Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Wallace of Tankerness Excerpts

Wednesday 18th January 2012 Lords Chamber

[Lord Bach]

In general terms, I am sure that the noble Baroness is right.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the noble and learned Baroness, Lady Butler-Sloss, indicated when speaking to her amendments that they were the last two that she had in this section. None the less, in dealing with vulnerable people, their importance was obvious by the end of the debate that they engendered. The more that I have learnt about human trafficking over the years, the more appalled and outraged I am by some of the abuses that go on. Various conventions have been acknowledged, such as the Council of Europe Action against the Trafficking of Human Beings, to which the previous Administration quite properly signed up.

Amendments 61A and 90A intend to bring into scope particular areas of legal aid for victims of human trafficking. Amendment 61A would give the victims of such trafficking legal aid for immigration matters as well as for damages in compensation claims in relation to the experiences of trafficking before the Criminal Injuries Compensation Authority, the civil courts and the Employment Tribunal. Amendment 90A would allow for publicly funded advocacy for victims of human trafficking in cases that they bring before the Employment Appeal Tribunal.

On the immigration element of Amendment 61A, the first point to make is a general one that was reflected in one or two contributions. In many cases, victims of trafficking want to return home. In some cases, though, they wish to claim asylum, and, for that, legal aid will remain. It is important that that point is made clear. There may be other occasions where they need to remain in the country, perhaps to help police with their investigations or on compassionate grounds if there are compelling reasons for that. There are provisions for victims to remain in these circumstances.

As the Committee will know, the Government provide funding of some £2 million per year to the Salvation Army to provide support to victims of trafficking so that they can rebuild their lives. This includes signposting and informing victims of their rights to stay in the country, whether in the short or long term. However, we believe that specialist legal advice in respect of immigration on top of that is not required. Nevertheless, the Salvation Amy and its subcontractors signpost and inform victims of their legal rights.

Government funding also helps to inform people about their options regarding compensation as a result of trafficking, whether through the Criminal Injuries Compensation Authority, the civil courts or the Employment Tribunal. Compensation orders, too, can be made at the end of a criminal trial.

For the civil routes to compensation, which a number of contributions have revolved around, the Government made it clear in their response to the consultation on legal aid reform that the route for funding in these cases would be the exceptional funding scheme, and published guidance will reflect that. In fairness, the noble Lord, Lord Bach, acknowledged the Government’s position, although he did not agree with it, and it would be unfortunate if this debate gave the impression that all avenues of funding have been cut off or withdrawn.

The noble and learned Baroness, Lady Butler-Sloss, asked whether it would be possible to make claims against traffickers and whether those claims would be funded. The answer is yes—they are capable of being funded through exceptional funding. This is because the right to legal support for compensation claims, as set out in the convention, is with reference to the requirements of Article 6 of the European Convention on Human Rights and is therefore very much in line with the exceptional funding test. It is important to recognise that there is a route for funding for people who find themselves in these circumstances.

Amendment 90A would allow for advocacy for victims of trafficking in employment appeal tribunals. The noble and learned Baroness raised the question of the consultation on visas for domestic workers, a point picked up by my noble friend Lord Avebury. My understanding is that a Home Office consultation has taken place; as far as I am aware, no response has yet been published, but I will certainly ask officials to ensure that the comments made on that important point are drawn to the attention of those at the Home Office who are dealing with the consultation.

With regard to the Employment Appeal Tribunal, it has been observed that some very large awards can be made. Again, however, such cases would in principle be funded through the exceptional funding scheme if required by not only the European Convention on Human Rights but European Union law. The exceptional funding scheme is available in these cases—it is not the case that support has been withdrawn. There are other means of support for those who have been trafficked. As I have said, the Salvation Army has made efforts to support and assist them. Therefore, I ask the noble and learned Baroness to withdraw her amendment.

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[Baroness Gale]

My Lords, I speak in support of the amendments and thank my noble friend Lady Gould for speaking to this group in such a comprehensive manner. What we are discussing today is not whether we should have more or fewer immigrants; rather, the matter at hand is whether legitimate migrants are able to exert their rights.

