Lord Bach:

Moved by Lord Bach

137: 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 statementThis 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.

My Lords, I rise to move Amendment 137. I also declare my registered interest as the unremunerated, non-executive chair of the board of trustees of the Leicester Law Centre. I remind the Committee that I am also the co-chair of the All-Party Parliamentary Group on Access to Justice.

I thank noble Lords who have put their names to my amendment and others who have expressed their support. I also thank those from outside the House who have provided excellent briefing and particular assistance to me and other noble Lords.

In the Government’s own words, the UK’s asylum and immigration system is “broken”. In few areas is this damage more obvious than in the struggle people face accessing legal aid immigration advice, due largely to so-called “legal deserts”. This stems, of course, as so much does these days, from the drastic cuts to legal aid following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, always known as LASPO. Immigration legal aid is, in the words of the Public Law Project,

“an advice sector that has collapsed”,

leaving individuals

“adrift in an ocean of unmet need”.

The facts are fairly brutal. In June 2025, the Law Society estimated that 63% of people in England and Wales could not access a local immigration legal aid solicitor. The result is that 50% of claimants are unrepresented in asylum claims and appeals. In real terms, this means that almost 55,000 people are left without a legal aid representative at the time they need one.

This amendment is about that crisis. Its purpose is to place a duty on the Lord Chancellor to make civil legal aid available within 48 hours to individuals in immigration detention. This will ensure that people who are perhaps in fear for their life, safety and future are supported at a time of obvious extreme vulnerability and helped to navigate the confusing—to put it mildly—labyrinth that is the UK immigration system. Importantly, it will also save taxpayer money by facilitating better decisions earlier on.

Recent announcements have made early access to legal aid more pressing than ever. The first people have been detained as part of the Government’s pilot of the UK-France migration treaty, which facilitates expedited deportations. In addition, the Government are intending to expand the “deport now, appeal later” scheme. It has also been suggested that the Government plan to replace tribunals with independent adjudicators to speed up appeals. On top of this, we are seeing an expansion of the detention estate, such as the reopening of Campsfield House immigration removal centre in Oxfordshire, enabling more people to be detained.

The recent increases in immigration legal aid fees announced by the previous Lord Chancellor—now the Home Secretary—are very welcome. She recognised herself that the changes were designed only to

“stabilise the system and prop up the bits that are most likely to experience system failure”.

As the Institute for Fiscal Studies has confirmed, the increases will go nowhere near restoring the Ministry of Justice budget to pre-cuts levels, with the legal aid budget being 36% lower than in 2008.

The increases announced also do not deal with the unique and urgent challenges of accessing legal advice in immigration detention and are unlikely to prevent system failure in that context. This amendment is a further step in supporting the Government’s efforts to prop up the most broken part of our legal aid system.

I want to address directly why the Government and the House should support making legal aid available for migrants in detention. First, it is to ensure the sovereignty of Parliament; if people cannot obtain legal advice and challenge Home Office decisions when they may be unlawful, the Laws passed by Parliament are, frankly, not worth the paper they are written on.

Secondly, this amendment supports the rule of law, of which access to justice is a vital part, as the Committee will surely agree. As the noble and learned Lord, Lord Neuberger, put it in 2017:

“Obtaining advice and representation does not merely mean that competent lawyers exist; it also must mean that their advice and representation are sensibly affordable to ordinary people and businesses: access to justice is a practical, not a hypothetical, requirement”.

Thirdly, legal aid is needed to make the immigration system work effectively. It is both the law and Home Office policy that people should be able to access legal advice before they are removed. Indeed, during the passage of what became the Illegal Migration Act, it was the previous Government’s firm conviction that that was the position. Therefore, without prompt and effective advice, the immigration system simply cannot function from one day to the next.

Alas, the reality is that access to justice for people in immigration detention is largely illusory. Evidence shows that existing government schemes to provide access to legal advice in immigration detention are simply not working. People detained in immigration removal centres—IRCs—are entitled to just 30 minutes of free advice via the detained duty advice scheme, the DDA. However, a survey this year by Bail for Immigration Detainees found that only 27% of respondents held in IRCs had a legal aid solicitor. This contrasts with a figure of 75% before LASPO. The situation is equally dire for those detained in prisons. These individuals are entitled to 30 minutes of free legal advice via the telephone legal advice service. However, a Bail for Immigration Detainees survey last year found that 71% of respondents had not received legal advice under that scheme.

