Border Security, Asylum and Immigration Bill

Lord Bach Excerpts

Committee stage
Monday 8th September 2025 Lords Chamber

Moved by

[Lord Bach]

137: After Clause 41, insert the following new Clause—
“Duty to make legal aid available to detained persons(1) The Lord Chancellor must ensure that civil legal services in relation to any of the matters set out in paragraphs 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 31A, 32 or 32A of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are made available to any person who is detained under a relevant detention power within 48 hours of the relevant time.(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 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);“relevant time” means—(a) the time at which a person is first detained under a relevant detention power, and(b) if a person has been released following detention under a relevant detention power, the time at which they are next detained under a relevant detention power.”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 immigration matters within 48 hours of their detention.

[Lord Bach (Lab)]

My Lords, I rise to move Amendment 137. I also declare my registered interest as the unremunerated, non-executive chair of the board of trustees of the Leicester Law Centre. I remind the Committee that I am also the co-chair of the All-Party Parliamentary Group on Access to Justice.

I thank noble Lords who have put their names to my amendment and others who have expressed their support. I also thank those from outside the House who have provided excellent briefing and particular assistance to me and other noble Lords.

In the Government’s own words, the UK’s asylum and immigration system is “broken”. In few areas is this damage more obvious than in the struggle people face accessing legal aid immigration advice, due largely to so-called “legal deserts”. This stems, of course, as so much does these days, from the drastic cuts to legal aid following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, always known as LASPO. Immigration legal aid is, in the words of the Public Law Project,

“an advice sector that has collapsed”,

leaving individuals

“adrift in an ocean of unmet need”.

The facts are fairly brutal. In June 2025, the Law Society estimated that 63% of people in England and Wales could not access a local immigration legal aid solicitor. The result is that 50% of claimants are unrepresented in asylum claims and appeals. In real terms, this means that almost 55,000 people are left without a legal aid representative at the time they need one.

This amendment is about that crisis. Its purpose is to place a duty on the Lord Chancellor to make civil legal aid available within 48 hours to individuals in immigration detention. This will ensure that people who are perhaps in fear for their life, safety and future are supported at a time of obvious extreme vulnerability and helped to navigate the confusing—to put it mildly—labyrinth that is the UK immigration system. Importantly, it will also save taxpayer money by facilitating better decisions earlier on.

Recent announcements have made early access to legal aid more pressing than ever. The first people have been detained as part of the Government’s pilot of the UK-France migration treaty, which facilitates expedited deportations. In addition, the Government are intending to expand the “deport now, appeal later” scheme. It has also been suggested that the Government plan to replace tribunals with independent adjudicators to speed up appeals. On top of this, we are seeing an expansion of the detention estate, such as the reopening of Campsfield House immigration removal centre in Oxfordshire, enabling more people to be detained.

The recent increases in immigration legal aid fees announced by the previous Lord Chancellor—now the Home Secretary—are very welcome. She recognised herself that the changes were designed only to

“stabilise the system and prop up the bits that are most likely to experience system failure”.

As the Institute for Fiscal Studies has confirmed, the increases will go nowhere near restoring the Ministry of Justice budget to pre-cuts levels, with the legal aid budget being 36% lower than in 2008.

The increases announced also do not deal with the unique and urgent challenges of accessing legal advice in immigration detention and are unlikely to prevent system failure in that context. This amendment is a further step in supporting the Government’s efforts to prop up the most broken part of our legal aid system.

I want to address directly why the Government and the House should support making legal aid available for migrants in detention. First, it is to ensure the sovereignty of Parliament; if people cannot obtain legal advice and challenge Home Office decisions when they may be unlawful, the laws passed by Parliament are, frankly, not worth the paper they are written on.

Secondly, this amendment supports the rule of law, of which access to justice is a vital part, as the Committee will surely agree. As the noble and learned Lord, Lord Neuberger, put it in 2017:

“Obtaining advice and representation does not merely mean that competent lawyers exist; it also must mean that their advice and representation are sensibly affordable to ordinary people and businesses: access to justice is a practical, not a hypothetical, requirement”.

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[Lord Hanson of Flint (Lab)]

I am grateful for that intervention. The points made by the noble Lord, Lord Pannick, are valid and I will do my best to examine them. Some of these issues are within the Ministry of Justice, not the Home Office, but I will examine those points in detail and make sure that we respond to those who have spoken in the debate and potentially put a note in the Library of the House accordingly.

