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.

--- Later in debate ---

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.