Amendments 62 to 67 work together to extend the availability of legal aid for immigration matters. The Government have proposed that legal aid will be available to a person seeking indefinite leave to remain after suffering domestic abuse by their partner. Furthermore, their partner must be present and settled in the United Kingdom. My noble friend Lady Gould's amendments would extend that to someone who is seeking any form of leave to remain, and their partner would not necessarily need to be present and settled in the United Kingdom. So they only fractionally extend the coverage to ensure that all women who suffer domestic abuse and try to escape will be given the protection they need. A failure to accept the amendments would mean that some women might feel trapped in an abusive relationship, wanting to escape from it but knowing that, because they slip through the Ministry of Justice's legislative cracks, they would not get the help that they would need.

Amendments 69A and 70A would extend legal aid to immigration matters relating to entering or remaining in the country for three classes of persons: those under 18; those who have been subjected to gender-based violence; and those unable to represent themselves due to a physiological or psychological condition. Amendments 69B and 70B would extend legal aid to immigration matters relating to entering or remaining in the country for those under 18.

We support all the amendments. I am pleased that my party's position is that immigration matters should remain in the scope of legal aid to the same extent that they are now. That forms part of our overall commitment to keeping social welfare legal aid fully in scope by re- tendering criminal legal aid contracts in line with our 22 March 2010 paper, Restructuring the Delivery of Criminal Defence Services. Unamended, the Government's approach means that significant cracks will form in the provision of immigration law legal aid. Many claimants with very good cases will fail to exert their rights legitimately because of the current proposals’ failures. My noble friend Lady Gould's package of amendments clearly demonstrates one of these cracks.

A failure to accept the amendments might mean that people could be forced into accepting domestic abuse for fear of losing their children, their friends and the life they live in the United Kingdom. It could be regarded as a charter for abusers because of the difficulties that women will face in removing themselves from an abusive relationship. It will lead to chaos in the immigration system. Legal aid advice and representation oil the system, allowing interactions to occur professional to professional. Our system, which some would regard as creaking under the weight of poor decision-making and a high volume of cases, cannot afford this kind of radical deprofessionalisation.

I have one final, quite specific question for the Minister. Will Clause 9 funding be available for vulnerable children in complex immigration cases? The Government’s long-standing position is that Article 6 of the European Convention on Human Rights does not apply to immigration, and I believe that that would prevent these cases ever being funded under Clause 9. This ties in somewhat with Monday’s debate on the needs of young people.

I urge the Minister to listen to what has been said tonight. Earlier, the noble Lord, Lord McNally, proved to be in a listening mood when he replied to the debate on domestic violence and child abuse. The aim of this amendment is perhaps of a similar nature in that it deals with women suffering from domestic abuse. Therefore, I urge the Minister to continue in the vein of the noble Lord, Lord McNally, this afternoon when he said that he was prepared to listen—and indeed it seemed to me from his responses that he was listening. I hope that the Minister will continue to listen tonight. Noble Lords who have put their names to this group of amendments should be confident that if the Minister does not listen, we would support the amendments if they were brought forward at a future date, and we would take our own position on the provision of immigration law legal aid.

[Lord Wallace of Tankerness]

My Lords, first, I thank the noble Baroness, Lady Gould of Potternewton, for introducing the amendments, and I thank the noble Baroness, Lady Gale, who encouraged me to listen. I hope to indicate later that in some respects we have already been listening.

Amendments 62 to 67 propose to make an amendment to paragraph 25 of Part 1 of Schedule 1. This paragraph provides for those applying for indefinite leave to remain on the grounds that they have limited leave to enter or remain as a partner of another individual present and settled in the United Kingdom and that the relationship has broken down permanently as a result of abuse. Such matters are to be within the scope of legal aid. The arguments regarding partnerships which have broken up and the power relationship that can result were very well made.

