Illegal Migration Bill

Lord Bellamy Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, it is always a rewarding experience to find oneself largely in agreement with some of the sentiments that have been expressed. On the issue of legal aid, Clause 54 ensures that individuals who receive a removal notice under the Bill have access to free legal advice before removal and, in so providing, it is one of the keystones of the Act. It is absolutely essential that free legal advice is available to persons before removal. That is important for the reasons that have just been given. It is important that people understand the process and that it is a fair and efficient process. No one would disagree with any of those sentiments expressed in the Chamber today.

It is important to emphasise that, unlike most civil legal aid, legal aid in the context of the Bill is being made available without a merits test, nor a means test—as a matter of statutory instrument, that will be provided in due course.

To answer the first question from the noble Lord, Lord Ponsonby, we are in close discussions with the authorities in Northern Ireland and Scotland, where I anticipate the position will be exactly the same as it is in England but, obviously, that has to be covered. As has been rightly said, legal aid is, in the context, essential for speedy but fair decision-making. Those basic points are essentially common ground.

I will now deal briefly with the amendments. Government Amendment 119A in this group simply corrects the references to the clauses in the Bill under which advocacy in the Upper Tribunal can take place, and adds a reference to the tribunal procedure rules, since the clause as tabled in the other place at a late stage needs to be corrected in those technical aspects. That is all that Amendment 119A is.

I turn now to Amendment 92A, tabled by the noble Lord, Lord Alton, and moved by the noble Baroness, Lady Ludford, which seeks to make provision for legal aid for potential victims of modern slavery subject to removal for possible referral to the NRM. In the Government’s view, this amendment is not required, as Clause 54 already provides free legal advice for anyone issued with a removal notice under the Bill, and that legal aid is available irrespective of the merits or means.

The Committee has just accepted that Clause 21 stand part of the Bill, so I respectfully say that it does not seem correct for me to reopen or rediscuss the various arguments which have been debated at length this afternoon in relation to modern slavery. In practice, if Clause 21 stands part of the Bill, as the Committee has just agreed, the basis for this amendment, in the Government’s submission, largely falls away and it is not at all clear that there is any remaining practical purpose in pursuing the amendment. That is the Government’s position on Amendment 92A.

As far as Amendment 120 is concerned, spoken to by the noble Baroness, Lady Ludford, which seeks to ensure the availability of civil legal aid services for various claims, challenges and legal proceedings covered by the Bill, the Government’s position is that Clause 54 already effectively provides for that. The Lord Chancellor already has a statutory duty to ensure that legal aid is made available to individuals where it is required under LASPO. By virtue of Clause 54, legal aid will therefore have to be made available to individuals in receipt of a removal notice, in relation to that removal notice, to take advice in making a suspensive claim either on factual grounds or on grounds of serious irreversible harm. This is, as I said a moment ago, an essential feature of the Bill to ensure fairness to those facing potential removal under the powers in the Bill. There are other existing provisions in LASPO that make legal aid available in relation to protection claims, human rights claims, modern slavery, detention and habeas corpus. But the key need here in this Bill is for legal advice before removal takes place and legal advice in relation to making a suspensive harm claim or a suspensive factual claim.

Finally, Amendment 120A tabled by the noble Lord, Lord Bach, who I know follows these matters with great interest and great integrity and has over the years been very concerned indeed about the provision of legal aid, highlights the practical importance of making sure legal aid actually is available. The same point has been made by the noble Lord, Lord Ponsonby, and others. That is a very important aspect that the Government and the Ministry of Justice in particular are fully seized of at the moment. As noble Lords can imagine, it provides a considerable logistical challenge, because it depends on a number of factors: where the potential removees or detainees are; how they can be accessed; who is going to provide the advice; whether there are enough people to do it; whether they are trained up enough; whether it can all be done in the short time limits provided by the Bill. Those are all matters with which the ministry is currently seized. We are working extremely closely with the Ministry of Justice and the Home Office to ensure that legal aid is really made available to those who need it. I venture to hope, most sincerely, that we are not in a position where any significant proportion of the persons concerned fail to get legal aid. It would not be acceptable, in the Government’s view, for very large numbers of people to be removed without the benefit of legal advice. It is a problem that the Government have to solve and are working to solve.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I do not want to take us back to the impact assessment issue, but it would certainly be helpful to know before Report where the Minister’s department is going in relation to the work he referred to. We should have a much clearer idea, by the start of Report, as to the extent to which his department is able to give guarantees that a proper legal aid system would be in place, effective and able to operate.

[Lord Bellamy (Con)]

My Lords, I hear what the noble Lord says. It is an entirely reasonable question. I will take it back to the department and do my best to see how far we can satisfy that completely understandable request. The Government accept that legal advice should be available in practice and quickly, and they are working on that with intense attention at the moment but, in relation specifically to Amendment 120A, do not feel it is appropriate or feasible to provide for a statutory obligation to deliver within 48 hours, which is what the amendment calls for.

However, there should be a system that enables people effectively to take advice within the strict periods of time set out in the Bill, which are subject to extension—we do not yet know how that will work, but they can be extended by the Secretary of State and the Upper Tribunal. I hope your Lordships will accept that the general position on legal aid in Clause 54 is a positive provision in the Bill and that removing the means test and merits tests is correct in the circumstances. Properly administered and operated, this will be a very important safeguard for those affected by the provisions in the Bill. I hope the noble Baroness will withdraw the relevant amendment.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for his reply. I welcome Clause 54 being put into the Bill—it is better than it not being there—but several problems arise. First, Clause 54 says in terms of LASPO only that:

“Sub-paragraph (5) does not exclude services provided to an individual who is subject to removal”.


It does not do anything to make sure that that legal aid for advice and representation will appear, which is the reason for the importance of the amendment from the noble Lords, Lord Bach and Lord Hunt of Kings Hunt, about a duty to provide legal aid, as there is no guarantee. There is also no guarantee that Clause 54 will deliver any legal aid before this Bill comes into force as an Act. What will the Government do in practice to deliver that legal aid?

Secondly, Clause 54 benefits only people who are subject to removal and have, presumably, already had a removal notice. The concern that motivated Amendment 92A was that it should be available not only to individuals who are subject to removal under this Act but to those who might reasonably expect that they would be. They ought to be able to get advice so that they can give informed consent to a trafficking referral; they need to know what the implications and consequences could be. With respect, I do not think the Minister covered either of those points.

Finally, we do not appear to be getting the message across that the better informed and supported people are, the greater the benefit to the Government will be in being able to have faster processes. Clearly, those processes are not working at the moment—we would not have this incredible, appalling backlog if everything was going swimmingly with processing efficiency. I cannot speak for the noble Lord, Lord Bach, but I think we are inspired by the idea that you could streamline the system and try to avoid delays in highways and byways if people were properly legally informed of their rights. The Minister is a lawyer, so I am sure he gets that point, although unfortunately I have not heard him express it. All that said, I beg leave to withdraw Amendment 92A.