Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

Moved by

[Baroness Ludford]

92A: After Clause 21, insert the following new Clause—
“Early access to legal aid(1) After paragraph 32A (victims of slavery, servitude or forced or compulsory labour) of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 insert— “32B “(1) Civil legal services provided to an individual who is subject to removal to a third country under the Illegal Migration Act 2023, or who might reasonably suspect they are subject to removal under that Act, in relation to referral into the national referral mechanism and connected immigration advice and representation, where there is no other provision for this within the scope of legal aid.General exclusions(2) Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule.Specific exclusions(3) The civil legal services described in sub-paragraph (1) do not include—(a) advocacy, or(b) attendance at an interview conducted by the competent authority under the national referral mechanism for the purposes of a reasonable grounds decision or a conclusive grounds decision.”(2) In regulation 11(9) of the Civil Legal Aid (Merits Criteria) Regulations 2013 (S.I. 2013/104) (qualifying for civil legal services: cases in which merits criteria do not apply), at end omit the full stop and insert—“(e) or, for an individual who is, or might reasonably suspect they are, subject to removal to a third country under the Illegal Migration Act 2023, in relation to any matter described in paragraph 32B of Part 1 of Schedule 1 to the Act (civil legal services provided to an individual in relation to referral into the national referral mechanism).”(3) In regulation 5(1) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (S.I. 2013/480) (exceptions from requirement to make a determination in respect of an individual’s financial resources), after paragraph (r), omit the full stop and insert “and,(s) for an individual who is, or might reasonably suspect they are, subject to removal to a third country under the Illegal Migration Act 2023, civil legal services described in paragraph 32B of Part 1 of Schedule 1 to the Act (civil legal services provided to an individual in relation to referral into the national referral mechanism).””Member’s explanatory statement
This new clause would give individuals subject to, or who might reasonably suspect they are subject to, removal to a third country under this Act access to early specialist legal advice, which is not means- or merits-tested, allowing for informed consent to a trafficking referral. The intention is that potential victims of modern slavery or human trafficking in that position will be able to understand what the NRM is and what it does, and provide informed consent to be referred into it. This expands the support available for advice on referral into the NRM, which is currently only available if you have a matter that falls within scope of certain types of legal aid.

[Baroness Ludford (LD)]

My Lords, as was mentioned, the noble Lord, Lord Alton, is not able to be here today, but I join in the tributes paid by the noble Lord, Lord Carlile of Berriew, about his excellent work on the Bill. He very much regrets that he is not able to be here.

The noble Lord, Lord Coaker, has slipped out, but I felt the challenge “follow that”. I fully subscribe to the fantastic riposte that he gave to the Minister. I am afraid I will speak quite a few times today; that is how the cookie has crumbled for the parts of the Bill that I have got involved in—all my prizes are coming at once. I am afraid I do not apologise for that. In response to my noble friend Lord Newby last week, the Chief Whip complained about alleged repetition, including from these Benches. I may not be alone in having heard Dr Hannah White of the Institute for Government on the “Westminster Hour” on the radio last night. She said that, in the other place, the Bill had two days in Committee of the whole House—that is not an ideal process. She said that, normally, you would have expected two weeks in Committee in the past, under the normal processes—

[Lord Deben (Con)]

Yes.

[Baroness Ludford (LD)]

I hear the noble Lord, Lord Deben, who knows those processes. They would take evidence and scrutinise line by line, rather like how we are doing now. The Bill did not get that scrutiny in the other place, so it falls to us. Indeed, Dr White said—I hope I do not paraphrase her wrongly—that the Commons are getting used to kicking the scrutiny down to our Chamber. It seems that the Government are trying to squeeze scrutiny out of us and to bully us into not raising issues here. It comes to something when we poor, aged people—perhaps I had better not go on—are the ones who have to stay until 4.15 in the morning because the Government are trying to bully us out of raising essential issues. These included arbitrary detention powers last week—nothing could be more historic in terms of the dangers of executive overreach. So we have to go on a bit, I am afraid.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I hear what the noble Lord says. It is an entirely reasonable question. I will take it back to the department and do my best to see how far we can satisfy that completely understandable request. The Government accept that legal advice should be available in practice and quickly, and they are working on that with intense attention at the moment but, in relation specifically to Amendment 120A, do not feel it is appropriate or feasible to provide for a statutory obligation to deliver within 48 hours, which is what the amendment calls for.

