Legal Aid: Social Welfare and Family Law

Lord Bach Excerpts

Monday 18th November 2024 Lords Chamber

Asked by

[Lord Bach]

To ask His Majesty’s Government what steps they are taking to increase the amount of legal aid available for early advice in the areas of (1) social welfare, and (2) family, law.

[Lord Bach (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and I refer the House to my declared interest.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, legal aid is a vital part of the justice system. It underpins our plans to build a justice system that works for victims, supports access to justice and ultimately upholds the rule of law. The previous Government left the legal system facing significant challenges. This Government are committed to ensuring an effective, efficient and sustainable legal aid system, and we have already begun to stabilise the sector and explore ways in which we can rebuild our justice system.

[Lord Bach (Lab)]

My Lords, I thank my noble friend the Minister for his reply. I know that he, like me, believes that the virtual decimation of early legal advice as a direct consequence of the LASPO Act remains an affront to access to justice. Is he aware that every report published on this issue strongly agrees that early legal advice saves the state money by avoiding court and time spent? Of course, we know how sparse resources are, but does he not agree that common sense dictates that restoring early legal advice urgently by an increase in legal aid is a necessary, humane and financially sensible thing to do?

[Lord Ponsonby of Shulbrede (Lab)]

I thank my noble friend for that question, and I agree with the sentiment behind it. The Government are committed to ensuring there is an effective, efficient and sustainable legal aid system and are working toward that end. Our response to the Crime Lower consultation was published on 14 November and confirmed that we will be uplifting the lowest police station fees, introducing a new youth court fee scheme and paying for travel time in certain circumstances. Together, these changes will provide a £24 million boost for criminal aid providers.

Victims and Prisoners Bill

Lord Bach Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

[Lord Carter of Haslemere (CB)]

It was Winston Churchill; I am corrected—both great names.

If we have progressed at all from the way prisoners were treated in the past, we should be enabling whole-life prisoners to find some meaning and purpose in a life that is certain to end in prison. This includes providing opportunities for them to have some social interaction and build relationships, even though they can never expect to be released—in fact, especially because they can never expect to be released. This reflects the long-standing legal position. It is trite law now that prisoners enjoy basic human rights, such as respect for their private and family life, their religion, freedom of expression and access to a lawyer etc. Under Article 12, prisoners have the right to marry and form a civil partnership.

My noble friend Lord Pannick has already referred to the case of Frasik. I will quote again that passage from the court’s judgement, because it is so powerful. Imprisonment, the court said, does not mean that those detained

“cannot, or can only very exceptionally, exercise their right to marry”.

Yet is that not exactly what Clauses 55 and 56 say? The ECHR memorandum conveniently sidesteps that by saying that marriage by whole-lifers

“undermines public confidence in the Criminal Justice System”.

We have just heard from my noble friend Lord Pannick on that one; it is, in effect, code for “offends public opinion”. But the Frasik judgment, as my noble friend said, says that the Bill cannot do that—it cannot automatically prevent prisoners forming marital relationships.

It is not all about the law either. Compelling legal points, such as those we have mentioned, often arise from a rotten policy, which is what we have here. The Government’s justification seems to be the case of Levi Bellfield. Awful as that is as an example of the right to marry being abused, it is one case of about 70 whole-lifers in the system. They have all committed terrible crimes, but their whole-life tariffs are the punishment for that. Even Ministers have recognised that we send people to prison as punishment, not for punishment. Automatically denying prisoners, even whole-life prisoners, the right to marry or enter a civil partnership amounts to nothing more than the state imposing additional, entirely gratuitous punishment on this cohort of prisoners for no reason other than to show the public that it is tough on crime.

The noble Lord, Lord Ponsonby, expressing his personal views at Second Reading, put it well when he described it as a “petty measure”. The noble Lord, Lord German, who unfortunately cannot be with us tonight, rightly called it cruel. It also punishes prisoners’ partners, who are entirely innocent in all this. It punishes them emotionally, of course, but it may also affect their entitlement to, for example, a widow’s pension on the death of a whole-life prisoner or a spouse’s exemption from inheritance tax. Has any consideration been given to the effects of this policy on partners? I would be most grateful to know the answer to that.

There is a simple solution to the Government’s wholly justified concern about the Levi Bellfield case, which would deal with all the legal and policy objections that have been mentioned. The existing law entitles a prison governor to refuse an application to marry or form a civil partnership only if it would create a security risk to the prison. Why not ditch Clauses 55 and 56 and legislate to widen the basis for refusing such applications to include cases where there are reasonable grounds for believing that the application is not made in good faith but from some improper motive? This could easily be made legally watertight to minimise the possibility of unfounded legal challenges.

In conclusion, and at this late hour, in the dying breaths of the Bill, I urge the Minister to ignore the word “reject”, which is in his briefing notes in capital letters, underlined, in bold type. Why not surprise everybody, not least his officials, by agreeing now to remove Clauses 55 and 56 and adopt the more proportionate, but no less effective, solution that I have just proposed?

[Lord Bach (Lab)]

My Lords, I do not intend to say much, for the very good reason that I do not have to. The arguments put forward by the noble Lord, Lord Carter of Haslemere, and particularly by the noble Lord, Lord Pannick, are overwhelming. I do not want to put the Minister, for whom I have huge respect, on the spot, but I have a suspicion that he has more than a bit of sympathy for the arguments that have been put.

