Borders, Citizenship and Immigration Bill [HL]

I hope that the Minister will be able to accept these amendments today because they reflect a most serious concern that has already been referred to—the trafficking of young children. The first two amendments in this group can be seen as providing belt and braces support for Amendment 117B. That amendment effectively inserts into the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 the additional considerations that a person is being exploited if he or she is under 18 and in a position of vulnerability or subject to an abuse of power. It has not been easy to get this clause into the Bill, but this is the most effective of closing the loophole that the Government have allowed to arise in the protection that the law provides for very young children. I thank other noble Lords and outside organisations, including the Immigration Law Practitioners’ Association and the Refugee Children's Consortium, for their work in this area and for their briefing. There is a very real and dangerous loophole that I want to explain to the Committee, but I want to make the point that while we applaud the Government for carrying forward Clause 51, which is largely thanks to my noble friends on the Opposition Benches, none of us can say that this Bill fully covers the welfare of children unless we look at the lacuna that has arisen in the present law. I know that the Government share absolutely the aim of protecting the youngest and most vulnerable members of society because they have told us that on innumerable occasions. It is my fervent hope, therefore, that the noble Lord will take on board what I and other Members of the Committee have to say and accept these amendments. If we return to the debate on the 2004 Bill, now the Act, when the provisions on the trafficking of children in what is now Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 were being debated, we can chart the course of this story. The Government accepted that their original drafting of that Bill was inadequate to deal with the trafficking of babies and young children and, potentially, other people with special vulnerabilities. The Government amended the Bill to address that. It was considered at the time by some in this House that the government amendment, which is now part of Section 4 of the Act as passed, was inadequate and hence an amendment was tabled to address that. At Report in your Lordships' House on the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 my noble friend Lady Anelay raised the risk of a lacuna and was supported by many other noble Lords. The concern then, as now, was that the trafficking provisions were suitable to help only those people who were in a position to know that they were being trafficked. The noble and learned Baroness, Lady Scotland of Asthal, offered an assurance that the Government did not think that the lacuna existed; and said that in any case the courts would be able to construe Parliament’s intention. The noble and learned Baroness referred to the doctrine in Pepper v Hart 1993, AC593, which held that a reference can be made to ministerial statements in Hansard only if legislation is ambiguous. Under the Pepper v Hart doctrine, if it is not ambiguous, the courts cannot look at the case. It seems that the existing legislation is not ambiguous: it covers only those people who are aware that they are being induced or coerced. A baby, or a very young or vulnerable person, cannot be in that position. They fall foul of a loophole in the law. The Crown Prosecution Service does not consider that the existing legislation allows it to prosecute in certain cases of child trafficking. The result of this can be seen in the Peace Sandberg case. Noble Lords may remember that on 16 May 2008, Peace Sandberg was jailed for 26 months at Isleworth Crown Court after being found guilty of facilitating illegal entry into the United Kingdom. The illegal entry in question was that of a baby, believed to have been purchased in Nigeria, allegedly so that Miss Sandberg could claim to qualify for priority housing in this country. Importantly, Miss Sandberg was not prosecuted for trafficking, because it was concluded that Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was inadequate to capture the trafficking of babies and very small children. That is the situation that our amendment is designed to prevent. It is no good to say that offenders will be caught and prosecuted for another offence, as in the Peace Sandberg case, because we cannot always know that that will be the case. There is a problem with the existing law: many organisations say so. Our amendments would fix that problem. They would ensure that babies and young children are covered by the Act. I feel sure that no one on any Bench in your Lordships’ House would argue against strengthening the Bill in its protection of the most vulnerable. We are dealing with a disgusting crime and I feel hopeful that the Minister will accept our proposals. I beg to move.