Minister Blakeney: Equality Legislation In Bermuda

Mr. Speaker, I rise today to lead the debate on the take note motion I put to this Honourable House on June 29th 2012, namely “That this Honourable House take note of the merits of introducing an Equality Act which will establish measures protecting persons from age discrimination, and discrimination based on one’s sexual orientation, particularly in circumstances relating to employment, accommodation and the procurement of goods and services.”

Mr. Speaker, This motion speaks to the principle of equality for all. “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly”.

Mr. Speaker, that quote is as relevant now, in the 21st century as it was in 1963 when it was penned by Martin Luther King Jr. sitting in a jail cell in Birmingham, Alabama.

Mr. Speaker this Government does not condone injustice and discrimination in race, gender, religious beliefs, place of origin, age or because of a person’s sexual orientation. However unlike the stated first four grounds of discrimination there is currently no legislation to protect persons from the latter two.

Mr. Speaker, young, old, black, white, Asian, European, African, persons with disabilities, and persons who are gay and lesbian – Bermuda’s population is diverse. And no matter what we look like, where we come from, or who we are, we are all equally entitled to our human rights and dignity and this Government intends to progress equality for all by preventing discrimination against all classes of people.

Mr. Speaker, to further the pledge outlined in the 2009 and 2011 Throne Speeches regarding protection against age and sexual orientation discrimination and the feasibility of implementing an Equality Act, the Department of Human Affairs conducted an extensive review of human rights legislation in other jurisdictions.

Mr. Speaker, I intend first to focus on age discrimination. In this regard, I ask the question, what does it look like? What does age discrimination look like and how could it affect me and you?

Mr. Speaker, although many people often think of age discrimination as being experienced by older people, young people too can also be discriminated against. Some of the typical experiences young people face when seeking employment are that “they can’t get a job; they are too young; they don’t have enough experience; they are not focused enough”. These are some of the perceptions that people hold of young people.

Conversely, Mr. Speaker, as regards older people the typical experience is that “they are too old and too slow; they lack analytical ability; they lack the intellectual capacity and most often they hear that they are preventing upward mobility for younger employees”.

Mr. Speaker, I want to share a story with this Honourable House that highlights age discrimination in our society. I recently heard of a 50 year old man who applied for a job for which he considered he was well qualified. He was told that he was not considered for the position as he did not have enough industry experience. So you can imagine his surprise when he was accidently forwarded an email meant for the human resources manager which referring to his application said “Sounds good … but I think a bit old …. need to get back to him with a result though!”

Mr. Speaker, as with many other developed nations, Bermuda’s population is ageing. It is predicted that by 2025 the senior population will overtake the under 18 year olds. People today are living longer and enjoying healthier lifestyles. For many individuals that means wanting to extend their working life since older workers offer a wealth of talent and experience both as employees and entrepreneurs.

Mr. Speaker, I would like to take a moment to provide this Honourable House with a few statistics about our ageing population. According to the Bermuda Population Projections 2000-2030 Report, our life expectancy is 77 years of age and the birth rate continues to decline as Bermudian couples are, and I quote “having insufficient children to replace themselves.” This trend mirrors most Western Democracies who are facing issues relating to the ageing of large numbers of baby boomers; those persons born between January 1st, 1946 and December 31st, 1964. These issues are illustrated by declining birth rates, a declining labour force, and expanding numbers of elderly. On January 1st, 2011 the first baby boomers turned 65 and headed into retirement. In the United States, between 7,000 and 10,000 more will pass that mark every day for the next 19 years.

Mr. Speaker, the breakdown of our population numbers from our most recent Census is as follows:-

Our Total Population is 64,237
Our Population Aged 45-64 is 19,348 (30%)
Our Population Aged 65 & over is 8,683 (14%)
And our Median Age is 41

Mr. Speaker, 44% of the population is aged 45 and older; the age Group of 45-64 has increased some 31% from the 2000 Census and the 65 and older age group has increased 29% from Census 2000.

Mr. Speaker, our demographic profile is shifting to one characterized by fewer children, an older workforce and more elderly persons. Once a relatively small segment of Bermuda’s population, older residents now represent an expanding portion of our population.

