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Lord Hylton: My Lords, I agree fully with both the noble Earl, Lord Russell, and the noble Lord, Lord Greaves. I add that legal advice does not always have to be provided by a solicitor. There are casework bodies which have built up an enormous amount of experience: the Immigration Advisory Service and certain expert voluntary bodies whose casework has been impeccable over many years. I support the amendment.
Lord Kingsland: My Lords, as my noble friend Lord Brooke of Sutton Mandeville said, we discussed this matter at some length in Committee. Since my views have not changed during the intervening summer interlude, I shall simply summarise the approach I believe the Government should take.
The Bill has two fundamental objectives; first, to expedite the asylum procedure, without, secondly, in any way undermining the fairness of the procedures already in place. It seeks to achieve expedition and fairness simultaneously. If the Government mean that, it would be wise to accept the amendment of the noble Earl, Lord Russell. Clause 27(3) states:
- "The Secretary of State may arrange for the provision of facilities in an accommodation centre for the use of a person in providing legal advice to a resident of the centre".
Here, therefore, are three fundamental weaknesses in the quality of legal advice which will have to be altered by the Government if the joint test of fairness and expedition is to be met. The Secretary of State should be obliged to arrange for the provision of facilities, together with an obligation to ensure that those facilities are provided by an appropriately qualified lawyer and financed by legal aid furnished on the criminal and not the civil standard. All those, in my submission, are absolutely essential if an asylum seeker is to receive the kind of advice that we think he ought to have at the earliest possible stage of the procedure.
If that legal advice is provided to an asylum seeker at an early stage, if the asylum seeker knows where he stands, and if he is advised he has no chance of success, then the Government, with a completely clear conscience, can go ahead with whatever procedure they think is appropriate to bring matters to a close. But unless that legal advice is provided, the Government cannot with a clear conscience do that. The longer the Government delay, the less expeditious the process will be. In my submission there is no more powerful amendment tabled at Report stage than that by the noble Earl.
Lord Dholakia: My Lords, I shall be brief. Will the Minister consult the Lord Chancellor's Department which is responsible for legal aid matters before he reacts to the comments of my noble friend Lord Greaves? Will he also bring to the attention of the Lord Chancellor the report of the Joint Committee on Human Rights which states:
- "We would expect the Department to be able to inform each House of the steps which would be taken, in all accommodation centres, actively to discharge the responsibility to inform people of their rights and of the accessibility of appropriate legal advice"?
- "The enjoyment of due process rights depends on effective access to appropriate legal advice. We draw these concerns to the attention of each House".
The Lord Bishop of Portsmouth: My Lords, this amendment has the support of these Benches for reasons already given. This is an important safeguard which it seems all sides of the House support. I hope very much that the Government will look favourably on it.
Lord Filkin: My Lords, as has been mentioned, we previously had a significant debate on this important set of issues. I shall seek to describe how we envisage the process will work. I hope that that will address the questions which have been raised.
When an asylum seeker leaves an induction centre he will have been briefed about the asylum process. A decision will have been made as to whether he qualifies for support and, if so, whether he will be placed in an accommodation centre. On arrival at the accommodation centre, residents will be briefed in
general and effectively this will be an orientation exercise so that they understand what facilities are available and what is required of them.We are clear that quality initial interviews are in the interest of both the applicant and the Government in terms of ensuring processes work smoothly and with a minimum of confusion or later complications in the legal process. Therefore, our position is—as it has been—that early legal advice is extremely beneficial and useful. I am not using weasel words; I shall sharpen that in a minute.
One of the arguments for accommodation centres is that they constitute a much more managed process. I refer to Oakington in that regard. Facilities are provided on-site. I refer to the legal interview rooms which have already been mentioned. Translation facilities will be provided on-site. NGOs may also provide facilities on-site if they wish to establish such a presence.
Before the initial interview the asylum applicant will have the opportunity to obtain legal advice from one of the legal advisers or the NGOs, if they are present, who will be based on-site or who will visit the centre to provide advice prior to the initial interview. As I have indicated, the facilities for such interviews will also be provided as part of the contract for providing the accommodation facilities.
