bermuda.
Brown quickly attempted to quell both the HRC’s fears as well as others arising in the broader community.
He said the new legislation would simply formalise and add clarity to “what has been law and policy for decades”, the primary objective being to prevent court challenges to immigration law by non-Bermudians claiming discrimination on the grounds of place of origin.
Brown said: “The Bill makes clear what has been the law and policy for decades: that those who hold Bermuda status or a Permanent Resident’s Certificate have different rights [than] those who do not have Bermuda status or PRC.”
And the minister does have a point, as far as it goes.
The Progressive Labour Party was, after all, elected to office in July on a populist platform centred around the campaign slogan “Putting Bermudians First”.
So exempting sections of the Bermuda Immigration & Protection Act from the Human Rights Act to legally codify what has been customary here for many, many years might, at first blush, seem to be a largely non-contentious move, as well as one fully in keeping with the new government’s commitment to reinforce the rights of Bermudians in their own country.
But neither the Human Rights Commission nor a growing number of other interested observers see things quite that way.
To distil the matter to a simple case of political housekeeping, one that will allow the Government to deliver, in part, on a campaign promise, seems to be very much at odds with both the letter and the spirit of Bermuda’s human rights obligations.
“Tabling a Bill of this nature, one that will have human rights implications without consultation is entirely inconsistent with [the] purpose of the Human Rights Act, particularly as the topic of immigration has necessarily been highly emotive and divisive,” the HRC told The Royal Gazette this week.
The commission added that it has informed the Government “that it is imperative to undertake an inclusive process of consultation that reflects the gravity of the proposed amendments, and the significance of this national issue”.
And while the minister has denied that this is the first step in a promised comprehensive overhaul of Bermuda’s antiquated immigration regulations, the commission seems to take the view that his proposed reforms amount to just that.
The commission pointed out that it advocated for comprehensive immigration reform under the previous administration in the face of the ill-considered and ultimately stillborn Pathways to Status initiative. And it has reinforced this need with the new government, adding tellingly that “ensuring an inclusive consultation process is essential”.
Brown, of course, helped to stage a number of large-scale exercises in political street theatre in recent years predicated around a lack of just such inclusive consultative processes on immigration-related matters under the former One Bermuda Alliance government.
For a man so well-versed in the optics of political perception and the sometimes damaging unintended consequences of political tone-deafness, the best that can said about his handling of the present matter is that the choreography and presentation involved were conspicuous by their almost complete absence.
With critics contending this could be the thin edge of a highly significant wedge when it comes both to immigration restructuring and Bermuda’s human rights obligations, the onus is clearly on the Government to further amplify and explain the purpose of these changes and to release the draft legislation.
Then it would surely make sense not to fast-track the legislation, as has been suggested will happen, but to include it in the promised public discussions on overall immigration reform, given the Human Rights Commission’s publicly stated concerns about “the gravity of the proposed amendments”. Simply steamrollering these changes through Parliament now in the wake of such damning condemnation would likely only sow the seeds for unnecessary discord, division and legal wrangling in the future.
Everett Dirksen, a long-time United States senator from Illinois, once famously said: “I live by my principles, and one of my principles is flexibility.”
For some, Dirksen’s folksy Midwestern wisdom might seem a cynical contradiction in terms. But on any number of issues, his flexibility enabled him to put aside narrow questions of party advantage and political one-upmanship when overarching matters affecting the common good were at stake.
Surely, when it comes to immigration reform and human rights, that type of flexibility on the Government’s part — flexibility that would allow for genuine consultation, collaboration and transparency — is both necessary and indispensable.
• To read Walton Brown’s ministerial statement and the Bill scheduled for tabling in full, click on the PDF links under “Related Media”
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