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The issue of cost recovery would be a secondary matter. The denial of access to the health service would not be right or proper. We need to reflect very carefully on these issues. From my contact with the services, I understand that very careful consideration is given in those circumstances.
3 pm
Lord Hylton: The Minister, who is not responsible for health matters, should not rely on the goodwill of health personnel going above and beyond their statutory duties to help people in unfortunate circumstances.
Lord Avebury: I was in the middle of my speech. I am grateful to noble Lords for their interventions because they have enabled me to find the paragraph in the Select Committee report on the point that I raised and to which the noble Lord, Lord Judd, referred. It says that there are cases in which people have been denied maternity and antenatal care in hospitals. It says:
“This is inconsistent with the principles of common humanity and with the UK's obligations under ECHR Articles 2, 3 and 8 ... We recommend that the Government suspend all charges for antenatal, maternity and peri-natal care. We recommend that all maternity care should be free to those who have claimed asylum, including those whose claim has failed, until voluntary departure or removal from the UK”.
That could not be plainer. Whatever the Minister says, it is not happening and that was the subject of an article in yesterday's Guardian. I urge the Minister to read paragraphs 140 to 143 of the Select Commission report, The Treatment of Asylum Seekers, and to tell your Lordships, if he can, whether the Government accepted that recommendation, and, if they did, what his answer is to the fact that these things are still happening in some PCTs. Women are being denied access to antenatal and maternity care, contrary to the recommendation of the JCHR. I am afraid that once people have these BIDs, every time they walk into a hospital, someone will say, “You’re not entitled to medical care because I see from your BID that you have reached the limit of your permitted leave to remain and, therefore, you are an over-stayer”.
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Lord Bassam of Brighton: Let me try to put this on a rational basis. That is not the purpose of the BID. The BID is designed to make clear someone's immigration status; it is not there to deny them a service. As I have already explained, it may be that in using those services they, quite properly, have to be charged for them. Then there is the issue of whether an individual is in a position to pay. No healthcare should be denied to people who are in need of it. That is the position. The BID is an immigration document that relates to their status here; to their permission to stay in this country. It has been broadly welcomed, not least by many employers who wish to be absolutely clear and certain that they are not committing offences. That is the purpose of a BID.
Lord Avebury: I remind the Minister that I said that we were perfectly happy with the remarks he made originally about the use of the BID for the purposes of access to employment and access to benefits. I am concerned about other ways in which the BID will be used and why it is not possible to specify them. If the Minister now says that there is no case in which persons will be denied access to health treatment because their BID is not current, or there is some flaw in it, let us put that in the Bill. If the only circumstances in which the BID is to be used for access to public services is when someone goes into the jobcentre and is asked to produce it to show that they are eligible for work, or in the private sector when they go to an employer and they produce a BID to show that they have the right to work in this country, then I am not arguing with the Minister. I am saying, “Fine, let’s put that on the face of the Bill. Let us say that the circumstances in which the BID has to be produced for any purpose other than immigration control is to grant access to paid employment and to grant access to benefits”. If we put that in the Bill, it would become clear that no one was going to be denied health treatment.
If this is left blank, we do not know whether there are going to be continual cases like those reported in the Guardian yesterday. Apart from a person who was denied treatment, someone else was given a bill for £13,000 for maternity services that she had incurred. It is not just a question of how the Government intend the BID to be used; it is how it would actually be used on the ground that concerns the Committee at this stage.
Lord Bassam of Brighton: I will try to cap this one off, because we need to move on. It is not something that we can put in the Bill, but it is the sort of issue that can be clarified in regulations. I am not going to get drawn into commenting on every individual case that noble Lords raised in the Committee proceedings; that is not the purpose of a Committee that is here to look line by line at the contents of a piece of legislation. That is pretty much where we best leave these things.
On the healthcare point, just to put it on the record, the purpose of the biometric immigration document is to help identify a foreign national securely and reliably and to confirm the holder’s immigration status. That is its principal purpose. I argue that in the end it would help healthcare officials to identify whether someone is entitled to free treatment. That would be a positive.
