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We have heard a lot about religion so far today, and I am delighted that the Lords spiritual are here in force. I ask rhetorically: how can it be right, for example, that an immigration officer can refuse someone entry clearance or leave to enter in relation to religious or belief-related discrimination? Article 9 of the European Convention on Human Rights protects manifestation of religious belief as a fundamental right. Article 14 protects it "without discrimination". It seems to me that there will be litigation if the powers under paragraph 18 are exercised. There are also very serious problems on disability.

For my part, I support the amendments in the name of the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe of Idlicote, but I believe that the general principle of proportionality-that you pursue a legitimate aim, and that the means employed are no more than necessary to achieve the aim-must apply to the exercise of all of these powers. I look forward to an assurance from the Minister that that will be the case.

4.45 pm

Baroness Thornton: My Lords, currently paragraph 16 of Schedule 3 provides a limited exception to the prohibition on disability discrimination in Clause 29 in respect of certain decisions taken by the immigration authorities. The inclusion of this exception was required because there is no longer a specific justification in the disability provisions of the Bill for differential treatment on the grounds of protection of such things as health and safety and the rights and interests of others, as is currently the case under the Disability Discrimination Act. Amendments 58ZB, 58ZC and 58ZE would remove the current requirement that these exceptions can be used only when it is necessary for the public good, and replace it with a standard proportionality test.

We are resisting these amendments because the effect would be to widen, rather than to narrow, the circumstances in which this exception could be used-which was, I suspect, the noble Lord's intention and was mentioned by the noble Baroness, Lady Warsi. When drafting this exception, the wording was chosen very carefully. It is anticipated that the main purpose of this exception will be to enable a public health protection policy which allows people to be screened for infectious diseases and potentially refused leave to

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enter because they have such an infectious disease. That is what happens at the moment, as noble Lords will know, in the case of TB, for example.

However, this is not exclusively what it is about. For example, under the Mental Health Acts, the mental health review tribunal has the power to recommend the removal of a person from the UK for the wider public good. In the main, the tribunal will also be concerned with whether removal would assist the subject-that is, be in their best interests. In addition, some passengers on arrival at ports or airports can behave in a manner that raises concerns about the state of their mental health. A port medical inspector may be required to examine an arriving passenger and, in some instances, will recommend refusal of entry to an individual on the grounds that they may pose a risk to the wider public or themselves. This exception ensures that these practices remain lawful.

As currently drafted, the exception can be used only when it is necessary for the public good. The concept of necessity imposes a high threshold for the immigration authorities to meet. Any action must be not only desirable or one of a number of means of achieving the aim; it must be the only way to achieve a certain result or effect. In comparison, allowing any action to be taken if it is proportionate to do so is a weaker test. For example, a decision to refuse entry to the UK of a foreign national with a contagious illness would be considered necessary only when other less stringent measures would not protect the public-for example, imposing a condition such as the need to undergo treatment or to remain in quarantine for a set period. By comparison, removing the same person from the UK could be considered a proportionate way of protecting the public, as long as it could be shown that these less restrictive means might not be as effective. These amendments would also remove the further limitation of the exception imposed by the public good requirement. This would mean that action could be taken for whatever end, provided it is in furtherance of a legitimate aim.

Amendment 58ZD would also remove the public good requirement. The exception could be used to justify any action provided it was necessary; obviously, we do not think that would be right. The effect would be, again, to widen the scope of this exception and allow the immigration authorities to refuse foreign nationals who are disabled permission to enter or remain in the United Kingdom for any reason, provided it is necessary to do so.

We believe that we have got the balance right by imposing the higher threshold of requiring any action taken to be necessary to protect the public good. When including an exception in the Bill, our intention was to ensure that the UK Border Agency would continue to deliver its immigration and public protection duties, but also to ensure that it is not able to take any action that it is not currently permitted to take. We think that the current drafting of the exception achieves this.

I refer to a point raised by the noble Lord, Lord Ramsbotham, about compliance with Articles 2 and 3 of the ECHR. The noble Lord is mistaken to say that immigration authorities would be permitted by this exception not to comply with their obligations under

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the Human Rights Act, including Articles 2 and 3 of the convention. They are subject, like all other public authorities, to the provisions of the Human Rights Act and this exception, like any other provision of domestic law, can only be used in a way that is compatible with the overarching rights in the convention.