In the words of the Jesuit Refugee Service in a report this year, access to legal advice in immigration detention is “becoming an impossibility”. Many sign up for advice but never hear back. Even when they do hear back, the lawyer will often be unable to offer detailed advice of good quality, for understandable capacity reasons. Even if existing schemes provide free legal advice to the minority who can access them, the experience of practitioners and NGOs suggests that the schemes too often fail to provide ongoing representation after that initial 30 minutes—for example, in supporting a person to bring an appeal in a tribunal where a decision against them has been unlawful. Even worse is that even when a person is not detained in either an IRC or a prison, there is no specific government scheme at all to provide free immigration legal advice. For example, those detained in short-term holding facilities and residential holding rooms are not entitled to the access that others are.

In sum, the main government scheme for providing immigration legal advice is, I am afraid, failing to provide the very basis of access to justice. This amendment is intended to support the Government to resolve this crisis.

The Committee will know that immigration law is notoriously complex; I do not need to go into the details. Evidence consistently shows that being supported by a lawyer enables individuals with a valid claim, such as for asylum or as a victim of trafficking, to submit relevant evidence and prepare their case more effectively. This helps the parties narrow the dispute and government officials to make more accurate decisions earlier on.

As the National Audit Office made clear last year, the result of failing to provide effective early legal advice in this labyrinthine system is money, time and resources wasted on all the following: court adjournments, supporting litigants in person, accommodating people in hotels, fresh asylum claims, and tribunal appeals. We cannot afford this waste at a time when the asylum appeals backlog has increased. Better we get it right first time. Modest investment now is needed to prevent even further wasted expenses in the future.

In the Government’s own words, the immigration legal aid system is in crisis and will get worse unless we grasp this nettle and carry out urgent reform. The Government’s recent actions are very welcome, particularly on funding, but they do not reflect the unique challenges of accessing immigration legal advice while in detention. Further action is needed before the system can be saved from collapse.

From both a rule of law perspective and a practical perspective, the present position is untenable. The Government need to respond urgently. I beg to move.

My Lords, I support this Amendment, to which I am a signatory. It has been admirably moved by the noble Lord, Lord Bach. He has set out in detail the rationale for the amendment, so I will not repeat his arguments. However, I would like to highlight the human impact of lack of legal aid for those in immigration detention.

Look at the scenario. Those in detention may have faced trauma such as persecution, threats to life and inhumane treatment by callous human traffickers. Following this trauma, they face a very complicated, confusing and bureaucratic system which they have to navigate. It is, in fact, extremely difficult to navigate the system without competent legal advice, and if they get anything wrong, the consequences are very detrimental to them, as this can endanger their safety in the long term.

Concerns have been expressed by His Majesty’s Inspectorate of Prisons about the detained duty service, which all the evidence shows is not easily accessible and is of doubtful quality. It gives only 30 minutes of advice, which is not enough to explain the circumstances. Furthermore, at the end of the 30 minutes, it is not clear whether they will be supported. If appeal deadlines are missed, and because of the Nationality and Borders Act 2022, this lateness is held as evidence of lack of credibility. All this is happening when those detained are locked up in prison-like conditions, potentially indefinitely.

This scenario is not exceptional; all the evidence shows that it is quite common. In short, the system of providing legal assistance and representation in detention is broken. Action is urgently needed—not least for the reasons described by the noble Lord, Lord Bach—such as the piloting of the UK-France migration deal. We need practical action to improve access to high-quality legal advice within 48 hours. This will not only be humane, but, as has been described, will increase the effectiveness and efficiency of the immigration and asylum system. I therefore commend this amendment to the Committee.

My Lords, I too have put my name to this Amendment, and I am very grateful to the noble Lord, Lord Bach, for how he opened the debate and explained the amendment.

About 42 years ago, my first task in the other place was to be a member of the Standing Committee on the Police and Criminal Evidence Bill, which was probably the most important criminal law statute enacted in my time in either House of Parliament. Paragraph 6 of the Home Office’s online summary of the Act’s provisions, which is shared with the Legal Aid Agency and the Law Society website, says:

“The police must tell you … why you have been arrested and are being detained”.

There is an analogy between what we are discussing today and what happens in cases where people are arrested in accordance with the Police and Criminal Evidence Act. Those of us who have been MPs or have worked with the police—I was once the chair of the London Policing Ethics Panel—and spent the night with police officers on duty have seen the following happen in real time in the real world. If somebody is taken into a police station under arrest, they wait to be interviewed and then a duty solicitor is found for them if they do not have a solicitor of their own. The job of that duty solicitor is to explain to them—in terms they understand, and, I hope, in a language they understand—why they have been detained.

