Justification Decision (Scientific Age Imaging) Regulations 2023
(5 months ago)
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19:28 - Division on the Amendment to the Motion - Ayes: 165 / Noes: 86 - Amendment to the Motion agreed.
Lord Sharpe of Epsom
That the draft Regulations laid before the House on 13 September be approved.
Relevant document: 55th Report from the Secondary Legislation Scrutiny Committee, Session 2022-23 (special attention drawn to the instrument)
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank all noble Lords for attending this debate. The first of these instruments, the Justification Decision (Scientific Age Imaging) Regulations 2023, sets out the affirmative decision made by the Lord Chancellor and Secretary of State for Justice on the Home Office’s application to use ionising radiation, also known as X-rays, as a scientific method of age assessment for age-disputed individuals subject to immigration control.
The second instrument, the Immigration (Age Assessments) Regulations 2023, has been laid by the Home Office to specify scientific methods of age assessment, namely analysis of X-ray and MRI images of certain body areas. By specifying scientific methods in this instrument, a decision-maker will be required to take into account a refusal to consent to the specified methods without good reason as damaging to an age-disputed person’s credibility.
On the use of X-rays, I remind noble Lords that the Ministry of Justice, as the justifying authority, has determined the practice justified under the Justification of Practices Involving Ionising Radiation Regulations 2004.
A regret amendment has been tabled by the noble Baroness, Lady Brinton, against both statutory instruments, and therefore the debates have been grouped. The Ministry of Justice has made the justification decision independently from the Home Office, as required by the 2004 regulations. I am sure noble Lords will understand that I cannot speak to this justification decision, as it is imperative that the justification authority is functionally separate from all other persons concerned with the promotion or utilisation of the practice. However, I can speak to the process the Ministry of Justice undertook to make this decision.
I turn first to that instrument. Under the Justification of Practices Involving Ionising Radiation Regulations 2004, the Lord Chancellor has the powers as the nominated justifying authority to determine whether the individual or societal benefits of this practice outweigh the health detriments, and therefore whether it can be justified. Following a thorough statutory application, consultation and decision-making process, the justifying authority has determined that the Home Office’s proposed practice was a new class or type of practice and that this can be justified, subject to the following conditions.
The first condition is that scientific age assessment involving ionising radiation is limited to radiography of the third molar and/or of the hand and wrist only. The use of computed tomography, or CT, scans for the purposes of assessing age is not permitted. The second is that the results of radiography of the third molar and/or of the hand and wrist must be used to assess only whether there is more support of the claimed age of the age-disputed person, or the age that assigned social workers have assessed them to be following a Merton-compliant age assessment. A likelihood ratio approach must be used to compare the weight of evidence.
The Home Office has committed to ensuring that all exposures are appropriate under the relevant legislation. The Home Office is also committed to exploring the viability of non-ionising scientific methods of age assessment, with the aim of eliminating the use of ionising radiation in age assessments if and when the effectiveness of such alternative methods is validated. The justifying authority notes this commitment and encourages the Home Office to cease using X-rays when alternative methods are validated.
The Lord Chancellor wishes to thank the consultees for their detailed and wide-ranging contributions in helping him make his decision, and the Secondary Legislation Scrutiny Committee for its thorough scrutiny of this statutory instrument.
I turn now to the Home Office instrument—the Immigration (Age Assessments) Regulations 2023. These regulations are being introduced to improve our current age assessment process, which is under pressure from rising numbers of age disputes, and relate to the introduction of scientific methods of age assessment. Since 2017, there has been an upward trend in the number of unaccompanied children entering the UK. In 2019, 3,775 unaccompanied children applied for asylum. In 2022, this had risen by 39% to 5,242. There has also been a rise in the number of age disputes; between 2016 and June 2023, there were 11,275 age disputes raised and subsequently resolved following an age assessment, of which nearly half—49%, 5,551 assessments—found the individual to be an adult.
Age assessment is a complex and difficult task. Many unaccompanied young people claiming to be children arrive in the UK without official documentation. While some are undoubtedly under the age of 18, in many instances it is not clear-cut. It is an unfortunate reality that some individuals misrepresent their age to gain an unfair immigration advantage. The public would rightly expect us to strengthen our processes accordingly.
The introduction of scientific age assessments is intended to improve our age-assessment system by providing additional biological evidence to aid better informed and more thorough decisions on age. Scientific age assessment will be one piece of evidence used alongside the existing Merton-compliant age assessment process, which is a holistic, social worker-led assessment. Importantly, the UK is one of very few European countries that does not currently employ scientific methods of age assessment. These regulations pave the way to the UK being more aligned with international practices.
This instrument specifies scientific methods for age assessment purposes, which are magnetic resonance imaging of the clavicle and the bones of the knee and radiographs of the lower wisdom teeth and the bones of the hand and wrist. These images will be used to assess the skeletal and dental development, or maturation, of the bones and teeth. These methods have been recommended by the Age Estimation Science Advisory Committee.
Once scientific methods have been specified, where an age-disputed person refuses to consent, without reasonable grounds, to the use of those methods as part of the assessment of their age, a decision-maker must take into account that refusal to consent as damaging the age-disputed person’s credibility. This is referred to as “negative inference”. The damage to credibility included in this instrument is only for the purpose of deciding whether to believe any statement they made that is relevant to the assessment of their age, not for deciding the person’s credibility in their wider immigration claim.
