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Lord Avebury moved Amendment No. 36:

Before Clause 4, insert the following new clause--

Evidence obtained using X-Rays

(". In any proceedings under the 1971 Act, the Immigration Act 1988, the 1993 Act or this Act, it shall not be admissible for evidence to be introduced as to a person's age which is derived from the use of X-Ray technology.").

The noble Lord said: My Lords, the amendment arises out of the discussion that took place on 30th April concerning the arrival in this country of unaccompanied children, the problem of how the ages of those children should be determined and the remarks that were made then by the right reverend Prelate the Bishop of Ripon concerning the use of x-rays for that purpose. I ventured at that time to point out that we had long ago discontinued the practice of using x-rays for age determination in immigration control. Since then I sent a copy of a report which my office published in 1981 to the right reverend Prelate and also to the Minister.

The Minister was kind enough to reply in detail saying that the Home Office and the Foreign Office had long discontinued the use of these techniques. However, they continue in private practice, as I confirmed by discussing the matter with the noble Lord, Lord Winston, who is a medical practitioner. When we produced that study in 1981 the purpose was to remedy the defects in the Yellowlees Report on the medical examination of immigrants, which had been published by the Home Office in 1980, in so far as that report referred to the risks inherent in the use of radiological examinations of children and the errors arising from varies techniques of age estimation based on x-rays.

Because there was no limit below which exposure to x-rays gives rise to a zero risk, we found that the use of x-rays, especially on children, is avoided wherever possible. According to one authority:

    "We ... have a large amount of data--much of it human--showing a statistically significant increase in a number of types of malignancies as a consequence of exposure to low doses of ionising radiation". As a result of much evidence of that kind, the BMA passed a resolution at its annual meeting in 1979:

    "That this meeting considers that medical examinations to determine virginity, and radiological examinations, carried out solely for administrative and political purposes, are unethical and instructs Council (a) to convey this view to the General Medical Council and (b) to make the strongest possible representation to the Government to ban these practices".

In addition, the World Health Organisation has condemned the use of x-rays for administrative uses because it exposes people to unnecessary radiation risks. The authors of the most advanced system for assessing skeletal maturity, Tanner and Whitehouse, had not updated their control group since the 1950s, because, in their words,

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    "current British regulations forbid the x-raying of hands of healthy children ... Our norms therefore remain those of [26] years ago".
The norms of Tanner-Whitehouse were based on a 1950s sample of British children of slightly under-average family income. Therefore, the use of the skeletal age of those children to determine the chronological age of applicants from third world countries was subject to two major sources of error. First, since the 1950s general standards of nutrition and skeletal maturity will have changed drastically. Secondly, there would be enormous difference between the rates of skeletal maturity in Britain and those various third world countries. From many studies it was concluded that the error inherent in the use of those skeletal techniques for age determination was something like plus or minus two years.

Not only were those techniques dangerous to the children, they were also grossly inaccurate and useless for the purposes for which they were intended. For that reason the Home Office and the Foreign Office discontinued the practice.

I was disconcerted to find from the discussion on 30th April that the practice was still continuing in the private sector. I believe that we should take the opportunity that the Bill presents to insert a provision which prevents the use of evidence based on X-rays in any procedures on immigration controls from the 1971 Act onwards. By doing so, we give effect to the BMA's recommendation, made as long ago as 1979. I beg to move.

Earl Russell: My Lords, I congratulate my noble friend on the persistence with which he has pursued this issue. Each time I have heard him, I have found his case more persuasive. He has today presented a very strong case indeed, especially in the light of the opinions of the BMA.

What is unusual, and very welcome, is that we are not hearing any confrontation between the two sides of the House. We are hearing suggestions about what might be done to control unwise actions in private practice. Indeed, I understand that there is no conflict between my noble friend and the Home Office on this point.

This issue is worth thinking about especially in the light of what my noble friend said about the margin of error. The Minister may not consider primary legislation the ideal medium, but if the noble Baroness has any suggestions for constructive action they will be very welcome. It will be very nice indeed if we can reach agreement on something.

Lord Renton: My Lords, I hope that it is relevant to bear in mind that the people who try to deceive by mis-stating their age are not children. They are bound to be adults who are not very old and are trying to claim special treatment because they say they are children. It is difficult for the immigration officers, medical people,

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or anyone to say what those people's ages really are. If the X-ray can decide the matter, we should keep an open mind on the issue.

