Asylum and Immigration (Treatment of Claimants, etc.) Bill

Part of the debate – in the House of Lords at 6:37 pm on 18 May 2004.

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Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 6:37, 18 May 2004

My Lords, although the Marshalled List does not say so, Amendment No. 25 should appear after line 25 on page 10 of the Bill. It would insert a new clause after Clause 8.

The history behind the amendment is simple. On 31 March this year, the Community Legal Services (Scope) Regulations came before the House. Their effect was to remove legal aid for initial asylum interviews, bar the two exceptional categories of minors and persons with mental incapacity. For all other cases, the situation that prevailed up to 31 March was withdrawn; legal aid was no longer available.

On 27 April in this House, I moved an amendment—it can be found at col. 750 of Hansard—that sought to undo the Community Legal Services (Scope) Regulations altogether and simply restore the state of affairs vis-à-vis legal aid that existed prior to 31 March. That was not put to a vote. In the interim, in an endeavour to reach a compromise that will appeal to both the Government and the House, I tabled—after a great deal of consultation with ILPA, the refugee legal service and others—Amendment No. 25. It would extend the exceptional categories in which legal aid was available for the initial asylum interview to three other groups; namely, torture and rape victims, applicants who have had inflicted on them "serious physical harm", and those who have,

"a reasonable fear of being tortured, raped or so harmed if returned to", their country of origin.

There is no dispute between those who support the amendment and the Government on the benefit of lawyers in the immigration and asylum process. The noble and learned Lord, Lord Falconer, has said:

"I am wholly committed to keeping good lawyers within the legal aid scheme . . . We recognise that these lawyers provide value for money to the Government and the taxpayer . . . They deal with difficult cases, often in difficult conditions".—[Hansard, 4/5/04; col. 998.]

That very precisely sums up the role of the lawyer in an initial asylum interview.

I also call in aid the noble Baroness, Lady Scotland, who said when we debated the matter:

"We recognise that there are important exceptions where it is right that an applicant has his or her representative at the interview".

She went on at some length to say that the Government, far from wanting to see lawyers removed from the asylum interview process, sought to improve the standard of legal advice and assistance at those interviews. She called it "targeting excellence", and said that my amendment was,

"undesirable as the regulations have removed attendance in unnecessary cases and will help ensure quality representation in the exceptional cases".—[Hansard, 27/4/04; cols. 755–56.]

Therefore, I want to turn to the issue of exceptional cases. I have sought to demonstrate that the Government maintain not that lawyers are unnecessary but that they are needed only in exceptional cases.

I corresponded with the Minister in the other place, David Lammy. His view on exceptional cases was contained in a letter that he kindly wrote to me on 23 April from which I quote:

"In relation to further categories of exceptions"— that is, exceptions to the "no legal aid" rule—

"such as rape or torture victims, at present, 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".

That is a statement that many find extremely difficult to understand and impossible to agree with. The noble Baroness, Lady Scotland, when summarising the position of the Government on 27 April, said:

"The noble Lord, Lord Phillips, raised the issue of rape and torture victims not being included in the exceptions. That is not necessarily incompatible with presenting their cases. If they can show that they are suffering from a mental incapacity as a result of torture or rape, the interview will be permitted".—[Hansard, 27/4/04; col. 756.]

That is covered by legal aid. I believe that most noble Lords would consider that to allow legal aid only for initial asylum interviews of those who have been raped or tortured but who also suffer mental incapacity—but not for those who do not suffer mental incapacity—is bizarre and wholly untenable.

I add this point. The Government laid some stress—this was discussed in the debate on 27 April—on the new induction procedures that the Home Office is pursuing vis-à-vis asylum seekers. It maintains that the induction process has largely done away with the need for legal advice in these crucial early stages. In writing to me, David Lammy made that point.

The DVD that will provide asylum seekers with information on the induction process—it is an entirely automatic process—states: "You"—that is, the asylum seeker—

"can seek legal advice if you want it; but the Home Office do not believe that you need legal advice to tell Asylum Casework about your reasons for claiming asylum. They will not postpone interviews with you so you can get legal advice or be represented".

That is not a fair or an adequate explanation of the state of affairs confronted by asylum seekers when they arrive here. Later the same DVD states:

"It is vital you give the interviewing officer all the information you want to be considered and it is also your opportunity to provide evidence or papers to do with your application, for example—medical certificates".

Given that that is a single sentence flashed across a screen before an audience of asylum seekers, it might just about be understood by someone who speaks English fluently, is in command of their faculties, understands the culture in this country, has a little knowledge about the workings of the law and preferably some knowledge of the workings of the asylum system and is middle class and well educated.

I put it to the House that the process that now prevails makes the need for legal representation in this crucial initial interview absolutely essential for anyone in the three extra categories that are set out in Amendment No. 25. Today I shall not go into detail, as I did on 31 March and 27 April, on how crucial that first interview is. Everyone agrees that that is the rock upon which the whole process is built. I quote briefly from the noble Lord, Lord Filkin, when he summed up on 31 March:

"I also agree with the noble Lord, Lord Phillips, that the first interview with an immigration officer is a crucial factual ground. It is fundamentally important to have the facts of the applicant's case clearly set out and established as early as possible in the process".—[Hansard, 31/3/04; col. 1424.]

I try not to engage in unnecessary rhetoric, but I end with this point: as a very long-in-the-tooth lawyer, I find the state of affairs as presented by the Government to this House on two occasions, vis-à-vis torture and rape victims, simply unacceptable in a civilised society. It makes me wonder what the good Lord Atkin must be thinking in his grave in the sky: the judge who, in the middle of a war when we were fighting for our very survival, expressed sentiments vis-à-vis the oppressed, the weak, the unpowerful and the unpopular in Liversedge v Anderson. In denying legal aid to such cases, I believe that the Government are not living up to their own standards and their own aspirations.

The basest of arguments is that this proposal is a waste of money. It is said that this piece of cheese paring will save £12 million to £15 million. It will cost far more than that due to the increased number of appeals that will necessarily result from lawyers—my amendment talks of solicitors and other accredited legal personnel, not the outdoor clerks who the Government spoke of at previous stages of the Bill. We are ensuring quality. Without question, the Government will save not lose money by agreeing to this class of exceptional cases.

I have consulted adjudicators who tell me, unequivocally, that the length of appeals coming to them is by a very considerable margin added to by a bad initial interview and by a bad initial adjudication based on that initial interview. With those few words, I beg to move.