Item 12 is next. This is the legislative consent motion on the Nationality and Borders Bill. I call on the Minister for Social Justice to move the motion—Jane Hutt.

Motion NDM7922 Jane Hutt

To propose that the Senedd, in accordance with Standing Order 29.6, agrees that provisions in the Nationality and Borders Bill, in so far as they fall within the legislative competence of the Senedd, should be considered by the UK Parliament.

Motion moved.

Diolch, Llywydd. I move the motion today, the consent motion on the framework for determining age in the UK Nationality and Borders Bill. I will be calling on Members to withhold consent on the clauses on the framework for determining age in this Bill. I am grateful to the Legislation, Justice and Constitution Committee, the Health and Social Care Committee, and the Children, Young People and Education Committee, for considering the legislative consent memorandum and for their recent reports. I note that the majority of the committee's members agreed with the position I'm putting forward to the Senedd today.

The UK Government Nationality and Borders Bill will fundamentally undermine our nation of sanctuary vision, which the Senedd has endorsed. And I agree with the First Minister: the Bill is an impending tragedy. The Counsel General and I made a statement on 6 December on the Nationality and Borders Bill. In that statement, we said,

'We believe many of the provisions in the Bill will breach international conventions, violate basic principles of justice and will place ultimately extreme and insurmountable conditions on people who seek our protection.'

The Bill's provisions are the antithesis of what is needed to achieve the stated aim of making immigration safer and more effective, and there are compassionate and effective solutions. We've put these forward to the UK Government. We've repeatedly raised concerns with the UK Government about the impact of the Bill on Wales. We've sought details of the clauses relating to age assessment from May onwards, without success. They have provided no satisfactory assurances, no amendments have been tabled to address the concerns that the Welsh Government has raised.

So, Llywydd, in terms of the Bill and the provisions covered by the legislative consent memorandum, it does include the potential referral of age assessment to a new UK national age assessment board, to require the supply of evidence to the Secretary of State where the local authority decides to undertake the assessment themselves, and the creation of a method of assessing age that is in direct opposition to our existing Welsh method in the Welsh Government's age assessment toolkit, including the use of so-called scientific methods to assess the age of child asylum seekers.

The Bill does not recognise the devolved context of Wales and confers powers on the Secretary of State to make regulations imposing functions on devolved Welsh authorities. The practice of assessing the age of unaccompanied asylum-seeking children is primarily carried out to determine access to social services, care and support. And local authorities undertake these assessments to ensure that no child is left vulnerable where they have been separated from their parents or carers. In Wales we treat all unaccompanied asylum-seeking children as looked-after children, and this is set out in Welsh law under Part 6 of the Social Services and Well-being (Wales) Act 2014. Our policy position arises from our commitment to the United Nations Convention on the Rights of the Child to act in the best interests of all children.

Local authorities will have the challenge of navigating two statutory but conflicting approaches to age assessment. Ultimately, this Bill may result in a tribunal making determinations in favour of the Secretary of State's age assessment decisions, which will usurp Welsh local authorities' age assessment decisions.

And I do not agree that the UK Government through this Bill should be able to undermine the Senedd's legislative competence by requiring referral of age-disputed children to other Home Office appointed decision makers or mandating particular evidence or methods of age assessment that are not considered good practice in Wales. Therefore, I ask Members to withhold their consent to these deeply damaging provisions in this Bill today. Diolch.

I call on the Chair of the Health and Social Care Committee, Russell George.

Diolch, Llywydd. I'm speaking today in my capacity as the Chair of the Health and Social Care Committee, and I present the views of its members as a whole. Can I say 'thank you' to the Minister for responding to our report, which was only laid today, I believe? And I think it dropped into my inbox just 30 minutes ago.

As the Minister has said herself, the Nationality and Borders Bill is a large and complex Bill; it has implications for both health and social care and for children's rights and safeguarding, so we are pleased, therefore, to be able to co-ordinate our evidence with the Children, Young People and Education Committee in order to reduce duplication, and we're also grateful to stakeholders who were able to share their views with us within a very tight time frame as well.

