UK Borders Bill

My Lords, I am grateful to noble Lords for raising the issue as it enables the Government to set out our position and perhaps to clarify a few issues. The Government believe that to accept this amendment, which removes the merits test for those in detention, would contradict our aim of ensuring that public funding is targeted on cases with merit and that weak cases are not supported. We need to make the best use of limited resources by ensuring that only cases with merit are funded and that genuine applicants are adequately supported through the process. The merits test is common in the criminal justice system for legal aid; it is not unique to this process. The merits test for representation at the tribunal has existed since representation at appeal and bail hearings was brought into the scope of legal aid in January 2000. For funding to be granted, the prospects of success have to be moderate or better, which is defined as clearly over 50 per cent, as noble Lords understand. However, in asylum cases, if the prospects of success and the merits of the case are borderline or unclear, funding can still be granted if the case has wider public interest or is of overwhelming importance to the applicant. Where a case has a poor prospect of success, the fact that making or pursuing an application or representations will in itself prolong a client’s right to remain in the UK will not be treated as a sufficient benefit to continue with public funding. It is inevitable that in any system of merits testing there will be applicants with poor cases who do not receive publicly-funded representation. The Legal Services Commission’s guidance to suppliers on the fast-track scheme states that where the client’s substantive appeal lacks merit and would not warrant the grant of funding for the appeal, the case may still merit the grant of funding for a bail application. The Government recognise that individuals detained under the fast-track process will face particular difficulties in securing representation where we are processing an asylum application under an accelerated timetable. That recognition is there. To ensure that clients in the fast-track process have early access to quality legal advice and representation, the Legal Services Commission runs duty representative schemes at Harmondsworth, Oakington and Yarl’s Wood removal centres. Fast-track advice is provided through exclusive contract schedules. Services are awarded in this way to those organisations that can demonstrate that they are able to offer the best service to clients through skilled and experienced staff, effective supervision arrangements and a good track record of audit with the Legal Services Commission. Only suppliers who have a Legal Services Commission contract and who have gone through an additional tendering process are able to provide publicly funded advice under the scheme. The provision of advice in these cases covers the substantive case as well as any associated bail applications. In addition, there is provision for legal advisers to accompany clients to substantive asylum interviews and for the adviser to make a decision as to whether to grant legal aid funding for those in detention under the fast-track process. Onsite legal advice is available through regular advice surgeries open to all individuals who are detained in immigration removal centres in England and Wales. The purpose of the surgeries is to ensure that those in detention and who have not yet received legal advice, or who no longer have a legal adviser and who require advice, will be able to access advice through this scheme. The noble Lord, Lord Avebury, asked how many individuals receive advice through fast track. We are satisfied that current agreements meet needs. As I have explained, we have a process in place—there is a fast-track duty rota system at Harmondsworth, Oakington and Yarl’s Wood. Therefore, fast-track clients do have early access to good quality legal advice. That scheme appears to be working satisfactorily. No scheme is perfect, but there is a proper merits test in place. I hear what noble Lords have said about fast track, but, as I have explained, we put particular emphasis on ensuring that the fast-track process is well supported through advice. For those reasons, it would not be appropriate for us to depart from our current practice and procedure in this regard. I hope that the right reverend Prelate will withdraw his amendment.