Schedule 3

Equality Bill – in a Public Bill Committee am 2:30 pm ar 18 Mehefin 2009.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Services and public functions: exceptions

Photo of John Mason John Mason Scottish National Party, Glasgow East

I beg to move amendment 39, in schedule 3, page 150, line 6, leave out paragraph 1.

Parliament is exempt from the ban on discrimination, harassment and victimisation in the exercise of its public functions. This amendment would remove that exemption.

Photo of Ann Winterton Ann Winterton Ceidwadwyr, Congleton

With this it will be convenient to discuss the following: amendment 40, in schedule 3, page 150, line 14, leave out paragraph 2.

Parliament’s legislative functions are exempt from the ban on discrimination, harassment and victimisation. This amendment would remove that exemption.

Amendment 41, in schedule 6, page 169, line 15, leave out paragraphs 2 and 3.

Political appointments, honours and peerages are exempt from the ban on discriminating against office-holders. this amendment would remove those exemptions.

Amendment 50, in schedule 18, page 216, leave out lines 21 to 24.

The Commons, the Lords, the Scottish Parliament and the Welsh Assembly are exempt from the public sector equality duty. This amendment would remove those exemptions.

Photo of John Mason John Mason Scottish National Party, Glasgow East

The amendments are broadly probing provisions. I want to hear the Government’s explanation of some of the exemptions under the Bill. Clearly, we all accept that there are areas where it would be inappropriate to apply discrimination law—or to apply it fully—because it could have harmful side effects. I know that people will sometimes say things like, “Equality is an absolute and there can be no exemptions,” but the reality is that we can and should apply equality and discrimination law pragmatically and flexibly because different considerations apply in different cases. If we do not, the Bill would be very short indeed and would simply say, “Discrimination on these grounds is prohibited,” and we would let the courts work it out.

Of course, even the act of selecting which grounds are protected places limits on equality, and clearly people could be discriminated against on a number of issues that are not included. There are limits on exemptions in equality law. Paragraph 1 of schedule 3 exempts Parliament. Paragraph 2 exempts legislation. The functions of Parliament, including the Committee and the process of preparing, making or considering a Bill, whether of this Parliament, the Scottish Parliament or the National Assembly for Wales, are not bound by the strictures of equality law.

The exemptions may make perfect sense, but I wait to hear from the Minister what they protect against and their purpose. If their purpose is to stop people making mischief, bringing endless legal claims and tying up Parliament in endless litigation, that would be a bad thing. However, I note that the exemptions are total, broad and unrestricted. They do not contain the sort of hoops through which people have to leap if they want to obtain the benefit of other exemptions for any of the other strands.

New clause 15 would have a similar effect, and I must admit that I have some sympathy for it. However, we seem to be inconsistent in allowing continuing discrimination by some organisations, but not others. Paragraphs 2 and 3 of schedule 6 exempt political appointments, honours and peerages. Again, I understand why the Government want to maintain the freedom to make important appointments without being tied up in litigation over allegations of discrimination. The Prime Minister may not be able to get rid of a Cabinet Minister simply because he had clever lawyers who claimed that his dismissal was related to a protected ground. Furthermore, I observe that religious groups and others feel the same way about appointing youth workers and pastoral workers.

Amendments 39 to 41 draw attention to the exemptions. Amendment 50 would exempt the two Parliaments and the Welsh Assembly from the public sector equality duty. It is a broad exemption. I shall not say anything more about it, but I think that I have made my point. I could have tabled probing amendments to paragraphs 21 and 22 of the schedule, which exempt insurance, but we accept that the insurance industry needs some protection. The exemptions are pretty comprehensive. I understand the need for that, although like other exemptions, the details and the limits might be subject to debate. I hope that the Minister will give us a full explanation and justification for each of the exemptions, because the subject of exemptions is an important one.

There are a lot of exemptions, and some of them are very broad. Therefore, we must not say to the Churches—as the Solicitor-General appeared to suggest when we heard  evidence from them—that there is something unusual or shocking about wanting exemptions, or something wrong with wanting to ensure that those exemptions are wide enough. We go into great detail in protecting the insurance industry, sport and so on, so surely we can give our attention to protecting everybody’s freedom.

The danger the Government face is that by allowing broad exemptions for their own activities, but insisting that exemptions for religious groups, and others, should be as narrow as possible, people will conclude that there is one rule for the Government and another rule for everybody else.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Gentleman raises a fair point that these are very wide exemptions and he seeks, by probing their elimination, to question the justification for the Whip. I think that he is right to do that. The critique is that the exemptions are too wide, not that the restrictions on them that apply to other organisations, such as religious organisations, are too narrow. When Liberty urged the Committee to probe the Government on those points, I do not think that it had in mind that the religious exemption for discrimination should be widened. I think it had in mind my interpretation, which is that the exemptions are too wide.

I look first at the application of paragraph 1 of schedule 3, which is about section 27 and regards discrimination where services apply and the provision of those services to “a function of Parliament” and

“a function exercisable in connection with proceedings in Parliament.”

It goes on to explain:

“Sub-paragraph (1) does not permit anything to be done in contravention of that section to or in relation to an individual unless it is done by or in pursuance of a resolution or other deliberation of either House or of a Committee of either House.”

