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Baroness Warsi: My Lords, does the Minister accept that, among other things, the Bill is an opportunity to clarify? As it stands, the position is not clarified, which

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is why Members around the Committee can refer to so many unusual examples. I think the noble Lord, Lord Lester, referred to them as "ludicrous", but I may be quoting him incorrectly. However, the point is that this is an opportunity to clarify. It may well be that, as it stands, the Bill will not allow such incidents to happen, but could we not use it as an opportunity to clarify and to ensure that they do not occur again?

Baroness Thornton: We are clarifying a great deal in the Bill, including the issues raised in the debates that we have had. I share the perplexity of the noble Lord, Lord Alton, at idiotic decisions; there is absolutely no question about that. If only this Government, or any Government, could legislate against people's occasional silliness. Given the details in paragraph 11 of Schedule 3 and the reassurances that I have been able to give the Committee, I hope the noble Lord will feel able to withdraw the amendment.

Lord Lea of Crondall: Perhaps my noble friend can clarify one further point. There is support on all sides of the Committee for ensuring that when the legislation has been enacted-possibly without the amendment of the noble Lord, Lord Alton-guidance will be given to local authorities on dealing with the ridiculous assertions that some have made. Would that not be normal practice? My noble friend used the word "ridiculous". Cannot my noble friend's thoughts on local authorities be put into guidance? I would then be happy with the position of my Front Bench.

Baroness Thornton: My noble friend makes an important point. The Bill and the guidance and codes which will flow from it will give us yet another opportunity to explain how we expect people to conduct themselves and how we do not.

Lord Lester of Herne Hill: Does the Minister agree that the fact that there are idiotic bodies around which misinterpret the law is no reason for changing the law if one can make sure that it is clear? For example, the police have been known to use the terrorism law to stop people taking photographs of the Palace of Westminster; and the Human Rights Act has frequently and ludicrously been blamed for all kinds of things. There is no reason, is there, to give in to stupid people by making the law less effective? We need to make absolutely sure that our courts lay down the law when they interpret it properly, and that vexatious and frivolous cases are ruled out and costs awarded against those who misuse the law.

Lord Elton: My Lords, we need a definition of what is a silly person. What appears to be a silly person to noble and learned Lords does not necessarily appear to be a silly person to an alderman sitting on a borough council. We need to legislate for the general public and not for the courts.

Lord Lester of Herne Hill: I agree. That is why, when we debated the Equality Bill last time, I advocated taking out the notion of religious harassment. I was worried that individual human dignity would be violated by thin-skinned zealots who would then bring crazy

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cases in county courts. There would then be publicity in the Daily Mail which would bring the law into disrepute. I am totally in favour of defining the law, if one can, to avoid that. However, my experience, after a long time at the Bar, is that idiots, stupid people, thin-skinned people and zealots are always around, and the law should not cater for them.

Lord Harries of Pentregarth: Many of your Lordships will accept the argument of the Government but will not be happy to say that silliness just happens and is something that we have to put up with like rain. Can the Minister give any assurance that guidance will be brought before the House to indicate what the boundaries of sheer silliness might be?

Baroness Thornton: The noble and right reverend Lord makes a good point-a point I was trying to make-that you cannot always legislate against what people might decide to do. You have to make sure that your guidance and the clarity of your legislation is adequate and serves its purpose. The Bill already does that. The noble Lord, Lord Lester, read out that part of the Bill and I could not see how it did not cover the anxieties expressed by the noble Lord, Lord Alton.

Baroness Warsi: I do not wish to detain the Minister much longer but I wish to make two points. First, it was guidance from a government department that led to issues about the top shelf and the Bible and the Koran. Therefore, a part of me does not have much faith in any guidance issued to clarify. Secondly, these issues do not relate just to legislation or to how legislation is interpreted. Many of these cases do not come before the courts. These matters are not dealt with in a county court but they are of great importance because they cause unease within our communities. Can the Minister comment on whether, if it is not legislation and the interpretation of legislation, there has been something in the Government's policy and approach which has led to this culture?

Baroness Thornton: No.

