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I welcome Lords amendment No. 19. I am glad that Ministers were eventually persuaded by what was a strong coalition of interests in another
place. Not only my noble Friends and those of the hon. Member for Ashford (Damian Green), but Cross-Bench Peers, right reverend Prelates and most reverend Primates, were involved in making the strong arguments that, where we have a clear commitment through the Childrens Act 2004 and our international obligations to the welfare of children, there is no reason why that should not apply in the sphere of Government activity under discussion as much as in any other. That is not to undermine the executive actions of the Border and Immigration Agency, because that would be absurd, any more than it is to undermine any of the other activities of Government that we require it to commit to the welfare of the child through pre-existing legislation and our treaty obligations. There must be a reconciliation with the proper interests of children as being a specific and vulnerable case, which needs to be addressed in respect of how things are done in the name of the state when it has an application that impinges on children. That is what was argued for strongly. There was resistance to that view in another place. I recall that the Government won a Division by a majority of one on precisely this issue before they chose to incorporate the new clause in any case.
That much is welcome, but I understand the arguments for amendment (a) made by the hon. Member for Ashford. Unless we have a clear view of the actions that are in breach of the code of conduct, neither we, nor, more importantly, those outside this House who have a genuine interest in the interests of the child, will be able to monitor the adequacy of the arrangements that have been put in place. What he suggests in amendment (a) seems sensible.
I accept the point, made in an intervention, that the Childrens Commissioner may not always be the most appropriate person to be notified, but he is an entirely appropriate mechanism for ensuring that whatever breaches occur are put on the official record and are then actionable by the appropriate authorities. If the hon. Gentleman presses his amendment to a Division, I shall advise my right hon. and hon. Friends to support him.
I am less convinced by amendment (b), simply because I do not believe in delaying what ought to be in place ab initio in child protection. Although the argument is that a six months delay will allow proper consultation with all the organisations concerned to ensure that things are done adequately, I would prefer the provision to be in place from the start of the implementation of this Bill, when enacted. If we treat Home Office Acts as being of a kind, it is possible that implementation of the Act may not, in any case, be for some timeindeed, the Act may well be repealed in whole or in part before it is ever implemented. That is how the Home Office manages its affairs. Let us take it on trust that it intends to implement this Bill and that once on the statute book, it will have a real effect.
Mr. Oliver Heald (North-East Hertfordshire) (Con): Does the hon. Gentleman agree that it is important for there to be consultation with the childrens organisations, charities and voluntary bodies? They stand up for children, and one would certainly want an assurance that such full consultation about the code of practice would take place.
Mr. Heath: I want to hear the assertion that such consultation has already happened. I want the Minister to say from the Dispatch Box that he has already listened to that range of organisations that have an interest to ensure that their views are being taken, and have been taken, into account in preparing the code.
Damian Green: I assure the hon. Gentleman that my meetings with childrens organisations over the past week suggest that whether or not the Minister feels that he has adequately consulted them on this code of practice, they do not feel that their views have yet been adequately reflected in it.
The last point that I want to make is that the Minister has accepted that the provision should apply not only to the agency, but to any contracted organisation that it might use to fulfil some of its duties. Again, there should have been no argument about that. It is absolutely straightforward. It should not have posed any question. The hon. Member for Ashford asked the Minister about the slightly less than lucid response from Lord Bassam. I have known Lord Bassam for a very long time, and his responses are often not quite as comprehensible as perhaps they should be, but I hope that the Minister will tell us exactly what he meant. Perhaps he simply meant that he was unsighted on the issue in another place, and perhaps the Minister can fill in the gaps for us this afternoon. On that basis, I will certainly not oppose Lords amendment No. 19, but I will support amendment (a) if the hon. Member for Ashford presses it to a vote.
Mr. John Redwood (Wokingham) (Con): I congratulate my hon. Friend the Member for Ashford (Damian Green) on pressing this issue with hon. Members and those in the other place. I should like to thank the Government for listening and making some response. That is a welcome feature, but I rise to support his wish for the Government to go a bit further. The problem that they face is that they have made a concession in the form of a code of practice, which has nothing like the teeth that it would have if it were a statutory requirement or a procedure laid down in law.