The amendment would omit the whole of paragraph 1 and that could be quite tricky.

What examples do the Government seek to reserve other than the right of Parliament to legislate? Of course we recognise that we cannot have legislation in normal statute that prevents Parliament from legislating as it wishes. However, in terms of the way that the House functions, is it right for there to be unjustified discrimination? Surely if something happens in the House in order to make it run efficiently, it would be possible to justify that discrimination.

For example, if it was felt necessary to make people who wanted to secure a seat in the Chamber for the rest of the day attend prayers, even if they did not wish to participate in them, that could be objectively justified. Excluding the way that Parliament works from the law, prevents anyone from challenging that provision and requiring an objective justification for the fact that in order to retain a seat—unless they can fill in a pink card to demonstrate that they have been on a Select Committee or another Committee, and could not be there for prayers—they must attend prayers. At least people are not forced to go along with the prayers if they are not of that religion, but I do not think that there are many places where adults are expected to sit through prayers against their will in order to secure a service. It is not a big deal, and I have not sought to highlight it as such, but it is an example of where if such a measure can be justified, it should be justified.

The issue goes even wider. There are some local councils that seek to introduce prayers, for example, as part of their proceedings. A parish councillor in Devon, Councillor Boughton, was referred by his council for disciplinary procedures for refusing to participate in prayers, even though he was not religious. He preferred to listen to his iPod during prayers and the other councillors felt that was a breach of his conduct. People might feel that that was wrong, but if people elected to public office are expected to do something and do not want to because they do not share that religious—or any other—view, they should not, then, encounter barriers that prevent their full participation.

The amendment to schedule 6 is also quite apposite because the exemption is extremely wide and it is not clear why. I hope the Minister will explain the justification for such a wide exemption. To say that life peerages and honours do not have to be objectively justified when they might appear to be discriminatory seems peculiar given that that is a route in this country to status, access to power and—arguably—to some special privileges. It is reasonable, then, to ask for them to be subject to the need for justification if questioned, rather than having a carte blanche exemption. The hon. Gentleman has done a service on behalf of Liberty in identifying how wide these exemptions are.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Amendment 39 would remove the exception for parliamentary functions from the prohibition on discriminating against harassing and victimising a person when exercising a public function—it would make Parliament liable for all of that.

The exception is designed to protect Parliament’s historic privilege to regulate its own internal affairs. Both Houses of Parliament are exempt in their entirety—totally—from the prohibitions on discriminating in the exercise of a public function. The exclusion from coverage here is much more tightly drawn than the hon. Gentleman has been perfectly happy to live with until now. The exclusion will effectively apply only where the action in question has been the subject of some form of deliberation of either House. It is about parliamentary functions and is not a blanket exception. It does not, for instance, allow the parliamentary restaurant or shop to discriminate on the basis of race, religion, belief, and so on. Nor can someone be refused access to the House of Parliament on the basis of any protected strand; it is limited and applies only where needed. I can see no valid reason for removing it. We have all lived happily until now with a far wider exception.

Photo of Evan Harris Evan Harris Shadow Science Minister

The Minister has been helpful in clarifying that this is a narrowing and that is welcome. However, she is happy, but it is not necessarily the life of the third party ever to be happy in this place. [Hon. Members: “Ah!”] Thank you. I am grateful for voice of sympathy, which Hansard will record.

When it came to the parliamentary pension scheme, which is otherwise over-generous, it retained—as with other public sector pension schemes—discrimination in survivors’ benefits for same-sex couples. It was a struggle for me, and others, some years ago, to get that to change. I do not see why things like that—which were, I fear, the subject of a resolution—should not have even had to have regard to discrimination thinking. It pre-dated rules on civil partnerships, and so on. However, had we  had those rules, it would not have had to abide by them and that would have been a loss. I hope the Minister recognises that it has some relevance, even where it is the subject of deliberation.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

The position, however, is much better under the Bill than it has been historically and I have said all I can about that.

Amendment 40 would remove the exception about preparing, making, approving or considering primary legislation and some forms of secondary legislation. The exception goes hand in hand with parliamentary functions, as it is about protecting the constitutional principle of sovereignty. It is in current legislation, and it is important because it allows legislation to be debated and made, which, for entirely legitimate reasons, may have a differential impact on people with particular protected characteristics. If it was not there, we would have difficulty legislating to introduce new maternity benefits, for example. However, that does not mean that public bodies do not have to consider the differential impact on various groups before legislation is introduced. But I am sure that that point is pretty plain.

Amendment 41 would bring within the meaning of personal or public office holders, political office holders and persons who are either being considered for, or have already been awarded honours or dignities by the Crown, giving them protection under clauses 46 to 48 of the Bill.

Schedule 6 defines what constitutes a personal or public office under the Bill, largely replicating existing law and provides that political office holders and recipients of dignities and honours conferred by the Crown are not personal or public office holders under the Bill. The kinds of posts listed, such as offices of the House held by Members of it, are not the kinds for which discrimination law would be an appropriate remedy. They are political matters, which are subject to political concerns and can be raised in a political setting if there is any unfairness, rather than in an employment tribunal, which would be an odd place to raise them.

