Select Committee on Constitutional Affairs Minutes of Evidence


Examination of Witnesses (Questions 20-39)

MR DAVID LAMMY MP AND MS CLARE DODGSON

14 OCTOBER 2003

  Q20  Mr Soley: Can I just ask you to be very careful about the size of companies involved. I have some very small companies that are very good and they could be in trouble on this. On the other hand, I have to accept that seven out of ten of the million-pound-plus firms were on my bad representation list. In other words, they had given poor-quality representation. I worry that in a sense we may, if we are not careful, squeeze out the better, smaller ones if we do not get this right. Can I ask you if you have thought about that and if you will make sure that you take that on board. The capping problem is a problem of squeezing out the good and the bad at the margins, that is the trouble.

  Mr Lammy: Can I say that, in going round and speaking to people and reading the responses, there have been a number of alternatives that have come forward from the practitioners themselves. Some have asked for 15-20 hours and I can indicate here that we are not in that ball park and I have been quite clear to them that we are not in that ball park. Others have said, "What about a threshold rather than a cap?" Others have said, "Have you looked at some kind of earned autonomy for those of us who are ostensibly and have been for some considerable time good practitioners?" We must consider all those things and I hear what you are saying.

  Ms Dodgson: I think there is a question about, do we rigorously review the merits of a case and I think that, yes, we do and that we need to more rigorously review because we do know that some cases are going through that probably should not. Then there is the question, "At what point does that review take place and how do legitimate exceptions get dealt with?" I would like to endorse what the minister has said.

  Q21  Mrs Cryer: I want to talk a little about exceptions to the norm. Will torture victims and unaccompanied minors being treated within the exceptions to the maximum costs scheme as suggested by the Office of the Immigration Service Commissioner and the Medical Foundation and will you increase the proposed additional time and costs allowed for these exceptional categories? I have very little constituency experience on asylum, though a great deal on immigration, so I am learning from this. I have no idea, for instance, what proportion would fit into those two categories, whether it is a very tiny number or quite a lot. I wonder if you could comment on that.

  Mr Lammy: The consultation was, as I said before, very much conducted on the basis of the average, typical, mainstay case that you would expect us to be concerned with. Obviously MPs, often in London in some of our major conurbations but increasingly because of dispersal in lots of parts of the country, will be aware that there are people newly arrived presenting from certain countries that are more straightforward than others. Credibility is always an issue and I should put that very firmly on the table but, for example, China and Somalia present in a more straightforward way than other parts of the world and, indeed, some of the moves we have made in terms of non-suspensive appeals have had an effect on that. There was some discussion in the House probably about a year or so ago around the position the Government had taken on people coming from Kosova and we took the view that people could go back to Kosova, for example. So, there are straightforward, mainstay cases and the consultation very much had that in mind. We indicated in the consultation, if I remember rightly, that we did see room for exceptions. We particularly, from my recollection, talked about people in bail circumstances because there are, unfortunately in this area, bail issues in terms of detainment and other things to consider, but we left it open and, in the consultation, we asked the direct question, what further exceptions would practitioners wish to see, and we need to consider that and reach a view on it and I am aware that organisations like the Medical Foundation and others have made representation on where they thing that should lie and this Committee will reach a view about where they think that should lie. We have to balance the public purse, what we think is acceptable and is the time appropriate, what share of the pot those sorts of cases take, what kind of firms those sorts of cases tend . . . Those are the sorts of determinations we will be endeavouring to make not just in this round of consultation but over the next period because I take the view that this is an area—I enjoy the opportunity to be a minister in this area—and globalization bears down on it in a big way. That is a moving feast and therefore we have to continually revisit this, along of course, very importantly, with Home Office colleagues who want to ensure that that initial determination is good and correct and improving and we want to look at the whole system because after all, predominantly, we are talking about the pre-decision advice. We have not had the decision yet. This effort has gone in and this commitment from the Government to assist people. So, it is in that context that we have that.

  Q22  Chairman: I have had some difficulty in establishing whether the answer to Mrs Cryer's question about unaccompanied minors is "yes", "no" or "we have not decided yet".

  Mr Lammy: If you want to put it in those terms, it is "we have not decided yet".

  Q23  Mrs Cryer: Have you any idea what percentage of all of those seeking asylum, or even immigration for that matter, are unaccompanied minors? I am assuming that we are talking about children under 16. It is quite a specific thing. I can understand you perhaps being a little vague about torture because, what is torture? However, a child is a child wherever he or she comes from. Do you know what the percentage of those appearing are children?

  Mr Lammy: I am informed that it is 6%.

