UK Borders Bill

I am grateful for that cut-off point. We have been discussing this one for just over an hour, and I had hoped that we could send proceedings merrily on their way not too long in the future. I am grateful for the way in which the Committee has conducted its discussion of these amendments. I was particularly grateful to the noble Baroness, Lady Anelay, for the positive reaction she gave to our amendment. My dear and noble friend Lord Judd was equally generous in his comments. We do not always agree, but we generally come from the same place in terms of the spirit of what we are trying to achieve. By focusing primarily on the welfare of the child, if we all have that at the front of our minds from the outset in this complex debate, we will make some progress. In fairness to the noble Lord, Lord Avebury, I ought to respond to his Amendments Nos. 38 to 40, the point at which I stopped earlier. In essence, those amendments summarise the difference between our positions. If we were to accept those amendments, they would hamstring us in some way. I simply say this about our approach: we are arguing that a code of practice is an acceptable and well established way of setting out how operational services carry out aspects of their functions. Earlier this afternoon we had a debate in which noble Lords opposite were urging the Government to accept a rather more rigorous approach by adopting a code of practice. So I shall borrow the argument that has been made against us in the past and argue that our desire to create a code of practice will achieve a rather more rigorous outcome than some noble Lords would give us credit for. That is why codes of practice exist for PACE and why they have value. I am sure that the Committee understands the import of the PACE codes of practice. I am intrigued by and interested in the proposition of the noble Lord, Lord Hylton, about the value and use of guardians. In essence, that is the result of our relationship, and the arrangements that we strike with, social service departments which have a relationship with a particular port or airport and the staff who work there. They get caught up and receive children as a by-product of the enforcement of immigration legislation. It is hard to define and anticipate every operational eventuality. In our view, regulations that require full compliance would not be appropriate. The code of practice will establish the framework within which border and immigration agency staff take properly into account the need to keep children safe from harm while carrying out their primary function of implementing immigration laws. That is the core of the debate and the essence of what we are all trying to achieve. Seeking to establish this framework as regulations which the agency would be required to observe would undermine the effective performance of its primary functions. There will, of course, be times when immigration decisions will be effected in order to keep children safe from harm; for example, delaying dispersal so as not to interrupt a child’s education. However, a code would not override the Border and Immigration Agency’s abilities to implement immigration laws. It is therefore not appropriate for agency staff to observe the regulations but, rather, to have regard to a duty while exercising functions in the United Kingdom. Those are the main reasons why we prefer our approach and why we think that it is superior and more flexible in dealing with the range of problems that occur in the enforcement of immigration legislation. A number of other points were made by noble Lords, and I shall try to run through them in turn. The noble Baroness, Lady Anelay, made the point that we ought to listen very carefully to the children’s champion. We have been in discussion with the Children’s Commissioner for England, and those discussions continue. The commissioner’s staff will be involved in developing the proposed code of practice. We want to listen to what they have to say because we recognise the value of their advice and that is why they are there. I was invited to agree with Damian Green’s observations, but we do not agree with them. The essential issue between the Government and the legal view referred to from the Refugee Children’s Consortium is whether Section 11 would lead to further legal attempts to frustrate removals. In our view, it would, and it would not necessarily, certainly not in every instance, be in the best interests of the welfare of the child. I made that point earlier because having a swift outcome can sometimes be to a child’s best interests. I was also asked whether we have had discussions with our friends in the Scottish Executive on our amendment. We have, and they are content that we are not legislating in a devolved matter. We have not had discussions with them on the question of a Sewel motion. If we were to amend Section 11 and the 2004 Act, we would need further discussions. The noble Lord, Lord Roberts, in a very impassioned plea—I respect the way in which he made that plea—asked for a reversal of the policy. I would argue that we have made a reversal, certainly of earlier policy. I think that we have moved a long way, as my noble friend Lord Judd, was happy to acknowledge. The important issue of trafficked children was raised. We have been commended for signing up to the Council of Europe convention on trafficking. We have embarked on that course to protect children and we need to set out a programme of action on it. We have been consulting and are taking a wide range of views. We have had quite a lot of discussion in your Lordships’ House on the point. The Children’s Commissioner has generally and broadly welcomed our proposals. I argue that we are making progress and think that our code of practice will give full and effective voice to that. We are consulting very carefully on it. I think that one of the most helpful suggestions made in the Committee towards its close was that of the noble Earl, Lord Listowel. Of course we will seek to have further discussion on this issue between now and Report. I want us to do that, not least so that we can understand how we can solve the conundrum that our amendment and the other amendments in this group deal with. We have to do that. We need to ensure that we take the best possible measures to prevent harm to children and to protect their safety. As I said, that is a common aspiration. I am happy to have more cross-party discussion on that and to listen to representations. It would be most helpful. We have had a long debate on this. I hope that the Committee will agree the government amendment in this group, if only so that it can have further debate on Report.