People considered for, or awarded honours or dignities may be protected from discrimination, victimisation and harassment through the provisions applicable to the performance of public functions under part 3 of the Bill. But the conferral of honours and dignities does not amount to employment, and any claim in respect of that is properly addressed by the county courts, as is already the case under the majority of existing discrimination legislation. We think that it is right to maintain—but we have also tried to harmonise—the existing approach, and I hope that we have succeeded.

Amendment 50 would remove the exception for the House of Commons, the House of Lords, the Scottish Parliament and the National Assembly for Wales from the requirements of the equality duty. It is the same point—it is important, in constitutional terms, for our legislative bodies to be free to debate matters and pass laws without being obliged to give due regard to the need to advance equality and foster good relations every minute of the process. I think the General Synod is also a legislative body, but the amendment stops short of removing the exception for that.

I also point out that the House of Commons has not only an equality scheme, but an equality and diversity scheme—since that is a major interest of the hon. Member for Glasgow, East—on which we will be consulting shortly. This establishment and the House of Lords take equality and diversity seriously, but their constitutional function needs to be protected in the way that I have I said.

Photo of John Mason John Mason Scottish National Party, Glasgow East 2:45, 18 Mehefin 2009

I thank the Minister for explaining her position in some detail, and I appreciate the logic for the different exemptions. Some of the public think that Parliament has got a little bit out of touch with reality in recent months, and that is something that we will probably have to come back to at some stage. Parliament has a constitutional role, but the idea that we might move, at some stage, towards a written constitution, and Parliament might be slightly constrained in what it can do, might not altogether be a bad thing. None the less, with the reassurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I beg to move amendment 162, in schedule 3, page 151, line 14, at end insert

‘to the extent that the discrimination is a proportionate means of achieving a legitimate aim.’.

This amendment imposes the ‘legitimate aim’ test when armed forces want to treat a person detrimentally.

The amendment would impose a legitimate aim test when the armed forces wish to treat a person detrimentally. There are situations where people will not be able to undertake their duties, in cases of disability, for example, which would affect combat effectiveness and is relevant. Not every disability would be prohibitive, perhaps. Obviously flying or driving would be problematic for someone with impaired sight, but there may be disabilities that would not automatically be listed in that category that would result in the opportunity to take part in a suitable form of combat being denied. Perhaps it would be better to have a legitimate aim test that could assess, on a case by case basis, the appropriateness or not of discrimination and whether it is justifiable.

The Equality and Human Rights Commission suggested that their broad position on all exceptions is that they would have to be fully compliant with European law and therefore should be subject to the requirement of being a proportionate means of achieving a legitimate aim.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I can see what the hon. Lady is saying. There are two things that I would say to that. First, I do not think it is right to assume that just because clause 27(6) would not apply to the armed forces that that automatically means they are going to discriminate. The reason for the exemption reflects who we want to make the decisions, whether it is the chiefs of staff or the Secretary of State for Defence or whether it is a judge.

With the recent case of applying human rights legislation to the battlefield we have seen the great difficulties that may be caused to commanders on the front line when their very difficult decisions are second-guessed by a judge. That really is the argument; it is not about whether the armed forces discriminate or not, it is about  the decisions they make and who ultimately makes them. This is not about the armed forces wanting to discriminate, but about how they make judgements on combat effectiveness.

The schedule does not cover all strands of discrimination, only the four that can reasonably be seen to have some bearing on whether an individual would affect combat effectiveness. It is about whether we want those decisions ultimately to be taken by Ministers, who are accountable to this House, or judges. That is the question.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I understand the point the hon. Gentleman is making, but those four strands—age, disability, gender reassignment and sex—might be the basis for discrimination. If the commander in the battlefield were to make those decisions, they might be based on such discrimination and not totally on combat effectiveness. That is the reason the EHRC wants to introduce a legitimate aim test to this schedule. Were there to be a commander in the field who was biased in any way, for example on gender reassignment—a woman who has become a man totally—how would it be determined whether that decision was genuinely taken on combat effectiveness or a longstanding bias? Not necessarily at that moment, but later in the court.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The problem is that as soon as the exemption is removed, all commanders in the field making decisions, whether they are making them for good reasons or bad, are potentially subject to being dragged into a court and being second-guessed by a judge sitting in London, even though those decisions might be made in very difficult conditions. That is the problem; it is not about whether those decisions are right or wrong. I am simply arguing that the armed forces have policies to encourage, for example, those with disability—the area I know best—to the extent possible, but those decision are ultimately best taken by the Secretary of State for Defence, who is accountable to this House, rather than giving them to a judge.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I understand the point, but I think we have to disagree on it. Those decisions should be subject to a higher order than that moment on the battlefield. Ultimately, it may be a right decision, but in terms of law and protection it is totally in order to expect there to be a legitimate aim if discrimination is to be justified. That is what this amendment seeks to do.