The only point I want to make is this: commentators have said that, when the Minister and the Secretary of State came to their positions, there was likely to be a different attitude towards issues of this kind than there was under some predecessors. The evidence is that that is true, and we have seen examples tonight and this afternoon of the Minister no doubt using his influence in persuading the Secretary of State to have sensible views and change the Bill where it needed to be changed.

This is exactly a case of a clause that is both against the European legislation we have adopted and against all common sense; it should be removed. It would be a real shame if this Bill, which contains some really excellent stuff on both prisoners and victims, has at the tail end of it, as the noble Lord said, this rather ridiculous and very anti-British way of dealing with this issue—so I do ask the Minister to please think again.

[Lord Meston (CB)]

My Lords, I raised questions about Clause 55 and how it might operate in practice at Second Reading that were really not answered. I make no criticism; the Minister had a lot to deal with. I regret not being able to participate in Committee. But I have devoted quite a lot of my professional life to the formation and validity of marriage, and therefore in the context of this Bill I would like to point out that the question of whether and to what extent certain marriages should be restricted or governed by statute faces two underlying problems.

First, it is generally not necessary for anybody otherwise qualified to marry to have any good or creditable reason to do so. I mention that in the context of my noble friend Lord Carter’s suggestion that possibly in these circumstances prison governors should question the motives and have the ability to do so, and that that may be the way through this problem. I have to say that research suggests that the decision to marry is rarely reached on rational grounds—and indeed the same research revealed that 3% of those surveyed did not know why they were getting married at all.

Secondly, and altogether more seriously, there is the fundamental right to marry, stated in Article 12 of the ECHR. That is a right that long predated that convention in this country. However, it was Article 12 that underpinned the Marriage Act 1983, which allowed for marriages of those detained in prison, for essentially pragmatic reasons. It was legislation that did not attract criticism—indeed, only newspaper headlines such as “Get Me to the Jail on Time”. Article 12 also led to the extension of the Marriage (Prohibited Degrees of Relationship) Act 1986, which I had a part in, believe it or not, and which set mankind free to marry their mothers-in-law.

The restrictions proposed in this Bill on specific marriages were understandably prompted by the attention-seeking attempts by particular convicted prisoners to marry—something that many people, no doubt including their victims and their victims’ families, will have found grossly offensive. Nevertheless, the underlying points emphasised by all noble Lords who have spoken so far simply cannot be ignored.

If Article 12 rights are to be curtailed and qualified simply by reference to the nature of the sentence being served or by vague concepts of public interest, the Government really should spell out more clearly the justification for the proposed restrictions and should clearly indicate the circumstances likely to satisfy the Secretary of State that they are “exceptional circumstances”. At Second Reading, I suggested that they might include terminal illness, but I can see that it ought probably to go wider than that. Otherwise, we are simply going to be storing up problems and litigation for the future.

Victims and Prisoners Bill

Lord Bach Excerpts

Report stage
Tuesday 23rd April 2024 Lords Chamber

Moved by

[Lord Bach]

35: Clause 6, page 5, line 25, at end insert—
“(4A) Regulations under subsection (2) must require information about compliance with the victims’ code to be linked to a consistent victim identifier that is used across the agencies of the criminal justice system.”Member's explanatory statement
This amendment would allow for the creation of a unique identifier for victims in the criminal justice system which would be linked to information on compliance to the victims’ code.

[Lord Bach (Lab)]

My Lords, Amendment 35 would require information on compliance with the victims’ code to be linked to a consistent victim identifier. I thank the noble Baroness, Lady Brinton, and my noble friend Lord Ponsonby for supporting this amendment. Members may recall the helpful discussion on this issue in Committee. I am grateful to colleagues and to the Minister for their engagement on this topic.

I have been moved to reintroduce this amendment because I remain convinced that, without this change, the Government’s ambition to harness the Bill to put victims at the heart of the justice system and increase accountability may well fail; it is that serious. I thank Natalie Byrom, whose article in the Financial Times in January 2024 kicked off this important debate.

I begin by being extremely clear about what is being proposed. Put simply, this amendment contemplates the creation of a unique identifier allocated to victims at the point at which they first report a crime to the police, to which all subsequent crime numbers and case updates can be linked. Compliance with the measures in the victims’ code must also be recorded against this identifier. Information about the victim’s demographic and protected characteristics can also be added to the victim identifier, provided that the victim consents to provide this. In the absence of the introduction of this identifier, it will continue to be impossible to routinely link information on victims’ code compliance to the demographic characteristics of victims or criminal justice outcomes. This makes it impossible to tell what measures are working and for whom. Information will remain partial, piecemeal and costly to collect.

--- Later in debate ---

On the tragic case cited by the noble Lord, Lord Bach, I say that there is considerable work on information sharing and what we can and hope to do better, which we will discuss in future groups not concerned with victim identifiers. While future approaches to understanding and improving the victim experience may include a new system of unique victim identifiers, I do not agree that primary legislation would be the appropriate way to establish it at this point. I therefore respectfully ask that the noble Lord withdraws this amendment.

[Lord Bach (Lab)]

My Lords, I thank the Minister very much for his response. I also thank noble Lords around the House who have been sympathetic to the amendment that I moved.