My hon. Friends proposal is a good way to bridge the gap between a clear law on the one hand and a rather weak code of practice on the other. He suggests that, where the code of practice is not followed, it should be a matter of report, so that the people who follow the procedures will understand that it is not just any old code of practice that came round in an e-mail a year ago that has been forgotten about, but something that is part of their operative procedures. I hope that the Minister will accept amendment (a) in that spirit and that, having made the move to welcome the idea of a code of conduct, he will wish to see it firmly written into procedures, because there is a consensus in the House and the other place that the problem of children is very special in the context of our immigration service.
As my hon. Friend has said, many Conservative Members wish to see stronger and better policing of our borders in all sorts of ways, but we also think that the rights of children need to be looked after.
Mr. Byrne: The Government agree with Lords amendment No. 19, but resist amendments (a) and (b) for reasons that I will set out, but before I do so, I wish to put on the record my personal thanks to right hon. and hon. Members on both sides of the House who have taken part in debates in the Chamber and in Committee. The hon. Member for Ashford (Damian Green) is right to say that this has been one of the most important parts of our debates, and I am grateful for the light that that has shed on the question.
I am also grateful to Professor Al Ainsley-Green, the Childrens Commissioner, with whom I have met and discussed these proposals; to the Refugee Childrens Consortium, which includes Barnardos and the Childrens Society; and to the Association of Directors of Childrens Services in England and officials in devolved Administrations not only for the help that they have given to us in getting the duty that we have introduced framed in the way that we have, but for the assistance that they have given to us in putting together a much broader programme of reform in how the Border and Immigration Agency treats children.
This duty is one of four important measures that I have introduced over the past 12 months. We have the duty that we propose here. We have the new safeguarding code. We are now in the process of piloting alternatives to the detention of families with children. That pilot scheme will soon be operational. Of course, we are also consulting publicly on how our policies on unaccompanied asylum-seeking children can be changed. In particular, I am keen to see a much stronger provision of local authority care, with specialist authorities coming forward to look after unaccompanied asylum-seeking children, thus providing much greater protection than is currently available. It is not a case of eventual persuasion being needed, but part of a much broader and systematic programme of reform across the BIA.
There have been debates about section 11 in the Chamber, in Committee and in another place, so I shall not rehearse all the arguments, save to point out that section 11 of the Children Act 2004 contains a double-headed duty. It is not only about keeping children safe but about promoting their welfare. The hon. Member for Ashford errs just a little when he colours the argument by stating that Ministers say it would be impossible to enforce the immigration rules if section 11 was imposed on the BIA. That is not the argument. The argument is that it would create the risk of judicial reviews and other legalistic devices being thrown against the agency, which will slow down its ability to remove people to the country from which they camewhen courts have said it is appropriate to do so. Where there are chinks of light for people who want to resist BIA actions, they are pursued with some force, so my concern is that when Home Office lawyers and, in particular, BIA operational leaders, say that there is a risk that judicial reviews will multiply, it will slow the process of legitimate removal. That is dangerous, because where there are barriers to legitimate removal, we know they will be exploited by those who seek to do children harm.
In a nutshell, if a section 11 duty was imposed on the agency, it would not be a risk-free measure; it would create a new riskthat the deportation removal process would be slowed downand we know that is bound to be exploited by those who could do children harm.
Mr. Heald: As the Ministers code of conduct is only one to which the agency shall have regard rather than one that has to be strictly followed, does not he agree that there needs to be a mechanism to protect children, such as that set out in amendment (a)? If that is not to be the protection, what is?
David T.C. Davies: In my dealings with the Minister, he often gives the impression that he shares the widespread concern about the abuse of the asylum system. If he is concerned that judicial reviews and taxpayers money, which funds legal aid and lawyers, are being abused, would not it be more sensible to discuss with his colleagues in the Ministry of Justice how we can prevent fatuous legally aided appeals in the first place rather than circumnavigating section 11 of the Children Act?