I want to re-emphasise that the Government strongly believe that there is a good offer at the moment. That offer is available to all who seek it, and there is the potential for further advice if the case merits it and for us to examine how we monitor take-up. I will certainly look at the points that have been raised, but in the meantime, I ask my noble friend to withdraw his amendment.

[Lord Bach (Lab)]

My Lords, I start by reminding the Committee that in this very complicated and important Bill, this is the only amendment, and therefore the only discussion there has been, on the legal aid issue, so I do not apologise for the time this debate has taken. Everybody who has spoken, on all sides, has taken this issue seriously, as they ought to, because it is very serious, given the principles behind the rule of law. I was pleased to hear the noble Lord on the Front Bench repeat what I knew to be the case—that that side as well as this side, and all sides of this House, believe it important that the rule of law applies when non-nationals are detained, and that those people are as entitled as anyone else to have the benefit of legal advice. That is a big principle and the one behind this amendment, so I am glad it is accepted.

I am really grateful, in that no mover of an amendment could have enjoyed a more expert team of people speaking on behalf of the amendment—or, indeed, not on its behalf. Every contribution was important, not least of all that of my noble friend the Minister, who in his usual courteous way listened to the debate and answered it as well as it could be answered.

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Finally, it seems to be unwise and illogical to differentiate in circumstances of anti-terrorist actions between a UK citizen and those with limited immigration status. The risks are, of course, the same. Such powers as do exist to order the indefinite detention of non-citizens should surely apply to UK citizens as well.

[Lord Bach (Lab)]

My Lords, I am not sure that the amendment in my name ought to be in this group, but it has to be somewhere, and it probably does not deserve to be on its own. I hope your Lordships will forgive me for moving away from the topic. The only link I have is that my amendment would add something to the clause that we are discussing, but that is out of convenience as much as anything else.

There seems to have been some confusion between the Home Office and those who have been advising me about this amendment. I do not think I am in a position to speak to it until my noble friend and I have had an opportunity to meet and discuss it. It is not a long amendment, but it is quite an important one. It relates to what the guidance says on immigration bail and what it should say going forward. I do not want to say much more about it now. We have lots of business to complete today and I imagine the Committee has heard too much from me anyway, so I am going to leave it there.

I do not have any intention of moving the amendment, but I invite my noble friend to meet me shortly. It would be a short meeting just to discuss whether there has been some misunderstanding between the department and those who have asked me to table this amendment.

[Baroness Hamwee (LD)]

My Lords, the Committee does not need me to repeat what has been said about Clause 43 by the noble Lords, Lord Anderson and Lord Kirkhope. I agree more than I can say with what they have said. Tagging, curfew, and requiring someone to be or prohibiting someone from being in a particular place at particular times, et cetera—the noble Lord, Lord Anderson, has explained what “et cetera” could mean in this situation—are all huge interferences with life in practical, emotional and psychological terms. It basically means that you cannot live a normal life. For instance, how would an international student pursue a course with these restrictions?

As the noble Lord, Lord Anderson, mentioned, the Constitution Committee made a recommendation regarding this clause in its report on the Bill. We have had a response today from the noble Lord, Lord Hanson, saying that the person affected can make representations to the Home Office and apply for a judicial review, which the Home Office says in its letter would “provide appropriate scrutiny”. That may be the topic for a whole other, long debate. Noble Lords will understand that I do not feel—I say this personally, because the committee has not had an opportunity to discuss this yet—that that is an appropriate or particularly helpful response.

The comments—the assurances, perhaps I should call them—made by the then Minister for Border Security and Asylum have been referred to. I would be surprised if this detail had yet been discussed within the Home Office, but one never knows, so perhaps it would not be out of place to ask the Minister whether the change of various Ministers within the department means that these assurances remain in place. Is this still what the Government think? Would they be able to give some sort of undertaking to this effect? However, I do not think that would completely answer our objections to Clause 43.

Border Security, Asylum and Immigration Bill

Lord Bach Excerpts

Report stage
Monday 3rd November 2025 Lords Chamber

Moved by

[Lord Bach]

33: After Clause 41, insert the following new Clause—
“Duty to make legal aid available to detained persons(1) The Lord Chancellor must ensure that civil legal services in relation to any of the matters set out in paragraphs 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 31A, 32 or 32A of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are made available to any person who is detained under a relevant detention power within 48 hours of the relevant time.(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 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);“relevant time” means—(a) the time at which a person is first detained under a relevant detention power, and(b) if a person has been released following detention under a relevant detention power, the time at which they are next detained under a relevant detention power.”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 immigration matters within 48 hours of their detention.