The Home Office considers negative inference appropriate and proportionate to deter individuals who deliberately misrepresent their age in order to game the system. A refusal to consent to a specified scientific method of age assessment without reasonable grounds would not automatically preclude the individual being considered a child. That refusal would still need to be taken into account alongside other relevant evidence as part of a comprehensive, holistic age-assessment process by social workers.
Noble Lords should also note that there has to be reasonable doubt about an individual’s age for them to go through the age-assessment process and be reassured that those who are clearly children will be identified at the initial age-determination process at the border.
I should note that the Supreme Court judgment in relation to the UK’s agreement on the relocation of individuals to Rwanda bears no impact on the Immigration (Age Assessments) Regulations. Protecting genuine children, preventing abuse of the immigration system by those who knowingly misrepresent their age and improving our asylum system overall remain a priority for the Government.
I look forward to hearing the views of this House on the instrument before us today. I commend both sets of draft regulations to the House. I beg to move.
Amendment to the Motion
Baroness Brinton
At end insert “but that this House regrets that (1) the Regulations are premature as the policy is still under development, (2) it is unclear whether a person can freely consent to the specified tests, (3) there is no defined mechanism for the Secretary of State to monitor and review the policy, and (4) neither an impact assessment, nor costs associated with the Regulations, have been presented to Parliament for scrutiny; and calls on His Majesty’s Government to withdraw the Regulations until the policy has been developed in full and an impact assessment and costings have been provided to Parliament.”
Baroness Brinton (LD)
My Lords, I have laid a regret amendment to both the Motion on the Justification Decision (Scientific Age Imaging) Regulations and the Motion on the Immigration (Age Assessment) Regulations. I did not do this lightly but believe that the Government are contradicting themselves in moving ahead with legislation that medical and dental experts say should not be used yet. Despite substantial discussions on amendments during passage of the Illegal Migration Bill, many of which were supported across the House, when faced with the evidence on whether medical evidence, such as X-rays of wrist bones and third molars, was reliable, the noble Lord, Lord Murray of Blidworth—I am pleased to see him in his place—said on 12 June at the Dispatch Box:
“I assure the noble Baronesses, Lady Lister and Lady Brinton, and other noble Lords that the regulation-making power will not be exercised until the science is sufficiently accurate to support providing for an automatic assumption of adulthood”.—[Official Report, 12/6/23; col. 1814.]
So, can the Minister please explain what changes have happened in the science world in the past six months to change the Government’s approach on this?
Further, there is no provision in the SI for future monitoring and review of the policy. The Explanatory Memorandum for the age-assessment SI quotes the contested teeth and bone measurement and states:
“As per the AESAC report, the Home Office will not use the scientific methods to determine an age or age range, but rather use the science to establish whether the claimed age of the age disputed person is possible. This will be done by determining which hypothesis the science is more supportive of; the hypothesis that the assigned age by the social worker is possible versus the hypothesis that the claimed age is possible”.
The Secondary Legislation Scrutiny Committee in its 55th report for the 2022-23 Session criticised both sets of regulations. It states:
“The Government did not provide an Impact Assessment or any estimates of the costs, stating that ‘the policy and design are still under development’. This is not the way in which a policy should be made; it should only be brought forward once its costs and wider impact have been analysed”.
Baroness Lister of Burtersett (Lab)
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.
Lord Kerr of Kinlochard (CB)
I know the convention of the House is that I should say it is a pleasure to follow two such brilliant speeches from the noble Baronesses, Lady Brinton and Lady Lister, but it is not actually a pleasure—it is intimidating; one fears the contrast. Mine will be an amateur contribution after those of two professionals.
I am grateful to the Secondary Legislation Scrutiny Committee for its report, particularly because it draws our attention to the evidence the Home Office gave in answer to its questions. The answers from the Home Office struck me as a little unsatisfactory and, in one or two cases, astonishing. With your Lordships’ permission, I will give just one example, on the question raised by the noble Baroness, Lady Brinton, about the absence of the impact assessment. Here was the Home Office’s answer:
“The Home Office has not produced”
an impact assessment
“due to the uncertainties regarding wider implementation”
of scientific age assessment
“within the end-to-end age assessment model”.
If you can understand that, you are smarter than me. But it gets better:
“It is the Home Office’s view to wait until we have an appropriate level of detail to better reassure and inform the public of our plans, especially given the controversial nature of the policy. As policy and operational development continues, the Home Office will take a view as to when it is appropriate to produce an impact assessment”.
Well, that is nice of them. If you are buying a house, it is quite a good idea to have the survey done before completion of the deal. If one is buying shares, it is quite nice to see the prospectus for the sale of the shares before one makes the investment. And the purpose of an impact assessment is to accompany the legislative proposal and inform the legislator.
It is, of course, very important that the Home Office should monitor how these age assessments work out, but that is a completely different question from the need to provide an assessment ab initio of what the impact is expected to be. For the Home Office to say that it is better
“to wait until we have an appropriate level of detail to better reassure and inform the public of our plans, especially given the controversial nature of the policy”,
is frankly absurd.