Mr. Speaker, according to the United Nations if fewer than 4% of a country’s population is 60 and over (or 65 and over) it is a “young” population; if 4-7% of the population are elderly persons this is considered to be a “mature” population and if more than 7% are elderly persons then this is considered an “aged” population. In 2010 Bermuda’s 65 and over population represented 14% of the total population meaning that Bermuda is considered an “aged” population.

Mr. Speaker, I want to make it clear that while many of my remarks today have focused on the older population, this in no way diminishes the importance of protecting the younger generation from age discrimination.

Mr. Speaker, looking at how other jurisdictions have handled age discrimination we see that some countries have legislation that covers age and employment only for example the USA which has the Age Discrimination in Employment Act of 1967 which covers applicants and employees over the age of 40, and the UK which has the Equality Act 2010. The UK however intends to expand the anti-discrimination protection for age to include the provision of services and public functions by October 2012. Other jurisdictions cover age in all situations for example, Canada and New Zealand included age in their human rights legislation which also covers other grounds such as race, sex, religion etc., and South Africa whose constitution protects against age discrimination. Australia enacted a piece of legislation focusing solely on age, the Age Discrimination Act 2004, which aims to ensure that all Australians – young and old, and everyone in between – are treated equally and have the same opportunities as others.

Mr. Speaker, the question of age discrimination will necessarily involve a discussion of what is an appropriate age of retirement. There is a broad spectrum of approaches and a range of experiences of age legislation, including countries that have never had specific age legislation; countries that have had age legislation for many years; and countries that have increased the minimum permitted mandatory retirement age or banned it altogether.

Mr. Speaker, examples of countries where a mandatory retirement age has been abolished include:

- USA (since 1986)

- Canada (all provinces since 2009)

- New Zealand (since 1999)

- Australia (since 2004)

- UK (since 2011)

Examples of countries where there is a mandatory retirement age set by legislation include:

- Japan (minimum permitted retirement age set to increase to 65 in 2013)

- France (minimum permitted retirement age increased to 65 in 2003 in the private sector)

- Sweden (minimum permitted retirement age set at 67 in 2001)

Interestingly, in Ireland although there is no mandatory retirement age set in legislation, the Government has always allowed individual employers to set mandatory retirement clauses in employment contracts.

Mr. Speaker, In 2006, as part of the UK Government’s commitment to implementing age legislation, the Employment Equality (Age) Regulations 2006 (now incorporated into the Equality Act 2010) made it unlawful to make decisions on employment and vocational training that were based on a person’s chronological age rather than their competence. However, there initially was a default retirement age which was set at 65. This meant that it was unlawful for employers to set a mandatory retirement age below 65 unless, in their particular case, an employer could objectively justify a lower age. Employers did not have to specify 65 as the default retirement age; they could set a higher age or choose to have no mandatory retirement age. Following implementation, there was ongoing monitoring and an evidence-based review of the use of the default retirement age in the UK. In addition, there was widespread consultation which eventually led to the removal of the default retirement age in the UK in 2011. However, during their consultation several interest groups pressed for an exception from age discrimination legislation for certain benefits.

Mr. Speaker, the above examples serve to highlight the different approaches to retirement age in various jurisdictions, and these will prove extremely useful as we look to consider this aspect of age legislation in Bermuda.

Mr. Speaker, the Department of Human Affairs began consultations with internal Government stakeholders and non-profit organizations in December 2011, aimed broadly at getting feedback on the question of what factors should be taken into account with regard to creating a policy and legislative framework for protection against age discrimination. These stakeholders included the Pension Commission, the Department of Social Insurance, the National Office for Seniors and the Physically Challenged, Age Concern, the Seniors Learning Centre at the Bermuda College and the Senior Islanders Club.

Mr. Speaker, the Department also consulted with the Department of Statistics, who provided information on the ageing population in Bermuda and who are assisting further with the collection of statistics by including specific questions in their 2012 Labour Force Survey currently underway.

