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After Clause 49, insert the following new clause--


(“ . The Lord Chancellor shall, by order, extend the provision of legal aid, to cover bail hearings under the Immigration Acts.").

The noble Lord said: My Lords, Clause 49 provides that the Secretary of State may, with the approval of the Treasury, make grants to any voluntary organisation which provides advice or assistance to detained persons under this part of the Bill. What the amendment seeks to do is to extend legal aid to private practitioners, solicitors and, through them, barristers.

The need for this is widely understood. To be fair to the Government, I must point out that they have extended legal aid to appeals of various kinds under the impending legislation. It is also fair to point out that as recently as the 13th of this month the noble and learned Lord the Lord Chancellor wrote to my noble friend Lady Williams of Crosby to say that the

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department is currently looking at whether to extend legal aid to bail applications and to immigration legislation generally and under this Bill.

According to the letter, the new contracting arrangements for immigration and asylum legal aid work is apparently coming into effect next January, which is not far off. The noble and learned Lord the Lord Chancellor stated that he would be looking at how to ensure that quality representation would be available in conjunction with the question of legal aid for bail applications.

We on these Benches strongly believe that the provisions in the Bill relating to bail are extraordinarily complicated. They extend from Clauses 38 to 41 and Clauses 47 and 48. It is apparent from tonight's debate just what a morass of fine print and detail the bail arrangements constitute. No criticism is implicit in that statement; it is merely an attempt by the Government and those in Opposition to make the best of a complicated world out there.

However, we believe that the liberty of the person who the immigration authorities wish to detain is a fundamental matter. We accept what the noble and learned Lord the Lord Chancellor said in his letter to my noble friend Lady Williams on 1st September. Many of the potential clients are extremely “vulnerable". That is the point; they are extremely vulnerable. Furthermore, many of them will not speak English, will not understand anything of the bail provisions and will be confused and disoriented. If ever there were a case in which the need for legal advice was paramount, it is this, affecting as it does the freedom of the individual concerned.

I hope that the Government, while having due concern for the public purse, will on reflection consider that this is a proper object of legal aid. I beg to move.

Lord Falconer of Thoroton: My Lords, my noble and learned friend the Lord Chancellor has agreed a recommendation by the Legal Aid Board that there should be an extension of funding thorough contracts to cover representation before immigration adjudicators and the Immigration Appeal Tribunal. This is clearly welcome since it will enable continuity of representation throughout a case and the quality of representation generally in immigration cases, which has long been a concern of the Government, will improve.

Officials in the Home Office and the Lord Chancellor's Department have been discussing whether and, if so, how there should be a similar extension to funding through contracts to cover funding for bail hearings. I can now announce that such an extension of funding has been agreed in principle by my noble and learned friend the Lord Chancellor. However, detailed arrangements have yet to be settled.

Of course, even in the absence of legal aid, funding will be available for the purposes of representation at all bail hearings, whether routine or upon application, by virtue of Clauses 49 and 76 of the Bill. That representation is currently provided by the Refugee

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Legal Centre and the Immigration Advisory Service. Despite my announcement on legal aid, I am afraid that I am unable to support Amendment No. 60. First, this is not the appropriate place for such an amendment. Extensions to legal aid are dealt with by the Lord Chancellor under separate legislation. Secondly, the exact details of the agreed extension of funding have yet to be settled, so the amendment is premature. I hope that in the light of the encouraging announcement I have made the noble Lord will withdraw his amendment.

Baroness Williams of Crosby: My Lords, I am sure that the noble and learned Lord will recognise that the amendment has served a useful purpose, even if we now withdraw it. I thank him and his noble and learned friend the Lord Chancellor for the step they have taken, which will be extremely welcome. It will enable people to be properly represented at bail hearings and we believe that in the end it will save the Government a great deal of trouble and some money.

Lord Phillips of Sudbury: My Lords, I identify myself with those remarks and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [The Immigration Appeal Tribunal]:

Lord Cope of Berkeley moved Amendment No. 60A:

Page 112, line 5, at end insert (“after consultation with the Advocate General for Scotland").

