Justification Decision (Scientific Age Imaging) Regulations 2023

Baroness Brinton Excerpts

Monday 27th November 2023 Lords Chamber

Moved by

[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”.

--- Later in debate ---

[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.