Photo of Evan Harris Evan Harris Shadow Science Minister

The argument put by the hon. Member for Forest of Dean is one that was used a lot by the armed forces when resisting the end of the ban on gay and lesbian soldiers serving in the forces. They said it was a matter for commanders or that it was about combat effectiveness, but they never provided evidence of that. The argument was used that this should not be dealt with in the courts—that it must be a matter for the Army itself. I think they were wrong and they recognised they were wrong on that ground, and in the end the European Court forced Parliament to act. The point my hon. Friend is making is analogous to that—it may not ever not be justified, but a justification ought to be given at some point.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I want to ask the Minister whether she feels the commission has a very good point in introducing a legitimate aim test, because, as my hon. Friend helpfully said, this is where we were not that  long ago in relation to gay men and lesbians in the armed forces, and that now seems like something from the distant past. Perhaps this move forward—the introduction of the legitimate aim test—will also take its place in the advancement of discrimination law.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I just want to respond to the intervention of the hon. Member for Oxford, West and Abingdon on the hon. Member for Hornsey and Wood Green. The hon. Gentleman is quite right: that issue was in my mind when I looked at this exemption, and in particular at the four protected characteristics that are allowed to be used. I asked myself, “Could any of those, to my mind, legitimately affect the combat effectiveness of the armed forces?” I was thinking of the protected characteristics of sexual orientation when I read that, thinking back to that case.

I would not be so open as just to say, “Oh, we should leave this up to the Army or one of the other branches.” I absolutely think that Ministers should probe and take responsibility for such questions, and they should challenge military commanders on whether something genuinely does affect combat effectiveness. It is one of the benefits of this place—it has schemes such as the armed forces parliamentary scheme, in which a number of Members take part—that we get the opportunity to visit operational theatres to talk not just to senior Army, Navy and Air Force officers, but to the men and women in the front line, as well as those back at home.

Such things keep us well informed and enable us to challenge existing practice and question whether something is justified. However, when it comes to the defence of our country, for which the Government have to take responsibility, such things should probably be left to those responsible for that task in Parliament. If they fail to do that or do it badly—as we can perhaps agree they did in the case of sexual orientation—they should be held to account politically. I am just always very nervous about allowing judges to make decisions that may damage our armed forces’ operational effectiveness.

I know the Government have great concerns about the recent ruling on human rights law applying to the battlefield, and they are thinking about whether to appeal that case. This is simply what I say. It is not that I support the armed forces discriminating; it is about who the decision makers should be on these particular grounds. There are other exemptions in this schedule—for example, the security services, the Secret Intelligence Service, GCHQ and parts of the armed forces. They are exempted from clause 27 completely for that very reason: not because they should be able to go on discriminating, but because we think it proper that those decisions should be made by Ministers, who are responsible to this House for the security of our nation. That is the proper place for those decisions to be made as far as the armed forces are concerned.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

If I may say so, the hon. Gentleman has made some good points about who should take the decisions, and about not mixing the need for a limited exception for this purpose with its abuse, as exemplified by the cases that subsequently secured equality for people with different sexual orientations and enabled them to be fully involved in the military.

This measure is not intended to be a licence to discriminate. I do not know if this factor will help, but we are bound by European Community law to reassess  periodically occupations from which women are excluded, for instance, to decide whether there is any justification, in the light of social development, for maintaining the exclusion, and we must notify the EC of such reassessments. The Ministry of Defence is assessing its policy governing women serving in close combat roles; on 26 May it announced that it would be examining whether it is still appropriate to exclude women from such roles.

The position is therefore not static, and it is not a repetition of something that has, I accept, appeared on the face of it to give rise to discrimination in the past. It is a fairly narrowly framed exception that exists, as the hon. Member for Forest of Dean said, to enable generals to take decisions when they need to, rather than being second-guessed by judges. None the less, the test is set in terms of the necessity to ensure the armed forces’ combat effectiveness. We cannot exclude the possibility that at some point, a woman or a person who has had gender reassignment may well bring a case to court, so that they can secure their entitlement more quickly than the reviews allow for in terms of combat effectiveness.

Let us not muddle something that appears at the moment still to be necessary to guard the efficacy of our armed forces with any licence to discriminate, nor impute to the armed forces any intention to do so. I back that up by saying that the issues are kept under review. For the time being, we invite the hon. Member for Hornsey and Wood Green to withdraw her amendment.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families) 3:00, 18 Mehefin 2009

I have listened carefully to the Minister, and I am reassured inasmuch as the situation is not static. Things do move on and change. Women may bring cases if they want to serve on the front line. It will be interesting to see whether a general who makes such a decision does so on the right grounds or the wrong ones. That will eventually be tested, but for the time being, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I beg to move amendment 159, in schedule 3, page 153, line 9, at end insert—

‘(1A) In assessing risk in sub-paragraph (1)(a) a blood service cannot make an assumption of risk that relies on all people of a protected characteristic sharing the same risk.’.

This amendment makes clear that blood services cannot use blanket assessments of risk based on people of a protected characteristic, such as their sexual orientation, sharing the same level of risk.

I am sure that everyone in this room believes that protecting the safety of the blood supply must be the first and most important concern in terms of who should be able to give blood and who should not. The problem is that at present, we assess who may or may not give blood on a precautionary basis. We are allowed to consider the collective risk of a group, rather than the behaviour of an individual. The Bill’s purpose is to protect groups of people from both direct and indirect discrimination. I believe that the ban on gay people giving blood, for example, needs to come under scrutiny so that we can understand better whether that discrimination contravenes the purpose and meaning of the Bill.