Whilst the vast majority of the Bill deals mainly with immigration-related matters, which are outside of the scope of the Senedd's powers, clauses 48, 49 and 51 to 55, relating to the age assessment of asylum seekers, asylum-seeking children and young people, and clause 80, powers to make consequential provisions, impact the non-devolved areas of social care. So, we therefore concluded that the legislative consent of the Senedd is required.

No information on the financial costs of the proposed age assessment clauses is provided in the Bill, and we therefore recommended that, should the Bill be passed as drafted, the Welsh Government seeks assurances from the UK Government that any financial implications arising from the Bill will be met by the UK Government in line with the statement of funding policy.

Also, we would be grateful for assurances from the Minister that appropriate mental health and well-being support will be made available to people affected by the use of scientific methods of age assessment, should such methods be applied in Wales. And our views on the provisions relating to age assessments are set out in our report, but I would focus on two clauses in particular. Clause 49: at present, local authority social service departments undertake age assessments where there is any doubt over a person's age, and the decision about age is therefore taken at a devolved level. So, the Bill proposes to change this process to create a UK-wide system, as has been spoken about. Clause 49 provides that a local authority can refer an age-disputed person to the designated person to assess their age. Alternatively, the local authority can undertake an age assessments itself, or if the authority is satisfied that the person is the age they claim, they can inform the Secretary of State in writing of this, and this clause also enables the Secretary of State to make regulations that impose functions on devolved Welsh authorities.

So, we heard a number of concerns about the provision, including the lack of detail contained in the Bill around the function, power, constitution and independence of the designated person, and how the designated person will engage with Wales and take into account these areas devolved to the Welsh Government that are fundamental to any assessment process. So, having considered the evidence from stakeholders, we concluded that the Senedd should not consent to clause 49, and this is because there are already processes in place for age assessments in Wales that clause 49 could undermine.

And clause 51 gives the Secretary of State the power to make regulations about scientific methods for age assessment. It also allows a decision maker to make a negative interpretation of a person's credibility if they refuse to undergo a scientific age assessment without good reason. So, we concluded that the Senedd should not consent to clause 51 on the basis that stakeholders such as the Royal College of Nursing, the British Medical Association and the Royal College of Physicians have told us that there is no evidence that scientific methods of age assessment are effective. We also, therefore, are not persuaded that conducting potentially intrusive medical procedures on children and young people who could already have been traumatised by their life experiences can be justified. 

Health professionals also raised concerns about whether carrying out age assessments was consistent with their professional ethics of acting in the best interests of the person. So, we note that, in addition to putting such professionals in a perhaps difficult position, some stakeholders have suggested there could be implications for health professionals' own well-being, as well as affecting their ability to build trust with the young person needing support. It was also not clear to what extent the Welsh NHS bodies will be required to participate in the age assessment process, but this could place considerable demands on an already overstretched workforce.

In conclusion, Presiding Officer, we believe that the Senedd's consent is required for clauses 49, 51 to 55 and 80, because they make provisions within the Senedd's devolved competence. However, on the basis of the evidence we have received, the committee could not recommend that the Senedd should give its consent. Diolch, Llywydd.

The Chair of the Children, Young People, and Education Committee now. Jayne Bryant.

Diolch, Llywydd. As Members will know, the legislative consent memorandum scrutiny timetable gives committees very little time to gather evidence. On 18 January, we, the Children, Young People, and Education Committee, and the Health and Social Care Committee, wrote jointly to the Minister for Social Justice and to organisations in the fields of children's health and social care, children's rights and refugees and asylum-seeker children to request their views on a range of matters relevant to the LCM. We set a response deadline of just 10 days later to enable us to consider their views during our meeting last Thursday. I'd like to place on record my thanks to the 13 organisations that responded to our consultation within such a tight time frame, and to the Minister for the valuable additional information she provided to us.

