Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Wednesday 18th January 2012 Lords Chamber

[Lord Judd]

I warmly commend the amendment, which I think will receive strong support from all parts of the House. The Bill in general is open to the awful charge of shifting the burden of our economic difficulties on to those who already in their lives face disproportionate difficulties and hardship. This is a particularly nasty and mean provision within that general strategy. These people are victims. They are not people who have just transgressed the law; they are victims of cruel, harsh and cynical treatment. If this country stands for anything, it must surely stand for ensuring that such people get some kind of justice after the experiences to which they have been exposed.

[Lord Avebury]

I would like to say a word on migrant domestic workers. First, I congratulate the noble and learned Baroness, Lady Butler-Sloss, on the wonderful work that she does on the All-Party Parliamentary Group on Human Trafficking, which has been influential on helping to shape government policy on trafficking, which has as she said made enormous strides in recent years.

The particular case of migrant domestic workers is subject to a consultation being undertaken by the Home Office. From what I have heard, the Government are moving towards ending the special status of migrant domestic workers on the basis that, as the Home Office considers, employers who want to have domestic servants should employ people from the European Union and pay them the national minimum wage. This is a fantasy when you consider that many lawyers are at present already breaking the law by bringing in people under other headings, such as students, and then transferring them to domestic slavery.

The particular case that has been drawn to our attention many times by Kalayaan, the organisation that defends the rights of migrant domestic workers, is that of people who bring in domestic workers as visitors accompanying them when they enter the country. They get leave to enter for six months, which in many cases is enough to meet the needs of the employer, but in some cases they remain on as overstayers after that period. If the Government move in the direction that I have suggested, there will be an enormous increase in the number of people brought in illegally by the employers in this way. They will really need the support that they can get only from having access to legal aid, because by definition if they manage to escape they will be destitute. They will have the support of NGOs such as Kalayaan, but without access to the courts they will be deprived of remedies that we think are their rights.

I very much welcome the amendments tabled by the noble and learned Baroness and hope that if the Government cannot accept them in precisely the form as they are tabled today, they will find some way in which to meet this need.

--- Later in debate ---

Moved by

[Lord Avebury]

68: Schedule 1, page 130, line 8, after “Kingdom” insert “to a person who is liable to detention under immigration laws, or”

[Lord Avebury]

My Lords, these amendments, supported by the Immigration Law Practitioners’ Association, which assisted in their drafting, were tabled to draw attention to and to remedy the inconsistency of the Government in claiming to protect legal aid for people whose liberty is at stake, while denying those who are liable to detention, pending their removal or deportation, the means to assert their claim before the tribunal constituted for that purpose.

--- Later in debate ---

It has been a question of trying to prioritise and to focus help on those who need it most in the most serious cases. It is these cases where we believe that legal aid representation is justified. I anticipate that that will not satisfy my noble friend but I hope that he will understand that, in trying to address these issues, we have sought to give priority in cases such as asylum and where the liberty of the individual is at stake. In doing so, I hope he agrees that these are appropriate judgments. The consequence has been that it has not been possible to include within scope a much wider range of immigration cases. I invite my noble friend to withdraw his amendment.

[Lord Avebury]

In one respect, I can agree entirely with my noble and learned friend and that is that I am wholly dissatisfied with his reply, as he expected. If we are helping those who need help most, who could possibly be higher on the list than somebody who has been detained and is therefore incapable of conducting his case effectively? As I said—my noble and learned friend did not address this point—how does he get in touch with witnesses and how does he get the money for the telephone calls, for duplicating of papers and for all the rest of the preparatory work that needs to be done in formulating a proper appeal?

Nor did my noble and learned friend address my point that there were likely to be more cases where a person was unjustifiably refused if he did not have representation—and that comes from the figures. We know that in other types of case there is a much higher percentage of success where the appellant is represented than in cases where he conducts the case himself. The same figures would be seen if it was possible to distinguish between the two categories in immigration cases. Therefore, it follows that if people do not have representation when they are in detention, more of them will unlawfully be sent back to the countries of their origin. I think that my noble and learned friend missed the point that I made in relation to the case of the Dutch citizen of Somali origin who was threatened with deportation but was able to get representation. The solicitor showed that it would have been unlawful to deport him because he was not a Somali citizen but a Dutch citizen of Somali origin. If he had been able to appeal only against his detention, it would have to be a two-stage process. Would my noble and learned friend not agree that he would first have to obtain his liberty and then get a solicitor to point out to the tribunal that he was not liable to deportation because the UKBA had falsely assumed he was a Somali citizen?

I am most grateful for the support of the noble Lord, Lord Bach, for the amendments. As he said, there is a complete mismatch between the facts that a person can obtain legal aid for his detention but not for the underlying reasons for the detention in the first place. I see that we will have to return to this subject on Report and I shall have to discuss what we do about it with ILPA and our other advisers. For the time being, I have no alternative but to beg leave to withdraw the amendment.

Amendment 68 withdrawn.

--- Later in debate ---

[Lord Avebury]

I warmly support my noble friend in this amendment. I reinforce what he has already said by reference to a note issued by the UNHCR dated November 2011, which I presume has been drawn to the attention of my noble and learned friend the Minister. Has he been approached directly by the UNHCR on these matters? If so, what was his response? I very much look forward to hearing from him. He is nodding, which I presume means—

[Lord Wallace of Tankerness]

I was trying to indicate that I did not pick up what my noble friend said. I would be grateful if he could he repeat the question.

