Draft Justification Decision (Scientific Age Imaging) Regulations 2023

Edward Argar Excerpts

Monday 20th November 2023 General Committees

[The Minister of State, Ministry of Justice (Edward Argar)]

I beg to move,

That the Committee has considered the draft Justification Decision (Scientific Age Imaging) Regulations 2023.

It is a pleasure to serve under your chairmanship, Mr Gray. It is also a pleasure in my new brief, as Minister of State for Prisons, Parole and Probation, to be shadowed by the hon. Member for Brentford and Isleworth. We know each other well and, while I suspect there may be occasions in this room or beyond when we disagree, she knows that I have huge respect for her. I look forward to working with her in this role.

The draft statutory instrument 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 instrument is technical and legal, but none the less important.

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 the 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 use of X-rays is justified.

If Parliament approves the draft instrument, the Government will bring it into force at the earliest possible date to allow the Home Office to use that justification in bringing forward its age-assessment policies. This SI legally formalises the decision by the justifying authority—the Secretary of State under the 2004 regulations—and sets out the parameters under which the approval is to be granted, which have been communicated to the Home Office.

I recognise that there has been a lively debate more broadly on age assessment, which the draft instrument relates to, but I am sure that hon. Members appreciate that I can speak only to this justification decision, as it is imperative that the justifying authority is functionally separate from other persons concerned with the promotion or utilisation of the practice. I will speak only to the use of X-rays as a scientific method of age assessment; any other method falls outside the scope of this statutory instrument.

I understand that the parallel debate on the Home Office’s statutory instrument on scientific age assessment under the Nationality and Borders Act 2022 is due to be held in another Delegated Legislation Committee this evening. That is the right forum for the Home Office to outline how it intends to use this technical approval to support its policies and to field any questions outside the scope of the draft instrument. It is for the other SI debate to consider the merits of the policy itself.

The justifying authority has determined that the proposed practice by the Home Office is justified. This draft instrument provides the legal basis for the use of that practice. The justification decision was made through thorough review of the proposed practice. It considered and weighed the individual and societal benefits, such as preventing children from being misidentified as adults and ensuring that individuals are treated appropriately within the immigration system, as well as addressing the financial costs to the state against the detriments of the practice.

In reaching a decision, the Ministry of Justice—as set out in the additional background document supplied to the Committee—stated that the justifying authority

“has determined that the proposed practice was a new class or type of practice and that this can be justified, subject to the following conditions:

Biological age assessment involving ionising radiation is limited to radiography of the third molar and/or of the hand/wrist only. The use of computed tomography for the purposes of assessing age is not permitted.

The results of radiography of the third molar and/or of the hand/wrist must only be used to assess whether there is more support of the claimed age of the age disputed person, or the assigned age 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.

In reaching this determination the JA”—

the Secretary of State—

“has taken into account the views of the JLG and the conclusions of its deliberations on this application. The Health & Safety Executive (NI), Office for Nuclear Regulation, Environmental Agency, Scottish Environmental Protection Agency, Natural Resources Wales and Department of the Environment for Northern Ireland have confirmed that this application falls outside of their regulatory interests.”

The UK Health Security Agency, the Health and Safety Executive, and the Food Standards Agency were also consulted, and they noted a number of points. Alongside that, of course, we consulted the Ministry of Justice’s own science department. The Lord Chancellor wishes to thank the consultees for their detailed and wide-ranging contributions in helping him make this technical legal decision. On that basis, I commend the draft instrument to the House.

--- Later in debate ---

[Edward Argar]

The vast majority of points made by the shadow Minister, the hon. Member for Brentford and Isleworth (Ruth Cadbury), and the hon. Member for Hemsworth (Jon Trickett) are outside the scope of this debate. This debate is not about the policy, the implementation or staffing of that policy, or otherwise. It is about a technical legal decision to allow the Home Office, in another Delegated Legislation Committee in just under an hour and a half’s time, to bring forward the actual policy proposals and put them before a Delegated Legislation Committee for debate. There is a very good reason for that: as I set out very clearly, under the Justification of Practices Involving Ionising Radiation Regulations 2004, the justifying authority is required to be functionally separate from any decisions made on how the policy will operate and the decision made on it. I appreciate the points made by both the shadow Minister, the hon. Member for Brentford and Isleworth, and the hon. Member for Hemsworth. They made their points well and I suspect that they are at least in scope of the debate because the Chair did not stop them. They are on the record.

[The Chair]

Be careful.

[Edward Argar]

The point I would make in respect of the vast majority of cases, the justifying authority is looking to see whether, under those regulations, it is possible for the Home Office to proceed in this way. The hon. Member for Hemsworth quoted from page six of the report. I would also highlight another quote on page six:

“The decision to use X-ray imaging appears well considered and appropriate to minimise any individual’s radiation exposure.”

That is what the Secretary of State has been looking at in this context: whether the measure meets the threshold of those regulations for the Home Office as the applying authority to bring forward specific proposals, which it will do.

The shadow Minister, the hon. Member for Brentford and Isleworth, did make one point that is directly relevant to these regulations, which concerned how a review would work. As the justifying authority, we will undertake a review if, for example, new or important information is acquired about efficacy or consequences, other techniques or technologies that have the same objectives become available, or there are any obvious relevant changes in practice, science or technology. I should be explicit that the statutory instrument does not include a statutory review, but the Ministry of Justice as the justifying authority will continue to monitor and review the use of X-rays in this context as the shadow Minister would expect.

I suspect that the spokesman for the Scottish National party, the hon. Member for Glasgow South West, may reprise a number of the arguments and questions that he has just put to me to a Home Office Minister as the applying authority in another Committee in about an hour. There are a number of points to consider. On informed consent, that would again be a question for the Home Office as the authority wishing to carry out this policy. Similarly, on the question of a scientific method of age assessment, it is recognised in the documents that the Government have put forward that assessing an individual’s age is an incredibly complex task and there is no single methodology, scientific or otherwise, can determine a person’s age with absolute precision. However, as I set out earlier, this will be one consideration in weighing up the evidence based on either the individual’s declared age or a social worker’s assessment of it.

[Chris Stephens]

I assume that the Minister thought I was speaking to the statutory instrument—shock horror. A number of human rights groups have raised concerns. Has he, as the justifying authority, had a look at those? Obviously, there are clear concerns about human rights.

[Edward Argar]

I am grateful to the SNP spokesman for that. In considering this as the justifying authority, the Secretary of State has had due regard to those named consultees that, under the 2004 Regulations, he is obliged to consult on the justification decisions. It would be for the Home Office to set out what discussions it had had—I think it was either the hon. Member for Brentford and Isleworth or the hon. Member for Hemsworth who talked about local authorities, campaign groups and others—in how they designed that policy and what they proposed when they bring that forward. That would be a matter for Home Office Ministers. I am perhaps being less forthcoming than I normally would be—the hon. Member for Glasgow South West has opposed me in Committee before—because I am deliberately drawing that distinction between the justifying authority, which is functionally separate in looking at what it actually has to look at as the MOJ, from the Home Office as the Department that has to introduce the specific regulations on how this policy would work. On that basis, I commend this decision and this statutory instrument to the Committee.

Question put,