X-raying migrant children to determine age and proposals to monitor all communications, as well as the proposed secret justice measures, further target ‘suspect communities’.

The pilot x-ray scheme to assess the age of young asylum seekers whose claims to be children are disbelieved, which started at the end of March with virtually no notice, has caused outrage among children’s and migrant groups and grave concern to Children’s Commissioners. The UK Border Agency says the trial is voluntary. It will take dental x-rays of young people already assessed as adults to test the reliability of the x-rays. But the Children’s Commissioners pointed out in a joint statement that exposing young people to medical radiation is dangerous, and those invited to take part will feel pressure to consent because of their status as asylum seekers.[1] X-rays, even dental x-rays, are believed to increase significantly the risks of certain cancers in children. X-rays were commonly used to determine ‘bone age’ of children seeking to join their parents from the Indian sub-continent in the 1970s. Campaigning by migrant groups led to a government inquiry chaired by Sir Henry Yellowlees, whose report confirmed that as well as being dangerous, they were a very unreliable way of assessing the age of teenagers, with a margin of error of around two years either way. In 1982, home secretary William Whitelaw stopped the practice, announcing that the continued use of x-rays in the immigration context could no longer be justified.[2]

Thirty years later, the health risks have not changed (the Royal College of Radiologists say they are inherently intrusive and carry a degree of risk) and there is no evidence to suggest that x-rays have become any more reliable indicators of age. What’s more, statutory duties now require immigration officers to safeguard the welfare of migrant children in taking decisions about them. The government is supposed to be more, not less compliant with human rights requirements, particularly concerning children. When in 2007 the Home Office proposed reintroducing ‘bone-age’ x-rays for young people whose age was disputed, the Children’s Commissioner obtained a legal opinion which said that the tests would be unlawful, and the proposals were withdrawn. So what is the purpose of these tests, given their known risks and unreliability? Their re-introduction can have no beneficial purpose. In its response to the measure, the Immigration Law Practitioners Association accuses UKBA of pursuing the ‘chimera of certainty’ despite official acknowledgement that ‘you cannot date stamp a child’, and says the policy of giving the benefit of the doubt to age-disputed children is frequently flouted.[3] Could the x-rays be a way of deterring young asylum seekers from coming to the UK or from claiming asylum?

Racism and Big Brother surveillance

The proposal to monitor all electronic communications – phone calls, emails, text messages and internet social networking – in real time, without a warrant or other judicial supervision, represents another intrusive invasion of privacy. The government justifies the proposal, first introduced by the Labour government in 2009 but abandoned in the face of strong opposition by the Tories and Lib Dems, by ‘the fight against serious crime and terrorism’. This time, the outrage at the proposal reached the libertarian Right as well as the civil liberties lobby. The director of policy at Liberty, Isabella Sankey, pointed out the potential for race discrimination in the way the vast cache of information about our communications is mined.[4] Racism is often built in to the algorithms which search vast databases, via assumptions about what certain types of behaviour reveal. We have seen such racist assumptions in operation in the hugely inflated stop and search figures for young black men, and more recently, in the ‘terrorist profiling’ which subjects whole Muslim communities to intensified policing. With such vast quantities of material, it is almost inevitable that ethnic and religious ‘filters’ will be used to narrow searches. Cyberspace offers unlimited opportunities for the criminalisation of minorities.

Extension of secret justice

When you put these sorts of powers together with a justice system which denies those accused of support for terrorism the right to know the detail of what is alleged against them, depriving them of the opportunity of clearing themselves, what you get looks a lot like a police state. Of course such a system already operates in relation to foreign terror suspects whom the home secretary seeks to deport on the basis of assessments put together by the security services. The proposal to extend this system of secret justice to all civil courts, and to inquests would, if it went through, deprive those falsely accused, perhaps wrongly convicted or deported or ‘rendered’, of any effective remedy for their treatment in the civil courts, because they would never have access to the material demonstrating exactly what had happened and why. They would also prevent the families of those killed, as a result of state action, from being able to find out what led to their death.[5]

The parliamentary joint human rights committee has said the proposals for extension of secret justice are not justified by evidence, unnecessary and disproportionate. It expressed concern that the government relied on ‘spurious assertions of the catastrophic consequences of information being wrongly disclosed’, while refusing to acknowledge how radical a departure from fundamental principles of open justice the proposals represented. As the special advocates pointed out, ‘Closed proceedings represent the most extreme incursion into [the open justice] principle because the opacity in relation to the proceedings is total … a party does not know the case against them, or a significant part of it, and so cannot answer it, and that is contrary to the principle of open justice.’[6]

Virtually all the victims of this opacity are Muslims, and on current projections it is Muslims whose cases will most frequently be subjected to secret hearings if the regime is extended to civil cases where national security is an issue. If, in line with the government’s intentions in the Justice and Security green paper, secret justice is extended to cover other ‘public interest’ situations such as protecting informants and operations against ‘serious crime’, Black and Minority Ethnic communities will also be disproportionately affected.

Inverse accountability

The x-raying of children, scandalously, needs no legislation and has already begun. But the proposals to monitor citizens’ communications and internet use, and to extend secret justice procedures, do need legislation. The very breadth of the snooping proposals is likely to prove their undoing, just as it was the undoing of Labour’s ID card legislation, repealed by the coalition as part of its ‘civil liberties’ programme (the requirement for migrants to have biometric residence permits was however extended to cover refugees and other permanent settlers). The idea that some official (or these days, more likely a G4S employee) will be able at all times to check who any member of the public is in touch with, what internet sites he or she is visiting, and to collate that information in individual files on all of us, hits the same nerve that the ID laws did; despite the enormous level of surveillance to which the internet already subjects us, this is a step too far. The message it sends out is that we all must account to the government for whom we contact and what we do. At the same time, the joint human rights committee’s report on the secret justice proposals shows that the demand for citizens’ transparency comes just as the government seeks to draw the veil of secrecy more tightly around its own operations, prompting questions about who should be accountable to whom.