Because it is such common sense, this will happen in time. The sooner it happens, the better for victims and the justice system. I am realistic, so I understand that there are complications, as my noble friend Lord Ponsonby said, that will have to be worked through before we get to the stage—which I hope will happen sooner rather than later—where something like this comes into being.

For the moment, I am delighted to hear that the Government understand the problem and are working hard to solve it. There is a real issue as to whether the BOLD development is the answer to the issue that I have tried to raise today. I ask the Government to look very carefully at whether that is a better alternative to the proposal I made today. It seems to me that it would not be sensible to divide the House on the issue, however much I might be tempted to do so, because there is more work to be done. However, I go away with the feeling that the Government are sympathetic to the idea that this whole system should be very much simplified. On that basis, I beg leave to withdraw my amendment.

Amendment 35 withdrawn.

Victims and Prisoners Bill

Lord Bach Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord Garnier (Con)]

My Lords, I am grateful to my former neighbour, the noble Lord, Lord Bach, for permitting me to jump the queue. I want to make some equally brief points to the points made by the noble and learned Lord just now. I will start with Amendment 171. This makes as much sense as requiring the Lord Chief Justice, as head of the judiciary, not to be able to sit in individual cases, either at first instance or at appeal; to deny the Master of the Rolls, who I believe is the head of the civil appellate system, the ability to sit on cases; to deny the chancellor of the Chancery Division the ability to sit on cases; and to deny the president of the Family Division the ability to sit on cases.

These are judicial functions which may have an administrative function as well. If we were really to go down a road whereby the shadow of Dominic Raab is to spring forward into the enlightened era of Alex Chalk, I think we would be making a mistake. That is enough about that.

None of the judicial officers to which I have just referred is removable on the say-so of the Secretary of State. Equally, the constitution should not suffer the embarrassment of having the head of the Parole Board, who is a judicial officer, being removed on the say-so of the Secretary of State. I have a suspicion that if Alex Chalk had written this Bill it would not have contained these clauses.

Amendment 169

“seeks to ensure that the decision as to the composition of the Board is an independent judicial decision made by the Parole Board”.

Again, to go back to my references to the senior judiciary, it is the Lord Chief Justice who deploys the judges within the court system, it is the Master of the Rolls who decides which judges in the appellate court should sit on which particular case, it is the Chancellor of the Chancery Division who decides which of the Chancery Division judges should do what, and it is the President of the Family Division who does the same in relation to Family Division cases. It strikes me as being a perfectly normal and respectable constitutional arrangement. It would be a pity for Mr Raab, who has now moved on, to be able to continue to control the system. He is gone; these should go as well.

[Lord Bach (Lab)]

My Lords, it is a pleasure to support all three of these amendments. They were tabled by the penultimate Lord Chief Justice, and are supported by the most recent Lord Chief Justice and a distinguished recent Solicitor-General, who spoke just now. I am afraid I can only claim to have been shadow Attorney-General in what was, to use a cliché, a bad year, for a shortish time to make up the numbers. I cannot add to the arguments that have been so persuasively put.

It is wonderful to see the noble Earl the Minister in his place; I did not expect him to take this particular group. I invite him to talk to his noble friend from the Ministry of Justice, who I suspect—I hope the noble Earl does as well—privately has a lot of sympathy for these amendments, because they are commonsensical. I ask the noble Earl to ask the noble and learned Lord, Lord Bellamy, to speak to the Justice Secretary patiently and persuasively about these matters.

I start from the position that the Executive should interfere in individual sentencing as little as possible—preferably not at all. Under our constitutional arrangements, it is not the Executive’s responsibility, nor part of their functions. That is why the independence of the Parole Board is so important, as the noble and learned Lord just said. It is hard not to believe, I am afraid, that these proposals would actually have the effect of reducing that independence.

I have down on the amendment paper that I will oppose Clauses 53 and 54 standing part of the Bill. I will not press that at all tonight, but in this short speech I will talk about why I gave that notice; it may save a bit of time later on. It is really because I have two questions for the noble Earl. I asked the noble and learned Lord, Lord Bellamy, at Second Reading, but quite understandably he was so overwhelmed with the matters that he had to reply to in the minutes that he was allowed that he was unable to answer them at the time. I absolutely appreciate that.

The first question is to ask why, under the Bill, the Justice Secretary will send some cases where he has found the Parole Board has got it wrong to whichever body it is that he eventually sends them to, but not others. It was argued in this House in Committee, I think last week or the week before, that that should be not the Upper Tribunal but another body altogether. If he sends some cases where he thinks the Parole Board has got it wrong but not others, that will not make any sense at all. Surely he must send all of the case that he finds to be wrong to this judicial body or none of them. If he sends some then surely the position is not satisfactory. There may one day be a Lord Chancellor—certainly not the current one—who is less generous and would not send any that he felt was wrong to a court. If that position may develop, why on earth is this part of the Bill being proposed?

My second question is this, and the Committee deserves an answer to it: will the Justice Secretary himself make these decisions, or will they be passed down to junior Ministers or to senior civil servants? I have no objection at all to senior civil servants taking important decisions but it is not appropriate that they—or, in fact, junior Ministers in the department—should take these decisions. What is the answer: will they or will they not? If they will, the problems associated with the Executive interfering in sentencing become much more acute. Does the Minister agree? I would be grateful for an answer to both those questions.

