Illegal Migration Bill

Baroness Neuberger Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I will speak to Amendments 123 and 140, following on the points made by the right reverend Prelate and the noble Baroness, Lady Lister of Burtersett. Amendment 123 in the name of my noble friend Lord Anderson, and to which I have added my name, is directed to the provision about judicial review in Clause 55(5), to which the right reverend Prelate drew our attention. His amendments ask for subsections (2) and (4) to be taken out, while this amendment asks for subsection (5) to be taken out, so I am building on the very impressive speech he made earlier.

The provision we seek to have removed states that a court “may quash the decision” relating to a person’s age only on the basis that it was wrong in law, not because

“the court considers the decision … wrong as a matter of fact”.

That is a very considerable restriction. As the Constitution Committee pointed out in its report on the Bill, errors are normally made in this context,

“not because of an error as to the definition of ‘a child’”,

which should be an issue of law, but

“because of problems with evidence to prove that an individual is under 18”.

Indeed, it is very hard to think of any error of law, in the proper sense of that phrase, that might arise in the context of age assessment. The effect of this restriction is to exclude judicial review, even in a case where there is an error of fact which no reasonable decision-taker, taking reasonable care, would have made. That is quite an extraordinary situation to be created by a provision in a Bill of this kind.

The report of the JCHR, which has been referred to often in these debates, says:

“Given errors of fact are highly likely when conducting age assessments based on subjective judgment, this is extremely concerning and gives carte blanche to Home Office errors”.


Without elaborating on that point—instead, I endorse all the points made by the right reverend Prelate—we suggest, in this amendment, that the restriction in Clause 55(5) is unreasonable, given the nature of the assessments that have been made; therefore, it should simply be deleted from the Bill.

While Amendment 123 is about something to be taken out from the Bill, Amendment 140 raises a point referred to by the noble Baroness, Lady Lister. It is about the power in Clause 56(1) to make regulations about the effect of a decision by a person

“not to consent to the use of a specified scientific method for the purposes of”

that person’s

“age assessment … where there are no reasonable grounds for”

that decision. The scope of the power, as explained in Clause 56(2), extends to setting out the circumstances in which civil legal services—in other words, civil legal aid—is not to be available to that person, and the person

“is to be treated as if the decision-maker had decided that”

the person

“was over the age of 18”.

It is significant that the clause does not go so far as to say, without qualification, that, if there are no reasonable grounds for the person’s decision not to consent, the person is to be treated simply as over the age of 18. The approach, which I suppose is to be commended, is to say that it all depends on the circumstances—that is, the purpose of the regulation which will be designed to set out what those circumstances are. Nevertheless, the exercise of this power has serious consequences for the person in respect of whom the power is to be exercised, as the Constitution Committee pointed out in its report.

At present, this power to make regulations is subject to the negative procedure, which we suggest is not appropriate, given the nature of the power being referred to. So our amendment seeks to add regulations made under this power to the list of regulations in Clause 63(4) that

“may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.

Given the wide scope of this power and the lack of definition of how it will be exercised, we suggest that it is entirely appropriate for it to be added to that list and not subject to the negative procedure. Those are the reasons that the Constitution Committee wishes to put forward, and I give them in support of the point made by the noble Baroness, Lady Lister.

[Baroness Neuberger (CB)]

My Lords, I thank the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Lister of Burtersett, for what they said—they said most of what I wanted to say. I declare an interest as chair of University College Hospital’s foundation trust and the Whittington Hospital NHS trust, because it is relevant to what I will say.

When we debated, rather later than this, the Nationality and Borders Bill in February 2022, as the right reverend Prelate observed, we debated something that allowed the Government to introduce regulations that specified scientific methods that could be used to assess age, including examining or measuring parts of a person’s body and analysing saliva, cell or other samples and the DNA within them. As we heard, the use of scientific methods to assess age has long been the subject of debate, and professional medical bodies have been unequivocal in rejecting the use of dental X-rays, bone age and genital examination as extremely imprecise as methods for assessing age, quite apart from being singularly unpleasant. I have not yet met a health professional who thinks that we should use these methods to assess the age of children or young people.

Yet the legislation went ahead and is now being strengthened, and young people who do not consent will be assumed to be adults, which is really worrying for all sorts of reasons already stated in this House. But, of course, it also undermines the fundamental premise that people have to be able to give free consent to any medical procedure or examination and should not be pressured into undergoing them. In the way that these clauses, and this particular clause, are drafted, there is no way in which these young people are not being pressured into undergoing these examinations and procedures. We should take this very seriously because almost every medical and healthcare body would say that this is unethical.

