My Lords, these amendments reflect my concern and that of the Immigration Law Practitioners’ Association that, unless legal aid is provided for trafficked and enslaved persons as soon as they are encountered, individuals will continue to fall through the cracks. Amendment 50 would ensure that legal aid could be provided to a person before an application has been made to the competent authority or before the competent authority has reached its decision that there are reasonable grounds to believe that a person is a victim of slavery, servitude or forced labour. The amendment’s proposal is that legal aid would be provided if the legal representative reasonably
believed that the standardised indicators of slavery, servitude or forced labour, as set out in the national referral mechanism form, were met in the particular case. The next amendment, Amendment 51, would create a new clause, which would follow Clause 47, which would have exactly the identical effect for trafficked persons.
I know that the Government have made a special effort in this regard, but legal aid is made available now too late for a number of these cases. It is not available for those who are trying to pluck up the courage to approach the authorities. We have heard time and again in this House of the circumstances in which people are so fearful that taking that step feels enormous to them. Legal aid is also not available to those who have been referred to the national mechanism but are trying to pluck up the courage to describe what has happened to them, finding it difficult to give voice to some of the horrors that they have been through. They are also fearful of providing supporting evidence from other people; they worry about naming others in case there are consequences for them and because they are afraid of those who have trafficked them. The concern is that those people have had experiences that make them fearful of authority—and, believe it or not, they are sometimes more prepared to tell a lawyer about their experiences than they would be to tell people whom they see as being part of the authority system.
Many in the House have spoken about the charity Kalayaan, which deals with domestic workers. A number of cases have been brought to our attention, which have come regularly before the courts. They are of people who have been assessed as trafficked by Kalayaan. However, their stories show the failure of the system, as they are afraid to approach the authorities and afraid of being referred to the national referral mechanism because they do not know what the outcome might be. They do not know whether they will be returned immediately or whether there will be reprisals from their employers or those who have trafficked them. They relate stories of people who have been subjected to terrible labour exploitation, and treated appallingly with many being beaten and bearing the scars of that. Some have tried to commit suicide. They say that often they are the sole providers for families back home in places such as India and they are worried about the consequences of putting themselves in the hands of the authorities. They need advice on whether they qualify for a residence permit, for example, such as they would receive if they were deemed victims of trafficking. These people are fearful about their situation and want to know what their options are, whether they will be able to stay, whether they will be safe or whether they will simply be returned to the countries from where they came. Sometimes, they prefer to stay with the devil they know and continue to be beaten and abused because they do not know what their rights are.
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There are many such cases. Kalayaan and the immigration lawyers’ organisation can cite cases of people who have remained in immigration detention centres for 47 days. There is another case of someone
who spent 76 days in immigration detention and a young woman, Olivia, who spent 336 days in a detention centre and in prison before being firmly identified as having been trafficked. Sometimes this happens because the staff in detention centres say that they do not think these people were trafficked, so they do not refer them to the national referral mechanism. Therefore, to have legal aid available at that point is sometimes too late. I know that pilots have been run by government on making legal aid available from the point of referral to the national referral mechanism. I am asking the Government to go further and run the pilots on making it available from the moment that the legal representative identifies the standard indicators for slavery, servitude and trafficking.
I emphasise that this measure does not involve legal aid for all. I am mindful of the fact that there have been cuts and I know the attitude that government departments take towards legal aid, and that serious efforts are being made to reduce accessing it too readily. However, legal aid is subject to a merits test, so if the lawyers’ belief that the indicators were met is deemed unreasonable, then the payment would not be made. Therefore, there is that element of protection. If the Government want to look for further restrictions, they could look at the LASPO Act arrangements for asylum advice, where costs are limited to £100. If no claim for asylum is ultimately made, the lawyers receive no money whatever.
I can well imagine—and strongly suspect—that the Minister has been advised to resist at all costs any suggestion of further expenditure. However, I urge the Government to think about this measure. It is not expedient to cut costs if there is a bigger price to pay later in the process. We are concerned about trafficking and slavery and we have to make sure that good decisions are made early on. I seek the support of government for pilots to be initiated on making legal aid available at an earlier stage so that, if the legal representative feels that the standardisation tests are being met, legal aid can be applied for. Some form of legal aid should be available so long as the merits test is met. I would like the Minister to acknowledge that there is some benefit in this suggestion because this aid is being provided too late and some people are falling through the gap, which does exist. I beg to move.