The Lord Bishop of Durham:

Moved by The Lord Bishop of Durham

156: Clause 56, page 58, line 25, leave out subsection (2)Member's explanatory statementThis amendment reinstates the right of appeal against age assessments in respect of putative children whom there is a duty to remove under the Bill.

My Lords, I rise to speak to Amendments 156A and 161. Due to a technicality, Amendments 156 and 157 were not formally withdrawn, but they will be withdrawn, so it is Amendment 156A which is under consideration. I note my interests as a trustee of Reset and with the RAMP project, as laid out in the register.

I thank the usual channels for changing business on Monday so that this item was first today rather than last on Monday. We noted previously that, both during the Nationality and Borders Bill and during this Bill, age assessments have been talked about at 2 am and just after midnight. I am truly grateful to the usual channels for hearing my plea about not being last on the agenda again.

I am grateful also to the noble Baronesses, Lady Lister, Lady Neuberger, Lady Brinton, and the noble Lord, Lord Coaker, for their support of these amendments. This is not the level of legislative scrutiny—which we should have in Committee—that we owe to children. There were some questions put in Committee to which we did not get full answers, and I hope the Minister might provide them today.

The Bill significantly restricts any legal avenues for challenging an incorrect age determination. The appeal mechanisms instituted by the Nationality and Borders Act, though they have not yet been implemented, will now be disapplied. Following government amendments at this late stage, judicial review will also be limited to such a narrow scope as to make it impossible for a potential child to challenge the assessment of their age based on evidential fact.

All the while, if the Home Office were to inaccurately assess a child to be an adult, the implications would be disastrous and irreversible. A child would face entering an adult system alone, where they would be detained with adults before potentially being removed to a third country with no safeguards in place, perhaps without ever encountering a child protection officer. This is simply absurd, but to remove all legal safeguards and weaken a putative child’s access to justice, when the implications are so grave, is as horrifying as it is immoral.

We must not forget that the Home Office does indeed get age assessments wrong. Based on the Home Office’s own data, we can see that last year nearly two-thirds of all age dispute cases were found to be children. Currently, no method exists that can determine accurately and consistently whether a person is a child; that fact is well acknowledged by the Home Office and is clearly there in the children’s impact assessment that we got yesterday. Therefore, it is understandable that subjective and visual age assessments by immigration officers can lead to inaccurate judgments.

Because of this fact, a potential child must not be disqualified from a judicial review on whether their age decision was wrong on the basis of fact and judicial review must serve as a barrier to a child’s removal. Not to permit the courts to grant relief when the verifiable age of a child is available would allow the Government to proceed with the removal of a child when they know their decision was flawed. Last year, this would have meant over 1,000 unaccompanied children could have been eligible for removal to a third country. A child should not be removed from the UK on such a fallible basis. For the sake of children, this cannot be allowed to stand, and that is reason enough why access to judicial review should be there.

I have been saying—and I hope to reinforce this point—that I have one anxiety. As I understand the amendment, it confines the right of appeal to the grounds set out in Clause 56(5), which exclude an appeal on the basis that there has been a mistake of fact.

I was about to sit down, but I will note that. I beg to move.

My Lords, I have two amendments in this group, which very much follow the points raised by the right reverend Prelate.

As the noble Viscount, Lord Hailsham, has been pointing out, there is a problem about Clause 56(5), to which the right reverend Prelate’s amendment draws attention. As it stands, the subsection restricts the grounds of review to errors of law only. My Amendment 158A seeks to open up the scope for review, following up on a recommendation from the Constitution Committee which pointed out, as the right reverend Prelate has, that the opportunities for error on grounds of fact in this situation are very many. Indeed, the information on which the committee was proceeding was that usually it is on errors of fact that these decisions go wrong.

Amendment 158A rewrites subsection (5) to say that review is available when the decision was either

“wrong in law, or … proceeded on information about the person’s age which was incomplete, misleading or otherwise so seriously misinformed that no reasonable decision-maker would have relied on it”.