The noble Baroness, Lady Howe, asked whether this exception would be used to refuse a disabled person permission to enter because of the potential cost It is not the intention to refuse leave to enter or remain to a disabled person who meets the requirements of the immigration rules-it would not be relevant, certainly not relevant on the basis of cost-or indeed, to seek to remove someone with a disability because they are receiving NHS care.

The noble Lord, Lord Ramsbotham, raised the issue of HIV/AIDS and asked whether the exception would be used as a means of refusing permission to enter or remain in the country to those with HIV/AIDS. The answer is no. Prospective migrants are not currently required to declare their HIV status or undergo HIV testing, and it is the Government's policy that HIV testing in the UK is available on a voluntary and confidential basis. Having HIV or AIDS is not in itself grounds for refusal under the immigration rules and there are no plans to change this.

The noble Lord, Lord Lester, raised the issue of religion and belief exception. There are indeed individuals whose religious beliefs are so extreme that it would not be desirable for them to enter or remain in the UK where their presence is not conducive to public good or is undesirable. The immigration authorities would be concerned about the behaviour of such individuals, but in practice it can be difficult to make a distinction between belief and behaviour. We would want the immigration authorities to be confident that they can exclude individuals in such cases without having to fear an allegation of discrimination.

The noble Lord also spoke about the race exception being broader than other exceptions. The race exception is broader because, by the very nature of immigration work, a large number of our policies require differential treatment on the grounds of nationality; notably, nationals from the EU member states benefit from freedom of movement into the UK compared with those from non-EU countries. There are, however, many other occasions where immigration authorities may need to differentiate on the grounds of nationality. For example, immigration officers give extra scrutiny to entrants of a particular nationality if there has been evidence of immigration abuse by people of that nationality. Disability and religion or belief exceptions are narrower because they are intended to operate only in very particular circumstances-for example, the public good.

Lord Lester of Herne Hill: I thank the Minister for her explanation. We will come back to this on Report, but I just ask her to reflect on what I am about to say. The test of necessity for public good is a classic example of a test of proportionality. If the Minister is saying that the amendment is not necessary because that test is satisfied for disability, I would agree. However, the same problem arises for religion, and the conducive-to-the-public-good test is not the same as the test of necessity for public good or proportionality. As far as

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race is concerned, the Minister's response is that you need to discriminate on the basis of nationality in immigration control. I agree, but this exception does not cover nationality, it covers "nationality or ethnic origins", and "ethnic" means race.

My point is that there ought to be a common standard regulating the exercise of these controls on the basis of the principle that the means must be justified as well as the end. Therefore immigration control must be exercised proportionally. If that is not accepted by the Government, they will get a heap of trouble on religion under the European Convention on Human Rights. Could the Minister please reflect on that before Report?

Baroness Thornton: I absolutely undertake to reflect on that issue. The noble Lord has made a very interesting point.

Returning to these amendments, I would like to provide further reassurance. The UK Border Agency's use of these exceptions is subject to monitoring by its chief inspector. In addition, all policies and decisions taken by the immigration authorities are already subject to the provisions and safeguards in the Human Rights Act.

The noble Baroness raised the issue of guidance. Guidance instructions to immigration staff are available in the public domain, including via the UK Border Agency's website, in order to provide transparency in relation to the activities of the immigration authorities.

For the reasons outlined above, I ask the noble Lord to withdraw Amendment 58ZB and not to press Amendments 58ZC and 58ZE, and I ask the noble Baroness not to press Amendment 58ZD.

Lord Ramsbotham: I am grateful to the Minister for that explanation. Having read the debate in the other place and the Solicitor-General's attempts to convince the House of her response, I am not surprised that at the end of our debate there is a great deal still to consider, not least with regard to what has been said by noble Lords on the Floor of this Chamber. The noble Baroness, Lady Warsi, the noble Lord, Lord Lester, and my noble friend Lady Howe have all raised points which I should like to go away and consider, possibly in consultation with the Minister. I do not believe that this is an issue that we can just pass; in the light of what has been said this afternoon, we need to consider it seriously and bring it back on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 58ZB withdrawn.

Amendments 58ZC to 58ZE not moved.

