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UK Borders Bill

We have some difficulties with amendment No. 19, which their lordships have proposed. That is why my hon. Friend the Member for Reigate (Mr. Blunt) and I have tabled amendments (a) and (b), which deal with the treatment of children. I am sure that all those who participated in debates on the Bill throughout its various stages will agree that the treatment of children has been the most sensitive and difficult issue, and the one on which, quite rightly, we have spent most time. The Government's response to the widespread criticism of their original proposals, not just from Opposition parties, but from the many bodies that devote their lives to helping children in vulnerable positions, is amendment No. 19 and the decision to issue a code of practice, which according to the Bill seeks to ensure that the Border and Immigration Agency takes steps"““to ensure that while children are in the United Kingdom they are safe from harm.””" The Minister will be aware that many of the groups in the Refugee Children's Consortium regard that as inadequate because it simply is not good enough in terms of the duties and responsibilities that any Government have towards children in this country. The Opposition also believe that it is inadequate if we are to fulfil that important purpose, hence amendments (a) and (b), which would provide extra protection, in as much as we can influence the Bill. The key is what duties should be imposed on the BIA when it comes into contact with children, as it sadly frequently does. Our original argument in an earlier debate concentrated on section 11 of the Children Act 2004, which imposes on public bodies a greater duty of care for children in their hands than the Government are prepared to accept in the Bill. Ministers in both Houses argued consistently that if they did that, it would be impossible for immigration officers to do their job properly. Instead, we now have the code of practice, which does not incorporate the section 11 duty to promote the welfare of children. That places a weaker duty on Government agencies than the duty that relates to indigenous children in England and Wales. The Government are not conferring any explicit statutory safeguarding duty for the BIA in the Bill. Although the amendment makes the Bill better, I do not, to quote the hon. Member for Somerton and Frome (Mr. Heath), wish to be churlish, but it is still not good enough. The Government have argued consistently that any attempt to impose section 11 would restrict the primary function of the immigration service. Indeed, a Minister said that any such duty would"““severely compromise our ability to maintain an effective asylum system and strong immigration control””. —[Official Report, House of Lords, 17 June 2004; Vol. 662, c. 996.]" I imagine that the Minister for Borders and Immigration will respond that way again today. That assertion, however, has been tested during the Bill's passage through both Houses and has been found wanting. No one disputes that the primary function of the immigration service is to ensure effective immigration control. Indeed, we have made many proposals that would improve the effectiveness of that control. However, other Government agencies also have a different primary function and they are still included in the duty under section 11. That does not appear to have had a negative impact on their performance. The Minister will be well aware that the police have a similar duty. I have never heard Ministers argue that the police cannot exercise their proper central functions while having regard to the constraint of section 11. The police, much more than immigration officers, must take control of situations daily where the immediate welfare of a child, who may well be committing an act of violence, may be compromised. That immigration officers cannot fulfil their duties while obeying the constraints of section 11 is one of the Government's weaker arguments. The specific duty of care is not contradictory to the primary function; it simply qualifies the manner in which that primary function is exercised. The explanatory notes to the Act state that the duty is intended to ensure that agencies are conscious of the need to safeguard children and to promote their welfare in the course of exercising their normal functions. That is a key witness in the Government's argument. The Minister will be aware that the Refugee Children's Consortium has taken legal advice, which suggests that section 11 would not prevent the Home Secretary from implementing the removal directions for a child or for his or her family and would at most affect the manner in which the removal occurred. The Minister will be aware that no one on this side of the House would wish to compromise the ability of the immigration service to perform acts such as the removal of those who should not be in this country, but unless the Minister can produce alternative and contradictory legal advice, Ministers ought to take some comfort that they could proceed in the manner that they have consistently rejected throughout the Bill's passage. I am sure that the Bill should be enhancing child safety and the Government recognised that by tabling their own amendment and by producing the code of practice, which is now before the House. It is a matter of great regret that Ministers have not taken the next step forward and agreed to incorporate section 11. On the code of practice, which is specifically mentioned in the amendment, the Minister will be aware of controversy in the other place when the code was introduced, simply because it appeared to be placed in the Library about 20 minutes before their lordships were due to debate it. A number of my hon. and noble Friends said that that was shoddy and, frankly, not the way in which they should be treated. I have a degree of sympathy with that. At least we in this House have had time to read the code of practice, which is still in draft form, so there is still a chance to influence it. We are concerned that the code of practice does not reflect the full spirit of section 11 and I seek to obtain further assurances from the Minister. He will know that amendment (a) concerns the recording of information about when the BIA or its contractors has departed from the code of practice. We believe that recording is essential to monitor the implementation of the code and, in particular, to contribute to the culture change in the BIA that the Minister has consistently said he wants to see. I do not suppose that anyone wants the procedure to be long and bureaucratic, but one thing it must be is transparent, which is why we have said that the information should be made available to the Office of the Children's Commissioner. It is also vital that this requirement is rolled out across the whole of the BIA as part of its normal training programme and not just to those areas where children are dealt with most frequently or where a breach is most likely to occur.