I have four questions for the Minister. The first is really a question from the Children’s Commissioner in the evidence we have seen: can a child truly consent to a procedure if they know they may be punished if they do not consent? The Children's Commissioner thinks not. The young refugee, threatened with X-rays, might be bewildered, traumatised, frightened, and may not understand English; he may not understand the questions put to him or anything of what is going on. The Age Estimation Science Advisory Committee advised in January that
“no automatic assumptions or consequences should result from refusal to consent”.
Why have the Government ignored what the committee said?
My second question is: how safe is the procedure? The committee is clearly uneasy. It says:
“The use of ionising radiation must be limited, with the ultimate aim of eradicating it”.
That is the position of the Government’s official advisers. The Council of Europe says that that the use of radiation for age assessment is
“in conflict with medical ethics and potentially unlawful”.
My third question is: how reliable is the procedure? As the noble Baroness, Lady Lister, has mentioned, the British Dental Association does not like it at all. It believes that assessment using X-rays is inaccurate and unethical, and, as the noble Baroness mentioned, the Royal College of Paediatrics and Child Health, the BMA and the BASW all share that concern. As the noble Baroness also said, the Government themselves are aware, and admit, that the science is inaccurate. In their evidence to the committee explaining why they are not using the draconian automaticity procedures in Section 58 of this year’s Illegal Migration Act but are instead using the provisions in last year’s Bill, with the negative inference provision, they say that the procedure is not sufficiently accurate to permit using the 2023 Act. If that is so, how can it be accurate enough for using the 2022 Act, with the negative inference result detrimental to the interest of the refugee?
My last question is: who is to be responsible for carrying out this procedure? Last week, there was some alarm among local authorities when the Minister for Immigration seemed to suggest that the responsibility would fall to them. Who is to be in charge and if it is the Department of Health and the NHS, are they relaxed about the extra workload coming their way? An impact assessment might have looked into that.
The Government should shelve the regulations until they can: tell us how they are to work; conduct a proper public consultation; provide a normal impact assessment in advance; and answer our questions. I should have said at the outset that I used to be a trustee of the Refugee Council but I mention that now. Of course, I strongly support the regret amendments in the name of the noble Baroness, Lady Brinton.
Lord Winston (Lab)
My Lords, in strong support of the noble Baroness, Lady Brinton, and the others who have already spoken in this debate, I would argue that this is primarily a matter of science. On the idea that this is a scientific assessment, it is not. We are using instruments developed by science but the assessment is certainly not a scientific one. I have six questions for the Minister.
First, with regard to bone age and the assessment, can the Minister give us the range for any particular ages? What assessment has been made of the confidence limits and the error bars in this? Without those statistics, you cannot possibly have such a test. I do not believe that these have been published but perhaps I am wrong and he can tell us otherwise.
Secondly, can the Minister tell us what the preceding situations are with those immigrant children? For example, what diet were they on before they came in? Did they have normal calcium in their diet or were they deficient in it? Did they have other issues which might have changed their bone age? That is quite possible.
Thirdly, what is their hormonal status? As we know, some children have pituitary tumours which will change their bone age and these would not be discovered by an X-ray of the wrist or, necessarily, of the lower part of the skull and the jaw. There would be no reason for that child to have symptoms, so that would have to be dealt with as well. There are many reasons why age changes, not least because of mitochondrial activity. Is the noble Lord aware—he might have realised this—that about a year and a half ago we had a Select Committee inquiry on ageing? The ageing process starts very early in life and among the things we had were the hallmarks of ageing. Horvath’s clock, which includes mitochondrial age, for example, has 353 different points which give rise to ageing, yet we still cannot determine somebody’s age accurately within about five years on any of these bases. Of course, it is better with X-rays but certainly not something which we should really be considering in this situation. The diet of that child is most important.
I also suggest to the noble Lord that we have used an assessment in pregnancy which is now regarded as fallible. For a long time, we looked at bone age of babies in utero; for example, by looking at the length of the femur. We now know that all those publications, which resulted in us again and again delivering babies at a certain time, are totally flawed and those assessments are no longer used. It is a great pity that the noble Lord, Lord Patel, who has great experience in this area, is not here but he and I absolutely agree on that. Again, we say that we have to be very much aware of bone assessment.
There are two other issues which have not come up in this debate. I am going to be quick. The risk of ionising age radiation is serious. How do we know that a child might not need another X-ray later on for a medical condition, in which case there will be an accumulative risk, or perhaps has had ionising radiation before getting to the United Kingdom or on their way here? That is one of the issues.
Lastly, the issue of informed consent has not been fully described here and we need to discuss it. The autonomy of the child, or the parent on behalf of the child, is critical here. What does the noble Lord suggest is done if, for example, they X-ray the baby or child’s wrist and find a tumour in the bone? Do they then proceed to undertake some form of medical treatment? Suppose that that tumour is totally benign and could be living there indefinitely, without any harm to the child, but the child then has surgery which would not actually be necessary. That is not just a pretend risk. We really have to consider the risk of scanning people without clear medical evidence.
Baroness Hamwee (LD)
My Lords, I follow all the previous speakers, including that consummate professional, the noble Lord, Lord Kerr of Kinlochard. I have some similar questions for the Minister. I will try to edit as I go so as not to be too repetitive.
I started by wondering whether the Home Office could possibly be in a position to bring forward and implement these instruments. The GOV.UK website shows the Home Office as still seeking to recruit members to the Age Estimation Science Advisory Committee: a behavioural scientist with expertise in interview techniques and someone with expertise in children’s social services. Is that recruitment still going on? The website shows the closing date as having been December 2022. These areas of expertise are surely crucial.
