| Asylum and Immigration (Treatment of Claimants, etc.) Bill
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Mr. Jones: Is it the Minister's opinion that the amendment would mean that traffickers would tell 17-year-olds that they could destroy their documents with complete impunity? Beverley Hughes: My hon. Friend anticipates my second point. The first point was the difference that the amendment would create from the rest of the law. The second point is that there is obviously considerable variability in the circumstances in which unaccompanied asylum-seeking children enter this country. There is a great deal of difference, as my hon. Friend points out, between a 17-year-old turning up in the country and deliberately destroying his passport, knowing the impact and effect of that, and a situation involving a younger child. Mr. Jones: To continue the point, is it not true that, if the amendment were accepted, not only a 17-year-old but someone saying that they were 17 would be able to get away with that? Beverley Hughes: My hon. Friend races ahead of me again, because that is my third point. On the second point, we clearly need the ability to consider whether a prosecution would be right for a 17-year-old who deliberately destroyed his passport so that he could evade proper immigration control and, at the end of the process, removal. It would not be acceptable if we could not take action against an individual in those circumstances. The third point is that such an inability to act would provide a huge incentive for the phenomenon that we already experience of adults coming into the country claiming to be under 18. We have enormous difficulty, particularly with people who are on the cusp of that age, in establishing whether they have reached the age of majority. To be unable to prosecute in the relevant circumstances would send an entirely wrong signal. Mr. Heath: The Minister has introduced to a raft of material, to which I shall respond in due course. I want to refer to her first comment on what I have suggested, which was that it would introduce a new anomaly. However, that is in the clause now. Already, children accompanied by an adult are not criminally responsible and would not be charged with the offence set out in clause 2. The distinction is in the Bill, but the Minister would withdraw it in the absence of a suitable adult who could be indicted in the relevant circumstances. Column Number: 15 Beverley Hughes: There is a well accepted principle that, if an adult and child are together and an offence is committed, in most circumstances, the adult would be subject to the law. However, we believe that the framework of the law should include the potential to prosecute an older young person who enters the country alone and deliberately destroys their documents. Mr. Malins: I accept that latter proposition about the destruction of documents. However, there is a big difference between destroying documents and not having any. As far as I can see, both are offences under the clause. Every year, there are in the world 50 million births that are not registered—that is 30 per cent. of all births. An awful lot of children do not have birth certificates, which means that they cannot obtain any documents. Children need to be considered very carefully. The difference between tearing documents up and not having any comes into play in that context. Beverley Hughes: I certainly agree with that point. It is a fundamental point in the clause generally in relation to adults as well. However, it is not the point that we are debating on the amendment. We are debating whether children should be removed completely from the effects of the clause. Having explained why we do not want to accept the amendment, I want to assure the hon. Member for Somerton and Frome that I accept that some individuals, particularly younger children, will be more likely to follow the instructions of facilitators. Because of their vulnerability, they should not, when they act in that way, be caught by the clause. It is not our intention that vulnerable people and, in particular, younger children should be convicted of the offence in question. Annabelle Ewing: The Minister referred to older young people. Presumably, that leaves another category of younger young people. Will she define the ages of majority and of criminal responsibility being used in this context? Of course, as a Scots MP, I know that different ages apply north and south of the border but in relation to the age of majority I wonder what is meant by older young people. Beverley Hughes: We clearly cannot define rigid age thresholds. I was going on to say that the prosecution would need to take into account the circumstances of the case—the alleged age and what is established to be the child's age—in determining whether to bring a prosecution. Guidelines will be needed and they will be defined with reference to the police, the immigration service and the Crown Prosecution Service. They will attend carefully to issues relating to the prosecution of children. The Committee cannot, even in the Bill, establish in any a priori way the age thresholds. That must be done in relation to the circumstances of the case. I gave the example of a 17-year-old who, it was felt, had knowingly and deliberately disposed of or destroyed their documents. We need the option to consider a prosecution in those circumstances. On other cases, Column Number: 16 when the factors are different, the authorities will have to judge whether a prosecution is both relevant and appropriate in the circumstances.I hope that the hon. Member for Somerton and Frome accepts my assurance about our intention concerning children and that it is right to have the facility in certain circumstances to consider a prosecution for people aged under 18. With that assurance, I hope that he will withdraw his amendment.
