Immigration Bill

Lord Keen of Elie Excerpts

Tuesday 9th February 2016 Grand Committee

Moved by

[Lord Keen of Elie]

241B: Clause 47, page 45, line 29, at beginning insert “in England and Wales or Scotland,”

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we are grateful for the consideration of the devolved Administrations and the interest in the other place of Members of Parliament representing Northern Ireland in relation to this part of the Bill. We have listened, and government Amendments 241B to 241E, 242A, 242B, 242D to 242F, 242H, 242K and 245B represent our response. They are many in number but they have a simple purpose: to apply to Scotland, Wales and Northern Ireland on a uniform basis the duty to ensure that all public sector workers who work in customer-facing roles speak fluent English; save that, in Wales, the duty will be fulfilled by fluency in English or Welsh. It will apply only to public authorities that exercise functions in relation to matters which are not devolved. At present, the Bill provides for the duty to apply to public authorities exercising any functions of a public nature in Wales. The respective Governments have since agreed that it will apply to public authorities only to the extent that they carry out functions in relation to matters which are not within the legislative competence of the Welsh Assembly.

Noble Lords will have noticed that the Bill does not yet provide for the duty to apply to Northern Ireland. In the other place, a commitment was made to reconsider that position in this House. Our amendments now provide for the duty to apply only to public authorities that carry out functions in relation to excepted matters in Northern Ireland.

Noble Lords will have noted that the Bill already provides for the duty to apply in Scotland only to public authorities exercising functions in relation to reserved matters, so there are no further amendments affecting this region. In these circumstances, I beg to move.

[Baroness Lister of Burtersett]

My Lords, I rise to speak to Amendment 242, and I am grateful to all noble Lords who have added their name to it. The purpose of the amendment is to ensure that Clause 47 does not lead to discrimination against public sector workers in a consumer-facing role whose first language is British Sign Language by explicitly exempting them from the provision.

In his letter of 19 January to the noble Lord, Lord Bates, the Minister for the Cabinet Office and Paymaster-General stated:

“The most significant additions to the Code”—

the code of practice, that is—

“will come from organisations strengthening the content with guidance and practical examples—notably in areas of interest to Noble Lords during the Second Reading debate; avoiding discrimination and providing clarity in how the duty applies to those who communicate using British Sigh Language. We strongly support the use of British Sign Language”.

It also said that one of the main findings of the consultation was:

“Further guidance, clarity and practical examples could be added to support authorities’ understanding and practical application of the duty to reduce any discriminatory impact. Business Disability Forum and Signature will provide case studies for inclusion in the Code to clearly demonstrate application of the duty and the responsibilities of public authorities towards members of protected groups and to advance equality”.

This is very welcome and suggests that the Government accept the spirit, if not the letter, of the amendment.

Nevertheless, Sense, which alerted me to this issue, believes very strongly that writing an exemption into the Bill would remove the possibility of misinterpretation by any authority, which might still occur if clarification were in only the code of practice. Failing that, I wanted to ensure that the Minister’s assurance in the letter appears in Hansard, because it is crucial that we ensure that the Bill cannot be said to discriminate indirectly against deaf and deafblind people, for whom British Sign Language is their first language in either its standard form or as adapted for deafblind people. I am told that its grammatical structure is different from English, so it is possible, on the face of it, that someone might argue that someone using it is not speaking fluent English.

I would be grateful if the Minister would be willing to look again at the possibility of writing a clear exemption into the Bill so as to remove all doubt and therefore reassure organisations such as Sense. If that really is not possible for some good reason, I would at least welcome a clear statement on the record—based on but perhaps going beyond what is in the letter of 19 January—of what the code of practice is intended to say regarding how Clause 47 should not discriminate against users of British Sign Language.

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Likewise, what happens in relation to the National Health Service? What happens if operations are currently conducted in the public sector in the National Health Service but then certain operations are put out to be undertaken in the private sector? Are we being told that this is a vital and necessary piece of legislation if the operation is carried out by the National Health Service in the public sector but it is not necessary if the same operation is outsourced to be dealt with within the private sector of the health service? Some clarification on those points would be much appreciated.

[Lord Keen of Elie]

I am obliged to the noble Lord. Clearly some important issues are raised here. The noble Baroness, Lady Hamwee, noted that there was some reference to this issue in the Conservative Party manifesto. The noble Lord, Lord Rosser, will correct me if I am wrong but it also featured in the Labour Party manifesto, so I would understand him to have a reasonable degree of insight into what is proposed here.

