Dr.
Harris: I beg to move amendment 160, in
schedule 3, page 154, line 10, leave
out from ‘following’ to end of line
11. This amendment redrafts
the exception in the application of disability discrimination to
immigration
matters.
The
Chairman: With this it will be convenient to discuss the
following:
Amendment
101, in
schedule 3, page 154, line 11, leave
out ‘for the public good’ and insert ‘to protect
public
health’. Amendment
102, in
schedule 3, page 154, line 13, leave
out ‘or remain
in’. Amendment
103, in
schedule 3, page 154, line 14, leave
out ‘or remain
in’. Amendment
104, in
schedule 3, page 154, line 15, leave
out ‘or remain
in’. Amendment
105, in
schedule 3, page 154, line 16, leave
out ‘or remain
in’. Amendment
161, in
schedule 3, page 154, line 22, at
end insert— ‘(5) Section 27
does not apply in relation to sub-paragraphs (2) to (4) only to the
extent that any treatment, or a failure to comply with a duty, are a
proportionate means of achieving a legitimate
aim. (6) Regulations may make
provision for purposes of sub-paragraph (5) as to circumstances in
which treatment, or a failure to comply with a duty, is to be taken to
be justified, to the extent that those regulations are a proportionate
means of achieving a legitimate
aim’. This
amendment redrafts the exception in the application of disability
discrimination to immigration
matters. Amendment
106, in schedule 3, page 155, leave out
lines 14 to
26.
Dr.
Harris: I rise to speak to the two amendments tabled in my
name and that of my hon. Friend the Member for Hornsey and Wood Green.
Amendments 160 and 161 need to be considered together. I also support
the amendments tabled by the hon. Member for Glasgow, East and will
speak briefly to them. I want to take the opportunity, if I may, to
deal with something in paragraph 17 of the schedule, which comes under
the same part—immigration—to avoid having to return to it
in the stand part debate, because it generally covers the same
ground.
This is an
important issue because it has been raised not only in the context of
the Bill but, as the Solicitor-General will know, in the context of the
UN convention on the rights of persons with disabilities and the
Government’s proposed reservation in that area, which was
subject to two reports by the Joint Committee on Human Rights, of which
I am a member and to which I will briefly
refer. Paragraph
16 states that the bar on discrimination in relation to the provision
of services does not apply to disability discrimination when that
relates to matters of
immigration, and the justification is that the ground for so
doing—doing one of the things listed in sub-paragraph
(3)—is necessary for the public good. It is questionable whether
that is a stricter provision than originally existed, and certainly the
briefing from the EHRC confirms our belief that it goes further than
the previous provision. It is important to observe that the explanatory
notes state that the measure “provides an”
exemption “from
the prohibition on discriminating against a person when providing a
service or exercising a public function because they have a disability,
in relation to certain immigration decisions, including making a
decision not to allow someone to enter the
country” and
so on. However, the explanatory notes go on to
argue: “An
express exception was not previously needed since the Disability
Discrimination Act 1995 did not prohibit direct discrimination in the
provision of service or exercise of a public function, and because
disability related discrimination, which did apply to the provision of
services or exercise of a public function, could be justified if it was
necessary not to endanger the health or safety of any
person.” First,
that in itself is a different justification from the one provided in
the schedule, which is
“necessary for
the public
good” rather
than
“necessary not
to endanger the health or safety of another person”.
Secondly, the
contention in the explanatory notes is controversial—the EHRC
certainly questions it. The EHRC’s position, as we know—I
am not the only one with this briefing—is that all exceptions
must be fully compliant with EU law and should be subject to the
requirement of being
a “proportionate
means of achieving a legitimate
aim”. That
would be better if further qualified by adding “appropriate and
necessary means of achieving a legitimate aim.” The EHRC rightly
argues that it is essential that discrimination is reasonable only as
far as it permits public authorities and the private sector to
discriminate where it is
justified. The
EHRC takes issue with the explanation in the explanatory notes that the
measure is not more restrictive. As the notes acknowledge,
disability-related discrimination, as opposed to direct discrimination,
was always covered by the DDA 1995 in the context of exercising public
functions, including immigration functions, as can be see by section
21D of the
DDA. If
we look at section 21D, we find that there was not the same sort of
blanket exclusion that essentially exists now. Subsection (3) gives the
criteria under which treatment or a failure to comply with a duty are
justified and relates to conditions in subsection (4), which
are “that
the treatment, or non-compliance with the duty, is necessary in order
not to endanger the health or safety of any person...that the
disabled person is incapable of entering into an enforceable agreement,
or of giving an informed consent, and for that reason the treatment, or
non-compliance with the duty, is reasonable in the particular
case...that, in the case of treatment mentioned in subsection (1),
treating the disabled person equally favourably would in the particular
case involve substantial extra costs and, having regard to resources,
the extra costs in that particular case would be too
great”
and one other.
