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Page 31, line 8, leave out from "above," to end of line 9 and insert "nothing shall be unlawful if done by reason of or on the grounds of the purpose of the establishment (including the purpose of providing education relating to or within the framework of a religion or belief, in accordance with decisions taken by persons responsible for the establishment as to how the precepts of the religion or belief should be manifested or promulgated in the establishment)."
The noble Baroness said: My Lords, I am just checking whether I can move the amendment. I think that since Amendment No. 19 has been agreed to, I shall not be able to move Amendments Nos. 20 and 21 because of pre-emption.
Baroness Ashton of Upholland: My Lords, according to the brief, if Amendment No. 19 is agreed to, we cannot call Amendments Nos. 20 or 21 because of pre-emption. I think that is the correct procedure at this point, in which case we shall not move them.
"MONITORING OF EXCEPTION IN RELATION TO IMMIGRATION CASES
(1) The Secretary of State shall appoint a person who is not a member of his staff to act as a monitor in relation to immigration cases.
(2) The person so appointed shall monitor in such manner as the Secretary of State may determine the operation of the exception in section 52(4)(f).
(3) The monitor shall make an annual report on the discharge of his functions to the Secretary of State.
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(4) The Secretary of State shall lay a copy of any report made to him under subsection (3) before each House of Parliament.
(5) The Secretary of State shall pay to the monitor such fees and allowances (if any) as he may determine."
The noble Lord said: My Lords, Amendment No. 29 refers to Clause 52, which deals with public authorities. The purpose of that clause is to ensure that in exercising their function public authorities do not do any act that constitutes discrimination or harassment. Subsection (4)(f) provides prohibition, but it does not apply to a decision taken in accordance with rules under Section 3(2) of the Immigration Act 1971. These grounds are clearly defined, and they apply mainly to refuse entry clearance or leave to enter the United Kingdom on the grounds that the exclusion is conducive to the public good. We agree with that.
The same applies to a decision to cancel leave to enter or remain in the United Kingdom. There are further powers, which include a decision to refuse an application to vary leave to enter or remain in the United Kingdom on the grounds that it is undesirable for a person to remain in the United Kingdom, or a decision to vary leave to enter or remain in the UK on the same grounds.
"that a person holds an office or position in connection with a religion or belief or provides services in connection with their religion or belief . . . that a religion or belief is not to be treated in the same way as certain other religions or beliefs, or . . . that the exclusion from the United Kingdom of a person to whom paragraph (i) applies is conducive to the public good".
Those are some of the grounds that have been introduced, and on that basis, we felt that it was appropriate to have a system of monitoring. The amendment in my name and that of my noble friend Lord Lester deals with this matter.
I will spell out what we propose. In our amendment, we suggest that it is appropriate to have monitoring of exception in relation to the cases that I outlined, particularly on matters that relate to religious exception. We suggest the appointment of a person who is not a member of the Home Office staff to act as a monitor in relation to immigration cases. The purpose behind this amendment is to ensure that there is public confidence in the way that the system operates.
At Report, I mentioned that we were grateful to the Government for ensuring that the exceptions to immigration rules were limited. We tried to achieve the same aim during the passage of the Race Relations (Amendment) Act 2000. Unfortunately, despite our various efforts, we were not successful then. There can be mistrust, particularly in the way that rules apply on the basis of religion and belief. Proper monitoring would remove any suspicion and the independence of the monitor would ensure that the provisions of Clause 52 are properly applied.
Immigration officers have wide powersin many cases the same powers as police officers. The police are subject to the Police and Criminal Evidence Act 1984. We believe that that if we need to safeguard both the
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way in which immigration rules are applied and the interests of individuals, the appointment of an independent monitor is important. I beg to move.
Baroness Scotland of Asthal: My Lords, I regret to say that I have to resist this amendment in the same way that we resisted it on Report. I said we would continue to consider the matter and we have looked into it with some care. On balance, we do not feel that it is right to reproduce the arrangements in the Race Relations Act 1976, to which the noble Lord referred.
The exception that is now provided for immigration at Clause 52 is relatively narrow in comparison with that which is provided in Section 19D of the Race Relations Act 1976. The exception to the Race Relations Act potentially affects a large number of nationalities and a great many people: it may apply wherever there are objective grounds for believing that it is reasonable to subject people of different nationalities to different treatment for the purposes of immigration control. Such treatment must be authorised by a Minister and those authorisations are reported on by the Independent Race Monitor. A dozen or so are in force. In this case, a relatively small number of authorisations may affect a great many individual cases spanning a large number of nationalities.
The situation in the case of the exception provided in Part 2 of this Bill is different. The discretion to discriminate on grounds of public good is likely to be exercised with regard to individuals rather than groups, and is unlikely to be an everyday occurrence. A remedy for failure to exercise this power correctly is available either through appealif the conditions for appeal are satisfiedor through judicial review.
To the extent that the exception allows a determination that a particular religion is not to be treated in the same way as other religionsbecause it encourages children to renounce contact with their families, for exampleleading to a refusal to grant recognition for the purpose of admission as a religious worker, then it is in any case not analogous with the power to authorise discrimination in respect of nationality.
I know that the way in which this suggestion was proposed is that it would be a relatively easy thing to do, that it would not take much time and that it would be an add-on, which could be easily accommodated. That view was carefully explored with those primarily responsible for discharging this matter. The view that was taken, for the reasons that I have just given, was that it was neither possible nor appropriate for us to accept the proposal because it would be far too burdensome. For those reasons, and for those that I have already given, I must resist Amendment No. 29.
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