[Lord Bach (Lab)]

My Lords, it seems appropriate that my Amendment 33 is being debated at the start of Pro Bono Week, given that it is the one amendment which deals with legal aid. At the heart of this amendment is the rule of law and the fundamental right of access to justice. As I was delighted to see in pursuing this amendment in Committee, these values are beyond party politics; they are universally accepted across the House and, I would like to think, across the country.

The purpose of the amendment is to ensure that people in the custody of the state for immigration reasons are provided effective legal advice and representation within 48 hours of being detained. At a time when we are seeing more accelerated processes—for example, the UK-France treaty—and the growth in the number of people being detained, I argue that this matter is more urgent than ever. Indeed, individuals flagged for deportation under the UK-France agreement must respond to the Home Office’s notice to remove them within seven days. As such, it is surely even more essential that legal advice is provided early and quickly, within 48 hours.

Briefly, I will remind the House of the basic problem of legal aid deserts in immigration. First, 60% of people in England and Wales are unable to access a local immigration legal aid lawyer; and, secondly, 55,000 people are unable to get an immigration legal aid lawyer when they need one. It is both the law and Home Office policy under all Governments that people should be able to receive legal advice before they are removed. There is no suggestion from any Front Bench that this should change. As such, the more effective the provision of legal advice and representation, the more effective the immigration system can become.

I want to develop three points that were raised in Committee. The first is the cost of the amendment; the second—and at the heart of the amendment—is whether the current system for providing legal advice and representation in immigration detention is working; and the third is the cost savings that will flow from improving the availability of legal aid lawyers.

First, in our Committee debate, some Peers, and the Minister himself, questioned the cost of accepting the amendment. I underline that the amendment does not expand the scope of eligibility for legal aid. Anyone who receives legal aid due to this amendment was already entitled to it. This amendment is about improving the speed and quality of that advice, which, frankly, is woeful at present.

We always understood that the amendment was, in effect, cost-neutral to the legal aid budget; it would not increase or decrease legal aid eligibility. I am grateful to the Minister for confirming this understanding in a letter that noble Lords will no doubt have seen, and which has been placed in the House of Lords Library. This is a targeted amendment meant to help the Government fix the most broken part of the legal aid system, which is liable to collapse without some fairly urgent intervention.

Secondly—and, as I say, this is at the heart of the amendment—I want to address whether the current system for providing legal advice and representation in immigration detention is working effectively. I will remind the House of the basic system. There are two schemes for providing legal advice in immigration removal centres and prisons: the detained duty advice scheme, or DDAS, and the telephone legal advice service, or TLAS.

Research going back more than a decade reveals that, since the cuts in 2011 that the House knows about well, there has been a sharp drop in people accessing the schemes I have just mentioned. A survey this year by Bail for Immigration Detainees found that only 27% of respondents held in immigration removal centres had a legal aid solicitor. This contrasts with 75% pre the LASPO Act.

Crucially, this is not because people do not want legal aid and help but because they cannot access it. In my work on this amendment, I was fortunate to speak to many immigration experts and civil society organisations, to whom I owe a great deal for their help in preparing it. These experts and civil society organisations provided many practical examples of the government schemes failing to provide the very basics of access to justice. For example, I was told of a victim of human trafficking who simply stopped hearing from his DDAS lawyer after weeks of working together. He met five other lawyers, none of whom had the capacity to take on the case. It took 15 other referrals by Bail for Immigration Detainees to secure a legal aid lawyer.

Another example is of a case concerning a vulnerable adult at risk, with serious mental health needs, who tried five times to secure a lawyer through DDAS over two months. He could not secure one and had to be supported through a charity outside the scheme. He was later granted bail by the Home Office, perhaps indicating that this was not—as some undoubtedly are—a meritless claim. The House may hear of other egregious examples during this debate.

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[Lord Bach (Lab)]

My Lords, I thank the Minister for his response and for what he kindly offered at the end. I particularly want to thank all those who have spoken in support of this amendment. I hope the House will accept that they carry with them a huge amount of experience in this area and should be listened to with great care.