Amendment 58A

Moved by The Lord Bishop of Southwark

58A: Schedule 3, page 143, line 2, at end insert-

"Part 5AMarriageGender reassignment

A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in reliance on section 5B of the Marriage Act 1949 (solemnisation of marriages involving person of acquired gender)."

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The Lord Bishop of Southwark: My Lords, my right reverend friend the Bishop of Winchester has had to return to his diocese and so is not in his place. He apologises and has asked me to move this amendment, which stands in his name.

The purpose of the amendment is essentially to preserve an aspect of the existing law enacted by Parliament as recently as 2004. Within the overall scheme of the Bill, the issue at stake may seem minor but it raises the possibility of the law coming into head-on collision with some religious conviction.

In short, the amendment preserves the effect of an exception for Anglican clergy in England and Wales provided for in the Gender Recognition Act 2004. That exception permits, but does not require, a member of the clergy of the Church of England or the Church in Wales to decline to conduct the marriage of a person who is of an acquired gender.

The Church of England does not have a settled position on gender reassignment but respects and upholds the conviction of its clergy who would not, as a matter of conscientious conviction, be able to solemnise marriages where one of the parties had an acquired gender under the Gender Recognition Act 2004. When that Act was passed, a specific provision was inserted into the Marriage Act 1949 so that a priest of the Church of England or the Church in Wales, who would otherwise be under a legal obligation to solemnise the marriages of his or her parishioners, was not obliged to solemnise the marriage of a person if he or she reasonably believed that the person's gender was an acquired gender under the 2004 Act. That was consistent with established practice in legislation dating back to 1857, when the first legislation on judicial divorce provided that a member of the clergy did not have to solemnise the marriage of a divorced person.

In 1907, provision was made so that clergy who had a conscientious objection to doing so could not be required to solemnise matrimony in the case of the marriage of a man to his deceased wife's sister. Other examples include provision contained in the Matrimonial Causes Act 1965 in respect of the remarriage of divorced persons, and provision contained in legislation dating from 1986 and 2007 relating to marriages between persons who would previously have been within the prohibited degrees of kindred and affinity.

There is, then, a consistent line here, which is that Parliament has not sought to impose statutory requirements on the clergy that are contrary to their religious convictions and obligations.

Under the Bill, solemnising matrimony would amount to either the provision of a service to the public or, if not, the exercise of a public function. Without the exceptions that this amendment provides, a member of the clergy who declined to conduct a marriage because one of the parties had an acquired gender would be acting unlawfully.

It will either amount to discriminating against the person by not providing the person with a service, or alternatively would infringe the prohibition on doing anything that amounts to discrimination in the exercise of a public function. We understand that the absence from the Bill of an exception for Anglican marriages is a drafting oversight rather than a deliberate policy

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change. This being so, we hope that the amendment can be treated as a matter of tidying up a loose end in the Bill and that the Minister will be able to accept it.

5 pm

Amendment 58A concentrates on the Church of England and the Church in Wales, because at the point of placing the amendment, the legal advice to the Government Equalities Office was that marriages solemnised by non-Anglican ministers in England and Wales, and religious marriages in Scotland, were not at risk of being caught by the wording in Clause 29 regarding service to the public, facilities and public function. We understand, however, that the legal advice since then has developed, with reference to the Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No. 2) Order 2005, No. 916. Hence the amendment of the noble Baroness, Lady Gould, which is welcome. However, we also look for an assurance that the Minister is satisfied that the amendment will fully achieve what it has been designed to achieve. I beg to move.

Amendment 58B

Moved by Baroness Gould of Potternewton

58B: Schedule 3, line 8, at end insert-

"(2) A person (A) whose consent to the solemnisation of the marriage of a person (B) is required under section 44(1) of the Marriage Act 1949 (solemnisation in registered building) does not contravene section 29, so far as relating to gender reassignment discrimination, by refusing to consent if A reasonably believes that B's gender has become the acquired gender under the Gender Recognition Act 2004.

Gender reassignment: Scotland

(1) An approved celebrant (A) does not contravene section 29, so far as relating to gender reassignment discrimination, only by refusing to solemnise the marriage of a person (B) if A reasonably believes that B's gender has become the acquired gender under the Gender Recognition Act 2004.

