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Lord Avebury: I do not think that I explained myself fully. In the old days, common assault was punishable by six months’ imprisonment, as was assault of a police officer in the execution of his duty. After the 2003 Act, all summary offences enacted from that point onwards were punishable by a sentence of 51 weeks divided, as the Minister has explained. Why have a separate offence of assaulting a police officer, a Customs officer or an immigration official when the penalty is exactly the same as for common assault? Presumably, common assault could be assimilated into the other offences dealt with under the 2003 Act and the penalty for it could be replaced
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Lord Bassam of Brighton: All three agencies exercise coercive powers. The noble Lord understands that and the rest of the Committee will understand it as well, I am sure. Our view is that they ought to receive protection from a specific offence, which is described as equivalent to common assault. I do not think that there is any distinction there. The noble Lord is asking us to create one offence that is then applicable to all three agencies. That is how the legislation has been layered, in terms of the three services, but the noble Lord is right that in the end all three groups of workers will have the same level of penalty applied for an offence that is equivalent. I do not think that there is much between us here. It is just a matter of how we have got to that point. However, I understand the point that the noble Lord is making.
Lord Avebury: I am not going to prolong this discussion, as I am sure that it could be best dealt with offline. However, I am afraid that the Minister has still not dealt with my point. We are not arguing whether these workers should have adequate protection or about the level of that protection; everybody agrees that the 51 weeks, which is applicable to all summary offences, should be the penalty for assaulting an immigration officer, a Customs official or a police officer. There has not been an occasion as far as I am aware, although I may be wrong, when common assault was subjected to the procedure from the Criminal Justice Act 2003 of raising the level of penalties for all summary offences from six months to 51 weeks and dividing in the manner that has been discussed. If a person commits an assault of any public official he can be charged with common assault and the penalty will be 51 weeks. My question was why we should have a specific offence of assaulting one or other of the three agencies operating at the border when at the end of the day, when someone comes before the magistrate, he gets the same penalty as if he were being charged with common assault. However, I do not wish to waste the Committee’s time in discussing that point. It would be best if we dealt with it offline, and I am happy to leave it to the Minister to drop me a note. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 to 12 not moved.]
6.45 pm
Baroness Anelay of St Johns moved Amendment No. 13:
After section 11(1)(m) of the Children Act 2004 (c. 31) (arrangements to safeguard and promote welfare) insert—
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The noble Baroness said: I shall speak also to Amendment No. 44. I am grateful to the noble Lord, Lord Avebury, and to the noble Earl, Lord Listowel, for adding their names to Amendment No. 13. I am also grateful to the Refugee Children's Consortium, UNICEF UK and ECPAT for their briefing on this matter. I declare a non-pecuniary interest as a trustee of UNICEF UK.
I welcome government Amendment No. 37 as a first step towards resolving the dilemma of how the welfare of children can and must be promoted within the immigration system. The amendment would require the Home Secretary to publish a code of practice on how the Border and Immigration Agency helps to keep children safe from harm and to have regard to the code when carrying out her immigration functions. I note that the code of practice would apply to all parts of the Border and Immigration Agency within the UK—all four nations.
However, I have substantial concerns about the government amendment. Clearly, it does not incorporate the Section 11 duty to promote the welfare of children. That makes it a weaker duty than for other children in England and Wales. The Government's new clause does not confer an explicit statutory safeguarding duty for the BIA on the face of the Bill. It states that the Secretary of State shall issue a code of practice to which the agency should have regard when it exercises its functions. That seems weak. However, I hope that the Committee today will agree that the government amendment should be accepted at this stage, but on the basis that we shall need to amend it further at Report to achieve our objective. I say that because an amendment may be made in Grand Committee only if every single Member present agrees to it.
The Refugee Children’s Consortium states that it would welcome the government amendment being accepted today as the basis on which we can then work towards the right outcome over the Summer Recess and at Report. I note that the noble Lord, Lord Avebury, has three amendments tabled to the government amendment and I give him my support for those.
I believe my amendments, which I still prefer to those of the Government, to be the right solution to how to promote child welfare within the immigration system. I recognise that there is one limitation in my amendment which the Government have overcome by their defective amendment: my amendment does not apply to all four nations. That is something that we shall have to resolve in discussions over the summer.
Amendment No. 13 places a duty 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. The services with primary responsibility for the welfare and support of refugee children and their families, including the Immigration Service, are excluded from the otherwise exhaustive list of those to whom the
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- “a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control”.—[Official Report, 17/6/04; col. 996.]
That is the way they usually respond and I suspect that the Minister will do precisely the same again today.
Of course, I do not dispute that the primary function of the Immigration Service is to ensure effective immigration control, and I never have. But other government agencies also have a separate primary function and they are still included in the duty. That does not have a negative impact on their performance: for example, the chief officer of police is included in the duty at Section 11(1)(h). If the police can be regarded as exercising their proper central functions while having regard to the constraint of Section 11, it is hard to understand why immigration bodies should not be able to fulfil their functions while operating under that same constraint. A duty of care is not contradictory to the primary function; it only qualifies the manner in which it is exercised. As the Explanatory Notes to the Act state,
“This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of exercising their normal functions”.
