My Lords, I will speak to Amendments 123 and 140, following on the points made by the right reverend Prelate and the noble Baroness, Lady Lister of Burtersett. Amendment 123 in the name of my noble friend Lord Anderson, and to which I have added my name, is directed to the provision about judicial review in Clause 55(5), to which the
right reverend Prelate drew our attention. His amendments ask for subsections (2) and (4) to be taken out, while this amendment asks for subsection (5) to be taken out, so I am building on the very impressive speech he made earlier.
The provision we seek to have removed states that a court “may quash the decision” relating to a person’s age only on the basis that it was wrong in law, not because
“the court considers the decision … wrong as a matter of fact”.
That is a very considerable restriction. As the Constitution Committee pointed out in its report on the Bill, errors are normally made in this context,
“not because of an error as to the definition of ‘a child’”,
which should be an issue of law, but
“because of problems with evidence to prove that an individual is under 18”.
Indeed, it is very hard to think of any error of law, in the proper sense of that phrase, that might arise in the context of age assessment. The effect of this restriction is to exclude judicial review, even in a case where there is an error of fact which no reasonable decision-taker, taking reasonable care, would have made. That is quite an extraordinary situation to be created by a provision in a Bill of this kind.
The report of the JCHR, which has been referred to often in these debates, says:
“Given errors of fact are highly likely when conducting age assessments based on subjective judgment, this is extremely concerning and gives carte blanche to Home Office errors”.
Without elaborating on that point—instead, I endorse all the points made by the right reverend Prelate—we suggest, in this amendment, that the restriction in Clause 55(5) is unreasonable, given the nature of the assessments that have been made; therefore, it should simply be deleted from the Bill.
While Amendment 123 is about something to be taken out from the Bill, Amendment 140 raises a point referred to by the noble Baroness, Lady Lister. It is about the power in Clause 56(1) to make regulations about the effect of a decision by a person
“not to consent to the use of a specified scientific method for the purposes of”
that person’s
“age assessment … where there are no reasonable grounds for”
that decision. The scope of the power, as explained in Clause 56(2), extends to setting out the circumstances in which civil legal services—in other words, civil legal aid—is not to be available to that person, and the person
“is to be treated as if the decision-maker had decided that”
the person
“was over the age of 18”.
It is significant that the clause does not go so far as to say, without qualification, that, if there are no reasonable grounds for the person’s decision not to consent, the person is to be treated simply as over the age of 18. The approach, which I suppose is to be commended, is to say that it all depends on the circumstances—that is, the purpose of the regulation which will be designed to set out what those circumstances are. Nevertheless, the exercise of this power has serious
consequences for the person in respect of whom the power is to be exercised, as the Constitution Committee pointed out in its report.
At present, this power to make regulations is subject to the negative procedure, which we suggest is not appropriate, given the nature of the power being referred to. So our amendment seeks to add regulations made under this power to the list of regulations in Clause 63(4) that
“may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.
Given the wide scope of this power and the lack of definition of how it will be exercised, we suggest that it is entirely appropriate for it to be added to that list and not subject to the negative procedure. Those are the reasons that the Constitution Committee wishes to put forward, and I give them in support of the point made by the noble Baroness, Lady Lister.