  Q24  Mr Clappison: Could I press you to be possibly a little more specific on victims of torture. I hear your general answer to the question, but do you accept that whilst not everybody who presents as a victim of torture is such a victim, many of those who do are victims of torture? Do you accept that, in their case, as a general proposition, their cases will be more complicated than the run-of-the-mill case which you were describing earlier?

  Mr Lammy: I have to say, on the basis of my experience, no, not necessarily. Someone can present from a particular part of the world where it is more obvious than not that that may have been the case, it is more obvious than not that they belong to a particular tribe, it is more obvious than not that they are presenting with the physical attributes of someone who has clearly experienced torture. I have certainly had pretty horrific cases come to me where it is physically obvious, so I do not accept that as par for the course. I have to say also—and this is partly because I want to be respectful to the inquiry—that I cannot say today what our conclusion is and I have got to be clear on that. We are still determining what that conclusion is and where the balance should be. I am not in the business of making announcements today.

  Q25  Ross Cranston: It is very useful to hear that you are seriously considering things like thresholds and possibly earned autonomy.

  Mr Lammy: Perhaps I can just qualify it. That is what has been represented to me.

  Q26  Ross Cranston: And I am sure you are considering it. There is a problem. I am particularly concerned, for example, at the housing figures you have mentioned. There is an unmet legal need in some of these other areas. Could I also make a point by way of preface that yes, the Department and the Commission have drawn up standards, but I think the profession itself, or at least groups like the Immigration Law Practitioners' Association, have helped (and I think they should be given credit for that). Can I just press you in particular about the attendance issue? What is the rationale here? There was research at one point about attendance at criminal interviews and people like Professor McConville and so on said, and it is the sort of point you make, "Look: it is not much use because the sort of people who turn up are clerks" (which is what they were called at that time), and they were not much good, they did not interact and properly represent their clients. Are you saying that they do not make a contribution or are you saying that the nature of the screening interview is such that you do not need anyone there?

  Mr Lammy: I am saying that we have a determination to make on the basis of value for money and what we believe quality to be. Therefore we need to be minded that this is the pre-decision stage. Colleagues in other parts of Europe, say, Germany, do not have lawyers pre-decision, for example. We need to be conscious that if we are paying out of the public purse at this stage then that has to add value. I have to question, quite rightly I think, how an outdoor clerk or someone with no legal training adds value at that stage. I have also to question the nature of the system because it is a system where we require the person newly arrived to be truthful about their circumstances, and in a sense we are inquisitorial as to those circumstances. It is not meant to be adversarial and in that sense the nature of representation you might require in a PACE type interview under criminal law is different from the circumstances in which you arrive as the person claiming asylum. That is part of the determination that we need to make.

  Q27  Ross Cranston: Let us accept that for the sake of argument. Mrs Cryer mentioned, for example, the problem of minors. Will there be exceptions in cases like that or, as Clive mentioned, torture victims?

  Mr Lammy: We already have, and have always had, a different form for unaccompanied minors, for example. If my recollection is right—and I have been in the job three months—we have a new form that was issued on 1 October, so that is 14 days ago, which makes it even more straightforward for unaccompanied minors. What I am indicating is that the system currently is understanding the particularity of those 6% of young people presenting in these very difficult circumstances.

  Q28  Ross Cranston: Will they have representation? Is that what you are saying?

  Mr Lammy: Currently in the system they will have representation. The question is perhaps not whether they should have representation but, if the state is to fund it, what should that representation be?

  Q29  Ross Cranston: What you are saying is, "At present, yes. In the future, yes, but it may not be a lawyer"?

  Mr Lammy: I am not making any announcements today. I am saying that we have consulted on the basis of exceptions. I have heard what people have said about unaccompanied minors. I am saying that the system presently makes accommodation for unaccompanied minors and that might be indicative of the direction of travel.

  Q30  Ross Cranston: I will take that as good news.

  Ms Dodgson: On a more general point, of course, there is a real question about advice which is not necessarily legal advice. You mentioned earlier the point about debt and welfare benefits. We do a lot of work with the not-for-profit sector, the Citizens' Advice Bureau and so on. I will not reel off a great long list, but may well be that in certain circumstances it would be better for people to have advice. For example, in my last job in Jobcentre Plus, New Deal advisers used to give people advice and they were accredited to NVQ level two or level three. In many cases that was appropriate and that met that individual's needs. In a number of cases it did not and then where do you transfer on to more specialist advice? It is not a point about unaccompanied minors but it is a general point about the map of advice that we give people in vulnerable and difficult times in their lives.