I understand that the Refugee Children's Consortium has taken legal advice which states that Section 11 would not prevent the Home Secretary implementing the removal directions for a child or his or her family and would, at most, just affect the manner in which the removal occurred. That surely should give the Government the opportunity now to give children the protection of Section 11 within the immigration system.
I am in no doubt that the Bill should enhance child safety. The Government have recognised that by tabling their own amendment. It is the right time to extend the duty under Section 11 of the Children Act 2004 to those who work within the immigration system, in particular the regional offices of the National Asylum Support Service, the managers of immigration removal centres and the immigration officers at ports of entry to the UK. My proposed new clause would do just that.
Amendment No. 44 finds a different solution. The new clause that it proposes would place a duty on the Border and Immigration Agency to take appropriate steps to ensure that while children are in the UK they are safe from harm and their welfare is promoted. The intention of the amendment is to combine aspects of the duty in Section 11 of the Children Act with the Government’s amendment on safeguarding. It was brought forward with the assistance of the Refugee Children’s Consortium, which is trying to assist me in consultations with the Government to find a satisfactory resolution to what at the moment is a disagreement between us.
The omission of the Immigration Service from the Section 11 duty is brought into even sharper focus by the legislative proposals before us. The UK Borders
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The Earl of Listowel: I support the amendment. It is important that those children receive the protection that it proposes. I was pleased also to see the Minister’s amendment and look forward to learning more about it.
The noble Baroness, Lady Anelay, set out clearly why the Government need not be so concerned about prolonged delays due to recourse to judicial processes. At Second Reading, I pointed out that concerns about application for judicial review are groundless, given that families already have ample and more effective means to do so through the Human Rights Act. I am sure that it is not the Minister’s intention to suggest that the welfare of those children is less important than that of others in this country, but I fear that if they reject the amendment, that mistaken perception may spread.
I emphasise the importance of the amendment in encouraging the Government and their agencies more carefully to consider and plan for the vulnerabilities of those children and shall use Yarl’s Wood detention centre as an example. When a group of parliamentarians visited the centre last year, members of staff and the Inspector of Prisons expressed concern at the families’ lack of information on progress of their case. This ignorance greatly increases the distress of the families and seems hard to justify. I should be grateful if the Minister would write to me with details of how families are being informed of the progress of their cases and being given access to legal support. This is administrative detention; they are being held indefinitely without trial; they need information and advocacy for their protection and peace of mind. The Children's Commissioner highlighted that none of the children whom he met on his visit knew why they were detained. He said to the European Union Committee—I quote from column 2 of page 92 of House of Lords Paper 166:
“The starkest example I can give you is that on that morning, in the reception area, we found a distraught black child, impeccably dressed in his school uniform. I sat down and asked him why he was there. He said: ‘No one has told me’. I asked him: ‘What is going to happen to you?’ He said: ‘No one has told me’. I said: ‘What has happened through the day?’ He said that
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With just a little careful thought, much more might have been done to assist children like that boy. Of course, an experience such as that will be traumatic, but the harm could be kept to the minimum.
Perhaps I may give another example. Mr Liam Byrne has recognised that it is inappropriate to keep a few families—it is a few—for long periods of time in detention and Jeremy Oppenheim, the children’s champion, also recognises that. Why did the situation of a few families staying so long ever arise? At a visit last year, a random group of families was gathered by the director. Of the small sample that I spoke to, one mother and her two girls aged 15 and eight had completed five months and another mother with two infants had already spent two months there. Those are but a few examples of failing to consider quite simple matters which impinge strongly on safeguarding and promoting the welfare of children.
I share another concern about making those children an exception compared with other children in this country and excluding them from the protection of the Children Act 2004. In, I think, 2001, I visited a children's home in north London. The remarkable manager, who had more than 30 years’ experience, expressed her resentment at having to provide beds to a number of Kosovan young men. I was too surprised to challenge her at the time and had no wish to criticise her while she was undertaking such difficult work with the support of staff, some of whom could barely write. Perhaps she felt that, after decades of neglect, social services were just too stretched to take on strangers.
There is no doubt that asylum-seeking children can put an additional strain on a system which still, in many places, is grotesquely underdeveloped for a nation as wealthy as ours. Yet we recognise that such children are vulnerable; they may have been trafficked and may have been traumatised by experiences in their home country or on the journey here or by experiences since their arrival. While they are here, they are among our most vulnerable children and require protection accordingly.