People who are arrested for criminal offences in the ordinary course of things on a noisy Saturday night in north London do not expect to be kept in custody for a very long time. If somebody is detained under immigration detention, it must be even more alarming, because the consequences they see panning out before them are being put by force on to an airplane and returned to a country they have not been to for a very long time. It may be a very deserved return, but it must still be alarming.

For the kind of police situation I have described, it is worth looking at the statistics. Some 25% of those arrested—one in four—are not charged with any offence whatever. Mistakes are made and, sometimes, they are glaring mistakes: the wrong person is arrested, either due to mistaken identity or because they happen to be a youngster carrying the identity card of somebody who may look rather like them but is a bit older. They may be arrested mistakenly because their age has been misunderstood. There may just be a terrible mistake, which can be ironed out only if somebody is there to help them, because complete misunderstandings occur. It is very important in all cases that there should be an early Intervention, which may be very brief, in which a lawyer can be made available to advise a person whether what has happened to them is legitimate—not whether it is right; that is not the question—as part of the process.

For the sort of immigration detention we are discussing, it may be that the figure of mistakes is much lower than 25%—I accept that. However, I do not accept for one moment that there will be no mistakes. Indeed, the provision of legal aid is a key component in upholding the constitutional right of access to the courts, which is itself inherent in the rule of law. The courts have repeatedly upheld the principle that a failure to provide legal aid in what are regarded proportionately as proper circumstances can amount to a breach of fundamental rights. I cite, for example, the judgment of Lord Reed in the UK Supreme Court case, R (on the application of UNISON) v Lord Chancellor [2017], at page 51, paragraph 66. It is an undeniable right.

I congratulate the Government on some steps that they are taking to deal with immigration cases. They are speeding up the process dramatically. I hope that those cases—for example, the Afghan and Hong Kong cases—in which almost everybody is given asylum anyway will be speeded up so that they can be dealt with more or less summarily. I hope that the Government will fulfil their promise to appoint more adjudicators, judges of one kind or another, for as long as is needed to deal with the backlog. I hope they will use these adjudicators in a creative way by sending them out to where the people they are adjudicating on are situated, so that cases can be dealt with in bulk, possibly by hiring a local school or village hall or by simply setting up a room wherever those people are held, so that the cases can be dealt with quickly.

I spent a number of years as a deputy High Court judge dealing almost entirely with judicial review cases. A large number of them were dealt with by very carefully prepared paper applications, of which the judge dealing with them could manage 12 or more in a day. This process can be made very effective. If that sort of process were created, it would work, but there must be some legal advice to people—at least of a rudimentary and informative kind, in a language that they understand. It may be done by telephone, as long as it is properly managed. In an accelerated detention process, an independent reviewer ought to be appointed—I would say this, wouldn’t I?—who could report to Parliament on a regular basis, naming and shaming as independent reviewers do, as I used to do long ago and as my noble friend Lord Anderson did so effectively after he took over from me as Independent Reviewer of Terrorism Legislation, and as the current independent reviewer does.

If we were to take the steps suggested by the noble Lord in his amendment, it would build on current legal aid arrangements. Where a person is taken to a police station and it is decided that there is no criminal element to the case, but there is an immigration element, then the police, as a matter of practice, request assistance through the immigration police station advice scheme. For immigration matters that are classified as criminal offences, the details are captured by the defence solicitor call centre, which is responsible for bringing in a criminal solicitor. The proposed system implicit in this amendment would simply involve allocating an immigration lawyer to an individual upon them entering detention.

It is all very simple. It is going to happen. The Government have the opportunity to make this work in a constructive and speedy way without being sued through the courts through judicial review and forced to do it—as will happen if this is not dealt with in this Bill. I commend the amendment strongly to the Committee and thank the noble Lord for moving it.

My Lords, self-evidently I am not my noble friend Lady Ludford, but her name is on this Amendment on behalf of these Benches. The noble Lord described immigration law as labyrinthine. It certainly is. There are easier subjects in which to practise. As a society, we are very lucky that a lot of lawyers are prepared to sacrifice themselves—I do not say this lightly—to ensure that people are advised about the labyrinthine rules.

I am a member of the Constitution Committee of your Lordships’ House. At the moment, we are doing some work on the rule of law. I think we have raised with every witness the issue of access to justice. The committee is paying a lot of attention to that.