I think that the right reverend Prelate would welcome my amendment because it is trying to achieve what he is achieving. Like the noble Viscount, Lord Hailsham, I am worried that, if subsection (5) remains as it is, it will greatly restrict the opportunity for review on grounds of errors of fact.

Although I do not propose to put my amendment to a vote, can the Minister consider very carefully whether the grounds for review that I am suggesting are available? They come very close to what lawyers describe as “Wednesbury unreasonableness”. I do not know whether the Minister would accept that what I have in my formulation would be available as a ground of review that the decision was wrong in law anyway because it was so defective, but it is a very important qualification on the absolute precision which subsection (5), as it presently stands, lays down. Without elaborating further, I seek the Minister’s view on what I am proposing. It is important to know exactly to where the phrase “wrong in law” extends.

My Amendment 168AA, which was also discussed in Committee that evening at 1.30 am, is a quite different one, again promoted by a recommendation of the Constitution Committee. It seeks to ask that the power to make regulations under Clause 57(1) regarding the effect of a person’s decision

“not to consent to the use of a specified … method for the purposes of an age assessment … where there are no reasonable grounds” for doing so should be moved from the position where it is subject to the negative procedure, so that it is subject to the affirmative procedure.

The regulation power in Clause 57(1) does not take the blunt approach of saying that, if somebody refuses to consent, then he should simply be treated as being over the age of 18. Commendably, the clause is phrased as having regard to the circumstances. One can well understand that there could be a variety of circumstances in which a person withholds consent. The problem with leaving the provision as it stands to the negative procedure is that there is no opportunity for considering whether the circumstances are ones that we would wish to accept. Amendment 168AA seeks to add the regulation-making power under Clause 57(1) to the list in Clause 64(4) of those regulations which are to be laid in draft and approved by resolution of each House.

Given the wide scope of the power in Clause 57(1) and its importance to the individual, I suggest that this is a reasonable amendment to make. Although it was not possible for the matter to be debated very fully in Committee at 1.30 am, I hope that the Minister can enlarge on his reply. He replied very briefly then. Before another noble Lord intervened to attract his attention elsewhere, he said that he had noted my amendment and that the Government would “respond before Report stage”. I have had no response so far. Can the Minister consider more carefully my proposal?

My Lords, I am grateful to the right reverend Prelate and the noble and learned Lord, Lord Hope of Craighead, for bringing back these amendments. I am also grateful to the Home Office for finally publishing its child rights impact assessment yesterday afternoon although, I must say, getting it has been like pulling teeth.

However, on age assessment and other children’s rights issues, it reads more like an attempt at post hoc justification than a serious analysis of the implications for children’s rights. The initial reaction from the children’s sector is damning. That it continues to use misleading statistics on age assessment that were challenged in Committee is disappointing, to put it mildly.

In Committee, I asked for an explanation of

“why the Government have ignored the very clear advice of their own advisory committee on the question of consent”,

raised by Amendment 161. The Minister’s response was:

“Of course we consider the advice”,—[Official Report, 12/6/23; cols. 1806-16.]

but the fact is that Clause 57 represents a rejection of that advice. Will the Minister explain why, having considered the expert advice, the Government then rejected it? In effect, their approach is that of guilty until proven innocent but, as we have heard, Clause 56 will make proving innocence—or, more accurately, that one is a child—much more difficult than now in what is increasingly a culture of disbelief.

The limitations on appeal and JR rights are, as the JCHR points out and despite what the CRIA says, clearly not in any child’s best interests. Likewise, the UN Committee on the Rights of the Child has expressed concern and recommended that age-disputed children should not be removed to a third country. I asked in Committee what the Government’s response is, but received no reply; nor was it explained what steps would be taken to ensure the following, in the words of the supplementary ECHR memorandum, echoed in the CRIA:

“The appropriate support and facilities will need to be in place in the country of removal to ensure that the individual can effectively participate in their judicial review from abroad”.

