Dr.
Harris: I would not want the hon. Gentleman to put the
wrong impression about tuberculosis on the record. TB is not contagious
as people would understand it in that it is easily spread. It is wrong
to think of people, even those with active TB, as being a real danger
to people in the same way that someone with severe acute respiratory
syndrome or some form of flu is. There is little evidence that people
who come into this country create a health hazard to the general public
in spreading TB. It is a problem, and a far greater problem in the
countries of origin than it is for us. I know that that is not his
intention, and I do not think that that is a good example in the
explanatory notes or for anyone to refer
to.
John
Mason: I completely accept that point because it is
extremely valid, but I was quoting it because it was the example in the
explanatory notes, although I do not think it is particularly good.
However, I expect that, if we are talking about contagious diseases
such as smallpox or swine flu, of which Scotland seems to have its fair
share, the case would
apply. Emily
Thornberry (Islington, South and Finsbury) (Lab): I want
to enlighten the Committee with my personal experience. My brother
returned from Africa with TB. He was not diagnosed for some time, until
part of his throat disappeared and he had large holes in his lungs. I
assure hon. Members that the medical teams around us were very
concerned that our entire family might have it. We, and those who have
been close to him, all had to go off to a TB clinic to be checked out.
The medical profession take it seriously, and therefore, my impression
is that TB is, or seems to be contagious. People can catch it quite
easily, so there must be some form of
control.
John
Mason: We will leave other people to decide the exact
position of TB; I think all the points are valid. The question is
whether we need a complete exemption for the public good, or whether it
would be enough to have an exemption for public health. That is my key
point in amendments 101 to 105.
Amendment
106, which mentions religion and belief—I am glad to say that
this time, I can speak on behalf of the party—seems to be too
wide an exemption. The point has already been touched on by the hon.
Member for Oxford, West and Abingdon: it would allow unfair
discrimination. Paragraph 18(2) and (3) would allow discrimination in
immigration cases, in that a person can be refused entry to or be
expelled from the UK on the basis of religion or belief if that is
considered conducive to the public good.
We all accept
that there will be occasions when a person is excluded from the UK on
the basis of public good—for example, if there is evidence that
the person may incite people to commit violence. That would not be
discriminatory because the exclusion is due to the person’s
actual or suspected behaviour. Surely it is sufficient to know that a
person is suspected of holding such extreme and violent views, and
their religion is largely irrelevant. I do not understand why religion
or belief is included here.
The
Solicitor-General: I will start with the race exception,
which my hon. Friend the Member for Hackney, North and Stoke Newington
referred to. Indeed, it replicates
an existing exception introduced in 2000. Many immigration laws and
policies require differential treatment on grounds of nationality. It
goes to the heart of the UK immigration system. Different visa
requirements need to apply to people from different countries,
depending on a variety of historical, political and diplomatic reasons.
Immigration officers may want to give extra scrutiny to entrants from
particular nationalities if there has been evidence of immigration
abuse by people of those nationalities. The first one, I think, makes
the point. Different visa requirements would not be possible if there
was no exemption—that is the key. I do not accept that it is
broadly set out and I will say why not in a
minute. Going
through some of the specific problems that other members of the
Committee have raised, let us look at disability. The hon. Member for
Oxford, West and Abingdon asked about TB. The policy on TB, which is
encapsulated by reference to that disease as an example in the
explanatory notes, is that it is a serious public health threat, as my
hon. Friend the Member for Islington, South and Finsbury said. Of the
8,500 TB cases reported in the UK in 2007, 72 per cent. were in people
who were born outside the UK and 7.5 per cent. of people with TB were
resistant to at least one first-line drug, with that being far more
common in people born outside the UK. That is the kind of evidence that
will inform future
consideration.
Dr.
Harris: Now is not necessarily the time to have this
discussion, but I have heard those points made before, and they
disguise my point. Those people may have been born outside the UK, but
the figures show that they do not get the exacerbation of the disease
in the first year that they enter. The figures show that it is far more
common for TB to arise in people who were born outside the UK but who
have been here for years. It may be reactivated by a trip—as a
UK citizen, so they are not subject to immigration control—to
the subcontinent. That is why there has been confusion over the policy
justification for
this.
The
Solicitor-General: I cannot comment on that, but there is
obvious justification for a policy on TB, bearing in mind the figures
that I have just given, when we consider people coming into the country
with TB. I think that the hon. Gentleman is talking about people who
have been in the country and are going to be removed because of that
disease. Let
me deal with HIV and then I will come to the principles behind this
issue. I suppose that the hon. Gentleman was saying that we would use
the measure to refuse permission to people with HIV/AIDS, but
prospective migrants are not asked whether they have HIV or asked to
undergo HIV testing. The Government’s policy is that HIV testing
is available in the UK voluntarily, and that nobody who comes here is
compelled to have a test, so it will not work in that
way.
Dr.