However, there should be a system that enables people effectively to take advice within the strict periods of time set out in the Bill, which are subject to extension—we do not yet know how that will work, but they can be extended by the Secretary of State and the Upper Tribunal. I hope your Lordships will accept that the general position on legal aid in Clause 54 is a positive provision in the Bill and that removing the means test and merits tests is correct in the circumstances. Properly administered and operated, this will be a very important safeguard for those affected by the provisions in the Bill. I hope the noble Baroness will withdraw the relevant amendment.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for his reply. I welcome Clause 54 being put into the Bill—it is better than it not being there—but several problems arise. First, Clause 54 says in terms of LASPO only that:

“Sub-paragraph (5) does not exclude services provided to an individual who is subject to removal”.


It does not do anything to make sure that that legal aid for advice and representation will appear, which is the reason for the importance of the amendment from the noble Lords, Lord Bach and Lord Hunt of Kings Hunt, about a duty to provide legal aid, as there is no guarantee. There is also no guarantee that Clause 54 will deliver any legal aid before this Bill comes into force as an Act. What will the Government do in practice to deliver that legal aid?

Secondly, Clause 54 benefits only people who are subject to removal and have, presumably, already had a removal notice. The concern that motivated Amendment 92A was that it should be available not only to individuals who are subject to removal under this Act but to those who might reasonably expect that they would be. They ought to be able to get advice so that they can give informed consent to a trafficking referral; they need to know what the implications and consequences could be. With respect, I do not think the Minister covered either of those points.

Finally, we do not appear to be getting the message across that the better informed and supported people are, the greater the benefit to the Government will be in being able to have faster processes. Clearly, those processes are not working at the moment—we would not have this incredible, appalling backlog if everything was going swimmingly with processing efficiency. I cannot speak for the noble Lord, Lord Bach, but I think we are inspired by the idea that you could streamline the system and try to avoid delays in highways and byways if people were properly legally informed of their rights. The Minister is a lawyer, so I am sure he gets that point, although unfortunately I have not heard him express it. All that said, I beg leave to withdraw Amendment 92A.

Amendment 92A withdrawn.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I agree with the noble Lord that, in that context, the Assembly had competence to consider those issues. However, in the context of the overall Bill, this measure deals with immigration. Therefore, for the reasons I gave, the measures fall within the competence of the United Kingdom Government.

The current rate of dangerous and unnecessary small boat channel crossings represents a clear and present threat to public order, justifying our invoking the relevant provisions of ECAT. They risk lives and place unprecedented and unsustainable pressure on our public services—housing, health, education, welfare and others. The Government are right to take the necessary measures in the Bill to remove the clear opportunities to misuse our modern slavery protections in order to frustrate the duty to remove in Clause 2. On that basis, I commend these clauses to the Committee and invite the noble Lord, Lord Coaker, to withdraw his amendment.

[Baroness Ludford (LD)]

Before the Minister sits down and the noble Lord, Lord Coaker, jumps up, could I ask the Minister something? Unless I was being inattentive, in which case I apologise, I am not sure that he answered the point raised by the noble Lords, Lord Weir and Lord Morrow, about the Windsor Framework—which is to be known as the Northern Ireland protocol—the duties in it and the application of EU law. He mentioned the trafficking directive and the victims directive. How is the Bill compatible with those obligations in Northern Ireland? If I have got it wrong, the noble Lord, Lord Morrow, will correct me.

[Lord Morrow (DUP)]

I am happy to confirm that the noble Baroness is right.