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It would be quite wrong in Committee deliberations of this kind to become emotional, but I say with all the conviction that I can muster—and here I speak for myself, but know that I speak for other members of the Committee, as well—that we were appalled by how children became casualties of systems. We were appalled at how the identity, personality and individual needs of children, despite the good intentions—and the sadness of it is that very often the good intent is beyond question—of officials and others, were somehow neglected and looked at as only a management problem, to be resolved by finding the right solution at a management level.
I began to think in the middle of it all that what really was needed for a child in this situation—let us think how intimidating and formidable it must be for the child concerned—was a champion for them: somebody whose job it was to make absolutely sure that the child’s interests came above everything else. I also became convinced that, in terms of the obligations which we have in good faith given in the UN Convention on the Rights of the Child, we have an absolute duty to keep the overriding interests of the individual child central to the operation. We should ask not just how we find a solution to a problem, but what will really be best for the child.
A lot of things need to be done to that end, but the noble Baroness and the noble Lord have taken on board—they might perhaps have been a little more forthcoming and generous in their observations—the momentum which the Minister has established. We should build on that. Their amendments could be extremely helpful in securing effective results rather than expressing administrative aspiration.
Lord Roberts of Llandudno: I intervene very briefly, as time is not on our side. There is an opportunity here for a reversal of the policy that has been carried on to date. In meeting after meeting, we have discussed the regulations regarding immigration and have contrasted them with the rights of the child in various guises. Although, to some extent, I can understand why, the reply is always, even in relation to the United Nations Convention on the Rights of the Child, that the protocol might interfere with our own immigration regulations. It is always the immigration regulations that win.
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Many of the amendments have something to do with children. The noble Lord, Lord Judd, who has just spoken, mentioned the paramount need to put children right at the centre of this legislation. This is an opportunity for the Government, who have a new Prime Minister and new Ministers, to take the step and say that the preference must always be for children. We need immigration controls to a certain extent—of course we do—although I am not sure how they would have affected the terrorist efforts of the past two or three days. I do not know how those could have been controlled by any legislation centring on immigration.
I have a fair deal to do with the orphans of parents with AIDS in Africa, where thousands of children are born into hopelessness. This is an opportunity for the Government. The noble Earl, Lord Listowel, said earlier that there was a move, with Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, to ameliorate some of the harm that it is admitted has been caused by that Act.
I am sure that the subject will arise in this Committee again as we go on to discuss various clauses and amendments. Could we not ask the Government to take a different approach and put the rights of children first? We might need to tweak the immigration controls around them, but let us tell the world that we want to build a world that is fit for children to live in and that this is our contribution. The noble Lord, Lord Judd, referred to a champion for children. There is one, I am told, but we can be the champions for children in legislation. This is a plea to take that into account when considering the amendments that we are discussing now, of which I prefer the Liberal Democrat amendment. Why do I say that?
Lord Bassam of Brighton: The noble Lord was doing quite well until that point.
Lord Roberts of Llandudno: The Liberal Democrat amendment is the only one that mentions the United Nations Convention on the Rights of the Child, and I should like to see that embodied in the Bill.
The Duke of Montrose: I should like to clarify something. The Minister referred to the problem of applying Section 11 to Northern Ireland and Scotland. However, what strikes me is that Amendment No. 13 falls within the part of the Bill—between Clauses 1 to 4—that does not apply to Scotland. The application of Section 11 is certainly a devolved matter. From what the Minister has been saying, it appears that the Government are perfectly happy that, with regard to all the other provisions of Clauses 1 to 4, it should be left to the Scottish Executive to decide what further powers they need. The mood of the Committee seems to be that the Bill needs to include measures that affect Scotland, and one is left to ask whether the Government have approached the Scottish Executive regarding consideration of a Sewell motion and what response they have had.
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7.45 pm
Lord Hylton: I offer a suggestion on Amendment No. 13 for consideration by the Government. Would the amendment become acceptable if it only referred to England and Wales?
Amendments Nos. 38 to 40 reinforce the effect of government Amendment No. 37; what I am going to say is perhaps parallel to them. Will the Government consider appointing legal guardians for those children identified as having been trafficked, and to unaccompanied children arriving in this country generally? I suggest that the appointment of guardians might have a good effect on the most unfortunate phenomenon, which has been going on for a number of years, of children disappearing from care.
The Earl of Listowel: Might the Minister be prepared to meet outside the Committee, before Report, to look at the important and controversial point of what the impact of introducing these children into Section 11 of the Children Act would be? I absolutely sympathise with the Government in wishing to avoid, as far as possible, further judicial delays on a basis which is not well grounded. The Government are absolutely right not to wish children to be further kept in suspense about their future by these sorts of delays. Having thought about this for a long time, my understanding is that the Government’s fears are not well grounded. However, I know that the Government are well advised in this area and have operational experience. If they continue to be concerned, I would want to think again about my position.
To give one example, there are serious concerns about the treatment of children in the custodial secure estate; I cite, for instance, the death of a child, Gareth Myatt, at a secure training centre during restraint. But I am not aware of any occasion since the introduction of the Children Act 2004 when the secure estate has been taken to judicial review under Section 11. I do not see that a weak duty such as this is going to provide significant ammunition for further judicial review and delays in the law. It might be helpful to have a careful consideration and discussion of this before Report, to try to thoroughly understand the true position.
The Deputy Chairman of Committees (Viscount Simon): I am sorry to interrupt the Minister, but I should advise the Committee that Grand Committees can sit for only four and a half hours. We therefore have to finish by 8 pm.
Lord Bassam of Brighton: 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
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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.
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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.
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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.
Lord Avebury: The Minister said that he is prepared to engage in further discussions with noble Lords between now and Report on how we can best pursue our common aim of preventing harm and promoting the safety of children, but that begs the point. The essence of what we have been saying is that we want to extend that rubric to the promotion of the welfare of the children. That was why the noble Baroness, Lady Anelay, suggested the formulation in Section 11. The Minister said—
Baroness Anelay of St Johns: I am aware of the time: we have two minutes. I wonder whether the noble Lord, Lord Avebury, might be able to pursue this outside the Committee Room if I formally manage to deal with my amendment.
Lord Avebury: It is most unsatisfactory that I should be cut short at this point. There are things that I have to say, which I will attempt to insert at the beginning of the next sitting, and we need the Minister’s reply. It may be highly irregular to do that but for the time being, because of the pressure of time, I am forced to beg leave to withdraw the amendment.
Baroness Anelay of St Johns: I understand that the noble Lord has not had an opportunity to move it; he was speaking to it. We all regret that he has found his contribution truncated—
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Baroness Anelay of St Johns: No, the amendment was spoken to. It is moved only if it is in a separate place in the list. The Minister was not able to move his amendment either; he was only speaking to it.
We agree on so many things. We agree that child welfare in the immigration system must be at the forefront in all four nations—so my amendment is defective in that respect. We agree that it is important that decisions on children are not delayed. We have to look at the issue of judicial review. We agree that, whatever happens, there has to be a code of practice, and we will need to see whom the Government are consulting on that. We agree that child welfare is vital. What we do not agree on, and what we do have to resolve in our discussions during the summer, is how we arrive at putting children first. I bear in mind precisely what the noble Lord, Lord Judd, said: children are the casualty of systems. We have to stop them being the casualty of systems. They are not the ones at fault. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: This may be a convenient moment for the Committee to adjourn until Thursday at 2 pm.
The Deputy Chairman of Committees: The Committee stands adjourned until Thursday.
- The Committee adjourned at 8 pm.
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