Amendment 62 seeks to extend the scope of legal aid to those applying for “leave to remain” as opposed to “indefinite leave to remain”. Amendment 65 seeks to remove the need for a person’s partner to be present and settled in the United Kingdom, and Amendments 66 and 67 are consequential amendments, removing the definitions of “indefinite leave to remain” and “present and settled in the United Kingdom”. We do not believe that these amendments are necessary. The provision as currently worded in the Bill is directly linked to Rule 289A of the Immigration Rules, which deals with applications for indefinite leave to remain by victims of domestic violence on a limited spousal visa. This is deliberate: other than via the Immigration (European Economic Area) Regulations 2006, the appropriate route for someone to apply would be through the Immigration Rules. Where the person’s partner has only a temporary form of residence, it is not clear that they intend, or indeed whether they would have a right, to reside more permanently in the country. As such, we do not believe that these cases require funding.

Amendments 63 and 64 relate to partners of EEA nationals, known as third-country nationals, and are similar to an amendment raised in the House of Commons—I think that the noble Baroness mentioned the debate that took place there either in Committee or on Report. These amendments are intended to bring within the scope of civil legal aid services applications from partners of EEA nationals who require confirmation of their right to reside in the United Kingdom where their relationship has broken down permanently as a result of domestic violence, as well as any subsequent appeal. EEA nationals and their family members, if from a third country, have a long-term right to reside in the United Kingdom if they are economically active or are able to support themselves without becoming an unreasonable burden on public funds.

The Immigration (European Economic Area) Regulations 2006 make provision for family members to remain in the United Kingdom; that is that their right to reside can continue if they cease to be a family member of an EEA national because their marriage or civil partnership, on the basis of which they are a family member of an EEA national, breaks down as a result of domestic violence. The application is different for those people who apply for indefinite leave to remain under the domestic violence provisions in the Immigration Rules, where the rules that apply are different.

Nevertheless, as has been pointed out, and as my honourable friend, Mr Djanogly, has said, we will look further at this point. I indicated earlier that we believe that some of the initial concerns raised are covered and we do not believe that the amendments are necessary. However, it is only reasonable, in the light of what was said by the noble Baroness, Lady Gale, that we ensure that we have addressed the points which she made in that regard.

Amendments 69A and 70A deal with making legal aid available to certain categories of vulnerable persons for immigration matters. I think there are another two amendments in this group which have not been moved but I shall try to deal with them. Part of Amendment 70A —that which seeks to cover those persons who have suffered domestic violence at the hands of spouses or partners—is already covered by the Bill at paragraph 25 of Part 1 of Schedule 1, where the application for indefinite leave to remain in the United Kingdom meets the requirements of that paragraph. We decided that, on reflection, the issues faced by those facing domestic violence were such that special provision should be made for them. Without legal aid, there is a real risk that such people will remain trapped in an abusive relationship for fear of jeopardising their immigration status. Furthermore, they have only a limited window in which to submit their immigration application when they leave their partners and after that period their access to public funds ceases. However, these factors do not apply to other categories of vulnerable persons that have been suggested in the amendments.

As we have indicated on numerous occasions in these debates, we believe that we should target legal aid on those who need it most. In general, we want to prioritise asylum cases, which can be about life and death, over immigration cases. I do not deny for a moment the importance of such cases to the individuals concerned, but they do not raise the same issues.

Children will not normally be applicants in asylum and immigration cases, as they are usually considered as part of their parents’ application. Child applicants are much more likely in asylum cases, for which, of course, legal aid will remain available. Most immigration claims are straightforward and, in the majority of cases, we expect the child, with the help of a guardian, to be able to complete the process without recourse to specialist help. The noble Baroness, Lady Gale, asked about children's applications, their interaction with Article 6 and whether exceptional funding would be available. The answer, as I think she anticipated, is that it would not. The position in the Bill is that exceptional funding should be granted only where it is required by law; that is that denying legal aid would risk a breach of an individual's rights under EU law or the ECHR. Case law has been consistent: that immigration cases do not, as she indicated, involve such a determination and, as such, exceptional funding would not be available.