Personally, I cannot see how a blanket ban can not be discriminatory. If I were a gay man in a monogamous civil partnership and wanted to give blood, I would not be allowed to. If I were a sexually active straight man, I would. Surely there is a case for the safety of the blood supply’s being based on an individual’s behaviour and the consequential risk of that behaviour, rather than eliminating a whole group.

I was talking only yesterday to a gay man who had gone to give blood when he was younger, but only after he had given blood was he shown the form asking whether he was a homosexual and whether he had had sex. He said that he was so humiliated and upset that he lied. It is appalling for someone to be put in that position.

The amendment tests the very core of the meaning of discrimination. If we are to blanket-ban blood donation by gay men, as is currently the case, we are inevitably discriminating against one of the protected characteristics —sexual orientation. As I understand it, there are 450 rules guiding donor selection and there are two levels of protection. One is in the first category, which is the selection of “safe” donors; the second is the testing of the donations.

Regarding gay men, the leaflet explaining why certain groups are not acceptable for donation refers to specific behaviours—rather than the fact of being gay—that place men at an increased risk of HIV infection. I could go into what they are, but I would rather not. We are told that research shows that allowing gay men, as a group, to donate blood would increase the risk of infection of the blood supply. However, the problem is that that refers to the totality of risk in a group that includes people who are not careful, who have had many sexual encounters and who bring the risk level up in the blood collected from that group. There is no distinction within that group between men who behave in that fashion and men who are monogamous and careful.

One great iniquity is that a heterosexual person who consistently puts themselves at risk of exposure to HIV, for example, is not given a lifetime ban on giving blood, whereas a gay man who has had protected sex just once is given a lifetime ban. After two years of review, Stonewall has now changed its position, having given the greatest care to issues associated with risk. Risk is a key issue for blood supply, but Stonewall has come to the genuine belief that exclusion should be expressed in terms only of risky behaviours, not sexual orientation.

The national health service says that sexual behaviour is its reason for exclusion, not sexual orientation. Nevertheless, only gay men who are virgins are allowed to give blood. Surely it is time to introduce a more sophisticated model and change the current restrictions to reflect behavioural risk on an individual basis, rather than having a blanket ban on a group. That might give better protection because there is relatively little investigation into, or inhibition on, those who are not homosexual.

Current practices in Spain, Italy, Australia and New Zealand place no lifetime ban on gay men. I believe we should follow their lead. The Anthony Nolan Trust has recently lifted its ban on bone marrow donations by gay men. The Bill offers an opportunity to begin that process of change from blanket bans to a system based only on the risk that an individual’s behaviour poses. I would welcome the Minister’s views on what I have said.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

Essentially, the amendment is not necessary, because the Bill prohibits blood services from excluding people who share a characteristic, unless there is evidence

“from a source on which it is reasonable to rely” that donation presents a risk to the public or to the individual donor. The Bill also requires that refusal, even if grounded on that evidence, to be “reasonable”.

The issue is not just about gay people. Blood services sometimes need to exclude all people who share a protected characteristic from giving blood. For example, the EU requires blood services to refuse donations from people who are HIV-positive, and HIV-positive is a disability in the Bill. Therefore, it is not just about gay men. However, an issue about them has been raised. Let me see if I can deal with it as well as possible.

In the explanatory statement for the amendment, the hon. Lady suggests that sexual orientation is an example of a protected characteristic that would be covered by the amendment. However, I am told that blood services do not ask questions about sexual orientation—there has never been a blanket ban on people who share a protected characteristic, either of homosexuality or bisexuality. Lesbian and bisexual women, who share the characteristic, are not banned from donating on the grounds of their sexual orientation, nor are gay or bisexual men who, as she put it, are virgins, who have not had sex with another man. Excluding everyone who identifies as gay would be unnecessary, and it would be unlawful, so it is not a blanket ban in that sense. There is no evidence of people presenting a risk just because they are gay.

The hon. Lady raised the issue in a bit of detail, so let me deal with it in detail, in all fairness to her. The policy, which is to exclude men who have had sex with men from donating, is in place because the blood services have an ethical duty of care towards recipients for the sole purpose of protecting public health by minimising the risk of transmission of HIV in particular. My information is that men who have had sex with men are at higher risk of carrying such viruses. A review of the evidence on risk-based sexual behaviour will begin in July.

Men having safer sex with men was touched on by the hon. Lady. While safer sex through the use of condoms reduces the transmission of infection, it does not eliminate the risk. Men who have sex with men are found to be disproportionately represented among the small number of HIV-positive donations identified. Epidemiological evidence in the UK also shows that there has been a significant increase in other sexually transmitted infections that can be blood-borne, such as hepatitis B and syphilis, among men who have sex with men.

The hon. Lady’s answer to that—I understand why—would be to assess each donor’s risk individually. However, blood services advise that there would be a large number of practical problems. For example, it would not be feasible in a blood donation session to take a detailed sexual history from an individual—apparently 7,000 people per day, which is excellent, give blood, so that would be impractical. The blood services need to use broad categorisation for donor selection.