It is difficult to believe that effective participation would be possible, even with support. We need, at the very least, to know what that support would be. Even if the child managed to challenge the decision successfully from abroad, they could then order only a reassessment. How would that be meaningfully carried out if the child is no longer in the UK? If the child were then reassessed as a child, would they be moved back to the UK?

I have a final question. The Nationality and Borders Act provided for a new statutory right of appeal to the First-tier Tribunal to replace judicial review as the means to challenge age assessment under that Act, so that it

“can be resolved as swiftly as possible” and

“to ensure that genuine children don’t slip through the net and are classed as adults”.

Over a year on, this section has not been commenced. Can the Minister say why and set out the Government’s timetable for doing so, or has it been jettisoned before it has even come into force?

My Lords, I will speak briefly in support of Amendment 156A, although I regret the limited nature of the appeal contemplated by that amendment. I very much welcome Amendment 158A, in the name of the noble and learned Lord, Lord Hope.

As a matter of principle, I am very much in favour of giving individuals the right of appeal although, as I said when I intervened on the right reverend Prelate, I fear that his amendment provides for a more limited right of appeal than I would wish.

A decision on the age of an individual is critical in determining a person’s status under the legislation. I am concerned that, in many instances, the original decision about age will be made in a somewhat perfunctory manner. I imagine that immigration officers may get rather impatient and make rather perfunctory decisions. At the end of the day, age is a matter of evidence and I cannot find any persuasive reason why the original position on age should not be challenged. In my view, the right of appeal should extend to appeals based on the ground that the relevant authority had made a mistake of fact. That is what the noble and learned Lord seeks to achieve in Amendment 158A. However, if I have correctly understood the amendment and its relation to the Bill, the grounds of appeal are limited to those set out in Clause 56(5) of the Bill as it stands. The grounds specified there are essentially judicial review grounds—for example, that there was some procedural unfairness, or the ground of irrationality—and appeals based on fact are expressly excluded. I regard that exclusion as highly regrettable.

To meet some of the anxieties that I fear will be expressed by the Minister regarding my comments and the amendments, I make this point as well: the rights of appeal could be abused, and I would therefore like the burden of establishing the appeal to be on the appellant. It must be for them to satisfy the relevant appellate body that the grounds of appeal are made out. That may in fact be the existing law and practice—it has been such a long time since I practised in that field of law that I simply do not know. If it is not, it should be, and it would meet many of the anxieties likely to be expressed on the government Benches.

My Lords, I understand very well the child rights impact assessment on this issue. Naturally, the Government are concerned about people’s ability to pretend that they are under age when they are not, but that does not in fact deal with the underlying problem: there are a large number of children from countries outside Europe who mature much more quickly, certainly quicker than children in western Europe.

I remember going on a visit to Safe Passage, which was offering a drop-in centre for young men under 18. A number of those I met, and whom Safe Passage was absolutely satisfied were under 18, had beards or moustaches. If such person is interviewed by the Home Office, will it not immediately assume that a moustache or beard absolutely means that they are over 18? In the case of some of these young people, that will be incorrect.

I also remain very concerned about the issue raised by the noble and learned Lord, Lord Hope, in relation to Clause 5. If the issue is, as I suspect it will be, that they got it wrong, it is not necessarily—or probably not ever—an issue of law but a question of fairness. It is a question of dealing fairly and in the best interests of those who are genuinely under 18.

Reading through the child impact assessment, what depresses me is the suggestion regarding the extent to which the Government are following the principles of the Children Act—which every Government in my lifetime have followed—and looking out for the best interests of children. They are saying it again and again and, quite simply, doing the exact reverse. This is extraordinarily depressing.

My Lords, most of what I wished to say has been said by others. I pay tribute to my noble and learned friend Lady Butler-Sloss, the noble Viscount and my noble and learned friend Lord Hope for what they have said, and I support the amendment in the name of the right reverend Prelate the Bishop of Durham.

