Nationality and Borders Bill

Lord Harris of Haringey Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

Finally, I am also given to understand that the use of dental X-rays, techniques and observation is current in the Federal Republic of Germany—

[Lord Harris of Haringey (Lab)]

My Lords, I refer to my interests in this matter in the register. In the event of the Government’s having advice that they proceed with this, whom do they envisage will carry out these dental X-rays? If they are doing so without the consent of the person concerned, will that be a breach of the ethical guidelines? If they are being carried out by non-qualified people, is that not also an offence for those carrying out those X-rays?

[Lord Stewart of Dirleton (Con)]

If I may, I will revert to the noble Lord’s point in the course of my submission; the specific questions that he raised will need some detail, which I do not have to hand but hope to be supplied with before I sit down.

I was talking about the use of ionising radiation in these matters. As I have said previously, the use of ionising radiation in the United Kingdom is highly regulated, and we will ensure that methods used comply with all regulatory requirements and standards. The Age Estimation Science Advisory Committee will have been asked to advise on the ethical considerations for the use of medical imaging techniques. As I have said, the Home Office is exploring a number of potential methods that do not involve ionising radiation, but these may require further research and development to support their technical and commercial viability in assessing the ages of age-disputed persons.

It is important to recognise that techniques develop. In the forensic context, for example, it has been the practice when considering child pornography to employ professional persons—paediatricians and others—to make an assessment of the appearance of the unfortunate people recorded in these images, and to assess from appearance alone what age they were, for forensic purposes, in order that the appropriate criminal charges might be brought.

Also in the forensic context, we recognise that scientific techniques move on. When I was called to the Bar and started to look at criminal work, there was no DNA analysis. Blood testing was available, as was blood group analysis, to assist in drawing certain conclusions. It was not nearly as accurate as DNA testing, but it was available and could in some circumstances exclude a person from suspicion or bring a person into suspicion. Thus, although it did not purport to be able to answer questions with the degree of precision and accuracy that DNA analysis has, it was none the less a valuable technique. It may perhaps be useful for your Lordships to look at what the Government propose ultimately in that context, not as something that will provide a comprehensive answer to exclude all others but, rather, as an additional source of information, which might—I repeat, might—assist, or might be considered to have no value.

Amendment 64A calls for the establishment of a committee independent of the Home Office to consider these matters. It is, however, standard practice for the Home Office to convene its own scientific advisory committees as a forum for policy-making. The Home Office has announced the direct appointment of an interim committee of nine independent members, including the chair, to review the scientific methods of age assessment. The interim chair and committee members were appointed by the Home Office’s chief scientific adviser for a period of not more than 12 months. I return to this point—it may be that I will not need to write to the noble Baroness, Lady Hamwee, but the current interim committee includes experts involved in medical statistics, children’s social work, anthropology, psychiatry, paediatrics and radiology. The intention is that, from this broad range of disciplines, a holistic view of the issues involved in age assessment can be arrived at.

A submission was made, I think by the noble Baroness, Lady Neuberger, about the different appearances of persons coming for assessment. We acknowledge the contributing factors of ethnicity, diet and life experience that may have an effect on things like bone development, and therefore on the results of a scientific age assessment. We will be in a position to take into account all these factors, and I stress once again that the intention is not to present these scientific age assessments as a means of determining the question once and for all but rather, potentially, as available evidence, depending on the views of a committee.

It was my noble friend Lady Shackleton, I think, who questioned the fitness of the Home Office to assess such claims. The figures that I have been given are that the Home Office grants refugee status on humanitarian or humanitarian protection grounds in 90% of cases of unaccompanied asylum-seeking children.

The Government are embarking on this process so that more data is available to assist in what is, necessarily, a difficult area, and one where—as I pointed out to the House on a previous occasion—the Merton assessments undertaken by skilled and experienced social workers may throw up radically different conclusions from examinations of the very same persons. Anything that can be done to assist in that process, by providing additional data, ought to be welcome.

I turn briefly but gratefully to—

Nationality and Borders Bill

Lord Harris of Haringey Excerpts

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I intervene briefly in support of the noble Baroness, Lady Hamwee, and the remarks made by my noble friend Lady Lister. In doing so, I declare my interest as chair of the General Dental Council. In that capacity, I had a meeting with the British Dental Association earlier today, not specifically about this issue, but the British Dental Association is still very exercised by it.