The hon. Lady referred to other countries having reversed their policies.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I understand the practical difficulties, but they are not that difficult. I do not see why they cannot apply to anyone’s behaviour, in terms of how many partners one has had in the past year and whether one uses protection. I do not understand why that would be such an impossibility, given that one has to fill out a form anyway and it is simply a matter of which questions are on the form.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

That is what the blood services say and I accept what they say. To take a detailed sexual history to decide the risk of 7,000 people a day, one could not simply ask one sector; one would have to ask everyone, to be clear. That seems to be pretty well a definition of impossibility.

The hon. Lady talked about other countries, so let me nod in the direction of that as well. A review of our policy of refusing donations on the ground of sexual behaviour is planned to start in July. The scientific advisory committee that advises the UK Health Departments on blood safety will begin a review of the risks associated with sexual behaviour. The fact that the review exists shows that there is already a rigorous process in place to make sure that donation criteria are based on current and reliable evidence. It will welcome engagement with the public, with stakeholders and Members of Parliament. In October, there will be a public meeting about the review, and that would be a more appropriate forum for hon. Members to raise their concerns.

In particular, the amendment will not do. The need for it is perhaps usurped by the presence of that review and, as I described, the issue is wider. It is necessary, for instance, to be able to refuse donations from people who are HIV-positive because of the obvious risk, and they are disabled, so we cannot allow the amendment.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families) 3:15, 18 Mehefin 2009

I have listened to the Minister, and of course there are other categories and groups that pose a risk, and HIV is one of those. Much of the HIV in the haemophilia community, and the risk posed by the blood supply, which has been huge, was actually caused by the Government’s unwillingness to move fast enough to protect them. That is very unfortunate. We can all balance risk in this area. I will withdraw my amendment and contribute to the review, but the issue needs to go further.

I do not totally accept what the National Blood Service says about how difficult it is to take a detailed sexual history. People lie, as I described in respect of the gentleman I was talking to yesterday, because of the situation that they are in. Regardless of background, a form is filled in. It does not take long to fill in a form with one’s sexual history. It is not too detailed; it is not a list of the names of everyone a person has slept with over a lifetime. But it considers the risk posed by the number of people and whether they have practised safe sex.

As the hon. Member for Glasgow, East reminds me, having given blood the first time and qualified as a blood donor, most donors are repeat donors and therefore it would not be a case of completing a form every single time, other than updating the sexual history. It is not a long process and donors have to do it, anyway. I simply  say that it is an issue that needs much further debate. I am not wholly persuaded by the Minister, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 160, in schedule 3, page 154, line 10, leave out from ‘following’ to end of line 11.

This amendment redrafts the exception in the application of disability discrimination to immigration matters.

Photo of Ann Winterton Ann Winterton Ceidwadwyr, Congleton

With this it will be convenient to discuss the following:

Amendment 101, in schedule 3, page 154, line 11, leave out ‘for the public good’ and insert ‘to protect public health’.

Amendment 102, in schedule 3, page 154, line 13, leave out ‘or remain in’.

Amendment 103, in schedule 3, page 154, line 14, leave out ‘or remain in’.

Amendment 104, in schedule 3, page 154, line 15, leave out ‘or remain in’.

Amendment 105, in schedule 3, page 154, line 16, leave out ‘or remain in’.

Amendment 161, in schedule 3, page 154, line 22, at end insert—

‘(5) Section 27 does not apply in relation to sub-paragraphs (2) to (4) only to the extent that any treatment, or a failure to comply with a duty, are a proportionate means of achieving a legitimate aim.

(6) Regulations may make provision for purposes of sub-paragraph (5) as to circumstances in which treatment, or a failure to comply with a duty, is to be taken to be justified, to the extent that those regulations are a proportionate means of achieving a legitimate aim’.

This amendment redrafts the exception in the application of disability discrimination to immigration matters.

Amendment 106, in schedule 3, page 155, leave out lines 14 to 26.

Photo of Evan Harris Evan Harris Shadow Science Minister

I rise to speak to the two amendments tabled in my name and that of my hon. Friend the Member for Hornsey and Wood Green. Amendments 160 and 161 need to be considered together. I also support the amendments tabled by the hon. Member for Glasgow, East and will speak briefly to them. I want to take the opportunity, if I may, to deal with something in paragraph 17 of the schedule, which comes under the same part—immigration—to avoid having to return to it in the stand part debate, because it generally covers the same ground.

This is an important issue because it has been raised not only in the context of the Bill but, as the Solicitor-General will know, in the context of the UN convention on the rights of persons with disabilities and the Government’s proposed reservation in that area, which was subject to two reports by the Joint Committee on Human Rights, of which I am a member and to which I will briefly refer.

Paragraph 16 states that the bar on discrimination in relation to the provision of services does not apply to disability discrimination when that relates to matters of  immigration, and the justification is that the ground for so doing—doing one of the things listed in sub-paragraph (3)—is necessary for the public good. It is questionable whether that is a stricter provision than originally existed, and certainly the briefing from the EHRC confirms our belief that it goes further than the previous provision. It is important to observe that the explanatory notes state that the measure “provides an” exemption

“from the prohibition on discriminating against a person when providing a service or exercising a public function because they have a disability, in relation to certain immigration decisions, including making a decision not to allow someone to enter the country” and so on. However, the explanatory notes go on to argue:

“An express exception was not previously needed since the Disability Discrimination Act 1995 did not prohibit direct discrimination in the provision of service or exercise of a public function, and because disability related discrimination, which did apply to the provision of services or exercise of a public function, could be justified if it was necessary not to endanger the health or safety of any person.”