I will simply say this: it is a matter of fairness. In its scrutiny of the Bill, the Joint Committee on Human Rights remained unconvinced by this approach and believes that any penalisation for refusing to undergo some form of age assessment should be challengeable in the courts, which remains not the case at the moment. Removing a young person’s right of appeal against an age assessment which may have been carried out on appearance only, or by any other means, is, as my noble and learned Friend, Lady Butler-Sloss, said, cruel and demeaning.

It is all the more disgraceful if that young person has been tortured or abused and is terrified of being touched by strangers when there is a scientific assessment. It is all the more disturbing given that the so-called scientific methods for age assessment are widely questioned by the scientific community, especially those who have particular expertise, such as the Royal College of Paediatrics and Child Health. I chair two hospitals, as noted in my interests set out in the register. I have never met a doctor or any other health professional who supports these so-called scientific age assessment methods, yet I have met several asylum-seeking young people who have been tortured and abused and are terrified of being touched. If they refuse, they can be penalised and treated as adults. This is a matter of fact. Any young person should have the right of appeal.

My Lords, I note my interests in the register. I shall speak to the amendments in this group proposed by the right reverend Prelate the Bishop of Durham and the noble and learned Lord, Lord Hope, because I think they are a package, and we see them as being important together. I believe that age assessment is an art rather than a science, because it is absolutely the case that mistakes can be made and there is no absolutely right way of assessing the age of a person.

I recently had an experience like that of the noble and learned Baroness, Lady Butler-Sloss. As part of the Learn with the Lords programme, I was talking to group of sixth-formers in a school in England, and one of them had a beard. It was quite surprising but natural. We must not jump to the assumption that if someone has a beard, they are an adult. The rules of this sixth form are that they are allowed to grow their hair longer if they wish to.

I want to look at one area of this work which has not yet been probed by those who have spoken, which is the relationship with other European countries. The Minister repeatedly prays in aid the practice in some European countries, but the European Asylum Support Office, which provides formal guidance for member states of the European Union, has a different view from that which has been expressed by the Minister. Importantly, the safeguards in its guidance contrast with what is in this Bill and what we discovered last night in the child’s rights impact assessment.

Once again I say that the child’s rights impact assessment arrived at virtually the last moment when we are able to discuss anything which impacts unaccompanied children or children in general. It states that,

“until the Home Secretary determines the science and analysis is sufficient to support providing for an automatic assumption of adulthood, which would bring the UK closer to several European countries like Luxembourg and the Netherlands”.

However, the European guidance to all member states says on age assessment:

“In applying benefit of the doubt”— that is the important phase—

“the applicant shall be considered to be below 18 years and, if unaccompanied, a guardian/representative shall be immediately appointed … The BIC— best interests of the child—

“shall be observed from this point onwards until conclusive results point out that the applicant is an adult”.

It is evident from this Bill’s Explanatory Notes and the child’s rights impact assessment, which was just received, that this Government do not plan to do either.

The child’s rights impact assessment appeared only in the middle of last night, so it would have been difficult for people to have read it. I shall therefore quote the relevant paragraph. On page 13, it says that:

“The bill includes a regulation making power to make an automatic assumption that a person is an adult if they refuse to undergo scientific methods”—

I repeat, “scientific methods”—

“of age assessment without good reason.”

How does that equate with the guidance to European member states that the benefit of the doubt should be given and the best interests of the child should be provided? It does not. By contrast, the European guidance says on page 42:

“The refusal to undergo the assessment should not imply an automatic consideration of age of majority”.

The impact assessment published last night makes an unforgiveable error in saying on page 13 that

“the age assessment clauses aim … to … avoid the safeguarding issues which arise if an adult is wrongly accepted as a child and accommodated with younger children to whom they could present a risk”.