[Lord Pannick (CB)]

My Lords, I agree with all three of the amendments in this group, and I do so for the reasons that have been powerfully explained by the other speakers. It seems that the issue here is very simple indeed. These clauses are designed to reduce the independence and authority of the Parole Board. New sub-paragraph (2C), in Clause 54(5), refers to the necessity of maintaining public confidence in the Parole Board. In my view, public confidence in the criminal justice system depends vitally on the independence and the authority of the Parole Board. I much regret that the Government should apparently think otherwise.

Victims and Prisoners Bill

Lord Bach Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Lord Bach (Lab)]

My Lords, it is a particular pleasure for me to follow the noble Baroness, Lady Prashar, whom I admire hugely and with whose speech I agree 100%. She has seen everything in her very distinguished career, and the Government should take considerable notice of what she had to say about Part 4 of the Bill.

We can see from reading the debates in the other place that this is not particularly a politically controversial Bill, unlike many we have seen recently and, alas, may see again before very long. However, there are important arguments, very well put by the many experts in this House, that, as far as victims are concerned, while improving the position—the Bill does that—this may yet turn out to be a wasted opportunity.

I speak as the only Member of either House—so far, and perhaps not for long—who has served as an elected police and crime commissioner. I have therefore consulted opinion, to some extent at least, regarding the role of the police and crime commissioners, their offices and their responsibilities under the Bill. They are clearly being asked to do more than before. If the House will indulge me, I will briefly explain how they feel about the Bill at this stage. I tend to share their view.

Their general view is to welcome the proposals as they affect police and crime commissioners, but of course there is concern about effective implementation—the real question being: are there the facilities of leverage and resourcing that are needed for them to fulfil their roles? In particular, there is a view that the local criminal justice boards should be on a statutory footing. These are local fora where police and crime commissioners will seek assurances from criminal justice partners around code compliance—one of the responsibilities they are given—and shared accountability. The Home Office review on police and crime commissioners recommended that these local criminal justice boards should be statutory. That is not in the Bill. Have the Government changed their mind about that, or might we see this in the other criminal justice legislation that we will hear of in the months ahead?

Secondly, police and crime commissioners would generally welcome further levers to encourage code compliance, which is a duty imposed on them and others. Will they be given the power to demand and set expectations locally for other agencies? There is a welcome focus on good data and robust metrics, including feedback from victims, of course, and there are two new senior data analysts for each office of a police and crime commissioner. They are welcome too, but why the silence about long-term funding for those rather important posts?

Equally, as to the resourcing of the vital and welcome duty to collaborate, there are many similar duties in recent legislation that have gone through this House. In practice—that is the important point—these place a significant resourcing challenge to the parties involved, which, it is felt, are not always appreciated by the Government. Will the Minister please look at that issue again?

Finally, and more generally, where gaps in local services are found, there is no provision in the Bill for funding services. Will the Government step up to meet unmet victims’ needs?

Those, in short, are the views of police and crime commissioners. I cannot speak for them all, but I hope the Minister will take note of those views.

As for the code itself, I commend the noble Baroness, Lady Coussins, on what she had to say about the need to strengthen the code and tighten it up in regard to victims who have English as a second language. It is an important point, and I hope we do that at a later stage of the Bill.

The Minister will not be surprised to hear me ask about legal aid for Part 2 of the Bill. I would like more clarity as to where legal aid will come in and whether it will be means tested. If victims of an appalling incident want—as they may well—to instruct their own lawyers in the circumstances, what will the legal aid position be? Is that yet clear?

Finally, I want to express the widely shared view concerning the Bill’s proposals for the future of the Parole Board. Of course, the change of heart in giving the Lord Chancellor the option to direct the Parole Board and then to refer the case to the Upper Tribunal is to be welcomed, but some questions arise and I would like to put them quickly.

First, as the noble and learned Lord, Lord Thomas, asked, why was the Upper Tribunal chosen? Secondly, on the point that the Lord Chancellor will send some cases where he thinks the Parole Board has got it wrong up to the Upper Tribunal, but not others, why must he not send them all up to whatever the judicial body is? How will he pick and choose? A less generous Lord Chancellor than we have at the moment may well take a completely different view and not send anything up to the Upper Tribunal, which will of course make the effect of this alteration negligible.

Thirdly—I have some experience of how busy Cabinet Ministers are, from having been a junior Minister in the Ministry of Justice, albeit a very long time ago—will the Lord Chancellor himself decide these issues by reading the papers? Will it be a junior Minister or a senior civil servant, on behalf of the Executive, who will make the decision that will affect the lives of individual prisoners?

In principle, the Executive should have no—or a minimal—part in the area of sentencing and the disposal of individual criminals. That actually breaches the rule of law in a fundamental way. The strength of the Parole Board, as the noble Baroness said, has been its independence, but that independence is being compromised by the proposals in the Bill. Allowing the Executive any greater role needs to be scrutinised with great care and permitted only when the necessity is proven. In my view, that case is not proven here.

Illegal Migration Bill

Lord Bach Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, Clause 55 will ensure that individuals who receive a removal notice under the Bill have access to free legal advice. The clause at present applies only to England and Wales. In Committee, the noble Lord, Lord Ponsonby, properly asked what the position is regarding Scotland and Northern Ireland. The Scottish Government advise that legislative provision is not required to ensure persons issued with a removal notice can access free legal advice in Scotland. Legislative changes are required, however, in Northern Ireland. Amendment 154 ensures analogous provision in Northern Ireland to that already applicable to those seeking legal advice in England and Wales. It is simply an extension to Northern Ireland of the provisions of the Bill. That is the content of government Amendment 154. The noble Lord, Lord Bach, has an amendment in this group and I defer to him at this point. I beg to move.