I am afraid there is a legion of examples where the system is not working as well as the Minister suggested it was from the information he has received. The classic example is the one that the noble Baroness, Lady Ludford, mentioned, which refers to the first group of asylum seekers to be detained under the treaty with France. That is not a treaty I object to—in policy terms, I agree with it—but in this particular case, they were allowed seven days to make their response and representations. A seven-day notice was served on them. Presumably, they were entitled, as anyone else in their position, to the 30 minutes of free advice. However, it seems not one of those men received any legal advice in the seven-day period. Two were apparently—I emphasise “apparently”—informed that they could not have legal advice, and only two days after the seven-day period had run out was the serious error put right with an additional advice shift.

As I say, this is not an attack on the treaty or what it is trying to do. It is an attack, if I may use that phrase, on the system that allows this to happen. The speeches that were made in support, particularly that of the noble Lord, Lord Carlile of Berriew, should make the Government think carefully about whether this system is working as well on the ground as they think it is. I hope all the government departments involved—namely, the Home Office and particularly the Ministry of Justice—will look at the system, see how it is working, keep an open mind and make changes for the better in due course.

In the meantime, I am most grateful to the Minister for his offer of a meeting after this debate is over. I will certainly take that up and I hope others will as well. I never had any intention of calling a Division on this issue. The idea behind it was to try to persuade the Government that there is a real problem here. I hope that we have managed to do that in this debate. I seek permission to withdraw my amendment.

Amendment 33 withdrawn.

Border Security, Asylum and Immigration Bill

Lord Bach Excerpts

Report stage
Wednesday 5th November 2025 Lords Chamber

[Lord Hanson of Flint (Lab)]

On that note, I will try to move Amendment 38 as quickly as possible to help support my noble friend. This group includes three government amendments to Clause 43. On this occasion, the Government have listened to debates that have taken place in the House. We have carefully considered recommendations in the JCHR report and listened to representations from the noble Lords, Lord Jackson and Lord Kirkhope of Harrogate, and the noble Baroness, Lady Hamwee. In the light of this, government Amendment 40 does not alter the original purpose of Clause 43 but instead sets out the limited circumstances in which an individual could have conditions such as electronic monitoring and curfews placed on their leave to enter or to remain. This includes cases where the Secretary of State considers that the person poses a threat to national security, public safety or has been convicted of a serious crime or offence.

The powers in Clause 43 are therefore in place to protect the public and to meet our obligations under domestic and international law. The clause will end the disparity in powers available to protect the public in respect of immigration bail and conditions of leave to enter or remain. I know that the Government have listened to the points made in Committee and I will therefore move the amendments on their behalf.

I note that my noble friend Lord Bach has tabled Amendment 41. I will respond to any points he raises once he has had an opportunity to contribute to the debate. I beg to move.

[Lord Bach (Lab)]

My Lords, the Minister is quite right. I have a short but important amendment that is very fittingly in this group. It is unusual in that lawyers who act in immigration cases and the Home Office itself are at one on the issue. Both sides agree that in paragraph 9(1)(a) of Schedule 10 to the Immigration Act 2016, “specified in the condition” should be widely interpreted to mean

“that is known at the time of the grant or variation of immigration bail, or”—

and this is the important point—

“an address that is yet to be specified”.

This has been the Home Office’s interpretation of that paragraph for a number of years. There is evidence from 2018 that that is the Home Office’s view. It has occurred in cases, and guidance was issued as recently as this summer. In my submission, it is a practical and sensible way of interpreting it.

Why, then, does this amendment, with its proposed change of words in paragraph 9(1), need to be laid and discussed in your Lordships’ House at all? The reason is that there is a Court of Appeal case in Northern Ireland called Bounar, which was decided not many years ago, in which their Lordships in that court took a different view and decided on a much stricter interpretation of the words of the schedule: for a person to be given bail by the Secretary of State, they must already have been granted immigration bail—and here are the words that matter—with a condition to reside at a specific address. So one has on the one hand the decision of the court in Northern Ireland and, on the other, I submit, a practical, sensible way of dealing with a situation that arises more often than the House might think. The Home Office has dealt with it in that way, as have the lawyers on the other side.

Why does it matter that there are these two conflicting decisions about and ways of looking at this element of this schedule? It matters, first, because it is unsatisfactory in principle to have legislation that has been interpreted quite differently in the courts and in practice in government when dealing with this issue. Secondly, who knows what situations may arise where a court, for example, would prefer the Northern Ireland precedent. Thus, a bail claimant—someone who the Home Office wants to give bail to—might lose his or her bail merely because, for good, practical reasons, the specific address is not yet known. This is what happens in a number of cases.

