Justification Decision (Scientific Age Imaging) Regulations 2023

Lord Kerr of Kinlochard Excerpts

Monday 27th November 2023 Lords Chamber

In conclusion, I strongly support this amendment, for the reasons set out in it and that I have discussed, but also because the whole exercise is based upon a false premise about the proportion of age-disputed children found to be adults and apparent lack of concern about the safeguarding issues arising when children are wrongly classified as adults, as raised by the interim AESAC. Newspaper reports have suggested that this can lead to children wrongly being put in adult detention centres, or even adult prisons containing sex offenders, or made to share hotel rooms with adults. I have yet to hear a convincing response to the ethical concerns raised by professional bodies, some of whose members may be called on to operate medical procedures that they believe to be harmful in this context. I hope that today’s debate will cause the Government to think again.

[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.

--- Later in debate ---

[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.