We considered the clauses of the Nationality and Borders Bill that the Welsh Government believes require the consent of the Senedd. We focused our scrutiny on the implications of those clauses for children and young people in Wales. The Health and Social Care Committee, with which we co-ordinated evidence gathering, focused on the implications for the health and social care sectors, as we've already heard from the Chair of that committee. 

Before I summarise our findings, I will highlight that not all committee members agreed with all of the committee's conclusions and recommendations. Our final report provides further details. Our first conclusions relate to whether the Senedd's consent is required. Currently, Welsh local authorities carry out age assessments of age-disputed asylum seekers presenting in Wales. They do so within the framework set out in the Welsh Government's age assessment toolkit. Amongst other things, Part 4 of this Bill gives powers to the UK Secretary of State to carry out age assessments via the proposed national age assessment board. It introduces scientific methods in age assessments and establishes a tribunal to hear appeals related to age assessments. This impacts on the devolved field of social care. We therefore agree with the Welsh Government that clauses 48 to 49 and 51 to 55 in Part 4, alongside clause 80 in Part 7, require the legislative consent of the Senedd. However, the UK Government maintains that no provisions in the Nationality and Borders Bill require the Senedd's consent. We could not reconcile this view with the impact of the provisions in the Bill. We're therefore concerned that the UK Government is acting without due regard to section 107(6) of the Government of Wales Act 2006 by legislating with regard to devolved matters without the consent of the Senedd.

Our report also sets out our views about the proposed approaches to age assessment. The 13 organisations that responded to our consultation, including the Royal College of Psychiatrists, the Royal College of Physicians, BMA Cymru and Public Health Wales, told us more or less the same thing: there is insufficient evidence that scientific age assessment techniques are accurate enough to justify the distress they can cause. We also heard from the children’s commissioner, the Ethnic Minorities and Youth Support Team, local authority representatives and others that scientific age assessments as proposed in the Bill and explanatory material are inconsistent with the United Nations Convention on the Rights of the Child. Based on the consistency of the evidence we received, we recommend that the Senedd withholds legislative consent today.

The Nationality and Borders Bill is currently in the Report Stage in the House of Lords. There may be few further opportunities for the Welsh Government to seek any changes to the Bill to reflect the concerns of our committee and maybe the Senedd more widely. However, the Welsh Government is able to take action to try to influence any regulation that the UK Government makes using powers in this Bill.

We have recommended that the Welsh Government press the UK Government to ensure that scientific age assessment techniques are not introduced in Wales via regulations using powers set out in the Bill. As a committee, we have agreed that children's rights will be central to our work throughout the sixth Senedd. Not all the committee members were able to support all of the conclusions and recommendations in our report. However, we were able to coalesce around one important conclusion: whatever the approach taken to assess the age of asylum seekers or migrants, children's rights must be at the heart of the process. We urge both the UK Government and the Welsh Government to ensure that they are. Diolch.

The Chair of the Legislation, Justice and Constitution Committee is next—Huw Irranca-Davies.

Diolch, Llywydd. It's a pleasure to follow my fellow two committee Chairs. And can I just say, on the fifth occasion that I've risen this afternoon, my thanks to the committee clerking team and colleagues as well for their consideration of these matters? And can I just note in passing the spirited defence by the Counsel General earlier on the Professional Qualifications Bill, which was really interesting, and we'll return to this? He's always willing to be very engaged with the committee and I'm sure we will explore these matters further.

So, in my final contribution this afternoon, we turn to the Nationality and Borders Bill LCM. If people aren't tired of my voice by this stage, heaven help us. We made one recommendation in our consideration and report on this. We noted the clauses that the Minister considers require the consent of the Senedd and we also noted that UK Government does not believe that the Senedd's consent is required. Our report agreed with the Minister that the consent of the Senedd is indeed required for these clauses and acknowledged also that she does not recommend that the Senedd gives its consent to these clauses being included in the Bill.