Mr. Speaker, as the Minister responsible for Human Rights I directed that the Department expand its scope and engage in conversations and consultations with businesses and community organizations to seek their viewpoint on adding age as a protected ground under the Human Rights framework. To ensure that the new legislation is properly framed, the Department is also expanding its consultative scope to include the general public so that a wide range of views and experiences can be considered. A public discussion which was planned for this month will now be held in September and will give everyone the opportunity to be heard.

Mr. Speaker, Is 70 the new 65? Should people be forced to retire at 65? Can people afford to retire at 65? Should people be able to work as long as they want to? Should the pension age be raised? And how does this all fit into the “Age Discrimination” topic?

Mr. Speaker these are just some of the issues that the Department of Human Affairs is talking with the community about and we are finding out that this is an emotive issue!

Mr. Speaker, in many early discussions, the Department quickly determined that a conversation about age in many cases leads to a discussion about mandatory retirement which some believe is discriminatory as it forces people to retire at specific ages.

Mr. Speaker, it is useful to note that in 2007, this Government took the positive step of amending the Public Service Superannuation Act to allow civil servants the possibility of working up to the age of 70 as long as they sought and received the approval of the Head of the Civil Service. The current policy is that the Head of the Civil Service may grant such approval upon request on an annual basis.

Mr. Speaker, most people are not aware that Bermuda has NO legislated retirement age!!! The age of 65, which is considered generally to be a “standard retirement age”, is simply associated with the age at which you can receive your social insurance benefits and your occupation pension.

Mr. Speaker, in some jurisdictions mandatory retirement is related to specific occupational requirements, and relate to Police, Fire personnel, and airline pilots to name a few. These are very specialized areas and require certain competencies such as stamina and awareness which are related to age. In certain cases such mandatory retirement is linked to a pension plan.

Mr. Speaker, when Canada was looking at abolishing mandatory retirement one of the issues that they grappled with was what to do about occupational pensions and when would a person now receive their benefits if they did not retire at 65.

Mr. Speaker, research also indicates that since 2009 mandatory retirement in all Canadian jurisdictions was either prohibited or permitted only if it is based on bona fide retirement plans or pension plans, or bona fide occupational requirements.

Mr. Speaker, the Department of Human Affairs has determined from its research that age discrimination is a very broad subject when considered in relation to employment, the provision of goods and services and accommodation. The consensus of opinion among those internal stakeholders consulted thus far is that the initial focus of the Department’s research, and any resulting legislative reform, should be on discrimination in age as it relates to employment only. This is because of the aging baby boomers, declining fertility rates and increasing life spans. Our research has shown that the majority of age discrimination cases in other countries are employment related. Anecdotally, we understand that the issues in Bermuda surrounding age discrimination also relate primarily to employment. Although the Department has recently begun consultations with employer organizations to solicit their perspective, our research indicates that in other jurisdictions, employer organizations have raised concerns relating to the retention of employees, associated health care and pension costs, and succession plans.

However, Mr. Speaker, one research study conducted for the UK Government in 2010 which focused on a comparative review of international approaches to mandatory retirement, concluded that age legislation can act as a catalyst for employers to provide more opportunities and flexible conditions for older workers, particularly when led by government initiatives. The study further noted that the abolishment of mandatory retirement has sometimes led employers to adapt their working environment to provide more flexible working conditions for older employees, to encourage them to adopt a ‘phased’ or gradual retirement. The range of workplace changes that could facilitate the productive employment of older workers may include: work scheduling, flexible hours, voluntary work-time reductions, vacation and leave policies, phased retirement, job assignment, improved workplace organization, hiring and contracting strategies, training practices, and benefit and compensation methods.

Mr. Speaker, It is clear that age discrimination should be approached in an incremental way and with a “phased approach”, focusing first on employment, since this is generally accepted as a key topic that will require a great deal of stakeholder consultation and possible consequential amendments to several pieces of existing legislation, as well as possible shifts in workplace arrangements as regards older workers. The trend towards an ageing population in Bermuda makes the dialogue on age legislation all the more critical at this time.

Mr. Speaker, once all the stakeholder consultations have concluded the Department will make policy recommendations on age discrimination and other legislative reforms in employment, including whether there should be a mandatory retirement age in Bermuda.

