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No one can dispute that if Article 5 of the ECHR is to be satisfied a detained person must have access to legal representation at hearings where his liberty is in question. Although it can be argued that organisations can be funded exclusively under Clause 45 to provide legal representation, that might not always be the most efficient use of public funds. For example, if a solicitor has already been instructed by a detainee, it would be a more efficient use of public funds for the solicitor to represent the detainee at the bail hearing rather than for a file to be sent to the Refugee Legal Centre or to the IAS. If bail hearings are to be held infrequently in more geographically isolated courts, people at local level may provide a more efficient service.
I understand that some representation was made by the Legal Aid Board to the Lord Chancellor on this matter. It would be very helpful if it could be indicated precisely what the representations were and the outcome of the discussions with the Lord Chancellor's office.
Amendment No. 67A, standing the name of my noble friend Lord Cope of Berkeley, is a small and technical one. Under the Immigration Act 1971 only hearings before an adjudicator would be provided for. The wider definition of "Immigration Acts" would enable representation to be provided at the bail hearings. The noble Lord, Lord Dholakia, mentioned the strain on representation and the need possibly for voluntary bodies to be involved. Nevertheless, if a detainee has a solicitor, it enables that solicitor to be present at an early stage in the hearing.
Perhaps I may speak also to Amendment No. 97. This amendment seeks to further tighten the definition of authorised advocate by reference to the definition of "qualified person" under Clause 74(2) of the Bill. The amendment bears in mind the purpose of the Bill to regularise the professional representation of asylum seekers.
Lord Williams of Mostyn: I sympathise with many of the questions that have been put. I hope to be able to reassure the Committee about the scheme we have in mind. I cannot support any of these amendments but perhaps I ought to make our position plain. The Government intend to ensure that legal assistance is funded throughout the bail process by means of Clause 45 of the Bill. As the noble Lord, Lord Dholakia, pointed out, this supplements the funding already given for bail applications under Section 23 of the 1971 Act.
It perhaps will be helpful if I make it quite plain that we are working with the organisations currently funded under Section 23 to ensure adequate representation in all parts of the country. The Refugee Legal Centre and the Immigration Advisory Service have been, and will continue to be, involved in assessing the funding and personnel resources required to ensure that every detainee has representation at bail hearings. The Refugee Legal Centre and the Immigration Advisory Service will be part of the project group in implementing this part of the Bill. We could not have included them more fully.
I do not have precise figures but I can confirm from my own experience and from comments by various tribunals that they provide an extremely good service. When the noble Lord, Lord Avebury, said that very often the expertise is more concentrated there, that is absolutely so. There is a serious danger of other practitioners, apparently qualified, lacking the expertise to deal with these difficult matters--not least with the problems of language and culture. The Refugee Legal Centre and the Immigration Advisory Service are well equipped to deal with such problems but many barristers and solicitors are not.
The right reverend Prelate the Bishop of Ripon raised the question about whether or not these arrangements would be consistent with Article 6. Article 6(3) deals only with those charged with a criminal offence; it does not therefore go to the question with which we are dealing. However, I recognise his underlying purpose. Article 5 does not provide a funding right either. I am not saying that on the rather ignoble basis that we are not obliged to do it, therefore we shall not; quite the opposite. I am proposing that we are not obliged to do it, but we certainly shall.
Amendment No. 97 is in a distinct category. I agree with its purpose but I do not believe it is necessary. The requirement that "immigration advice" may only be given by a "qualified person" is already prescribed in Clause 74(1) of the Bill. We need to go to Clause 72(1) to see the definition of "immigration advice"; it includes advice in connection with an application for bail under the immigration Acts or Special Immigration Appeals Commission Act 1997. At the moment we are checking whether this is sufficient to cover routine bail hearings under this part of the Bill. If it is not, I intend to make appropriate changes to Part V of the Bill.
On legal aid generally, the Committee will recall that it is available in habeas corpus or judicial review proceedings challenging the legality of detention. Of course, that is on the basis of challenging the lawfulness of detention in accordance with Article 5(4) of the ECHR, to which the noble Lord, Lord Dholakia, referred.
The specific question was raised about the Legal Aid Board's consideration of representations. The board is considering Section 23 at the moment. We shall pay careful attention to any recommendations and if we need to make any further consequential changes, we shall give them every consideration. To summarise, I believe that the organisations we can fund, and with which we are working closely, should be able to offer a decent, effective and appropriate service to every detainee at bail hearings. I hope that my answers have reassured the Committee.
The Lord Bishop of Oxford: The noble Lord, Lord Avebury, made the point, as did several other noble Lords, that the organisations helping asylum seekers are very stretched and there is some doubt about whether they can meet the increased demands. The noble Lord, Lord Avebury, suggested that legal aid might be made available in an interim period until the organisations were fully able to take up the load. I wonder whether the Minister could respond to that point.
Lord Williams of Mostyn: I have dealt with that point, which was raised by the noble Lord, Lord Avebury, and by the right reverend Prelate the Bishop of Ripon. I am happy to repeat that the Refugee Legal Centre and the Immigration Advisory Service have been involved, and will continue to be involved, in assessing the funding and personnel resources required to ensure that every detainee has representation at bail hearings. They are to be part of the project group that will implement this part of the Bill. I believe that we should put funding into those organisations, which have the expertise and experience, because we require good service. They give good service, but they could do better if they had better personnel and financial resources.
Baroness Williams of Crosby: The Minister did not deal with a point that I raised in the same context. In a case that has been going on for some months or even years, with a legal representative who is himself on the registered list--that is to say, satisfies the requirements
Lord Williams of Mostyn: I shall look into the question of existing cases. It is possible that there may be some, but I cannot give a commitment on behalf of my noble and learned friend the Lord Chancellor, who is rightly determined to get the legal aid system into some sort of sensible shape. That point was also raised by the noble Lord, Lord Hylton, and I shall look at it without commitment.
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