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The Earl of Listowel: In case there is further information forthcoming on this matter, it would be interesting for me to know what happens with regard to health-visiting post-pregnancy. If a mother is depressed as a result of her situation, the health visitor is a good person to pick that up. I recognise that the Minister wants to move on, and I must read the report, which I have not yet done. Listening to the debate, it occurred to me that I would be interested to hear about that aspect, if more information is to be forthcoming.
Lord Selsdon: I support the Minister on this issue. I declare an interest in that I have just tabled a Question for Written Answer to ask about the abuse of prescription drugs in this country, because I have been advised that a very high proportion of drugs that are prescribed are re-exported by foreign nationals who have no proof of identity when they collect them, often with slightly doubtful prescriptions, and they do not pay. I flag up that I have some sympathy that it would be terribly helpful to pharmacists and others if there was proof of identity for foreigners who have prescribed drugs and who should pay.
Lord Dholakia: The Minister seems to be getting unnecessarily worked up about this matter—
Lord Bassam of Brighton: No, I am not getting worked up.
Lord Dholakia: Of course you are. There is a Select Committee report on this, if the Minister cares to look at that. I well understand his explanation of what the BID document is about; I have no difficulty with that. The implication of that document for people who may require certain services and the danger of that particular approach is relevant in the cases that my noble friend has identified. It is no good saying that we cannot deal with individual cases. In a previous debate, we discussed the case of a woman with a little baby who was arrested and detained and the baby did not have access to the mother’s milk. Those are the sorts of cases that hit us hard. I do not say that the Minister deliberately creates that situation. The fact that the Select Committee has identified issues of serious concern means that it is right and proper for the Minister to look at that implication in relation to this particular issue.
Lord Bassam of Brighton: I do not deny that we should reflect on practice. That is why we issued guidance: so that we can impact on practice when it follows from legislation.
On the point made by the noble Earl, Lord Listowel, obviously we will have to clarify some of these issues in correspondence. It is one of the points that we can pick up and I shall helpfully do that. I shall also ask officials to provide further information to the Committee about current practice in the health service on the way in which healthcare and treatment are charged. I can
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Lord Avebury: I am grateful to the Minister for the information that he has given us. I make no apology for raising not just the individual cases that were referred to in yesterday’s Guardian, but the fact that they were illustrations of a much more general problem of access to health services and to PCTs in particular by women who might find that they were being denied once the BIDs became universal and had to be produced.
If the gist of the Minister’s remarks is that no one is to be denied access to health services as a result of the introduction of the BIDs, I very much welcome that assurance, but it is best taken care of if he accepts my suggestion that we narrow down the circumstances in which a BID can be required to be produced to the main ones that he has mentioned: access to employment and access to benefits. I would be very happy if the Bill could be amended so that those were the only two cases in which the BID had to be compulsorily produced. It would then become clear that a person could not be denied access to maternity or ante-natal treatment and that if he or she required medication, the pharmacist would not be able to refuse it on the ground that the BID was not current.
Lord Avebury: Hang on, I am just coming to the end. I am not asking the Minister for further information at this stage. I am saving him the trouble. I suggest that at some point he looks at the Select Committee report and the Government’s reply. I do not know whether the noble Lord, Lord Judd, will confirm this, but I imagine that, because the Select Committee was looking at the situation before the introduction of this Bill, it did not make any specific reference to the Bill, so the Government’s reply would not have dealt with the points that we have discussed this afternoon. I suggest that the Government look again at the Select Committee report and at their reply and think carefully, taking into account this afternoon’s discussion, about whether they are able to comply with my suggestions about how the clauses should be redrafted to make it clear that nobody is to be denied access to health treatment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13B not moved.]
3.15 pm
Lord Judd moved Amendment No. 14:
The noble Lord said: The debate on the previous amendment reinforces the importance of drawing the Government’s attention to what the Joint Committee on Human Rights said on the issue in its report in May. I intend to do just that. My comments will apply to Amendment No. 23 as well, so when we come to it I will not have to put all the arguments again.
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The Joint Committee paid a great deal of attention to this. It was very concerned about the Bill in general, but in particular about this part of it. Our conclusion, which relates to what the noble Lord, Lord Avebury, said a moment ago, was:
“In the absence of more detail on the face of the Bill or any draft regulations prescribing important details of the proposed scheme it was impossible to assess the compatibility of the proposed biometric registration scheme with the right to respect for private life in Article 8 ECHR”.