Harris: Let me say that there was no implication that the
Government had a policy of requiring HIV tests, and that I strongly
support the UK Government’s approach to this issue. However,
some Governments who are close allies of the UK do that, and
who knows what a future Government may do? The Government
should make it clear in this legislation, and Parliament should make it
clear, that that would not be
acceptable. This is not a fantasy, because we know that other countries,
including our allies, do it. That was the basis on which I made the
point, and I did not seek to criticise the Government’s existing
policy.
The
Solicitor-General: I am relieved to hear that, because
that was how it sounded. There is no such policy, and we legislate for
what will be lawful from now on, whoever is in government. I seek to
persuade the Committee that the exemption is vital if we are properly
to police our borders. It is not, as the hon. Gentleman said, a blanket
ban, or even a wide ban.
The hon.
Gentleman mentioned the DDA and quoted extensively from it or from the
notes. Until now, a specific disability exception for immigration
functions has not been necessary, because the DDA has justifications,
some of which he quoted, by which public authorities can treat a
disabled person less favourably, for a reason relating to their
disability, without that amounting to discrimination. One example would
be if that different treatment were considered necessary so as not to
endanger the health and safety of anyone else. However, those
justifications have now gone, because they were in the DDA, but are not
in this Bill. Consequently, we have included the exception to retain
the status
quo. Let
me go through the amendments in turn. Amendments 101 to 105,
160 and 161 all attempt to change the scope of the disability
exception, which allows an immigration authority to refuse someone
entry to the UK, or permission to remain, on the basis that it
is
“necessary for
the public
good”. Amendment
106 would remove one part of the “Religion or belief”
exceptions.
Amendment 101
would replace the
“necessary for
the public
good” justification
in the Bill with the justification that the action in question is
necessary “to protect public health”. It is important to
ensure the proper protection of public health, but it is not
exclusively about that. For instance, the immigration authorities might
need to exclude someone who has a particular mental or other condition
who represents a risk to public safety, rather than to public health
specifically. Immigration authorities need to be able to take account
of other factors than public health when making decisions about whether
to give leave to enter or remain. The test is realistic and narrowly
based, but it appropriately allows broader conditions than a
one-dimensional test of public
health. 3.45
pm Amendments
160 and 161 go together. Amendment 160 would remove the
current justification for using the exception, namely when it is
“necessary for the public good”, and amendment 161 would
replace that with a standard, objective justification test that would
mean that the exception could be used only when it was a proportionate
means of achieving a legitimate aim. However it is
couched—whether in European or English language—that is
the test, is it not?
We do not
think that the amendments are necessary and I hope that the hon.
Gentleman is reassured. Under current drafting, action can be taken
only if it is necessary for the public good. When a court, for
instance, considers whether it is necessary, it will obviously have to
consider
whether it is a proportionate means of achieving a legitimate aim. All
actions taken by immigration officials are in accordance with
regulations and guidance issued by the Secretary of State, who is
accountable to Parliament, and all policies and decisions taken in
accordance with them are subject to the Human Rights
Act. Although that
route appears somewhat circuitous, the hon. Gentleman can none the less
be assured that the question of proportionality to achieving a
legitimate end is integral to the test that the court would apply. In
addition, guidance and instructions will of course be issued to
immigration staff. They are already in the public domain, so the
amendment would not provide additional transparency, if that was a
consideration. We have limited the exception to what is
“necessary for the public good” so that differential
treatment of disabled people cannot be applied unless it can be
justified in those
terms. Amendments
102 to 105 would mean that immigration authorities could not rely on
the exception in relation to decisions taken about people if they are
already in the country. The basis for exclusion would be available only
to prevent a person from entering the country, not to exclude them.
That is obviously unworkable and would limit severely the Border
Agency’s ability to deliver its immigration and public
protection duty to protect public health and public
safety.
John
Mason: I appreciate that the Solicitor-General has
mentioned public health and public safety before. Would she be more
open to using those two terms rather than the wider “public
good”?
The
Solicitor-General: No. It is a mistake in legislation. The
definition is very narrow. In discussing guidance and the application
of the Human Rights Act, I have made it plain that further tests apply
to that narrow definition through the process of the court, which is
well known. It is a narrow definition in itself, and it is even
narrower because those who implement it know that the courts will deal
with it with regard to the Human Rights Act and the EU.
It is better,
in our submission, to put it in those terms, narrow as they are,
because legislating for the future, as the hon. Gentleman said in a
different context, is difficult. One must include sufficient
flexibility for some unforeseen event that would not involve public
health or public safety but would involve the public
good. We
would not want to create a potential conflict between the Equality Bill
and immigration legislation, which is why we have the exceptions, but I
emphasise again that all immigration decisions will have to be taken in
accordance with the Human Rights Act in any
event. Amendment
106 would remove one part of the religion or belief exception for the
immigration authorities, removing their power to decide not to allow
someone to enter or remain, despite the fact that it was conducive to
the public good, where religion or belief is a factor. Some
individuals’ religious beliefs are so extreme that it would not
be desirable for them to enter or remain, as they could cause or incite
harm to others. It is therefore necessary to allow the immigration
authorities to exclude what are sometimes called preachers of hate
where that is considered to be in the interests of community cohesion,
which is in the public good, and to exclude others who could operate
against the system.