I want to pick up the reference to the 30 minutes of advice that is available. It is not 30 minutes; it is less than that, as I discovered when I visited Yarl’s Wood a few years ago. It was explained that you have to take out of those 30 minutes the time needed to bring the detainee to the room where the lawyer is holding a surgery, for want of a better word. Can it really be advice? The first job of a lawyer in this situation is to listen. In pretty much every case, if you were to do it properly, I think it must take longer than 30 minutes to have a detainee explain what has happened and what his or her history is, and not just in one period, taken consecutively. For a number of people—those who have been subject to human trafficking and modern slavery have been mentioned—it takes a long time to be able to tell that story. So there is listening, and then there is advice—or, rather, an explanation and then advice, let alone action. We know that action does not happen. These Benches very much support the noble Lord’s amendment.

My Lords, I support the Amendment from the noble Lord, Lord Bach. Had I been awake, I would have added my name to it, but I was sleeping in the Recess. He describes a situation which I do not think it is exaggerating to call critical. The numbers and percentages that he cites are shocking. The case for his amendment can be made on the grounds of fairness, access to justice and, as he said, the requirement for the Executive to carry out the Laws that this place has passed. I agree with all that, and I do not think anybody in this House would disagree.

I will emphasise a point that the noble Lord made en passant and the noble Lord, Lord Carlile, made at greater length: we should not just act on this amendment on the grounds of fairness, equity and access to justice, but it makes sense in terms of economy. The costs of the delays in the system, which must in many cases result from inadequate preparation of a case, the wrong grounds being advanced and cases being deferred and having to be heard again, must be considerable. I have no numbers to offer, but I know that, in asylum cases, 50% of initial applicants have no legal representation and, in asylum appeals, 60% have no legal representation. That must prolong the process.

Like the noble Lord, Lord Carlile, I congratulate the Government on the efforts they are making to reduce the queues for the initial application stage and for appeals, getting rid of these backlogs which grew terrifyingly under the previous Administration while the emphasis was on the Rwanda scheme and people were taken off these cases. The Government’s efforts to get the backlogs down are admirable, but they would be assisted by putting into practice what this amendment calls for, so I support it on the grounds not just of equity, which is perhaps in itself sufficient, but economy.

My Lords, all noble Lords who have spoken on the Amendment have got a deep understanding of a very complex system—the legal aid system—which I certainly do not, so I will leave the fundamentals of the amendment and how the legal aid system works to those who have a great deal of professional knowledge about the system.

However, I noted the observation from the noble Lord, Lord Bach, when he moved his amendment, that a modest investment would be required now in order to deliver the plans that he has outlined. Can he give some indication of what that modest investment would be? While accepting that it sounds like a simple question, I suspect that the answer is probably complex in terms of the netting off of savings elsewhere through a more efficient process and so forth. Can he also say what proportion of the existing legal aid budget that would represent in order to get the system to the level that he feels would be satisfactory, and where the additional capacity would come from and how long it would take to come through the system?

If the noble Lord could answer those points—or perhaps the Minister could in his winding-up speech—it would be very helpful, certainly to give some context to the non-professionally qualified Members of the Committee.

My Lords, I also support the Amendment from my noble friend Lord Bach and pay tribute to him not just for the amendment but for decades of service to access to justice, not least through successive Labour Governments and leaderships. I also congratulate him on his rather impressive list of supporters; clearly, there were many who were knocking on the door to be supporters but could not get in there quickly enough to be signatories.

I remind the Committee that we are talking about incarcerated people. This is not all migrants by any stretch, though no doubt more and more will become incarcerated in the future; there has certainly been a growth in detention in previous decades. These are incarcerated people, which means that the instinct behind the amendment from my noble friend Lord Bach is not a 1998 instinct or even a 1950 instinct; it is actually coming from a 1215 instinct—and noble Lords will understand that I do not mean 12.15 this afternoon. These are incarcerated people who are not getting access to legal advice around their incarceration and potential urgent removal from the country without legal advice. I do not think that most members of the public realise that that is the situation.

Obviously, I think this is a no-brainer, but I must try to walk in other people’s shoes and think about what the objections to the amendment might be. Clearly, if you believe that Governments and successive Home Offices and their officials always get things right and that legal process, and legal advice in particular, is just a burden and impediment and that we should ask my noble friend Lord Bach questions about how much this is going to cost et cetera, that is an obvious objection to the amendment. Another objection would come if you were of the view that non-nationals have no rights or should not have rights. If you take those two objections together, you very quickly pave the way for many more Windrush situations. I remind the Committee that nationals were swept up in that particular scandal because of the callous approach to non-nationals.