I have sought to try to give some reassurances and I urge the noble Baroness, Lady Gould, to withdraw her amendment.

[Baroness Gould of Potternewton]

I thank the Minister for his reply. In some ways, I am partially encouraged by the reply but I also find it extremely complex. I need to go away and read it very carefully and then I shall be able to answer whether I am satisfied or not. In the light of that, I beg leave to withdraw the amendment.

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[Lord Bach]

My Lords, the noble Lord, Lord Avebury, has made a very powerful case for the amendment that he has so ably moved. We support it from the opposition Front Bench, very much for the reason that he was arguing in the latter part of his speech: the complete mismatch between being allowed to get legal aid to get advice on detention but not being able to get any advice as to the underlying reasons why an individual is detained.

The Government are quite right to have recognised that legal aid is crucial when an individual’s liberty is at stake, and we see that principle in existence here in their preparedness to allow someone who is in detention to get legal advice to challenge that detention. However, how on earth can they challenge that detention—and this is the point the noble Lord was making—without also getting legal advice as to the underlying cause of that detention? It does not look as though this could work properly in practice. The Government are trying to hold fast to two principles: that an individual’s liberty demands legal aid advice; but, when that matter is looked into, the reason behind their loss of liberty cannot be advised on in the same way. The noble Lord, Lord Avebury, is quite right: some really serious mistakes will go uncorrected if this provision goes through.

To make the point absolutely clearly—and this is the point that ILPA seems to have made—challenging immigration detention is inextricably linked to challenging the immigration decision that forms the justification for detention. If the Government want to help those detained wrongly—presumably they do; no one wants to have people detained wrongly—it is pretty self-evident that they should deal with the underlying problems. A failure to do so will simply mean a return to detention—a complete waste, frankly, of public money.

Although I have been brief, we on this side believe that the noble Lord, Lord Avebury, and the others who signed the amendment have a very good point. I would like the Minister to explain to the Committee how these provisions can actually work in practice. It looks as though there is a serious mismatch between what they will and will not allow legal aid for in this field.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Avebury for moving his amendment, which relates to issues of immigration and detention. Amendments 68 and 70 would bring into scope of legal aid several legal services in relation to rights to enter and remain in the United Kingdom for anyone who is liable to be detained under the immigration powers.

As a preliminary to his arguments my noble friend suggested that, if the Government wished to save money, we should tackle the UKBA’s decision-making. The UKBA already has a wide-ranging improvement programme under way to continue to improve the quality of its decision-making in asylum and entry claims and in points-based systems, although I would be the first to acknowledge that in any programme like that there is always scope for improvement.

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[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.

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[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.

[Lord Thomas of Gresford]

I am grateful for the assurance that the Minister has given that he will look at this matter again and consider what the attitude of the Government should be in complex cases involving family reunification.

I would point out that, on the question of claiming asylum, the Government said in their response to the consultation:

“Applications to join family members are treated as immigration cases, and are generally straightforward because they follow a grant of asylum”.

That is what my noble and learned friend told us just now. The Government’s response went on:

“Respondents argued that these cases are akin to claims for asylum … if a person wishes to claim asylum it is open to that person to do so either as a dependant of a primary asylum claimant or to do so in his or her own right. Legal aid for any such asylum claim will be in scope”.

As my noble friend Lord Avebury has said, the family members with which this amendment is concerned are outside the United Kingdom and cannot claim asylum unless they get here. The only way that they can get here would be through some hazardous and clandestine journey to get to this country and make a claim. It would be unlawful under the Immigration Act 1971 for a person in this country, including a person who has been granted asylum, to assist them in any way but if they can get here and claim asylum, they then apparently get legal aid to fight their claim. That seems ludicrous. I am sure that my noble and learned friend, in considering the matter further as he has promised to do, will take that into account, but for the moment I beg leave to withdraw this amendment.