Lord Alton of Liverpool: The contributions to the debate on this amendment demonstrate the worth of having discussed this issue. It was good to hear the Minister using the word "proportionate" in her reply. That is what concerns us all. As for "ludicrous", "vexatious", "idiotic" and "silly", I look forward to seeing the noble Lords, Lord Elton and Lord Lester of Herne Hill, sitting with the Minister and working out a new schedule of silly people, silly organisations and silly measures. The tragedy is that these are not "myths"-a word the Minister used earlier, although she meant it perhaps in a wider sense. These are not hypothetical cases but instances which have occurred. There are others, such as the example recently of a decision in a European court to require in Italy the removal of crucifixes from public places in schools where they have been historically placed for many centuries. We are taking some of this argument to absurd lengths and creating a backlash as a consequence. We ought to be careful where we tread.

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I was particularly pleased to hear the remarks of the noble Baroness, Lady Warsi. I concur wholeheartedly with her sense of proportionality. At some time in the future we may well need a short, crisp Bill just dealing with religious liberty and the right of people to hold conscience, not as a way of provoking hateful measures against other groups or oppressing minorities. I hope my own record over 30 years in both Houses of Parliament will demonstrate that you do not have to hate one country because you love another, or hate one faith because you are a member of another, or despise people who have no faith because you have faith. Often we are made up of our own upbringings. My mother, too, was from an overseas community-Ireland. Her first language was Irish, not English. She married my late father who was a Desert Rat and had been demobbed after the Second World War. They married across the denominational divide-not easy in the early 1950s. In Liverpool, the city I represented for 18 years, the Bishop and the Archbishop would not even say prayers with one another at the cenotaph in the 1950s because they did not recognise one another's orders. It was as recently as 10 years ago that members of other faiths were welcomed to the cenotaph in order to celebrate the memory of those who died, from all backgrounds, fighting for this nation in two world wars.

We have travelled a long way and need to tread with great sensitivity in these areas. I was thinking during the debate how fortunate we are in this nation to have the laws that defend our rights. In 1987, after I had helped to cofound an organisation called Jubilee Campaign, which works for human rights all over the world and in particular raises issues of religious liberties of all faiths and denominations, I travelled to Ukraine. I met there Bishop Pavlo Vasylyk, who had spent 18 years in prison. I also met the chairman of the committee for the defence of the church in Ukraine, who had spent 17 years in prison, and the young chaplain who had been at Chernobyl to clear radioactive waste without any protective clothing because he had been caught celebrating liturgies in the open. There are contemporary examples. On Christmas Day of last year, a young man called Robert Park walked over the border into North Korea because of his faith. I am chairman of the All-Party Parliamentary Group on North Korea and have followed the case with great interest; the latest report is that he was beaten almost to death last week. He went there not in a hostile way but in order to challenge a regime that according to the United Nations probably has 300,000 people in its gulags today. The liberties that we enjoy in this country are of huge worth and we must take them seriously. Matters of conscience should matter to us and we must preserve them.

The noble Baroness, Lady Thornton, mentioned provisions already in the Bill, which I had welcomed. I made it clear in my earlier remarks that the schedule applies to education, but I was advised that this was also the place to include an amendment if one wanted to extend some of these questions beyond schools. The Minister cited "acts of worship" and said that it would cover prayer, but prayer in an evangelical, protestant setting is often just two people sitting together and

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praying. Is that an act of worship? She will know that I mentioned that someone was disciplined not because they prayed with someone but because they had offered to. The person to whom the offer was made did not complain, but somebody else did and it snowballed completely out of control.

Lord Lester of Herne Hill: Perhaps I may reassure the noble Lord that the Human Rights Act, which brings into our law the European human rights convention, guarantees freedom of conscience, worship and religion as part of the general guarantees, including the manifestation of one's religion. Therefore, this statute, if we pass it, has to be read in the light of the convention and the Human Rights Act, where there is ample protection covering the issues that he has stated.

Lord Alton of Liverpool: I recognise what the noble Lord, Lord Lester of Herne Hill, said. We both agree that it is ludicrous that the examples which I gave earlier on, true though they are, should have reached tribunals or the courts. However, the fact that they have done, and that there are those who are pursuing a vexatious agenda, demonstrates, as the noble Baroness, Lady Warsi, said, the need for crispness or, as the noble and learned Lord, Lord Mackay of Clashfern, and other noble Lords indicated, the need for it to be in guidance. That would be right signal that we are strongly opposed to such cases coming before tribunals and that they are not in accordance, as the noble Lord has just said, with the way in which statute currently operates.