That takes me to the very important speech by the noble Lord, Lord Carlile of Berriew, comparing the lot of these incarcerated people with those who are swept up in the criminal justice system but have PACE protections that these people do not have, even though these incarcerated people are often not even accused of the kind of criminality that many criminal suspects are. These are incarcerated people; yes, for the most part they are non-nationals, but they face very serious consequences, quite possibly for reasons that are not a huge fault of their own.

If you really believe that lawyers are always a problem and always in the way, and that we should remove people with no due process at all, that is all very well, but I do not understand that to be the position of either the front bench opposite and certainly not of the Government. Why do I say that? I say it not least because my noble friend the Minister restated the Government’s commitment to international human rights and the rule of law just a few moments ago in the previous group. Given all of that, I really find it difficult to see what reasonable objections there are to the arguments made by my noble friend Lord Bach and the noble Lord, Lord Carlile of Berriew, in relation to the importance of basic access to advice and representation for this group of very vulnerable—incarcerated—people who, in addition to their incarceration, may be facing imminent removal from the country.

My Lords, I declare my interest as a practising barrister including in immigration cases—sometimes for claimants, sometimes for the Home Office. I support this Amendment for the reasons so eloquently presented by the noble Lord, Lord Bach, and those who have followed him.

I want to add one point, and it is a legal point. The Court of Appeal has explained that Article 6 of the European Convention on Human Rights, which is of course part of our law by reason of the Human Rights Act, imposes obligations on the state to provide civil legal aid in some circumstances. The question of law, says the Court of Appeal, is whether an unrepresented litigant is able to present his or her case effectively and without unfairness, having regard to the complexity of the relevant Laws and the importance of what is at stake. Applying those criteria, you decide whether there is an obligation to provide civil legal aid. Those criteria were stated by Lord Dyson, the then Master of the Rolls, for the Court of Appeal, in the case of Teresa Gudanaviciene v the Director of Legal of Aid Casework and the Lord Chancellor—a case reported in vol. 1, 2015, of the Weekly Law Reports, page 2247 at paragraph 56.

If you seek to apply those criteria to immigration detention, it seems to me that the answer is very clear: there is an obligation to provide civil legal aid. Why is that? Because the law in this area is highly complex, and the issues are of great significance to the person concerned. As the noble Baroness, Lady Chakrabarti, has emphasised, the person concerned is incarcerated. It is wholly unrealistic to think that an unrepresented litigant, who may after all speak little if any English, will be able present their case effectively—that is the test—and without unfairness, if they lack legal representation.

The Government have emphasised repeatedly the importance of complying with their human rights obligations—the Minister has said that; I have heard him on many occasions. I suggest to him that this commitment requires Ministers to look favourably on this amendment and, indeed, to answer the point made by the noble Viscount, Lord Goschen, to do so irrespective of the cost. I do not think the cost would be more than a tiny proportion of the legal aid budget, but that is not the point. The obligation is irrespective of the cost. I hope the Minister will be able to tell us, when he replies to this important debate, that further thought will be given to this issue by the Government before Report.

My Lords, not being a lawyer, I feel more qualified to speak on this than anybody else.

The reality is that legal aid across society is, in effect, a rationed resource; it cannot be universally applied. The noble Lord, Lord Pannick, made a point about obligations, and Parliament has been perhaps unwise in the past to have open-ended obligations when we cannot deliver them. The Minister will no doubt have some figures on this but, if more money is allocated through the legal aid system to asylum and immigration cases, either the budget will have to expand or money will be taken away from other areas. It is a simple matter of arithmetic. This is about choice and priorities, and they need to be matched with obligations that we have shown ourselves unable to meet.

On the point that the noble Lord, Lord Kerr, made in his contribution, it would be invaluable for the Committee to have some factual evidence. A point was made that if cases could be made to go more quickly, with fewer adjournments and appeals, savings could be made—and maybe they could be—but we are flying blind because we do not have the facts. I do not know whether they are obtainable or whether this can be looked at before Report, but it would be extremely helpful to have some factual evidence to support this.

Unless the Government expand the budget for legal aid, something will have to give somewhere. If more money needs to go into this area, less will have to be spent somewhere else. It is not a hugely challenging intellectual concept. It would be most helpful to hear in the Minister’s reply whether he has any facts at his disposal. The Committee would be in a much stronger position to take a decision when we have that information.