[Lord Bach (Lab)]

My Lords, I will speak to my Amendment 155, which is in the same terms as it was in Committee. I am extremely grateful to the noble Baronesses, Lady Ludford and Lady Prashar, and of course to the noble Lord, Lord Carlile of Berriew, for putting their names to this amendment and adding some lustre to it. I am also grateful for a superb briefing note from Bail for Immigration Detainees, ILPA and the Public Law Project.

In my view, ensuring that those who are detained have legal advice at an early stage is of fundamental importance. Obviously and above all, it is important to the detainees themselves, but it is also important to the reputation of our much-vaunted legal system. I ask the House to think about it for a moment: the proposition that, in our country, any person, whether adult, child, pregnant woman or victim of trafficking, can be deprived of their liberty and, at the same time, of proper legal advice is horrific, unconscionable and unconstitutional.

Clause 55 provides for insufficient access to civil legal services. It is concerned with free legal advice and representation only in relation to removal notices. It makes access contingent upon receipt of a removal notice and does not ensure that the necessary services will be made available shortly after a person has been detained. I remind the House that there is no set timeframe in the Bill for the Home Secretary to serve a removal notice under Clause 7. It is therefore not unrealistic to suggest that an individual could be left to linger in detention for days and even weeks before a removal notice is served by the Home Secretary and thus before they are able to access legal aid under Clause 55. Accordingly, the Bill does not provide for people trapped in its provisions assurance of access to free civil legal services before a removal notice has been served on them.

Clause 55 also does nothing to address the reality that it is practically impossible for many people to access legal aid under existing entitlements. There are, as I think the House knows, vast numbers of unrepresented individuals seeking asylum and in detention due to the current unsustainability of and lack of capacity within the immigration and asylum legal aid sector.

Our Amendment 155 introduces a new clause—a duty to make legal aid available to detained persons, which would address this issue in England and Wales by supplementing what the Government intend to achieve in their Clause 55. It would place a duty on the Lord Chancellor to make civil legal aid available to detained persons in relation to already in-scope judicial review and immigration matters, and suspensive claims, within 48 hours of their detention. This is crucial, given that the Bill gives the Home Secretary wide powers to detain families indefinitely, to detain children who are alone and to detain vulnerable people such as pregnant women, while also placing a duty on the Home Secretary to remove them, with short timeframes to make suspensive claims with compelling evidence to prevent such removal.

I hardly need to remind this House of Parliament that the provision of legal aid is a key component of ensuring the constitutional right of access to justice—itself inherent in the rule of law. The courts have repeatedly upheld the principle that a failure to provide legal aid can amount to a breach of fundamental rights. Legal aid is essential to ensure that people without means can secure effective access to justice and redress.

So why is this amendment needed? As I think the House knows, legal aid was, in effect, decimated in this area of law by the legal aid cuts of 2013. Most non-asylum immigration matters are excluded, which has damaged the entire immigration and legal aid sector and the ability of everyone, including individuals seeking asylum and those in detention, to access reliable, quality legal aid immigration advice. Immigration law is highly complex and extremely difficult, if not impossible, to navigate without a lawyer.

It is unrealistic to believe that individuals seeking asylum, who have just arrived in the UK and who may be traumatised or vulnerable and who may speak little or no English, can understand our complex laws and make effective representations without professional legal assistance. As stated by Lord Justice Underhill in last week’s decision on the Rwanda scheme, cases where decisions are fair and where there has been no access to legal assistance are “likely to be exceptional”. I pray that in aid of this amendment. Amendment 155 would help to secure timely access to legal assistance, which is crucial to the fairness of decision-making.

--- Later in debate ---

Tabled by

[Lord Bach]

155: After Clause 55, insert the following new Clause—
“Duty to make legal aid available to certain detained persons(1) The Lord Chancellor must secure that civil legal services in relation to—(a) a suspensive claim within the meaning of section 37(2) of this Act, and(b) any of the matters set out in paragraphs 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 31A, 31C, 32 or 32A of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012are made available to any person who is detained under a relevant detention power within 48 hours of the day on which they are first detained under that power.(2) The Lord Chancellor may make such arrangements as they consider necessary for the performance of their duty under subsection (1).(3) The duty under subsection (1) is subject to—(a) section 11 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (qualifying for civil legal aid) and any regulations made under that section, and(b) section 21 of that Act (financial resources) and any regulations made under that section.(4) In this section—“civil legal services” has the same meaning as in section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;“relevant detention power” means a power to detain under—(a) paragraph 16(2) or (2C) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal),(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation),(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State), or(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).”Member's explanatory statement
This amendment places a duty on the Lord Chancellor to make civil legal aid available to certain detained persons in relation to judicial review and immigration matters within 48 hours of their detention.

--- Later in debate ---

[Lord Bach (Lab)]

My Lords, as far as Amendment 155 is concerned, I thank all noble Lords who have spoken in this fairly short debate. The person who took much the longest was me, and I am not going to make any apology for that because this is an important subject in the context of the Bill.