First, that in itself is a different justification from the one provided in the schedule, which is

“necessary for the public good” rather than

“necessary not to endanger the health or safety of another person”.

Secondly, the contention in the explanatory notes is controversial—the EHRC certainly questions it. The EHRC’s position, as we know—I am not the only one with this briefing—is that all exceptions must be fully compliant with EU law and should be subject to the requirement of being a

“proportionate means of achieving a legitimate aim”.

That would be better if further qualified by adding “appropriate and necessary means of achieving a legitimate aim.” The EHRC rightly argues that it is essential that discrimination is reasonable only as far as it permits public authorities and the private sector to discriminate where it is justified.

The EHRC takes issue with the explanation in the explanatory notes that the measure is not more restrictive. As the notes acknowledge, disability-related discrimination, as opposed to direct discrimination, was always covered by the DDA 1995 in the context of exercising public functions, including immigration functions, as can be see by section 21D of the DDA.

If we look at section 21D, we find that there was not the same sort of blanket exclusion that essentially exists now. Subsection (3) gives the criteria under which treatment or a failure to comply with a duty are justified and relates to conditions in subsection (4), which are

“that the treatment, or non-compliance with the duty, is necessary in order not to endanger the health or safety of any person...that the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment, or non-compliance with the duty, is reasonable in the particular case...that, in the case of treatment mentioned in subsection (1), treating the disabled person equally favourably would in the particular case involve substantial extra costs and, having regard to resources, the extra costs in that particular case would be too great” and one other. Subsection (5) states:

“Treatment, or a failure to comply with a duty, is justified under this subsection if the acts of the public authority which give rise to the treatment or failure are a proportionate means of achieving a legitimate aim.”

The provision in section 21D of the DDA is not present in this provision.

The EHRC points out that the exception in paragraph 16(3) extends beyond justified discrimination and excludes all immigration decisions. That is also a cause for concern, because it could allow unjustified and negative stereotyping of conditions such as HIV. There is no requirement of proportionality, so it is not clear what would fall under the provision of

“necessary in the public good”.

The National AIDS Trust has contacted us and the commission to express that concern, and other countries have such unjustified, stigmatising and caricaturing bans on people with HIV, which they say are necessary in the public good but which clearly, from research and study, cannot be justified.

I should like to deal briefly with the relationship between the measure and the Government’s proposed reservation from the UN convention on the rights of persons with disabilities. Paragraphs 58 to 71 of the 12th report of Session 2008-09 of the Joint Committee on Human Rights, which is its second report on the matter, deal with that relationship. Essentially, the reservation is described in the same terms as in the Equality Bill, so at least the Government are consistent on the two measures regarding that reservation.

The Joint Committee on Human Rights does not believe that the proposed reservation is appropriate and thinks that the Government have not provided an adequate explanation of why they believe it to be necessary. The Committee’s view is that there is nothing in the convention or in domestic law that justifies a reservation of the breadth proposed and it stated:

“this reservation could disapply the Convention in its entirety in so far as its protection might relate to people subject to immigration control.”

These provisions are no less narrow.

Why cannot the Government use a different formulation for the test to be met, such as that set out in amendment 161? I do not claim that the drafting is absolutely right, but it gives a flavour of what we are looking for, stating:

“Section 27 does not apply in relation to sub-paragraphs (2) to (4) only to the extent that any treatment, or a failure to comply with a duty, are a proportionate means of achieving a legitimate aim.”

I think that “proportionate means” is possibly the wrong way of describing appropriate and necessary means, but we will leave that aside. The amendment contains a regulation-making power that would make provision for the purposes of sub-paragraph (5) to set out the

“circumstances in which treatment, or a failure to comply with a duty, is to be taken to be justified” and explain why those are necessary and proportionate means.

Finally, I want to deal with the example given in the explanatory notes relating to TB. Paragraph 668 of the explanatory notes gives an example:

“A person who arrived at a British airport with TB could be refused entry if this was considered necessary to protect the health of the general public.”

As I understand it, the Government have a scheme that operates when visas are sought in some countries—not all countries; it is not uniform—that means that a visa might not be provided to someone unless they have passed screening for TB. I have seen no evidence to suggest that that is scientifically justified, which, I suspect, would be a requirement even under the Government’s provision.

The Minister might not be equipped with this information now, but I would be grateful if she agreed to ask her officials to check with the Department of Health about the evidence base for that example. It would be illuminating for us to know whether the Government feel that their test requires scientific or research-based support for an intervention, particularly one as significant as requiring a specific screening test or treatment for a condition. Although it may appear strange, I have seen no evidence to suggest that screening people for TB before entry would affect TB in this country. TB in this country is generally due to re-emergence in people who have been here for many years rather than new immigrants. That is certainly the case regarding transmission to close family members. This is a significant issue and I hope that the Government can provide an explanation or justification.

