Justification Decision (Scientific Age Imaging) Regulations 2023

Baroness Hamwee Excerpts

Monday 27th November 2023 Lords Chamber

Every single medical intervention, even taking blood, carries a risk which can, on rare occasions, be very serious for the person who is having it. Informed consent means that if we must take X-rays or do MRIs, or any other kind of investigation, we must make sure that we have explained that risk to the patient or to the person. Unless it is a medical procedure, we have to accept that this is not acceptable. I would therefore certainly go through the Lobby if the noble Baroness decides to have a Division on this matter.

[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?