My Lords, I am most grateful to the noble Baroness, Lady Brinton, for tabling her regret Motion, which sets out so well why these regulations should be withdrawn. Having challenged the proposals to use X-rays in the sensitive matter of
age assessment in both recent immigration Bills in the early hours of the morning, I find it a relief to be debating the matter today at a civilised hour. The noble Baroness, Lady Neuberger—a fellow veteran of those debates—very much regrets that she cannot be here in time to speak but she has authorised me to speak on her behalf. Some of what I say will repeat points that have already been made but they are important and bear repetition.
It is unclear to me why these regulations are being brought forward now, given that the Explanatory Memorandum to the Home Office regulations states that
“the policy and design are still under development”
and gives that as a justification for the lack of an impact assessment, as the noble Baroness, Lady Brinton, pointed out. This clearly did not impress the SLSC, which described it as “sub-optimal policy-making”. It suggested that we might wish to press the Minister on why this approach was taken and to provide a clear indication of the costs and wider implications for health service provision. As the Minister will have read its report, no doubt he is briefed to provide a response, although the Minister in the Commons failed to do so when that point was raised.
The committee was similarly unimpressed with the lack of real consultation. In its written questions to the Home Office, it asked various questions about what the Home Office described as engagement with key stakeholders. The response simply said,
“the MoJ to answer this section”,
but answer came there none in the MoJ statement other than reference to a statutory consultation to which it had just three responses. Can the Minister please enlighten us now about the responses to the engagement with key stakeholders and tell us who they were?
One point raised in response to the MoJ’s statutory consultation that is worth noting here is the poor representation from the dental community on the Age Estimation Scientific Age Committee, considering that dental X-rays are one of the proposed practices. It was the British Dental Association that first contacted me with regard to the age assessment clauses in the then Nationality and Borders Bill. It is just one of a number of professional bodies that have raised concerns—notably, the Royal College of Paediatrics and Child Health, the BMA and the British Association of Social Workers have also done so—together with children’s and refugee organisations. They are surely stakeholders so what engagement was there with them? Why do their concerns appear to have been ignored?
What particularly struck me when we debated the clauses giving rise to these regulations were the ethical concerns raised by the BDA and the RCPCH at the prospect of the use of X-rays on children and young people without any medical justification. Those concerns have not been allayed. One line of justificatory argument used by the Government and the Minister is that the use of X-rays is in line with common European practice. However, the Helen Bamber Foundation, whose earlier work was so important in challenging the Government’s figures on the number of adults posing as children, has questioned that line of argument, as the SLSC notes.
According to the foundation, a growing number of legal decisions in Europe have held that the scientific methodology is not sound enough to be relied on. It quotes the Council of Europe as concluding this:
“There is a broad consensus that physical and medical age assessment methods are not backed up by empirically sound medical science and that they cannot be assumed to result in a reliable determination of chronological age”.
The CoE points to evidence of their harmful impact on the physical and mental health and well-being of those undergoing age assessment and thus advises that their use
“should be reduced to a minimum”
and should
“remain a measure of last resort”.
Although the SLSC did not feel able to assess the strength of the arguments around international comparisons, it expressed its expectation that the Government take into account any changes in the legal position or practical implementation elsewhere, given that they have cited international approaches in support of the policy. Will the Minister give us an assurance that the Government will do so?
Another argument used in the Commons debate on the regulations was that Merton assessments are very time-consuming, yet it has also been emphasised that scientific methods, which all are agreed cannot provide a definitive answer, will be used alongside Merton assessments; presumably that will make the whole process even more time-consuming. Forgive me for my cynicism but I cannot help but fear that, ultimately, the plan is to replace Merton assessments with so-called scientific methods. Can the Minister give us a categorical assurance that that will not be the case?
A critical issue mentioned by the noble Baroness, the SLSC and those submitting evidence to it concerns consent. In its response to the committee’s questions on the subject, the Home Office pointed out that the regulations are made under the Nationality and Borders Act, not the more recent Illegal Migration Act. However, that is not of itself sufficient to assuage concerns. Although it is welcome that the Home Office does not feel ready to go ahead with a lack of consent having automatic consequences, the Children’s Commissioner is pressing for an assurance that the power will not come into force at all.
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The fact is that, to quote the Explanatory Memorandum,
“decision-makers must take refusal to consent to the use of the methods specified without reasonable grounds into account as damaging”
to a person’s credibility, alongside other relevant evidence—or negative inference, as the Minister put it. The SLSC was clearly sceptical as to whether this was sufficient to meet the concerns raised, including by the AESAC and the Children’s Commissioner, about supposedly informed consent. Perhaps the Minister would like to comment on that.
I would also like to press the Minister on the meaning of “reasonable grounds” or “without good reason” for refusal to consent. Both phrases are used in the Explanatory Memorandum, but nowhere are we
told what would constitute reasonable grounds or good reason. Given the relevance to the operation of these regulations, it is not good enough to expect us to wait until regulations are tabled under the Illegal Migration Act, as the Explanatory Memorandum says they will be.
In its report on the latter Bill, the Joint Committee on Human Rights commented on the Home Office’s failure to set out what would constitute a reasonable ground for refusal and called on the Home Office to issue guidance as soon as possible setting out what would constitute reasonable grounds for refusing consent. Has such guidance been drawn up? If not, why not? If so, why has it not been shared with Parliament? The absence of such public guidance, in my view, constitutes yet another reason why these regulations should be withdrawn.
The operation of the refusal to consent provisions needs to be a key part of the monitoring of the age-assessment provisions. The SLSC underlines that close monitoring and review, with adaptation as necessary, are “vital” and invites us to question the Minister on how this will be achieved. The Explanatory Memorandum simply refers to “internal monitoring and review”. What form will this monitoring take, and can we have an assurance from the Minister that the results will be reported to Parliament, given the high level of concern?
In conclusion, I strongly support this amendment, for the reasons set out in it and that I have discussed, but also because the whole exercise is based upon a false premise about the proportion of age-disputed children found to be adults and apparent lack of concern about the safeguarding issues arising when children are wrongly classified as adults, as raised by the interim AESAC. Newspaper reports have suggested that this can lead to children wrongly being put in adult detention centres, or even adult prisons containing sex offenders, or made to share hotel rooms with adults. I have yet to hear a convincing response to the ethical concerns raised by professional bodies, some of whose members may be called on to operate medical procedures that they believe to be harmful in this context. I hope that today’s debate will cause the Government to think again.