Mr. Speaker, turning now to the topic of sexual orientation, review by the Department of Human Affairs has determined that some countries have simply added sexual orientation as a prohibited ground of discrimination to their human rights legislation, while others have set limits and allowed for caveats or opt outs in regard to the protection provided. In some countries protection against sexual orientation discrimination is enshrined in law; however, same sex marriage and adoption is not.

Mr. Speaker, the Department looked at the experience in Canada, the United States, South Africa, New Zealand, Australia and the United Kingdom. The Department also noted the broad pattern of approaches in different regions, where many European and North American countries have enacted legislation to protect against discrimination based on sexual orientation, most Caribbean countries do not have anti-discrimination legislation related to sexual orientation, and many African countries (with the notable exception of South Africa) are actively considering anti-homosexuality legislation.

Mr. Speaker, in Canada the rights of persons who are homosexual are the most advanced in the Americas. Canadians who are homosexual have most of the same legal rights as heterosexual citizens, and are extended more legal rights than many other nations where homosexuality is legal. Sexual orientation is explicitly mentioned as a ground of discrimination in the human rights acts of all jurisdictions in Canada and in 1995 was “read into” Section 15 of the Canadian Charter of Rights and Freedoms. Section 15 of the Charter guarantees equality before and under the law and the right to equal protection and equal benefit of the law without discrimination.

Looking at the United States Mr. Speaker, 21 states and the District of Columbia have laws prohibiting sexual orientation discrimination however there is no federal protection. Sexual orientation is included in the Federal Hate Crimes Law known as the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. This Act expanded existing United States federal hate crime law to apply to crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability, and dropped the prerequisite that the victim be engaging in a federally protected activity. The Act is named after two victims of bias-motivated crimes, Matthew Shepard and James Byrd Jr. Matthew Shepard was a student who was tortured and murdered in 1998 near Laramie, Wyoming because he was perceived to be homosexual. James Byrd Jr. was an African-American man who was tied to a truck by two known white supremacists, dragged and decapitated in Jasper, Texas in 1998.

Mr. Speaker, the South African Constitution explicitly recognizes equality on the basis of sexual orientation and prohibits all unfair discrimination on the basis of sex, gender or sexual orientation. The Constitution is lauded in many countries for its progressive lead on anti-discrimination rights. Despite this, South Africa’s protection for homosexuals is under threat. The House of Traditional Leaders has made a proposal regarding scrapping the sexual orientation section from the bill of rights contained in Chapter 2 of the Constitution. Once a year, the constitutional review committee considers proposals from the public on possible changes to the Constitution. Normally it rejects most of the proposals, but at a recent committee meeting, the proposals from the House of Traditional Leaders were the only ones not to be thrown out. Activists fear that African traditionalists and religious fundamentalists are interfering by seeking a direction to bring South Africa back to the draconian apartheid era.

Mr. Speaker, Australia and New Zealand protect homosexual persons from discrimination. In Australia the protection is afforded in state legislation and in New Zealand it is covered under their Human Rights Act.

Mr. Speaker, the Department of Human Affairs looked closely at the experience of the United Kingdom which had many pieces of anti-discrimination legislation, but up until 2003 had nothing that would have prevented discrimination on the grounds of sexual orientation. The first sexual orientation discrimination legislation in the United Kingdom focused on prohibiting discrimination in employment and emanated from a European Union Directive – the Employment Equality Directive – which prohibited sexual orientation discrimination in employment. The Directive which entered into force on 2nd December 2000 required that member countries implement legislation to transpose it into law and gave member states three years to implement. In response to this Directive the UK chose to enact the Employment Equality (Sexual Orientation) Regulations in 2003 and because they were under time pressures to implement this legislation they opted for regulations made under the European Community Act as there was no overarching national law.

The second set of sexual orientation discrimination legislation in the UK came in 2007 and was focused on the prohibition of discrimination in the provision of goods, services and facilities, education, and the use and disposal of premises and public functions.