There may be need for some amendment. I shall reflect carefully on what the Minister said. I am extremely grateful to her and all noble Lords who have participated in this short debate. I beg leave to withdraw the amendment.

Amendment 58ZA withdrawn.

Amendment 58ZB

Moved by Lord Ramsbotham

58ZB: Schedule 3, page 139, line 8, at end insert-

"as long as any decision or thing done is a proportionate means of achieving a legitimate aim"

Lord Ramsbotham: My Lords, I declare an interest as a member of the Independent Asylum Commission because it was in this capacity that I was alerted to serious concerns about the potential implications of the regressive immigration exception proposed in paragraph 16 of Schedule 3 for disabled asylum seekers and migrants, including those with diagnosed HIV. This is not the first time that concerns about this exception have been raised, because a similar amendment was drafted and tabled by the Equality and Human Rights Commission in Committee in the Commons, where the Government failed to give sufficient reasons for this broad exception being necessary and the need for further debate on the exception was noted.

I welcome the fact that the Bill prohibits for the first time direct discrimination against disabled people in the provision of goods and services. I note, however,

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that, in relation to immigration, the Bill creates a new exception where direct discrimination is not prohibited if it is on the ground that doing so is necessary for the public good.

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Previously, disability discrimination in the provision of goods and services was prohibited apart from where it was a proportionate means of achieving a legitimate aim or in certain limited circumstances. Several disability charities, led by the National Aids Trust and backed by RADAR and the Disability Charities Consortium, have voiced their concerns about this new exception where there is no requirement to proportionality. In addition, it is not clear what could fall within the overly broad scope of "necessary for the public good".

For that reason, my amendments return to the approach under Section 21D of the Disability Discrimination Act requiring a legitimate aim and proportionality in disability discrimination. The Joint Committee on Human Rights' scrutiny of the Bill supports this amendment's approach. It states that the Bill should be amended to make clear that any decision to exclude someone from the United Kingdom must achieve a legitimate aim and be objectively justified in line with the standard proportionality analysis. This is what these amendments will do.

The JCHR also has concerns that as the Bill stands this exception could permit treatment of disabled people that could violate their right to equal treatment as well as potentially threatening other rights, such as the right to life protected under Article 2 of the European Convention and the Article 3 right to freedom from inhuman, degrading treatment.

What would be the implications if the exception remained as proposed? I have been contacted by these organisations which are concerned that the exception could be used to exclude disabled people on grounds of cost. For example the additional cost of allowing a migrant with learning difficulties to enter or remain in the United Kingdom, and also on grounds of public health-allowing migrants living with HIV to enter or return or remain in the United Kingdom. In terms of HIV, this could have potential individual and public health implications if people feel unable to disclose their HIV status or access treatment. It may also discourage migrants from seeking an HIV test, with obvious public health consequences including the onward transmission of the virus.

The Government may reassure us that this exception will not be used in this way. However, with this power on the statute book there is nothing to stop a future administration using the power in these ways. In addition, the exception seems to be directly opposed to the policy set out in the UK Border Agency's equality scheme which states that staff are,

I have already mentioned the JCHR's grave concerns about this exception. The Government proposed a similar reservation to the United Nations Convention on the Rights of Persons with Disabilities to retain the

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right to introduce wider health screening for applicants entering or seeking to remain in the United Kingdom. The Joint Committee, in its report on the UN convention, noted that the Government have not provided an adequate explanation of their view that the proposed reservation is necessary. It goes on to recommend that the Government abandon this reservation. There are similar concerns that the Government have not provided sufficient reasons as to why this exception is necessary.

There is international precedent in this area that underlines the need to amend the current exemption. Worryingly, a similar exception in Australia has been used to separate disabled migrants from their families. These amendments will safeguard against this approach and ensure that direct discrimination against disabled people is permitted only where there is a legitimate aim and proportionality. I beg to move.

Baroness Warsi: First, I make it clear that we support the Government in retaining the reservation. We supported them when the reservation was introduced with regard to the United Nations Convention on the Rights of Persons with Disabilities to retain the right to introduce wider health screening for applicants entering or seeking to remain in the United Kingdom. We have therefore tabled this probing amendment with the aim of asking the Government some questions pertinent to this area, and I hope that the Minister will be able to furnish the noble Lord, Lord Ramsbotham, and me with some answers to our queries.