In this contentious area, does bringing forward instruments fall within the “doing everything it takes” message? How far have the Government got in preparing for these biological techniques? A few days before Prorogation, I asked a Written Question about the estimated cost of using X-rays, MRI and any other scientific methods provided by the legislation. The Written Answer, which I was told was a holding answer—because we were of course running out of Session—was:
“The Home Office does not yet hold this information. Work is ongoing to determine the level and type of capacity required to support the imaging service”.
Then on 24 November, a few days ago, I received what was described as “a full response”. I was surprised that it was followed up by letter but here it is. I will not repeat the two sentences I have just quoted, because they are exactly the same. The letter goes on:
“It is anticipated that the service will then”—
that is, after the ongoing work—
“be subject to a competitive procurement process, which will provide final clarity on costs”.
No wonder there is no impact assessment giving costs.
On Report on the Illegal Migration Bill, the noble Lord, Lord Murray, as my noble friend said, talked about the regulation-making power not being exercised
“until the Secretary of State is satisfied that the science and analysis are sufficient to support providing for an automatic assumption of adulthood”.
He also said that the Government will
“continue to seek scientific advice”
to ensure the regulations
“are based on a firm evidential basis”.—[Official Report, 5/7/23; col. 1239.]
Can the Minister say whether the chief scientific adviser to the Home Office and AESAC have provided that basis? One must assume that the Secretary of State—either the Secretary of State in office when the SIs were published or the current one—was appropriately satisfied.
The interim committee in October 2022, which is where the website took me, dealt with proposing an age range and assessing whether the claimed age was possible. I am repeating what my noble friend has said because it is a really important point. The committee also recommended that
“no automatic assumptions or consequences should result from refusal to consent”
to procedures—if that is the right term, because it is certainly not “treatment”. Then, of course, legislation we passed through Parliament allowed for both.
During the passage of the same Bill, the noble Lord, Lord Murray, said, in response to my noble friend Lord Paddick, that refusal to consent can be treated in a variety of ways,
“which will be described in the regulations”.—[Official Report, 12/6/23; col. 1817.]
Where can we find those ways? They are not in the version of the regulations I have been reading. He also said that it is
“crucial that we disincentivise adults from knowingly misrepresenting themselves as children”.—[Official Report, 12/6/23; col. 1812.]
I note the word “disincentivise”; we have heard a lot about deterring immigrants. However, he then said:
“I certainly would not compel any child to participate in age assessment”.—[ Official Report, 12/6/23; col. 1815.]
The problem is that the consequences of refusal are very close to compulsion.
During the passage of the then Nationality and Borders Bill, some of us had a very helpful briefing on age assessment arranged by the Home Office and chaired by the noble Baroness, Lady Black of Strome, who was then, as she described herself, the interim chair of the interim committee. We were given assurances that all information would be triangulated, so I ask for an assurance that the introduction of these techniques does not give them any particular status compared with—to quote an email from the Home Office I received following the briefing—
“views from a psychologist, or any other person with a role in the age-disputed person’s life”.
That speaks for itself.
During the passage of the two Bills the House discussed—not always at a user-friendly hour—the issue of consent linked with capacity and ethical considerations. By definition, the techniques do not benefit the child so it will be interesting to hear how they can be ethical. The House also discussed the culture, background and ethnicity of the young people seeking asylum in the UK who may be subjected to these techniques. I was glad to see that the interim committee report made it clear that socioeconomic factors and ethnicity affect the timing of development.
Home Office guidance acknowledges that
“physical appearance is a notoriously unreliable basis for assessment of chronological age” .
The committee report said that “any methodology should” minimise
“any health risk, whether physical or psychological”,
and that there are many reasons
“not to give consent for biological age assessment … not linked to concealment”.
Is the Home Office guidance being changed to fit the current policy? I doubt that many adults, were they in the same situation, could give informed consent. They could well be too traumatised to do so. We should also be aware that a good many asylum seekers come from countries where “medical procedures” are an instrument of torture.
The Secondary Legislation Scrutiny Committee report, of course in restrained language, was pretty damning. It pointed to the absence of the impact assessment, which has been referred to. The Explanatory Note to the instrument says that
“no, or no significant, impact on the private, voluntary or public sector is foreseen”
as the reason for not producing an assessment. Surely impacts are foreseen; they must be foreseen, including impacts on resources, with staffing and equipment diverted from the NHS for one. If the Minister cannot give a cost or range per person examined, can he give a unit cost for each application of each technique? Can he help the House on whether the health staff are available and whether they are willing to implement these techniques?
The scrutiny committee said that it is “vital”—not a term I can recall seeing before in such a report—
“that the Government closely monitor and review the policy and adapt it as necessary”.
The committee is quite right in saying that
“The House may wish to question the Minister”
on monitoring and evaluation. We do. When can we expect this and what can we expect by way of keeping Parliament updated?
The committee badges the regulations as “politically or legally important”. They are politically and legally contentious too. The techniques are “fraught with difficulty”, to use the words of the Advocate-General for Scotland during debate on the first of the two Bills. The difficulties are not solved by these regulations, which is why we cannot support them.
