New clause 8 - Monitoring of exception in relation to immigration cases
Equality Bill [Lords]
1:15 pm

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)

I beg to move, That the clause be read a Second time.

The new clause was proposed my noble Friends Lord Dholakia and Lord Lester in another place on Report and Third Reading in order strongly to urge the Government either to consider a new monitor for immigration to consider the way in which the exception relating to discrimination that we have provided for in part 2 of the Bill works or to extend the duties of the current race monitor to do that. It is important to explain why it is necessary for that to be covered and to ask why neither option seems acceptable.

When exemptions were made to the race discrimination provisions for immigration functions—understandable exemptions given that rules will apply to certain nationalities and, arguably, at least in theory, that may well go beyond nationality, to other factors—the Government appointed a monitor to produce a report to Parliament to show that the exceptions were being dealt with fairly and appropriately. In that way, we are not solely reliant on the ability of often vulnerable people—in many cases, outside this country—to bring appeals or judicial reviews where appeals are provided for. The purpose of the independent race monitor is also to provide public confidence in the way in which that aspect of   immigration control is administered. She is paid out of public money to perform that function and annual reports are available.

Discrimination dealing with religion or belief is, if anything, as sensitive or even more sensitive. Part 2 proposes something that is in itself acceptable: exceptions for immigration. That is dealt with under the public duties clause in subsections (4)(f) and (4)(g) to clause 51, which we discussed earlier. Given that this is a more sensitive subject, it is reasonable that the Home Office immigration service and the public would be reassured if there were some oversight of how things were done.

The amendment was described in the House of Lords as a modest proposal and, on Report, the Minister, Baroness Scotland, agreed to take it away and consider it. It was proposed again on Third Reading. The point was made again that it is reasonable to have that assurance and this confidence-building measure in respect of the immigration service. Immigration officers have wide powers and although the police are subject to the Police and Criminal Evidence Act 1984, immigration powers are not always subject to it. My noble Friends felt that there was a need to safeguard the way in which the immigration rules are applied. In response, Baroness Scotland rejected the arguments, and I want briefly to analyse her comments so that we can take the argument forward rather than simply repeating it.

Baroness Scotland claimed that the exception in clause 52—I believe it is now clause 51—is

''relatively narrow in comparison with that which is provided at Section 19(D)''—

of the Race Relations Act 1976. She said that it could affect a large number of nationalities and many people, and that

''it may apply wherever there are objective grounds for believing that it is reasonable to subject people of different nationalities to differential treatment for the purposes of immigration control.''—[Official Report, House of Lords, 19 October 2005; Vol. 674, c. 854.]

I understand that there could be a large number of authorisations affecting a large number of people.

Baroness Scotland then said that the discretion to discriminate on grounds of the public good through the exercise of an exception in respect of religion or belief is likely to apply to individuals and is unlikely to be an everyday occurrence. Therefore, it would affect a relatively limited number of people. In that case, one could argue that the race monitor's role could be expanded to cover those cases. It would not require an extra salary, extra staff or an extra provision, so that in itself is not an argument for not doing it, particularly in such a sensitive area. There have already been appeals against the Secretary of State's exercise of discretion. For example, the Government did not win in the case of Reverend Moon. They were not successful on all their assertions. Surely it would be better to have monitoring that would enable the Government to learn from those mistakes.

Baroness Scotland went on to say that it was assumed that the proposal would be a relatively easy   thing to do, would not take too much time and would be an add-on that could be easily accommodated. She explained that the people to whom she spoke believed that that was not the case, but it was not entirely clear why.

It seems reasonable for us to ask that the exercise of the exception in this case is subject to a monitor. If we are talking about fairness, particularly in respect of sensitive issues such as religion and immigration, it does not seem too high a price to pay. I hope that even the hon. Member for Epping Forest (Mrs. Laing) would accept that it would not involve a huge amount of money or time if someone who is already paid were to take on this duty as well. It is a question of having confidence that the exception is used appropriately and fairly, and I urge the Minister to reconsider the Government's position.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

I do not have a great problem with the amount of money that the proposal would cost. It would be an added burden on the taxpayer, but it would be minimal. However, my party is unconvinced that it is necessary to add yet a further regulation, so we do not support new clause 8.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

I welcome the hon. Lady's support for the Government's position.

Eleanor Laing (Shadow Secretary of State for Scotland, Scotland; Epping Forest, Conservative)

We do consensus now.

Meg Munn (Parliamentary Under-Secretary, Department of Trade and Industry; Sheffield, Heeley, Labour)

Yes, we do.