The amendments tabled by the noble Lord would greatly narrow the exceptions to the application of Clause 29. Amendment 58ZE, for example, would mean that even the Secretary of State could not make immigration decisions without being subject to the prohibition of discrimination in the provision of goods and services. The amendments would go too far. We agree that the reservation of the public good is an acceptable one. The Explanatory Notes state that it is a new exception that was obviously not required before, because the previous Disability Discrimination Act did not prohibit direct discrimination in the provision of services or the exercise of a function, because disability-related discrimination that did apply to these areas already included the proviso that it could not endanger the health or safety of any person. On those grounds, can the Minister assure the Disability Charities Consortium that this is not in any way a regressive step?

Moreover, can she inform the House what the exact intention is regarding the interpretation of the phrase "for the public good"? The Disability Charities Consortium is nervous that it may be used to apply to cost-for example, the additional costs that may be incurred if a migrant with learning difficulties is allowed to enter the UK. Does the Minister envisage that this example would be affected by this part of the Bill? I would be interested to hear an explanation of where it is hoped that the threshold of "for the public good" would lie. Moreover, what guidance is available to aid interpretation in this area?

Is there a concern that, if it becomes well known that certain conditions would not be welcome, that might discourage potential immigrants from having

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tests to identify them? Is there any reason to believe that this could be a legitimate worry? I look forward to the Minister's response.

Baroness Howe of Idlicote: I welcome the amendments of my noble friend Lord Ramsbotham and support the points that he has raised, and some of the question raised by the noble Baroness, Lady Warsi.

It seems clear that the current exception could permit a non-citizen who develops cancer, say, to be expelled from the UK if it is deemed necessary for the public good-and it will be very important to hear what that definition is-because of the possible cost of their cancer treatment to the NHS. As the National AIDS Trust has suggested, it could result in families being split up if, for example, one member has a disability such as HIV and they are refused entry because of the costs to the health system over time. That may not be the Government's intention, and I certainly hope that it is not. However, if it is not, it is even more important to amend the Bill at this stage and clarify the situation. I note that in Committee in the other place, the Solicitor-General attempted to reassure colleagues that a legitimate aim and proportionality would be considered by the courts when applying this exception. However, she went on to note that that particular route seemed somewhat circuitous.

Amendments 58ZB, 58ZC and 58ZE would make clear in the Bill-and there is a lack of clarity, as we have argued on previous Bills, though not of this nature-that the exception could be applied only when it is a genuinely proportionate means of achieving a legitimate aim.

I end by reminding noble Lords that disabled migrants are some of the most vulnerable people in our community, and they face potential discrimination from many different angles. They are also a group who can and indeed have contributed a great deal to our society and who deserve protection from discrimination in the same way as their UK-citizen counterparts. It is therefore vital that the Government clarify in the Bill that this new exception can be used only in limited circumstances when it really is a proportionate means to a legitimate aim.

Lord Lester of Herne Hill: These amendments raise a very important issue about the principle of proportionality as it should apply to immigration control in the context of equality of treatment. We support these amendments, but we wonder why the movers of them have restricted them only to disability. In Part 4, one finds that a similar problem arises in relation to ethnic origins-paragraph 17 covers that-and exactly the same problem arises with regard to religious or belief-related discrimination in paragraph 18.

It is not true that the department that I once had the privilege of serving-the Home Office-rejoices in the maxim that power is delightful, and absolute power absolutely delightful, but it is true that it has been a tendency of the Home Office to seek blanket exceptions in this area in order to allow it to exercise its powers as it thinks fit. Therefore, the question is whether the principle of proportionality should apply not only in relation to disability, as these amendments seek, but in

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relation to ethnicity and religion as well. I see no reason why that principle should not be written into this part of the Bill.

I will give one example from my own professional experience. I acted for the European Roma Rights Centre in the famous case that went to the House of Lords. The Government were sending an immigration officer to Prague airport to prevent Roma asylum seekers getting on planes to come to this country to seek asylum. It was being done on a racial, ethnic basis. There was a similar exception in the existing Race Relations (Amendment) Act to that which we find in paragraph 17. It was then discovered that there was, as was held by the House of Lords, an unlawful, racist policy operating in relation to immigration control. The Minister was forced to withdraw his or her authorisation of the policy before the case was decided.

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