The exception
is not new. The hon. Gentleman has talked about the DDA in a different
context, but the exception has been in existence since the Equality
Act 2006. In the three years since it has been introduced,
we have not seen any evidence to suggest that the immigration
authorities have used the exception incorrectly. The exception is not a
blank cheque. It is very specific and requires behaviour to be
justified. In
addition, the Border Agency’s use of the exceptions is subject
to monitoring by the chief inspector. In our earlier discussions, the
hon. Gentleman set great store on having inspectorates check that the
Bill’s obligations were being followed and that the exceptions
were not too wide. The chief inspector of the Border Agency has a
statutory duty to monitor and report on the efficiency and
effectiveness of UKBA, which specifically includes considering and
making recommendations about the agency’s compliance with
discrimination law in the exercise of its
functions. I
hope that I have persuaded the hon. Members for Hornsey and Wood Green
and for Glasgow, East to not press their
amendments.
Ms
Abbott: On exemptions from immigration and nationality
legislation, the Minister said, with something of a flourish which
belies her history as one of our top advocates, that without the
exemptions, differential visa arrangements between different countries
would not be possible. But that is partly my point. The problem with
differential visa regimes is that they do not necessarily target the
people that they try to target. Jamaica’s visa regime is
designed to keep out Jamaica’s criminals and undesirables, but
those criminals and undesirables continue to travel between London, New
York and Kingston unimpeded, while Jamaican academics and so on who
come here on holiday get caught up in the visa
regime. If
the exemptions were not so wide, we would have to think harder about
what the visa regimes are supposed to achieve and whether that could be
done by other methods. The exemptions often seem arbitrary. I travelled
to Bolivia with a parliamentary delegation earlier this year, and they
were upset that they are now subject to a visa regime while Brazil,
which sends more people to this country and has more issues surrounding
criminality, is not. If the exemptions were not so wide, we would have
to think harder about what we are trying to do with some aspects of
immigration and nationality
legislation.
Dr.
Harris: There are three things to respond to. First, on
TB, I congratulate the Minister’s team on having the figures
ready, but they do not prove the point. They do not address the point
that people who come here and are subject to immigration control are
generally not the same people who may have been born abroad and who
develop TB. There is also no evidence from any research to suggest that
applying immigration control in this way would have any impact on the
number of people contracting TB in this country. The example is flawed
and the policy is flawed. If I am wrong and receive a letter citing
some peer-reviewed research from anywhere in the world that is similar
to this country that shows that the policy works, I will place a
retraction of my view in the public domain. I have not yet seen such
evidence as yet. The point about
using TB as an example is that anything that is more contagious would
probably not count as a disability according to the 12-month rule, but
I understand why people cast around for chronic
diseases. I
accept the Minister’s comments that we may need to look more
widely than public health—people with a mental health condition,
for example—on public safety. In so far as the amendment seems
to focus only on public health, I accept her point. However, she did
not explain to my satisfaction why the legislation does not specify the
normal language of the directive in respect of an objective
reasonableness test, which is a proportionate means of achieving a
legitimate aim. Instead, she said that people need to rely on the Human
Rights Act, but in a sense people could ultimately rely on that Act for
much of what this legislation is intended to address. It is not quite
so useful, as I understand it, with regard to the scope of the powers
of people assisting those seeking help, such as the Equality and Human
Rights Commission, on whether they can take human rights cases to the
same extent as they can take equality cases, but I am not an expert in
the area. In addition, the whole point of equality legislation is not
to have to rely on the fallback position of human
rights. The
Minister maintained that the courts, when interpreting
“necessary”, would include a proportionality test, but as
we discussed earlier the language of proportionality itself includes
the term “appropriate and necessary”, so for something to
be necessary, the courts would have to demonstrate that it was
necessary in part, and that is not entirely satisfactory. I see no good
reason why the Government cannot use the language they have used
elsewhere to ensure that, if they want the exemption, people can
challenge it with the same language they challenge other exemptions in
the rest of the Bill. There seems to be one rule for the Government and
another for everyone else. My amendment is not focused enough to deal
with that point. Otherwise, I would be tempted to press it to a
division, but it is something we will come back to.
The
Minister’s response to the amendment tabled by the hon. Member
for Glasgow, East, which I strongly support, also did not deal with the
point. He set out clearly how a bar on someone with unacceptable views
could be based on those views—incitement to violence, for
example—but if the worry was that it would then be argued that
those views were a consequence of religious belief, which I can
understand, given the number of religious extremists with unacceptable
view sand behaviour in many religions, that would be indirect
discrimination and the Government could justify it. It is wrong that
there should be a complete exemption on the basis of religion or
belief, which goes to the heart of article 9 of the European convention
on human rights, which sets out the freedom to hold a religion or
belief, regardless of its manifestations. I note that the hon.
Gentleman does not intend to press the amendment, but if that subject
is dealt with later in our considerations, I hope that he will swing
behind an attempt to appropriately narrow that. Having made those
points, I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. 3.57
pm Sitting
suspended.
4.15
pm On
resuming— Schedule
3 agreed
to.
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