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28CLine 5, at end insert— "(2B) The Secretary of State shall ensure that a resident of an accommodation centre has a reasonable opportunity to obtain and consider legal advice from a person who meets the requirements of subsection (2C) before any appointment made by an immigration officer or an official of the Secretary of State for the purpose of obtaining information from the resident to be used in determining his claim for asylum and to have such a person present at the appointment.



(a) his registration if he is registered under section 84(3) or,
(b) his certificate if he holds a certificate under section 84(5) of that Act." "

The noble Earl said: My Lords, as when some well-graced actor leaves the stage, the eyes of men are idly bent on him that enters next. I guarantee that I shall not detain the House as long as we were detained on the last amendment.

As the Minister said, this amendment is a concession and as such it is to be welcomed. But I hope that the Minister understands that it is the duty of Oppositions to look gift horses in the mouth. The amendment is good. It reads well. But one must ask James Bond's question of whether,


    "it reads better than it lives".

I hope to probe its meaning a little further, and that the Minister will be in a position to satisfy me.

A lot depends on the meaning that the Government attach to the word "opportunity". There is obviously here a serious problem. I was struck very much by some of the examples quoted in another place by Mr. Letwin. He came across cases of individuals who had two or three different Home Office records in slightly

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different names. In such cases he said that different decisions are sometimes made in relation to two or three different sets of records about the same person.

One is tempted to ask the question with which the Sadducees tempted Christ at the Resurrection:


    "Who's wife shall she be?".

What is to happen when there are three different decisions about the same person? That is the sort of thing that proper legal representation from the beginning ought to prevent.

The Minister in another place had several objections. One was to the words "suitably qualified". Frankly, I understand. I have had that question in my mind myself. Since then, I have been better advised. We have taken the decision, since I have been better advised, for a more precise definition: that the adviser should be from those who are approved by the Immigration Commission registrar under the 1999 Act. That criterion is one that the Government themselves have constructed and which I hope therefore they will not think is in any way intended to obstruct them.

The Minister said that there was a danger that the amendment might inadvertently allow a person to disrupt the system by failing to turn up for an interview. The Minister in this place inadvertently omitted the word "inadvertently". If the amendment were to have that effect, it would be very inadvertent indeed. That would be totally contrary to our intention in laying the amendment and, as far as I can see, totally contrary to the meaning of the English language.

The word that we used was "access"; the word that the Minister in another place used in the Government's amendment is "opportunity". We meant those words to mean the same thing. If that is also the case with the Government, then we are in agreement. But the question is how far that agreement goes. Clearly, as my honourable friend Mr Hughes remarked, it is not enough to give people the addresses of the Refugee Council, the Immigration Advisory Service and the Refugee Legal Centre and then go ahead and arrange an interview without doing anything more. Can the Minister say how he will interpret a "reasonable time"? As the Government are using that phrase, we are entitled to ask how it will be interpreted. Further, is the length of time that is a "reasonable time" recognised to be affected by how many days within that period are working days, how many are public holidays and how many are weekends?

Will a "reasonable time" be affected by the supply of lawyers in the area concerned? Will it be recognised that a "reasonable time" may be longer in a case of complexity involving either a language for which interpreters are in very scarce supply or one involving, say, mental health disabilities or torture, where there is a clear difficulty in getting adequate testimony in the time available? Are the Government prepared to recognise that their normal assumption of delivery in two working days after posting is now totally inadequate? Nothing posted on Friday can be counted

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on reaching me across London in under five days, as my Whips' Office knows very well. That view is simply out of date.

We have accepted, with gratitude, Commons Amendment No. 28A, which I believe does rather better what we sought to achieve. However, we are worried by what the Government mean by the word "reasonable" in Amendment No. 28B, so we have provided Amendment No. 28C as an alternative. This would allow for a "reasonable opportunity" to obtain legal advice before the Home Office goes ahead with an interview. We are concerned that the interview should not take place before the person has had a good chance to obtain legal advice. We do not say that people must take that opportunity; we do not say that failure to take that opportunity should prevent the interview. We say that failure to give that opportunity should provide a reason for postponing the interview.

Finally, can the Minister reassure me that our interpretation of these provisions and the Government's is very much the same? I hope that the answer to that question is yes. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendments Nos. 28A and 28B to Lords Amendment Not 28, leave out "Amendments Nos. 28A and 28B to Lords Amendment No. 28" and insert "Amendment No. 28A but do disagree with the Commons in their Amendment No. 28B and do propose Amendment No. 28C in lieu thereof.—(Earl Russell.)

Lord Kingsland: My Lords, with respect to Amendment No. 28B, I entirely endorse the remarks made by the noble Earl, Lord Russell. I have one question for the Minister. Amendment No. 28B says:


    "The Secretary of State shall take reasonable steps to ensure that a resident of an accommodation centre has an opportunity to obtain legal advice"—

I need go no further. In construing this amendment, would it be reasonable of me to insert between the words "obtain" and "legal" the expression, "access to subsidised"?

Lord Hylton: My Lords, I am grateful to the Government for tabling Amendment No. 28B, especially for the inclusion of the words,


    "an opportunity to obtain legal advice before any appointment"—

a point that I endeavoured to make during a previous stage of the Bill. The amendment moved by the noble Earl, Lord Russell, may be better still; I do not know. At least, I hope that we can settle for Amendment No. 28B.

10.30 p.m.

Lord Filkin: My Lords, first, I wish to address the question asked by the noble Earl, Lord Russell, on the meaning of "opportunity". It is a slightly philosophical question; therefore, I approach it with caution. There is a danger of tautology here. We shall ensure that an accommodation centre resident has a

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real opportunity; that is, sufficient time to seek and take up legal advice prior to the date of the initial interview for determining the asylum claim.

The statute places a duty on the Secretary of State, or his agents in the accommodation centre, to demonstrate that they have acted reasonably. I shall not be drawn on the exact number of days that may be involved as that will depend on the circumstances. Clearly, a sufficient number of qualified lawyers have to be available; otherwise, the test will not be met. The complexity of a case might have a bearing on the matter if, for example, evidence was required of torture or other such matters. I do not say that it would be required automatically but it is perfectly possible that it might be. Therefore, a Secretary of State or his agent acting reasonably would have to take those factors into account. Mental health factors might also have a bearing on the amount of time that was needed.

The interview would not take place before the asylum seeker had had a reasonable opportunity to receive legal advice. That may appear to be a circular argument but it is not intended to be so. The statute places a real burden of responsibility on people who are exercising the judgment that we are discussing. They should be looking over their shoulder at the fact that there is a legal duty on the Secretary of State to provide that opportunity.

The noble Lord, Lord Kingsland, asked about access to subsidised legal advice. I do not believe that that is necessary as, in practice, all residents of accommodation centres will, by definition, be destitute. Therefore, legal advice will be provided to meet the responsibility that the Secretary of State is effectively imposing on himself through the clause. Therefore, the question is otiose.

As regards qualified advisers, I hope that the noble Earl, Lord Russell, will accept that the amendment is necessary, as those who have the LSC quality mark will, by definition, come within the terms of the amendment. That, therefore, provides the security that he seeks.

I have one or two further points. As regards sufficiency of supply of legal advisers, the Secretary of State is required to be reasonable. We shall provide legal advisers on site via the Legal Services Commission. If an asylum seeker is, through no fault of his own, unable to take up legal advice before the interview date, we shall consider on a case-by-case basis whether the interview should be rearranged. I hope that that is helpful. I hope that I have satisfied noble Lords on those matters.


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