Still, I thank everyone for their comments, not least the Minister himself, who I personally believe is quite sympathetic to the ideas put forward in this debate. I do not want to embarrass him unduly by going on, but he has been very helpful in discussions outside the Chamber. His contribution today was a little harsher than I had hoped, but we will see what the consultation does. I must say that much more active work will be needed by the department, perhaps over a period of time, before we get to a satisfactory position.

On parallels with other, existing schemes, it is important to realise that, as I understand it, many of them involve half-hour telephone conversations. It will not surprise the House to hear that half-hour telephone conversations are not satisfactory for people who do not speak good English and are perhaps extremely vulnerable at the time. Such conversations are not really enough and, as I say, many of them are on the phone rather than face to face.

Something the Government will have to think about is that the new establishments that we hear will house many of those who are detained, if and when the Bill becomes law, will be quite strange places, such as barges and places like Scampton. Getting legal advice into those places—and face to face is pretty important here —will cause quite a lot of problems for the Government. It will involve extra resource, as I think the Minister understands.

Tempted as I would normally be to test the opinion of the House, I appreciate that we are here pretty late after a full day, and I do not think the House would thank me for dividing it at this stage. That is not to say for a moment that the issues we have been debating for the last few minutes are not crucial to what sort of country we are. Detaining individuals—the state depriving people of their liberty—is an issue that this House has always taken incredibly seriously. Even though I am not going to press the amendment, and while I will not say that I am warning the Minister, he will not be surprised to hear me say that we will be coming back to this issue and watching very closely over the next few months to see how it develops.

Consideration on Report adjourned.

Illegal Migration Bill

Lord Bach Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this Bill is about removing rights and making life as miserable as possible for some of the most vulnerable and desperate people in the world. I find it impossible to understand how we have ever come to this point. Part of this process is removing human rights with regard to access to the courts—removing the courts’ ability to intervene when the Government act unlawfully. How can that happen? How can this come to us in any sort of legislation? Detaining and deporting people without providing them with any legal advice, or even any information about how to obtain legal advice, all contribute to this denial of human rights.

I was in Belgium for a few days last week. I speak decent French and some German and there were times when I could not understand a word anyone was saying. The idea that we might not help people in a language they can understand and communicate in astonishes me.

We are in an absurd situation where murderers and paedophiles could be more kindly treated by the law than, for example, a desperate family who arrive in a small boat from across the channel.

Then there is the outrageous Clause 7. This is bonkers. When I first read it, I had to laugh—it sounds like something a two year-old might come up with. It says that the Secretary of State can commandeer

“any ship, aircraft, train or vehicle”.

So the border patrol—or whoever it is—can stuff people into somebody’s car and say, “Right, you are responsible for them. You get them out of the country”. It is astonishing. Who wrote this? How does this come from a Government whom we sort of hope might be able to tough it out for the next few months—actually I do not want them to tough it out; I want them to go. Presumably, this Government do want to tough it out, so why bring this sort of rubbish to this House? It is actually quite offensive.

In Clause 7, they are asking ordinary citizens—the British public—to act as border enforcement agents. I do not think any of us would want to do this, even the most rabid ERG member you could possibly think of. This is part of the problem with the Bill. It is not going to help the situation in any way at all. Is it designed to pander to the extreme right wing of the Government, so that they can say they are doing something and perhaps retain those votes? I have no idea. The thought processes are beyond understanding. Clause 7 is unbelievably bonkers.

It shows how this Government are trying to exploit Just Stop Oil, asylum seekers or people such as that to make the public think they are actually doing something about the problems these people are facing. I really hope that we defeat quite a lot of this Bill before it gets much further.

[Lord Bach (Lab)]

My Lords, what rights people have when they come into this country—unlawfully, the Government claim, although some of us would disagree—is surely an essential part of this Committee’s consideration of the Bill. I know the Minister is a member of the Bar and has practised in criminal courts and elsewhere, so he will understand instinctively how important the question of rights is for people who have just come into this country, often in a destitute state.

We know that later in Committee we will debate legal aid and the Lord Chancellor’s duties. Those are important matters to be considered then but I wonder, given the speeches that have been made on this group, whether he has something to say about the Government’s attitude towards the rights of people whom he or others may not like, but who do have rights when they arrive in this country. Do we just say that there are no such rights—no right to any advice or legal aid, if that is necessary, because they deserve what comes to them—or do we take the more sensible and British attitude that anybody who ends up on our shores and is in trouble should be entitled to some advice?

[Lord Balfe (Con)]

My Lords, broadly speaking, I support this Bill, but there are many things in it which give me cause for concern and we have now hit one of them. The noble Lord, Lord Davies, mentioned it—the extent to which the state can co-opt unwilling people to implement its legislation. Regarding those who happen to be the driver of a train or pilot of an aircraft that has on board what we are now going to determine is an illegal immigrant, how can we force such people to act as agents of the state in detaining them?

The noble Lord, Lord Davies, mentioned that this will come up in the next group but it is an important, fundamental point. I am not talking about the refugees but the many trade unionists who will be horrified at the thought of being co-opted as almost part of the police. This is not on. Before the Bill moves to the next stage, I hope the Government can come forward with some proposals which will exempt ordinary workers from becoming its policemen.