Our report expressed concerns, for example, that regulations under the Bill can impose functions on devolved authorities in relation to social care and that neither the Welsh Ministers nor the Senedd will be required to provide consent in such circumstances. Fellow Chairs and their committees have picked up on these as well. We are equally concerned at the powers available to the Secretary of State to make regulations that could amend primary legislation by the Senedd, without any requirement for its consent. As far as we are aware, there are no limitations on these powers—it's again a theme I'm returning to—such that they could be also used to amend the Government of Wales Act 2006 by means of regulations. As I've indicated previously in my contributions this afternoon in respect of other LCMs, we just believe that such an approach is constitutionally unacceptable.

But what makes the situation more complicated is—as I alluded to at the start of this contribution—the fact that the UK Government does not consider that the provisions of the Bill fall within the competence of this Senedd. Now, so far as the UK Government is concerned, this debate is unnecessary and Senedd consent is not required, even though, in our view and that of the Welsh Government and of other committees, the Bill impacts the devolved area of social care. So, in light of these observations, our single recommendation, in three parts, asked the Minister to update the committee on various matters before today's debate. And we're very grateful for the detailed response we have received from the Minister.

The first part of our recommendation asked for an update on her discussions with the UK Government as to whether the provisions of the Bill fall within the legislative competence of the Senedd. The second part asked the Minister to explain whether, as part of her discussions, she has sought amendments to the Bill relevant to our concerns about the regulation-making powers being given to the Secretary of State to act in devolved areas, and which potentially permit the amendment of the 2006 Act.

In her response, and at the risk of repeating some of what the Minister indicated earlier, the Minister has told us how she'd repeatedly raised concerns with the UK Government, including jointly with the Scottish Government, but had not received any satisfactory assurances in response. And she also explained to us how the Home Office did not engage with the Welsh Government over concerns regarding age assessment because of their stance of it being a reserved matter, meaning there was no opportunity available for them to pursue amendments, including in relation to our concerns about the powers being given to the Secretary of State.

She also noted that, as recently as 8 February, the Home Office wrote to say that the UK Government position remained unchanged, such that all the Bill’s clauses were within reserved competence and no legislative consent motion is required for the clauses related to age assessment. So, we do share the Minister’s clear disappointment and frustration at the lack of constructive engagement with the UK Government on these issues, not least because further promised correspondence explaining the UK Government’s stance in more detail has not been received. We would be very grateful to receive copies of any further correspondence on this issue, given our interest—ongoing interest—in inter-governmental relations.   

And that brings to me the third part of our recommendation, which asked whether the Minister will be engaging the dispute resolution procedures in line with the final package of reforms announced in the recently published review of inter-governmental relations. In response, the Minister said she would indeed give further thought to managing this through the new machinery, and, again, we as a committee look forward to being kept in touch with developments on this very important matter. Diolch yn fawr iawn.

Yesterday, I was with members of Swansea City of Sanctuary and the people who they are supporting who are seeking asylum. It was at a wonderful event at the Hoogah restaurant, who have recently pledged to support Swansea City of Sanctuary in their aim of promoting a culture of welcome for asylum seekers and refugees, and to be a safe space for those seeking a new home in the city.

The people Swansea City of Sanctuary are supporting are just that: people. People who are fleeing persecution, danger, war, hunger, despair. People who want their children to live in peace, to have every opportunity to be able to take their place in the world without fear. People. The sentiments expressed towards the people I met yesterday, those of compassion and understanding, couldn't be more different than those promoted by this Bill. Yesterday, there was fear, despair, anger that the UK Government, through this Bill, would fundamentally and grotesquely undermine Wales's history of welcome and our aspiration to be a nation of sanctuary. And the way it disregards children's rights, again so central to our national vision here in Wales, is nothing less than stomach-churning.

Tory UK Government Ministers have asserted that the measures within the Bill are aimed at cutting costs to the public purse, breaking people-smuggling gangs, and protecting people seeking asylum. Experts in the field, however, profoundly disagree. Amnesty is one of the many organisations that has argued that the Nationality and Borders Bill will worsen the UK's asylum system. The model of asylum being proposed is, according to the United Nations, one which

'would penalise most refugees seeking asylum' and therefore

'undermines established international refugee protection rules and practices.'

