The lord chancellor unlawfully failed to ensure immigration detainees have effective access to justice by allowing ‘incompetent’ firms to provide legal advice, the High Court heard today.

Campaign group Detention Action is bringing a judicial review over the detained duty advice surgery (DDAS) scheme, which provides a free 30-minute legal advice session to people held in immigration removal centres.

The lord chancellor is alleged to have ‘failed to utilise his powers … to deal with serious failures in the DDAS’, by not monitoring or investigating the competency of providers or imposing sanctions on those which do not meet contractual requirements under the scheme.

One in six DDAS providers has been peer reviewed as being ‘below competence’, suggesting that 2,300 detainees were advised by ‘a provider judged not competent to conduct even general immigration legal aid work, let alone specialist detention work’, Detention Action’s barrister Ben Jaffey QC said today.

He argued in written submissions that the lord chancellor has ‘fettered his discretion’ by deciding not to suspend or remove a provider from the scheme without a second peer review finding the firm is below competence.

Jaffey said: ‘The practical effect is that vulnerable detainees in detention are used as guinea pigs in respect of an adviser already assessed as lacking competence, to see if there will be an improvement. As a result of [the lord chancellor’s] failings, many thousands of immigration detainees have been put at risk – and continue to be at risk – of being denied their constitutional right of access to justice,’ he added.

A lack of prompt and competent legal advice for detainees meant that ‘unmeritorious and poorly prepared claims are brought by poor advisers, often at the last moment’, he also argued.

Jaffey said the lord chancellor is in breach of his duty under section 1(1) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 and invited the court to make a declaration that the operation of the DDAS scheme is unlawful.

Malcolm Birdling, for the lord chancellor, said in written submissions that ‘the claim essentially concerns the actions of individual providers’. He argued that the lord chancellor  has ‘maintained strong oversight’ of the DDAS scheme and ‘responded urgently to problems as they arose’.

‘The claimant pointing to isolated failures or errors in the day-to-day operation of the system does not come close to the bar for showing unlawfulness or irrationality,’ Birdling said.

The question for the court was whether the lord chancellor has ‘by creating a system by which all detained individuals are entitled to 30 minutes of free legal advice … without qualification, as many times as they want, created a real risk that individuals will be denied access to justice’, Birdling said.  ‘This proposition merely has to be stated to be rejected,’ he concluded.

The hearing before Mr Justice Calver concludes tomorrow.