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‘Diminishing Human Rights Act could open door to abuses’

Lawyer Tim Marshall

Plans to water down the power of the island’s human rights legislation could lead to abuses, lawyer Tim Marshall warned yesterday.

He said that Walton Brown, Minister of Home Affairs, should reconsider proposals to give Bermuda’s immigration law superior status over the Human Rights Act.

Mr Marshall added: “The legislation basically has the effect of saying that anything that is permitted by the Bermuda Immigration and Protection Act 1956, one of the most complicated and mind-numbing pieces of Bermuda legislation, need not be compliant with the fundamental values that Bermudians have embodied in the Human Rights Act.”

And he said: “If Mr Brown wishes to restrict gays from coming to Bermuda or common-law partners from coming to Bermuda, he can entirely ignore the HRA.”

Mr Marshall added that, although Mr Brown was a defender of human rights, ministerial portfolios change.

He said: “Mr Brown says you know his good track record on human rights and because of that you should not be worried about this legislation, but ministers come and go and some ministers, past and present and from both parties, have exhibited a low tolerance for, or understanding of, human rights.”

Mr Brown tabled the proposals, the Bermuda Immigration (No 2) Act, in the House of Assembly less than two weeks ago.

The minister told the House that immigration law had faced legal challenges by non-Bermudians, who claimed they were discriminated against under the HRA because of their place of origin.

However, Mr Brown said human rights would still be protected by the Constitution and the European Convention on Human Rights.

Mr Marshall said: “The Government is upset with recent court decisions that have resulted in expanding the pool of Bermudians by giving effect to rights protected by and under the HRA.

“This upset arises from many factors including the interplay between immigration and institutionalised racism, the small geographic size of Bermuda and a real sense that many Bermudians are not obtaining fair access to the opportunities that are available.”

He added there was also “the legitimate need of any country to regulate who is permitted to visit, live and work in Bermuda and gain Bermudian status or Permanent Resident Certificate status”.

Mr Marshall said: “The Government’s response should come as no surprise to anyone but what should come as a surprise and is cause for concern is the lack of consultation by the Government, a failure on their part to calmly explain to Bermudians and residents the nature and the extent to which the present state of the law has created unintended consequences and why such consequences need to be addressed by completely segregating Bermuda’s immigration laws and policies from the protective provisions of the HRA.”

Mr Marshall added that if Government wished to address problems with the granting of Bermuda status or Permanent Resident Certificates, a more focused approach could be adopted.

Mr Marshall said: “No one is against sensible immigration laws that are aimed at promoting and protecting the rights of Bermudians.

“Where we will go terribly wrong as a society is when we allow or make it easier for an already powerful ministry to administer laws in a discriminatory manner on the basis of such things as race, ethnicity, colour, sex, sexual orientation, marital status, disability, family status, religion or beliefs or political opinions.

“The current Bill does just that, and of great worry is that some of these prohibited grounds of discrimination are not enshrined in our 1968 Constitution as the underlying values and rights have only been recognised in recent years.

“Government would be wise to revisit this Bill and use some laser surgery to fix the real problem rather than gutting the HRA and putting one ministry above the laws that everyone else in Bermuda must follow.”

Trevor Moniz, the Shadow Attorney-General, also criticised the legislation’s “blunderbuss” approach.

But Mark Pettingill, a former Attorney-General, said he did not believe the law would open the door to discrimination.