Independent Public Advocate

Lord Bach Excerpts

Thursday 2nd March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I think the statute will have to make an attempt to define what it means by “major disaster”. As presently envisaged, one is thinking of what one can loosely describe as one-off disasters, such as the ones we have been discussing: perhaps the 7/7 bombings, the Paddington train crash of some years ago and those kinds of things. At least so far, government reflection has not extended to things such as the Post Office scandal, which arose over many years, or the contaminated blood scandal, which arose over many years, or the North Staffordshire NHS scandal that eventually came to light, because those were ongoing things going wrong. They were certainly in one sense disastrous, but it was not quite envisaged that they would be a disaster in terms of the statute. However, I say again that the exact scope of this new independent public advocate is a matter for close consideration.

[Lord Bach (Lab)]

My Lords, I welcome the Statement repeated by the Minister today, and we look forward to the legislation, of course. I go back to the inquest issue, because it is intimately connected with the Statement that has been made today. I was pleased to hear the Minister say in reply to my noble friend Lady Chakrabarti that the Government were looking very carefully at equality of arms. I put it to him that the only way of dealing with that issue—I cannot think of any other—is increasing legal aid at inquests for interested parties. Is there an alternative? If there is one, what is it?

[Lord Bellamy (Con)]

My Lords, the Government have already announced a review of civil legal aid, and inquests are within the scope of that review. We will therefore take the powerful point that the noble Lord has made under advisement in that context.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023

Lord Bach Excerpts

Monday 23rd January 2023 Grand Committee

[Baroness Drake (Lab)]

My Lords, I apologise; I appreciated only this afternoon that this SI was being tabled for discussion today. I want to make reference to extending legal aid to special guardianship order applications for children in private law proceedings. Clearly, this is welcome but, regrettably, it is not matched in public law proceedings, where the majority of special guardianship orders are pursued, when children are often in a crisis situation. In effect, the SI will not cover all kinship carer situations, where legal support is needed and is further limited by the stringent means test.

The compelling evidence—and this has often been rehearsed on the Floor of the Chamber—is that kinship carers are left to navigate the family justice system without the legal aid and representation they need. Many incur significant debt from paying legal costs or find themselves sidelined in important decisions about the child, directly increasing the risk that more children will end up in care.

There are two key areas in public law cases where legal aid for prospective special guardians urgently needs to be considered. First, at the formal pre-proceedings stage, prospective kinship carers have access to only limited advice. Means-tested support is remunerated at such low rates that very few solicitors will now offer advice on taking on the care of a child. Secondly, during the care proceedings, prospective kinship carers are still entitled to only very limited advice. In fact, only when the prospective kinship carer is made party to the court proceedings or when they make a private law application may they be entitled to legal aid. We know from the evidence, which has been rehearsed many times in the Chamber, that many carers do not have the early advice even to know that becoming a party to proceedings is an option or how to make a private law application.

In putting those issues, my main point is that, while welcoming the extension of legal aid in the instance covered by this SI, in preparing their response to the MacAlister review, are the Government considering further extending access to legal aid to kinship carers seeking guardianship orders in public law situations? We know that the evidence is overwhelming that, in terms of the benefits to the child and the cost to the taxpayer, effective kinship carer situations with guardianship orders save the taxpayer money, give better outcomes for the child and will, in effect, end up paying many times over for the extension of legal aid that these people seek.

[Lord Bach (Lab)]

My Lords, I shall be very quick, not least because the chairman of the committee mentioned by the Minister in his answer on the previous instrument is in her place, and she can talk with much more skill and expertise than I can. As a mere member of that committee, I remember well the Minister’s appearance before it; I do not think that it is flattering him too much to say that he was one of the star witnesses, not just on that day but during the whole of our proceedings. Indeed, the whole issue about early advice, as was clear from the Minister’s first reply, was clearly something that was a matter of concern to him.

Just as I supported the last instrument, I support this one. Again, in their comparatively small way, they are important improvements. One fault of LASPO, to put it mildly, was that too much of private family law was taken out of scope of legal aid. There have been consequences since, and my guess is that the Government have come round to that view and I think that this order, in a small way, shows that. The Minister will know that the issue around domestic violence and the evidence needed was a matter of huge controversy for many years after LASPO came into force. It looks as if that is, finally, I hope, being put to bed.

All that I want to do, if I may—and I certainly do not want to take the thunder away from the noble Baroness, Lady Tyler, who I hope will speak shortly—is to invite the Minister, if he has not already, to see the recommendations that we made in this area of the Select Committee’s report. We ended by saying, as one of our major recommendations:

“We recommend that the Government urgently evaluate the impact of the removal of legal aid for most private family law cases, considering where reinstating legal aid could help improve the efficiency and quality of the family justice system.”


We heard a huge amount of evidence over the months that showed that the lack of the possibility of legal aid in some private family law situations was very harmful to their early solving.

[Baroness Tyler of Enfield (LD)]

My Lords, I am pleased to have this opportunity to say a few words in support of this order. As was said about the previous instrument, this is a small but significant step forward in an area that has been beset with many difficulties. On the specific points about the recommendation to extend the order to cover special guardianship orders in private law proceedings, I agree that that is important.

One of the very interesting findings of the Select Committee, which the noble Lord, Lord Bach, has already referred to, was that there are now more special guardianship orders per year than there are children being adopted. That makes the whole area of special guardianship orders very important. While it is good news that they will be in scope of this instrument on private law proceedings, I very much echo the important remarks made by the noble Baroness, Lady Drake, about how desirable it would be for that to be extended to public law proceedings.