My Lords, I was not going to speak in this debate because we have had a fantastic presentation by the noble Lord, Lord Bach, and the legal arguments were made by the noble Lords, Lord Pannick and Lord Carlile, and the noble Baroness, Lady Chakrabarti. They gave the legal basis for why this Amendment ought to be accepted, but I am going to go in another direction—that of ethics.

We as a society may say to ourselves, “We are built on the rule of law and in everything we do it is a mirror by which we are judged”. Then we get strangers whose language is not English and whose background is not that of our culture, and we say, “We really uphold the rule of law”. The best way to know whether we are doing that is, first, that no one is above the law, and, secondly, in how we apply the rule of law to those unfortunate to find themselves facing immigration questions so that people see that this is a society that does not simply talk about the rule of law but upholds it. We are going to be judged by the rule of law.

Immigration is its most testing point. Immediately, people say that such people could be illegal and ask why we should give them legal aid, as it is going to be costly. But I am with the noble Lord, Lord Pannick: the question of cost cannot in the end trump the rule of law because, if you do not get good representation, you will find those cases going to appeal. If we have not carried out our obligations, we will find this question of the rule of law to be just words and words.

Let me put it another way. Any civilised society that abides by the rule of law will be judged by the way it treats the stranger—the one whose habits and behaviour are not our norm. In the end, if this amendment is not allowed, something similar to it must be, if we really believe that we are a society built on the rule of law.

We will know what we are when we treat the stranger with great disdain and think that anything will do. I know of many immigration appeal cases that happened because there was no legal representative. I know that some cases go wrong because they have not hired a legal person who understands the nuances. If we want to speed this up and hold a mirror to our society, it is what we do, particularly towards the stranger, that demonstrates how we uphold the rule of law. If we cannot, we should stop using these words.

My Lords, we on these Benches agree that detained persons should, of course, have access to good legal representation when they are detained. This Amendment pertains to legal aid for those detained persons. As noble Lords are aware, legal aid is already provided for those who bring asylum cases or other matters such as immigration bail, certain applications by victims of domestic abuse or trafficking, proceedings before the Special Immigration Appeals Commission, asylum support applications and applications made by separated children. Put simply, this support is already clearly in place. It is our position that extensive provision is already made and at significant cost.

My Lords, I am grateful to my noble friend Lord Bach for his Amendment and for the support of the noble Baroness, Lady Prashar, the noble Lord, Lord Carlile of Berriew and the noble Baroness, Lady Hamwee, on behalf of her noble friend Lady Ludford. I have also heard contributions from the Floor of the Committee from the noble Lords, Lord Kerr of Kinlochard and Lord Pannick, my noble friend Lady Chakrabarti, and the noble and right reverend Lord, Lord Sentamu, all of which were broadly in support of my noble friend Lord Bach’s Amendment 137.

This amendment would impose a duty to make civil legal aid available to detained persons within 48 hours. I am going to repeat what noble Lords have said already, because it is important to put it on the record. People detained under immigration powers in prisons and in immigration removal centres are provided initially with 30 minutes of free legal aid advice through the detained duty advice scheme—DDAS. This is a triaged appointment which supports people to meet with a legal provider who may provide further advice, subject to the matter being within scope of legal aid and the detained person’s eligibility. I want to be clear that there is this 30-minute availability, as noble Lords have mentioned. It is important to re-emphasise that, following that DDAS assessment, whether a legal representative accepts or takes on a case is subject to a merit test and to a decision about independent legal representation, in line with legal aid. There is already some scope for reassurance. I hope that the Committee can accept that this well-established service is in place to provide people with quick and easy access to legal provision.

I am conscious that my noble friend Lord Bach mentioned the take-up. I fully accept that this is an important matter for him, and for the Committee and the Government to consider. Take-up is monitored by officials from the Home Office and the Ministry of Justice. It will be examined in detail. I am happy to look at how we can improve take-up of the initial provision, but the initial provision is there.

The questions posed by the noble Viscount, supported by the noble Lord, Lord Empey, are questions that I mused on while sitting on the front bench waiting to make my contribution. We are in a situation where, as I have just explained to the Committee, a 30-minute window is given. We can examine take-up and look at how we can encourage it, but a 30-minute window is given. On the merits of that 30-minute window, further action could be applied for, subject to the test. The question that has been put, which I want to echo, is: if the 48-hour position is there—I accept what my noble friend said—what is the quantification of that? What is the cost of that?

