UK Borders Bill

Perhaps I may be permitted to speak to my amendment to the government amendment at this stage. I am not fully conscious of the rules of procedure in Grand Committee and I had thought that the normal way in which to approach this would be for the Minister to move his amendment and for him, at a later stage, to respond to the debate. If I am wrong on that, I gladly defer to the Committee. Whatever way we play this, I am sure that the Minister will have a lot to say at the end of the proceedings on the various speeches made to the amendment moved by the noble Baroness, Lady Anelay, as well as the ones that I am about to speak to. This debate illustrates the fact that it was very wise for the Committee to request the degrouping of Amendment No. 27 from those that we are now considering. Otherwise, there would have been three separate issues for us to consider. There are still two, which makes it more difficult to keep in mind the distinctions between the solutions on offer, as well as tempting noble Lords to make longer speeches than usual. Amendments Nos. 13 and 44 of the noble Baroness, Lady Anelay, place new duties on the BIA through Section 11 and in a stand-alone provision respectively. Government Amendment No. 37 and our Amendments Nos. 38, 39 and 40 deal with the code of practice. I hope that the Committee will agree that it was correct to ask for separate consideration of Amendment No. 27 which, more fundamentally, extinguishes the Government’s reservation to the Convention on the Rights of the Child so that it would apply to the BIA and would inevitably require changes in existing legislation, some of them on the lines of Amendment No. 13. Starting with the Section 11 amendment, we note, with the honourable Member in another place Mr Damian Green, that the duty it places on relevant agencies providing services to children to ““have regard”” to the need to safeguard and promote the welfare of children in discharging their normal functions is plainly and explicitly not absolute. I am pretty certain that in the extensive list of those to whom the duty is applied by Section 11, there will be agencies which have from time to time rightly placed other priorities higher than the welfare of children. For example, the governor of a youth training centre, a local probation board or a youth offending team might have to put the safety of the public at large in a given situation before the welfare of a particular child. Mr Green went on to say on March 6 that legal advice obtained by the Refugee Children’s Consortium was that Section 11 of the 2004 Act did not give rise to a freestanding duty to safeguard or promote a child’s welfare, but qualified the manner in which existing duties and powers can be exercised. I noted that the Minister, Mr Liam Byrne, in replying to that debate, made no comment on what Mr Green had said. It would be useful to have the Minister’s assent to Mr Green’s proposition of some four months ago. The Government have had plenty of time to think about it since then, and should be able to say whether they would accept it. The question is crucial, because if the RCC’s lawyers are right, it destroys the argument that the BIA would be unable to carry on their statutory duties. What could happen is that, where a child's welfare had been wrongfully disregarded in CRC terms and there was good reason to believe that no regard or manifestly insufficient regard had been paid to safeguarding and promoting the interests of a particular child, a right of action against the BIA or its officials would arise. In my view, that would be a good thing. I invite the Minister to agree that it would arise. The noble Baroness, Lady Anelay, rightly commented that the omission of the Immigration Service from the Section 11 duty is now being brought into sharper focus by the Bill. One hopes that not many children will be affected by these provisions, particularly the detention and search powers in Clause 2. But as, up to the moment when the Bill comes into effect, only the police could do things of that kind and they have been subject to Section 11, it would be a step backwards if the safeguards are removed. I now turn to government Amendment No. 37, which offers a code of practice. I am grateful to the Minister for the explanation that he gave and for the document which has now been circulated, although I must observe that it is only the indicative contents of the code of practice, not the code itself. There are still a lot of blanks to be filled in before we have something that we can get our teeth into. A code of practice provides a lesser protection than Section 11, and is even lower in the scale than the UN Convention on the Rights of the Child. The inaccurate description in the Minister’s letter was repeated this afternoon by the noble Lord, Lord Bassam. He said it is a, "““robust strategy to help ensure that children with whom the Agency’s staff come into contact are kept safe””." If it does that, it would do only half of Section 11, which encompasses the welfare of children as well as their safety. I accept that the wording of the guidance on Section 11 needs to be amended to make it clear that in the particular case of the BIA, there is no obligation to ensure, "““children are growing up in circumstances consistent with the provision of safe and effective care””," beyond the point of their removal from this country, should that become necessary, nor should there be any requirement on the BIA at the point of removal, "““to enable those children to have optimum life chances and to enter adulthood successfully””." I also acknowledge that extending Section 11 as a whole to Scotland and