There are already significant delays between grant of bail in principle and people being released to Home Office-sourced accommodation. In recent months, 21 people have faced a delay of more than three months. The Home Office wanted to bail them and was happy to, but there was no specified address at that moment so everything had to start all over again. Without amending the statutory provision relied on in the case of Bounar, every individual would need an address provided by the Secretary of State prior to applying for bail, resulting in wasted places and longer delays. My invitation to my noble friend, to whom I very grateful for having taken the trouble to meet me on this issue, is to accept this amendment to the schedule. I very much hope that he feels that he can do that today.

[Lord German (LD)]

My Lords, I shall address the issue that the noble Lord, Lord Bach, just raised. It seems to me, from having visited Harmondsworth IRC, met people who are ready for bail and seen them held back because of the bureaucracy, that what is being described is a bit of bureaucracy that ought not to be there. I hope the Minister will be able to say that he can deal with this matter. Unfortunately, it appears that it has to be in statute rather than simply a ministerial decision. Perhaps he will tell us how best this matter can be dealt with swiftly, because it is in no one’s interest for people who have the right to immigration bail to be kept at taxpayers’ expense in immigration detention when they need not be there.

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[Lord Hanson of Flint (Lab)]

I am grateful to noble Lords for their contributions to this short debate. The government amendments were tabled in response to requests in Committee, not just from the noble Baroness, Lady Hamwee—who I hope to see back in her place as soon as possible—but the Joint Committee on Human Rights, the noble Lord, Lord Anderson of Ipswich, and others, including Members from the Opposition Back Benches and Front Bench. I hope I can reassure the noble Lord that we have taken all those matters into account in bringing forward the amendment today.

On Amendment 41, tabled by my noble friend Lord Bach, I welcome the opportunity to discuss this issue with him outside the Chamber and get clarification on the points he is pressing me to examine. I hope that the explanation I give him now will meet his points of concern, but we will see whether that is in fact the case. We believe that the amendment, while testing the Government, is ultimately dealt with in other ways, and would make no material difference to the operation of the legislation. The Bounar case, which my noble friend mentioned, pre-dated changes to our bail accommodation guidance. The Northern Ireland Court of Appeal decision was handed down in December 2024, and the Home Office guidance was republished on 31 January 2025.

There is a key extract from the guidance that I want to read to my noble friend, so I hope the House will bear with me:

“Where an individual is not subject to a residence condition, but they are applying for accommodation under Schedule 10, they may request for their bail conditions to be varied to include a residence condition on the BAIL 409 application form. Bail conditions can be varied to include a residence condition at an address yet to be specified, where the individual does not have a residence condition imposed and a refusal of accommodation would be in breach of their Article 3 ECHR rights”.


The key point for me in that extract is that in the case of Bounar the Northern Ireland Court of Appeal found that the person could not be given bail accommodation because they did not have a bail residence condition. Although that is technically correct, I believe and hope that our guidance—and I hope this satisfies my noble friend—now makes it clear that bail can be varied to impose a residence condition that will enable a person to be granted bail conditions, where to refuse to do so would breach the person’s human rights under Article 3. The key point that I emphasise to my noble friend is that our guidance is now clear that the situation in Bounar should not arise. If the person requires a bail condition in order to prevent an Article 3 breach, we will create one rather than refusing the application, and the courts can now apply that, as our guidance makes clear.

I am genuinely grateful for the discussions that I have had had with my noble friend outside both Committee and Report. He has raised these issues with me regarding the Bounar case as recently as today, outside the Chamber, prior to Report commencing. I have tried to give him an answer based on our legal interpretation of the understanding of that case in relation to our guidance, and I hope that, with that clarification, he is able to reflect on that, if not today then later in Hansard. I am happy to have further discussions with him about the application outside the Chamber at a later date, but I hope that the explanation I have given meets the objectives in his amendment, and I ask him not to press it.

[Lord Bach (Lab)]

My Lords, I am grateful to the Minister, as always, for his response. I cannot hide that I am disappointed by what he had to say, but I have not yet had the chance to read it in Hansard. I am sure I will want to take up his remarks with him, but I will not be moving my amendment.

[The Deputy Speaker (Baroness Fookes) (Con)]

For clarification, it is the Minister, with the lead amendment, who must now seek to press his amendment, if he so wishes.