Subsection (5) states:
“Treatment,
or a failure to comply with a duty, is justified under this subsection
if the acts of the public authority which give rise to the treatment or
failure are a proportionate means of achieving a legitimate
aim.” The
provision in section 21D of the DDA is not present in this
provision.
The EHRC
points out that the exception in paragraph 16(3) extends
beyond justified discrimination and excludes all immigration decisions.
That is also a cause for concern, because it could allow unjustified
and negative stereotyping of conditions such as HIV. There is no
requirement of proportionality, so it is not clear what would fall
under the provision of
“necessary in
the public
good”. The
National AIDS Trust has contacted us and the commission to express that
concern, and other countries have such unjustified, stigmatising and
caricaturing bans on people with HIV, which they say are necessary in
the public good but which clearly, from research and study, cannot be
justified. I
should like to deal briefly with the relationship between the measure
and the Government’s proposed reservation from the UN convention
on the rights of persons with disabilities. Paragraphs 58 to 71 of the
12th report of Session 2008-09 of the Joint Committee on Human Rights,
which is its second report on the matter, deal with that relationship.
Essentially, the reservation is described in the same terms as in the
Equality Bill, so at least the Government are consistent on the two
measures regarding that reservation.
The Joint
Committee on Human Rights does not believe that the proposed
reservation is appropriate and thinks that the Government have not
provided an adequate explanation of why they believe it to be
necessary. The Committee’s view is that there is nothing in the
convention or in domestic law that justifies a reservation of the
breadth proposed and it stated:
“this
reservation could disapply the Convention in its entirety in so far as
its protection might relate to people subject to immigration
control.” These
provisions are no less narrow.
Why cannot
the Government use a different formulation for the test to be
met, such as that set out in amendment 161? I do not claim
that the drafting is absolutely right, but it gives a flavour of what
we are looking for,
stating: “Section
27 does not apply in relation to sub-paragraphs (2) to (4) only to the
extent that any treatment, or a failure to comply with a duty, are a
proportionate means of achieving a legitimate
aim.” I
think that “proportionate means” is possibly the wrong
way of describing appropriate and necessary means, but we will leave
that aside. The amendment contains a regulation-making power that would
make provision for the purposes of sub-paragraph (5) to set out
the
“circumstances
in which treatment, or a failure to comply with a duty, is to be taken
to be
justified” and
explain why those are necessary and proportionate means.
Finally, I
want to deal with the example given in the explanatory notes relating
to TB. Paragraph 668 of the explanatory notes gives an
example: “A
person who arrived at a British airport with TB could be refused entry
if this was considered necessary to protect the health of the general
public.”
As I
understand it, the Government have a scheme that operates when visas
are sought in some countries—not all countries; it is not
uniform—that means that a visa might not be provided to someone
unless they have passed screening for TB. I have seen no
evidence to suggest that that is scientifically justified, which, I
suspect, would be a requirement even under the Government’s
provision.
The Minister
might not be equipped with this information now, but I would be
grateful if she agreed to ask her officials to check with the
Department of Health about the evidence base for that example. It would
be illuminating for us to know whether the Government feel that their
test requires scientific or research-based support for an intervention,
particularly one as significant as requiring a specific screening test
or treatment for a condition. Although it may appear strange, I have
seen no evidence to suggest that screening people for TB before entry
would affect TB in this country. TB in this country is generally due to
re-emergence in people who have been here for many years rather than
new immigrants. That is certainly the case regarding transmission to
close family members. This is a significant issue and I hope that the
Government can provide an explanation or justification.