Under the Children Act, the responsibility for safeguarding rests always with the responsible body—in this case the Home Office or the local authority carrying out the assessment. It is their job to ensure that all supposed minors are safeguarded at all times. If there are such worries then those whose age is doubted should be kept separately from clearly younger children, but they should not be housed with adults either.

On these Benches, we seek to improve this Bill by giving an effective legal remedy to those who are judged in this manner, in a way that is woeful by European standards. We support these two amendments. If the right reverend Prelate and the noble and learned Lord, Lord Hope, wish to test the opinion of the House on both—we see them as a package—we on these Benches will definitely support them.

I am sure that everybody wants me to sit down and not speak. I want to make just one point, taking us back to the initial remarks of the right reverend Prelate the Bishop of Durham; it is crucial. The Home Office knows that its age assessments are unreliable. It is therefore immoral—I was delighted to hear the right reverend Prelate use that word—to prevent young people having the right to appeal against those age assessments. It is also immoral to allow a child to be removed from this country while a judicial review of those age assessments is under way. I want us to focus on that point from the right reverend Prelate.

My Lords, I thank the noble Baroness, Lady Meacher for her last comments; I am sure all of us agree with them.

I support Amendment 156A in the name of the right reverend Prelate the Bishop of Durham. It is a very important amendment. Of course, when people come forward with sensible and constructive suggestions which would improve an amendment that has been put forward, I have no problem with that, and I know the right reverend Prelate the Bishop of Durham has no problem with that either. In line with the remarks made by the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Hope, were the noble and learned Lord to move Amendment 158A, we would be minded to support that too, because it seeks to improve the Bill in the way that he said. It would be silly not to do so. I thank him for tabling it and hope he will spare me a heart attack from running around to make sure that it is all is in order.

The serious point is that the amendment would improve the Bill. As has been said, rather than restricting this to areas of law only, it opens it up to grounds of fact. It is a much more sensible, improved amendment, and it would be silly not to accept it. We will see what the House has to say should the noble and learned Lord, Lord Hope, be minded to move his amendment after Amendment 156A.

Nobody doubts the difficulties that can arise in respect of age assessments, particularly as many of the disputes for unaccompanied children arise around the claimed age of 16 or 17. The Nationality and Borders Act 2022 had relevant provisions, but those have been superseded by the Illegal Migration Bill. The Bill specifically allows for an individual, where there is a disputed age assessment, to be removed—in other words, an individual’s challenge to a decision by way of judicial review is non-suspensive. Amendment 156A, in the name of the right reverend Prelate the Bishop of Durham and others, seeks to address that injustice.

The Government will quote evidence saying that large numbers of individuals claiming to be children are not, and that the system is open to abuse. I point out that in the JCHR report the Helen Bamber Foundation states that, in 2022, 70 local authorities had 1,386 referrals to their children’s services of young people sent to adult accommodation or detention, but 63% were then found to be children. It is therefore deeply concerning that judicial oversight of these decisions is being ousted, and that they will then be removed from the UK while decisions are confirmed or not. As the noble and learned Baroness, Lady Butler-Sloss, says, how can that possibly be in the best interests of the child—something that has driven public policy in this country for decades?

Others have raised the child’s rights impact assessment. Since we got it only at 5 pm yesterday, it has been difficult to go through it, so I apologise for asking questions that would really be more appropriate in Committee. On the deportation of children—were the Bill to go through unamended—it may interest noble Lords for the Minister to explain why there has been a change of public policy with respect to the use of reasonable force. On the use of force by the Home Office under the Bill, page 4 of the impact assessment says:

“While this is technically not age restricted, use of force against minors is not permitted under current policy except where in the rare circumstances there is a risk of harm”.

I think we all accept that; if a child is going to hurt themselves, you necessarily expect someone to try to intervene in that circumstance. It goes on to say:

“Use of force is not currently used against minors for compliance/removal purposes. We do not envisage the use of reasonable force being used for such purposes under the auspices of the new bill”— this is the important phrase—

“unless it is necessary as a last resort where other methods to ensure compliance have failed”.