The Lord Bishop of London
My Lords, I promise that I will be brief. I thank the noble Baroness, Lady Brinton, for moving this regret amendment and thank all those who have spoken so far and so well. I thank the noble Lord, Lord Winston, for pointing out that this is not science; it is the use of scientific instruments. My two concerns relate to consent, as many have spoken about, and to the workforce.
We have spent a long time in the health service over the last couple of decades to improve the way we consent and how people are able to give informed consent. Most of us going for tests and operations will have pages of documents that we will be taken through and then sign. I have concerns around whether people will truly consent. The Royal College of Paediatrics and Child Health has said that
“informed consent is fundamental to all medical practice, and by definition must be free from duress … This directly opposes both the principles of informed consent and the recommendations set out by the independent body commissioned to look at the policy—the Age Estimation Scientific Advisory Committee”.
Questions of capacity have also been raised here. Who will make the decision on behalf of a child if they have no legal guardian present? I am concerned about not only the issue of the X-rays but the impact of being asked to do this psychologically, emotionally and mentally. Could the Minister tell us what consideration has been given to safeguarding and support during and after medical examinations, especially in relation to consent and capacity?
My final point relates to capacity. The House does not need to be reminded that the health service at present—both the estate and workforce—is under pressure. The question is: who will take the X-rays? Will it be radiographers or other trained professionals? Where will the kit be that will be used? I also have a concern around those professionals undertaking this. Has the department consulted with professional bodies, such as those for radiographers? Has the Home Office developed plans for capacity? If so, has this been done in partnership with the NHS and professional bodies?
Lord Harris of Haringey (Lab)
My Lords, as the Minister has not risen, I first declare my interest as the chair of the General Dental Council. I want to make two very brief points, which I do not think have been addressed by the discussion so far. First, the question has to be answered on who is going to carry this out. Are they going to be registered professionals? I should say, incidentally, that in the definition of the noble Lord, Lord Kerr, I am on the amateur breadth of this, so I am not speaking as a professional. If they are a dentist, they should be registered by the General Dental Council. If they are a radiographer, they should be registered under the HCPC.
Lord Harris of Haringey (Lab)
Radiologists should be properly registered. Will that be carried out by people who are professionally registered? If they are professionally registered, are they carrying this out as part of their profession or as an agent of the Home Office? If they are carrying it out on behalf of somebody else, how does that square with their professional obligations and requirements? Again, that has not been clarified. Can the noble Lord clarify that point, and if it is not going to be carried out by a regulated professional, is it legal for it to be carried out by somebody else? It is not legal for somebody to carry out something which purports to be dentistry if they are not a registered dentist, and the same will be true for radiographers. These issues which should be clarified.
Lord Scriven (LD)
I will raise one point which has not been raised. This Chamber should not be legislating when legislation is not required, and the Government have not set out what the problem is and what the statutory instrument will solve. The Minister was very clear in describing the number of unaccompanied children seeking asylum, and he was also very aware of the numbers where there was a dispute over age. He then went on to say that by using the Merton assessment, nearly 49% were deemed to be adults and 51% children. That does not seem to be a system in disarray, but a system that weeds out those who deliberately try to deceive regarding their age.
The key question to determine the problem which the Minister has not answered, and which I would like him to answer, is: of that 51% since 2016 who have been deemed to be children by the Merton assessment, how many have then been found to be adults? That is a key question because if that figure is minimal, there is no need for the statutory instrument because there is not an age assessment problem to be solved.
Lord German (LD)
My Lords, some things have been spoken of in this debate, but what is absolutely clear is that in every element the Government have provided more and more uncertainty. We have before us a set of regulations which are clearly down to a Government seeing themselves in a hurry to get things done in a way which might satisfy certain elements of its own party, but which is nothing to do with the case in question, which is about age assessment.
I just want to ask the Government four questions arising from the United Nations Convention on the Rights of the Child, which the Government have signed up to and to which we are party. First:
“An age assessment should only be conducted if it is in the best interests of the child”.
Perhaps the Minister in replying can explain to us why this is in the best interests of a child.
Lord Murray of Blidworth (Con)
Perhaps the noble Lord can explain why scientific methods are used to assess age in, among other countries, Sweden, Norway, Finland, France, Germany and the Netherlands.
Lord German (LD)
The information provided by the Council of Europe, which of course does not reflect the notifications we have received from the Government, describes the legal cases which have been taken against the proposals made by some of those states and which have in fact been found to be in contravention of the very convention I am talking about.
Secondly:
“Age assessment should not take place without the child’s and their guardian’s informed consent”.
How will that consent be provided and how is it meant to be independent?
Thirdly:
“Children undergoing age assessment have a right to be informed of their rights during the procedure, the purpose, steps and duration of the procedure, and to be assisted by a legal representative and/or guardian”.
What steps are the Government taking to provide that support for these children, so we are clear about it?
In conclusion, “sub-optimal” is the word provided by our Secondary Legislation Scrutiny Committee. Everything that has been said about what we have in this House today suggests that it is below optimal.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will discard most of my speech because all the points I was going to make have been made articulately. We will support the noble Baroness, Lady Brinton, if she chooses to test the opinion of the House and I thank her for the thoroughness with which she introduced her amendment to the Motion. I agree with her that this SI is not yet ready to be put on the statute book.
