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The Lord Bishop of Portsmouth: My Lords, we on these Benches support the amendments. I thank the noble Earl, Lord Russell, and the noble Lords, Lord Hylton and Lord Kingsland, for their explanations of them. It is about safeguards; it is about justice; it is about seeing that the best possible help is given at a crucial and sensitive time.
Lord Filkin: My Lords, for the second time today I shall risk saying that there is a consensus about objectives but a difference of opinion about means. The noble Lord, Lord Kingsland, and the noble Earl, Lord Russell, are both absolutely right.
One of the reasons for having accommodation centres is that they will provide good-quality support, which people have asked for, and faster processing, which will also be strong and fair. In other words, cases will be well considered at each stage in a way that reduces some of the turbulence of late appeals being turned over. We therefore share the view, without qualification, that it is important that we make legal advice available in accommodation centres for people who wish to avail themselves of it at initial stages. I will discuss later appeals in the process later.
As we discussed previously, the only area of difference is that we must provide advice, or the opportunity to receive it, in a way that does not lead to an abuse of the system. By that we mean that we cannot go further than ensuring that a suitably qualified lawyer is available to give advice in the accommodation centre when hearings are due to take place there. By going as far as the amendment proposes, asylum applicants could, if they wished, decline to attend a hearing, or seek to change their lawyer. Noble Lords may ask why that matters. It matters because, given the number of cases, fair and sensible processes are needed to deal with applicants in
a straightforward and efficient way. Although we are confident that suitably qualified lawyers will be available in the accommodation centre for any asylum seeker who wishes to avail himself of advice, the amendment would create the risks that we referred to—
Lord Clinton-Davis: My Lords, would it suit the Minister if, at the end of Clause 28(3), the following words were inserted:
- "and must provide a resident of an accommodation centre with access to legal or appropriate advice . . . where it is required"?
The second risk is, as Members of this House will know better than I do, that to get legal aid in this country, two tests must be met. They must meet a means test—and it is hard to see how any resident of an accommodation centre would not meet that test, because they will have been evaluated as destitute. They must also meet a merit test. In circumstances where the balance of probability is about 50 per cent—and I speak loosely rather than as a member of the Legal Services Commission—there is clear guidance that if the issue is one of substance for the individual, or if it is of wider relevance to society, the balance of doubt falls in favour of the applicant so that legal aid is available.
It is self-evident that in some cases—I will not conjecture how many, but quite a number—the probabilities can be around 10 per cent. In those cases, a British citizen would not qualify for legal aid from the Legal Services Commission, so we see no good reason why a resident of an accommodation centre should qualify either.
Lord Kingsland: My Lords, the noble Lord will have noted that I underlined that the test should be that for receiving criminal legal aid, not civil legal aid. In criminal cases, somebody who has to defend himself but does not have the means to do so receives legal aid as a matter of course, because the consequence of him being inadequately defended could be that he is wrongfully locked up for several years.
Surely that is the right analogy for the position of an asylum seeker. An asylum seeker who does not get proper legal advice may face deportation, in circumstances in which he should not be deported, just because the test applied for the receipt of financial support is the civil rather than the criminal one. Surely that cannot be the right approach. The Government should accept that the criminal test is appropriate in those circumstances.
Lord Filkin: My Lords, I am advised that we have thought the civil test appropriate. That will not please
the noble Lord, Lord Kingsland. Even at this late stage I shall reflect on his point. However, my point still stands. Even if the noble Lord were right and we were talking about the criminal test of eligibility—which would make it more likely that a person would receive legal aid—there would still be cases with a very low balance of chances. We do not think it right that they should automatically qualify for legal aid when a British citizen would not qualify.
Lord Kingsland: My Lords, it may be true that on average such cases have very low chances, calculating the overall number that succeed compared with the number considered; but the noble Lord cannot say that in respect of any individual case.
Lord Hylton: My Lords, while the Minister reflects on that point, will he also consider whether the words, "with access" in Amendment No. 9 counterbalance his argument about two kinds of risk? I know that there are some organisations, such as the Immigration Advisory Service, the Refugee Legal Centre, Asylum Aid and no doubt a few others, in which the question of legal aid for such advice will not arise.
