Border Security, Asylum and Immigration Bill

Lord Bach Excerpts

Report stage
Monday 3rd November 2025 Lords Chamber

Moved by

[Lord Bach]

33: After Clause 41, insert the following new Clause—
“Duty to make legal aid available to detained persons(1) The Lord Chancellor must ensure that civil legal services in relation to any of the matters set out in paragraphs 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 31A, 32 or 32A of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are made available to any person who is detained under a relevant detention power within 48 hours of the relevant time.(2) The Lord Chancellor may make such arrangements as they consider necessary for the performance of their duty under subsection (1).(3) The duty under subsection (1) is subject to—(a) section 11 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (qualifying for civil legal aid) and any regulations made under that section, and(b) section 21 of that Act (financial resources) and any regulations made under that section.(4) In this section—“civil legal services” has the same meaning as in section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;“relevant detention power” means a power to detain under—(a) paragraph 16 of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal),(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation),(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State), or(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation);“relevant time” means—(a) the time at which a person is first detained under a relevant detention power, and(b) if a person has been released following detention under a relevant detention power, the time at which they are next detained under a relevant detention power.”Member’s explanatory statement
This amendment places a duty on the Lord Chancellor to make civil legal aid available to certain detained persons in relation to immigration matters within 48 hours of their detention.

[Lord Bach (Lab)]

My Lords, it seems appropriate that my Amendment 33 is being debated at the start of Pro Bono Week, given that it is the one amendment which deals with legal aid. At the heart of this amendment is the rule of law and the fundamental right of access to justice. As I was delighted to see in pursuing this amendment in Committee, these values are beyond party politics; they are universally accepted across the House and, I would like to think, across the country.

The purpose of the amendment is to ensure that people in the custody of the state for immigration reasons are provided effective legal advice and representation within 48 hours of being detained. At a time when we are seeing more accelerated processes—for example, the UK-France treaty—and the growth in the number of people being detained, I argue that this matter is more urgent than ever. Indeed, individuals flagged for deportation under the UK-France agreement must respond to the Home Office’s notice to remove them within seven days. As such, it is surely even more essential that legal advice is provided early and quickly, within 48 hours.

Briefly, I will remind the House of the basic problem of legal aid deserts in immigration. First, 60% of people in England and Wales are unable to access a local immigration legal aid lawyer; and, secondly, 55,000 people are unable to get an immigration legal aid lawyer when they need one. It is both the law and Home Office policy under all Governments that people should be able to receive legal advice before they are removed. There is no suggestion from any Front Bench that this should change. As such, the more effective the provision of legal advice and representation, the more effective the immigration system can become.

I want to develop three points that were raised in Committee. The first is the cost of the amendment; the second—and at the heart of the amendment—is whether the current system for providing legal advice and representation in immigration detention is working; and the third is the cost savings that will flow from improving the availability of legal aid lawyers.

First, in our Committee debate, some Peers, and the Minister himself, questioned the cost of accepting the amendment. I underline that the amendment does not expand the scope of eligibility for legal aid. Anyone who receives legal aid due to this amendment was already entitled to it. This amendment is about improving the speed and quality of that advice, which, frankly, is woeful at present.

We always understood that the amendment was, in effect, cost-neutral to the legal aid budget; it would not increase or decrease legal aid eligibility. I am grateful to the Minister for confirming this understanding in a letter that noble Lords will no doubt have seen, and which has been placed in the House of Lords Library. This is a targeted amendment meant to help the Government fix the most broken part of the legal aid system, which is liable to collapse without some fairly urgent intervention.

Secondly—and, as I say, this is at the heart of the amendment—I want to address whether the current system for providing legal advice and representation in immigration detention is working effectively. I will remind the House of the basic system. There are two schemes for providing legal advice in immigration removal centres and prisons: the detained duty advice scheme, or DDAS, and the telephone legal advice service, or TLAS.

Research going back more than a decade reveals that, since the cuts in 2011 that the House knows about well, there has been a sharp drop in people accessing the schemes I have just mentioned. A survey this year by Bail for Immigration Detainees found that only 27% of respondents held in immigration removal centres had a legal aid solicitor. This contrasts with 75% pre the LASPO Act.

Crucially, this is not because people do not want legal aid and help but because they cannot access it. In my work on this amendment, I was fortunate to speak to many immigration experts and civil society organisations, to whom I owe a great deal for their help in preparing it. These experts and civil society organisations provided many practical examples of the government schemes failing to provide the very basics of access to justice. For example, I was told of a victim of human trafficking who simply stopped hearing from his DDAS lawyer after weeks of working together. He met five other lawyers, none of whom had the capacity to take on the case. It took 15 other referrals by Bail for Immigration Detainees to secure a legal aid lawyer.

Another example is of a case concerning a vulnerable adult at risk, with serious mental health needs, who tried five times to secure a lawyer through DDAS over two months. He could not secure one and had to be supported through a charity outside the scheme. He was later granted bail by the Home Office, perhaps indicating that this was not—as some undoubtedly are—a meritless claim. The House may hear of other egregious examples during this debate.

--- Later in debate ---

[Lord Bach (Lab)]

My Lords, I thank the Minister for his response and for what he kindly offered at the end. I particularly want to thank all those who have spoken in support of this amendment. I hope the House will accept that they carry with them a huge amount of experience in this area and should be listened to with great care.

I am afraid there is a legion of examples where the system is not working as well as the Minister suggested it was from the information he has received. The classic example is the one that the noble Baroness, Lady Ludford, mentioned, which refers to the first group of asylum seekers to be detained under the treaty with France. That is not a treaty I object to—in policy terms, I agree with it—but in this particular case, they were allowed seven days to make their response and representations. A seven-day notice was served on them. Presumably, they were entitled, as anyone else in their position, to the 30 minutes of free advice. However, it seems not one of those men received any legal advice in the seven-day period. Two were apparently—I emphasise “apparently”—informed that they could not have legal advice, and only two days after the seven-day period had run out was the serious error put right with an additional advice shift.

As I say, this is not an attack on the treaty or what it is trying to do. It is an attack, if I may use that phrase, on the system that allows this to happen. The speeches that were made in support, particularly that of the noble Lord, Lord Carlile of Berriew, should make the Government think carefully about whether this system is working as well on the ground as they think it is. I hope all the government departments involved—namely, the Home Office and particularly the Ministry of Justice—will look at the system, see how it is working, keep an open mind and make changes for the better in due course.

In the meantime, I am most grateful to the Minister for his offer of a meeting after this debate is over. I will certainly take that up and I hope others will as well. I never had any intention of calling a Division on this issue. The idea behind it was to try to persuade the Government that there is a real problem here. I hope that we have managed to do that in this debate. I seek permission to withdraw my amendment.

Amendment 33 withdrawn.