Schedule 3
Equality Bill
3:30 pm
Vera Baird (Solicitor General, Attorney General's Office; Redcar, Labour)
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.