The Joint Committee noted, for example, that the following important details of the proposed scheme are nowhere specified:
- “the type of biometric information which will be required; the purposes for which such information may be used, which will apparently include use for purposes which do not relate to immigration, such as access to state benefits”—
we have just discussed that at some length—
In a previous report, the Joint Committee expressed similar concerns about the Identity Cards Bill. It repeatedly expressed concern about the potentially discriminatory impact of introducing compulsory registration for non-nationals before nationals. This was in part due to the likelihood that compulsory registration for foreign nationals may lead to British citizens from visible minority ethnicities being subject to more frequent demands to produce an ID card or allow checks against the register.
The introduction of the biometric immigration document gives rise to exactly the same concerns about de facto racial profiling. Even though the Bill does not make it a requirement that such a document be carried, the fact that such a document exists for non-nationals and can be requested to prove entitlement to services makes it highly likely that members of black and minority ethnic communities in the UK will be disproportionately required to prove their immigration status.
The scheme’s phased implementation could well give rise to a further risk of de facto racial profiling. In the Roma rights case, the House of Lords found the Home Office’s policy of targeting Roma for pre-entry clearance at Prague airport to be inherently racially discriminatory and therefore unlawful. To be lawful, it is vital that race or ethnicity play no part in the profiles used by the Government to decide the order in which they phase implementation of the biometric immigration document. That was the very firm conclusion of the all-party Joint Committee on Human Rights, drawn from both Houses, including distinguished legal experience as well as lay experience. Everything we have just heard in the discussion on the amendment of the noble Lord, Lord Avebury, brings home to me the relevance of the Joint Committee’s recommendations in this context. My amendments seek to give effect to our conclusion. If the Minister wants to meet our conclusion but has some real argument that there are other ways in which this could be done, I will be the first to listen to what he has to say and to take it seriously. At this stage, however, it is very important not to leave this simply as a pronouncement from a committee meeting upstairs, but to turn it into action that can be demonstrated in the Bill. I beg to move.
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Lord Avebury: Your Lordships may be pleased to know that I shall be mercifully brief. As we understand it, in due course, everyone subject to immigration control will be required to obtain the biometric document. The purpose of subsection (2)(a), which allows the Secretary of State to make regulations requiring the document to apply only to,
is that initially it may be convenient to get only those seeking leave to remain to apply and to take later those who already have permitted leave to remain to avoid swamping the system. A phased roll-out would enable the BIA to pilot the technology and the training of users so that any problems that arise can be dealt with progressively. We have no objection to that in principle.
The Explanatory Notes say that treating differently different classes of persons who are subject to immigration control for the roll-out is not discriminatory, and that any discrimination there is justified. The determining factors will be which categories present the greatest risk to immigration control and whether the technology and resources are available for particular applicants. As I see it, this would mean deploying the technology and resources preferentially to applicants who came from east Africa because the conflicts in Sudan and Somalia, and the severe human rights problems in Eritrea and Ethiopia—
Lord Avebury: And Uganda, as the noble Lord, Lord Hylton, rightly reminds me—make it likely that people from those countries will try to come here. The thinking seems to be that if every legal Somali had a BID, it would be easier to identify those who have arrived here illegally. Is that kind of discrimination justified, in the Government’s opinion? If it is, we do not want them to have the unrestricted power conferred by this paragraph to single out classes of persons as guinea pigs for the biometrics proposed in the Bill. One way in which to ensure that the queue of people lining up for the BIDs was not arranged in a discriminatory way would be to appoint an independent person, not necessarily from the Liberal Democrat Benches, to act as a monitor of the introduction of biometrics and to report to Parliament from time to time on the compliance with discrimination legislation, the Data Protection Act and any other matters to which Clauses 5 to 15 refer. I do not expect the Minister to give me an off-the-cuff reply to that suggestion, but I would like him to mull it over and to say in due course whether he thinks that it is possible. I am sure that the whole of the Grand Committee would want to avoid any suspicion of discrimination in the way in which the roll-out is managed—suspicion that would lessen confidence in the whole procedure. Therefore, in due course, I will invite the Minister to come back with an answer to my, I hope modest, proposal that we have an independent monitor of the roll-out and other matters in Clause 5.