As the hon. Member for Oxford, West and Abingdon said, new clause 8 replicates one debated in the other place. We resisted it then and, despite further consideration, we continue to resist it. On balance, we do not feel that it is right to reproduce the arrangements in the 1976 Act. I shall not repeat the arguments in full, as he has referred to what my noble Friend Baroness Scotland said, but I shall enlarge a little.

Discrimination is lawful by virtue of the section if it is covered by legislation undertaken or authorised by a Minister acting personally. Some ministerial authorisations allow discrimination in making immigration decisions, although the current ministerial authorisations permitting discrimination by the less favourable treatment of certain groups allow for discrimination in the process used to consider individual cases, but not in the actual decisions made. For example, arrivals of a particular nationality may be subjected to more rigorous questioning purely because of their nationality, but a decision to allow or refuse them leave to enter the UK will be taken purely on the basis of whether, in the immigration officer's view, they satisfy the requirements of immigration rules.

Such treatment must be authorised by a Minister, and those authorisations are reported on by the independent race monitor. There are 10 or so in force. In this case, a relatively small number of authorisations may affect a great many individual cases spanning a large number of nationalities. Although the race monitor may consider individual cases in her assessment of the overall effect of a ministerial authorisation, it is not part of her statutory role to seek a review of the decision in such cases.  

The situation in the case of the exception in part 2 is different. As the hon. Gentleman said, the discretion to discriminate on grounds of public good is likely to be exercised with regard to individuals rather than groups, and that is unlikely to be an everyday occurrence. A remedy for failure to exercise that power correctly is available through appeal, if the conditions for appeal are satisfied, or through judicial review.

I am not sure exactly what it would lead to should the monitor also be asked to consider decisions taken under paragraph (g), as the hon. Gentleman suggested, but there would be other differences. To the extent that the exception allows a determination that a particular religion is not to be treated in the same way as other religions—for instance, because it encourages children to renounce contact with their family—leading to a refusal to grant recognition for the purpose of admission as a minister of religion, that is not analogous with the power to authorise discrimination in respect of nationality, and will affect only those individuals who can otherwise satisfy the technical requirements needed to obtain that privileged admission. It is in any case always open to the persons involved to seek admission under a different category, provided that they satisfy the relevant requirements of immigration rules.

In these circumstances, judicial review is the appropriate method of challenging the determination. To introduce a monitor would be unnecessarily bureaucratic. The appointment of a monitor would not in any case provide recourse for any individual cases. On the grounds that I have given, I continue to resist new clause 8.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)

I note with interest the support given by the hon. Member for Epping Forest for the Government's position on this immigration matter. I know that that is the trendy thing for her party to do. It remains to be seen whether it causes major difficulties for either her party or Labour Members.

I am grateful for the Minister's response as far as it went. In respect of her last remarks, I point out that the proposed measure would not be instead of judicial review. The whole point of a monitor making reports to show how something is operating is to reduce the chance of it operating in a way that does not meet the appropriate standards of administrative law, and therefore to avoid future judicial reviews, especially where they may find against the Government regularly. It is right to say that the provisions of the exception in clause 51(4)(g) may well apply to groups of people, so we are not talking solely about individual cases. I have not argued that the monitor should be able to take up individual cases, but clearly she is entitled to comment on them as she comments on the impact of a statute in the area of her remit generally.

My concern about excluding a person on the ''conducive to the public good'' basis is that the Government have said previously that they will use the list of unacceptable behaviours that was produced in the summer for consultation and then confirmed, because those are highly contentious. Indeed, they were seriously criticised by the Joint Committee on Human Rights in its report, published on Monday, on   the Terrorism Bill and associated matters. It criticised not least the fact that the list of unacceptable behaviours allows people to be excluded on the ''justifying terrorism'' basis. That will probably be applied to groups of people on the basis of their religion. It is not even the case that people would be excluded on the basis of encouraging terrorism indirectly, but on the basis of justifying terrorism under a wide definition.

I urge the Government to consider what the Joint Committee on Human Rights said about that list of unacceptable behaviours. It was not one of those areas where there was a major division in the Committee, although there was concern among Labour Members about its scope. In so far as it relates to the exercise of the exception, I live in hope that the Government, on considering the opinion of the JCHR, might ask whether it would be appropriate to see whether the system is being operated fairly. Otherwise, there will be a large number of legal challenges to the use of the power under the exception in clause 51(4)(f). The decision not to take advice from an independent monitor will be one that the Government live to regret.

In the hope that at some future point we will succeed in providing a safeguard and an attempt to create more public confidence in the way the system works, rather like my noble Friends Lord Dholakia and Lord Lester, I beg to ask leave to withdraw the new clause.

Motion and clause, by leave, withdrawn.