The Good Law Project has gone as far as saying that the Bill will embed racism in UK legislation by means of the draconian clause 9, which would enable a Secretary of State to unilaterally strip British nationals of their citizenship without notice.

And even if we look at this from a financial point of view, the UK Government's argument that the changes it is proposing are based on saving money spent on the perceived high cost of supporting refugees and asylum seekers makes no sense. A report published yesterday by the Together With Refugees coalition found that the Bill would double these costs to £2.7 billion. We must do everything we can to stop this inhumane Bill, everything we can to protect those who would be welcomed and treasured as new citizens of Wales from these racist, dangerous and dehumanising provisions within the Bill.

As a member of the Children, Young People, and Education Committee, I read the responses of the organisations who operate in Wales in the field of children's health and social care, children's rights and those working with refugees and asylum seekers, to this legislative consent memorandum before us today. The concerns about the impact of this Bill on Wales as regards the clauses relating to age assessment of children, contained in Part 4 of the Bill, were overwhelming. The consensus that the Bill impacts on the devolved areas of social care and confers powers on the Secretary of State to make regulations on devolved Welsh authorities was crystal clear.

The adjectives used to describe the proposals, which involved intrusive, medical and so-called scientific age-assessment methods in relation to unaccompanied asylum seekers who do not have documentation to prove their age, included the words 'insufficient', 'inappropriate' and 'traumatic'. And the children's commissioner told us that, as the Bill stands, it'll be detrimental to children's fundamental rights, set out within the UNCRC.

We wholeheartedly endorse the Minister's analysis of these clauses, and the Government's view that consent should be withheld. We in Plaid Cymru fundamentally oppose any attempt to undermine the right and power of this Senedd to legislate in devolved policy areas, particularly in the face of this Westminster Government's unprecedented desire to undermine our devolved authority, our national identity and our democratic right to decide what benefits our own communities. And a Bill such as this foregrounds our reasons for opposition.

The philosopher Hannah Arendt said that the loss of citizenship is the loss, in her famous phrase, of 'the right to have rights'. She was reflecting on the totalitarianism that forced her to flee from her homeland, Germany, stripped of her citizenship, on to France, to Portugal, eventually settling in the United States. As she and millions of other people found in 1940s Europe, the world, in her words,

'found nothing sacred in the abstract nakedness of being human.'

What Arendt realised was that citizenship is necessary for human rights to be enacted. To deny a person's citizenship, a place to belong, is to deny them their fundamental rights.

The nation we are building in Wales should give rights to its citizens. What this UK Nationality and Borders Bill does is take rights away. The values of contemporary Welsh nationalism as manifested in the politics of Plaid Cymru are fundamentally opposed to the xenophobic British nationalism embodied in this Bill. We must send the strongest possible message today from this place, from the nation of sanctuary we aspire to be, that we will not stand by, that we will not consent.

There are many things that we could all say, those of us who oppose this consent today, about this Bill, and many of them have been said. But I'm going to focus here particularly and speak to the issue at hand, and the issue at hand is about medical examinations and age assessments of unaccompanied minors seeking refugee asylum—children. And I think there's one message that has to be absolutely clear here today: we are talking about children. We are talking about traumatised children, not just children who've arrived and they're going to go nicely into some hideous assessment that all the medical profession who've responded to requests to respond from the Health and Social Care Committee won't validate. They said that there is no evidence to support that these medical assessments are accurate. So, we need to start there. The medical profession themselves, who have responded, say that these assessments don't have any merit.

Secondly, and we've heard it said, and more importantly, these are children. They are traumatised children and we're asked to give permission to a process to further traumatise them, a process that they won't be able to object to, because they won't have a voice in that objection. And whatever will be done to them will be pretty traumatic in itself, and it's bound to cause post-traumatic stress, and that's already alluded to here. Not to mention, of course, their mental fragility when they're actually entering the process and it being increased as a consequence of having gone through that process. So, none of it is good news.