The Minister set out the figures, which have been repeated a number of times as the debate has progressed. A number of questions were put to him about the issue of consent, the state of the European Convention on Human Rights, and answering the questions put by the Children’s Commissioner and other bodies which have expressed their extreme concern about the measures being put forward by the Government.
The noble Lord, Lord Murray, just intervened, giving examples of European countries which do some form of tested age assessment. However, this is of course a contested area in many European countries; we are not unique in this being a politically contested issue.
Noble Lords also made a point about the review mechanism that the Government propose to put in place so that, as this progresses—if indeed it does progress—the Government can keep an open mind about how effective it is and whether further changes in assessment methods need to be made. However, I want to conclude on a different point which no other noble Lord has made, and to talk slightly wider than the SIs themselves.
Last May, with my noble friend Lord Coaker, I visited the old RAF Manston airfield and the landing site, Western Jet Foil, in Dover harbour. I repeat my thanks to the noble Lord, Lord Murray, for facilitating that visit. What became apparent to me then is that all the political debate, including today’s debate, is about the vast majority of young men who are potentially claiming to be under 18, and the impact that has on them. That is the totality of the political debate. However, there is another group of young men, which was drawn to my attention, who appear to the officials to be under 18 but are claiming to be adults. They are doing that because they want to work, either legally or illegally. Many of them will have started working in their home countries when they were 14, and they will have had a few years work under their belt and are coming here to better their prospects.
What tracking is there of those young men? I have raised this issue with the noble Lord, Lord Murray, and as far as I am aware, there is no tracking of them. Whether they are more likely to abscond once they go into the adult system or whether the Home Office tracks them at all, it is a significant, not an insignificant cohort. It was drawn to my attention when I made that visit and I will be very interested to hear the noble Lord’s answer, maybe by letter, on how those young men are tracked.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords for their contributions to this interesting and insightful debate. I thank the noble Baroness, Lady Brinton, for her regret amendment, which I will obviously refute, because the introduction of scientific methods of age assessment is an innovative approach for the UK. It is entirely right that the Government take action to disincentivise individuals from deliberately misrepresenting their age in order to game the system, as well as to safeguard and promote the welfare of genuine children, who have a need to access children’s services. Scientific methods provide additional evidence and create a more consistent system, and there is nothing inhumane about those objectives. I hope that noble Lords will consider each regulation on its merits, and I will do my best to answer all the questions. If I miss any, I will endeavour to write.
The question of accuracy has come up. Determining the age of a young person is an inherently difficult task. The Home Office is aware that there is no current single age-assessment method, scientific or not, that can determine an individual’s age with precision. In answer to the noble Lord, Lord German, there is a risk of harm to both the age-disputed individual and to the public interest through misclassifying children as adults, or adults as children, which the noble Lord, Lord Ponsonby, referred to—I will come back to this. That is why the UK Government are taking steps to improve the robustness of the age-assessment process. Scientific age assessment will be completed alongside the current Merton-compliant age assessment, and the age-assessment process will remain a holistic assessment. The well-being of the individual will continue to be at the forefront. I am happy to say categorically to the noble Baroness, Lady Lister, that scientific methods will not replace, but will be used alongside, Merton. The noble Lord, Lord Winston, asked me how accurate these methods are. For X-rays, I do not know—I will find out—but for teeth X-rays it is two years either side. I will come back to this in more detail in a second.
On international comparators, to which my noble friend referred, the Home Office believes that the negative credibility inference in respect of someone’s claimed age is necessary, logical and proportionate where a person refuses to undergo a scientific age assessment without good reason. It is important to note that negative consequences, such as automatic assumptions, are applied with variations by a number of ECHR signatories, including the Netherlands, Luxembourg, Poland, Slovakia and the Czech Republic. The UK is an outlier as one of the very few European countries that do not currently employ scientific methods such as X-rays as part of age assessments.
On our plans for operationalisation, the Home Office wants to specify these methods as soon as possible to pave the way for the introduction of scientific age assessments. The increasing number of age-disputed young people presents safeguarding challenges and puts additional pressure on children’s services, which should be accessed only by genuine children. This is a new and complex process that the Government need to get right. The full plans for integrating scientific age assessments into the existing processes will be set out in good time, and full guidance and assessments will be provided. For now, the Home Office has welcomed the report from the Age Estimation Science Advisory Committee and is making clear steps to proceed with the recommendations and consider others.
Consent was raised by a number of noble Lords, including the noble Baronesses, Lady Brinton and Lady Lister, the noble Lord, Lord Kerr, and the right reverend Prelate the Bishop of London. To address the concerns regarding consent, I assure all that no X-ray or MRI image can or will be taken without informed consent from the individual. The Home Office will ensure that the individual has capacity, fully understands the process and is communicated to in a child-friendly and clear way. Interpreters will be available to assist with understanding information, and documents will be translated into a language the individual understands. If the individual refuses to consent to a scientific age assessment, they will continue to proceed with the current Merton-compliant age assessment. Those who are clearly children will be identified as part of the initial age assessment and not included in the cohort for an age assessment.
It is the Home Office’s policy to refer individuals for an age assessment only when there is some doubt about their age—specifically, where that individual’s physical appearance and demeanour do not very strongly suggest that they are significantly over 18. This threshold is set purposefully high to ensure that individuals can be given the benefit of the doubt. As a result, only those whose ages are in genuine doubt would be referred for this scientific age assessment.
