Illegal Migration Bill

Lord Bach Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, Clause 55 will ensure that individuals who receive a removal notice under the Bill have access to free legal advice. The clause at present applies only to England and Wales. In Committee, the noble Lord, Lord Ponsonby, properly asked what the position is regarding Scotland and Northern Ireland. The Scottish Government advise that legislative provision is not required to ensure persons issued with a removal notice can access free legal advice in Scotland. Legislative changes are required, however, in Northern Ireland. Amendment 154 ensures analogous provision in Northern Ireland to that already applicable to those seeking legal advice in England and Wales. It is simply an extension to Northern Ireland of the provisions of the Bill. That is the content of government Amendment 154. The noble Lord, Lord Bach, has an amendment in this group and I defer to him at this point. I beg to move.

[Lord Bach (Lab)]

My Lords, I will speak to my Amendment 155, which is in the same terms as it was in Committee. I am extremely grateful to the noble Baronesses, Lady Ludford and Lady Prashar, and of course to the noble Lord, Lord Carlile of Berriew, for putting their names to this amendment and adding some lustre to it. I am also grateful for a superb briefing note from Bail for Immigration Detainees, ILPA and the Public Law Project.

In my view, ensuring that those who are detained have legal advice at an early stage is of fundamental importance. Obviously and above all, it is important to the detainees themselves, but it is also important to the reputation of our much-vaunted legal system. I ask the House to think about it for a moment: the proposition that, in our country, any person, whether adult, child, pregnant woman or victim of trafficking, can be deprived of their liberty and, at the same time, of proper legal advice is horrific, unconscionable and unconstitutional.

Clause 55 provides for insufficient access to civil legal services. It is concerned with free legal advice and representation only in relation to removal notices. It makes access contingent upon receipt of a removal notice and does not ensure that the necessary services will be made available shortly after a person has been detained. I remind the House that there is no set timeframe in the Bill for the Home Secretary to serve a removal notice under Clause 7. It is therefore not unrealistic to suggest that an individual could be left to linger in detention for days and even weeks before a removal notice is served by the Home Secretary and thus before they are able to access legal aid under Clause 55. Accordingly, the Bill does not provide for people trapped in its provisions assurance of access to free civil legal services before a removal notice has been served on them.

Clause 55 also does nothing to address the reality that it is practically impossible for many people to access legal aid under existing entitlements. There are, as I think the House knows, vast numbers of unrepresented individuals seeking asylum and in detention due to the current unsustainability of and lack of capacity within the immigration and asylum legal aid sector.

Our Amendment 155 introduces a new clause—a duty to make legal aid available to detained persons, which would address this issue in England and Wales by supplementing what the Government intend to achieve in their Clause 55. It would place a duty on the Lord Chancellor to make civil legal aid available to detained persons in relation to already in-scope judicial review and immigration matters, and suspensive claims, within 48 hours of their detention. This is crucial, given that the Bill gives the Home Secretary wide powers to detain families indefinitely, to detain children who are alone and to detain vulnerable people such as pregnant women, while also placing a duty on the Home Secretary to remove them, with short timeframes to make suspensive claims with compelling evidence to prevent such removal.

I hardly need to remind this House of Parliament that the provision of legal aid is a key component of ensuring the constitutional right of access to justice—itself inherent in the rule of law. The courts have repeatedly upheld the principle that a failure to provide legal aid can amount to a breach of fundamental rights. Legal aid is essential to ensure that people without means can secure effective access to justice and redress.

So why is this amendment needed? As I think the House knows, legal aid was, in effect, decimated in this area of law by the legal aid cuts of 2013. Most non-asylum immigration matters are excluded, which has damaged the entire immigration and legal aid sector and the ability of everyone, including individuals seeking asylum and those in detention, to access reliable, quality legal aid immigration advice. Immigration law is highly complex and extremely difficult, if not impossible, to navigate without a lawyer.

It is unrealistic to believe that individuals seeking asylum, who have just arrived in the UK and who may be traumatised or vulnerable and who may speak little or no English, can understand our complex laws and make effective representations without professional legal assistance. As stated by Lord Justice Underhill in last week’s decision on the Rwanda scheme, cases where decisions are fair and where there has been no access to legal assistance are “likely to be exceptional”. I pray that in aid of this amendment. Amendment 155 would help to secure timely access to legal assistance, which is crucial to the fairness of decision-making.

--- Later in debate ---

Tabled by

[Lord Bach]

155: After Clause 55, insert the following new Clause—
“Duty to make legal aid available to certain detained persons(1) The Lord Chancellor must secure that civil legal services in relation to—(a) a suspensive claim within the meaning of section 37(2) of this Act, and(b) any of the matters set out in paragraphs 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 31A, 31C, 32 or 32A of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012are made available to any person who is detained under a relevant detention power within 48 hours of the day on which they are first detained under that power.(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(2) or (2C) 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).”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 judicial review and immigration matters within 48 hours of their detention.

--- Later in debate ---

[Lord Bach (Lab)]

My Lords, as far as Amendment 155 is concerned, I thank all noble Lords who have spoken in this fairly short debate. The person who took much the longest was me, and I am not going to make any apology for that because this is an important subject in the context of the Bill.

Still, I thank everyone for their comments, not least the Minister himself, who I personally believe is quite sympathetic to the ideas put forward in this debate. I do not want to embarrass him unduly by going on, but he has been very helpful in discussions outside the Chamber. His contribution today was a little harsher than I had hoped, but we will see what the consultation does. I must say that much more active work will be needed by the department, perhaps over a period of time, before we get to a satisfactory position.

On parallels with other, existing schemes, it is important to realise that, as I understand it, many of them involve half-hour telephone conversations. It will not surprise the House to hear that half-hour telephone conversations are not satisfactory for people who do not speak good English and are perhaps extremely vulnerable at the time. Such conversations are not really enough and, as I say, many of them are on the phone rather than face to face.

Something the Government will have to think about is that the new establishments that we hear will house many of those who are detained, if and when the Bill becomes law, will be quite strange places, such as barges and places like Scampton. Getting legal advice into those places—and face to face is pretty important here —will cause quite a lot of problems for the Government. It will involve extra resource, as I think the Minister understands.

Tempted as I would normally be to test the opinion of the House, I appreciate that we are here pretty late after a full day, and I do not think the House would thank me for dividing it at this stage. That is not to say for a moment that the issues we have been debating for the last few minutes are not crucial to what sort of country we are. Detaining individuals—the state depriving people of their liberty—is an issue that this House has always taken incredibly seriously. Even though I am not going to press the amendment, and while I will not say that I am warning the Minister, he will not be surprised to hear me say that we will be coming back to this issue and watching very closely over the next few months to see how it develops.

Consideration on Report adjourned.