The noble Lord said: My Lords, there is a large group of amendments suggested for discussion on the Marshalled List. Three of them stand in my name and that of my noble friend. All of them concern Scotland; they are all essentially concerned with the same point. They relate to the immigration appeal tribunal. The amendments are in Schedule 2. As the Bill stands, the Lord Chancellor is in charge of appointing the immigration appeal tribunal members. Of course, that provision is also to have jurisdiction in Scotland and the noble and learned Lord the Lord Chancellor is the Lord Chancellor of England. Scotsmen have suggested to me that, in spite of the nationality of the present noble and learned Lord the Lord Chancellor, it would be wise if the Advocate General for Scotland were consulted on the matter by the Lord Chancellor and, indeed, that either the president or the deputy president should be a Scottish lawyer so as to ensure by Amendments Nos. 60A, 61A and 62A that Scottish interests are properly taken into account in setting up the tribunal and the decisions that are made. I beg to move.

Lord Bassam of Brighton: My Lords, I believe that I can give some satisfaction to the noble Lord, Lord Cope in dealing with Amendments Nos. 60A, 61A and 62A, which, as he said, deal essentially with the same point. They concern the consultation arrangements for judicial appointments where Scotland has an interest. Those arrangements are already set out in a concordat

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which has been agreed by the Lord Chancellor's Office and the Scottish administration. The concordat will involve the Lord Advocate as appropriate.

I turn now to the Government's Amendment No. 61. The Lord Chancellor would not wish to apply such a restriction which could inhibit the selection of the president or vice president. However, for any matter to be heard in Scotland or which involves Scottish issues the legal chairman will be selected by the president from among those who have the relevant and appropriate knowledge of Scots law. I trust that that will be of further reassurance to the noble Lord.

I turn now to a package of amendments which, although largely technical, represent additional and necessary changes to the Bill. It has always been the case, and the Bill presently maintains the position, that legally qualified members of the tribunal must hold a seven-year general qualification within the meaning of Section 71 of the Courts and Legal Services Act 1990, including those qualified in Scotland or Northern Ireland. The Bill presently also contains a similar requirement for adjudicators. Since the Lord Chancellor took responsibility for those appointments in 1987, with one exception, only those who meet that requirement are appointed as adjudicators. Amendments Nos. 61 and 63 address the Government's concern that, in setting a strict requirement for legal qualification in this jurisdiction, it may well exclude from future appointment some talented academic and other lawyers--which we should not wish to do--who may not meet the qualification under the Courts and Legal Services Act, but would otherwise be exceptionally well qualified. The growth of the jurisdiction is such that the Government believe it would be unwise to limit eligibility in that way.

That brings me to Amendment No. 62. Our aim has always been to provide a flexible, modern framework for a modern service. The amendment expands the drafting to clarify the extent of the flexibility available to the president, allowing the formation of panels which will meet the needs of particular cases or types of case and the complexity of the appeal.

Another necessary tool to support the Government's efforts to speed up appeals is set out in Amendment No. 67. That amendment enables the Lord Chancellor to make provision in the appeal procedure rules for the circumstances in which an adjudicator's decision may be set aside by the same or another adjudicator. The Bill already includes power for provision to be made for the circumstances in which a decision of the Immigration Appeal Tribunal may be set aside. It will ensure that specified errors can be put right quickly at the right level, saving the unnecessary time and expense involved for cases which would otherwise have to join a queue in another part of the system.

Changes to the appeal procedure rules are being formulated through a programme of consultation with users. A paper setting out progress on that programme is now available to the House. The circumstances in which the set-aside provision is likely to be used has

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therefore not been finalised. However, it is likely that they will include situations in which an administrative mistake comes to light shortly after the adjudicator has made his decision. It is likely also that the provision will be used for cases which have no right of appeal to the tribunal and for which judicial review is the only mechanism available for turning back the clock on an administrative error.

I conclude this package by speaking to Amendments Nos. 301 to 303, 308 and 314. Those are technical amendments which change, repeal or preserve on a transitional basis existing legislative provisions relating to the terms and conditions of service of members of the Immigration Appeal Tribunal and immigration adjudicators, and are consequential on the provisions of the Bill.

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