| Asylum and Immigration (Treatment of Claimants, etc.) Bill
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Mr. David Heath (Somerton and Frome) (LD): Next amendment. Mr. Malins: It is the next amendment. My goodness. Does not that show how eager I am to get to the point? I wondered, Mrs. Roe, why the hon. Gentleman did not mention it. I shall sit down. The Chairman: Order. I was wondering what point the hon. Gentleman was coming to before calling him to order, but now other hon. Members have done so. Mr. Malins: I will save the balance of my remarks, which are substantial and interesting, for later in the debate. Annabelle Ewing: I fully support amendment No. 95. I take the view that the Government's proposals go too far in lifting legal privilege, which is an important doctrine in the legal systems of the United Kingdom and has been recognised as such by the ECHR. It has also been recognised recently by the Minister's colleague, the Under-Secretary of State for the Home Department, the hon. Member for Don Valley (Caroline Flint) in the debate on the Report of the Crime (International Co-operation) Bill, in which I participated. She said:
I entirely concur with the hon. Lady's comment. What possible justification can there be for lifting professional privilege? Beverley Hughes: I hope that I can assure hon. Members that the measure is necessary and proportionate. It does not jeopardise and would not in any way be contrary to the client's interests—that is the central issue here—or the preservation of the principles of legal privilege. Clause 16 would allow the commissioner, in pursuit of his statutory remit, to regulate advisers and ensure the highest quality practice among advisers, and to seize and retain any material for which a search is authorised. In order for the commissioner to gain evidence relevant to his statutory duties, he would probably need to include material that is subject to legal professional privilege. However, this amendment would prevent the commissioner from accessing such material, even though it is likely to be of substantial Column Number: 371 value, if not essential to his investigation. I understand the hon. Lady's concerns, but I do not think that the amendment is necessary to achieve what hon. Members want to achieve.Mr. Oaten: The concern that I have is not about the individual examining that material—that is essential if they are to make a judgment about the quality of life being given—but about its disclosure, what may happen elsewhere and whether it would be used as part of the general profile of the asylum seeker. Beverley Hughes: I agree and I was getting to that point. The key issue is the question of disclosure, as the hon. Members for Winchester and for Woking have suggested. The rationale behind the doctrine of legal professional privilege is that the administration of justice requires that everybody should be able to consult a lawyer—in this case, an immigration adviser—or prepare a case for litigation, without fear that information given to their lawyer or adviser will later be revealed in court against their wishes and interests, or revealed in a process that would be against their wishes and interests. The doctrine thus protects those being advised, primarily in the context of litigation in which they are involved. Clause 16 is not intended to compromise those who have received advice from unregulated advisers and I do not believe that it will do so. The commissioner has no remit and no power to investigate the client and their immigration status. That would be contrary to his statutory remit. Onward disclosure by the commissioner of information that he has obtained during the exercise of his statutory duty is limited by section 93 of the Immigration and Asylum Act 1999. The purpose of this power is to provide information to prosecute unregulated advisers, not to investigate the immigration status of those whom they are advising. The commissioner's statutory remit relates only to the regulation of advisers. The information will not be forwarded to the IND. The concern is that the information may leak into the process of determining someone's immigration status or how we deal with them. The limitations are set out in section 93, which specifies, in addition to the fact that the person's consent must be obtained, four purposes for which the commissioner may disclose information onwards. Those would not include disclosure to the IND on immigration matters. I am entirely confident that the commissioner would not abuse his power. He is an independent regulator, his powers and duties are set out in statute and he is clear about the issues relating to disclosure. I do not believe that the limitations set out in statute and the commissioner's status and purpose as an independent regulator would allow him to pass information on to the immigration system. The purpose of the power is to prosecute unregulated advisers, not to investigate the immigration status of those whom they are advising. The power is subject to the requirement of a warrant. Before the commissioner can exercise the powers of entry, search and seizure, he must satisfy a justice of the peace on a number of conditions, which are set out in clause 16(2) and (3). Those are intended Column Number: 372 to ensure appropriate and proportionate use of the powers. If the JP considered that there was any defect in the commissioner's proposal, a warrant would not be issued.For the reasons given, I think that the clause will not result in onward disclosure to the immigration system and that, as far as the interests of the client are concerned, the principles of legal privilege will be sustained. I therefore hope that the hon. Member for Winchester will withdraw the amendment. Mr. Oaten: Again, the Minister has reassured me, particularly regarding onward disclosure, which was the purpose of tabling the amendments. I am reassured that the information that is an element of privilege will not get into what are the wrong hands from the asylum seeker's perspective but, as ever, other issues cropped up in my mind as the Minister was talking. I shall place two concerns on the record. First, we are talking about information and papers that relate to an individual asylum seeker's claim. Through no fault of their own, the asylum seeker may suddenly discover that the person advising them and, indeed, all their papers are to be taken away and investigated from the perspective not of the asylum seeker's case, but of the advice that is being given. There is a real concern that if, in a twin-track process, that individual is due to appear the next week at a critical hearing, they will have to say that they have no legal advice and they are a little bit stuffed, because all their papers have been taken away and are being investigated by someone else, which has nothing to do with them. The power is not only to look at and seize, but to retain the papers. In such circumstances, there is anxiety about what would happen. A second concern, which has just popped into my head, is that we are assuming that the investigation to examine whether an unqualified individual is giving advice will prove that they were doing so. However, there may be no such evidence. We need reassurances that in those circumstances all the papers will be given back as soon as possible so that the person who may turn out to be qualified and giving good advice can carry on doing so. As I thought of those things rather late, the Minister may not have a chance to respond to my questions. Mr. Heath: In the circumstances that my hon. Friend describes, would there not be a potential issue involving the Legal Services Commission and legal aid, especially if the ideas of the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy) about restricting legal aid for a first interview go ahead? The process would effectively have to start again after that. I hope that there will be a marriage between the administrative arrangements and the legal arrangements. Mr. Oaten: My hon. Friend makes a good third point. It is a pity we did not deal with all of them earlier. Mr. Garnier: Does not this tie in with the concerns that we expressed earlier about clause 10? Irrespective of the fact that the documents have been taken away for some other purpose, if the tribunal system concludes that it will nonetheless go on to take a Column Number: 373 decision that could be adverse to the asylum claimant's interest, that claimant has no recourse to the hierarchy of appeal courts. We should think about that more carefully. The issues that the amendment reveals are more complicated than they appeared at first blush. There are several interlocking issues that need to be considered. Charming as the Minister's response has been to these questions, she will not have had time to get her head round all of them straight away. I hope that the hon. Member for Winchester will persuade her to come back on Report with a more considered view on the whole matter.Mr. Oaten: I am grateful for the hon. and learned Gentleman's intervention, as it adds another issue. Perhaps no one on the Opposition side of the Committee read their briefings properly in advance and we should have raised these points earlier. The Minister may have detailed answers which we do not have time to hear because of my stupidity in not raising these matters earlier. However, I hope that she will reflect on the fact that although we have no concern about the clause, and we are reassured on the point about the onward disclosure of information, what has emerged in the last five minutes is concern that asylum seekers could lose out as a result of the process. If investigations are taking place and they do not have papers or an adviser, asylum seekers could end up falling foul of the system through no fault of their own. At some stage, if there is time, I should be grateful to hear what the Minister has to say on the matter. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn.
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