Mr. Speaker, it is important to note that both sets of UK Regulations dealing with sexual orientation (2003 and 2007) contained exemptions which limited the extent of protection under law. As you are aware Mr. Speaker, an exemption generally refers to specific situations, scenarios or conditions where the general rule does not apply. An example of an exemption with regards to discrimination on the basis of sexual orientation can be found in the UK legislation as it applies to religion.

Mr. Speaker, in 2010 most of the United Kingdom anti-discrimination legislation was repealed and a new Equality Act was enacted. The sexual orientation Regulations mentioned above were repealed and provisions for the protected ground on the basis of sexual orientation were incorporated into the new Equality Act, together with most of the previous exemptions being prescribed in various schedules to that Act.

Mr. Speaker, it is also important to note that the religious community in the UK lobbied their legislators and made known their concerns regarding their religious beliefs in relation to protection against discrimination based on sexual orientation.

Mr. Speaker, the United Kingdom did ensure that they put in place the legal protection against discrimination on the basis of sexual orientation; however, they heard the representations of the religious lobbyists and also built in certain ‘exemptions’, or caveats, to enable religious organizations to exercise and honour their religious freedom.

Mr. Speaker, an example of a scenario where a religious organization might seek an exemption as regards employment would be where the religious organization is recruiting for a Minister or a Pastor. In the UK that organization could apply for an exemption allowing them to recruit only for persons who are heterosexual. The organization would have to show that they are acting in accordance with their religious beliefs and the doctrine of the religion.

Another example, Mr. Speaker would be where a religious organization requests an exemption to allow for only heterosexual persons to attend prayer groups, clubs, bible study groups and the like.
Lastly, Mr. Speaker, in relation to religious organizations, another example could be where a religious organization requests an exemption to restrict who should be allowed to use the organizations premises for meetings or celebrations in a church hall.

Mr. Speaker, an example of an exemption with regard to accommodation would be where a landlord who lives in a house with one or two apartments requests an exemption when renting out an apartment. This exemption was put in place to ensure a landlord’s privacy.

Mr. Speaker, two options to ensure the prevention of discrimination on the basis of sexual orientation are currently under consideration with respect to the Human Rights legislation.

Mr. Speaker, the first option could be to simply add sexual orientation as a protected ground of discrimination to the Human Rights Act 1981 without any exemptions or exceptions whatsoever. This would mean that persons who are homosexual would be protected from discrimination. In this option, the Courts would then be allowed to determine the scope of protection.

Mr. Speaker, the second option could be to add sexual orientation protection to the Human Rights legislation by including exemptions and caveats in either a separate schedule or separate regulations. These exemptions could, for example, be for religious organizations so as to provide a balance of rights of individuals to hold and manifest religious belief with regard to sexual orientation while protecting the rights of persons to live free from discrimination based on sexual orientation.

Mr. Speaker, the effect of either of these options would be that complaints of discrimination against persons of same sex orientation and/or heterosexual persons could be submitted to the Human Rights Commission (“the Commission”) for investigation. Currently, the Commission will only log discrimination complaints based on sexual orientation and advise complainants that they are unable to investigate.

Mr. Speaker, I must state that there is no intention on the part of this Government to open up or provide any rights in areas such as rights relating to same sex marriage. This would require an amendment to the Marriage Act 1944. The protection being considered would relate only to employment, accommodation, and goods and services.

Mr. Speaker, This Government is sensitive to the fact that in Bermuda there is a significant faith-based community, who on the one hand because of religious beliefs is not likely to favour a marriage tradition that includes same sex marriage, but who at the same time, understand that discrimination against persons of same sex orientation in employment, accommodation and goods and services is unacceptable. Harassment of persons who are homosexual is equally as unacceptable as harassment of persons based on their gender, i.e. whether they are male or female. Any move to include protection on the grounds of sexual orientation into the Human Rights framework must be as clear as possible, so as not to have unintended consequences. For example, if the intent is to enshrine in anti-discrimination law protection against discrimination in a restaurant or bar because of a person’s sexual orientation, then that must be explicitly stated.

