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Lord Avebury: My Lords, I added my name to this amendment, not because I necessarily subscribe to every detail of the scheme which is proposed, but because I believe that some sort of registration is absolutely necessary. I was the more convinced of that when I read the Law Society's memorandum which set out a number of considerations regarding the activities of unlicensed practitioners. These made one's hair stand on end. They showed clearly how the whole system can be disrupted by the incompetence of some of these people. I entirely accept what the noble Lord, Lord Dubs, said: that many of these people may be unqualified but nevertheless give a very good service to their clients. However, there is a penumbra of them whose service is grossly inadequate and actually very harmful to the clients themselves.
I recently dealt with the case of an individual who had applied for asylum and had consulted one of these so-called advisory organisations, which I think consisted of a single individual. The man kept on asking what had happened to his case and the practitioner wrote back saying that the matter was under control and that he was in detailed consultation with the Home Office. Eventually he found out, when the practitioner went out of business, that he had not written to the Home Office at all and the Home Office, thinking that the person had deliberately refrained from getting in contact, issued a notice of intention to deport. That was entirely the fault of the individual who was pretending to give advice, while taking money for so doing, when in fact he had done nothing whatever.
Baroness Blatch: My Lords, the purpose of the amendment is to create a statutory regulatory body to supervise and oversee the activities of immigration advice practitioners. That would not include solicitors and barristers who would be classified as "qualified persons" under the scheme proposed in the amendment and, consequently, would not be required to register with the regulatory body.
I recognise that this is an area where concerns have been expressed, and I understand the view that the situation requires some response. Several noble Lords will no doubt have been informed about individual cases which may have disturbed them. There is some anecdotal evidence concerning cases of overcharging, poor advice and poor service by immigration advisers. The difficulty is that comprehensive evidence of the scale of any abuse is simply not available.
The Government question whether it would be wise to contemplate a regulatory scheme of the kind proposed here in the absence of such evidence. Let us for a moment think about the implications. The scheme involves setting up a full-blown regulatory authority by the noble and learned Lord the Lord Chancellor. He would be required to address the most detailed issues concerning fees, business management, record-keeping and supervision of employers. He would also have to specify on what basis he could be satisfied about the competence of a registered person to act as a practitioner, and define professional standards, presumably based on prescribed qualifications and examinations. He would, furthermore, have to justify a decision both to include a person on a register and to remove someone from it. Decisions by the authority would need to be proof to legal challenge by means of appeal to the High Court. It follows that it would need to set up investigative machinery of a kind which would add to the regulation in that area.
All that is a sizeable bureaucratic undertaking. Can we be satisfied that it is a proportionate response to a problem whose scale has not yet been identified? Further, this approach raises deeper questions about the extent to which the Government should attempt to regulate areas where, no one denies, there may be occasional abuses. In particular, it would be a significant step for the Government to attempt to regulate the market by fixing the fees. The Government have always taken the view that regulation of that kind is in principle undesirable unless a clear need can be shown for it on the basis of the social harm which would otherwise occur. Of course it is right to be alive to the prospects of exploitation. But, on the evidence available, I question whether the Government should become so directly involved as the amendment suggests. Why regulate that area of legal fee in particular? Many people can cite instances where they think that they have been overcharged for legal services, but we have not thought it proper to step in to regulate the scale of such charges.
That is not to suggest that the Government are complacent about the remedies available. The first point to make is that the Government have been prepared to deal with the most excessive activity of this kind where the provision of advice is linked to racketeering--I have to say that that is a measure which is not supported by the noble Earl, Lord Russell. The new powers in Clause 5, which we have already discussed, deal with those who facilitate the entry of asylum seekers or where deception is practised. Where such activity is conducted under the guise of giving advice it can be dealt with under the powers in Clause 5. But concerns were expressed that such powers should not bite on legitimate activity. It would be inconsistent, therefore, to opt for regulation for activity which fell short of the scale required to generate a prosecution under Clause 5.
Furthermore, we should not dismiss the legal remedies which are currently available. If it could be shown, for example, that pecuniary advantage had been gained by deception in a particular case--I cite the example given by the noble Lord, Lord Avebury--then a prosecution could be brought.
The statutory, regulatory schemes which have been proposed during the passage of the Asylum and Immigration Bill would almost certainly involve additional public expenditure. The Bill has no money resolution. Fees payable for registration under a statutory, regulatory scheme could offset the cost of operating the scheme, but it is unlikely that such fee-income could ever completely cover the cost.
The Government have recognised the concerns which have been expressed on this subject and have responded by talking to those directly involved. Discussions have taken place with the Law Society, the Immigration Law Practitioners Association, and the appellate authorities. These discussions have identified a number of issues which would benefit from greater attention, to see if any abuses or excesses can be curbed from within the system rather than by intervention by the Government in such a bureaucratic way. The Chief Immigration Adjudicator, Judge Pearl, has kindly agreed to convene at regular intervals a meeting of those concerned in the recent discussions to pursue the points which have been identified. We think it right to await the outcome of this work before considering whether any further steps are necessary.
The Government have given this matter careful thought. Despite the lack of detailed information, we are not convinced that the scale of the problem requires a solution of this kind. We will continue to discuss with those concerned what might be an appropriate response.
Lord Dubs: My Lords, I thank the Minister for her detailed response to the amendment. I fully accept that the scheme in the amendment is complex and may not be the best scheme. However, it is beyond doubt that there are difficulties. The Minister says that she is not aware of the scale of the problem. I understand that, because we do not have hard evidence. However, I suggest that the evidence which exists is a little more than anecdotal. Rather a large number of instances has
The Minister's key argument is that the system is complex; and that perhaps the remedy was out of proportion to the problem. She asked whether regulation was necessary. If nothing is done the difficulties will continue. It is difficult for an aggrieved party to use the legal remedies that exist. If an asylum seeker has been given advice that is not adequately professional, it is extremely difficult to find a way to obtain compensation through the legal system; it probably never happens.
The Government have been a little more sympathetic in the past. I have raised the issue over the years with more than one immigration Minister. The normal response was, "This is rather difficult. It we could find a satisfactory system, we'd think about it".
I am not sure how wide Judge Pearl's terms of reference are in the investigation to which the Minister referred. If they are wide enough, I shall be content. From the way the Minister described the situation, I did not understand whether his terms of reference are wide enough to identify the scale of the problem, and to give us more details about the number of people who get into difficulties because they do not receive good advice.
While occasionally it is a matter of deception which might be covered by Clause 5--it is marginal whether that is so--more often poor quality advice received simply does not help the individual. I draw some comfort from what the Minister said about Judge Pearl's work. If the terms of reference of this work are wide enough, I shall draw even more comfort from that. In the circumstances, I beg leave to withdraw the amendment.