  Mr Lammy: You did mention generally legal aid. It allows me to say, of course, that one of the important aspects of this discussion is the entirety of legal aid and the £1.9 billion we spend on legal aid. That is a large amount of public money. We are spending more in this country on legal aid than we have ever spent before. I feel very strongly and passionately about legal aid. There are many people in my constituency who rely on legal aid—my own family has relied on legal aid in the past—and Citizens' Advice and other things that people can offer. It is important to me that we are able to spend legal aid in important areas and we are able to look at where those important areas might lie. I know that in London MPs represent to me that housing, welfare benefits advice, debt advice, are important areas. I am clear, and the Chancellor would not be happy if I did not make it clear, that the £1.9 billion has to remain at £1.9 billion. We have to look at that in the round.

  Q31  Ross Cranston: I would hope there is some flexibility. Anyhow, that is a different issue. Can I move you on to a point you made earlier about changing legal advice, the notion that people might "shop around"? The argument might be made (as for example, the Office of the Immigration Service Commissioner has said), "Bad advice. Change", so some of these people might possibly be accepting official advice. They are getting bad advice and they are changing. What is the empirical evidence that people, in moving around, are abusing the system?

  Mr Lammy: Let us start at the beginning. We had a situation in the 1980s, I think between 1980 and 1988, when we had in this country round about 4,000 asylum places a year. Asylum was not the political issue anywhere near what it is today. The political issue was immigration. By about 1998-2000 that average had risen to 76,000 asylum claims a year. We know about the nature of the world demographics and other things such as the strength of the British economy and why people might seek to come here. It would be right to say—and the Prime Minister has been clear on this and the Home Secretary at the time, Jack Straw, was also saying this—that we did not have the systems in place because in a sense our asylum system had been catering for much smaller numbers. We had a flood of practitioners into the area and we have had the quality issues ever since that point. We sought to deal with the advisers and I think we have gone some way on that and the OISC has had a massive role to play in that and I congratulate them for all that they have done and continue to do in that area. We are now making moves with the lawyers to deal with that area as well, but what we know is that in 2002 we had round about 85,000 asylum applications. At the same time we had 109,000 new matter starts. That suggests people moving more often than would be the case in other areas of law, and so we have to continue to drive quality. I might also say that 80% of decisions are not granted by the IND at that initial stage and 80% of appeals fail. That is another imperative in looking at the system and ensuring that we are getting value for money at every stage. That is why the Home Secretary and the Lord Chancellor have undertaken to be involved in continual analysis of the whole system approach from start to finish.

  Ms Dodgson: From the Legal Services Commission's point of view the starting point is to stop the bad advice. Get it right first time, whether it is legal or non-legal advice. Yes, you will always get a small number of suppliers who will be giving bad advice and we need to be constantly alert to that: no complacency and root that out, but all the actions that you have heard we are taking, about audit, about removing contracts from category three suppliers, quality assurance, peer review and so on, the starting point has to be: stop the bad advice.

  Q32  Mr Soley: Is the Law Society co-operating on that fully?

  Ms Dodgson: Yes, indeed.

  Ross Cranston: And in the discrepancy between figures there might be time lags involved. I do not deny that there has been some abuse but I think it is very difficult to build a whole case on the basis of abuse, and I know you are not trying to do that. I will just make the point, and you do not have to respond, that the OISC also said that there may be an encouragement to the lodging of unfounded complaints as a means of getting further advice. That is a concern that I am sure you will address.

  Chairman: There are a number of quite specific points I want to draw to your attention. We are not trying to entrap you into making statements at this stage; indeed, that would be the opposite of our own intention because we are trying ourselves to contribute to a process which we hope you have not made your final decision on yet.

The Committee suspended from 5.13pm to 5.27pm for a division in the House

  Q33  Chairman: As I indicated earlier, there are a number of specific issues I want to raise so that we know whether you are giving them consideration without in any way expecting you to tell us at this stage what view you are coming to. One of them is the disbursement issue, which we have touched on, where the £250 limit proposed does not seem to sit comfortably with the fact that some kinds of reports—consultants', psychiatrists', country experts', can cost more than that figure. You have made a proposal that you would only go beyond that figure where the Medical Foundation was involved. Let me say that I am a great fan of the Medical Foundation and have dealt with it over a period of time and I think they do marvellous work, focused, of course, on the therapeutic needs of the people they are trying to help rather than on being a reporting organisation as such. The view has been expressed that this is not only not going to work very well; it puts an unreasonable pressure on them to take up cases that they might not have the resources to do. Are you conscious of these issues?

