Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Hamwee Excerpts

Monday 12th March 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I shall concentrate on the issue of trafficking, which noble Lords will have heard me mentioning from time to time. First, I congratulate the Government, as I have done on several occasions, on their strategy on human trafficking, but I remind the Minister that Article 12.1 of the Council of Europe trafficking convention, which I am delighted that the Government have signed, states that each party should provide assistance to trafficked persons that should include at least,

“counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand”.

That is four square within what the noble Lord, Lord Bach, proposes. The Government will be allowing a dramatic gap in their strategy if they do not allow legal advice to trafficked victims.

I am extremely grateful to the noble and learned Lord, Lord Wallace, for supporting, at least in principle, an amendment which I tabled on domestic servitude and women claiming in the employment tribunal legal advice until the door of the court. Of course, to know that they have a claim, they need to be able to stay in this country to make it, so they will need a residence permit. Unless they are seeking asylum—and a large number of domestic workers will not—they will not be able to claim a residence permit. They may or may not go through the national referral mechanism; but they will be deported and they will lose their legal rights and claims.

What I have had from the Government is only the second part. What is needed is the first part, to enable those people who are victims of trafficking, the most vulnerable, deprived and traumatised of all people, who have the misfortune to be brought to this country for reasons over which they have no control. They will need help. The only way that they can get that help is to seek help from NGOs or whoever. As the noble Lord, Lord Newton of Braintree, said, and as I am informed, immigration advice is regulated. Consequently, NGOs and other organisations will not be able to give immigration advice to trafficked people, so they will be completely stuck. They will not be allowed to get legal aid and they will not be allowed to have immigration advice, which would lead to being able to deal with their immigration problems. That means either that NGOs will break the law or that those vulnerable people will be stranded without any ability to cope and, almost certainly, not having much grasp of the English language.

Many domestic workers, in particular, but also other workers, have legitimate claims, such as an application to the employment tribunal, for which they require a residence permit at least for a certain period. I believe that residence permits last for up to about one year. I understand that the police are prepared to seek residence permits, but only if the trafficked victims are prepared to give evidence in the criminal court. There is a gap here which the Government must fill, or they will be in breach of the convention obligations which they have signed.

[Baroness Hamwee]

My Lords, like others, I have been aware of the paradox that some senior lawyers have commented on the complexity of immigration law, but that if those extraordinarily senior lawyers had attempted to give advice they would be committing a criminal offence.

I do not want to repeat all the powerful points made in this debate, but an obvious point to me is that so many of the not-for-profit organisations which are not approved to give advice in this field work on something less than a shoestring. We have seen some of them folding not so long ago. Those which are approved are very stretched. They may not survive if legal aid in this area does not remain available. I do not suppose that the financial criteria for being granted legal aid under any part of the scope will be that generous—one's means must be very low to qualify. Like the noble and learned Baroness, I very much welcome the announcement that victims of trafficking will be eligible to receive legal aid. I wait to see the detail on that.

I just wanted to make two points. First, not everyone who wants to stay either wants to or can apply for asylum—I recognise that that will remain in scope. Secondly, their very difficulty with immigration status restricts many trafficked victims from seeking help to escape from their traffickers. Their passports will have been taken away. To many of them, that amounts to their identity being taken away. That leaves such control with their traffickers that I find it a difficult notion that they will not be able to get advice under a legal aid scheme.

[Lord Borrie]

My Lords, if the House was today being given a choice between the amendment proposed by my noble friend Lord Bach, to bring within scope the immigration laws and advice that is needed by so many people to get through the impenetrable weight and mass of immigration law, and simplifying and reducing the impenetrability of immigration law, many of us might go for the second.

I remind your Lordships that many branches of administrative law—or what is nowadays called that—were created by the welfare state, post-Beveridge, after the end of World War II. The idea was that there would be a law which need not be dealt with by the courts but could be dealt with by a mix of lay men and lawyers in administrative tribunals. I recall that the TUC used to say: “No more law, no more lawyers”, when dealing with industrial injury and other matters which were to go to tribunals. Of course, we all know that during the past 50 or 60 years the law relating to the welfare state and immigration has increased. It has expanded. Many times during debates on this Bill in the past few weeks, mention has been made of the vast quantity of material contained within the 1,000 pages-plus of the law relating to welfare. Many lawyers know, as many of your Lordships have said this afternoon, that that is the case with immigration law. There is a mass of detail.