I again pursue an issue I raised on Report, to which I have not seen a satisfactory response: the precise terms under which consent will be known to exist in respect of certain scientific procedures being carried out. For example, if there is to be a dental X-ray, will freely given consent be obtained from the individuals concerned? By “freely given” I mean not under duress. The reality is that young people who are fearful of not having their rights accepted are hardly likely to give their consent willingly. Can the Minister tell us exactly how we can be reassured that that consent will be freely given and that it will genuinely be the case that if somebody does not give consent that will not be in some way held against them elsewhere? The reason why this matters is that for a professional, whether a dental professional or any other professional, to carry out a medical procedure, including a dental X-ray, without that free consent is unethical and against all professional standards. It is an extremely important point.

Can we also have clarity about whether it will always be an appropriate professional who will carry out the necessary scientific assessment? If, for example, someone employed by the Home Office or some other agency carries out an X-ray or whatever without being an appropriate professional, that is a criminal offence. I would really like clarity on whether the Government have thought through these ethical and professional issues in terms of these clauses and in rejecting the amendment passed by your Lordships’ House that was moved on Report by the noble Baroness, Lady Neuberger.

[Lord Coaker (Lab)]

My Lords, before I move on to Part 5, I will speak briefly to Motion N1 on Part 4 and age assessments. I support the concerns raised by the noble Baroness, Lady Hamwee, and supported by my noble friend Lady Lister. I pay tribute to them for their work on this issue.

In the Commons, the Conservative MP Peter Aldous raised the concerns we have just heard of the British Dental Association on ethical, health and accuracy grounds about using X-rays for age assessment purposes. In response, the Minister could not even give a commitment that a dentist would be included on the planned oversight committee for the policy, as my noble friend Lady Lister has just pointed out. It seems to me that what is being asked is perfectly reasonable and moderate: that before a method is approved as somehow being scientific, advice is taken by experts in the field. It is remarkable that these concerns have to be raised.

I will concentrate my remarks on Part 5, but first I declare my interest as a research fellow at the University of Nottingham’s Rights Lab, and as a trustee of the Human Trafficking Foundation.

I hope that noble Lords will forgive me for pointing out, as the noble Lord, Lord Alton, and the noble Baroness, Lady Hamwee, have done, that it is quite remarkable that a series of changes to the modern slavery legislation is included in an immigration Act. That is unbelievable. I say to Conservative Members, indeed to all Members of this House, that the Modern Slavery Act 2015—I got it out and read it again—is a signpost piece of legislation of which we are all proud, and one of the legacies of Prime Minister Theresa May.

Throughout our debates and in the amendments that we are debating now, we are trying to improve a piece of legislation that should not be in here—but, having said that, we will try to improve it. For example, the House voted to remove Clause 58 in its entirety from the Bill. There was recognition of the dangers of penalising a victim for not meeting a deadline to disclose information. It can be difficult for a victim to even recognise themselves as a victim, let alone to process and communicate that trauma to a deadline.

The Bill provides that credibility will not be damaged where a person has a good reason for late compliance, but we struggled throughout the Bill to get certainty on what counts as a good reason. It was our belief that the authorities should not be instructed to consider a victim’s credibility damaged because they might have disclosed information about what they had been subject to—human trafficking, exploitation or modern slavery—a little late.

Therefore, we strongly welcome the step taken by the Government today to exempt at least child victims from this clause; we welcome the amendment that the Minister has just brought before us. I recognise that the Government have listened to some of the concerns raised and have moved some way on this issue. We are grateful to them for that. For that reason, we will not seek to vote again on Clause 58 today, since we have narrowed our focus to, as the Minister pointed out, key issues where there is still need for further movement from the Government.

This leads us to Motions S and S1, which focus in greater detail on child victims of trafficking. We are talking about children here, and my Amendment 27B would put in the Bill that the best interests of the child must be primary in all decisions about child victims. I do not understand why that is not a reasonable thing to include in the Bill. Also, it would not allow slavery and trafficking notices to be served on a victim under the age of 18. You could have a child of 12 or 13, or even younger, being given an information notice to be complied with—not late notice now; they will not be penalised for that—and being required to present an information notice about the circumstances of their trafficking. It is ridiculous that we are asking children to do that.

