Clause 54 - Civil legal aid under section 9 of LASPO: add-on services in relation to the national referral mechanism

Nationality and Borders Bill – in a Public Bill Committee at 2:00 pm on 2nd November 2021.

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Question proposed, That the clause stand part of the Bill.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to consider clause 55 stand part, as announced by Sir Roger at the end of the morning sitting.

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

Identifying and supporting victims at an early stage is a key part of the Bill, and the new one-stop process. To underpin that process, clause 54 provides for legally aided advice on the national referral mechanism to be provided to individuals who are already receiving legally aided advice on an immigration or asylum matter. The additional advice will be free to the individual.

The provision of legally aided advice under the clause will help the individual’s lawyer to provide holistic advice on the individual’s situation as a whole, looking at the range of protection-related issues, including modern slavery. Advice under the clause will additionally help to identify and support potential victims of modern slavery at an earlier stage. Potential victims of modern slavery will be able to understand what the NRM does and able to make an informed decision as to whether to enter it and obtain the assistance and support provided under it.

The Government are firm in our commitment to identifying and supporting all victims of modern slavery. The clause seeks to ensure that individuals are provided with advice on the NRM at the same time as they are receiving advice on an asylum and immigration matter, which will enable more victims of modern slavery to be referred, identified and supported.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

It is a pleasure to see you in the Chair, Ms McDonagh. Clause 54 amends the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to enable advice on referral into the NRM to be provided as add-on advice where individuals are in receipt of civil legal services for certain immigration and asylum matters. Although I and many other colleagues welcome the fact that the Government have recognised the importance of legal aid as part of the process, we argue that legislating for it only as an add-on misses the opportunity to extend access to all those who would benefit from it—I include the Home Office as one of the main beneficiaries of people having access to proper advocacy and advice from an early stage.

In England and Wales, 63% of the population do not have access to an immigration and asylum legal aid provider, due simply to a lack of provision—what is known as a legal desert. Where there are providers, many are operating beyond capacity. Sadly, it is therefore commonplace for support workers to be unable to find lawyers for clients who are victims of trafficking.

It is not reasonable to expect vulnerable victims to be able to navigate the system without legal representation. It is vital that this is provided at the earliest stage possible. As the Public Law Project and JUSTICE have pointed out:

“The provision of legal aid to individuals who seek redress is not simply a matter of compassion, but a key component in ensuring the constitutional right of access to justice, itself inherent in the rule of law and an essential precondition of a fair and democratic society. Failure to provide it can amount to a breach of fundamental rights under the common law and/or the European Convention on Human Rights.”

We believe victims deserve better than what is set out before us in the Bill. The Anti Trafficking and Labour Exploitation Unit has highlighted how the single competent authority is currently sending out template witness statements as a guide for how they should be prepared. They warn of the legal implications of the document even in the absence of a lawyer. That is unacceptable. I am sure the Minister agrees that it would make for an improved system with more integrity and fewer errors—the very sort of system he proposes—if a broader approach to legal aid was adopted.

It is also fair to argue that access to legal aid remains somewhat of a postcode lottery, with many outside London and the south-east experiencing difficulties in accessing legal assistance. I take this opportunity to highlight the great work of the Anti Trafficking and Labour Exploitation Unit in attempting to widen access, having developed an online referral system for support workers to simplify the process for sourcing legal aid representation. However, it should not fall to organisations such as ATLEU to plug the gaps in the system. We wish to see improved access through this clause.

Similarly, the Government state in the explanatory notes to the Bill that clause 55 is designed to provide an add-on to legal aid on referral to the NRM if the victim has been granted exceptional case funding and is being advised in relation to the claim that their removal from or requirement to leave the UK would breach the Human Rights Act 1998. That means that clause 55 does not provide a route to pre-NRM advice for those who are not already in receipt of legal aid via the scope of another matter, and therefore does not provide free legal aid pre-NRM for all trafficking cases.

In scrutinising these measures, we have worked closely with the Immigration Law Practitioners Association, which I thank for having been so generous with its expertise, as I know it is for MPs right across the House, and for providing real-life examples that demonstrate the scale of the issue. It said:

“We assisted the pro bono department of a non-legal aid law firm when they helped a potential survivor apply for exceptional case funding—ECF—in August 2020. The funding was requested in order to provide advice on an NRM referral and associated immigration advice. This application was refused. A request to review the decision was refused. A decision on a second review is pending a final decision from the Legal Aid Agency. One ground of refusal at first review stage was that no decision had yet been made to remove the individual as they had not come forward to the authorities, and if a decision to deport or remove a client from the United Kingdom is made, an application for ECF could be made at that stage. The application remains undecided 13 months after the original submission.”

The system is a mess, Minister. It is the Opposition’s view that free legal aid and advice for potential victims of slavery and trafficking in the UK pre-NRM should not be limited to cases with existing immigration and asylum aspects. Only then will the Government’s offer of legal advice on referral to the NRM work in practice. In summary, the proposals contained within clauses 54 and 55 do not fully address the existing shortcomings in the system—another missed opportunity.

Question put and agreed to.

Clause 54 accordingly ordered to stand part of the Bill.

Clause 55 ordered to stand part of the Bill.