Northern Ireland would be inappropriate, as the Minister said, because it principally concerns those agencies with responsibilities which are devolved and for which separate safeguarding arrangements are being made. If Amendment No. 13 were accepted in principle, there would have to be a further amendment on Report extending the application of paragraphs (n) to (p) to Scotland and Northern Ireland, but I am sure that the parliamentary draftsmen would be able to come up with a suitable form of words for that purpose. With regard to the extra JR challenges to removal that would arise from applying Section 11 to the BIA, to which the noble Lord, Lord Bassam, referred, if there were none, we would indeed be surprised. The figures given were interesting but a little disingenuous. The noble Lord, Lord Bassam, repeated the figures given by the noble Baroness, Lady Scotland. She said that there was an average of 80 JR challenges to enforcement action a week, of which 88 per cent or 70 are rejected as having no merit, including all the challenges by families in the period January to April 2007. Neither the noble Baroness, Lady Scotland, nor the noble Lord, Lord Bassam, gave the number of families or of UASC, and it would be useful to have those figures, if the noble Lord can provide them to the Committee. The Minister and his colleague omitted to say that on 3 March there was a practice direction, under which the court could entertain an application for JR or for an injunction pending JR only if it was accompanied by full grounds or a full explanation of the reasons for the injunction respectively. I would be grateful if the noble Lord would comment on that. Perhaps he will be able to give us some indication of what has happened since 3 March because the figures that he provided the Committee with extended from January to April and we need them to be broken down from the beginning of the year to 3 March and from 3 March to the end of April to see what happened to the JR applications after the practice direction, issued on 3 March. The statistics given by the Minister also omitted, very importantly, the JR applications that do not proceed to a hearing because the Home Office cave in beforehand, not wanting an adverse decision to be recorded. We would like that information, if the Minister will provide it, perhaps over the same period. How many JR applications did not proceed to a hearing in March and April this year because the Home Office withdrew, not wanting an adverse decision to be recorded against it? If 10 JR applications a week are allowed to proceed, that must be because there are reasonable doubts about the decision. We all know of cases where, in the end, JR applications are successful. No doubt some JR applications lead to months of delay, as the Minister says, but that is not anything to do with these amendments; it is often a consequence of serious errors in the processes of the appeal system, for which children should not be made the scapegoats. We need to preserve the existing rights of children, bearing in mind the Government’s threatened agenda forcibly to return failed UASC before they turn 18. This proposal has been floated periodically over the past few years and has been strongly opposed by children’s organisations. They particularly fear children as young as 11 being removed to unsafe countries such as DRC, Angola and Vietnam—including children who may have been trafficked, as the noble Lord, Lord Hylton, said. The noble Lord, Lord Hylton, also referred to ECPAT UK, which tells us that it is not convinced that the Government’s proposal for a code of practice will provide the necessary safeguards for trafficked children in particular. As a document circulated to children’s organisations with the Home Office’s press release of 25 June, the principles of the code of practice have been challenged by all the children’s organisations as well as by the Children’s Commissioner for not going far enough to act as a substitute for Section 11 of the Children Act. It is not clear whether the code of conduct has regard to the commitments the Government have made within the national action plan on human trafficking, including the decision to ratify the Council of Europe Convention on Actions Against Trafficking or the new Home Office/DfES supplementary guidance on safeguarding children who may be trafficked, which we understand is due to go out for consultation shortly. These commitments and minimum standards underscore multi-agency working and apply across government, and it seems incongruous to us that one part of the Home Office is raising the standards for the treatment of migrant children while another part, represented by the Minister this afternoon, is struggling hard against being required to work to those same standards. I am afraid these double standards will cause problems, which will be far greater than having to cope with a few JRs, both within the Home Office itself and when the Home Office needs to co-operate with other departments. This is bound to have an adverse impact on the outcomes for children and particularly for children who are trafficked. If we are forced to be content with the government amendment, we can at least try to make it effective, which was our aim in tabling Amendments Nos. 38 to 40. These amendments suggest that we have regulations instead of a code of practice, so that Parliament can have some minimal say in the matter. Amendment No. 39 adds the promotion of the welfare of children to the duties of the BIA, whether we settle for a code or for regulations, and I have already outlined the reasons for aligning the wording with the statutory duty in the Children Act 2004.