UK Borders Bill

My Lords, I thank those who have participated in the discussion, because important issues have been raised. I am particularly grateful to the noble Baroness, Lady Hanham, for tabling Amendment No. 24, which I will respond to, because it has prompted further thinking on our part. I understand that the intention behind the amendments is to broaden the scope of the Border and Immigration Agency’s duty with regard to children so that it is as wide as the safeguarding duty in Section 11 of the Children Act 2004. The amendments would also impose the same broad duty on contractors providing services on behalf of the Border and Immigration Agency. I made it clear on Tuesday that the Section 11 duty would not work for the agency. The House took a view on that. It might be a narrow view, but it was supported. It is not appropriate in our view for the agency to have a duty to promote the welfare of children because that creates a potential conflict with other duties that we have to exercise to regulate entry to the United Kingdom and to take action against those who have no lawful claim to be here. The potential application of a duty to promote the welfare of children is very broad. If the Border and Immigration Agency were to adopt it, we have no doubt that it would be used as the basis of a legal challenge in many cases where the facts made it clear that someone no longer had a lawful claim to be in the United Kingdom. For those reasons I resist the amendment. The story should not end there. As I explained, we take very seriously the responsibilities towards children in the Children Act 2004; hence the continuing development of the code of practice. We have already indicated what we are committed to introducing through such a code and we are open to—and expect—further development of that through consultation with interested groups. It will be supported by a set of instructions to staff, which are being developed with input from outside organisations that have considerable experience of dealing with children’s issues. We have been very grateful to those agencies and organisations for the work that they have put in. I do not want to repeat what I have said about the content of the proposed code. However, I must emphasise that the Border and Immigration Agency will expect staff to follow the code of practice or, if they cannot, to have very clear reasons indeed for not doing so. Those instances must be very few. I must also make it plain that we very much intend to take on board the comments made on Tuesday, particularly by the noble Lord, Lord Avebury, about the need to ensure that very clear principles on detention are written into the code. The noble Lord made an important point that, although the supporting documentation is very clear that the code applies to detention and the detention estate, we must write those principles in and ensure that the detention estate is clearly covered. We recognise fully that we would not achieve what we have set out to achieve if we were to have a code of practice for the border and immigration staff with no way of ensuring that it applied to those providing services on its behalf. So we sympathise with Amendment No. 24, and I know that the Minister was particularly grateful to the Opposition for raising that issue when we had a private discussion. We see the need to make it clear that when contractors are commissioned to carry out services on behalf of the Border and Immigration Agency they have the same responsibilities towards children as the agency itself. I shall give that point further consideration with a view to returning to it at Third Reading. I reassure noble Lords that the code will not be a token document. In developing it further and introducing it, we will continue to work with the key NGOs. The noble Lord, Lord Avebury, made one or two suggestions. I always listen with care to what the noble Lord has to say. I do not always agree, but some of his ideas we are of course happy to consider. One was that the code ought to be subjected to a sort of pre-legislative scrutiny process, which is a novel idea. We intend to consult on the code in a formal way over a period of three months. We could give pre-legislative scrutiny some form of consideration, but we will obviously ensure that we comply with the wishes of the House more generally on that issue. I will give that more thought before Third Reading, but do not make a firm commitment this afternoon. The noble Lord asked whether the draft code mentioned contractors. I have dealt with most of that issue: it does mention private contractors, both in the preface and paragraph 4 of the introduction. He also raised a question about private fostering and the BIA’s responsibility. Local authority children’s services are of course responsible for monitoring private fostering arrangements. The BIA very much relies on local authority expertise and on local authorities to notify it if arrangements and relationships are not working as well as they should. We would argue, however, that relationships between the BIA and local authorities are strong, and we are extremely grateful to local authorities for their expertise in this field. Speaking from my own experience, local authorities do a good job in difficult circumstances. We are grateful to them. For that reason, we continue to listen carefully to what the Local Government Association has to say on these issues. We have been grateful to it in the past for its advice. I might almost be currying favour here, but we have come some way towards meeting the aspirations of both Opposition parties on this issue.