[Lord Rosser]

I am asking how the Government intend to apply this. It is their legislation.

[Lord Keen of Elie]

I fully understand the nature of the noble Lord’s inquiry; I was just pointing out that the rationale behind this legislation was recognised not only in the Conservative Party manifesto but in the Labour Party manifesto.

I begin by looking at Amendment 242, moved by the noble Baroness, Lady Lister. I am glad to have the opportunity to reassure her and other noble Lords that the duty being imposed by this provision does not apply to individuals who communicate using British Sign Language. I believe it may help if I explain that it will not be the responsibility of individual members of staff to meet this duty; it will be the responsibility of public authorities, as the employers. I remind noble Lords that, as employers, public authorities have a duty under the Equality Act 2010 to make reasonable adjustments for their staff. If reasonable, a British Sign Language interpreter would be provided. In addition, any worker or job applicant who communicates using British Sign Language must be considered for recruitment on a par with any other applicant.

To comply with the duty in Part 7, public authorities must ensure that the British Sign Language interpreters whom they employ, rather than the recipients of such a workplace adjustment, speak fluent English. Given that fluent spoken English is the reason the interpreter has been engaged, there should be no difficulty at all in public authorities meeting that duty. In those circumstances, I seek to reassure the noble Baroness, Lady Lister, about the position in regard to British Sign Language.

[Lord Swinfen]

My Lords, perhaps I may interrupt my noble and learned friend for a moment. What is the position of a member of the public who uses British Sign Language? My noble and learned friend says that provision is made for the authority worker who uses British Sign Language to be able to do their work in their office, but I am talking about a member of the public who goes to the public authority and his language is British Sign Language. There must be someone who can communicate with that person. I am not expecting everyone to have British Sign Language. One can use videoconferencing to deal with it, but there must be provision for members of the general public who use British Sign Language to communicate with appropriate people in the authority.

[Lord Keen of Elie]

In circumstances where there is provision for British Sign Language to be available, there will also be an English language interpreter available. Where a member of the public wishes to use or employ British Sign Language, they will, in circumstances where it is available, be able to do that, and the person communicating with them in a customer-facing role will, of course, be perfectly entitled to employ British Sign Language. The provisions of the Bill are not prescriptive. They are not saying that the only language that can be employed is English or Welsh. In circumstances where there is the ability to communicate in a customer-facing role by means of a different language, be it British Sign Language or otherwise, then it may perfectly properly be employed. Whether it will be available on each and every occasion when somebody arrives and is faced with a customer-facing role is a different matter altogether. Clearly, at present it is not invariably available.

[Baroness Lister of Burtersett]

I am not a lawyer, so I rise with some trepidation, but the Bill states:

“A public authority must ensure that each person who works for the public authority in a customer-facing role speaks fluent English”.

I am very grateful to the Minister for the very clear statement he has made that this will not apply to British Sign Language. It may be that he is going to explain this, but why can that not be put in the Bill to remove all doubt?

[Lord Keen of Elie]

Our position is that that is simply not required. Where you have somebody in a customer-facing role who communicates by way of British Sign Language, they will have a British Sign Language interpreter available. It is the interpreter who will be required by the employer to be fluent in English. That is the situation that will apply.

[Lord Swinfen]

I am awfully sorry but I do not entirely understand what the Minister is saying. I cannot see the difficulty in including British Sign Language speakers who are able to communicate with members of the public whose only language is British Sign Language. The Minister is saying that that is not necessary. It means that if I speak only British Sign Language, I will not be able to speak to anyone in the authority. That is not satisfactory. Either I am not understanding the Minister or he is not explaining himself as well as a lawyer should.

[Lord Keen of Elie]

It appears that, although we each purport to be speaking fluent English, we may not be communicating with each other as clearly as might be the case. In circumstances where a person employs British Sign Language and there is a customer-facing individual available to communicate with them in British Sign Language, the person communicating in British Sign Language will either have with them a British Sign Language interpreter or will be able to communicate in British Sign Language and speak fluent English.