My amendment would also exempts children from restrictions under Clauses 61 and 62, so that they have access to additional recovery periods if they are re-trafficked and are not covered by public order provisions. It would provide that child victims can have leave to remain, to give them time to access support as well as supporting prosecutions against their traffickers. Finally, it would ensure that the burden of proof for a child victim to enter the NRM is not heightened by the Bill, so that no extra barriers are put in place to a child victim being recognised by the system.

It is worth pointing out again that child victims constituted 43% of the referrals to the NRM. That is what we are talking about—nearly a majority of those referred to the NRM were children. The Office for National Statistics says that, in the UK, 24,675 children have been referred to the NRM since 2009—a frankly unbelievable figure. That is why it is so important that, although the Government have moved on this, there must be more done to protect children and child victims of trafficking.

Our original Amendment 27 provided that a trafficking notice could not be served where a person had experienced exploitation while they were under 18. In the Commons, the Minister, Tom Pursglove, said when a trafficking notice was served on a person the precise timeline or date of their exploitation would not be known, so it would not be possible to exempt people based on when their exploitation took place. In light of that, we have amended subsection (2) of our proposed new clause to specify that a trafficking notice cannot be served on a person under the age of 18. In these cases, there is no question that the exploitation took place while this person was a child, because they are still under 18 years of age.

Another argument put forward by the Minister in the Commons is that our clause provides protection for children yet not for other victims. Of course, we are seeking to provide specific protection for children; that is the responsible way to make law. It is crucial to recognise that the Government have now moved to exempt children in respect of Clause 58 so that, as I have said, they will not be penalised. That is important for two reasons. I am hugely grateful to the Minister for the concession; it also shows that the Government now accept that in certain cases it is right to recognise child victims for what they are—exploited, traumatised children—and to exempt them from the provisions of this part. We do that in every area of law; we provide differently for children than for adults. It is important that we do the same with respect to modern slavery; we are asking the Government for further concessions on that.

It is most important that we resolve the part relating to Motions Q and Q1 as well. The anti-slavery commissioner has said that the Government’s proposals make it harder to prosecute people traffickers. The Government recognise that it is common for victims to be criminally exploited and so have a criminal record as part of their exploitation. Our replacement for Clause 62 therefore seeks to protect children and adults—all victims of slavery—against being penalised for having been at some point criminally exploited.

The key issue raised by Ministers about our original amendment is that it did not provide a definition of who could be considered a threat to public order. So, our Amendment 25B provides that a person is considered a threat if they have been convicted of a terrorism offence; it also requires the Secretary of State to consult within a year on whether further offences listed under Schedule 4 to the Modern Slavery Act should be added to this definition. In other words, we have made an important concession in that we understand the need for a definition and that the Home Office is debating what that definition should be. Rather than hold up the Bill, let us have a situation where, within one year of this Act coming into force, the Government must come forward with a consultation on whether a person convicted of any offence listed in Schedule 4 to the Modern Slavery Act 2015, other than a terrorism offence, should be considered as presenting

“an immediate, genuine, present and serious threat to public order”.

We have tried to be reasonable, but we say to the Government again that excluding victims of trafficking from the NRM on the basis that at some point they have had a minor conviction for a crime does not recognise the reality of the situation in which these victims find themselves.

To conclude on this, I say to the Minister that if he were a victim of slavery, he, like me, would in many instances be forced into criminal action. As it stands, the Bill will penalise those people and prevent them from getting the support that should be given to them under the NRM. That is not acceptable. It is not in the spirit of the Modern Slavery Act, nor what the Government themselves would want to happen.

Finally, on the amendment from the noble Lord, Lord McColl, I pay tribute to the noble Lord for the work that he has done on this over so many years. It is an important amendment; frankly, it is disappointing and unbelievable that the Government have not accepted his effort to ensure that people get the support they deserve for 12 months. I hope that your Lordships will support the noble Lord, Lord McColl, as we will, if it comes to a Division.