Baroness Bennett of Manor Castle (GP)
My Lords, the Minister has repeated a statement he made in his introduction about it being only the clear-cut cases. Can he explain how, in the year to August, in just one city—Leeds—30 children arrived, having been assessed as adults by the Home Office on initial arrival, and were immediately identified by people in Leeds as children? Will those children not face the potential of ionising radiation and other medical procedures as a result of this regulation?
Lord Sharpe of Epsom (Con)
I am not familiar with the case that the noble Baroness refers to, so I am afraid I will have to look into it.
Individuals will be assessed for their fitness to undergo scientific age assessment, which will include consideration of both mental and physical health. The individual will not undergo scientific age assessment if they refuse to consent. Reasonable grounds for refusal will be set out in guidance and considered on a case-by-case basis. Appropriate adults, translators and others will be available to support the young person. If a young person is assessed as lacking the capacity to consent, they will not undergo any such methods and a negative credibility inference will not be taken.
Provisions under the Nationality and Borders Act 2022 allow for decision-makers to make a negative inference. As I have said, the Home Office considers negative inference to be proportionate to prevent individuals deliberately frustrating the system. There is precedent in other legislation of negative consequences being applied where an individual refuses to submit to a medical examination. For example, an individual may be asked to undergo a medical examination to determine their eligibility for employment and support allowance. If they fail to undergo such an assessment, they will be treated as ineligible. Therefore, consent can still be informed and freely given even if there is a negative consequence for a refusal to give that consent.
It is important to note that taking a negative inference from a refusal to consent does not result in an automatic assumption that the individual is an adult. Rather, the negative inference is taken into account as part of the overall decision on age. A decision-maker can still assess an individual to be a child following the holistic age-assessment process, even if they refuse to consent to scientific methods without good reason.
I will answer the questions from the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Hamwee, about monitoring and review. The Ministry of Justice will monitor and review the Home Office’s use of X-rays approved by this instrument and compliance with the conditions as per Regulation 10 of the Justification of Practices Involving Ionising Radiation Regulations 2004.
I would like to reassure the House that, as this is a new practice in the UK, the Home Office will monitor and review the policy to evaluate its success and make any changes necessary for its effective operationalisation. The Home Office will not do this in isolation but will continue to seek advice from the Age Estimation Science Advisory Committee and key stakeholders to support the process. Quarterly datasets including age disputes are already published on GOV.UK and, when scientific methods of age assessment are introduced, the Home Office will ensure that the relevant statistics are published alongside them.
The noble Baroness, Lady Brinton, questioned whether these regulations should be made before a full impact assessment and costings have been laid before Parliament. As I stated, scientific methods will be integrated into the current age-assessment process. A full impact assessment has not been produced at this point as it would not provide the rigour of economic value required at the early stage. The Home Office recognises the importance of transparency—please be assured that a full impact assessment will be prepared when appropriate, as my right honourable friend the Immigration Minister said in the other place.
I will go into the costs in a little more detail. As I have said, we could not provide the rigour of economic value that the impact assessment would require. Instead, the Home Office has produced an economic note that pertains to the narrow focus of the SI—the impact of introducing the specified methods for age-assessment purposes. We have decided not to publish this yet, as the information provided would be isolated from wider plans; it is the Home Office’s view to wait until we have an appropriate level of detail to better reassure and inform the public of our plans. As policy and operational development continue, the Home Office will take a view on when it is appropriate to produce the full impact assessment.
Lord Kerr of Kinlochard (CB)
I am rather surprised that the Minister has repeated the bits of the Home Office written evidence that struck me as a bit odd. The clue, surely, to the timing of an impact assessment is in the name: impact. It should be there at the start. We are not terribly interested in an impact assessment two or three years down the line. We would have liked to have one today.
Lord Sharpe of Epsom (Con)
I take the noble Lord’s point; obviously, I will take it back to the Home Office and make sure that it is well understood.
On the use of X-rays, I remind the House that the Ministry of Justice has determined the practice is justified under the Justification of Practices Involving Ionising Radiation Regulations 2004. The Ministry of Justice made this decision to justify the practice independently from the Home Office, as they are functionally separate on the policy of age assessment as required by the 2004 regulations.
Your Lordships will know that X-ray scans are commonly used in the UK for medical purposes by doctors and dentists. Although age assessment is for non-medical purposes, images will be taken by qualified professionals who are trained to minimise exposure to ionising radiation and any other potential risks. We expect all professionals to abide by their own professional guidelines, as well as any set out in Home Office guidance, but medical professionals are required by the relevant legislation for ionising radiation.
The Age Estimation Science Advisory Committee suggests that any risk associated with this low level of exposure to ionising radiation is minimal when compared to the benefits of swifter, more informed age assessment in terms of both safeguarding and well-being.
Lord Winston (Lab)
The word “benefits” applies to the subject who is being X-rayed, does it not? Can the Minister tell us what the benefits to that subject are because it does not apply otherwise?
Lord Sharpe of Epsom (Con)
I am coming on to some more of the noble Lord’s more detailed questions; I will endeavour to answer that question in a second.