Mr. Speaker, including protection in the Human Rights framework in the areas of employment, goods, services and housing on the basis of sexual orientation is a long overdue step towards protecting human rights for all people in Bermuda. This is a basic human right which, interestingly enough will also protect a heterosexual person from being discriminated against. An example would be where a person is discriminated against by a homosexual person who is an employer and who does not wish to hire a heterosexual applicant for a position because that person was not of same sex orientation.

Mr. Speaker, the Department of Human Affairs also found that some of the resistance to including sexual orientation protection in law may have been based on the assumption that there is no evidence of discrimination against persons with same sex orientation.

Mr. Speaker, undoubtedly, there is sexual orientation discrimination in Bermuda. However, due to the absence of protection, people are naturally afraid to come forward with their complaints given the hostility this issue can invite.

Mr. Speaker, at present, where people are bold enough to come forward, the Human Rights Commission must simply log their complaint, and advise complainants that they do not have any protection under the Human Rights Act. With the inclusion of protection from discrimination for persons same sex orientation, the Commission would be empowered to conduct formal investigations and both the alleged complainants and respondents will have redress.

Mr. Speaker, the Department of Human Affairs has received extensive personal testimonials of people of all ages and backgrounds sharing their experience of discrimination based on sexual orientation, or what the absence of ensuring protection means to them as Bermudians.

Mr. Speaker, of particular concern is the information derived from another Department within my Ministry, the Department of Child and Family Services, indicating that some of our young people who are of same sex orientation are stigmatized by their peers, and have little, if any, outlets for support or protection.

Mr. Speaker, the absence of protection means we run the risk of alienating those Bermudians that could lend their talent and energy to shape a better Bermuda. Further Mr. Speaker, public dialogue on the radio, newspaper sites, blogs and social media reveal not just resistance or confusion, but an undercurrent of alarmingly hostile and aggressive attitudes toward those of same sex orientation in Bermuda. These same attitudes occur in other jurisdictions around the world and form part of a spectrum of behavior that spans the gamut from bullying and harassment of homosexual persons all the way to physical violence and anti-homosexual legislation.

Mr. Speaker, although I could present graphic examples of such behaviour and aggressive attitudes from various jurisdictions, I will refrain from doing so as they will only serve to inflame and incite homophobia at a time when we are interested in promoting equality and anti-discrimination.

Mr. Speaker, as Bermudians, we have a responsibility to consider the role we can play in creating a more compassionate and respectful society. The reality is that, in this world, people of same sex orientation would feel pain by being discriminated against just as much as persons with disabilities would feel pain if they were discriminated against. Life is full of enough challenges, and persons of same sex orientation do not need to be exposed to ridicule, or prejudice, or alienation, or judgment of somehow being ‘less than’ when compared to others. All of us must be true to who and what we are, and certainly, all people deserve to be afforded the same protection from the pain of discrimination based on sexual orientation.

Mr. Speaker, the question of comparison to others suggests that there may be a role for an equality framework, and leads me now to discuss whether the concept or approach of Equality legislation is a reasonable or more appropriate alternative to amending the Human Rights legislation.

Mr. Speaker, the Department of Human Affairs has had preliminary talks with the draftsperson and promoters of the Equality Legislation in the UK, including a person who assisted in drafting the voluminous Explanatory Notes for the 2010 Equality Act. Further, Mr. Speaker, the Director and Policy Analyst with the Department of Human Affairs, the Ministry’s Permanent Secretary, and I, have had, on separate occasions, the pleasure of meeting directly with various UK officials to discuss the UK Equality Act 2010. In addition, we also met with Lord Lester QC of Herne Hill, a prominent human rights and race relations advocate in the UK, to garner a better understanding of the history of and the reasons behind the establishment of the UK Equality Acts of 2006 and 2010.

Mr. Speaker, we were also interested in gaining an understanding of the challenges in implementing the original sexual orientation and age discrimination provisions in the UK statutes and also the challenges associated with incorporating them into the recent Equality legislation. These meetings were aimed at fulfilling the 2011 Throne speech promise of determining the “feasibility” of implementing Equality legislation in Bermuda.