That is a major change of public policy, included in a document that we are being asked to consider at the last stages of Report. The Government are saying that reasonable force can be used in the deportation and removal of children under the auspices of the Bill, rather than it just being used in the circumstances of preventing harm. Nobody would disagree that if you are preventing a child hurting themselves, of course you have to use force and intervene appropriately, but this does not say that. I repeat: it says

“as a last resort where other methods to ensure compliance have failed”.

The House deserves an explanation of why the Government not only have changed public policy with respect to the lack of judicial oversight of age assessment but are now proposing, to ensure that children can be removed under the Bill, to allow reasonable force to be used.

I will not do this but, if this were Committee, noble Lords can imagine all the questions we would ask about training, about what “reasonable force” means and so on. That is not available to us, which makes it even more important that we support the amendment from the right reverend Prelate the Bishop of Durham—with the improvement suggested by the noble and learned Lord, Lord Hope, if he moves his amendment as well—to protect children, some of the most vulnerable people who come to our shores.

My Lords, as we have heard, these amendments take us on to the provisions regarding age assessments. Given that, under Clause 3, unaccompanied children will be treated differently from adults, and given the obvious safeguarding risks of adults purporting to be children being placed within the care system, it is important that we take steps to deter adults from claiming to be children and to avoid lengthy legal challenges to age-assessment decisions preventing the removal of those who have been assessed to be adults. Receiving care and services reserved for children also incurs costs and reduces the accessibility of these services for genuine children who need them.

Assessing age is inherently difficult, but it is crucial that we disincentivise adults from knowingly misrepresenting themselves as children. Our published data shows that, between 2016 and March 2023, there were 8,611 asylum cases in which an age assessment was required and subsequently resolved. Of those cases, nearly half— 47%, or 4,088 individuals—were found to be adults. This percentage aggregates initial decisions on age taken upon arrival, comprehensive assessments and the outcomes of legal challenges. I make clear that only those assessed to be adults will fall within the duty.

Accordingly, Clause 56 disapplies the right of appeal for age assessments, which is yet to be commenced and was established in Section 54 of the Nationality and Borders Act 2022, for those who meet the four conditions in the Bill. Instead, those wishing to challenge a decision on age will be able to do so through judicial review, which will not suspend removal, and can continue from outside the UK after they have been removed. In answer to the noble Baroness, Lady Lister, I say that we are keeping the commencement of Section 54 under review, but I am unable to provide a further update at this stage.

Clause 56(5) provides the basis on which a court can consider a decision relating to a person’s age in judicial review proceedings. It provides that a court can grant relief

“only on the basis that it was wrong in law”,

and must not do so on the basis that it

“was wrong as a matter of fact”.

This distinguishes the position that the Supreme Court adopted in its judgment in the 2009 case of the Crown on the application of A v London Borough of Croydon, page eight. The intention is to ensure that the court cannot make its own determination on age—which should properly be reserved for those qualified and trained to assess age—but instead can consider a decision on age only on conventional judicial review principles.

The court will receive evidence from people who have made these assessments, and courts are well versed in determining which evidence is to be preferred.

As my noble friend well knows, under a conventional judicial review challenge, the court will review the process of the decision and whether the decisions made were appropriate, applying the conventional judicial review tests, not balancing the evidence and coming to its own conclusion on the facts. The Government’s position is that it is appropriate for those tasked with assessing a person’s age to be entrusted with that responsibility, subject to review on judicial review principles. As the noble and learned Lord, Lord Hope, said, this includes a test of Wednesbury unreasonableness—a decision so unreasonable that no properly directed tribunal could have reached it.

I want to be absolutely clear: is the Minister accepting my amendment? I have drafted it as carefully as I can to bring it within the scope of that kind of challenge.

I am coming to the noble and learned Lord’s amendment and will answer that question in a second.

