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Lord Filkin: My Lords, the amendment, which the noble Lord, Lord Phillips of Sudbury, has tabled not for the first time on the Bill, seeks to include a number of additional categories in the exceptions listed in the accompanying directive to the Community Legal Service (Scope) Regulations 2004. The essential thrust of the regulations is, as the noble Baroness, Lady Anelay, said, to place an obligation on the state to provide funding for the attendance of a lawyer and an independent interpreter at substantive IND asylum interviews.

The issues have recently been before us. While the regulations were made under the Access to Justice Act 1999, it was only on 31 March that the House passed them. Although the noble Lord, Lord Phillips of Sudbury, has been redoubtable in arguing that the regulations are wrong, it is a fact that this House passed them only a matter of weeks ago. Therefore, in procedural terms, the noble Lord is now saying to the House that we should use primary legislation to reverse something that this House passed in secondary legislation only a matter of weeks ago. He is perfectly entitled to do so; I simply mark to the House that it seems slightly strange to go back over this process so soon.

That of course is not a sufficient answer to the challenge that the noble Lord has made, and perhaps I may explain, first, why we introduced the regulations. The previous practice was that funding was available for a representative—usually an agent or an outdoor clerk working for a legally aided organisation—to sit in on the asylum interview. As I and other Ministers said on previous occasions, we could see little evidence that that
 
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added significant value to the process. In most cases, the role played by the person accompanying the asylum seeker was simply that of a note-taker as he was not meant to intervene during the interview. In addition, the interviews are non-adversarial, fact-finding processes, and remedies are available to the client to deal with discrepancies or disputes after the interview.

When we passed the order a matter of weeks ago, we also explained that there were important exceptions where it was right that an applicant's representative should be present at the interview. We signalled those as cases involving unaccompanied minors, applicants going through fast-track initial decision processes, and those suffering from a recognised and verifiable mental incapacity, which would make it impractical to undertake an interview without support. It also includes applicants interviewed at a police station and those who pose a threat to national security.

My noble friend Lord Clinton-Davis, in his usual courteous but challenging way, said that surely such a move would make a saving. I do not believe that that is the case. The amendment includes not only people who claim that they have been torture or rape victims (our sympathy must go out to them) or those who are seriously physically harmed (again, wherever that is true, one's sympathy would be with them) but also those who had a reasonable fear of being tortured, raped or so harmed. I suggest that that includes the vast majority of people who apply for asylum in this country—for obvious reasons because that is the central thrust of the asylum international obligations.

Therefore, in practice, the effect of the amendment would be that in virtually all cases a lawyer and a second interpreter would be present at the interview. That would not merely be a backward step; it would take us further backwards towards spending relatively scarce legal aid money in areas where there is not a good case to do so.

Nevertheless, that still leaves the issue, about which the House should be concerned, of whether people who have experienced rape or torture or who have a genuine fear will still receive a fair hearing. My first point is that it may be desirable for some clients to bring a companion to the interview for medical or emotional support. That does not mean a lawyer; it means someone who will give them support. But it is clear that that is the existing IND practice in such cases, and there is absolutely no impediment to people bringing someone along in those circumstances.

The IND protocol confirms that any other person may be allowed to accompany an applicant to an interview at the discretion of the interviewing officers. The IND policy sets out clearly that that is how applicants who are particularly vulnerable—those whom we are talking about—should be treated.

Again, in process terms, what is needed is not a lawyer who sits saying nothing during an asylum interview but one who tries to ensure that a vulnerable
 
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applicant puts before the IND interviewing officer all the written representations with supporting medical evidence to support and bolster his case for why he has been tortured or why he has a genuine fear of torture. It is far better if lawyers spend their time preparing and presenting a case to put to the IND interviewer rather than sitting there saying nothing but taking notes.

I also draw attention to the Medical Foundation for the Care of Victims of Torture. I am informed that when that organisation interviews alleged victims of torture, it insists that a legal representative should not be present.

I turn to the argument that the state should fund not one interpreter but two. But what do we do if they disagree with each other? Do we fund three interpreters? That seems to me to be—how can I put this politely?—unnecessary.

A point was raised about interviewing people who have a genuine fear or who have genuinely experienced torture or rape. We must do our utmost to ensure that that is done with sensitivity and care, but this is not the way to do it.

As a crumb of comfort to the noble Lord, Lord Phillips, I draw his attention to our previous debate on these regulations. I think that on that occasion I dealt with this matter, and I was probed on what was meant by "mental incapacity". We define it as a person lacking capacity if, at a material time, he is unable to make a decision for himself in relation to the matter because of the impairment of, or disturbance to, the functioning of the mind or brain. In other words, if, as part of his professional duties, the solicitor preparing the case for the asylum applicant genuinely thinks that, because of his mental impairment, that person is incapable of making his case, the regulations already allow him an opportunity to do so.

For those reasons, while I respect the vigour with which the noble Lord, Lord Phillips, put his case, I do not feel that we would be wise to accept it.

Lord Phillips of Sudbury: My Lords, I am grateful for the Minister's reply. He said that a legal representative would provide little added value. But that was answered by the quotation that I gave from the noble Baroness, Lady Scotland, which signals a new regime and one which, by April next year, will see legal representatives accredited by the Legal Services Commission.

When the Minister said that there would be no saving, he gave no evidence for that proposition. I have discussed this matter with several adjudicators and senior people in the service, and they all say that they are bedevilled by unnecessary appeals and lengthy timescales because of crap first interviews.

The next point made by the Minister was that the majority of claimants would fall within the exceptions. No evidence is adduced and that argument has not been adduced at previous stages of the Bill.
 
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I was very disappointed with the remarks of the noble Baroness, Lady Anelay. It was the noble Lord, Lord Kingsland, the Front Bench spokesman for the Conservatives, who, when we considered the statutory instrument on 31 March, made clear that if the Government persisted with their proposal, this amendment would be brought forward in this Bill to reverse the withdrawal of legal aid. I am most disappointed that today the Conservatives are not supporting what they supported then. If they had unease about my drafting, which has not altered over the three stages of the Bill, it would have been helpful to have heard about it earlier.

Baroness Anelay of St Johns: My Lords, perhaps I may intervene as I have been named. On two occasions at the end of last week, I e-mailed the noble Lord with my comments. Unfortunately, on both occasions I received the message "system unavailable". I do not know whether the noble Lord's e-mail address has changed or whether the PDVN has messed things up, but I did make an attempt to notify him of my concerns.

Lord Phillips of Sudbury: My Lords, I am grateful to the noble Baroness, but I have a pigeon hole and a telephone.

I believe that having a friend present at the interview is wholly inadequate when one considers the risk in which this category of persons is placed. No reference was made to the observation of the noble and learned Lord, Lord Scott, or to the imposition of criminal sanctions under Clause 2 of the Bill. I add that the Legal Services Commission does not even have discretion to allow legal aid in a particular case. For all those reasons, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 66; Not-Contents, 132.

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