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Lord McNally: My Lords, it is always a delight to hear a Rooker reply because it is always in three movements. The noble Lord comes out swinging punches at anyone who is available. Then he attacks the Tories. After that the noble Lord feels much better and then gives us some facts to chew over. That response was a perfect example.
I have watched the progress of this issue since I entered the House nearly 10 years ago and I have seen Ministers from both sides trying to grapple with the Rubic cube that is immigration and asylum policy. I am sure that when the day comes—which is perhaps not far off—that a Liberal Democrat is at that Dispatch Box, he or she will be agonising over the same problem. The main point is that whatever has happened in the past the message is that we must do better: we must raise quality and look at best practice in other countries; for example, if the Canadians have a system that seems to work better than ours, we should have a look at it to see if could be applied here.
However, I appreciate the constructive nature of the Minister's third movement and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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3.45 p.m.
Lord Phillips of Sudbury moved Amendment No. 4:
"LEGAL AID FOR ASYLUM INTERVIEWS
The Lord Chancellor shall make a direction under section 6(8) of the Access to Justice Act 1999 (c. 22) (services which may be funded) to require the funding of attendances by solicitors (and other non-solicitor suppliers accredited for the purpose by the legal services commission) and independent interpreters at interviews conducted on behalf of the Secretary of State with a view to his reaching a decision on a claim for asylum (as defined by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation)) in the circumstances where the supplier has certified that he has a reasonable belief that the asylum applicant to be interviewed—
(a) is a torture or rape victim;
(b) has had inflicted on him serious physical harm; or
(c) has a reasonable fear of being tortured, raped or so harmed if returned to his country of origin."
The noble Lord said: My Lords, I am moving again the amendment which was moved at previous stages of the Bill and hope that on this occasion the Government will have reflected on the need, in terms of justice, effectiveness and efficiency, of allowing the extra categories to be added to those already entitled to legal aid at substantive first interviews. The three extra categories are torture or rape victims, people who have had serious physical harm inflicted on them, or people with,
"a reasonable fear of being tortured, raped or so harmed if returned to . . . [their] country of origin".
One has to return to the untenable position of the Government that those categories are not especially vulnerable. I read before and must read again a letter written to me by the Minister, David Lammy, who said, in relation to further categories of exceptions such as rape or torture victims, that,
"neither the DCA nor the Home Office are persuaded that victims of rape or torture, however defined, should be regarded as being in a category of vulnerable people".
Most of the world would find that an astonishing proposition and, with respect, it does not do justice to the standards that this country upholds normally. I shall read noble Lords just one piece of evidence from the Home Office. The interdepartmental working group set up by the Home Office published a report, Speaking up for Justice, which said, regarding the treatment of vulnerable or intimidated witnesses in the criminal justice system generally, that,
so rape victims were then considered to be vulnerable—
"is often a traumatic experience for the victim, who is likely to need to be treated with care and sensitivity".
I should not have thought it necessary to read that, but I have done so.
I shall also refer to another source which I have just discovered in support of the amendment—the comments made by the noble and learned Lord, Lord Scott of Foscote, chairman of the European
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Union committee that was considering the EU directive on legal aid and assistance. On 21 April he said that the article before the committee,
"has the effect that Member States may decide to provide free legal assistance only for the appeal procedure".
He was referring to immigration and asylum cases, so I have begun to realise why the Government withdrew legal aid from this class of cases at the end of March. The noble and learned Lord continued:
"The initial decision-taking process is highly important in getting the correct result in these cases because the asylum seeker in a strange country that he has come to, often not speaking the language of the country, does not know what he needs to say in order to get his case properly considered and in terms of getting a correct result. To underwrite a system under which there is going to be no legal aid at that critical fact-finding stage of the process seems to me to be quite wrong".
No one in any previous debate on similar amendments has advanced the proposition that such advice was not needed in these limited cases.
I have consulted a number of adjudicators and senior personnel—including, on the one hand, legal representatives and, on the other hand, those who have to sit on asylum appeals. Everyone engaged in the system believes that there would be a saving of cost and time and an overall increase in effectiveness if the categories of persons mentioned in the amendment could have legal representation at the initial substantive interview. The simple reason is that the interview is the rock on which everything subsequently is built. The asylum officer's decision is made on the basis of that interview. In so far as it is inadequate, the chances of appeal will be greater and the appeals will be extended with extra costs for all.