My noble friend Lady Chakrabarti has made the point that it is either a matter of principle or a matter of cost. It cannot be both. I am saying simply that if the Government were to accept this amendment, I cannot answer the points made by the noble Viscount because I do not know what that commitment is. The noble Lord, Lord Empey, asked where that resource comes from—existing legal aid or an increase in the budget. Those are valid questions, and I cannot answer them honestly to the Committee today. It might be a matter of principle, and I accept that could be the position that Members wish the Committee and the Government to take, but at the moment it is not a costed matter of principle and cannot be judged accordingly. That does not mean that it is not a valid principle, but the argument I have put is that that basis of advice is available and it can be expanded accordingly.

The noble Lords, Lord Carlile and Lord Kerr, were gracious in mentioning that the Ministry of Justice, for which I am not accountable in this House—although I am speaking on behalf of the Government as a whole—has uplifted the housing debt, immigration and asylum legal aid fees scheme. It has injected an extra £20 million into the civil legal aid sector each year. It has increased overall spending on immigration and asylum work by 30%. It now includes paid travel time when providers attend to give in-person advice. It has given a lot of extra investment and support. That has been done for the purpose—again, I am grateful for the comments that have been made—of speeding up asylum claims, getting those asylum claims processed and finding that people either have a genuine asylum claim, in which case we move on to stage two of finding how we can resettle those individuals, or they do not have an asylum claim, in which case they are then subject to potential removal, subject to appeals as currently operated.

I say to my noble friend, and I speak on behalf of the Government, the MoJ and the Home Office, that that support is in place for that initial assessment. There is support in place potentially to take it further if certain tests are met. I understand that there is a need to examine the take-up on the assessment. Additional resource has been put in. Overall, that is where we are. My noble friend’s amendment is still open to the test that the noble Viscount and the noble Lord, Lord Empey, have put to it, reflected by me.

I am listening very carefully to what the Minister says, but does he not agree that the very high percentage of these cases that reach an appellate level in which the litigants are not represented by lawyers is alarming evidence that if legal aid is available at an early stage, it is not having much effect?

I am grateful to the noble Lord for that Intervention. I do not have before me, although I perhaps should, the figures to which he refers, but Ministers can certainly examine, and look at how we improve, that. It is in the interests of the Government—never mind of the individuals who are seeking asylum—to ensure that we have speedy, correct asylum decisions that get to the heart of the person’s asylum claim as a matter of urgency, rather than going through tortuous numbers of appeals and other legal matters. We must get to a position whereby the Government can determine whether someone has a legitimate asylum claim and, if so, can act upon it or, if not, can take action to deny that asylum claim and put in place the consequential action to be taken.

So the Goschen/Empey number is neither here nor there. It is not a watertight compartment. The country can decide how much money to put into legal aid. There is also an offsetting benefit, which the Minister has been explaining, from speeding up the process, making sure that good decisions are taken and courts’ time is not wasted. So the Goschen question, to be honest, is irrelevant to this issue. My argument for economy is based on taking the two things together: the speed of the system, the cost of delays, unnecessary detentions and backlogs of asylum cases versus the undoubted additional cost of legal aid.

I am grateful to the noble Lord, Lord Kerr. I put it to the Committee that I sense that my noble friend Lord Bach’s Amendment is now being interpreted as being potentially much wider than certainly I took it to be on initial examination of that amendment.

Recess has meant that we have not had as much discussion about that as we may have wanted to have. The main point here is that, under current MoJ/Home Office determinations, 30 minutes is available, and subsequent legal support is available subject to tests of eligibility, et cetera. I think that goes parallel to the wish of the Government to put in additional advisers to speed up applications, to make sure that there is better-quality initial decision-making, but I am always grateful to be advised by the Committee.

My Lords, I am grateful to my noble friend the Minister for giving way. While he is still on his feet—I love that device—and before my noble friend Lord Bach responds, I think I am hearing an understandable response to the noble Viscount, Lord Goschen, and the noble Lord, Lord Empey, that at the moment none of us has a view of precise figures, but we could examine that, and maybe that should go into the mix of a future discussion on Report.

However, I have to agree with noble Lords who have said that this is not a zero-sum game between justice and efficiency. Indeed, I just wanted to ask my noble friend the Minister whether he agrees—I think he indicated that he does—with judges who have had to deal with cases of unrepresented people about how much time and energy that adds to hearings that, I believe, the Government actually want to speed up. In any calculation that the Minister comes back with on Report, I hope that officials will add that component for delay—an unrepresented person in an asylum case; that should go into the mix.

