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Bermuda cannot take its foot off the gas on disabled rights

Allan Doughty serves as senior counsel with the dispute resolution team at Kennedys

In my January 17 opinion piece titled “The Proposed Disabilities Act — is there a better way?”, I commented on the plans of the Minister of Youth, Social Development and Seniors, Tinée Furbert, to table a “Disabilities Act”. The purpose of that legislation, according to the minister, would be to “empower individuals with disabilities, providing them with access to services, facilities and employment that they deserve”. I then observed that Bermuda already has legislation that can achieve many of the objectives set out by the minister, namely the Human Rights Act 1981.

In fairness to Ms Furbert, her remarks concerning the proposed Disabilities Act were given in the context of Bermuda being added as a party to the United Nations Convention on the Rights of Persons with Disabilities. It was against that backdrop that the minister declared that she would seek to ensure “that persons with disabilities are granted equal rights and access”, presumably through the passage of the proposed Disabilities Act.

The minister’s initiative to add Bermuda as a signatory to the convention was a bold move. By taking that step, our government has stated to the international community that Bermuda will do better when it comes to safeguarding the rights of its disabled residents.

It should, however, be understood that the convention is not an instrument that can be enforced in an international court of law. If Bermuda were to breach the convention, we may be “named and shamed” before the international community, but that would be the only real consequence of noncompliance.

The question then arises as to what Bermuda must do, now that it is “signed on” to the convention. Generally, when a country signs on to a multinational agreement, it is committing to “ratify” that agreement by legislating its treaty obligations into local statutes. It therefore appears that the proposed Disabilities Act would be the legislative vehicle the minister intends to use to ratify the convention into Bermudian law, assuming that the Progressive Labour Party wins the next election.

This then brings us back to my previous point, where I argued that under our existing Human Rights Act, we already have robust guarantees and enforcement mechanisms that afford significant protection to our disabled residents. Does the convention then require us to “reinvent the wheel” and pass entirely new legislation to ratify its provisions? The answer to that question is “yes and no”.

International law usually refrains from dictating as to how signatories to an international treaty must ratify their obligations. If a state has pre-existing legislation or legal mechanism in place that meets a treaty requirement, it is usually not required to pass additional legislation to satisfy that particular obligation. On that basis, I see no need for Bermuda to pass an Act that would run parallel to, or supplant, the protections that our Human Rights Act and constitution already provide to our disabled residents.

Having carefully reviewed the convention, however, I see that Bermuda has committed to afford further protections to its physically and mentally disabled residents, which are not covered by our human rights and constitutional legislation at present. Although there is not enough space for me to address all of the new obligations, I now provide the following suggestions that I believe would satisfy the more pressing requirements of the convention.

My first recommendation is that the Government repeals Section 4(4)(a) of the Human Rights Act. This subsection provides a “carve-out” that allows landlords to freely discriminate against tenants, provided that the rental unit is in a building that has three dwellings or fewer. I have always found this exception to be at cross-purposes to the objectives of the Human Rights Act, and strongly feel that it has no place in modern human rights legislation. Repealing that provision would also meet Bermuda’s obligation arising under Article 19(a) of the convention, which requires signatories to ensure that disabled residents are able to choose where they live, on an equal basis with others.

Second, I think that the Government should amend the Human Rights Act to include a statutory “duty to accommodate, short of undue hardship” when it comes to provision of goods, facilities and services, as proposed in my op-ed of January 17. This single amendment would satisfy at least 22 separate obligations in the convention.

Third, I note that new legislation may be necessary to require all facilities, open to the public, to include signage in Braille and to provide sign-language interpreters for the deaf. In other cases, our new obligations, arising from the convention, may be met through simple government action, such as conducting awareness campaigns that highlight the services that are available to the disabled, through CITV and/or signs and advertising within public buildings owned by the Government.

Finally, I see that articles 7, 12, 13 and 23 of the convention deal with the rights of the disabled to have access to the court. As I argued in my previous opinion piece, “Sins of omission”, published on January 25, the only way to guarantee this right of access would be through the establishment of an office of an independent public trustee/public guardian, which would require separate legislation.

By adding Bermuda to the convention, Ms Furbert took a bold step on behalf of our jurisdiction. Now, however, is not the time for further talk. Action is instead required. In my past two op-eds and within this article, I have identified problems faced by Bermuda’s vulnerable residents and have offered practical solutions. It is up to the next government, whoever that may be, to decide what action it is prepared to take and when it is going to take it.

• Allan Doughty serves as senior counsel with the dispute resolution team at Kennedys

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Published February 01, 2025 at 8:00 am (Updated February 01, 2025 at 8:22 am)

Bermuda cannot take its foot off the gas on disabled rights

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