If asylum applicants decided that they did not want to use the lawyer, or lawyers, that were available on site, they would be at liberty to arrange for someone else. However, it would be their responsibility to arrange that within the time-scale set for the interview.
The nub of the issue, which is why we are going as far as we can—I believe as far as possible—is to make it clear that there will be the availability of advice. Based on our experience, it is a fact that if one said that legal advice had to be available as of right, that would be used by some—one hopes not many—as a cause for delay in the process. They would basically say that they have not got the lawyer they want, or that they want further time to prepare and, therefore, are not ready.
Therefore, we are saying that there will be a lawyer or lawyers there for them to use if they wish. We believe that it is desirable for them to have legal advice, but it is not essential for the initial interview to be conducted, if they choose not to use the lawyer.
11.45 p.m.
Lord Clinton-Davis: My Lords, have the Law Society and the Bar Council been consulted about this? If so, what have they replied?
Lord Filkin: My Lords, unless memory fails me that was the question that my noble friend Lord Clinton-Davies asked me earlier. I have not yet concluded my speech, so I shall expect to be receiving further advice on that before I conclude.
To continue: I hope that I have made it clear that we are committed to ensuring the availability of legal advice, without getting locked into the issue of a person using it as a device to delay the process.
Will an adequate number of legal advisers be available? As indicated previously, that is not an issue for the Home Secretary, it is an issue for the Legal Services Commission. The Lord Chancellor's Department is confident that there will be no difficulty in having legal advisers taking up the offer of such contracts in accommodation centres, because there will be an almost guaranteed stream of work. Office accommodation will be provided that will be serviced by lawyers who will either come in from other practices or be based during the working day in those facilities. It seems to us, and to the Lord Chancellor's Department, that there is every reason to be confident that there should be a good supply of lawyers.
Will they be suitably qualified? That is the next reasonable question and challenge. Will they be independent? Clearly, they are independent of the Home Secretary; he has no hand in the matter. To provide advice on immigration and asylum matters, solicitors and advice agencies must have a contract with the Legal Services Commission in that specific category. The legal advice must be independent, otherwise the quality mark will not be available.
It seems that, as far as can be provided for any other resident of the United Kingdom, the legal advice ought to be available; ought to be independent; and ought to be suitably qualified.
The noble Lord, Lord Kingsland, raised the question of whether people would qualify for legal representation. Legal help is the first level of service available to asylum seekers and covers general advice, preparation of letters and negotiations. There is no merit test as such, although legal help may be provided only where there is sufficient benefit to the client having regard to the circumstances of the case. The reality is that asylum seekers will satisfy that test.
Furthermore, destitute asylum seekers will, by definition, fall within the financial criteria and residents of accommodation centres, by definition, are without means, otherwise they would not have been granted support. It is difficult to see a situation whereby a resident of an accommodation centre will be able to avail himself of that facility in terms of that element of the qualification.
The next level of service in this context is that of controlled legal representation, which concerns a solicitor covering all work needed to take legal proceedings before the immigration appellate authorities. Clearly, there should be an independent immigration appellate authority on the accommodation site. That is one of the benefits we have discussed in terms of the onsite legal process.
Applicants must satisfy both the financial and merit test. We have covered the financial grounds—the argument is obvious. On merit grounds, where the prospects of success are 50 per cent or higher, it is automatically available. In circumstances where the prospects are unclear or borderline—the noble Earl raised that matter previously—legal representation will again be authorised where the case has a significant wider public interest, or is of overwhelming importance to the client, or raises significant human
rights issues. Again, one could well envisage that there could be circumstances when that will trigger legal advice, even though it has not met the 50 per cent test.That brings us to the remaining cases where the prospects of success are poor—that is, where the prospects of success are clearly less than 50 per cent so that the claim is likely to fail. We make no apology for the fact that legal representation would not be provided in those cases, as would be the case of any British citizen in such circumstances.
I turn to some of the questions that were raised with regard to the Law Society and the Bar Council. I am advised that there is no change to current policy and we are aware that they consider advice important. Reading between the lines, that sounds as though the answer to the question is probably "No", but I will double check that.
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