Lord Hylton: Will the Minister say whether it is envisaged that the roll-out will be by geographical area, which I assume would be reasonably non-discriminatory?
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Lord Selsdon: Perhaps the Minister could help me. I received a questionnaire the other day, which asked me to tick which ethnic box I was in: was I white Caribbean, or black Caribbean, and so on. Is there now a definition of origin that could be acceptable to everyone?
Lord Avebury: It is the census.
Lord Selsdon: Is it the census? Would that apply internationally?
Lord Dholakia: My noble friend is right; it is for the Minister to answer, but I think we are talking about the categories that have been determined under the census. I often get in as much confusion as the noble Lord, but that is a secondary point to our debate.
I am glad that the noble Lord, Lord Judd, was able to highlight the concern of the Joint Committee on Human Rights. He rightly mentioned the impact and the racial categorisations that are likely to emerge from this clause. Let me spell it out. The Joint Committee says that,
- “to be lawful it will be vital that race plays no part in the process used by the government to decide the order in which it phases implementation of the biometric immigration document”.
This will require very careful scrutiny when the time comes to implement the scheme, and it draws our attention to that.
It is necessary because the Government have often failed to consult the very body that they set up to look at issues of this nature, such as racial profiling and the discriminatory impact on particular groups of people in the community; I refer to the Commission for Racial Equality. Let me bring this point out. When we talked recently about the position of overseas doctors who are no longer qualified to stay in this country and who are to be sent back home, I raised with the Department of Health whether it had consulted the Commission for Racial Equality on the impact of its decision on people coming to take jobs in this country. There had been no such consultation whatever. The commission informed me that that was basically unacceptable, because it should have been consulted.
There is another issue. The Home Office is well aware that it increased the period of qualification in this country for registration from four to five years. I got in touch with the Commission for Racial Equality, and it had no knowledge of that. The commission has a duty to promote equality, and it has established the need for every public body, including government departments, to work out the racial impact of its policies. Has the Commission for Racial Equality been consulted on this? Has its opinion been obtained? If not, why not? Would it not be wise for Ministers to say that if that has not taken place, they will consult the commission, and come back on it? I have no doubt that the Commission for Racial Equality will support, more or less, everything that the Joint Committee has said.
Lord Bassam of Brighton: I am grateful to noble Lords for their contributions to a lively and stimulating debate. I well understand the concerns that have been
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On implementation, Clause 5(2)(a) is designed to enable the biometric immigration document to be rolled out incrementally. If we were to accept Amendment No. 14, the Government would have to introduce the biometric immigration document to all third country nationals more or less simultaneously. We do not think that would be very workable. The purpose of an incremental roll-out is to avoid having a very large number of individuals applying for a biometric immigration document within a specific time frame.
Perhaps I can outline briefly how we intend to conduct that incremental roll-out. In order to ensure that these documents have the optimum chance of success and to best help those subject to their registration, I am sure noble Lords will accept that we need to manage the roll-out with some care. It is best achieved by a gradual and systematic implementation in accordance with a set of rational criteria.
First off, it would be best to include students from outside the EU, those seeking to settle in the United Kingdom having completed a five-year qualifying period, those applying to extend their work permits, and those seeking leave to remain on the basis of marriage to a UK citizen. In addition, it is important to appreciate that rolling out the biometric immigration document incrementally should minimise the burden placed on organisations that may be required to use it. We do not wish to jeopardise the success of the document when its value to border control and employers alike is very clear. It is therefore our intention from 2008 to roll out progressively biometric documents to qualifying foreign nationals subject to immigration control who are already in the United Kingdom and reapplying to stay here. This will allow us to trial the biometric recording and card production processes. These will need to be thoroughly tested to ensure that a robust and reliable system is in place, and it is then our ambition to cover by 2011 all new in-country applications for permission to stay in the United Kingdom. I can assure noble Lords that the roll-out will be undertaken on a rational basis in accordance with existing discrimination laws and the European Convention on Human Rights. To do otherwise would be unlawful and we would be rightly subject to challenge.
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