| On 5th June this year the Lord Chancellor's Department (now the Department for Constitutional Affairs (DCA)) issued a consultation paper on proposed changes to publicly funded immigration and asylum work. We decided, following the Lord Chancellor's invitation, to conduct a brief inquiry to examine these proposals, concentrating in particular on the proposals to set maximum limits on the amount of public funding available in individual cases.
In conducting this inquiry, we have had to work within a number of constraints. In order to accommodate the Government's timetable we worked within a truncated timescale. In addition, following the conclusion of oral evidence, the DCA submitted a memorandum setting out an "alternative approach", which changed significantly from its original proposals. The Home Secretary also made an announcement which will have important implications for legal aid expenditure in this field. Whilst we have attempted, within the time available, to take account of these developments, it is wrong that we were not able to test the merits of the Government's revised proposals with our witnesses in oral evidence.
The Government's original proposals were hurried and not obviously thought through and its "alternative approach", proposed to us at almost the very last stage, is unhelpfully vague. We conclude that the Department needs to undertake serious further work before it is able to put any sensible proposals on the table. It is the nature of that work which forms the basis of our detailed recommendations below. Until that work has been undertaken, and a properly considered package of reforms is brought forward, we recommend that the Government place a moratorium on the time and funding limits for publicly funded asylum and immigration work. We believe there should be no delay in addressing the issue of quality representation.
We accept that there is a need to make sure that the mechanisms are in place to ensure that the money is being spent properly and that quality can be guaranteed. But whilst we recognise the competition for resources in the legal aid budget, we do not consider that the Government's original proposals—namely, to place stringent caps on the time and costs that could be spent on individual cases—would have achieved this result. For these reasons:
- We strongly support the proposals for a new accreditation scheme
- We welcome the Department's recognition that the system needs to be more flexible than originally proposed, and the elements of "earned autonomy" for some suppliers of recognised high standard, although the Government needs to spell out the details of the revised proposals
- We welcome the Government's revised proposal to allow extensions in "genuine and complex" cases on application to the Legal Services Commission (LSC) for prior authority on a case-by-case basis, although we recommend that the category of "genuine and complex" cases be sufficiently broadly defined to meet the issues we have raised
- We recommend that attendance by representatives at Home Office interviews be allowed in cases where the representative is able to justify his or her attendance (as currently required by the LSC). We further recommend that the costs of such attendance not be included within be threshold for Legal Help, but that it be claimable separately
- We welcome the recent announcement by the LSC that it proposes to consult further as to when experts' reports can be commissioned and as to the proposed maximum fees. We strongly recommend that it also consults on its revised proposals for interpreters' costs.
- We recommend that provision be made where necessary for conferences with counsel to take place before the day of the hearing (rather than at the hearing, as originally suggested by the LSC)
- We recommend that, on a change of legal representation, a fresh Advice Limit or threshold should be allowed where justified.
Many of the respondents to the consultation, and our witnesses, have referred to the problem of poor quality decision-making by the Home Office in the first instance. There is also widespread concern about the low level of Home Office representation at appeals—around 35%—which can result in unnecessary appeals to the Immigration Appeal Tribunal. These are issues to which we hope to return in our main inquiry into Asylum and Immigration Appeals.
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