We consider that these provisions are entirely necessary to safeguard genuine children and guard against those who seek to game the system by purporting to be adults. It follows that I am afraid I cannot support Amendments 156A and 158A. However, I assure my noble friend Lord Hailsham that age assessments will, as now, be undertaken in a careful and professional manner. This is not a perfunctory exercise, and it is in everyone’s interests that we get it right.

In response to the comments made by some noble Lords, including the noble Lord, Lord German, I can assure the House that, at all stages of our age assessment process, officials and social workers are never guided to make decisions solely on the basis of appearance. There is, at all stages, a broader approach.

This is a convenient point to turn to the government amendments to Clause 56, which clarify that a court must determine a judicial review on the basis that a person’s age is a matter of fact to be determined by the relevant decision-maker, and may not grant any form of relief, as an alternative to referring to just quashing, on the basis that the court considers the decision was wrong as a matter of fact.

Clause 57 will enable us to bring forward regulations to provide that a person is to be treated as an adult if they refuse to consent to specified scientific methods, with no reasonable grounds for refusal, for the purpose of an age assessment. Amendment 161, put forward by the right reverend Prelate the Bishop of Durham, would amend the clause so that the consequences laid out in the regulations would not apply if an individual’s refusal to consent to the use of the specified scientific method was reasonable in all the circumstances. I respectfully suggest that the amendment is unnecessary. The clause already provides that this automatic assumption would be the case only if the refusal was without good reason.

Amendment 168AA, proposed by the noble and learned Lord, Lord Hope, seeks to give effect to the recommendation of the Constitution Committee to the effect that the regulation-making power in Clause 57 should be subject to the affirmative procedure. I am pleased to confirm that a response to the Constitution Committee’s report on the Bill has been issued and will no doubt be published shortly by the committee. In that response, we explain that the regulation-making power will not be exercised unless and until the Secretary of State is satisfied that the science and analysis are sufficient to support providing for an automatic assumption of adulthood.

We will also continue to seek scientific advice from the chief scientific adviser to the Home Office and the Age Estimation Science Advisory Committee. This will ensure that any regulations made under the Bill are based on a firm evidential basis. Given these considerations, we are not persuaded that it is necessary to adopt the affirmative procedure for these regulations, and I note that the Delegated Powers Committee did not take issue with the use of the negative procedure in this instance.

Turning to the point raised by the noble Lord, Lord Coaker, I remind him that we discussed the use of reasonable force in Committee, and I refer him to my remarks on Amendment 70 in Hansard.

These clauses ensure that our age assessment processes are robust and support the operation of the duty in Clause 2. I commend the clarificatory government amendments to the House and ask the right reverend Prelate to withdraw his amendment.

Finally, to return to the point raised by the noble and learned Lord, Lord Hope, it is the Government’s view that there is no need to legislate for Wednesbury unreasonableness, as the parameters of judicial review are already very clear and well established in case law.

I thank the Minister for his careful response. First, I note his comments, and accept his points, on Amendment 161. I thank the noble and learned Lord, Lord Hope, and the noble Viscount, Lord Hailsham, for spotting a weakness in my amendment. I believe that the amendment tabled by the noble and learned Lord, Lord Hope, helps enormously, so if he were to test the opinion of the House, I would support him.

The Minister, yet again, has told us that 47% were found to be adults but failed to tell us that some of those supposed adults, when they went to local authorities, were subsequently found to be children, not adults. So it is not 47% who were finally found to be adults; it is less than that.

I am worried, even if we took the 47%, about the 53% of children who could find themselves in adult accommodation and at greater risk. That is my fear; I put the child first. There is a balance here, Minister— I absolutely accept that—but many of us go a different way. I am not content with what he has said and I would like to test the opinion of the House on Amendment 156A. I beg leave to withdraw Amendment 156.

Amendment 156 withdrawn.

My Lords, I must inform the House that if Amendment 156A is agreed, I will not be able to call Amendment 157 by reason of pre-emption.