[Lord Avebury]

I was saying that I hope that this note, which we have all received from the UNHCR, has been sent by the UNHCR representative in the United Kingdom to noble Lords on the Front Bench. I look forward very much to knowing how they have replied.

As my noble friend has already pointed out, the UNHCR is concerned because, although the safeguarding of asylum seekers’ access to legal aid is being retained, it is worried about the way in which the Bill limits access to legal aid for families of refugees who seek to rejoin their family members in the United Kingdom. The UNHCR notes with concern that,

“the current proposals exclude legal aid for family members of persons who have been recognised as refugees or people who have been granted humanitarian protection”.

I cannot think of a more powerful agency to make representations of this kind than the UNHCR. It almost goes as far as to say that it is a breach of the refugee convention to deny legal aid to the family members. As my noble friend pointed out, the UNHCR believes that,

“reunification of the family unit plays an important role in ensuring the protection and well-being of individual members of a refugee family”.

It goes on to describe the adverse consequences that may follow from the denial of legal aid for these purposes.

One point on which I think I should add to my noble friend’s comments is on disputed family relationships, which are frequently a matter of continued difference between the UKBA and the applicant and which have to be resolved by reference to, for example, DNA evidence. The UNHCR asks how the costs of evidence gathering and the private legal fees that have to be borne in connection with this process can be borne by the refugee and his family. It notes that,

“the Government’s response during the consultation stage was that family reunion applications are ‘generally straightforward’ and that an alternative for family members is to claim asylum in their own right”.

However, the UNHCR points out that, since a refugee family are still outside the United Kingdom, they are not able to claim asylum in their own right—they would have to travel illegally to the United Kingdom to make such an application. Is that what the Government want them to do? It seems to me that, by denying them legal aid, the Government are inciting them to break our immigration laws and enter by some other means in order that they can claim asylum here in their own right. This cannot be right, and I hope that my noble friend will consider these amendments very seriously.

[Lord Bach]

My Lords, I can be very brief. The arguments put forward for these amendments are very powerful and I have nothing to add to them, save to say that this relates to families, and one of things that this Government claim—as all Governments do, quite rightly—is their faith in the family. It would be slightly ironic if the Government went on with the Bill as it is now published, in terms of the effect that this may have on refugee families, when they have the answers given to them by the exception provided for in the amendment moved by the noble Lord, Lord Thomas of Gresford. We think the Government should accept his amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, Amendment 69, moved by my noble friend, seeks to bring family reunion cases into the scope of legal aid. In recognising the purpose of the amendment, I also wish to indicate that the anticipated cost of that would be around £5 million a year.

Such cases involve a person who has been granted asylum and sponsors the applications of the immediate family to join them here in the United Kingdom. Applications to join family members are immigration applications rather than asylum ones. This may to some extent respond to the point made by my noble friend Lord Avebury when he indicated that there was an encouragement to people to come in as illegal immigrants and to be asylum seekers. I have repeated on many occasions that asylum will come within the scope of legal aid, but it is widely recognised that navigating the laws is far more complex than is intended to be the case with regard to immigration applications in such cases.

[Lord Avebury]

I may have misled my noble friend. What I was pointing out was that it was the Government’s own suggestion that family members should claim asylum in their own right and that the only method by which they could do so was to enter the United Kingdom by some unlawful means so that they could claim asylum.

[Lord Wallace of Tankerness]

I hear what my noble friend says. I will check, but I was not aware that the Government had encouraged people to come in in those circumstances. The point that I was about to make was that UK Border Agency guidance in these cases, when people are coming in under an immigration route, is that it sets out presumption of a grant of an application if the relevant criteria are met. The evidence required, such as marriage and birth certificates, should not require specialist legal assistance to collate. Indeed, the entry clearance officer may on occasion ask for DNA testing to prove a family relationship, but in these circumstances the test will be free of charge to the applicant.

These cases do not require specialist legal advice and, as we have indicated with other immigration cases, it is not necessary for them to remain within the scope of civil legal aid. Nevertheless, I recognise what my noble friend Lord Thomas of Gresford said in moving his amendment. In spite of the fact that most cases should be relatively straightforward, as my honourable friend the parliamentary under-secretary Mr Djanogly indicated, there are some cases which are complex—I would certainly repeat what he indicated in the other place—so we will look at this again. I say this without wanting to raise an expectation, but it is important that we look at the issues where there are complex cases, and I undertake to look at that aspect again.

On Amendment 71, as my noble friend indicated we have dealt with most of these issues in the course of the evening. I am prepared to elaborate on the answers again, but perhaps he could just take as read the answers given in respect of those cases. Again, the issue relates to the fact that, as a general rule, we have taken the view that, unlike cases of asylum, where legal aid will be in scope, in cases of immigration the number of cases that turn on a point of law are relatively low and the cost of funding them is one that we believe can be better applied and applied in a more focused way on cases where the needs are greater.

On the question asked by my noble friend Lord Avebury about the UNHCR letter, I do not recall seeing the letter and nor does my noble friend Lord McNally. However, it is my understanding that Mr Djanogly has not only seen it but replied to it and has done so in the terms in which I have replied to the debate. In those circumstances, I ask my noble friend to withdraw his amendment.