Lord Filkin: My Lords, let me speak a little more to the point made by the noble Lord, Lord Kingsland, and explain why we think it is right that the civil test is applied in asylum cases. The merits test in criminal cases is known as the interests of justice test. The test is matched specifically to what will be considered during the course of a criminal trial, making it unsuitable for any non-criminal matter, including advice on asylum or immigration matters. More importantly, it does not contain any condition as to cost benefit or prospects of success. To introduce such factors would breach our obligations under Article 6 of the ECHR.
The noble Lord, Lord Kingsland, raised the issue of the generality and the specifics. I am seeking to speak specifically to those. To put the issue at its sharpest, let us consider a specific case in which the probability of success in an appeal to the IAT—which I am sure is the forum we are talking about—is very low. I am talking about certain specific cases, not the generality. In other cases those circumstances will not apply. A British citizen would not get legal aid in those circumstances, so we cannot see why an asylum seeker should do so. It seems unreasonable that they should have an advantage in that respect.
Lord Clinton-Davis: My Lords, I have been a solicitor for quite a long time. For part of that time I did a lot of legal aid work. The individual always has access to legal advice. He may be advised that he does not have a hope in hell of getting legal aid. That is understandable. However, to deny a person who is unlikely to get legal aid any sort of advice is ludicrous.
6.15 p.m.
Lord Filkin: My Lords, I did not think that I was speaking to the specifics of that. I was engaging with
the noble Lord, Lord Kingsland, on a specific example of an asylum seeker who had had an initial negative decision and had then appealed to the IAA. When the adjudicator on site in the accommodation centre also said no, the asylum seeker then sought leave to appeal to the IAT. The balance of probability was then found to be so low that they would not get legal aid. Our understanding of the clause is that legal aid would have to be provided even though the prospects of success were so low.I hear the point made by the noble Lord, Lord Clinton-Davis. I expect that, because of the facilities in accommodation centres, it will be possible to get general advice on the prospects of a successful appeal to the IAT, because there will be resident legal advisers able to give a certain amount of advice, as opposed to representation. We also hope that specialist NGOs will have a presence there, as they have at Oakington, where they make a powerful contribution.
These are complex issues. I am trying to explain why we think that the current wording of the amendment has problems. I come back to the point that, apart from the areas in which we have cautions about opening the issue up to the extent that we think the amendment would do, we broadly share an objective that it is desirable that asylum applicants in accommodation centres are well advised. We think that that means having suitably qualified legal advisers.
I shall speak briefly about the words "qualified" and "appropriate" in the amendments. The firms or individuals who provide legal advice and representation in accommodation centres will be ones who hold contracts with the Legal Services Commission. They are checked to ensure that they meet certain standards and are qualified to provide advice on immigration and asylum matters. They must have a specific contract in that category. We expect that lawyers or legal firms practising in accommodation centres in the way we have talked about will be well qualified, as the House wishes.
We find the word "appropriate" much more difficult. Our worry is that it could mean whatever a person wants. I shall not conjecture on the details, but what one person thinks appropriate to their needs could be very different from what the LSC or someone else thought reasonable in the circumstances. That would open up massive opportunities for legal challenge against the Government. That would not be sensible or in the interests of what we are all seeking to do.
In conclusion, I can provide some reassurances that we shall not unreasonably refuse access to any advice group that may be able to assist residents, as the noble Lord may be suggesting. We have seen the benefit of that at Oakington. We would be very happy for groups to discuss ways of providing information to residents, but we are looking at a very different situation from that in which some asylum seekers find themselves in dispersal areas at present, simply because the centres will be self-contained and will provide for the basic needs of the residents.
Whatever our debates about the necessity of legal advice before an initial decision, the fact remains that those in accommodation centres will be able to receive advice before their interview. If that is the aim of the amendment, it is unnecessary. If the aim is, exactly as the amendment suggests, to go far wider in the ways that I have said the Government are concerned about, it is unacceptable for those reasons, not because we wish to frustrate access to reasonable advice. For those reasons, I invite the noble Lords to withdraw the amendments. I hope I have signalled clearly that our minds are in no way closed to the importance of what both Opposition parties are seeking.
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