Baroness Blatch: My Lords, as I said during the earlier stages of the Bill, where there is a dispute about whether an asylum claimant is under 18 years of age, the burden of proof must lie with the applicant.

One option for the applicant is to seek an independent age assessment by medical experts. If such a report is obtained, it will be given full and careful consideration. The Home Office does not normally commission such reports and I can confirm to the House that we do not employ X-rays for age assessment. Entry clearance officers at British diplomatic posts abroad do not employ this technique either. But it is not for the Home Office to say what methods should or should not be employed by an applicant's doctor.

On the methods used, my noble friend is right. It must be a matter for the applicant and his legal representatives to discuss with their chosen medical adviser. Most importantly, it is for the doctor involved to adhere to current best practice and to abide by the latest guidelines and instructions. If X-rays are being used inappropriately, that is a problem which needs to be addressed in a wider context rather than solely in relation to immigration.

I hope my assurance that the Home Office does not employ X-rays for age assessment will reassure the noble Lord, Lord Avebury, and the noble Earl, Lord Russell. However, I do not think it is appropriate to address their concerns in this way in this Bill.

I have listened carefully--not just tonight but also on other occasions--to the views expressed about the use of X-rays. I understand the concerns which have been raised. However, I am not persuaded that this Bill is the appropriate vehicle for dealing with those concerns. However, I would be happy to consult with my honourable friend John Horam, the Parliamentary Under-Secretary of State for Health, as to whether further guidance is required.

10.45 p.m.

Lord Avebury: My Lords, I am much obliged to the Minister for that helpful reply. I look forward to consulting with her about the discussion she will have with Mr. Horam. If there is a degree of risk--that is common ground between all the medical authorities and the World Health Organisation--there is a governmental responsibility to discourage the use of those techniques, particularly where that relates to statutory procedures of this kind. I agree with the noble Baroness that probably this is not the right place for the insertion of provisions which deal with health risks, and that we ought to find another opportunity for dealing with that matter in a Bill which is concerned with health. We may also, in the meanwhile, as a result of these discussions, have the opportunity of further dealings with the ethical committee of the BMA which is seized of the matter and is looking over the records of what was said and done in 1981. That committee may be able to give advice to the profession which will yield the result we

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all want to see. I am extremely grateful to the Minister for her comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Obtaining leave by deception]:

[Amendments Nos. 37 to 41 not moved.]

Clause 5 [Assisting asylum claimants, and persons seeking to obtain leave by deception]:

Lord McIntosh of Haringey moved Amendment No. 42:

Page 5, line 5, leave out ("or has reasonable cause for believing").

The noble Lord said: My Lords, in moving Amendment No. 42 I wish to speak also to Amendments Nos. 44 and 45 which are all concerned with the conditions under which it is possible and desirable to control racketeering in immigration advice. I say immediately that we are strongly in support of the objectives of Clause 5 of the Bill. We believe that it is desirable and indeed essential that there should be controls over who gives advice. It is particularly desirable that there should not be a body of people who encourage claimants to seek to obtain leave to remain in this country by deception. In saying that, I am not for a moment admitting that I am satisfied with the definition of deception. However, there are other amendments which cover that point.

In these three amendments we are in particular concerned with the professional status of solicitors because the clause as drafted requires solicitors to second guess their clients and forces them to make judgments as to whether the story the client tells is true. That is the implication of the phrase,

    "has reasonable cause for believing",
which appears at three points in Clause 5(1). To have "reasonable cause for believing" implies that the person who has the reasonable cause has obtained that reasonable cause by a course of inquiry.

I am not in any way an expert on the ethical rules which govern solicitors. However, the Law Society advises me that,

    "Solicitors are under a duty not to act for a client where deception is involved, but are not required to cross-examine clients about the truth of their story".
The Law Society says that,

    "The effect of the clause as drafted will be to oblige solicitors to establish the truth of a client's story, rather than to act as their representative. Solicitors will in effect be doing the job of Immigration Officers in determining the truth of an applicant's claim".
It goes on to say that,

    "The burden of proof in the clause, which specifies that advisers must have 'reasonable cause for believing' a client not to have used deception is too heavy. It would be impossible in many cases to disprove that the adviser had reasonable cause for believing an application included deception".

I have taken the unusual step of reading directly from the advice given to me, and I believe to other noble Lords, by the Law Society because this is an area where the professional rules of solicitors are rather arcane. However, this point deserves the serious consideration

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of government. The Law Society, and this House, deserve a considered reply to these amendments. I beg to move.

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