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Lord Avebury: My Lords, my noble friend referred to the remarks of the noble and learned Lord, Lord Falconer, who said that he is committed to keeping good lawyers within the system. But we know that that is already being contradicted by the experience of good lawyers, such as my noble friend's firm which has left the system because of the legal aid restrictions and because it is not possible to represent clients properly with the inadequate number of hours that are now allowed. One example of that is that no representations are permitted at the initial interview, other than for the categories mentioned by my noble friend, plus applicants going through fast-track initial decision processes.

My view is that my noble friend's amendment is too restrictive. I would rather see the categories to which assistance is being given at this stage of the process extended to all those who are considered to be vulnerable by the EU reception directive. That means minors and unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minors and, as my noble friend suggested, persons who have been subjected to torture, rape or other forms of psychological, physical or sexual violence.

I agree wholeheartedly with my noble friend that this will cause unnecessary expense at later stages in the process. If such vulnerable people are not taken care of at the start of the process, inevitably there will be further complications when cases come to the adjudicator stage or, until it is abolished, to the tribunal.

Every noble Lord who has spoken in previous debates on the Bill has pointed to the fact that the initial stages in decision making are always key to getting asylum right. Skimping and trying to economise at the initial interview, especially with such vulnerable people, will be to the detriment of the asylum process as a whole. I hope that the Minister will view the amendment sympathetically. Although he is not prepared to restore legal aid to the whole of the interview process, as my noble friend requested in Committee, I hope that this rather modest suggestion will be more acceptable to the Government.
 
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7.30 p.m.

Lord Hylton: My Lords, I am happy to support the amendment. We all know that rape has been used as a form of torture in countries as widely separated as Bosnia and Turkey—and in Darfur—to name just a few. We also know perfectly well that torture and rape victims are extremely reluctant to speak about their own experiences until such time as a relationship of trust has been established with the interviewer.

It is highly probable that, acknowledging that reluctance, those people may be willing to tell their proper legal representative what they have been through and he or she can put it on their behalf. I urge the Government to accept the amendment because it will improve the quality of first decisions. That was a point I tried to make throughout every stage of the previous Bill on the subject.

Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Phillips, for bringing forward what he sees as a compromise. I do not quite see it that way. It is important that we understand what that compromise might look like and what it is part of in terms of "the process". I hope that in putting the Government's case for resisting the amendment, that will become clearer. However, I acknowledge one point made by the noble Lord, Lord Phillips, and supported by others; that initial stages in the process are important and have a bearing on the outcome for applicants.

As the noble Lord explained, Amendment No. 25 seeks to exclude victims of rape or torture in the exceptions listed in the accompanying direction to the Community Legal Service (Scope) Regulations 2004 so that funding for the attendance of a representative at a substantive IND asylum interview is available in these cases. Those regulations are made under Section 6(7) of the Access to Justice Act 1999. This enables the Secretary of State to make regulations to amend Schedule 2 to the Act in order to exclude specified services from the scope of the community legal service.

These regulations remove funding for the attendance of a representative at the majority of substantive IND asylum interviews from 1 April this year. In all but the exceptional cases detailed in the accompanying direction to the regulations, funding for the attendance of a representative at the substantive asylum interview is now not authorised.

I want to explain why we introduced the regulations. Previously, funding was available for a representative and, despite what the noble Lord said, usually it was for an agent or outdoor clerk working for a legally aided organisation representing an asylum seeker to attend the substantive interview with the Home Office. However, the Government believe that in the majority of cases this is unnecessary, of little or no benefit to the client and a waste of public funds. It does not merit the expenditure.

I know that the noble Lord rejects that explanation, but I want him to hear the explanation we are giving.
 
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Lord Phillips of Sudbury: My Lords, I am grateful to the noble Lord for giving way. I do not reject that as an explanation, but it is just no longer relevant. My amendment gets beyond that and confines the right to legal aid to the three exceptional cases to solicitors and other accredited legal personnel.

Lord Bassam of Brighton: My Lords, I take the noble Lord's point. However, in reality, in most cases the role played by the person accompanying the asylum seeker was simply that of a note-taker as he was not meant to intervene during the interview. In addition, the interviews are non-adversarial. They are fact-finding and are there to elicit the basis of the application. They are part of that process. And there are remedies available to the client to deal with any discrepancies or disputes which may arise after the interview.

We recognised that there are important exceptions to this where it is right that an applicant has his or her representative at the interview—

Lord Avebury: My Lords, I thank the Minister for allowing me to intervene. How would the victim of rape or torture know that he is suffering from a mental incapacity within the meaning of that phrase in English legislation if he has no advice on it?

Lord Bassam of Brighton: My Lords, I am assuming that at some point in the process leading up to the interview he would have sought advice and had some support. I am sure that he would not be unsupported.

Unaccompanied minors; applicants going through the fast-track initial decision process; those suffering from a recognised and verifiable mental incapacity which makes it impractical to undergo an interview without support; applicants being interviewed at a police station or under the Police and Criminal Evidence Act 1984; or applicants alleged to pose a threat to national security should have an adviser at the interview if they so wish.

The Government are not persuaded that the victims of rape or torture or of other serious physical harm could be regarded as exceptions for this purpose for the following reasons. Under the Access to Justice Act 1999, the Legal Services Commission is under a statutory duty to provide access only to legal services. While some applicants may be entitled to specialist services in the United Kingdom, such as medical or social care, this does not fall within the remit of legal services.

All issues relating to an applicant's medical condition, vulnerability, ability to answer questions or otherwise can and should be dealt with by way of written representations with supporting medical evidence. We believe that this provides a much more effective legal service than attendance at interview.

It may be desirable for some clients to bring a companion to the interview for medical or emotional support, but again this does not fall within the remit of legal services. Furthermore, it is difficult to understand what added value a legal representative can add when an asylum applicant is giving an account of any persecution
 
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he claims to have suffered. The IND interview is an opportunity for an asylum applicant to tell his story in his own words and his own terms. It may be of interest to note that when the Medical Foundation interviews alleged victims of torture, it insists that a legal representative is not present.

The Government believe that this amendment is undesirable and that the preparation of a good statement and material evidence in support of an asylum claim is a more effective legal service than attendance by a legal representative at an interview.

The Government also believe that there is enough flexibility in the system, both at the initial stage of the process and at appeal, to allow a client's representative to address a client's vulnerability or illness, including his ability to answer questions at the Home Office interview. For those reasons, we continue to resist the amendment.


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