I am grateful to my noble friend. I draw the Committee back to where we are at the moment: an individual in detention can have 30 minutes’ worth of legal advice very quickly after they have requested it. There may be an issue around take-up. We are monitoring take-up on a regular basis and want to increase that take-up, but that 30 minutes is there. If further advice is required, on the merits test that can be taken forward as of now.

My noble friend’s Amendment may take that issue wider than that discussion. It is the Government’s objective to speed up claims to get to decisions on asylum. We are doing that through executive action, not legislation, increasing the number of people taking decisions and making it much quicker and fairer, because that is in the public interest, as has been mentioned by all. I do not think we are going to resolve that issue in Committee today. I have tried to set out where I think we are, and my noble friend has tabled his amendment.

Serious questions have been raised on these issues by me, by the noble Viscount and by the noble Lord, Lord Empey. I ask my noble friend to withdraw his amendment, because I believe the Government’s case as I have put it is the right course of action on those issues. If we are going to have even further discussion on the points he has made, we need to have some better information on which to base it, even though I accept that for some members of the Committee, that becomes a matter of principle.

I am very grateful. The noble Lord has been very generous with time on this important matter. I entirely understand his point that further factual information is required. Will he do his best to ensure that we do not wait until Report to receive that information, and that at least those who have spoken in this debate and the Library generally receive a written explanation of the factual position as seen by the department on the cost of implementing the Amendment of the noble Lord, Lord Bach, the 30 minutes, and the take-up? Will he also commit to meeting with noble Lords who are concerned about this matter, in particular the noble Lord, Lord Bach, so we can see whether there is a way forward prior to Report?

I am grateful for that Intervention. The points made by the noble Lord, Lord Pannick, are valid and I will do my best to examine them. Some of these issues are within the Ministry of Justice, not the Home Office, but I will examine those points in detail and make sure that we respond to those who have spoken in the debate and potentially put a note in the Library of the House accordingly.

I want to re-emphasise that the Government strongly believe that there is a good offer at the moment. That offer is available to all who seek it, and there is the potential for further advice if the case merits it and for us to examine how we monitor take-up. I will certainly look at the points that have been raised, but in the meantime, I ask my noble friend to withdraw his Amendment.

My Lords, I start by reminding the Committee that in this very complicated and important Bill, this is the only Amendment, and therefore the only discussion there has been, on the legal aid issue, so I do not apologise for the time this debate has taken. Everybody who has spoken, on all sides, has taken this issue seriously, as they ought to, because it is very serious, given the principles behind the rule of law. I was pleased to hear the noble Lord on the front bench repeat what I knew to be the case—that that side as well as this side, and all sides of this House, believe it important that the rule of law applies when non-nationals are detained, and that those people are as entitled as anyone else to have the benefit of legal advice. That is a big principle and the one behind this amendment, so I am glad it is accepted.

I am really grateful, in that no mover of an amendment could have enjoyed a more expert team of people speaking on behalf of the amendment—or, indeed, not on its behalf. Every contribution was important, not least of all that of my noble friend the Minister, who in his usual courteous way listened to the debate and answered it as well as it could be answered.

I do not think this is the end of the matter. I am not looking for some wider decision about legal aid; if you pressed me to do so then of course I would, but in a different context. Here we are just talking about immigration and asylum legal aid. While we all think the Government have made important strides in this area, I am afraid we have the legacy of 36% less now being spent on legal aid than in 2008. That is a shocking figure for a country that believes in the rule of law.

No, this is about asylum and immigration legal aid. We accept that there is some sort of system, but where some of us part company is on saying that that system is working adequately at the moment, particularly in an area that has really taken public opinion and is the most important thing in many people’s minds. It is important sometimes to make the point that everyone is entitled to some legal advice.

Contributions at the end of the debate from the mover of the amendment are supposed to be short and we have lots of business to do—the Whip is smiling at me—so, while thanking everyone for what they have said, I will say briefly that this is both a practical issue and a rule-of-law issue, but those will come together if we play this right. If my noble friend the Minister could meet some of us before we get anywhere near Report, that would be extremely helpful. I am going to withdraw the amendment, and I always was, but I thank noble Lords again for the debate. I beg leave to withdraw the amendment.

Amendment 137 withdrawn.