We debated much of this only 15 months ago. Back then, I said that there was wide concern about age assessments among the various voluntary and statutory agencies concerned with young asylum seekers and among many medical, dental and scientific bodies. But, as I said last week, I chair a small family charity in memory of my parents that provides opportunities for education for young asylum seekers, most of whom are slightly older than the group we are discussing here—but a few have not been. Without exception, they all say that the worst of all this is not only the procedures they are being asked to undergo but the fact that they are not believed. It is almost as if there is an assumption that they are not telling the truth.

It is clear that the use of some of these procedures is unethical—certainly if it is not for the young person’s benefit. Since that is the case, can the Minister tell the Committee why a young person or child who does not give consent to these procedures should always be disbelieved, and why they should be regarded as an adult if they do not consent? As a parliamentary body, we have to look at this really seriously. If we do not trust young people at all to tell us the truth, we are making a terrible assumption about those who come to this country, often traumatised and very vulnerable, looking for a better future.

[Baroness Brinton (LD)]

My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Durham, the noble Baronesses, Lady Lister and Lady Neuberger, and the noble and learned Lord, Lord Hope. In this group, I propose that Clauses 55 and 56 should not stand part of the Bill. I will not repeat the points or arguments made so eloquently by noble Lords, save to say to the Minister that I echo all the questions that they posed.

The noble and learned Lord, Lord Hope, referred to the errors with age assessment. Given those, for me one of the key points was made by the British Association of Social Workers, which said that social workers are currently responsible for compiling age assessments, known as Merton assessments, but they are designed to ensure that the children’s needs are met—not for immigration purposes. That raises an issue that many doctors have also raised: that these professionals are registered, and in that registration have to abide by the ethics committee of their registration body, and therefore the individual that they are serving. The problem with the proposals in Clauses 55 and 56 is that they will become the agents of the Government and will not be there to best provide for the needs of the individual concerned.

Doctors also make the point that it is absolutely unethical to expose anyone to radiation from X-rays that are not for clinical purposes. There are risks associated with overexposure, particularly for young people who are still growing. I know from my own familial experience that there is quite often a debate between doctors about the frequency of MRI scans and X-rays.

The other problem, also covered by others, is that, should a person refuse to have scientific assessments, they will automatically be deemed adults. That is balanced by the comments made by the Children’s Commissioner about Gillick competence. I have not heard anybody else ask the Minister what government body will be responsible for ensuring that anybody who is deemed an adult but in fact is not, and therefore should have been under local authority care, will be able to access medical treatment and any other care that they would have been given had they had looked-after status and been with a local authority. Perhaps the slightly shorter way of saying that is to return to the question that we have covered quite a lot of times here in Committee: what is the role of the Home Office in all this, when the status of the child—or potential child—is not understood?

At Second Reading, when I raised this issue about the technology and asked why the clauses should remain in the Bill, the Minister said that he agreed that the technology was not ready but asserted that the clauses should remain because it was quite probable that it would be ready in a fairly short space of time. All the evidence that we have had, including from the previous Home Secretary’s committee, says that it is not ready and that, although it might come, there is absolutely no clear date on the horizon.

From the perspective of these Benches, the science does not work and there is no firm data or technology to show that it will; all the professionals involved have ethical considerations about the registration bodies, and these two clauses would force them to move away from that; carrying out tests such as MRI scans and X-rays for non-clinical reasons could well damage the people undergoing them; and, finally, there is the question of whether the child can give consent, not just because of Gillick competence but because their language ability and the trauma they have been through might not allow them to do so under duress. That is why we believe the only solution is to remove Clauses 55 and 56.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

It is difficult to debate these measures. As I say, in the event that the situation is advanced by the development of these scientific methods and regulations are brought forward, we can have further discussions about the provisions on that occasion. However, in principle, there is nothing wrong with having available a protection that would mark the fact that, if you have scientific age assessment, simply saying “I don’t consent” would provide you with an opportunity not to adhere to the scheme that applies to everyone else. For those reasons, at an abstract level, there is no reason you could not have a situation where willingness to undertake a scientific age assessment is given full weight by a decision-maker in a way that, if someone refused to participate, it might not be. It always depends on the circumstances in regulations.

[Baroness Neuberger (CB)]

I am sorry but can the Minister explain how this can be acceptable when subjecting young people—children—to investigations such as X-rays that are not at all for their benefit is inherently unethical? How can this be justified in the way he has just done?

[Lord Murray of Blidworth (Con)]

I am not sure that I agree with the allegation that this is unethical because, as the noble Baroness may recall, on a previous occasion when the principles of age assessment were discussed in this House, my noble friend Lord Lilley observed that the radiation risk in taking an X-ray is comparable to that of a transatlantic flight. I suggest that, as long as the appropriate safeguards are in place, there is nothing in principle wrong with inviting an applicant who says that they are under 18 to participate in an X-ray procedure.