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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