Clause 2 creates criminal offences for asylum applicants who do not act as required under Clause 2 at the asylum interview. Thus we have a new position that adds to the already strong case for allowing legal representation for asylum interviews in the three cases specified in my amendment. If the Government continue to say that there have been bad cases of poor representation by legal representatives in the field—and I hope that they will not—all I can say is that it is a major objective of the Legal Services Commission to rectify that state of affairs.
In response to this amendment on 27 April the noble Baroness, Lady Scotland, said,
"The Government have chosen to go for excellence and proper representation at a time when that representation makes a difference".—[Official Report, 27/4/04; col. 756.]
It makes a difference in such cases. Justice points clearly in the direction of allowing the amendments and I hope that at this stage the Government will agree to them so that we can have a more effective, efficient and just system. I beg to move.
Lord Clinton-Davis: My Lords, I rise to support in principle the remarks of the noble Lord, Lord Phillips of Sudbury. I do not expect my noble friend to accept the amendment but I would like him to outline the
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procedure. I have been much persuaded by what the noble Lord said. In each of paragraphs (a), (b) and (c), the people involved are essentially vulnerable. The Government have nothing to fear from approaching the issue with an open mind.
As the noble Lord, Lord Phillips, said, the initial interview is vital. As has been acknowledged, it does not always come up to scratch. More pity for that. The case for applying legal aid to such people in the initial interview is made out. I agree that there will be a saving of costs and time. While I do not think that my noble friend will accept what has been said, I hope that he will be benign in welcoming the arguments in principle. In my view, the noble Lord, Lord Phillips, argued unassailably.
Baroness Anelay of St Johns: My Lords, I echo some of the sentiments of the noble Lord, Lord Clinton-Davis. We need to be open minded about how we debate these matters. Our views on asylum and immigration applications must change over the years as our communities change and the way in which we manage migration changes.
I have problems with some of the amendment's drafting. It begins with the word beloved of oppositions and hated by governments: "shall". It says,
A direction is imposed on the Lord Chancellor: whatever he does he must pay his money on particular cases and say that there will be legal aid.
The Minister knows that I use "shall" in amendments on a number of occasions. Whenever I do, I always have at the back of my mind that if the amendment is not probing but concerns a matter I wish to press, anything that I provide in the amendment must be so obviously necessary to all noble Lords that they would stand on their heads if it did not happen.
I do not think that this amendment can justify a "shall", but it justifies proper considered debate, particularly as we have discussed the issue of whether rape should be included in the list on other Bills. I know that there has been a division of opinion over many years. I am minded of situations in the Congo or in Darfur where rape is an everyday fear, not necessarily because the Government in place are carrying out rape but because they are unable to protect their citizens from rape at the hands of armed militia.
There is a reasonable fear of rape, torture or suffering serious physical harm in too many countries throughout the world. The question is whether our Lord Chancellor has imposed on him the duty to pay legal aid when someone comes to this country to seek either asylum or immigration and claims that he has suffered what is unacceptable.
I agree with the noble Lord, Lord Phillips of Sudbury, that for anyone who has suffered under paragraphs (a) or (b), or has reason to believe that he might under paragraph (c), it is unacceptable to him,
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but should it then trigger automatic legal aid for the substantive first interview, as the noble Lord said, for immigration and asylum? That is when it becomes more difficult, because nowhere does the new clause say that the suffering the person has endured is as a victim of a crime rooted in political persecution.
If one intended to vote on the amendment and first to take it apart, one then could ask, "What if I were involved in drug running in another country—Afghanistan or wherever around the world—and I upset my drug running compatriots? Should I, because I have a reasonable fear of being bumped off by them, be able to come here and expect automatically to receive legal aid in a claim for asylum?".
I take an extreme example, but it is simply to show why it was right for the noble Lord, Lord Phillips of Sudbury, to table the amendment to make us keep an open mind and to take forward the debate, but why it would be wrong for the amendment to go in the Bill. I know that what I am saying will be controversial to some members of my party, but the issues raised must not be allowed to go away. We have a responsibility in our community for looking after people who seek refuge here and we need to keep those matters under consideration.
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