If I were given the choice between simplifying that and my noble friend’s amendment, I would probably prefer a scheme to start on the major task of simplification. We do not have that choice today. The choice today is how to deal with the present Bill. Whatever we may do as Parliament in due course, today and tomorrow, in the immediate future, there is a real need for people to have proper advice from authorised persons about the detail of immigration law. That can be done only if we agree to the amendment to enable relevant people to come within scope of legal advice and legal aid.

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[Lord Beecham]

I am most grateful to the noble Lord.

[Baroness Hamwee]

I, too, shall read the Minister’s reply with interest. Is he satisfied that there would not be other types of claim, apart from judicial review, with which a damages claim might be almost inseparably linked as part of the same proceedings? I do not expect him to answer that immediately.

[Lord McNally]

I think that we can all reflect. I will respond to my noble friend after such reflection.

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[Lord Judd]

My Lords, this debate relates to one that we had earlier, when there was that magnificent and to be expected contribution by the noble and learned Lord, Lord Woolf. Without saying everything that I said previously, I should like to underline that I do not believe that I am in a small minority. A significant number of people in this country are ashamed of what we are doing.

What kind of society do we want to be? Are we just cynically abandoning people to a system? Perhaps worse, are we really finding devious ways to get negative results which we want? That is what worries me. I am not convinced that our immigration policy operates with fairness. I believe that there is an underlying principle that we want to get rid of people; that we do not want people here; that we want to discourage people from coming.

Are we a country about justice or are we not? If we are a country about justice, those people, often in sad and desperate circumstances, are the very people whom, in the midst of economic pressures, and all the rest, we should be determined to protect.

I am very glad that there is this opportunity to air this matter. I am glad that concern spreads across the House into different political groups. All that I can say is that I am getting very depressed about the real motivation for some of this legislation.

[Baroness Hamwee]

My Lords, I support, in particular, Amendment 93, to which my noble friend Lord Thomas has spoken. No one has yet mentioned—although I suspect that the noble Lord, Lord Bach, may—concerns expressed by the Joint Committee on Human Rights about the extent of Clause 9 and whether it will be practically effective. One of its concerns was about the need for provision of services swiftly. Noble Lords will have read the report.

There is exceptional funding under the current scheme covered by guidance and, beyond that, a funding code. I was pleased to have been able to find that quickly through Google, if not through any government website. I am unclear, but fearful about just how closely Clause 9 and guidance which has not yet been written will reproduce what exists now.

I mentioned earlier today to the noble Lord, Lord McNally, that I was going to ask this question. He said that he would know the answer by now. I hope that that has transmitted itself through the ether or on paper to the noble and learned Lord who will respond. The guidance on exceptional funding refers to “significant wider public interest”; overwhelming importance to the client and other exceptional circumstances such that, without public funding by representation, it would be practically impossible for the client to bring or defend the proceedings; or that the lack of public funding would lead to obvious unfairness in the proceedings. I should have thought that that would amount to “in the interests of justice”. The terms “overwhelming importance to the client” and “wider public interest” are both defined: overwhelming importance to the client meaning a case which has exceptional importance beyond monetary value because it concerns the life, liberty or physical safety of the client or his or her family. I particularly note the reference to family, because in the immigration cases to which we have been referring, there is concern about family or a roof over their heads. Wider public interest could produce real benefits for individuals other than the client, and this particular case is an appropriate one in which to realise those benefits.

We have referred several times to concern about class actions and cohorts. I said on a previous day on Report, although probably not very clearly, that I was glad to know, pending seeing the detail, that people who have been victims of trafficking will be the subject of a government amendment, my noble and learned friend having said previously that they would come within Clause 9. However, if the Government are concerned that they might not come within Clause 9, then my concern is whether Clause 9 is too narrow. I would extend that concern to a very small group of people—victims of torture. Although not large in number, both these groups have substantial needs. All this may benefit from some detailed discussion outside the Chamber but I think that it is appropriate to raise it today. My question is about the extent of the change from the current arrangements.