Should they fail, of course, you will then be putting children into adult facilities, and again with no protection whatsoever, no right to appeal—all taken out of their hands. As you all know, I'm a founding member of the all-party group on trafficking and slavery. I don't think you'd have to use a huge amount of imagination to understand the implications of putting unaccompanied minors in facilities whereby they would become potential victims of trafficking and slavery. There are many, many accounts of that already happening in those facilities as we speak. And, of course, they will be separated in some cases from their families, so they equally won't be able to raise their voices on behalf of the children because somehow this Government is quite happy to throw away the rights of those children, to ignore the basic fundamental humanity that you would expect to exist when you're talking about traumatised children.

So, I'm really pleased that it seems that all the people who took evidence are saying, 'No, we will not give consent. We will not give consent to brutalise and traumatise the children who find themselves in this UK.'

The Minister for Social Justice to reply to the debate. Jane Hutt.

Diolch yn fawr, Llywydd. Can I thank Members for their powerful contributions to this very important debate this afternoon? I'll start by thanking the Chairs of the committees—the Chairs of the Health and Social Care Committee and the Children, Young People, and Education Committee—for the thorough way that they have examined the evidence and have considered my views and perspective, and also consulted widely and thoroughly to come to the views that they have, and, of course, the majority support my view that we should withhold consent to these deeply damaging clauses in this Bill.

I do thank the Children, Young People, and Education Committee and the Chair, Jayne Bryant, for again being able to share with us today some of the views that have come back as a result of that consultation. I indeed myself met with the Welsh Refugee Coalition. It's interesting as well to hear those views that have been expressed and come to us as Members on nation of sanctuary. Sioned Williams met with those people of Swansea who were expressing their concern. That concern has been expressed across Wales, and, as Joyce Watson has said, this is so serious in terms of the children who have been so traumatised to come to seek that sanctuary with us.

I'm very proud that we're very clear in our programme for government—and I quote from our programme for government—that we are committed to

'Continue to support and uphold the rights of unaccompanied asylum-seeking children'. 

We continue to uphold those rights and entitlements, and that's why we must stand together today and be very clear in our response to the UK Government, because we are proud to take a 'child first, migrant second' approach, which upholds the best interests, rights and entitlements to providing care and support to children in Wales, and any—any—policy proposal that appears to diminish the statutory position—it's a statutory position that we hold in Wales—is not one that we should support.

I think it is important to recognise, as I've said, that in Wales we treat all unaccompanied asylum-seeker children as looked-after children. And we must repeat that, again: this is what we've agreed to in this Senedd in line with Part 6 of the Social Services and Well-being (Wales) Act 2014, because the Act does provide for a range of assessment functions, and we treat the assessment of age as part of the 'what matters' assessment functions provided in the Act, and all social services functions are fully devolved to the Welsh Government. All social services functions. That's why this is so critical.

And just also, finally on this point, to reflect with Members that we have an extant policy on the use of medical reports in age assessments. In summary, this is a toolkit. It says, about scientific methods of age assessment:

'This Toolkit does not recommend or support the use of medical examinations as determinants of age. The science underpinning the determining of age is inconclusive, unclear and in any event, subjecting young people to invasive medical examinations is judged to be morally wrong.'

So, as we conclude this debate today, Llywydd, I have to say again and repeat that this UK Government Bill clearly makes provision within the devolved competence of the Senedd. I thank the Chair of the Legislation, Justice and Constitution Committee for his contribution today, because I will be following up the points I made in his letter. I think this is a critical issue in terms of respecting our devolved competence and what we have agreed through legislation here in Wales, upholding the rights of a child in line with the UN Convention on the Rights of the Child. So, this Government Bill clearly does make provision within the devolved competence. We are responsible for social services, and it is, therefore, very clear today that we, as a Senedd, must withhold consent to these provisions being included in the Bill.

I would finally say, summing up again what Jayne Bryant and other Members have said, that children's rights must be at the heart of all we do, at the heart of our considerations this afternoon, for all Members. Diolch yn fawr.

The proposal is to agree the motion? Does any Member object? [Objection.] Yes, there is objection, therefore we'll defer voting under this item.

Voting deferred until voting time.