My Lords, I speak to Amendments 146 and 148 in my name and that of the noble Baroness, Lady Neuberger, who has sat there so patiently—well, I am not sure about patiently, but she has sat there so long, getting increasingly frustrated, I think, at the late hour, and understandably so. I am really grateful to her for staying to give her support. I speak also in support of Amendment 147, to which I have added my name. I have tabled my amendments on behalf of the British Dental Association, which also supports Amendment 147, and I am grateful to the association for its help. Its grave concerns echo those of many relevant professional bodies such as the BMA, the Royal College of Paediatrics and Child Health, and the British Association of Social Workers, together with children’s and refugee organisations, the UNHCR and the JCHR.
It is regrettable that the entire content of Part 4 was added towards the end of the Commons Committee stage, meaning there was no pre-legislative scrutiny of the controversial measures in this part, making it impossible for MPs to table amendments to it in Committee. This was quite rightly criticised by the Constitution Committee. It is adding insult to injury that we are now expected to scrutinise these important clauses in the middle of the night—at 2.20 am. I just want that noted in Hansard: 20 past two in the morning. These are really significant clauses, and this is absolutely ridiculous. I want that put on the record. An issue as important and sensitive as this deserves detailed and in-depth scrutiny, and the Government have made it very difficult to deliver that. Just notice how many noble Lords there are left here. I am amazed that there as many as there are, but this is not the kind of scrutiny these clauses deserve, and it will be important that we scrutinise them better on Report than we otherwise would have.
Reading the briefings from various professional organisations, I think that two clear messages recur. First, the use of so-called scientific methods to assess age in this context involves a wide margin of error. Secondly, it is unethical. I repeat that: it is unethical. The method mentioned most often in the Home Office communications is dental X-rays. I remind the Minister that the British Dental Association has been unequivocal in its condemnation of the use of dental age checks and has vigorously opposed the use of dental X-rays to establish the age of young asylum seekers. It considers this method highly inaccurate for assessing age, but crucially points out how unethical it is to expose children to radiation when there is no medical benefit. X-rays might not be considered an invasive procedure, but they carry a small risk of long-term physical impact, the association tells me. This risk is cumulative. Successive exposures increase the risk, meaning each exposure over a lifetime must be clinically justified. The BDA says that:
“For this reason best practice in this area dictates that exposure to radiation should be kept as low as reasonably possible … X-rays should be carried out … only where there is a well-defined potential clinical benefit, which must always outweigh the potential clinical harm.”
Clearly, if used for age assessment, an X-ray carries no clinical benefit. Importantly, this method is also not nearly as accurate as the Home Office would have us believe. The BDA points out that:
“Numerous studies have shown that, despite improving technologies, the use of dental X-rays can over- or under-estimate the age of adolescents significantly … The rate of dental maturation can be affected by factors such as nutritional status, infections … which are highly variable among migrant populations in particular. Genetic factors and ethnicity can also cause variation.”
While a number of European countries have been using dental X-rays for age assessments, many are showing a desire to move away from this method. For example, in Italy, dental age checks were used widely until 2017. However, the difficulty in interpreting results, especially considering medical factors such as malnutrition as well as ethical concerns over the procedure, meant that the country moved towards a broader spectrum of examination, and now any radiological tests have to be authorised by court order as a last-resort measure. Dentists and doctors are health professionals, not border guards. They should be allowed to put their patients’ health first and not be put in a position to make judgments that are clinically or ethically inappropriate.
In the light of all this, I am very concerned about these clauses, particularly Clause 51. It states that the scientific methods that will be used for age assessment will be specified in regulations only after the Government have sought scientific advice that the method is appropriate for assessing a person’s age, but it does not specify what would constitute “scientific advice” for this purpose. The supposed safeguard needs to be significantly strengthened to ensure that the relevant medical, dental and scientific professional bodies are consulted, not just on the accuracy of the proposed methods but on whether the method is appropriate and ethical. Amendment 146 ensures that there are stronger safeguards in this respect.
I am also concerned that Clause 51(9) dictates that age assessment methods which are not specified in regulations under subsection (1) can nevertheless still be used. This means that, even if a method were considered inaccurate, unethical and/or otherwise inappropriate when the Government sought scientific advice, it could still end up being widely used. I would appreciate the Minister’s explanation as to why he believes that such a loophole is necessary and why we would want to allow methods which, after careful consideration, were deemed by experts not to be appropriate still to be used. I urge the Government to delete Clause 51(9) as my Amendment 148 does.
Finally with reference to Amendment 147, under Clause 51(6) and (7) an age-disputed person would have little choice but to agree to any proposed method. That is not free, informed and genuine consent—a key legal requirement before any medical procedure is carried out. This is, as the BDA says, quite simply coercion. I urge the Minister to consider the potential scenario where an underage asylum seeker who might well have suffered abuse, including possibly sexual abuse, is considered not credible because they refuse to undergo an invasive dental examination, and I urge him to delete Clause 51(6) and (7).
Finally, I also urge the Minister to ensure that the newly created Age Estimation Science Advisory Committee, which will give guidance to the Government on scientific methods of age assessment and set out best practice on the use of such methods, includes
members representing all the relevant dental, medical and scientific national bodies. I hope he can give us an assurance on that point.