I support the amendment tabled by the hon. Member for Glasgow, East to paragraph 18 of the schedule. It seems wrong to have an absolute right to directly discriminate on the basis of religion or belief in matters of immigration. A person may have views—jihadist views, for example—that might mean that the Government are right not to allow them to enter this country. However, that is a manifestation of someone’s religion, and such action can be justified under indirect discrimination legislation. I would argue, as would some mainstream religions, that it is not a defining cause of religion or belief. Everything that the Government seek to achieve in paragraph 18 could be done without having such a broad exemption for religion or belief. Such measures can be justified, and the Government are right to do that where necessary.

Paragraph 17 deals with a long-standing provision that covers an exemption in respect of race discrimination and immigration matters in relation to nationality and ethnic or national origins, not colour.

I want to remind the Minister of what happened at Prague airport when UK immigration officials were engaged in a practice that was found eventually to be unlawful. It is a pity that the matter took so long that it had to go to the law courts. People who looked like Gypsies were being stopped deliberately and not allowed to travel to this country. They were subjected to questioning and testing by Government directive. Such action should give us cause to consider whether such a broad exemption is appropriate or should be qualified in order to prevent what may have been well-meaning directives given to immigration officials, but which were in effect found to be unlawful, even though the measure is an extension of a current exemption. I hope that the Committee will look kindly on all the amendments in the group because they have much merit.

Photo of Diane Abbott Diane Abbott Llafur, Hackney North and Stoke Newington 3:30, 18 Mehefin 2009

The afternoon wears on, but I want to say a few words on the exemption—long standing, I know—of immigration services from the requirements on nationality and ethnic origin under the Bill. It may be long standing, but that does not necessarily mean that it is correct.  When I first came to the House 22 years ago, I made a speech on immigration and I am regularly among the top 10 MPs who write to the immigration and nationality directorate on such matters. Over that time, I have dealt with literally thousands of immigration and nationality cases on behalf of my constituents and sometimes on behalf of others when their MP would not help them. I have observed that one problem with immigration and nationality legislation is not so much that it is consciously racist, but that it is consciously chaotic and consciously reacts to media panic. Twenty-odd years ago, East African Asians from Kenya who came here were to bring about the end of civilisation as we know it. More recently, it has been Romanian ladies in headscarves and Polish plumbers.

The random nature of immigration legislation could be properly mitigated if it did not have such blanket exemptions. Nothing brings our immigration process into such disrepute as the notion that it bears more heavily on people because of skin colour than otherwise, whether it is true or not. Nothing causes more pain to my constituents than the very real state of affairs whereby people from the Commonwealth, who may have all sorts of cultural links, are often treated less favourably in immigration matters than people of a different skin colour who are not from the Commonwealth. I am not saying that there might not be grounds for some sort of exemption, but such a broad exemption helps our immigration legislation to be more chaotic and unfair than it might be otherwise. I hope that, during our proceedings in Committee or even on Report, we can return to the subject and deal with it at slightly greater length.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I wish to speak first to amendments 101 to 105. Other Committee members have expressed concern about the wide scope of paragraph 16 of the schedule on immigration. It means effectively that discrimination is allowed against a person by refusing entry into the UK if the person has a disability. Similarly, a person could be discriminated against by being required to leave the UK because of a disability. There could be an exemption for public health reasons, which many of us would accept. I am grateful to Liberty for making that point. The hon. Member for Oxford, West and Abingdon referred to the example whereby a person arriving at an airport with TB could be refused entry. A lot of us would say that that was fair enough, but an exemption for public good is much wider than is needed to prevent such a case. The fact that it could be abused is already causing worry.

Similarly, a non-citizen developing cancer could be expelled from the UK “for the public good”, no matter how long that person had been resident here, to avoid giving NHS treatment and save money. A family with a child with a disability could be refused entry on the basis that the child, over time, might cost the public health system. The amendments should meet the Government’s objectives of allowing entry to be refused to protect the health of the general public, while limiting it so that people with non-contagious disabilities are not unfairly refused entry. It would also mean that a person who is already resident in the UK would not be forced to leave on developing a disability.

Photo of Evan Harris Evan Harris Shadow Science Minister

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.

Photo of John Mason John Mason Scottish National Party, Glasgow East

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.

Photo of Emily Thornberry Emily Thornberry Llafur, Islington South and Finsbury

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.

Photo of John Mason John Mason Scottish National Party, Glasgow East

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.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

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.

Photo of Evan Harris Evan Harris Shadow Science Minister

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.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

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.

Photo of Evan Harris Evan Harris Shadow Science Minister

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.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

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.

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.

Photo of John Mason John Mason Scottish National Party, Glasgow East 3:45, 18 Mehefin 2009

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”?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

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.

Photo of Diane Abbott Diane Abbott Llafur, Hackney North and Stoke Newington

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.


Miss Abbott hits the nail on the head. We see Yardies travelling back and forth without problems, but when I wanted to bring three young schoolgirls to England for a summer holiday they were refused visas. When is the Home Office going to come out of its bunker, forget Mr Blair's number game, and act fairly?

Cyflwynwyd gan John Catley

Photo of Evan Harris Evan Harris Shadow Science Minister

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.

Sitting suspended.

On resuming—

Schedule 3 agreed to.