Draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019

Oliver Heald Excerpts

Tuesday 8th October 2019 General Committees

[Imran Hussain (Bradford East) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Roger. This is the first time that the Minister and I have been together in Committee, and I welcome her to her new role.

The plight of vulnerable unaccompanied and separated children—many fleeing truly desperate and dangerous situations around the world—who have sought safety, refuge and sanctuary in the UK should alarm us all and induce us to action. The Opposition unreservedly support today’s measure to bring those cases involving separated children back into the scope of legal aid. However, we must note not only that access to legal aid should never have been taken from this vulnerable group, but that the Government never intended to introduce today’s measure, and would never have done so if left to their own devices.

We must be clear that we are here this morning to consider the order not because the Government have, all of a sudden, had a change of heart and realised that the misery, pain and suffering that they imposed upon the children affected was too great, but because, as my hon. Friend the Member for Cardiff Central alluded to, of a legal challenge to their decision under the 2012 LASPO legislation to remove separated children from the scope of legal aid by the Children’s Society, an independent, third-sector charity, supported by lawyers, barristers and other legal professionals.

The Government have not introduced the draft order willingly and out of their own compassion; they did so because they have conceded to the legal case that was brought against them, fearing another damning defeat. Migrant children are among society’s most vulnerable groups, and unaccompanied children are even more so given the unique migratory factors at play and the particular vulnerabilities that they have as children without caregivers. Indeed, the Government’s own impact assessment for this statutory instrument states that these children have “distinct vulnerabilities” and needs. According to the previous special rapporteur on human rights of migrants, writing in his final report to the United Nations Human Rights Council in 2011, children who are unaccompanied or separated from their parents are “particularly vulnerable” to human rights violations and abuses at all stages of the migration process. Even the Children’s Commissioner for England has stated that children arriving unaccompanied in the UK are some of the most vulnerable that they deal with, due to the triple vulnerabilities they face.

Yet despite that, and despite the fact that children need access to high-quality immigration advice to regularise their status and protect themselves while being unable to properly represent themselves, the Government have kept unaccompanied migrant children out of the scope of legal aid for six years. Consequently, vulnerable children have been forced to represent themselves in legal cases, even though representing themselves properly is impossible due to their age, language barriers and vulnerability. That is a complex enough cocktail of factors before we even get on to the myriad immigration rules and the intricate nature of immigration law.

That has led to unaccompanied children now being at a heightened risk of having to support and represent themselves through legal processes and procedures, being more likely to receive an unfavourable legal outcome, being less likely than other children to be able to fund and apply for legal advice, and also being at increased risk of exploitation through the need to fund legal services, as the Children’s Commissioner for England has found. This is damming. It is no way to treat vulnerable children. It is no wonder that the Joint Committee on Human Rights has declared that

“the Government’s reforms to legal aid have been a significant black mark on its human rights record”

and that children more generally are being denied the use of the law to assert their rights and legal needs following the changes under LASPO.

Where free legal support does exist, many children are also restricted and frozen out of it due to the postcode lottery of legal support that sees most free legal advice concentrated in certain areas such as London and the south-east, while the number of law centres and other advice services is in decline across the whole country.

Together with the scale of the challenge faced by these unaccompanied children and the urgency of the need to address their inability to access legal aid in order to prevent abuses of their human rights, we are also deeply critical of the length of time it has taken the Government to lay the order before the House. A year went by between a Minister making a written statement conceding that removing separated children from the scope of legal aid was a reprehensible decision and the order being laid in order to reverse the changes under LASPO. Yet the Minister responsible at the time had declared in her written statement:

“The amendment will be laid in due course”.

When dealing with such sensitive issues and such vulnerable children, we should expect a speedier response, particularly considering that the Government are doing nothing new; they are simply restoring what had been taken away by LASPO. Will the Minister identify just how many separated children have been unable to access legal aid support to bring their cases to court since July 2018, when that written statement was published?

I expect that the Minister will response to that question by repeating the words of her predecessor, the hon. and learned Member for South East Cambridgeshire (Lucy Frazer), in that written ministerial statement:

“Legal aid for other immigration matters is available via the Exceptional Case Funding (ECF) scheme”—

something to which this Minister has also alluded today—

“which is intended to ensure legal aid is accessible in all cases where there is a risk of a breach of human rights.”—[Official Report, 12 July 2018; Vol. 644, c. 47WS.]

However, if the Government were anticipating breaches of human rights as a result of their changes under LASPO, why did they enact those changes in the first place? Is the ECF scheme sufficient, and has it been so, given that the Children’s Society and the review of the Bach commission on access to justice found that it had failed to provide a safety net and still left children vulnerable? The Government’s own figures show that thousands of children and young people would have been helped through the exceptional case funding. The reality is that the number helped through that fund is in the tens, not the thousands. Again, the Government have some serious questions to answer on that.

Although we will not oppose the order—

[Sir Oliver Heald (North East Hertfordshire) (Con)]

Well, no; you have just spoken in favour of it.

[Imran Hussain]

We will certainly not pat the Minister on the back and congratulate the Government, given that it has taken them more than a year to lay the order before the House after conceding defeat in the legal case, and almost a further three months to bring it forward for debate. During that time, inevitably, many more children have been unable to access the legal aid support that they have a right to, and many more children will have suffered as a result by being removed from the UK and returned to the desperate and dangerous conditions that they escaped from.

By putting off and delaying the order, the Government have neglected their duty of care to those vulnerable children and discarded their own humanity. We must never forget that, just as we must never forget that the Government removed those children’s access to legal aid to begin with, which put us in this sorry and deplorable situation. They cannot be proud of correcting such a colossal mistake and they must hang their head in shame that it has taken them so long to bring the matter back to the House.