I support the
amendment tabled by the hon. Member for Glasgow, East to paragraph 18
of the schedule. It seems wrong to have an absolute right to directly
discriminate on the basis of religion or belief in matters of
immigration. A person may have views—jihadist views, for
example—that might mean that the Government are right not to
allow them to enter this country. However, that is a manifestation of
someone’s religion, and such action can be justified under
indirect discrimination legislation. I would argue, as would some
mainstream religions, that it is not a defining cause of religion or
belief. Everything that the Government seek to achieve in paragraph 18
could be done without having such a broad exemption for religion or
belief. Such measures can be justified, and the Government are right to
do that where necessary.
Paragraph 17
deals with a long-standing provision that covers an exemption in
respect of race discrimination and immigration matters in relation to
nationality and ethnic or national origins, not
colour. 3.30
pm I
want to remind the Minister of what happened at Prague airport when UK
immigration officials were engaged in a practice that was found
eventually to be unlawful. It is a pity that the matter took so long
that it had to go to the law courts. People who looked like Gypsies
were being stopped deliberately and not allowed to travel to this
country. They were subjected to questioning and testing by Government
directive. Such action should give us cause to consider whether such a
broad exemption is appropriate or should be qualified in order to
prevent what may have been well-meaning directives given to immigration
officials, but which were in effect found to be unlawful, even though
the measure is an extension of a current exemption. I hope that the
Committee will look kindly on all the amendments in the group because
they have much merit.
Ms
Abbott: The afternoon wears on, but I want to say a few
words on the exemption—long standing, I know—of
immigration services from the requirements on nationality and ethnic
origin under the Bill. It may be long standing, but that does not
necessarily mean that it is correct.
When I first came to the House 22 years ago, I made a speech on
immigration and I am regularly among the top 10 MPs who write to the
immigration and nationality directorate on such matters. Over that
time, I have dealt with literally thousands of immigration and
nationality cases on behalf of my constituents and sometimes on behalf
of others when their MP would not help them. I have observed that one
problem with immigration and nationality legislation is not so much
that it is consciously racist, but that it is consciously chaotic and
consciously reacts to media panic. Twenty-odd years ago, East African
Asians from Kenya who came here were to bring about the end of
civilisation as we know it. More recently, it has been Romanian ladies
in headscarves and Polish
plumbers. The
random nature of immigration legislation could be properly mitigated if
it did not have such blanket exemptions. Nothing brings our immigration
process into such disrepute as the notion that it bears more heavily on
people because of skin colour than otherwise, whether it is true or
not. Nothing causes more pain to my constituents than the very real
state of affairs whereby people from the Commonwealth, who may have all
sorts of cultural links, are often treated less favourably in
immigration matters than people of a different skin colour who are not
from the Commonwealth. I am not saying that there might not be grounds
for some sort of exemption, but such a broad exemption helps our
immigration legislation to be more chaotic and unfair than it might be
otherwise. I hope that, during our proceedings in Committee or even on
Report, we can return to the subject and deal with it at slightly
greater
length.
John
Mason: I wish to speak first to amendments 101 to 105.
Other Committee members have expressed concern about the wide scope of
paragraph 16 of the schedule on immigration. It means effectively that
discrimination is allowed against a person by refusing entry into the
UK if the person has a disability. Similarly, a person could be
discriminated against by being required to leave the UK because of a
disability. There could be an exemption for public health reasons,
which many of us would accept. I am grateful to Liberty for making that
point. The hon. Member for Oxford, West and Abingdon referred to the
example whereby a person arriving at an airport with TB could be
refused entry. A lot of us would say that that was fair enough, but an
exemption for public good is much wider than is needed to prevent such
a case. The fact that it could be abused is already causing
worry. Similarly,
a non-citizen developing cancer could be expelled from the UK
“for the public good”, no matter how long that person had
been resident here, to avoid giving NHS treatment and save money. A
family with a child with a disability could be refused entry on the
basis that the child, over time, might cost the public health system.
The amendments should meet the Government’s objectives of
allowing entry to be refused to protect the health of the general
public, while limiting it so that people with non-contagious
disabilities are not unfairly refused entry. It would also mean that a
person who is already resident in the UK would not be forced to leave
on developing a disability.
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