The upshot of my argument is that to accept section 11 is not risk-free and I am not prepared to take that risk at this stage. There are a number of necessary consequences. The first is that the code must apply to BIA contractorsa point put to me forcefully by childrens charities. I am happy to accept that principle, which is important because the BIA works with contractors to provide both detention and escorting facilities. I can be clearer than my noble Friend, Lord Bassam: the code will apply to BIA contractors currently on the books and it will apply to BIA contractors in the future.
The reason I resist amendment (a) is fairly straightforward. The hon. Member for Ashford put his finger on the key principletransparency. It is absolutely crucial that departures from the code are recorded. Amendment (a) is sketched in such a way that it begins, in effect, to make the Border and Immigration Agency accountable to the Childrens Commissioner, and to extend his original role. Let us remember that his original role is carefully defined in legislation: it is to ensure that childrens views are taken into account. As the House will know, I am keen to avoid such a change, because an important part of the Bill is the creation of a much more powerful regulator, and I do not wish to blur roles and responsibilities in the regulatory system. I want to make sure that there is one regulator, who is unchallengeable.
However, I have asked officials to talk to the Childrens Commissioner about how we can satisfy the ambition behind the amendment tabled by the hon. Member for Ashford, and I can now tell the House that
where there are deviations from the code, the BIA will be required to record them. Those departures will be reviewed by a senior member of the BIA team, as and when they occur. We will also alert the BIAs chief inspector, and if it wishes to undertake an investigation on that point, it is empowered to do so. On top of that, there will be quarterly meetings between the BIA and the Childrens Commissioner, at which all departures from the code will be discussed. I am told that officials working with the Childrens Commissioner believe that that is a workable and sensible mechanism.
I hope that that puts some concerns to bed, but I can give the House an additional comfort: under section 2(9) of the Children Act 2004, the commissioner has the right to be supplied with any information relating to BIA functions that he may reasonably request to discharge his role. Our policy will be to disclose immediately, should the Childrens Commissioner seek to lodge such a request. Those are important safeguards, which I am happy to read on to the record this afternoon. They underline the key point that the hon. Member for Ashford made: if the code is to be worth something, there must be transparency as regards its enforcement.
I must apologise to their lordships for the late arrival of the code; that was entirely my responsibility. The code was late because I was not satisfied with the original draft. To my mind, some of the wording of the original code was ambiguous. It was not hard-edged enough in terms of the obligations that it imposed on the BIA, so I ordered a rewrite over the final weekend, and that produced a delay in making the code available in another place.
I wish to resist amendment (b) to Lords amendment No. 19. I sympathise with the argument made by the hon. Member for Somerton and Frome (Mr. Heath), which is that we need to press on as fast as possible with the implementation of the code. The word of comfort that I can offer is straightforward: the code will be put out to a full public consultation, in line with Cabinet Office guidelines. I will work with the childrens charities to help to get that right. I have met them already and I am happy to meet them again. That means a full three-month consultation period, which will take place before the code is put in placein, I imagine, about six months time. We will follow the Cabinet Office guideline-based process to get the code right and to put it in place, and I think that that will serve the ambitions of the hon. Member for Ashford. I urge the House to resist amendments (a) and (b), and I commend Lords amendment No. 19.
Damian Green: May I express my gratitude to the Minister for the steps forward that he has taken? He has made genuine and welcome concessions in response to our amendment (a), and I am glad to hear of them. Sadly, although we have inched towards each other, I do not think that we have yet met in the middle of the bridge. I am not convinced that a quarterly meeting with the Childrens Commissioner is enough, as in some cases an immediate and urgent investigation will certainly be required. As I say, I welcome the Ministers concessions, but I do not think that they go far enough, and I still wish to press amendment (a).
On amendment (b), I take the point that the hon. Member for Somerton and Frome (Mr. Heath) made about the six-month delay, but as we have just heard the Minister say that it will take six months for the code to come into force, it seems to me that we are left with a distinction without a difference. However, I will press amendment (a) to a Division.
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