Border Security, Asylum and Immigration Bill

Debate between Lord Empey and Lord Pannick

Committee stage
Monday 8th September 2025 Lords Chamber

[Lord Pannick (CB)]

My Lords, I declare my interest as a practising barrister including in immigration cases—sometimes for claimants, sometimes for the Home Office. I support this amendment for the reasons so eloquently presented by the noble Lord, Lord Bach, and those who have followed him.

I want to add one point, and it is a legal point. The Court of Appeal has explained that Article 6 of the European Convention on Human Rights, which is of course part of our law by reason of the Human Rights Act, imposes obligations on the state to provide civil legal aid in some circumstances. The question of law, says the Court of Appeal, is whether an unrepresented litigant is able to present his or her case effectively and without unfairness, having regard to the complexity of the relevant laws and the importance of what is at stake. Applying those criteria, you decide whether there is an obligation to provide civil legal aid. Those criteria were stated by Lord Dyson, the then Master of the Rolls, for the Court of Appeal, in the case of Teresa Gudanaviciene v the Director of Legal of Aid Casework and the Lord Chancellor—a case reported in vol. 1, 2015, of the Weekly Law Reports, page 2247 at paragraph 56.

If you seek to apply those criteria to immigration detention, it seems to me that the answer is very clear: there is an obligation to provide civil legal aid. Why is that? Because the law in this area is highly complex, and the issues are of great significance to the person concerned. As the noble Baroness, Lady Chakrabarti, has emphasised, the person concerned is incarcerated. It is wholly unrealistic to think that an unrepresented litigant, who may after all speak little if any English, will be able present their case effectively—that is the test—and without unfairness, if they lack legal representation.

The Government have emphasised repeatedly the importance of complying with their human rights obligations—the Minister has said that; I have heard him on many occasions. I suggest to him that this commitment requires Ministers to look favourably on this amendment and, indeed, to answer the point made by the noble Viscount, Lord Goschen, to do so irrespective of the cost. I do not think the cost would be more than a tiny proportion of the legal aid budget, but that is not the point. The obligation is irrespective of the cost. I hope the Minister will be able to tell us, when he replies to this important debate, that further thought will be given to this issue by the Government before Report.

[Lord Empey (UUP)]

My Lords, not being a lawyer, I feel more qualified to speak on this than anybody else.

The reality is that legal aid across society is, in effect, a rationed resource; it cannot be universally applied. The noble Lord, Lord Pannick, made a point about obligations, and Parliament has been perhaps unwise in the past to have open-ended obligations when we cannot deliver them. The Minister will no doubt have some figures on this but, if more money is allocated through the legal aid system to asylum and immigration cases, either the budget will have to expand or money will be taken away from other areas. It is a simple matter of arithmetic. This is about choice and priorities, and they need to be matched with obligations that we have shown ourselves unable to meet.

On the point that the noble Lord, Lord Kerr, made in his contribution, it would be invaluable for the Committee to have some factual evidence. A point was made that if cases could be made to go more quickly, with fewer adjournments and appeals, savings could be made—and maybe they could be—but we are flying blind because we do not have the facts. I do not know whether they are obtainable or whether this can be looked at before Report, but it would be extremely helpful to have some factual evidence to support this.

Unless the Government expand the budget for legal aid, something will have to give somewhere. If more money needs to go into this area, less will have to be spent somewhere else. It is not a hugely challenging intellectual concept. It would be most helpful to hear in the Minister’s reply whether he has any facts at his disposal. The Committee would be in a much stronger position to take a decision when we have that information.