When introducing his Bill to remove Human Rights Act protections from immigration laws, Walton Brown said that it is normal in other countries, such as Britain, that anti-discrimination laws do not apply to immigration. He is completely wrong.

Discrimination in the immigration context is one of the most important areas of human rights law. In the East African Asians case from 1973, the European Court of Human Rights found that Britain had racially discriminated against some UK & Colonies citizens who were excluded from Britain on the grounds of race.

In the Abdulaziz case from 1985, the court found that Britain had discriminated against the husbands of British citizens on the grounds of sex, as wives of British citizens were given more favourable immigration treatment. Those same issues have played out in Bermuda some 30 to 40 years later.

In a striking parallel with the East African Asians case, the Bermuda Supreme Court held in August that it is against the Human Rights Act to prevent some Bermudian passport holders — British Overseas Territories citizens — from being able to work in Bermuda based on their parents’ place of origin. Many people are unaware that a person can register for BOT citizenship if they were born in Bermuda and lived here for the first ten years of their life. This has enabled some born-and-bred Bermuda citizens to finally be able to work in their own country. Some of these people even have their own children born here; they are culturally Bermudian but none of them had any rights until recognised under the Human Rights Act.

In a striking parallel with the Abdulaziz case, the Supreme Court has held in two recent cases that husbands of Bermudians must be treated the same as wives of Bermudians, who were previously given favourable treatment, in respect of immigration rights. Again, this was possible only because of the Human Rights Act.

Another significant case made possible by the Human Rights Act was Bermuda Bred, establishing that same-sex partners of Bermudians must be given the ability to live and work here, given that they had no option to marry and obtain spouse’s rights.

All of the above concern people with strong Bermuda connections and Mr Brown’s amendment could remove their rights at the stroke of a pen.

Mr Brown says that the aim of the amendment is to prevent abusive cases from proceeding, but, more importantly, it would destroy protections for deserving cases. It is a cruel, drastic solution. It is equivalent to banning all motorcycle helmets because you are concerned about misuse of tinted visors. It throws out the baby with the bathwater and fails to address abuses in other areas.

I accept that the Human Rights Act is open to abuse because it does not contain a defence of justifying discrimination. This is not a problem confined to immigration.

For example, a child could argue the age limit for buying cigarettes is age discrimination. Under the Human Rights Act, the Government would have no defence that the age discrimination is justified. The Chief Justice said in the Bermuda Bred case that the court might refuse to grant relief if it was concerned about the consequences, and the law ought to be tightened up to make this clearer.

Allowing discrimination if it can be reasonably justified is a simple fix that would protect people’s rights. It is the tried and tested language used in Bermuda’s Constitution and in the European Convention on Human Rights, which has been used for decades to protect rights in deserving cases but prevent abusive cases from succeeding.

The following quote from Lady Hale, now the President of the UK Supreme Court and Privy Council, was quoted approvingly by Chief Justice Ian Kawaley in the Bermuda Bred case and is fitting for the issues that are facing Bermuda:

“The state’s duty ... to secure that those rights and freedoms are enjoyed without discrimination ... is fundamental to the scheme of the Convention as a whole. ... Such a guarantee of equal treatment is also essential to democracy. Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being ...

“Wrongly to assume that some people have talent and others do not is a huge waste of human resources. It also damages social cohesion, creating not only an underclass, but an underclass with a rational grievance. Third, it is the reverse of the rational behaviour we now expect of government and the state. Power must not be exercised arbitrarily. If distinctions are to be drawn, particularly upon a group basis, it is an important discipline to look for a rational basis for those distinctions. Finally, it is a purpose of all human rights instruments to secure the protection of the essential rights of members of minority groups, even when they are unpopular with the majority. Democracy values everyone equally even if the majority does not.”

• Peter Sanderson is a barrister and Head of Litigation at Benedek Lewin Ltd. His litigation practice includes constitutional and human rights law