The Ministry of Justice has undertaken a detailed consideration process to ensure that the use of X-rays is proportionate and justified. The noble Lord asked how we will ensure that the use of these scientific methods is ethical and not harmful to children. We have a statutory commitment to safeguard the welfare of children. One of the reasons for introducing scientific age assessment is to better protect against adults being treated as children in order to ensure that vulnerable children can swiftly access the support that they need. The use of ionising radiation is, for instance, highly regulated by the Justification of Practices Involving Ionising Radiation Regulations 2004, which require demonstration that the individual or societal benefits of their use outweigh any health detriments. For the methods that the Age Estimation Science Advisory Committee proposes, the ionisation risks are extremely low.
The Home Office will ensure that any methods used comply with all regulatory requirements and standards. AESAC suggests that radiation exposure is minimal when compared to the benefits of a more informed age assessment. For the purposes of the methods that the committee proposes, the ionisation risks are extremely low, as I have said. They are typically less than 0.001 of a millisievert for an extremity X-ray, such as the wrist, or 0.2 of a millisievert for a dental—I will not be able to pronounce this—X-ray. Those radiation risks relate to something like less than two hours on an international flight, I believe.
I turn to the AESAC advice and the automatic assumption. On the Secondary Legislation Scrutiny Committee’s concern that the application of negative inference is contrary to advice provided by the Age Estimation Science Advisory Committee, let me assure the House that this is not the case. In answer to the noble Baroness, Lady Hamwee, I should also say that the Government’s Chief Scientific Adviser, Patrick Vallance, and the Chief Medical Office, Chris Whitty, have supported this. The scientific advisory committee recommended that no automatic assumption or consequence should result from a refusal to consent. Taking a negative inference does not result in an automatic consequence; rather, the negative inference is taken into account as part of the overall decision.
I forgot to address the points raised by the noble Lord, Lord Winston, about various protected characteristics: environmental factors, race, diet and so on. We are conscious, of course, that methods to assess age such as bone development are affected by factors such as ethnicity, body mass, sex, puberty and so on. We are seeking scientific advice to explore this issue further and any steps we can take to mitigate these impacts. The Age Estimation Science Advisory Committee’s advice suggests that, although skeletal maturation may differ slightly depending on ethnicity, there is also some evidence to suggest that differences in nutritional status, disease and social status may have more influence on maturation timings. In addition, dental development is less affected by such socio-economic factors; that is one of the reasons why the AESAC recommends using multiple biological areas of interest, which the Home Office is proposing to do.
I want to take this opportunity to thank the Age Estimation Science Advisory Committee for its report because, as I have set out, the science and analysis is being used as per the committee’s recommendations. The Home Office will not use the scientific methods to determine an exact age or age range; rather, it will use the science to establish whether the claimed age of the age-disputed person is possible. It is key that methods used for age assessment have a known margin of error. Combining assessment of dental and skeletal development of multiple body areas is important as it increases the accuracy of the approach. The Age Estimation Science Advisory Committee advocates for a likelihood ratio method, which offers a logical and consistent summary of the evidence and permits greater confidence in the assessment of whether the claimed age is possible. The likelihood ratio is widely recognised as the appropriate way to summarise evidence, and this approach offers the best way forward for the introduction to scientific age assessments to strengthen our system.
The noble Lady Baroness, Lady Lister, asked who we have consulted. The Ministry of Justice consulted all the statutory consultees listed under the regulations, including the UK Health Security Agency and the Health and Safety Executive. The full list can be found in our decision document. In the review of the consultees, the Health and Safety Executive, the Office for Nuclear Regulation, the Environment Agency, the Scottish Environment Protection Agency, Natural Resources Wales and the Department of the Environment (Northern Ireland) have confirmed that this application falls outside their regulatory interests. However, the UK Health Security Agency, the Health and Safety Executive and the Food Standards Agency advise the following:
“The decision to use X-ray imaging appears well considered and appropriate to minimise any individual’s radiation exposure”.
All exposures to ionising radiation will fall under the remit of the Ionising Radiation (Medical Exposure) Regulations, which place many responsibilities on those carrying out exposures. There should be careful consideration to ensure that the contracted parties carrying out the exposures conform to these regulations and that the predicted doses for both dental and wrist X-rays are appropriate estimates.
I have probably spoken for long enough—I have definitely spoken for long enough. I owe the noble Lord, Lord Ponsonby, an answer to his question about children pretending to be or behaving as adults. I will come back to him on that; I do not have the detail to hand, as your Lordships can imagine. I think I have addressed the majority of the issues that were brought up. As I said earlier, I am grateful for noble Lords’ constructive and helpful suggestions and questions. I trust that noble Lords will now recognise the need for this instrument; I assure them that the Government are fully committed to working towards a better-informed and more consistent age-assessment process. This instrument is essential to that aim; I therefore commend it to the House.
Baroness Brinton (LD)
My Lords, I thank the Minister for his response. Unfortunately, I fear that many of the questions we asked across the House were not responded to. I heard very clearly that this has been designed as an innovative approach to discourage applicants but I also heard a lot of “We need to wait until we have more detail before we can tell you the answers to the questions that we want”.
I refer right back to the beginning of this debate. The noble Lord, Lord Murray, gave an absolute assurance at the Dispatch Box that the regulation-making power would not be exercised until the science is sufficiently accurate to support providing for an automatic assumption of adulthood. These SIs do not do that—worse, the Government say that they know they are not ready. On that basis, I wish to test the opinion of the House.