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The Lord Bishop of Ripon: I am glad to be able to support the amendment moved by the noble Baroness, Lady Williams of Crosby, to which I have added my name. The amendment concerns the provision of legal aid and seeks to give proper legal representation at a bail hearing. I welcome the requirement in the Bill that reference shall be made to the court for the purpose of determining whether release on bail should be provided.

The whole matter of detention has aroused widespread dismay, especially the arbitrary way in which detention has been used. It has been difficult to determine on what grounds detention has been used. It

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is not clear why some are detained while those in almost identical circumstances are not detained. I therefore welcome the provision of these bail hearings.

As the noble Baroness, Lady Williams of Crosby, has argued, these hearings will meet the widespread concern in this area only if there is proper legal representation. In some cases this can be provided. Reference has been made to bodies such as the Immigration Advisory Service and the Refugee Legal Centre. I am glad to hear that there may be possible additional funds available to them. However, although they are publicly funded, the level of public funding is dependent upon decision of the Home Office. It is perhaps a somewhat curious situation that the Home Office can decide the level of support that is to be given to these bodies which are arguing the opposite case to the Home Office itself.

It is clear that at the present level of support these bodies cannot possibly meet all the demand. As has been said, they are already overstretched. The Asylum Rights Campaign estimates that possibly some 10 per cent of those who need to be represented at bail hearings could be represented by these publicly funded bodies. Therefore, the extension of legal aid to cover these bail hearings seems to be of great importance. It is clear that many, probably most, asylum seekers are not able to afford any kind of legal aid which they pay for. If legal representation is not available to an asylum seeker, it is difficult to see how his or her case is to be properly argued. Effectively, the detainee is unable to make a case. The noble Baroness, Lady Williams of Crosby, argued that such a person is likely to be in a particularly fragile condition. I make the additional point that most of us who have to argue a case before the courts in this country have some kind of support. We may belong to a professional organisation or a trades union. However, there is no such support available to an asylum seeker.

Therefore there must be a real question to be addressed in relation to the European Convention on Human Rights. As has been pointed out, Article 6 entitles all to a fair trial. Without proper legal representation it seems to me perfectly possible to argue that this right is not being provided. I am aware that there is a question mark about whether Article 6 should attend to asylum seekers, but I am also aware that a recent decision in the courts seems to indicate that in present circumstances it is likely to apply to asylum seekers. I quote from the Asylum Rights Campaign and the document Immigration Detention and Human Rights which states on page 35:

    "Assuming that the determination of asylum law issues can be within the ambit of Article 6, the present scheme may be wanting in so far as it appears to deny many applicants a right of access to the Courts".

The document further states that it is possible to argue that an applicant,

    "had been effectively denied access to a Court because legal representation was required ... and the applicant could not afford it and was not able to obtain legal aid".

I should be grateful to hear the Minister's view on how Article 6 of the convention is to be met unless there is proper legal representation at a bail hearing.

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5.30 p.m.

Lord Avebury: Although asylum seekers may not have--as the right reverend Prelate said--any trade union or professional association looking after their interests, they do have the services of the Association of Visitors to Immigration Detainees who do an excellent job in putting asylum seekers in touch with relevant organisations, including those which have been mentioned several times; namely, the IAS and the Refugee Legal Centre. Therefore people do visit detention centres and other places where asylum seekers are held and attempt to put them in touch with those who are capable of providing them with this legal representation. I thank the Home Office for providing a certain amount of support for these bodies which enables them to do their work.

All those who have looked at this subject have commented that the £5.9 million allocated by the Home Office for the provision of legal services by these two organisations in the year 1998-99 is grossly inadequate. It is already quite insufficient to enable them to deal with the appeals. They have only the capacity to look after a fraction of the asylum seekers who come to them for assistance. If the additional work of looking after the bail applications is now being placed on them, they will be totally unable to cope.

Even if, by some act of great generosity, the Home Office was able to assure the Committee that the money available was sufficient, I believe that it would still be difficult for these two services to expand the provision of advice to cope with the system of bail once it is introduced. It will take them quite a long time to recruit the necessary lawyers and so on. I would like to see the two organisations handling the bulk of the cases. I believe it is a fact--perhaps the Minister will comment--that because of their general competence and knowledge of the situation of asylum seekers, acquired through great experience of dealing with such cases, they score a much higher percentage of success in cases taken before adjudicators or the tribunal than run-of-the-mill solicitors. I do not mean to disparage solicitors; I say only that most solicitors do not have the detailed expertise that resides in these organisations. Therefore the organisations are more successful in appearances before adjudicators and tribunals. For that reason I think it would be highly desirable if they could cope with the bulk of the applications for bail which will be made after this Bill comes into force.

However, when we see what is said in the White Paper, one cannot be too optimistic. The White Paper states at paragraph 7.26,

    "The Government is determined to bring this use of legal aid under tighter control. It cannot be right that legal aid is so freely available at the taxpayers' expense to those whose claim to remain in the UK is unfounded".

How do we know that a claim is unfounded until it has been tested before the courts? It is not a good start for the Government to adopt the attitude that because some of the cases which will be presented for bail are not well

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founded we should look carefully at the amount of money that is being spent and try to force it down.

The matter was raised in the Second Reading debate, and the Minister was kind enough to write to me. I wish to quote from the Minister's letter to place it on the record. He wrote:

    "You also raised the issue of legal aid for detainees in connection with routine bail hearings and the funding arrangements for both the IAS and RLC. On the first of these points I am happy to reassure you that it has always been our intention to ensure that detainees could obtain free representation for routine bail hearings".

I am glad to have that on record. The letter continues,

    "We do not however feel that it would be appropriate for detainees to have access to legal aid. Given that there are already Government funded organisations who can give free representation in connection with appeals and related questions of bail under the 1971 Act, it seemed most sensible to provide a similar provision for routine bail hearings. As well as representation at the hearing itself, funding will be available for these organisations to visit the detainee to take instructions. Officials within the Immigration Service have consulted and met both organisations to discuss concerns about representation and funding. Clearly both organisations will need an increase in their grant in aid payments to enable them to provide a service to all detainees irrespective of where the person is detained".

That is very good as far as it goes. Can the Minister give an assurance not only that the money will be increased but that the two organisations which will be in receipt of these grants will be given the opportunity to build up their staff so that they can cope with the expected flood of applications for assistance with regard to bail hearings? If the RLC and ILS tell the Minister that they cannot immediately put themselves into gear to take into account all the cases that will be submitted, can the Minister assure us that at least those which they cannot accept for the time being will be the subject of legal aid for the interim period before they get into full gear?

Lord Hylton: I rise to speak to my Amendment No. 85, which is included in this group. It is most important that detained people whose cases have not yet been determined should have representation in addition to advice before a bail hearing. It is essential if, as often happens, those persons have no English or very poor English. All sides of the House--including the Government--are agreed on the need to keep the use of detention to the absolute minimum.

We are faced with a situation where we have three alternative amendments in virtually the same terms. One or other them may be better--perhaps the Government will express an opinion--but I urge the Government to accept at least the principle of the amendments and, if they wish, to come forward with a better form of words.

In any case, it must be made crystal clear that representation and advice in bail hearings should be available to asylum seekers as well as to other kinds of immigration cases. If this principle can be adopted there will be very considerable savings to the public purse in view of the very high cost of detaining a person for even as long as a week.

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