Mr. Speaker, what are the advantages of the Bermuda Human Rights Act approach, versus the UK Equality Act approach? Our initial findings are as follows:–

First, Mr. Speaker, in order to answer that question we have to look at the Bermuda Human Rights framework and compare it with the UK framework. In the UK there is a Human Rights Act 1998 which incorporates all the provisions relating to fundamental rights and freedoms which existed prior to that date but were not codified. These fundamental rights which the UK Government and public authorities are legally obliged to respect include basic rights and freedoms such as the right to life, to liberty, to marry, to a fair trial, to freedom of expression, freedom of assembly and association, freedom of thought, conscience and religion, and to express your beliefs. These provisions also give further legal effect, in the UK, to the fundamental rights and freedoms contained in the European Convention on Human Rights.

Mr. Speaker, in Bermuda, these fundamental rights and freedoms are found in the Bermuda Constitution Order of 1968.

Mr. Speaker, it is important to note that the Bermuda Human Rights Act 1981 was enacted to provide further protection from discrimination based on additional or expanded grounds and also to provide a mechanism to seek redress for discrimination.

Mr. Speaker, the stated purposes of the UK Equality Act 2010 are to:

a) Harmonize discrimination law, which is in effect a consolidation of some 99 pieces of disparate discrimination legislation; and
b) Strengthen the law to support progress on equality.

The UK Equality Act attempts to strengthen discrimination law in several key ways, including:
(i) “placing a new duty on certain public bodies to consider socio-economic disadvantage when making strategic decisions about how to exercise their functions”; and
(ii) “allowing an employer or service provider or other organization to take positive action so as to enable existing or potential employees or customers to overcome or minimize a disadvantage arising from a protected characteristic”.

Bermuda may well find some of the provisions of the UK Equality Act to be relevant but further deliberation is indeed recommended.

Mr. Speaker, there is one school of thought that says that Bermuda’s Human Rights framework works well for Bermuda and there may simply be the need to amend our legislation to make it more in line with the UK Equality philosophy. However, there are some that believe that a complete re-write of the Human Rights Act is required to make it more user-friendly, and easier to interpret. Such sentiments have often come from the Courts, Office of the Ombudsman and Board of Inquiry members. This may be because there have been so many amendments to the Human Rights Act that a new and more modern Equality Act could be considered to replace it.

Mr. Speaker, Equality is seen as a broader term that embraces positive duties on Government and public authorities, such as those provided for in the UK legislation. Thus, some have argued that equality legislation would be seen to be more proactive and preventative in combating discrimination, rather than primarily reactive in the sense that the Human Rights Act is at present, whereby discrimination complaints are registered and, if found to have merit, go through an administrative process culminating in a decision and possible redress. Imposing duties to be taken into consideration when making policy decisions may well enhance the preventative value of anti-discrimination legislation.

In the context of age discrimination and discrimination based on sexual orientation, the equality approach could offer more benefits by incorporating prevention and protection components in the same legislation. Mr. Speaker, our preliminary thinking, based on our brief and informal consultations as regards the “feasibility of an Equality Act for Bermuda”, is that Bermuda would be well served to consider the equality approach further before deciding on which approach to take.

Mr. Speaker, the United Kingdom implemented an Equality Act in 2010 to harmonize and consolidate many different pieces of discrimination law and to strengthen the law to support progress on equality. This Act is extensive and far reaching and includes the same protected grounds of discrimination as our Human Rights Act as well as several others including sexual orientation and age. The Equality Act also extends circumstances in which a person is protected against discrimination, harassment or victimization because of a protected ground as well as placing new duties on certain public bodies to consider socio-economic disadvantage when making strategic decisions about how to exercise their functions.

Mr. Speaker, regardless of the approach that the legislative reform takes, this Government remains steadfast in its commitment to provide protection against discrimination based on age and sexual orientation. Further, Mr. Speaker, regardless of one’s personal, moral or religious beliefs, or more significantly, because of them, we ask that everyone open their hearts and minds to the coming expansion of Bermuda’s human rights and equality protection in the areas of age discrimination and discrimination based on sexual orientation.

Mr. Speaker, this concludes my presentation on the Take Note Motion.

Thank You, Mr. Speaker.

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