[Baroness Hamwee]

My Lords, I think there are two different debates going on. To pick up the point made by the noble Baroness, Lady Lister, the explanation given by the Minister about how this would work is, to me, intelligible, but it does not reflect the words in the Bill because it suggests that the person who is working in a customer-facing role is the interpreter, not the person who is doing the substantive job. If the Government’s concern is that the drafting is not invented here, I hope that they can find a way of explaining that there are two roles in the situation which the noble Baroness set out.

[Lord Keen of Elie]

I wonder whether I may respond briefly to that and then make a further observation. In circumstances where somebody is in a customer-facing role and uses only British Sign Language, they will, as a matter of practice and pursuant to the Equality Act 2010, have available to them a British Sign Language interpreter. So they will be communicating in a customer-facing role, together with a British Sign Language interpreter.

I do not accept the interpretation of the clause that has been advanced by the noble Baroness, Lady Hamwee, but, having regard to the considerations of time, if nothing else, I will take this matter away and reflect upon the observations that have been made.

[Lord Shipley]

I thank the Minister for that. I think that that would help because I had not understood what the problem was with making this amendment to the Bill. I hope that, if we come back to this matter on Report, we may have some greater clarity on it because it seems to me that that would solve the problem.

[Lord Keen of Elie]

I am obliged to the noble Lord. He will appreciate that I, too, am concerned about whether it is necessary for such a provision to appear in the Bill. Our view is that the point made by the noble Baroness, Lady Lister, is an important one but that it is already accommodated by the terms of the Bill. However, as I said, I will reflect on that.

I turn to the observations made by the noble Baroness, Lady Hamwee, in addressing Amendments 242C, 242G and 242J regarding the implementation of the various duties, as well as the observations made by the noble Lord, Lord Rosser, on the question of public sector workers.

Beginning with Amendment 242C and the question of public and private sector workers, I shall seek to allay the concerns of the noble Baroness but will resist the amendment. We have no desire at this time to lay regulations before further consultation. At present, the Government are committed to carrying out an open consultation before calling on the reserve powers to expand the scope of the duty to the private and third sectors. That is why the provision is expressed in its present form.

The government response to the open consultation, which is scheduled to be made available to noble Lords for our Report stage discussion, will provide preliminary views on this matter. At present, the responses are quite balanced. Many welcome the expansion specifically for the safety and comfort of patients in the social care sector, for example. Others are understandably concerned in case any costs of enhanced recruitment practices have to be passed on to public authorities which are contracting. We do not accept that such costs will increase. Public authorities can simply make job descriptions more specific; there is no need to increase costs. So we do not consider it necessary at this stage to contemplate the proposal in Amendment 242C.

Regarding the noble Baroness’s second amendment, Amendment 242G, I seek to provide reassurance that the principal focus of the code of practice underpinning this duty will be to assist public authorities in setting language expectations for different job roles. I hope, therefore, that she will agree that there is no need to provide for this in the Bill, as it will be an element of the code of practice.

I am conscious of the variations that may occur so far as fluency in language is concerned. Indeed, as a Scot, it is a matter of particular concern to me as well. Clearly fluency will be determined by the employer—and, in this context, by the employer alone.

[Baroness Hamwee]

My Lords, to be absolutely precise about this, I hear what is intended regarding the code of practice but can the Minister confirm that,

“different provision for different purposes”,

encompasses my point about different roles? That is the wording in the Bill.

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[Lord Keen of Elie]

I can indeed confirm that. That is the purpose of the provisions in the code of practice.

[Baroness Hamwee]

I am grateful.

[Lord Keen of Elie]

I quite understand the spirit of the noble Baroness’s third amendment, Amendment 242J. The Government intend to review the implementation of this policy. We will commit to doing so in the government response to the recent consultation on the draft code of practice.

On further inspection, the details of the report described in the amendment appear to impose a significant reporting burden on public authorities. The Government’s review will certainly look to cover the principles of the recommendation, such as setting proportionate standards for job roles and avoiding cases of discrimination, because these were the main areas of concern voiced by respondents to the recent open consultation. So these points will most certainly be addressed in that context. Regarding the position of Network Rail, if there are public sector workers there, they will be covered by the initial provisions. As they move into the private sector, they will be covered by the further provisions that will be brought forward following consultation. I hope that reassures the noble Lord, Lord Rosser. I do not understand that there are any provisions regarding the National Health Service in the Bill. In these circumstances, I invite noble Lords not to press their amendments.

Amendment 241B agreed.