  Mr Lammy: As I have said, I have clearly heard about those issues within some of the responses and particularly from the quality providers that I have spoken to. The determination that the Department has to make is about how significant that is within the lion's share of the applications that we are seeing. We also have to make determinations about what standards we think are reasonable and to be clear that, for example, experts are accredited or have some proper qualifications that are standardised because it has been the case that people have had country reports and certain verifications on the politics or a particular situation in a country that have not met the required standard, and so part of the responsibility for us is to probe more in that area and to come to some conclusion about what is or what is not appropriate. That is as far as I can go but I have heard the arguments put.

  Ms Dodgson: It is fair to say, Chairman, that as part of looking at what options ministers might also ultimately decide upon the operational practicalities of how they would work have clearly got to be worked through and we would be wanting to contribute to that. The other point is the balance. We would look to do it with legal aid suppliers where we are not necessarily looking at individual cases. We are accrediting high quality organisations to do blocks of work for us and again we would need to look at how that may or may not work in reality.

  Q34  Chairman: But a single route to a higher disbursement is obviously an issue that you would want to look at?

  Ms Dodgson: Indeed.

  Q35  Chairman: Whether it is proper or even workable, there is only one single route. Another issue which has been raised quite a bit is whether or not barristers can hold a conference with their clients in advance of the hearing or whether, in order to protect the funds for the time limited initial advice, they are expected to do it at the hearing. Is that an issue which you are looking at carefully and is it your intention to create a situation where conferences are normally held as part of the hearing on the day rather than in advance?

  Mr Lammy: What we have got to be clear on is that five plus four plus the hearing itself, which can run to three or four hours, is a commitment at that stage (if it gets to that stage) to the person seeking asylum of two working days. The responses that we have received in that area have to be considered in that context. That is as far as I would want to indicate on that. Much of the work will have been done prior to the hearing and that appeal stage. The work will have been done prior to getting to the point of appeal and then there is a determination within the four hours and that must be a determination for lawyers involved as to how they want to best use that time.

  Q36  Chairman: There is a risk that you could generate more adjournments because the barrister at the conference may discover things which have to be explored further which, if the conference takes place on the day of the hearing, is going to lead to demands for adjournments.

  Mr Lammy: In practice, if people are moving through the system more quickly—and they are, because let us remember that part of the appeal figure at the moment represents some of the backlogs that we will have got rid of by November—then the determinations are more determinations of law than determinations of fact, and I think that would have a bearing on what further information is necessary at appeal stage.

  Ms Dodgson: It is also back to the "right first time" point. We need to make sure that cases are worked up so that there is adequate information, that they are properly presented and that when we do come to hearings there is sufficient quality and they are presented properly so that decisions can be made. I think that is the important point.

  Q37  Chairman: We sent to you some written questions which the Department answered, one of which was that it was the view of the Department and the Legal Services Commission that the number of appeals currently being undertaken is not justified by the success rates at appeal and you have quoted the 80% failure figure. You went on to say that further measures may be needed in order to prevent firms taking appeals which have little prospect of success. Are there further measures currently under consideration which are not the subject of this consultation?

  Mr Lammy: Yes, there are. The Prime Minister and the Home Secretary indicated that we were minded to move to a single tier. I think that announcement was in May. We are looking into this issue and hope to come forward in due course with where we have got to on it.

  Q38  Chairman: So that was what was meant by "further measures", was it? I do not think we had read it that way, and of course that led to our enquiring at the beginning whether this was one of the things that might reduce the cost anyway.

  Mr Lammy: Obviously, that is an important further measure and we have indicated that we are minded to move in that direction. There is another further discussion which I have previously referred to, and that is that we must continue to look at the whole system from start to finish. We must look at the balance of legal aid vis-a"-vis the attempts that are being made to improve the standard of initial decision in the Home Office (and much is going on there), and look at the system in the round. There are two things on the table. That was why I was keen to indicate that this is an area in which we must continue to make change because it is a fast-moving feast and we want to stay on top of it and that is the commitment we have made to the public.

  Ms Dodgson: Just to add a third thing, Chairman, we are looking to apply more rigorously the merits test: do these cases have a meritorious case to go forward, and if we believe they do we bring that judgment in-house to the Legal Services Commission. Where we have looked at granting of judicial review in the legal aid system we have done something very similar and we have seen the number of judicial review cases decline very sharply. We need therefore to make sure that we check the merit of the case fairly and objectively but we have grounds to believe that in some instances that is not happening constantly at the minute.

  Q39  Ross Cranston: I was going to ask you about that. You might want to write to us because time is short but could you tell us about the merits test and, if it is not working,—and the suggestion is that it is not working because of the 80% failure rate, as you have put it,—does that vary from firm to firm, from practitioner to practitioner?

  Ms Dodgson: It does.


 
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