Lords a mendment proposed: No. 19.

"Children

(1) The Secretary of State shall issue a code of practice designed to ensure that in exercising functions in the United Kingdom the Border and Immigration Agency takes appropriate steps to ensure that while children are in the United Kingdom they are safe from harm.

(2) The Agency shall—

(a) have regard to the code in the exercise of its functions, and

(b) take appropriate steps to ensure that persons with whom it makes arrangements for the provision of services have regard to the code.

(3) The code shall come into force in accordance with provision made by order of the Secretary of State; and an order—

(a) shall be made by statutory instrument, and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) The Secretary of State shall from time to time review and, if necessary, revise the code; and subsection (3) applies to a revision as to the original code.

(5) In this section—

(a) "the Border and Immigration Agency" means—

(i) immigration officers, and

(ii) other officials of the Secretary of State, and the Secretary of State, in respect of functions relating to immigration, asylum or nationality, and

(b) "child" means an individual who is less than 18 years old."

I beg to move, That this House
agrees with the Lords in the said Amendment.

I beg to move Amendment (a) to the Lords amendment, in line 10, at end insert—

'(c) record in documentation when staff and the Agency depart from the code and the reasons for such departure, and

(d) inform the Office of the Children's Commissioner in the relevant constituent part of the United Kingdom on each occasion when it has departed from the code.'.

With this, it will be convenient to discuss Amendment (b) to the Lords amendment, in line 25, at end add—

'(6) (a) This section shall come into effect six months after the day on which this Act is passed.

(b) During the time specified in subsection (6)(a) the Secretary of State shall consult such organisations as he considers appropriate on the contents of the code.'.

We have some difficulties with Amendment No. 19, which their lordships have proposed. That is why my hon. Friend 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 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". —[ Hansard, 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.

I have a lot of sympathy with the points being made and I understand the requirement to record breaches in the code, but I have a question on the reference to the OCC in the second part of Amendment (a). I am not convinced that that is the best place for this work to be done. If the breach of the code relates to health, education or a justice matter, for example, would it not be better in Scotland for that to be reported to the relevant Cabinet Secretary or to the local authority, the education department or the local health board? I am trying to understand the logic of why the OCC should be involved in this matter after the recording has, correctly, been done by the agency itself.

I am grateful for the hon. Gentleman's qualified support. The reason for choosing the OCC in the relevant constituent part of the UK—a point I hope he would welcome—is that that office will have as its first concern the welfare of children. It will always be open to the OCC to refer matters to other agencies if their involvement is required, but to try to specify a long list of potential agencies would give rise to a less elegant Amendment. The principal point is the need for transparency. If breaches occur, somebody must be responsible for having them reported, and they must be somebody that this House and everyone involved can be reasonably certain will take effective action. I have confidence in the OCC to do that. As it is the best body to go to, this is the most effective way of protecting the interests of children—and if the OCC were not an effective way of protecting the interests of children, we should all be worried because that is what it is for.

The second assurance I seek from the Minister is in response to something said by his noble Friend Lord Bassam on Third Reading. There was a discussion about whether the code could be applied retrospectively to existing contracts. Lord Bassam was not particularly precise on that. He said that

"the advice that we have received is that it can be applied to existing contracts through the notice of change procedures already in place. We intend to ensure that the Border and Immigration Agency has a system of monitoring contractors' performance by measuring them against a set of standards devised for the specific activities that they carry out for the agency."—[ Hansard, House of Lords, 23 October 2007; Vol. 695, c. 1002.]

He did not state, however, whether all existing contracts would have the code of practice applied through the notice of change procedures. He simply said that it could be done. I would be grateful if the Minister could clarify that—I hope that he makes it clear that the code of practice will be applied in all such cases, and not just that it might be applied.

Amendment (b) has been tabled simply in the hope—particularly in light of what happened in the other place—that everyone involved has sufficient time to agree the code. As we are taking half a step forward when we should be taking a full step forward, we must ensure that the code is supported by all who have the welfare of children at heart and that it is an effective code of practice.

I recommend my amendments to the Minister and the House.

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 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 Children's 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 Children's 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 time—indeed, 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.

Does the hon. Gentleman agree that it is important for there to be consultation with the children's 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.

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.

I assure the hon. Gentleman that my meetings with children's 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.

That is precisely why I was looking forward to an assertion from the Dispatch Box by the Minister, so that it could be relayed back to those organisations.

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.

I congratulate my hon. Friend 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. Friend's 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.

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. 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 Children's Commissioner, with whom I have met and discussed these proposals; to the Refugee Children's Consortium, which includes Barnardo's and the Children's Society; and to the Association of Directors of Children's 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 came—when 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 risk—that the deportation removal process would be slowed down—and we know that is bound to be exploited by those who could do children harm.

As the Minister's 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?

I shall deal with Amendment (a) and the protections, which are important, in a moment.

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 hon. Gentleman has a keen eye for some of the practicalities of the debate; he will be delighted to hear that discussions are ongoing with my colleagues in the Ministry of Justice.

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 contractors—a point put to me forcefully by children's 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 principle—transparency. 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 Children's Commissioner, and to extend his original role. Let us remember that his original role is carefully defined in legislation: it is to ensure that children's 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 Children's 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 BIA's 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 Children's Commissioner, at which all departures from the code will be discussed. I am told that officials working with the Children's 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 Children's 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 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 children's 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 place—in, 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.

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 Children's Commissioner is enough, as in some cases an immediate and urgent investigation will certainly be required. As I say, I welcome the Minister's 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 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.

Question put, That the amendment to the Lords amendment be made:—

The House proceeded to a Division.

I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.

The House having divided: Ayes 182, Noes 268.

Question accordingly negatived.

Lords amendment agreed to.