I will just make a couple of other general comments on the work that the Select Committee did to look into family law and the family justice system. First, I very much underline and endorse the comments that the noble Lord, Lord Bach, made about the very helpful evidence that the noble and learned Lord the Minister gave to the committee, which really informed the recommendations that we made throughout the chapter on family justice and particularly on legal aid itself. The point has come up several times this afternoon that one difficulty that the family courts face at the moment—and some of the reasons for the big backlog and delays—is the lack of any focus on early intervention.

Other witnesses before the committee included the current President of the Family Division and his immediate predecessor. His predecessor, Sir James Munby, argued—and we put in our report—that

“Money properly spent at an early stage usually pays dividends later on.”


I very much agree with that. Sir Andrew McFarlane, the current President of the Family Division, also made a number of comments on the importance of reinstating some legal aid within family law proceedings and came up with a number of ideas that are in the report, including the idea of some form of professional who might be able to signpost applicants to mediation, to other forms of information about dispute resolution or to a lawyer, where that would be helpful.

I know that that goes wider than this particular statutory instrument, but we also heard from academic experts who really underlined the problems that the cuts to legal aid had made in the family courts and, frankly, how they had simply shifted costs to other parts of the court system, particularly where litigants in person, quite understandably, did not really understand how to represent themselves. It was taking up so much time from the court service officials and others, and another academic expert said to us that

“there are cases going to court that lawyers would have headed off. With legal aid, a lawyer would have said, ‘No, it’s not worth taking this to court’ or ‘Try mediation’”,

or, “No, you’ll lose”.

They are such important points and that is why we ended up, as the noble Lord, Lord Bach, has already said, recommending that the Government should urgently evaluate the impact of the removal of legal aid for most private family law cases and consider reinstating legal aid where that can improve the efficiency and quality of the family justice system. I was extremely encouraged when I heard the Minister’s remarks in the previous debate when he said—I think; I would be pleased if he could confirm it—that the Government are looking again at this whole area to see what impact reinstating legal aid in certain instances in the family courts would have. Just to underline that final point, the Select Committee thought that it would really improve efficiency, effectiveness and the quality of outcomes in the family justice system.

As I say, I support this statutory instrument. It is a small but important step forward and I hope that it also leads to consideration of wider improvements in the family justice system.

Civil Legal Aid (Housing and Asylum Accommodation) Order 2023

Lord Bach Excerpts

Monday 23rd January 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, this statutory instrument will expand the scope of civil legal aid to allow early legal advice before court on housing, welfare benefits and debt issues for those at risk of losing their home. It will also ensure that failed asylum seekers who face a genuine obstacle to leaving the UK remain eligible for legal aid to support them in obtaining accommodation support from the Home Office. These provisions are made under the overarching legislation known as LASPO, which covers the grant of legal aid.

Going into slightly more detail on the changes to housing legal aid, the purpose of the instrument is to provide a better wraparound and earlier legal support for those facing the loss of their home. The current arrangements provide for legal aid only for help at court, whereas the new scheme allows for much earlier advice to be sought as soon as the tenant receives notice that the landlord seeks possession. At the same time, the scope of the advice now available will cover wider matters, including advice on debt, housing, and welfare benefits and related matters. In general, this is a wider and, we trust, more effective use of legal aid in this sector.

The order results from the post-implementation review of LASPO, where the absence of legal aid in this specific area was identified as a gap in the system that led to an increase in court proceedings, greater reliance on welfare and extra pressure on local authorities. The order seeks to help individuals to resolve problems before they lead to housing loss.

The advice will not be means tested, meaning that individuals will not need to pass any financial eligibility tests to receive it. The present in-court duty service, whereby defendants can be represented in possession cases at court, will continue. Under the remuneration regulations, we will ensure that fees for legal aid providers for those services are increased at the same time.

The other amendment the instrument makes is essentially purely technical: to ensure that legal aid for failed asylum seekers continues to be available so a failed asylum seeker can obtain accommodation support where they are destitute and there is an obstacle preventing them leaving the United Kingdom. The amendment is necessary because of a technical change tied to Sections 4 and 95 of the Immigration and Asylum Act 1999 to take account of a new Section 95A, to be introduced when the provisions of the Immigration Act 2016 come into force. That is a purely technical arrangement, the main thrust of the arrangements being the improvement of legal aid in housing. That is a short explanation of the statutory instrument.

[Lord Bach (Lab)]

My Lords, I thank the Minister for introducing the order. No one could have done it with more clarity than he has. I hope he will forgive me: while I of course welcome the small but important improvements the order represents, they are in reality just a tiny step and a little progress in dealing with the depressingly large picture of the decimation of an important part of our legal system, namely social welfare law.

That decimation occurred when the coalition Government put together, against all-party opposition and many defeats in your Lordships’ House, the Act of Parliament known as LASPO. That Act, which, ironically, came into force almost exactly 10 years ago today, has arguably done more harm than any other piece of legislation over the last number of years. No wonder the Liberal Democrats, who supported it as part of the coalition, have rightly distanced themselves from it. I detect that the governing party is perhaps just beginning to show, in instruments such as this, that it realises how much harm that Act has done in some areas.