10 amMr. Garnier: Again, I do not want to detain the Committee longer than is strictly necessary. This intervention demonstrates the futility of some of my interventions. I assure the hon. Member for Somerton and Frome that I fully accept his concern but, surprisingly—the Minister may be shocked to hear this—I broadly agree with what she said in her response. Throughout the criminal law, we tend not to make a distinction in the definition of the offence based on age. It is an offence to commit theft. It is an offence to burgle. It is an offence to commit murder. The age of criminal responsibility in England and Wales—it is different in Scotland—is determined. If a six-year-old in this country commits theft, the police and the Crown Prosecution Service will not prosecute because they are below the age of criminal consent. It would overburden the Bill to set out age ranges when they are already in our criminal justice system. The Crown Prosecution Service, the immigration officer, the police or whoever is conducting the inquiry will make a judgment based on the apparent age of the child or young person. They may have to engage in an investigation to establish as best they can the age of the child—I agree that a great number of people who come to this country look 25 when they are only 16. The hon. and bearded Member for Brent, North (Mr. Gardiner) is an example of that. Many hirsute people from overseas are rather hairier than their English and British contemporaries. That is just a niggle that we must deal with and I am not sure that we need to overburden the legislation with the sort of detail that my temporary hon. Friend the Member for Somerton and Frome is asking for. I ask him to allow discretion on prosecution to those who are prosecuting and to the courts, rather than put too much detail in this part of the Bill. The time will come during our discussions when he and I will be inseparable in our opposition to some aspects of the Bill, but on this occasion I am inclined to agree with the Minister, who invited him to withdraw his amendment. Mr. Malins: I, too, say gently to the hon. Member for Somerton and Frome that I share the opinion of my hon. and learned Friend the Member for Harborough. I completely understand the hon. Gentleman's thinking on the matter but I, too, take the view that the prosecuting authorities should have discretion with some children, as there is in the existing criminal law, under which those who take such decisions approach the matter sensitively.
Column Number: 17 I leave the Minister with the thought that, as we shall discuss later, there is a big difference between the wilful destruction of documents, which is terrible, and travelling without documents, which is an offence in the Bill. We need to look at that more carefully. The discretion to which she referred is appropriate in respect of the Bill and I do not support the amendment, although I completely understand the way in which he has approached the matter.Mr. Heath: This debate has been important and useful. I intended to find out from the Minister what her intentions were with regard to prosecution. I hoped that she might have said explicitly that the enforcement and prosecution guidelines would clearly state when it was appropriate to use this offence against someone who was under 18. I believe that hon. Members on both sides of the Committee agree that there are many circumstances in which such a use would be entirely inappropriate. I share the concerns of the hon. Member for Woking about people who are fleeing from areas where it is impossible to obtain travel documents—the Democratic Republic of the Congo or Somalia come to mind—although that matter is outwith the precise terms of the amendment. We will return to it at a later stage in our consideration of the Bill. There is an uneasy connection between clauses 2 and 4. We have already outlined one of our principal concerns—the ability to apply duress to a vulnerable person, be that a person who is under age or someone who is vulnerable in other ways. The result of that would be that the person who destroyed the documents—the victim of duress—became the offender. There are wider arguments about consideration of someone's true age. In such cases, the credibility of the applicant would be the better way of dealing with the matter. I understand that that is the way in which that difficult matter is dealt with under Canadian legislation—a country with a legal system that is not dissimilar to ours—without recourse to a provision such as this. I understand the problems, and although some of the arguments that were advanced were not entirely cogent, I recognise that it is better not to make a distinction between an adult and a child in terms of offence—the point made by the hon. and learned Member for Harborough. If it is clear that guidance will be given in the prosecution guidelines—the Minister nods, so I invite her to intervene and to say so explicitly, because that would be helpful.
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