Our social care system and our immigration system face great challenges. Those people on the front line, the social workers and perhaps the case managers, often feel distressed by the nature of their work and under-supported. They risk burning out and losing the emotional capacity to continue to care about the vulnerable children and adults they deal with daily. In that context, it is unhelpful to draw such a clear distinction between children in the immigration and asylum system and other children. There are bona fide reasons to wish to attempt to manage the flow of people into this country. There is also the innate fear of the stranger and the need to hang societal flaws on others which manifest themselves repeatedly over time, most vividly to us in 1930s Germany. Distinguishing these children, giving the appearance that promoting their welfare is less important to us, may encourage those antagonisms or suggest that they should be given a lower priority.
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I welcome Her Majesty’s Government’s proposals but as no good reason has been provided to distinguish these children, I hope that they will think again. We should not exclude these children unnecessarily; as far as possible we should make them feel included while they are here and while informing them that they may have to leave.
I also take this opportunity to express my disappointment at Her Majesty’s Government’s decision to keep the option of making failed asylum-seeking families destitute. The prospect of that terrible measure makes manifest the necessity to oblige members of the Border and Immigration Agency to give regard to safeguarding and promoting the welfare of children.
Lord Bassam of Brighton: I was thinking that perhaps it would be better for constructive debate if noble Lords spoke to their amendments first, but I am happy to speak to the government amendment now. I am most grateful to the noble Baroness, Lady Anelay, for the constructive spirit in which she moved her amendment and her general encouragement to the Committee to adopt the Government’s amendment this evening, if only so that it can be further examined and perhaps amended at a later stage in the Bill. That is entirely fair and quite proper. I have recognised for some while that this is an important debate. The Government are committed to doing what we reasonably and practically can to address the issues of concern that have stimulated this series of amendments and debate.
7 pm
My noble friend Lady Scotland made plain at Second Reading that we remain committed to ensuring that the Border and Immigration Agency treats children with whom it comes into contact entirely fairly and properly. The key question is whether that can be achieved only through the imposition of a broad, statutory duty to safeguard and promote their welfare. In looking at Section 11, we were informed in no small part by the longstanding and close interest of noble Lords, as was clearly demonstrated at Second Reading. The outcome of that consideration, as I am sure is plain to the Committee, has been matched by the amendment that we have put before your Lordships this evening, which would place the Border and Immigration Agency’s responsibilities towards children on a statutory footing.
Amendment No. 37 represents a far more positive response and achieves what we would all, I believe, want for children with whom the Border and Immigration Agency has some contact. The duty will not give the Border and Immigration Agency any new functions, nor does it override its existing functions, but it will offer a much more robust assurance that the way it treats children in carrying out its functions is appropriate.
Before I explain how our amendment will help us to keep children safe from harm while they are in the UK, it is important to set out what role the Border and Immigration Agency has towards children. First,
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Alongside placing our responsibility on a statutory footing, we are developing a framework, the principles of which my honourable friend Liam Byrne announced on 25 June. This framework will cement our links with the agenda set out in the Every Child Matters programme. It will also be tailored to the child protection frameworks of the devolved Administrations. We must also not forget that, more widely, the Children Acts already provide protection for all children in the UK, and that we should not seek to give the Border and Immigration Agency responsibilities which already and properly belong to other agencies. Rather, we need a provision which accurately reflects the nature of the agency’s role, and that is what our amendment provides.
We must also be aware that the Border and Immigration Agency performs this function across the UK, so we need a provision which can apply to its functions throughout the UK—the point that the noble Baroness, Lady Anelay, picked up. Our amendment, unlike Section 11 were it to be extended to immigration matters, applies universally. The code will be much more than a general high-level duty. It will set out in some detail the steps that Border and Immigration Agency staff must consider. My noble friend Lady Scotland placed in the House Library last week a paper outlining the proposed content of the code.
The content will be based on three fundamental steps that immigration staff will take. First, to identify signs that a child may be at risk from harm, the code will spell out what these signs are, as indeed some instructions and guidance which the agency has already do.
Lord Avebury: This is the second time that we have had reference to a document which has been placed in the Library by a Minister and which is immediately relevant to the subject we are discussing in Grand Committee. I repeat my request to the Minister that when he refers to these documents, he or his department should ensure that copies are available in the Grand Committee, and not in the Library. We cannot leave. We cannot get up from here and wander off into the Library to get copies.
Lord Bassam of Brighton: I am entirely sympathetic to the noble Lord’s point. I will endeavour to ensure that copies of documents referred to in the way I have done will be circulated to the Committee. I apologise for any unintended slight, and take the noble Lord’s point very seriously. I am advised that the documents are on the Table.
Lord Judd: I do not want to increase my noble friend’s difficulties in any way. He is expressing genuine concern, and I find his apology convincing. However, I do not quite agree with the noble Lord,
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Lord Bassam of Brighton: Again, in general terms, that is a valid point. I take the admonition.
Secondly, in response to its suspicions that a child may be at risk of harm, the agency importantly refers the child to the appropriate agency which has a principal statutory responsibility, usually the local authority or the police in an emergency situation. Thirdly, the code will describe the processes and procedures the agency will have which help identify signs that a child may be at risk from harm, and it will describe how a child’s safety will be taken into account in making immigration decisions.
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