(2) In sub-paragraph (1) "approved celebrant" has the meaning given in section 8(2)(a) of the Marriage (Scotland) Act 1977 (persons who may solemnise marriage)."

The Deputy Speaker (Viscount Simon): Amendment 58B is an amendment to Amendment 58A.

Baroness Gould of Potternewton: My Lords, I rise to tidy up another piece of the Bill, following the right reverend Prelate. I very much appreciate his welcome of this amendment, and I also welcome his. The purpose of the amendment is to allow those who give consent to solemnisation of marriage the facility not to solemnise marriages involving those they suspect of having acquired their legal gender under the Gender Recognition Act 2004, without facing a discrimination claim involving gender reassignment under the Bill; and to recognise that the Anglican Church is not the only denomination that solemnises marriage.

There is no doubt that the Gender Recognition Act 2004 was a landmark piece of legislation that allowed transsexual people to be finally recognised in their true gender. Since it came into force, well over 2,300 people have taken the opportunity to gain a gender recognition certificate. However, it has to be recognised

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that this situation might not be accepted by all. Surely it is a sign of a healthy and mature society that we can recognise someone's true gender while also recognising that some people of faith-who undertake the important duty of solemnising marriage-may not accept that a man or woman can change gender under law, due to their religious convictions.

As the right reverend Prelate indicated, this issue was recognised during the passage of the Gender Recognition Act, which amended the Marriage Act 1949, to provide clergy of the Church of England and clerks in the Church in Wales with a clause that releases them from their obligation where they reasonably believe one of the parties is marrying in his or her acquired gender. The right reverend Prelate, in his amendment, rightly recognises that this facility should continue and that the Bill should not put that into any doubt by exposing those who take advantage of it to claims of discrimination.

Amendment 58B ensures that celebrants in Scotland and those of other faiths in England and Wales who solemnise marriage should have the same facility. The position of religions other than the Church of England and the Church in Wales also need to be clarified, in case there is doubt that the Bill inadvertently alters their position.

The amendment also deals with people who give consent for marriages to be held in particular buildings-registered buildings under the Marriage Act 1949. Marriages cannot be solemnised in a registered building,

This permission is given on an individual basis. When permission is refused because the officiating minister reasonably believes that a party to the marriage has transitioned from one gender to another, the amendment ensures that that would not be unlawful discrimination.

The amendments are intended to preserve the status quo, and I hope that they will be supported. I beg to move.

Lord Wallace of Tankerness: I share and endorse the comments of the noble Baroness, Lady Gould, on the welcome importance of the Gender Recognition Act 2004. I seek clarification of the position with regard to Scotland, as the issue has been raised by the principal clerk to the General Assembly of the Church of Scotland. There is a difference in as much as Schedule 4 to the Act makes specific provision for the Church of England, which is reflected in the amendment of the right reverend Prelate the Bishop of Winchester, as moved by the right reverend Prelate the Bishop of Southwark. No such equivalent provision was made for Scotland in Schedule 4 to the 2004 Act. There is a difference in that in England there is a duty on the party of the clergy whereas in Scotland there is not the same duty with regard to agreeing to a solemnisation. It is only at the point of solemnisation that it is a public function and the decision on whether to solemnise could arguably be a religious function.

I also understand that this would be a matter for the Scottish Parliament, given that marriage law is a wholly devolved matter. However, under Schedule 5 to the Scotland Act 1998-in Part II, Head L2-equal

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opportunities is a reserved matter. There could conceivably be a dispute over where the boundary lies between the competence of the Scottish Parliament and the competence of Westminster, but ultimately that would be a matter for the courts. It would be helpful if the Minister could indicate whether, if a similar protection were given to clergy in the Church of Scotland or other denominations within Scotland, it would be fully within the competence of the Scottish Parliament to legislate.

Lord Hunt of Wirral: In view of what the right reverend Prelate the Bishop of Southwark, said about the way in which legal advice has developed, I had better quickly declare my interest as a practising solicitor and the other entries in the Register. I am not sure what has happened, as the whole purpose of the Bill is to clarify and consolidate. Reading across the amendments that are being put forward, there is an attempt to make sure that everyone understands where they will stand and whether the status quo is being changed in any way. A lot of our debates will be about that. The world outside wants clarity, which is certainly the message that I have been receiving loud and clear from so many different lobbies.

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